Biestek v. Berryhill

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BIESTEK v. BERRYHILL, ACTING COMMISSIONER

OF SOCIAL SECURITY

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 17–1184. Argued December 4, 2018—Decided April 1, 2019

Petitioner Michael Biestek, a former construction worker, applied for

social security disability benefits, claiming he could no longer work

due to physical and mental disabilities. The Social Security Admin-

istration (SSA) assigned an Administrative Law Judge (ALJ) to con-

duct a hearing, at which the ALJ had to determine whether Biestek

could successfully transition to less physically demanding work. For

guidance on that issue, the ALJ heard testimony from a vocational

expert regarding the types of jobs Biestek could still perform and the

number of such jobs that existed in the national economy. See 20

CFR §§404.1560(c)(1), 416.960(c)(1). On cross-examination, Biestek’s

attorney asked the expert “where [she was] getting [her numbers]

from,” and the expert explained they were from her own individual

labor market surveys. Biestek’s attorney then requested that the ex-

pert turn over the surveys. The expert declined. The ALJ ultimately

denied Biestek benefits, basing his conclusion on the expert’s testi-

mony about the number of jobs available to him. Biestek sought re-

view in federal court, where an ALJ’s factual findings are “conclu-

sive” if supported by “substantial evidence,” 42 U. S. C. §405(g). The

District Court rejected Biestek’s argument that the expert’s testimo-

ny could not possibly constitute substantial evidence because she had

declined to produce her supporting data. The Sixth Circuit affirmed.

Held: A vocational expert’s refusal to provide private market-survey

data upon the applicant’s request does not categorically preclude the

testimony from counting as “substantial evidence.”

Substantial evidence is “more than a mere scintilla,” and means

only “such relevant evidence as a reasonable mind might accept as

2 BIESTEK v. BERRYHILL

Syllabus

adequate to support a conclusion.” Consolidated Edison Co. v.

NLRB, 305 U. S. 197, 229. Biestek proposes a categorical rule that

the testimony of a vocational expert who refuses a request for sup-

porting data about job availability can never clear that bar. To as-

sess that proposal, the Court begins with the parties’ common

ground: Assuming no demand, a vocational expert’s testimony may

count as substantial evidence even when unaccompanied by support-

ing data.

If that is true, is it not obvious why one additional fact—a refusal

to a request for that data—should make an expert’s testimony cate-

gorically inadequate. In some cases, the refusal to disclose data, con-

sidered along with other shortcomings, will undercut an expert’s

credibility and prevent a court from finding that “a reasonable mind”

could accept the expert’s testimony. But in other cases, the refusal

will have no such consequence. Similarly, the refusal will sometimes

interfere with effective cross-examination, which a reviewing court

may consider in deciding how much to credit an expert’s opinion. But

other times, even without supporting data, an applicant will be able

to probe the strength of the expert’s testimony on cross-examination.

Ultimately, Biestek’s error lies in his pressing for a categorical rule,

applying to every case in which a vocational expert refuses a request

for underlying data. The inquiry, as is usually true in determining

the substantiality of evidence, is case-by-case. It takes into account

all features of the vocational expert’s testimony, as well as the rest of

the administrative record, and defers to the presiding ALJ, who has

seen the hearing up close. Pp. 5–11.

880 F. 3d 778, affirmed.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and THOMAS, BREYER, ALITO, and KAVANAUGH, JJ., joined. SO-

TOMAYOR, J., filed a dissenting opinion. GORSUCH, J., filed a dissenting

opinion, in which GINSBURG, J., joined.

Cite as: 587 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1184

_________________

MICHAEL J. BIESTEK, PETITIONER v. NANCY A.

BERRYHILL, ACTING COMMISSIONER OF

SOCIAL SECURITY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 1, 2019]

JUSTICE KAGAN delivered the opinion of the Court.

The Social Security Administration (SSA) provides

benefits to individuals who cannot obtain work because of

a physical or mental disability. To determine whether an

applicant is entitled to benefits, the agency may hold an

informal hearing examining (among other things) the kind

and number of jobs available for someone with the appli-

cant’s disability and other characteristics. The agency’s

factual findings on that score are “conclusive” in judicial

review of the benefits decision so long as they are sup-

ported by “substantial evidence.” 42 U. S. C. §405(g).

This case arises from the SSA’s reliance on an expert’s

testimony about the availability of certain jobs in the

economy. The expert largely based her opinion on private

market-survey data. The question presented is whether

her refusal to provide that data upon the applicant’s re-

quest categorically precludes her testimony from counting

as “substantial evidence.” We hold it does not.

2 BIESTEK v. BERRYHILL

Opinion of the Court

I

Petitioner Michael Biestek once worked as a carpenter

and general laborer on construction sites. But he stopped

working after he developed degenerative disc disease,

Hepatitis C, and depression. He then applied for social

security disability benefits, claiming eligibility as of Octo-

ber 2009.

After some preliminary proceedings, the SSA assigned

an Administrative Law Judge (ALJ) to hold a hearing on

Biestek’s application. Those hearings, as described in the

Social Security Act, 49 Stat. 620, as amended, 42 U. S. C.

§301 et seq., are recognizably adjudicative in nature. The

ALJ may “receive evidence” and “examine witnesses”

about the contested issues in a case. §§405(b)(1), 1383(c)

(1)(A). But many of the rules governing such hear-

ings are less rigid than those a court would follow. See

Richardson v. Perales, 402 U. S. 389, 400–401 (1971). An

ALJ is to conduct a disability hearing in “an informal, non-

adversarial manner.” 20 CFR §404.900(b) (2018);

§416.1400(b). Most notably, an ALJ may receive evidence

in a disability hearing that “would not be admissible in

court.” §§404.950(c), 416.1450(c); see 42 U. S. C. §§405(b)

(1), 1383(c)(1)(A).

