Page:Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security.pdf/23

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

Gorsuch, J., dissenting

“categorical” question whether an expert’s failure to produce underlying data always and in “every case” precludes her testimony from qualifying as substantial evidence. Ante, at 1, 9–11. And once the question is ratcheted up to that level of abstraction, of course it is easy enough to shoot it down: just point to a series of hypothetical cases where the record contains additional justification for the expert’s failure to produce or additional evidence to support her opinion. In such counterfactual cases, the failure to produce either would not be enough to give rise to an adverse inference under traditional legal principles or could be held harmless as a matter of law. See ante, at 7–10.

But as I understand Mr. Biestek’s submission, it does not require an all-or-nothing approach that would cover “every case.” As the Court acknowledges, Mr. Biestek has focused us “on the Seventh Circuit’s categorical rule.” Ante, at 6, n. 1. And that “rule” targets the narrower “category” of circumstances we have here—where an expert “‘give[s] a bottom line,’” fails to provide evidence “underlying that bottom line” when challenged, and fails to show the evidence is unavailable. McKinnie, 368 F. 3d, at 911 (quoting Donahue, 279 F. 3d, at 446). What to do about that category falls well within the question presented: “[w]hether a vocational expert’s testimony can constitute substantial evidence of ‘other work’… when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.” Pet. for Cert. i. The answer to that question may be “always,” “never,” or—as the Court itself seems to acknowledge—“[s]ometimes.” Ante, at 11. And if the answer is “sometimes,” the critical question becomes “in what circumstances?”

I suppose we could stop short and leave everyone guessing. But another option is to follow the Seventh Circuit’s lead, resolve the smaller yet still significant “category” of