(Slip Opinion) OCTOBER TERM, 2018 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BIESTEK v. BERRYHILL, ACTING COMMISSIONER 

OF SOCIAL SECURITY 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT 

No. 17–1184. Argued December 4, 2018—Decided April 1, 2019 

Petitioner Michael Biestek, a former construction worker, applied for 

social security disability benefits, claiming he could no longer work 

due to physical and mental disabilities. The Social Security Administration (SSA) assigned an Administrative Law Judge (ALJ) to conduct a hearing, at which the ALJ had to determine whether Biestek 

could successfully transition to less physically demanding work. For 

guidance on that issue, the ALJ heard testimony from a vocational

expert regarding the types of jobs Biestek could still perform and the 

number of such jobs that existed in the national economy. See 20 

CFR §§404.1560(c)(1), 416.960(c)(1). On cross-examination, Biestek’s 

attorney asked the expert “where [she was] getting [her numbers] 

from,” and the expert explained they were from her own individual 

labor market surveys. Biestek’s attorney then requested that the expert turn over the surveys. The expert declined. The ALJ ultimately 

denied Biestek benefits, basing his conclusion on the expert’s testimony about the number of jobs available to him. Biestek sought review in federal court, where an ALJ’s factual findings are “conclusive” if supported by “substantial evidence,” 42 U. S. C. §405(g). The 

District Court rejected Biestek’s argument that the expert’s testimony could not possibly constitute substantial evidence because she had 

declined to produce her supporting data. The Sixth Circuit affirmed. 

Held: A vocational expert’s refusal to provide private market-survey 

data upon the applicant’s request does not categorically preclude the

testimony from counting as “substantial evidence.” 

Substantial evidence is “more than a mere scintilla,” and means 

only “such relevant evidence as a reasonable mind might accept as 
 

 

 

2 BIESTEK v. BERRYHILL 

Syllabus 

adequate to support a conclusion.” Consolidated Edison Co. v. 

NLRB, 305 U. S. 197, 229. Biestek proposes a categorical rule that 

the testimony of a vocational expert who refuses a request for supporting data about job availability can never clear that bar. To assess that proposal, the Court begins with the parties’ common 

ground: Assuming no demand, a vocational expert’s testimony may 

count as substantial evidence even when unaccompanied by supporting data. 

If that is true, is it not obvious why one additional fact—a refusal

to a request for that data—should make an expert’s testimony categorically inadequate. In some cases, the refusal to disclose data, considered along with other shortcomings, will undercut an expert’s 

credibility and prevent a court from finding that “a reasonable mind”

could accept the expert’s testimony. But in other cases, the refusal 

will have no such consequence. Similarly, the refusal will sometimes 

interfere with effective cross-examination, which a reviewing court 

may consider in deciding how much to credit an expert’s opinion. But 

other times, even without supporting data, an applicant will be able

to probe the strength of the expert’s testimony on cross-examination.

Ultimately, Biestek’s error lies in his pressing for a categorical rule, 

applying to every case in which a vocational expert refuses a request 

for underlying data. The inquiry, as is usually true in determining 

the substantiality of evidence, is case-by-case. It takes into account 

all features of the vocational expert’s testimony, as well as the rest of 

the administrative record, and defers to the presiding ALJ, who has 

seen the hearing up close. Pp. 5–11.

 880 F. 3d 778, affirmed. 

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, BREYER, ALITO, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. GORSUCH, J., filed a dissenting 

opinion, in which GINSBURG, J., joined. 
 

 

_________________ 

_________________ 

Cite as: 587 U. S. ____ (2019) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

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 supported 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. 
 

2 BIESTEK v. BERRYHILL 

Opinion of the Court 

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, 49 Stat. 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 hearings 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, nonadversarial 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 
 

 

Cite as: 587 U. S. ____ (2019) 3 

Opinion of the Court 

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 
 

 

4 BIESTEK v. BERRYHILL 

Opinion of the Court 

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 disabilities 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 
 

Cite as: 587 U. S. ____ (2019) 5 

Opinion of the Court 

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 
 

 

 

 

 

6 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 

—————— 

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. 
 

Cite as: 587 U. S. ____ (2019) 7 

Opinion of the Court 

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, 
 

 

 

8 BIESTEK v. BERRYHILL 

Opinion of the Court 

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 

—————— 

2The SSA itself appears to agree. In the handbook given to vocational experts, the agency states: “You should have available, at 

the hearing, any vocational resource materials that you are likely 

to rely upon” because “the ALJ may ask you to provide relevant 

portions of [those] materials.” SSA, Vocational Expert Handbook 37 

(Aug. 2017), https://www.ssa.gov/appeals/public_experts/Vocational_Experts_

(VE)_Handbook-508.pdf (as last visited Mar. 28, 2019). 
Cite as: 587 U. S. ____ (2019) 9 

Opinion of the Court 

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 
 

 

 

10 BIESTEK v. BERRYHILL 

Opinion of the Court 

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 
Cite as: 587 U. S. ____ (2019) 11 

Opinion of the Court 

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. 
 