To rule on Biestek’s application, the ALJ had to deter-

mine whether the former construction laborer could suc-

cessfully transition to less physically demanding work.

That required exploring two issues. The ALJ needed to

identify the types of jobs Biestek could perform notwith-

standing his disabilities. See 20 CFR §§404.1560(c)(1),

416.960(c)(1). And the ALJ needed to ascertain whether

those kinds of jobs “exist[ed] in significant numbers in the

national economy.” §§404.1560(c)(1), 416.960(c)(1); see

§§404.1566, 416.966.

For guidance on such questions, ALJs often seek the

views of “vocational experts.” See §§404.1566(e),

416.966(e); SSA, Hearings, Appeals, and Litigation Law

Cite as: 587 U. S. ____ (2019) 3

Opinion of the Court

Manual I–2–5–50 (Aug. 29, 2014). Those experts are

professionals under contract with SSA to provide impar-

tial testimony in agency proceedings. See id., at I–2–1–

31.B.1 (June 16, 2016); id., at I–2–5–48. They must have

“expertise” and “current knowledge” of “[w]orking condi-

tions and physical demands of various” jobs; “[k]nowledge

of the existence and numbers of [those jobs] in the national

economy”; and “[i]nvolvement in or knowledge of placing

adult workers[ ] with disabilities[] into jobs.” Id., at I–2–

1–31.B.1. Many vocational experts simultaneously work

in the private sector locating employment for persons with

disabilities. See C. Kubitschek & J. Dubin, Social Security

Disability Law & Procedure in Federal Court §3:89 (2019).

When offering testimony, the experts may invoke not only

publicly available sources but also “information obtained

directly from employers” and data otherwise developed

from their own “experience in job placement or career

counseling.” Social Security Ruling, SSR 00–4p, 65 Fed.

Reg. 75760 (2000).

At Biestek’s hearing, the ALJ asked a vocational expert

named Erin O’Callaghan to identify a sampling of “seden-

tary” jobs that a person with Biestek’s disabilities, educa-

tion, and job history could perform. Tr. 59 (July 21, 2015);

see 20 CFR §§404.1567(a), 416.967(a) (defining a “seden-

tary” job as one that “involves sitting” and requires “lifting

no more than 10 pounds”). O’Callaghan had served as a

vocational expert in SSA proceedings for five years; she

also had more than ten years’ experience counseling peo-

ple with disabilities about employment opportunities. See

Stachowiak v. Commissioner of Social Security, 2013 WL

593825, *1 (ED Mich., Jan. 11, 2013); Record in No. 16–

10422 (ED Mich.), Doc. 17–13, p. 1274 (resume). In re-

sponse to the ALJ’s query, O’Callaghan listed sedentary

jobs “such as a bench assembler [or] sorter” that did not

require many skills. Tr. 58–59. And she further testified

that 240,000 bench assembler jobs and 120,000 sorter jobs

4 BIESTEK v. BERRYHILL

Opinion of the Court

existed in the national economy. See ibid.

On cross-examination, Biestek’s attorney asked

O’Callaghan “where [she was] getting those [numbers]

from.” Id., at 71. O’Callaghan replied that they came

from the Bureau of Labor Statistics and her “own individ-

ual labor market surveys.” Ibid. The lawyer then re-

quested that O’Callaghan turn over the private surveys so

he could review them. Ibid. O’Callaghan responded that

she wished to keep the surveys confidential because they

were “part of [her] client files.” Id., at 72. The lawyer

suggested that O’Callaghan could “take the clients’ names

out.” Ibid. But at that point the ALJ interjected that he

“would not require” O’Callaghan to produce the files in

any form. Ibid. Biestek’s counsel asked no further ques-

tions about the basis for O’Callaghan’s assembler and

sorter numbers.

After the hearing concluded, the ALJ issued a decision

granting Biestek’s application in part and denying it in

part. According to the ALJ, Biestek was entitled to bene-

fits beginning in May 2013, when his advancing age (he

turned fifty that month) adversely affected his ability to

find employment. See App. to Pet. for Cert. 19a, 112a–

113a. But before that time, the ALJ held, Biestek’s dis-

abilities should not have prevented a “successful adjust-

ment to other work.” Id., at 110a–112a. The ALJ based

that conclusion on O’Callaghan’s testimony about the

availability in the economy of “sedentary unskilled occupa-

tions such as bench assembler [or] sorter.” Id., at 111a

(emphasis deleted).

Biestek sought review in federal court of the ALJ’s

denial of benefits for the period between October 2009 and

May 2013. On judicial review, an ALJ’s factual findings—

such as the determination that Biestek could have found

sedentary work—“shall be conclusive” if supported by

“substantial evidence.” 42 U. S. C. §405(g); see supra,

at 1. Biestek contended that O’Callaghan’s testimony could

Cite as: 587 U. S. ____ (2019) 5

Opinion of the Court

not possibly constitute such evidence because she had

declined, upon request, to produce her supporting data.

See Plaintiff ’s Motion for Summary Judgment in No. 16–

10422 (ED Mich.), Doc. 22, p. 23. But the District Court

rejected that argument. See 2017 WL 1173775, *2 (Mar.

