Page:Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security.pdf/16

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Cite as: 587 U. S. ___ (2019)

Sotomayor, J., dissenting


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), (as last visited Mar. 29, 2019).