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Biestek v. Berryhill

United States Supreme Court

April 1, 2019


          Argued December 4, 2018



         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 Administration (SSA) assigned an Administrative Law Judge (ALJ) to conduct 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 expert turn over the surveys. The expert declined. The ALJ ultimately denied Biestek benefits, basing his conclusion on the expert's testimony about the number of jobs available to him. Biestek sought review in federal court, where an ALJs factual findings are "conclusive" if supported by "substantial evidence," 42 U.S.C. §405(g). The District Court rejected Biestek's argument that the expert's testimony could not possibly constitute substantial evidence because she had declined to produce her supporting data. The Sixth Circuit affirmed.


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 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 supporting data about job availability can never clear that bar. To assess 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 supporting 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 categorically inadequate. In some cases, the refusal to disclose data, considered 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 GlNSBURG, J., joined.



         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 applicant'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 supported 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 request categorically precludes her testimony from counting as "substantial evidence." We hold it does not.

         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 October 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 hearings 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 determine whether the former construction laborer could successfully transition to less physically demanding work. That required exploring two issues. The ALJ needed to identify the types of jobs Biestek could perform notwithstanding 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 Manual 1-2-5-50 (Aug. 29, 2014). Those experts are professionals under contract with SSA to provide impartial testimony in agency proceedings. See id., at 1-2-1-3l.B.l (June 16, 2016); id., at 1-2-5-48. They must have "expertise" and "current knowledge" of "[w]orking conditions 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 1-2-1-31.B.l. 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 "sedentary" jobs that a person with Biestek's disabilities, education, and job history could perform. Tr. 59 (July 21, 2015); see 20 CFR §§404.1567(a), 416.967(a) (defining a "sedentary" 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 people 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 response 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 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 individual labor market surveys." Ibid. The lawyer then requested 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 ...

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