30, 2017). And the Court of Appeals for the Sixth Circuit

affirmed. See Biestek v. Commissioner of Social Security,

880 F. 3d 778 (2018). That court recognized that the

Seventh Circuit had adopted the categorical rule Biestek

proposed, precluding a vocational expert’s testimony from

qualifying as substantial if the expert had declined an

applicant’s request to provide supporting data. See id., at

790 (citing McKinnie v. Barnhart, 368 F. 3d 907, 910–911

(2004)). But that rule, the Sixth Circuit observed in join-

ing the ranks of unconvinced courts, “ha[d] not been a

popular export.” 880 F. 3d, at 790 (internal quotation

marks omitted).

And no more is it so today.

II

The phrase “substantial evidence” is a “term of art” used

throughout administrative law to describe how courts are

to review agency factfinding. T-Mobile South, LLC v.

Roswell, 574 U. S. ___, ___ (2015) (slip op., at 7). Under

the substantial-evidence standard, a court looks to an

existing administrative record and asks whether it con-

tains “sufficien[t] evidence” to support the agency’s factual

determinations. Consolidated Edison Co. v. NLRB, 305

U. S. 197, 229 (1938) (emphasis deleted). And whatever

the meaning of “substantial” in other contexts, the thresh-

old for such evidentiary sufficiency is not high. Substan-

tial evidence, this Court has said, is “more than a mere

scintilla.” Ibid.; see, e.g., Perales, 402 U. S., at 401 (inter-

nal quotation marks omitted). It means—and means

only—“such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

6 BIESTEK v. BERRYHILL

Opinion of the Court

Edison, 305 U. S., at 229. See Dickinson v. Zurko, 527

U. S. 150, 153 (1999) (comparing the substantial-evidence

standard to the deferential clearly-erroneous standard).

Today, Biestek argues that the testimony of a vocational

expert who (like O’Callaghan) refuses a request for sup-

porting data about job availability can never clear the

substantial-evidence bar. See Brief for Petitioner 21–34.

As that formulation makes clear, Biestek’s proposed rule

is categorical, rendering expert testimony insufficient to

sustain an ALJ’s factfinding whenever such a refusal has

occurred.1 But Biestek hastens to add two caveats. The

first is to clarify what the rule is not, the second to stress

where its limits lie.

Biestek initially takes pains—and understandably so—

to distinguish his argument from a procedural claim.

Reply Brief 12–14. At no stage in this litigation, Biestek

says, has he ever espoused “a free-standing procedural

rule under which a vocational expert would always have to

produce [her underlying data] upon request.” Id., at 2.

That kind of rule exists in federal court: There, an expert

witness must produce all data she has considered in reach-

ing her conclusions. See Fed. Rule Civ. Proc. 26(a)(2)(B).

But as Biestek appreciates, no similar requirement applies

——————

1 In contrast, the principal dissent cannot decide whether it favors

such a categorical rule. At first, JUSTICE GORSUCH endorses the rule

Biestek and the Seventh Circuit have proposed. See post, at 2. But in

then addressing our opinion, he takes little or no issue with the reason-

ing we offer to show why that rule is too broad. See post, at 4–7. So the

dissent tries to narrow the scope of Biestek’s categorical rule—to only

cases that look just like his. See post, at 7–8. And still more, it shelves

all the “categorical” talk and concentrates on Biestek’s case alone. See

post, at 1, 4–8. There, JUSTICE GORSUCH’s dissent joins JUSTICE

SOTOMAYOR’s in concluding that the expert evidence in this case was

insubstantial. But as we later explain, see infra, at 11, Biestek did not

petition us to resolve that factbound question; nor did his briefing and

argument focus on anything other than the Seventh Circuit’s categori-

cal rule. We confine our opinion accordingly.

Cite as: 587 U. S. ____ (2019) 7

Opinion of the Court

in SSA hearings. As explained above, Congress intended

those proceedings to be “informal” and provided that the

“strict rules of evidence, applicable in the courtroom, are

not to” apply. Perales, 402 U. S., at 400; see 42 U. S. C.

§405(b)(1); supra, at 2. So Biestek does not press for a

“procedural rule” governing “the means through which an

evidentiary record [must be] created.” Tr. of Oral Arg. 6;

Reply Brief 13. Instead, he urges a “substantive rule” for

“assess[ing] the quality and quantity of [record] evi-

dence”—which would find testimony like O’Callaghan’s

inadequate, when taken alone, to support an ALJ’s fact-

finding. Id., at 12.

And Biestek also emphasizes a limitation within that

proposed rule. For the rule to kick in, the applicant must

make a demand for the expert’s supporting data. See

Brief for Petitioner i, 5, 18, 40, 55; Tr. of Oral Arg. 25–26.

Consider two cases in which vocational experts rely on,

but do not produce, nonpublic information. In the first,

the applicant asks for the data; in the second, not. Accord-

ing to Biestek, the expert’s testimony in the first case

cannot possibly clear the substantial-evidence bar; but in

the second case, it may well do so, even though the admin-

istrative record is otherwise the same. And Biestek un-

derscores that this difference in outcome has nothing to do

with waiver or forfeiture: As he acknowledges, an appli-

cant “cannot waive the substantial evidence standard.”

Id., at 27. It is just that the evidentiary problem arises

from the expert’s refusal of a demand, not from the data’s

absence alone. In his words, the testimony “can constitute

substantial evidence if unchallenged, but not if chal-

lenged.” Reply Brief 18.

