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 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 under-
