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SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1184
_________________
MICHAEL J. BIESTEK, PETITIONER
v. NANCY
A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY
on writ of certiorari to the united states
court of appeals for the sixth circuit
[April 1, 2019]
Justice Kagan delivered the opinion of the
Court.
The Social Security Administration (SSA)
provides benefits to individuals who cannot obtain work because of
a physical or mental disability. To determine whether an applicant
is entitled to benefits, the agency may hold an informal hearing
examining (among other things) the kind and number of jobs
available for someone with the applicant’s disability and other
characteristics. The agency’s factual findings on that score are
“conclusive” in judicial review of the benefits decision so long as
they are sup- ported by “substantial evidence.” 42
U. S. C. §405(g).
This case arises from the SSA’s reliance on an
expert’s testimony about the availability of certain jobs in the
economy. The expert largely based her opinion on private
market-survey data. The question presented is whether her refusal
to provide that data upon the applicant’s request categorically
precludes her testimony from counting as “substantial evidence.” We
hold it does not.
I
Petitioner Michael Biestek once worked as a
carpenter and general laborer on construction sites. But he stopped
working after he developed degenerative disc disease, Hepatitis C,
and depression. He then applied for social security disability
benefits, claiming eligibility as of October 2009.
After some preliminary proceedings, the SSA
assigned an Administrative Law Judge (ALJ) to hold a hearing on
Biestek’s application. Those hearings, as described in the Social
Security Act, 49Stat. 620, as amended, 42 U. S. C. §301
et seq., are recognizably adjudicative in nature. The
ALJ may “receive evidence” and “examine witnesses” about the
contested issues in a case. §§405(b)(1), 1383(c) (1)(A). But many
of the rules governing such hear- ings are less rigid than those a
court would follow. See
Richardson v.
Perales,
402 U.S.
389, 400–401 (1971). An ALJ is to conduct a disability hearing
in “an informal, non-adversarial manner.” 20 CFR §404.900(b)
(2018); §416.1400(b). Most notably, an ALJ may receive evidence in
a disability hearing that “would not be admissible in court.”
§§404.950(c), 416.1450(c); see 42 U. S. C. §§405(b) (1),
1383(c)(1)(A).
To rule on Biestek’s application, the ALJ had to
determine whether the former construction laborer could
successfully transition to less physically demanding work. That
required exploring two issues. The ALJ needed to identify the types
of jobs Biestek could perform notwithstanding his disabilities. See
20 CFR §§404.1560(c)(1), 416.960(c)(1). And the ALJ needed to
ascertain whether those kinds of jobs “exist[ed] in significant
numbers in the national economy.” §§404.1560(c)(1), 416.960(c)(1);
see §§404.1566, 416.966.
For guidance on such questions, ALJs often seek
the views of “vocational experts.” See §§404.1566(e), 416.966(e);
SSA, Hearings, Appeals, and Litigation Law Manual I–2–5–50 (Aug.
29, 2014). Those experts are professionals under contract with SSA
to provide impartial testimony in agency proceedings. See
id., at I–2–1–31.B.1 (June 16, 2016);
id., at
I–2–5–48. They must have “expertise” and “current knowledge” of
“[w]orking conditions and physical demands of various” jobs;
“[k]nowledge of the existence and numbers of [those jobs] in the
national economy”; and “[i]nvolvement in or knowledge of placing
adult workers[ ] with disabilities[ ] into jobs.”
Id., at I–2–1–31.B.1. 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.” Social Security Ruling, SSR
00–4p, 65 Fed. Reg. 75760 (2000).
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.
See
Stachowiak v.
Commissioner of Social
Security, 2013 WL 593825, *1 (ED Mich., Jan. 11, 2013); Record
in No. 16–10422 (ED Mich.), Doc. 17–13, p. 1274 (resume). In
response to the ALJ’s query, O’Callaghan listed sedentary jobs
“such as a bench assembler [or] sorter” that did not require many
skills. Tr. 58–59. And she further testified that 240,000 bench
assembler jobs and 120,000 sorter jobs existed in the national
economy. See
ibid.
On cross-examination, Biestek’s attorney asked
O’Callaghan “where [she was] getting those [numbers] from.”
Id., at 71. O’Callaghan replied that they came from the
Bureau of Labor Statistics and her “own individual labor market
surveys.”
Ibid. The lawyer then requested that O’Callaghan
turn over the private surveys so he could review them.
Ibid.
O’Callaghan responded that she wished to keep the surveys
confidential because they were “part of [her] client files.”
Id., at 72. The lawyer suggested that O’Callaghan could
“take the clients’ names out.”