To assess Biestek’s proposal, we begin with the parties’

common ground: Assuming no demand, a vocational ex-

pert’s testimony may count as substantial evidence even

when unaccompanied by supporting data. Take an exam-

ple. Suppose an expert has top-of-the-line credentials,

8 BIESTEK v. BERRYHILL

Opinion of the Court

including professional qualifications and many years’

experience; suppose, too, she has a history of giving sound

testimony about job availability in similar cases (perhaps

before the same ALJ). Now say that she testifies about

the approximate number of various sedentary jobs an

applicant for benefits could perform. She explains that

she arrived at her figures by surveying a range of repre-

sentative employers; amassing specific information about

their labor needs and employment of people with disabili-

ties; and extrapolating those findings to the national

economy by means of a well-accepted methodology. She

answers cogently and thoroughly all questions put to her

by the ALJ and the applicant’s lawyer. And nothing in the

rest of the record conflicts with anything she says. But

she never produces her survey data. Still, her testimony

would be the kind of evidence—far “more than a mere

scintilla”—that “a reasonable mind might accept as ade-

quate to support” a finding about job availability. Consol-

idated Edison, 305 U. S., at 229. Of course, the testimony

would be even better—more reliable and probative—if she

had produced supporting data; that would be a best prac-

tice for the SSA and its experts.2 And of course, a different

(maybe less qualified) expert failing to produce such data

might offer testimony that is so feeble, or contradicted,

that it would fail to clear the substantial-evidence bar.

The point is only—as, again, Biestek accepts—that expert

testimony can sometimes surmount that bar absent under-

lying data.

But if that is true, why should one additional fact—a

——————

2 The SSA itself appears to agree. In the handbook given to voca-

tional experts, the agency states: “You should have available, at

the hearing, any vocational resource materials that you are likely

to rely upon” because “the ALJ may ask you to provide relevant

portions of [those] materials.” SSA, Vocational Expert Handbook 37

(Aug. 2017), https://www.ssa.gov/appeals/public_experts/Vocational_Experts_

(VE)_Handbook-508.pdf (as last visited Mar. 28, 2019).

Cite as: 587 U. S. ____ (2019) 9

Opinion of the Court

refusal to a request for that data—make a vocational

expert’s testimony categorically inadequate? Assume that

an applicant challenges our hypothetical expert to turn

over her supporting data; and assume the expert declines

because the data reveals private information about her

clients and making careful redactions will take a fair bit of

time. Nothing in the expert’s refusal changes her testi-

mony (as described above) about job availability. Nor does

it alter any other material in the record. So if our expert’s

opinion was sufficient—i.e., qualified as substantial evi-

dence—before the refusal, it is hard to see why the opinion

has to be insufficient afterward.

Biestek suggests two reasons for that non-obvious re-

sult. First, he contends that the expert’s rejection of a

request for backup data necessarily “cast[s her testimony]

into doubt.” Reply Brief 16. And second, he avers that the

refusal inevitably “deprives an applicant of the material

necessary for an effective cross-examination.” Id., at 2.

But Biestek states his arguments too broadly—and the

nuggets of truth they contain cannot justify his proposed

flat rule.

Consider Biestek’s claim about how an expert’s refusal

undercuts her credibility. Biestek here invokes the estab-

lished idea of an “adverse inference”: If an expert declines

to back up her testimony with information in her control,

then the factfinder has a reason to think she is hiding

something. See id., at 16 (citing cases). We do not dispute

that possibility—but the inference is far from always

required. If an ALJ has no other reason to trust the ex-

pert, or finds her testimony iffy on its face, her refusal of

the applicant’s demand for supporting data may properly

tip the scales against her opinion. (Indeed, more can be

said: Even if the applicant makes no demand, such an

expert’s withholding of data may count against her.) But

if (as in our prior hypothetical example, see supra, at 7–8)

the ALJ views the expert and her testimony as otherwise

10 BIESTEK v. BERRYHILL

Opinion of the Court

trustworthy, and thinks she has good reason to keep her

data private, her rejection of an applicant’s demand need

not make a difference. So too when a court reviews the

ALJ’s decision under the deferential substantial-evidence

standard. In some cases, the refusal to disclose data,

considered along with other shortcomings, will prevent a

court from finding that “a reasonable mind” could accept

the expert’s testimony. Consolidated Edison, 305 U. S., at

229. But in other cases, that refusal will have no such

consequence. Even taking it into account, the expert’s

opinion will qualify as “more than a mere scintilla” of

evidence supporting the ALJ’s conclusion. Which is to say

it will count, contra Biestek, as substantial.

And much the same is true of Biestek’s claim that an

expert’s refusal precludes meaningful cross-examination.

We agree with Biestek that an ALJ and reviewing court

may properly consider obstacles to such questioning when

deciding how much to credit an expert’s opinion. See

Perales, 402 U. S., at 402–406. But Biestek goes too far in

suggesting that the refusal to provide supporting data

always interferes with effective cross-examination, or that

the absence of such testing always requires treating an

opinion as unreliable. Even without specific data, an

applicant may probe the strength of testimony by asking

an expert about (for example) her sources and methods—

where she got the information at issue and how she ana-

lyzed it and derived her conclusions. See, e.g., Chavez v.

Berryhill, 895 F. 3d 962, 969–970 (CA7 2018). And even

without significant testing, a factfinder may conclude that

testimony has sufficient indicia of reliability to support a

conclusion about whether an applicant could find work.

