Caseflicks

Supreme Court of the United States • 2019

Biestek v. Berryhill

587 U.S. 97 | 139 S. Ct. 1148 | 203 L. Ed. 2d 504 | 2019 U.S. LEXIS 2480

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Takeaway

In short, this case rejects a per se rule: an expert's refusal to disclose supporting job-market data may undermine substantial evidence, but whether it does so depends on the entire record.

Background

Michael Biestek, a former construction worker, sought Social Security disability benefits based on degenerative disc disease, Hepatitis C, and depression. At the disability hearing, the Administrative Law Judge had to decide whether Biestek could adjust to other, less demanding work that existed in significant numbers in the national economy.

A vocational expert testified that Biestek could perform sedentary, unskilled jobs such as bench assembler and sorter, estimating that 240,000 assembler jobs and 120,000 sorter jobs existed nationally. On cross-examination, the expert said her estimates drew on Bureau of Labor Statistics materials and her own labor-market surveys. When Biestek's lawyer requested those private surveys, the expert declined, citing client confidentiality, and the ALJ stated that production would not be required.

The ALJ denied benefits for the period before May 2013, relying on the expert's job-number testimony, although the ALJ awarded benefits from May 2013 onward. The District Court upheld the denial. The Sixth Circuit affirmed, rejecting the Seventh Circuit's rule that an expert's refusal to disclose requested supporting data automatically prevents the testimony from qualifying as substantial evidence.

Issues

Issue #1

Whether a vocational expert's refusal to provide requested private labor-market data categorically prevents her testimony about available jobs from constituting substantial evidence under 42 U.S.C. §405(g).

Holding

No. A vocational expert's refusal to provide requested supporting data does not categorically bar her testimony from constituting substantial evidence; the inquiry is case-specific.

Reasoning

Under §405(g), agency factfinding is conclusive when supported by substantial evidence. That standard is deferential: it requires more than a mere scintilla, but only such relevant evidence as a reasonable mind could accept as adequate to support a conclusion. Social Security disability hearings are also intended to be informal and are not governed by the strict courtroom rules of evidence.

The Court began from a point Biestek accepted: vocational-expert testimony may sometimes qualify as substantial evidence even when the expert does not produce the underlying data. A qualified and experienced expert who explains reliable sources and methods, answers questions thoroughly, and gives testimony consistent with the rest of the record may provide adequate evidence even without submitting her surveys or other supporting materials.

Adding a request for the data and a refusal to provide it does not necessarily make otherwise reliable testimony inadequate. A refusal may create a reason to doubt the expert, particularly if the expert's testimony is weak, unsupported, contradicted, or accompanied by no persuasive reason for withholding the materials. But an adverse inference is not mandatory in every case; an ALJ may find that a credible expert had a legitimate privacy or practical reason not to disclose the data.

The refusal also does not invariably eliminate meaningful cross-examination. Even without the underlying documents, a claimant may question the expert about her qualifications, sources, methodology, assumptions, and the way she derived her estimates. Limits on cross-examination can matter in assessing reliability, but they do not compel a universal rule that the testimony is legally insufficient.

The substantial-evidence inquiry therefore depends on the full administrative record, including the expert's credentials, explanation, methodology, responsiveness to questioning, reasons for withholding information, and any conflicting evidence. Reviewing courts must also respect the ALJ's position as the decisionmaker who observed the hearing firsthand. The Court did not decide whether the evidence in Biestek's particular record was sufficient under that case-by-case standard, because his petition sought only the categorical rule that the Court rejected.

Dissents

Justice Sotomayor

Reasoning

Justice Sotomayor agreed with Justice Gorsuch that the Court should address whether the evidence in Biestek's own case satisfied the substantial-evidence standard. In her view, it did not. Once Biestek established that he could no longer do his prior work, the agency bore the burden to show that jobs suitable for him existed in significant numbers.

The vocational expert offered only conclusory national job estimates. She did not explain whom she surveyed, how many surveys she conducted, what information they contained, or how she translated that information into the asserted job numbers. When Biestek requested the surveys and proposed redaction of confidential information, the ALJ stopped the inquiry rather than ensuring a record that allowed meaningful testing of the testimony.

Social Security proceedings are inquisitorial, and the ALJ has a duty to develop the record for and against benefits. Although an expert may sometimes have a valid reason not to disclose underlying material, the agency then should provide another reliable basis for evaluating the opinion, such as a full explanation of the data and methodology. That did not occur here, so the expert's unsupported assertion was not substantial evidence.

Justice Gorsuch

Reasoning

Justice Gorsuch, joined by Justice Ginsburg, viewed the expert's testimony as a bare conclusion rather than substantial evidence. The expert asserted precise job numbers, claimed that private surveys supported them, and refused to provide those surveys after Biestek requested them. Because the public Bureau of Labor Statistics data did not itself supply estimates at that level of specificity, the undisclosed surveys were the apparent basis for the dispositive conclusion.

In his view, the substantial-evidence standard does not permit the Government to meet its burden through conclusory, untestable assertions. Courts regularly reject evidence that is clearly erroneous, fabricated, speculative, or merely conclusory. An expert who provides only a bottom-line estimate, while withholding readily available support, gives a factfinder no meaningful basis to assess whether the estimate is reliable rather than mistaken or invented.

The refusal to produce available supporting evidence supports an adverse inference that the evidence would not help the party withholding it. That inference is especially appropriate here because Biestek requested the material, offered a way to address confidentiality through redaction, and received no adequate explanation of why the surveys could not be provided.

Justice Gorsuch criticized the majority for resolving only a broadly framed categorical question through hypotheticals involving experts who give detailed methodological explanations or have legitimate reasons to preserve privacy. Those hypothetical circumstances differed from Biestek's actual record, where the expert gave no meaningful account of the underlying data or methodology. He would have held that this narrower, recurring category of cases fails the substantial-evidence standard and would have reversed to prevent disability decisions from resting on secret evidence and bureaucratic assertion.