_________________ 

_________________ 

Cite as: 587 U. S. ____ (2019) 1 

SOTOMAYOR, J., dissenting 

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 SOTOMAYOR, dissenting. 

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 substantialevidence standard was met in the narrower circumstances 

of Michael Biestek’s case. See post, at 6–7 (dissenting 

opinion). For the reasons that JUSTICE GORSUCH sets out, 

the vocational expert’s conclusory testimony in this case, 

offered without even a hint of support, did not constitute

substantial evidence. 

Once Biestek established that he had impairments, the

agency bore the burden of proving that work opportunities 

were available to someone with his disabilities and individual characteristics. 20 CFR § 416.912(b)(3) (2018). To 

meet that burden, the agency relied on a vocational expert’s testimony that Biestek could qualify for one of

240,000 “bench assembler” jobs or 120,000 “sorter” jobs

nationwide. Tr. 59 (July 21, 2015). The expert said that

those numbers were based in part on her “professional 

experience.” Id., at 61. When Biestek’s counsel under-
 

2 BIESTEK v. BERRYHILL 

SOTOMAYOR, J., dissenting 

standably asked for more details, the expert said only that

she got the numbers from a publicly available source as

well as from her “own individual labor market surveys”

that were part of confidential client files. Id., at 71; see 

id., at 67, 71–72. Biestek’s counsel asked if the names in 

the files could be redacted, but the administrative law 

judge (ALJ) interrupted and ruled that she would not 

require the surveys to be produced in redacted form. Id., 

at 72; see also id., at 67. 

Perhaps the ALJ would have allowed Biestek’s counsel

to ask followup questions about the basis for the testimony 

at that point, and perhaps Biestek’s counsel should have 

tried to do so. But a Social Security proceeding is “inquisitorial rather than adversarial.” Sims v. Apfel, 530 U. S. 

103, 110–111 (2000); see 20 CFR §§404.900(b), 

416.1400(b). 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; 

see also Social Security Ruling, SSR 00–4P, 65 Fed. Reg.

75760 (2000) (noting “the adjudicator’s duty to fully develop the record”). Here, instead of taking steps to ensure

that the claimant had a basis from which effective crossexamination could be made and thus the record could be 

developed, the ALJ cut off that process by intervening

when Biestek’s counsel asked about the possibility of

redaction. 

The result was that the expert offered no detail whatsoever on the basis for her testimony. She did not say whom

she had surveyed, how many surveys she had conducted, 

or what information she had gathered, nor did she offer

any other explanation of the data on which she relied. In 

conjunction with the failure to proffer the surveys themselves, the expert’s conclusory testimony alone could not 

constitute substantial evidence to support the ALJ’s fact-
 

 

 

3 

I 

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

SOTOMAYOR, J., dissenting 

finding.*

I agree with much of JUSTICE GORSUCH’s reasoning. 

emphasize that I do not foreclose the possibility that a 

more developed record could justify an ALJ’s reliance on 

vocational-expert testimony in some circumstances even if 

the expert does not produce records underlying that testimony on request. 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. See ante, at 8. The agency 

simply did not do so here. 

—————— 

* I note that the agency’s own handbook says that experts “should 

have available, at the hearing, any vocational resource materials that 

[they] are likely to rely upon and should be able to thoroughly explain 

what resource materials [they] used and how [they] arrived at [their] 

opinions.” SSA, Vocational Expert Handbook 37 (Aug. 2017), 

https://www.ssa.gov/appeals /public_experts /Vocational_Experts_(VE)_

Handbook-508.pdf (as last visited Mar. 29, 2019). 
 

_________________ 

_________________ 

Cite as: 587 U. S. ____ (2019) 1 

GORSUCH, J., dissenting 

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 GORSUCH, with whom JUSTICE GINSBURG joins,

dissenting. 

Walk for a moment in Michael Biestek’s shoes. As part

of your application for disability benefits, you’ve proven 

that you suffer from serious health problems and can’t 

return to your old construction job. Like many cases,

yours turns on whether a significant number of other jobs

remain that someone of your age, education, and experience, and with your physical limitations, could perform.