Indeed, Biestek effectively concedes both those points in

cases where supporting data is missing, so long as an

expert has not refused an applicant’s demand. See supra,

at 7. But once that much is acknowledged, Biestek’s

argument cannot hold. For with or without an express

Cite as: 587 U. S. ____ (2019) 11

Opinion of the Court

refusal, the absence of data places the selfsame limits on

cross-examination.

Where Biestek goes wrong, at bottom, is in pressing for

a categorical rule, applying to every case in which a voca-

tional expert refuses a request for underlying data. Some-

times an expert’s withholding of such data, when com-

bined with other aspects of the record, will prevent her

testimony from qualifying as substantial evidence. That

would be so, for example, if the expert has no good reason

to keep the data private and her testimony lacks other

markers of reliability. But sometimes the reservation of

data will have no such effect. Even though the applicant

might wish for the data, the expert’s testimony still will

clear (even handily so) the more-than-a-mere-scintilla

threshold. The inquiry, as is usually true in determining

the substantiality of evidence, is case-by-case. See, e.g.,

Perales, 402 U. S., at 399, 410 (rejecting a categorical rule

pertaining to the substantiality of medical reports in a

disability hearing). It takes into account all features of

the vocational expert’s testimony, as well as the rest of the

administrative record. And in so doing, it defers to the

presiding ALJ, who has seen the hearing up close.

That much is sufficient to decide this case. Biestek

petitioned us only to adopt the categorical rule we have

now rejected. He did not ask us to decide whether, in the

absence of that rule, substantial evidence supported the

ALJ in denying him benefits. Accordingly, we affirm the

Court of Appeals’ judgment.

It is so ordered.

Cite as: 587 U. S. ____ (2019) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1184

_________________

MICHAEL J. BIESTEK, PETITIONER v. NANCY A.

BERRYHILL, ACTING COMMISSIONER OF

SOCIAL SECURITY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 1, 2019]

JUSTICE SOTOMAYOR, dissenting.

The Court focuses on the propriety of a categorical rule

that precludes private data that a vocational expert refuses

to provide upon request from qualifying as “ ‘substantial

evidence.’ ” See ante, at 1. I agree with JUSTICE GORSUCH

that the question presented by this case encompasses an

inquiry not just into the propriety of a categorical rule in

such circumstances but also into whether the substantial-

evidence standard was met in the narrower circumstances

of Michael Biestek’s case. See post, at 6–7 (dissenting

opinion). For the reasons that JUSTICE GORSUCH sets out,

the vocational expert’s conclusory testimony in this case,

offered without even a hint of support, did not constitute

substantial evidence.

Once Biestek established that he had impairments, the

agency bore the burden of proving that work opportunities

were available to someone with his disabilities and indi-

vidual characteristics. 20 CFR § 416.912(b)(3) (2018). To

meet that burden, the agency relied on a vocational ex-

pert’s testimony that Biestek could qualify for one of

240,000 “bench assembler” jobs or 120,000 “sorter” jobs

nationwide. Tr. 59 (July 21, 2015). The expert said that

those numbers were based in part on her “professional

experience.” Id., at 61. When Biestek’s counsel under-

2 BIESTEK v. BERRYHILL

SOTOMAYOR, J., dissenting

standably asked for more details, the expert said only that

she got the numbers from a publicly available source as

well as from her “own individual labor market surveys”

that were part of confidential client files. Id., at 71; see

id., at 67, 71–72. Biestek’s counsel asked if the names in

the files could be redacted, but the administrative law

judge (ALJ) interrupted and ruled that she would not

require the surveys to be produced in redacted form. Id.,

at 72; see also id., at 67.

Perhaps the ALJ would have allowed Biestek’s counsel

to ask followup questions about the basis for the testimony

at that point, and perhaps Biestek’s counsel should have

tried to do so. But a Social Security proceeding is “inquisi-

torial rather than adversarial.” Sims v. Apfel, 530 U. S.

103, 110–111 (2000); see 20 CFR §§404.900(b),

416.1400(b). The ALJ acts as “an examiner charged with

developing the facts,” Richardson v. Perales, 402 U. S. 389,

410 (1971), and has a duty to “develop the arguments both

for and against granting benefits,” Sims, 530 U. S., at 111;

see also Social Security Ruling, SSR 00–4P, 65 Fed. Reg.

75760 (2000) (noting “the adjudicator’s duty to fully de-

velop the record”). Here, instead of taking steps to ensure

that the claimant had a basis from which effective cross-

examination could be made and thus the record could be

developed, the ALJ cut off that process by intervening

when Biestek’s counsel asked about the possibility of

redaction.

The result was that the expert offered no detail whatso-

ever on the basis for her testimony. She did not say whom

she had surveyed, how many surveys she had conducted,

or what information she had gathered, nor did she offer

any other explanation of the data on which she relied. In

conjunction with the failure to proffer the surveys them-

selves, the expert’s conclusory testimony alone could not

constitute substantial evidence to support the ALJ’s fact-

Cite as: 587 U. S. ____ (2019) 3

SOTOMAYOR, J., dissenting

finding.*

I agree with much of JUSTICE GORSUCH’s reasoning. I

emphasize that I do not foreclose the possibility that a

more developed record could justify an ALJ’s reliance on

vocational-expert testimony in some circumstances even if

the expert does not produce records underlying that testi-

mony on request. An expert may have legitimate reasons

for not turning over data, such as the burden of gathering

records or confidentiality concerns that redaction cannot

address. In those circumstances, as the majority suggests,

the agency may be able to support an expert’s testimony in

ways other than by providing underlying data, such as by

offering a fulsome description of the data and methodology

on which the expert relies. See ante, at 8. The agency

simply did not do so here.

