Page:Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security.pdf/22

This page has been proofread, but needs to be validated.

Gorsuch, J., dissenting

sion is regularly held insufficient to meet the substantial evidence threshold—and we know that the government hasn’t cited a single case finding substantial evidence on so little. This is exactly the sort of case where an adverse inference should “tip the scales.” Ibid.

With so much now weighing against the government, everything seems to turn on a final hypothetical. Now we are asked to imagine that the expert had offered detailed oral testimony about the withheld data. Her testimony was so detailed, we are asked to suppose, that Mr. Biestek could have thoroughly tested the data’s reliability through cross-examination. (You might wonder just how effective this cross-examination could be if Mr. Biestek didn’t have access to the data. But overlook that.) Surely in those circumstances it wouldn’t matter whether the expert failed to produce the data even in bad faith. Any failure to produce would be harmless as a matter of law because the expert’s testimony, all by itself, would amount to substantial evidence on which a rational factfinder might rely. Ante, at 10.

The problem is that this imaginary case has nothing to teach us about our real one. In Mr. Biestek’s case, it is undisputed that the expert offered only a bare conclusion about the number of available jobs. No other relevant testimony was offered or received: no testimony about the underlying data, no testimony about its specific sources, no testimony about its reliability. In our real case, there is simply no way to shrug off the failure to produce the data as harmless error. To the contrary, and as we have seen, cases like this routinely fail to satisfy the substantial evidence standard. And if the government has a “duty to fully develop the record,” ante, at 2 (Sotomayor, J., dissenting), that conclusion should follow all the more strongly.

What leads the Court to a different conclusion? It says that it views Mr. Biestek’s petition as raising only the