Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security/Dissent Sotomayor


No. 17–1184

[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 individual characteristics. 20 CFR §416.912(b)(3) (2018). To meet that burden, the agency relied on a vocational expert’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 understandably 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, 7172. 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 “inquisitorial 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 develop 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 whatsoever 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 themselves, the expert’s conclusory testimony alone could not constitute substantial evidence to support the ALJ’s factfinding.[1]

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 testimony 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.


  1. 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).