Page:Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security.pdf/19

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

Gorsuch, J., dissenting

U. S. 372, 380 (2007). Falsified evidence isn’t substantial evidence. See, e. g., Firemen’s and Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S. W. 2d 953, 956 (Tex. 1984). Speculation isn’t substantial evidence. See, e. g., Cao He Lin v. Department of Justice, 428 F. 3d 391, 400 (CA2 2005); Alpo Petfoods, Inc. v. NLRB, 126 F. 3d 246, 250 (CA4 1997). And, maybe most pointedly for our purposes, courts have held that a party or expert who supplies only conclusory assertions fails this standard too. See, e. g., Lujan v. National Wildlife Federation, 497 U. S. 871, 888 (1990) (“The object of [summary-judgment practice] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit”); Regents of Univ. of Minn. v. AGA Medical Corp., 717 F. 3d 929, 941 (CA Fed. 2013) (“conclusory expert assertions cannot raise triable issues of material fact”) (collecting cases); Mid-State Fertilizer Co. v. Exchange Nat. Bank of Chicago, 877 F. 2d 1333, 1339 (CA7 1989) (“An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process”); Sea Robin Pipeline Co. v. FERC, 795 F. 2d 182, 188 (CADC 1986) (“[I]nordinate faith in the conclusory assertions of an expert… cannot satisfy the requirement [of] substantial evidence”).

If clearly mistaken evidence, fake evidence, speculative evidence, and conclusory evidence aren’t substantial evidence, the evidence here shouldn’t be either. The case hinges on an expert who (a) claims to possess evidence on the dispositive legal question that can be found nowhere else in the record, but (b) offers only a conclusion about its contents, and (c) refuses to supply the evidence when requested without showing that it can’t readily be made available. What reasonable factfinder would rely on evidence like that? It seems just the sort of conclusory evidence courts have long held insufficient to meet the substantial evidence standard. And thanks to its conclusory nature, for all anyone can tell it may have come out of a