Ibid. But at that point the
ALJ interjected that he “would not require” O’Callaghan to produce
the files in any form.
Ibid. Biestek’s counsel asked no
further questions about the basis for O’Callaghan’s assembler and
sorter numbers.
After the hearing concluded, the ALJ issued a
decision granting Biestek’s application in part and denying it in
part. According to the ALJ, Biestek was entitled to benefits
beginning in May 2013, when his advancing age (he turned fifty that
month) adversely affected his ability to find employment. See App.
to Pet. for Cert. 19a, 112a–113a. But before that time, the ALJ
held, Biestek’s dis- abilities should not have prevented a
“successful adjustment to other work.”
Id., at 110a–112a.
The ALJ based that conclusion on O’Callaghan’s testimony about the
availability in the economy of “sedentary unskilled occupations
such as bench assembler [or] sorter.”
Id., at 111a (emphasis
deleted).
Biestek sought review in federal court of the
ALJ’s denial of benefits for the period between October 2009 and
May 2013. On judicial review, an ALJ’s factual findings—such as the
determination that Biestek could have found sedentary work—“shall
be conclusive” if supported by “substantial evidence.” 42
U. S. C. §405(g); see
supra, at 1. Biestek
contended that O’Callaghan’s testimony could not possibly
constitute such evidence because she had declined, upon request, to
produce her supporting data. See Plaintiff’s Motion for Summary
Judgment in No. 16–10422 (ED Mich.), Doc. 22, p. 23. But the
District Court rejected that argument. See 2017 WL 1173775, *2
(Mar. 30, 2017). And the Court of Appeals for the Sixth Circuit
affirmed. See
Biestek v.
Commissioner of Social
Security, 880 F.3d 778 (2018). That court recognized that the
Seventh Circuit had adopted the categorical rule Biestek proposed,
precluding a vocational expert’s testimony from qualifying as
substantial if the expert had declined an applicant’s request to
provide supporting data. See
id., at 790 (citing
McKinnie v.
Barnhart,
368 F.3d 907, 910–911 (2004)). But that rule, the Sixth Circuit
observed in joining the ranks of unconvinced courts, “ha[d] not
been a popular export.” 880 F. 3d, at 790 (internal quotation
marks omitted).
And no more is it so today.
II
The phrase “substantial evidence” is a “term
of art” used throughout administrative law to describe how courts
are to review agency factfinding.
T-Mobile South,
LLC
v.
Roswell, 574 U. S. ___, ___ (2015) (slip op., at 7).
Under the substantial-evidence standard, a court looks to an
existing administrative record and asks whether it contains
“sufficien[t] evidence” to support the agency’s factual
determinations.
Consolidated Edison Co. v.
NLRB,
305 U.S.
197, 229 (1938) (emphasis deleted). And whatever the meaning of
“substantial” in other contexts, the threshold for such evidentiary
sufficiency is not high. Substantial evidence, this Court has said,
is “more than a mere scintilla.”
Ibid.; see,
e.g.,
Perales, 402 U. S., at 401 (internal quotation marks
omitted). It means—and means only—“such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Consolidated 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 in SSA hearings. As explained above, Congress intended
those proceedings to be “informal” and provided that the “strict
rules of evidence, applicable in the courtroom, are not to” apply.
Perales, 402 U. S., at 400; see 42 U. S. C.
§405(b)(1);
supra, at 2. So Biestek does not press for a
“procedural rule” governing “the means through which an evidentiary
record [must be] created.” Tr. of Oral Arg. 6; Reply Brief 13.
Instead, he urges a “substantive rule” for “assess[ing] the quality
and quantity of [record] evidence”—which would find testimony like
O’Callaghan’s inadequate, when taken alone, to support an ALJ’s
factfinding.
Id., at 12.
And Biestek also emphasizes a limitation within
that proposed rule. For the rule to kick in, the applicant must
make a demand for the expert’s supporting data. See Brief for
Petitioner i, 5, 18, 40, 55; Tr. of Oral Arg. 25–26. Consider two
cases in which vocational experts rely on, but do not produce,
nonpublic information. In the first, the applicant asks for the
data; in the second, not. According to Biestek, the expert’s
testimony in the first case cannot possibly clear the
substantial-evidence bar; but in the second case, it may well do
so, even though the administrative record is otherwise the same.
And Biestek underscores that this difference in outcome has nothing
to do with waiver or forfeiture: As he acknowledges, an applicant
“cannot waive the substantial evidence standard.”
Id., at
27. 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.” Reply Brief 18.
