MICHAEL J. BIESTEK, PETITIONER
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY
December 4, 2018
TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
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 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.
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.
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).
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.
of the Court I
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.
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).
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
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).
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
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 ...