——————

* I note that the agency’s own handbook says that experts “should

have available, at the hearing, any vocational resource materials that

[they] are likely to rely upon and should be able to thoroughly explain

what resource materials [they] used and how [they] arrived at [their]

opinions.” SSA, Vocational Expert Handbook 37 (Aug. 2017),

https://www.ssa.gov / appeals / public_experts / Vocational_Experts_(VE)_

Handbook-508.pdf (as last visited Mar. 29, 2019).

Cite as: 587 U. S. ____ (2019) 1

GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–1184

_________________

MICHAEL J. BIESTEK, PETITIONER v. NANCY A.

BERRYHILL, ACTING COMMISSIONER OF

SOCIAL SECURITY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 1, 2019]

JUSTICE GORSUCH, with whom JUSTICE GINSBURG joins,

dissenting.

Walk for a moment in Michael Biestek’s shoes. As part

of your application for disability benefits, you’ve proven

that you suffer from serious health problems and can’t

return to your old construction job. Like many cases,

yours turns on whether a significant number of other jobs

remain that someone of your age, education, and experi-

ence, and with your physical limitations, could perform.

When it comes to that question, the Social Security Ad-

ministration bears the burden of proof. To meet its bur-

den in your case, the agency chooses to rest on the testi-

mony of a vocational expert the agency hired as an

independent contractor. The expert asserts there are

120,000 “sorter” and 240,000 “bench assembler” jobs

nationwide that you could perform even with your

disabilities.

Where did these numbers come from? The expert says

she relied on data from the Bureau of Labor Statistics and

her own private surveys. But it turns out the Bureau

can’t be the source; its numbers aren’t that specific. The

source—if there is a source—must be the expert’s private

surveys. So you ask to see them. The expert refuses—she

says they’re part of confidential client files. You reply by

2 BIESTEK v. BERRYHILL

GORSUCH, J., dissenting

pointing out that any confidential client information can

be redacted. But rather than ordering the data produced,

the hearing examiner, herself a Social Security Admin-

istration employee, jumps in to say that won’t be neces-

sary. Even without the data, the examiner states in her

decision on your disability claim, the expert’s say-so war-

rants “great weight” and is more than enough evidence to

deny your application. Case closed. App. to Pet. for Cert.

111a–112a, 118a–119a.

Would you say this decision was based on “substantial

evidence”? Count me with Judge Easterbrook and the

Seventh Circuit in thinking that an agency expert’s bottom-

line conclusion, supported only by a claim of readily avail-

able evidence that she refuses to produce on request, fails

to satisfy the government’s statutory burden of producing

substantial evidence of available other work. See Don-

ahue v. Barnhart, 279 F. 3d 441, 446 (CA7 2002);

McKinnie v. Barnhart, 368 F. 3d 907, 910–911 (CA7 2004)

(per curiam).

Start with the legal standard. The Social Security Act

of 1935 requires the agency to support its conclusions

about the number of available jobs with “substantial

evidence.” 42 U. S. C. §405(g). Congress borrowed that

standard from civil litigation practice, where reviewing

courts may overturn a jury verdict when the record lacks

“substantial evidence”—that is, evidence sufficient to

permit a reasonable jury to reach the verdict it did. Much

the same standard governs summary judgment and di-

rected verdict practice today. See 2 K. Hickman & R.

Pierce, Administrative Law §10.2.1, pp. 1082–1085 (6th

ed. 2019); Anderson v. Liberty Lobby, Inc., 477 U. S. 242,

252 (1986); NLRB v. Columbian Enameling & Stamping

Co., 306 U. S. 292, 300 (1939).

Next, consider what we know about this standard.

Witness testimony that’s clearly wrong as a matter of fact

cannot be substantial evidence. See Scott v. Harris, 550

Cite as: 587 U. S. ____ (2019) 3

GORSUCH, J., dissenting

U. S. 372, 380 (2007). Falsified evidence isn’t substantial

evidence. See, e.g., Firemen’s and Policemen’s Civil Serv.

Comm’n v. Brinkmeyer, 662 S. W. 2d 953, 956 (Tex. 1984).

Speculation isn’t substantial evidence. See, e.g., Cao He

Lin v. Department of Justice, 428 F. 3d 391, 400 (CA2

2005); Alpo Petfoods, Inc. v. NLRB, 126 F. 3d 246, 250

(CA4 1997). And, maybe most pointedly for our purposes,

courts have held that a party or expert who supplies only

conclusory assertions fails this standard too. See, e.g.,

Lujan v. National Wildlife Federation, 497 U. S. 871, 888

(1990) (“The object of [summary-judgment practice] is not

to replace conclusory allegations of the complaint or an-

swer with conclusory allegations of an affidavit”); Regents

of Univ. of Minn. v. AGA Medical Corp., 717 F. 3d 929, 941

(CA Fed. 2013) (“conclusory expert assertions cannot raise

triable issues of material fact”) (collecting cases); Mid-

State Fertilizer Co. v. Exchange Nat. Bank of Chicago, 877

F. 2d 1333, 1339 (CA7 1989) (“An expert who supplies

nothing but a bottom line supplies nothing of value to the

judicial process”); Sea Robin Pipeline Co. v. FERC, 795

F. 2d 182, 188 (CADC 1986) (“[I]nordinate faith in the

conclusory assertions of an expert . . . cannot satisfy the

requirement [of] substantial evidence”).