To assess Biestek’s proposal, we begin with the
parties’ common ground: Assuming no demand, a vocational expert’s
testimony may count as substantial evidence even when unaccompanied
by supporting data. Take an example. Suppose an expert has
top-of-the-line credentials, including professional qualifications
and many years’ experience; suppose, too, she has a history of
giving sound testimony about job availability in similar cases
(perhaps before the same ALJ). Now say that she testifies about the
approximate number of various sedentary jobs an applicant for
benefits could perform. 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. She
answers cogently and thoroughly all questions put to her by the ALJ
and the applicant’s lawyer. And nothing in the rest of the record
conflicts with anything she says. But she never produces her survey
data. Still, her testimony would be the kind of evidence—far “more
than a mere scintilla”—that “a reasonable mind might accept as
adequate to support” a finding about job availability.
Consolidated Edison, 305 U. S., at 229. Of course, the
testimony would be even better—more reliable and probative—if she
had produced supporting data; that would be a best practice for the
SSA and its experts.[
2] And of
course, a different (maybe less qualified) expert failing to
produce such data might offer testimony that is so feeble, or
contradicted, that it would fail to clear the substantial-evidence
bar. The point is only—as, again, Biestek accepts—that expert
testimony can sometimes surmount that bar absent underlying
data.
But if that is true, why should one additional
fact—a refusal to a request for that data—make a vocational
expert’s testimony categorically inadequate? Assume that an
applicant challenges our hypothetical expert to turn over her
supporting data; and assume the expert declines because the data
reveals private information about her clients and making careful
redactions will take a fair bit of time. Nothing in the expert’s
refusal changes her testimony (as described above) about job
availability. Nor does it alter any other material in the record.
So if our expert’s opinion was sufficient—
i.e., qualified as
substantial evidence—before the refusal, it is hard to see why the
opinion has to be insufficient afterward.
Biestek suggests two reasons for that
non-obvious result. First, he contends that the expert’s rejection
of a request for backup data necessarily “cast[s her testimony]
into doubt.” Reply Brief 16. And second, he avers that the refusal
inevitably “deprives an applicant of the material necessary for an
effective cross-examination.”
Id., at 2. But Biestek states
his arguments too broadly—and the nuggets of truth they contain
cannot justify his proposed flat rule.
Consider Biestek’s claim about how an expert’s
refusal undercuts her credibility. Biestek here invokes the
established idea of an “adverse inference”: 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.) But if
(as in our prior hypothetical example, see
supra, at 7–8)
the ALJ views the expert and her testimony as otherwise
trustworthy, and thinks she has good reason to keep her data
private, her rejection of an applicant’s demand need not make a
difference. So too when a court reviews the ALJ’s decision under
the deferential substantial-evidence standard. In some cases, the
refusal to disclose data, considered along with other shortcomings,
will prevent a court from finding that “a reasonable mind” could
accept the expert’s testimony.
Consolidated Edison, 305
U. S., at 229. But in other cases, that refusal will have no
such consequence. Even taking it into account, the expert’s opinion
will qualify as “more than a mere scintilla” of evidence supporting
the ALJ’s conclusion. Which is to say it will count, contra
Biestek, as substantial.
And much the same is true of Biestek’s claim
that an expert’s refusal precludes meaningful cross-examination. We
agree with Biestek that an ALJ and reviewing court may properly
consider obstacles to such questioning when deciding how much to
credit an expert’s opinion. See
Perales, 402 U. S., at
402–406. 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. See,
e.g.,
Chavez v.
Berryhill,
895 F.3d 962, 969–970 (CA7 2018). And even without significant
testing, a factfinder may conclude that testimony has sufficient
indicia of reliability to support a conclusion about whether an
applicant could find work. Indeed, Biestek effectively concedes
both those points in cases where supporting data is missing, so
long as an expert has not refused an applicant’s demand. See
supra, at 7. But once that much is acknowledged, Biestek’s
argument cannot hold. For with or without an express refusal, the
absence of data places the selfsame limits on
cross-examination.
Where Biestek goes wrong, at bottom, is in
pressing for a categorical rule, applying to every case in which a
vocational expert refuses a request for underlying data. Sometimes
an expert’s withholding of such data, when combined with other
aspects of the record, will prevent her testimony from qualifying
as substantial evidence. That would be so, for example, if the
expert has no good reason to keep the data private and her
testimony lacks other markers of reliability. But sometimes the
reservation of data will have no such effect. 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. And in so doing, it defers to the
presiding ALJ, who has seen the hearing up close.
That much is sufficient to decide this case.
Biestek petitioned us only to adopt the categorical rule we have
now rejected. He did not ask us to decide whether, in the absence
of that rule, substantial evidence supported the ALJ in denying him
benefits. Accordingly, we affirm the Court of Appeals’
judgment.
It is so ordered.