Supreme Court of the United States

“ But even if we accept that an expert’s failure to produce the evidence underlying her conclusion may support an inference that her conclusion is unsupported, that doesn’t mean such an inference must follow. ”

“ An expert may have legitimate reasons for not turning over data, such as the burden of gathering records or confidentiality concerns that redaction cannot address. In those circumstances, as the majority suggests, the agency may be able to support an expert’s testimony in ways other than by providing underlying data, such as by offering a fulsome description of the data and methodology on which the expert relies. ”

“ The Court focuses on the propriety of a categorical rule that precludes private data that a vocational expert refuses to provide upon request from qualifying as “‘substantial evidence.’” See ante, at 1. I agree with Justice Gorsuch that the question presented by this case encompasses an inquiry not just into the propriety of a categorical rule in such circumstances but also into whether the substantial-evidence standard was met in the narrower circumstances of Michael Biestek’s case. ”

“ But Biestek goes too far in suggesting that the refusal to provide supporting data always interferes with effective cross-examination, or that the absence of such testing always requires treating an opinion as unreliable. Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods—where she got the information at issue and how she analyzed it and derived her conclusions. ”

“ If an expert declines to back up her testimony with information in her control, then the factfinder has a reason to think she is hiding something. See id., at 16 (citing cases) . We do not dispute that possibility—but the inference is far from always required. If an ALJ has no other reason to trust the expert, or finds her testimony iffy on its face, her refusal of the applicant’s demand for supporting data may properly tip the scales against her opinion. (Indeed, more can be said: Even if the applicant makes no demand, such an expert’s withholding of data may count against her.) ”

“ It is just that the evidentiary problem arises from the expert’s refusal of a demand, not from the data’s absence alone. In his words, the testimony “can constitute substantial evidence if unchallenged, but not if challenged.” ”

“ 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. ”

“ Even though the applicant might wish for the data, the expert’s testimony still will clear (even handily so) the more-than-a-mere-scintilla threshold. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. See, e. g., Perales, 402 U. S., at 399, 410 (rejecting a categorical rule pertaining to the substantiality of medical reports in a disability hearing) . It takes into account all features of the vocational expert’s testimony, as well as the rest of the administrative record. ”

“ Many vocational experts simultaneously work in the private sector locating employment for persons with disabilities. See C. Kubitschek & J. Dubin, Social Security Disability Law & Procedure in Federal Court §3:89 (2019) . When offering testimony, the experts may invoke not only publicly available sources but also “information obtained directly from employers” and data otherwise developed from their own “experience in job placement or career counseling.” ”

“ Veteran Social Security practitioners must be feeling a sense of déjà vu. Half a century ago, Judge Henry Friendly encountered Kerner v. Flemming, 283 F. 2d 916 (CA2 1960) . There, the agency’s hearing examiner offered “nothing save [his own] speculation” to support his holding that the claimant “could in fact obtain substantial gainful employment.” Id., at 921. The Second Circuit firmly explained that this kind of conclusory claim is insufficient to meet the substantial evidence standard. ”

“ In response, the Social Security Administration began hiring vocational experts, like the one in this case, to document the number of jobs available to a given claimant. But if the government can do what it did in this case, it’s hard to see what all the trouble was for. ”

“ At Biestek’s hearing, the ALJ asked a vocational expert named Erin O’Callaghan to identify a sampling of “sedentary” jobs that a person with Biestek’s disabilities, education, and job history could perform. Tr. 59 (July 21, 2015) ; see 20 CFR §§404.1567 (a) , 416.967 (a) (defining a “sedentary” job as one that “involves sitting” and requires “lifting no more than 10 pounds”) . O’Callaghan had served as a vocational expert in SSA proceedings for five years; she also had more than ten years’ experience counseling people with disabilities about employment opportunities. ”

“ She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology. ”

“ The ALJ acts as “an examiner charged with developing the facts,” Richardson v. Perales, 402 U. S. 389, 410 (1971) , and has a duty to “develop the arguments both for and against granting benefits,” Sims, 530 U. S., at 111 ”