If clearly mistaken evidence, fake evidence, speculative

evidence, and conclusory evidence aren’t substantial evi-

dence, the evidence here shouldn’t be either. The case

hinges on an expert who (a) claims to possess evidence on

the dispositive legal question that can be found nowhere

else in the record, but (b) offers only a conclusion about its

contents, and (c) refuses to supply the evidence when

requested without showing that it can’t readily be made

available. What reasonable factfinder would rely on evi-

dence like that? It seems just the sort of conclusory evi-

dence courts have long held insufficient to meet the sub-

stantial evidence standard. And thanks to its conclusory

nature, for all anyone can tell it may have come out of a

4 BIESTEK v. BERRYHILL

GORSUCH, J., dissenting

hat—and, thus, may wind up being clearly mistaken, fake,

or speculative evidence too. Unsurprisingly given all this,

the government fails to cite even a single authority bless-

ing the sort of evidence here as substantial evidence,

despite the standard’s long history and widespread use.

Veteran Social Security practitioners must be feeling a

sense of déjà vu. Half a century ago, Judge Henry Friendly

encountered Kerner v. Flemming, 283 F. 2d 916 (CA2

1960). There, the agency’s hearing examiner offered

“nothing save [his own] speculation” to support his holding

that the claimant “could in fact obtain substantial gainful

employment.” Id., at 921. The Second Circuit firmly

explained that this kind of conclusory claim is insufficient

to meet the substantial evidence standard. In response,

the Social Security Administration began hiring vocational

experts, like the one in this case, to document the number

of jobs available to a given claimant. But if the govern-

ment can do what it did in this case, it’s hard to see what

all the trouble was for. The agency might still rest deci-

sions on a hunch—just so long as the hunch comes from an

agency contractor rather than an agency examiner.

Instead of addressing the realities of this case, the

government asks us to imagine a hypothetical one. As-

sume, it says, that no one had requested the underlying

data. In those circumstances, the government points out,

even Mr. Biestek appears to accept that the agency’s

decision could have stood. And if that’s true, the govern-

ment asks, why should it make a difference if we add only

one additional fact—the expert’s refusal to produce the

data? See ante, at 7–9 (presenting the same argument).

The answer is an old and familiar one. The refusal to

supply readily available evidentiary support for a conclu-

sion strongly suggests that the conclusion is, well, unsup-

ported. See, e.g., Interstate Circuit, Inc. v. United States,

306 U. S. 208, 226 (1939) (“The production of weak evi-

dence when strong is available can lead only to the conclu-

Cite as: 587 U. S. ____ (2019) 5

GORSUCH, J., dissenting

sion that the strong would have been adverse”); Clifton v.

United States, 4 How. 242, 248 (1846) (the withholding of

“more direct” proof suggests that “if the more perfect

exposition had been given it would have laid open defi-

ciencies and objections which the more obscure and uncer-

tain testimony was intended to conceal”); 31A C. J. S.,

Evidence §156(2), p. 402 (1964) (“The unfavorable infer-

ence . . . is especially applicable where the party withhold-

ing the evidence has had notice or has been ordered to

produce it”). Meanwhile, a similar inference may not arise

if no one’s bothered to ask for the evidence, or if the evi-

dence is shown to be unavailable for a good reason. In

cases like those, there may be just too many other plaus-

ible and innocent excuses for the evidence’s absence. Maybe,

for example, nobody bothered to seek the underlying data

because everyone knew what it would show.

Fine, the Court responds, all that’s true enough. But

even if we accept that an expert’s failure to produce the

evidence underlying her conclusion may support an infer-

ence that her conclusion is unsupported, that doesn’t

mean such an inference must follow. Whether an infer-

ence is appropriate depends on the facts of the particular

case. See ante, at 9–10.

But what more do we need to know about the facts of

this case? All of the relevant facts are undisputed, and it

remains only to decide the legal question whether they

meet the substantial evidence standard. We know that

the expert offered a firm and exact conclusion about the

number of available jobs. We know that the expert

claimed to have private information to support her conclu-

sion. We know Mr. Biestek requested that information

and we have no reason to think any confidentiality con-

cerns could not have been addressed. We know, too, that

the hearing examiner had “no other reason to trust the

expert[’s]” numbers beyond her say-so. Ibid. Finally and

looking to the law, we know that a witness’s bare conclu-

6 BIESTEK v. BERRYHILL

GORSUCH, J., dissenting

sion is regularly held insufficient to meet the substantial

evidence threshold—and we know that the government

hasn’t cited a single case finding substantial evidence on

so little. This is exactly the sort of case where an adverse

inference should “tip the scales.” Ibid.

With so much now weighing against the government,

everything seems to turn on a final hypothetical. Now we

are asked to imagine that the expert had offered detailed

oral testimony about the withheld data. Her testimony

was so detailed, we are asked to suppose, that Mr. Biestek

could have thoroughly tested the data’s reliability through

cross-examination. (You might wonder just how effective

this cross-examination could be if Mr. Biestek didn’t have

access to the data. But overlook that.) Surely in those

circumstances it wouldn’t matter whether the expert

failed to produce the data even in bad faith. Any failure to

produce would be harmless as a matter of law because the

expert’s testimony, all by itself, would amount to substan-

tial evidence on which a rational factfinder might rely.

Ante, at 10.

