Gorsuch, J., dissenting
SUPREME COURT OF THE UNITED STATES
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 Gorsuch, with whom Justice Ginsburg joins, dissenting.
Walk for a moment in Michael Biestek’s shoes. As part of your application for disability benefits, you’ve proven that you suffer from serious health problems and can’t return to your old construction job. Like many cases, yours turns on whether a significant number of other jobs remain that someone of your age, education, and experience, and with your physical limitations, could perform. When it comes to that question, the Social Security Administration bears the burden of proof. To meet its burden in your case, the agency chooses to rest on the testimony of a vocational expert the agency hired as an independent contractor. The expert asserts there are 120,000 “sorter” and 240,000 “bench assembler” jobs nationwide that you could perform even with your disabilities.
Where did these numbers come from? The expert says she relied on data from the Bureau of Labor Statistics and her own private surveys. But it turns out the Bureau can’t be the source; its numbers aren’t that specific. The source—if there is a source—must be the expert’s private surveys. So you ask to see them. The expert refuses—she says they’re part of confidential client files. You reply by