Page:Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security.pdf/8

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BIESTEK v. BERRYHILL

Opinion of the Court

Edison, 305 U. S., at 229. See Dickinson v. Zurko, 527 U. S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).

Today, Biestek argues that the testimony of a vocational expert who (like O’Callaghan) refuses a request for supporting data about job availability can never clear the substantial-evidence bar. See Brief for Petitioner 21–34. As that formulation makes clear, Biestek’s proposed rule is categorical, rendering expert testimony insufficient to sustain an ALJ’s factfinding whenever such a refusal has occurred.^[1] But Biestek hastens to add two caveats. The first is to clarify what the rule is not, the second to stress where its limits lie.

Biestek initially takes pains—and understandably so—to distinguish his argument from a procedural claim. Reply Brief 12–14. At no stage in this litigation, Biestek says, has he ever espoused “a free-standing procedural rule under which a vocational expert would always have to produce [her underlying data] upon request.” Id., at 2. That kind of rule exists in federal court: There, an expert witness must produce all data she has considered in reaching her conclusions. See Fed. Rule Civ. Proc. 26(a)(2)(B). But as Biestek appreciates, no similar requirement applies
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↑ In contrast, the principal dissent cannot decide whether it favors such a categorical rule. At first, Justice Gorsuch endorses the rule Biestek and the Seventh Circuit have proposed. See post, at 2. But in then addressing our opinion, he takes little or no issue with the reasoning we offer to show why that rule is too broad. See post, at 4–7. So the dissent tries to narrow the scope of Biestek’s categorical rule—to only cases that look just like his. See post, at 7–8. And still more, it shelves all the “categorical” talk and concentrates on Biestek’s case alone. See post, at 1, 4–8. There, Justice Gorsuch’s dissent joins Justice Sotomayor’s in concluding that the expert evidence in this case was insubstantial. But as we later explain, see infra, at 11, Biestek did not petition us to resolve that factbound question; nor did his briefing and argument focus on anything other than the Seventh Circuit’s categorical rule. We confine our opinion accordingly.

[1] In contrast, the principal dissent cannot decide whether it favors such a categorical rule. At first, Justice Gorsuch endorses the rule Biestek and the Seventh Circuit have proposed. See post, at 2. But in then addressing our opinion, he takes little or no issue with the reasoning we offer to show why that rule is too broad. See post, at 4–7. So the dissent tries to narrow the scope of Biestek’s categorical rule—to only cases that look just like his. See post, at 7–8. And still more, it shelves all the “categorical” talk and concentrates on Biestek’s case alone. See post, at 1, 4–8. There, Justice Gorsuch’s dissent joins Justice Sotomayor’s in concluding that the expert evidence in this case was insubstantial. But as we later explain, see infra, at 11, Biestek did not petition us to resolve that factbound question; nor did his briefing and argument focus on anything other than the Seventh Circuit’s categorical rule. We confine our opinion accordingly.

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