The problem is that this imaginary case has nothing to

teach us about our real one. In Mr. Biestek’s case, it is

undisputed that the expert offered only a bare conclusion

about the number of available jobs. No other relevant

testimony was offered or received: no testimony about the

underlying data, no testimony about its specific sources,

no testimony about its reliability. In our real case, there is

simply no way to shrug off the failure to produce the data

as harmless error. To the contrary, and as we have seen,

cases like this routinely fail to satisfy the substantial

evidence standard. And if the government has a “duty to

fully develop the record,” ante, at 2 (SOTOMAYOR, J., dis-

senting), that conclusion should follow all the more

strongly.

What leads the Court to a different conclusion? It says

that it views Mr. Biestek’s petition as raising only the

Cite as: 587 U. S. ____ (2019) 7

GORSUCH, J., dissenting

“categorical” question whether an expert’s failure to pro-

duce underlying data always and in “every case” precludes

her testimony from qualifying as substantial evidence.

Ante, at 1, 9–11. And once the question is ratcheted up to

that level of abstraction, of course it is easy enough to

shoot it down: just point to a series of hypothetical cases

where the record contains additional justification for the

expert’s failure to produce or additional evidence to sup-

port her opinion. In such counterfactual cases, the failure

to produce either would not be enough to give rise to an

adverse inference under traditional legal principles or

could be held harmless as a matter of law. See ante,

at 7–10.

But as I understand Mr. Biestek’s submission, it does

not require an all-or-nothing approach that would cover

“every case.” As the Court acknowledges, Mr. Biestek has

focused us “on the Seventh Circuit’s categorical rule.”

Ante, at 6, n. 1. And that “rule” targets the narrower

“category” of circumstances we have here—where an

expert “ ‘give[s] a bottom line,’ ” fails to provide evidence

“underlying that bottom line” when challenged, and fails

to show the evidence is unavailable. McKinnie, 368 F. 3d,

at 911 (quoting Donahue, 279 F. 3d, at 446). What to do

about that category falls well within the question presented:

“[w]hether a vocational expert’s testimony can consti-

tute substantial evidence of ‘other work’ . . . when the

expert fails upon the applicant’s request to provide the

underlying data on which that testimony is premised.”

Pet. for Cert. i. The answer to that question may be “al-

ways,” “never,” or—as the Court itself seems to

acknowledge—“[s]ometimes.” Ante, at 11. And if the

answer is “sometimes,” the critical question becomes “in

what circumstances”?

I suppose we could stop short and leave everyone guess-

ing. But another option is to follow the Seventh Circuit’s

lead, resolve the smaller yet still significant “category” of

8 BIESTEK v. BERRYHILL

GORSUCH, J., dissenting

cases like the one before us, and in that way begin to offer

lower courts meaningful guidance in this important area.

While I would not hesitate to take this course and make

plain that cases like Mr. Biestek’s fail the substantial

evidence standard, I understand the Court today to choose

the first option and leave these matters for another day.

There is good news and bad news in this. If my under-

standing of the Court’s opinion is correct, the good news is

that the Court remains open to the possibility that in real-

world cases like Mr. Biestek’s, lower courts may—and

even should—find the substantial evidence test unmet.

The bad news is that we must wait to find out, leaving

many people and courts in limbo in the meantime. Cases

with facts like Mr. Biestek’s appear to be all too common.

See, e.g., Dubin, Overcoming Gridlock: Campbell After a

Quarter-Century and Bureaucratically Rational Gap-

Filling in Mass Justice Adjudication in the Social Security

Administration’s Disability Programs, 62 Admin. L. Rev.

937, 966 (2010). And many courts have erred in them by

finding the substantial evidence test met, as the Sixth

Circuit did in the case now before us. Some courts have

even conflated the substantial evidence standard—a sub-

stantive standard governing what’s needed to sustain a

judgment as a matter of law—with procedural rules gov-

erning the admission of evidence. These courts have

mistakenly suggested that, because the Federal Rules of

Evidence don’t apply in Social Security proceedings, any-

thing an expert says will suffice to meet the agency’s

burden of proof. See, e.g., Welsh v. Commissioner of Social

Security, 662 Fed. Appx. 105, 109–110 (CA3 2016); Bayliss

v. Barnhart, 427 F. 3d 1211, 1218, and n. 4 (CA9 2005).

Definitively resolving this case would have provided more

useful guidance for practitioners and lower courts that

have struggled with a significant category of cases like Mr.

Biestek’s, all while affording him the relief the law prom-

ises in disputes like his.

Cite as: 587 U. S. ____ (2019) 9

GORSUCH, J., dissenting

The principle that the government must support its

allegations with substantial evidence, not conclusions and

secret evidence, guards against arbitrary executive deci-

sionmaking. See Friendly, “Some Kind of Hearing,” 123

U. Pa. L. Rev. 1267, 1313–1314 (1975). Without it, people

like Mr. Biestek are left to the mercy of a bureaucrat’s

caprice. Over 100 years ago, in ICC v. Louisville & Nash-

ville R. Co., 227 U. S. 88 (1913), the government sought to

justify an agency order binding private parties without

producing the information on which the agency had relied.

The government argued that its findings should be “pre-

sumed to have been supported.” Id., at 93. In essence, the

government sought the right to “act upon any sort of se-

cret evidence.” Gellhorn, Official Notice in Administrative

Adjudication, 20 Texas L. Rev. 131, 145 (1941). This

Court did not approve of that practice then, and I would

not have hesitated to make clear that we do not approve of

it today.

I respectfully dissent.