931 F.3d 582
7th Cir.2019Background
- Joseph Krell, a former ironworker, applied for Social Security disability benefits; his claim was denied initially and on reconsideration and he requested an ALJ hearing.
- Krell’s counsel prehearing sought a subpoena compelling the vocational expert (VE) to produce extensive underlying materials (statistics, reports, methodologies) relied on for testimony.
- The ALJ denied the subpoena at the hearing as insufficiently specific under 20 C.F.R. § 404.950(d); the VE then testified by phone identifying several jobs (per the DOT) and state workforce projections supporting job numbers.
- Krell did not make a post‑hearing challenge to the VE’s testimony but later obtained district court reversal on the subpoena denial; the Commissioner appealed.
- The Seventh Circuit considered whether the ALJ abused discretion in refusing the subpoena in light of Supreme Court precedent holding VEs are not categorically required to produce underlying data (Biestek v. Berryhill).
- The Seventh Circuit reversed the district court and affirmed the Commissioner, finding no abuse of discretion because Krell failed to show the subpoena was necessary and Biestek disallows a categorical disclosure rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ abused discretion by denying a prehearing subpoena requiring the VE to produce underlying data | Krell: subpoena necessary to adequately cross‑examine and impeach the VE; materials would show flaws in VE’s foundation | Commissioner: Biestek permits VEs to decline producing underlying sources; ALJ need not require production absent showing of necessity; cross‑examination and post‑hearing challenge available | Court: No abuse of discretion. Biestek forecloses categorical production rule; Krell did not show why subpoena was necessary, so denial was permissible |
Key Cases Cited
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (vocational experts are not categorically required to produce underlying data; nondisclosure affects weight, not automatic exclusion)
- McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004) (pre‑Biestek: vocational expert must make underlying data available on demand; abrogated by Biestek)
- Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018) (standard for evaluating VE testimony as substantial evidence)
- Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008) (encouraging post‑hearing opportunity to challenge VE evidence when underlying data not available at hearing)
- Butera v. Apfel, 173 F.3d 1049 (7th Cir. 1999) (claimant’s mere assertion that subpoena is necessary does not automatically entitle one to a subpoena)
- Liskowitz v. Astrue, 559 F.3d 736 (7th Cir. 2009) (at step five the SSA bears the burden of proving jobs exist in significant numbers)
- Cullinan v. Berryhill, 878 F.3d 598 (7th Cir. 2017) (standard of review: de novo for magistrate judge determinations; abuse of discretion for ALJ subpoena denials)