Biestek v. Berryhill, 139 S. Ct. 1148

Background

Michael Biestek, a former construction worker, applied for Social Security disability benefits claiming inability to work due to physical and mental impairments.
At an ALJ hearing a vocational expert (VE), Erin O'Callaghan, testified that 240,000 bench assembler jobs and 120,000 sorter jobs existed that Biestek could perform.
On cross-examination the VE said her figures came from the Bureau of Labor Statistics and from private labor-market surveys; she refused to produce the private surveys citing confidentiality.
The ALJ declined to require production of the surveys, credited the VE's testimony, and denied benefits for the period before May 2013; Biestek sought judicial review.
Biestek argued that a VE’s refusal to provide underlying private data upon request categorically precludes the VE’s testimony from constituting "substantial evidence." The Sixth Circuit affirmed the ALJ; the Seventh Circuit had adopted the categorical rule Biestek sought.
The Supreme Court granted review to decide whether such a categorical rule is required and held that it is not; whether testimony is "substantial evidence" is a case-by-case inquiry.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a VE's refusal to produce underlying private data upon request automatically disqualifies the VE's testimony as "substantial evidence"	Biestek: Yes; categorical rule—if VE refuses to provide requested underlying data, her testimony cannot be substantial evidence	SSA/Respondent: No; absence or nondisclosure of data does not automatically defeat testimony; substantial-evidence review is deferential and fact-specific	No categorical rule; whether testimony is substantial evidence depends on the whole record and is decided case-by-case
Whether substantial-evidence standard requires production rules like civil discovery in SSA hearings	Biestek: Seeks substantive rule (not procedural discovery rule) that testimony without producible supporting data is inadequate when challenged	SSA: SSA hearings are informal; FRCP discovery rules do not apply; ALJs may rely on various sources and have discretion	FRCP-style discovery is not required; informality of SSA hearings permits reliance on expert testimony even if underlying private data are not produced, subject to case-specific review
Role of ALJ and adverse inference from nondisclosure	Biestek: Refusal casts doubt and deprives applicant of effective cross-examination; should weight against VE testimony	SSA: ALJ may consider credibility, methods, and other indicia of reliability; nondisclosure may be harmless in some cases	ALJ may consider refusal in assessing weight; refusal can undermine testimony in some cases but is not dispositive per se
Standard of review for VE testimony based on private data	Biestek: Demanded higher scrutiny when data withheld after request	SSA: Apply ordinary substantial-evidence standard (more than a mere scintilla) with deference to ALJ	Ordinary substantial-evidence standard applies; testimony may still qualify absent produced data if reliable on record

Key Cases Cited

Richardson v. Perales, 402 U.S. 389 (1971) (SSA hearings are informal and may admit evidence not admissible in court)
Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938) (definition of "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion")
Sims v. Apfel, 530 U.S. 103 (2000) (ALJ's role is to develop the record; SSA proceedings are inquisitorial)
Dickinson v. Zurko, 527 U.S. 150 (1999) (comparison of substantial-evidence standard with deferential review)
Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002) (VE testimony that is mere bottom-line assertion without producible support is insufficient)
McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004) (reiterating rule that VE refusal to produce underlying data can render testimony insubstantial)
Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960) (conclusory agency findings unsupported by evidence are insufficient)