Page:Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security.pdf/18

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Gorsuch, J., dissenting

pointing out that any confidential client information can be redacted. But rather than ordering the data produced, the hearing examiner, herself a Social Security Administration employee, jumps in to say that won’t be necessary. Even without the data, the examiner states in her decision on your disability claim, the expert’s say-so warrants “great weight” and is more than enough evidence to deny your application. Case closed. App. to Pet. for Cert. 111a–112a, 118a–119a.

Would you say this decision was based on “substantial evidence?” Count me with Judge Easterbrook and the Seventh Circuit in thinking that an agency expert’s bottom-line conclusion, supported only by a claim of readily available evidence that she refuses to produce on request, fails to satisfy the government’s statutory burden of producing substantial evidence of available other work. See Donahue v. Barnhart, 279 F. 3d 441, 446 (CA7 2002); McKinnie v. Barnhart, 368 F. 3d 907, 910–911 (CA7 2004) (per curiam).

Start with the legal standard. The Social Security Act of 1935 requires the agency to support its conclusions about the number of available jobs with “substantial evidence.” 42 U. S. C. §405(g). Congress borrowed that standard from civil litigation practice, where reviewing courts may overturn a jury verdict when the record lacks “substantial evidence”—that is, evidence sufficient to permit a reasonable jury to reach the verdict it did. Much the same standard governs summary judgment and directed verdict practice today. See 2 K. Hickman & R. Pierce, Administrative Law §10.2.1, pp. 1082–1085 (6th ed. 2019); Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 252 (1986); NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300 (1939).

Next, consider what we know about this standard. Witness testimony that’s clearly wrong as a matter of fact cannot be substantial evidence. See Scott v. Harris, 550