When it comes to that question, the Social Security Administration bears the burden of proof. To meet its burden in your case, the agency chooses to rest on the testimony of a vocational expert the agency hired as an 

independent contractor. The expert asserts there are 

120,000 “sorter” and 240,000 “bench assembler” jobs

nationwide that you could perform even with your

disabilities. 

Where did these numbers come from? The expert says 

she relied on data from the Bureau of Labor Statistics and 

her own private surveys. But it turns out the Bureau 

can’t be the source; its numbers aren’t that specific. The 

source—if there is a source—must be the expert’s private 

surveys. So you ask to see them. The expert refuses—she 

says they’re part of confidential client files. You reply by 
 

 

2 BIESTEK v. BERRYHILL 

GORSUCH, J., dissenting 

pointing out that any confidential client information can

be redacted. But rather than ordering the data produced,

the hearing examiner, herself a Social Security Administration employee, jumps in to say that won’t be necessary. Even without the data, the examiner states in her 

decision on your disability claim, the expert’s say-so warrants “great weight” and is more than enough evidence to 

deny your application. Case closed. App. to Pet. for Cert. 

111a–112a, 118a–119a. 

Would you say this decision was based on “substantial

evidence”? Count me with Judge Easterbrook and the 

Seventh Circuit in thinking that an agency expert’s bottomline conclusion, supported only by a claim of readily available evidence that she refuses to produce on request, fails 

to satisfy the government’s statutory burden of producing 

substantial evidence of available other work. See Donahue v. Barnhart, 279 F. 3d 441, 446 (CA7 2002); 

McKinnie v. Barnhart, 368 F. 3d 907, 910–911 (CA7 2004) 

(per curiam).

Start with the legal standard. The Social Security Act

of 1935 requires the agency to support its conclusions 

about the number of available jobs with “substantial 

evidence.” 42 U. S. C. §405(g). Congress borrowed that 

standard from civil litigation practice, where reviewing 

courts may overturn a jury verdict when the record lacks 

“substantial evidence”—that is, evidence sufficient to 

permit a reasonable jury to reach the verdict it did. Much 

the same standard governs summary judgment and directed verdict practice today. See 2 K. Hickman & R. 

Pierce, Administrative Law §10.2.1, pp. 1082–1085 (6th 

ed. 2019); Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 

252 (1986); NLRB v. Columbian Enameling & Stamping 

Co., 306 U. S. 292, 300 (1939).

Next, consider what we know about this standard. 

Witness testimony that’s clearly wrong as a matter of fact

cannot be substantial evidence. See Scott v. Harris, 550 
Cite as: 587 U. S. ____ (2019) 3 

GORSUCH, J., dissenting 

U. S. 372, 380 (2007). Falsified evidence isn’t substantial 

evidence. See, e.g., Firemen’s and Policemen’s Civil Serv. 

Comm’n v. Brinkmeyer, 662 S. W. 2d 953, 956 (Tex. 1984). 

Speculation isn’t substantial evidence. See, e.g., Cao He 

Lin v. Department of Justice, 428 F. 3d 391, 400 (CA2 

2005); Alpo Petfoods, Inc. v. NLRB, 126 F. 3d 246, 250 

(CA4 1997). And, maybe most pointedly for our purposes,

courts have held that a party or expert who supplies only 

conclusory assertions fails this standard too. See, e.g., 

Lujan v. National Wildlife Federation, 497 U. S. 871, 888 

(1990) (“The object of [summary-judgment practice] is not 

to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit”); Regents 

of Univ. of Minn. v. AGA Medical Corp., 717 F. 3d 929, 941 

(CA Fed. 2013) (“conclusory expert assertions cannot raise 

triable issues of material fact”) (collecting cases); MidState Fertilizer Co. v. Exchange Nat. Bank of Chicago, 877 

F. 2d 1333, 1339 (CA7 1989) (“An expert who supplies

nothing but a bottom line supplies nothing of value to the 

judicial process”); Sea Robin Pipeline Co. v. FERC, 795 

F. 2d 182, 188 (CADC 1986) (“[I]nordinate faith in the

conclusory assertions of an expert . . . cannot satisfy the

requirement [of] substantial evidence”).

If clearly mistaken evidence, fake evidence, speculative

evidence, and conclusory evidence aren’t substantial evidence, the evidence here shouldn’t be either. The case 

hinges on an expert who (a) claims to possess evidence on 

the dispositive legal question that can be found nowhere 

else in the record, but (b) offers only a conclusion about its 

contents, and (c) refuses to supply the evidence when

requested without showing that it can’t readily be made 

available. What reasonable factfinder would rely on evidence like that? It seems just the sort of conclusory evidence courts have long held insufficient to meet the substantial evidence standard. And thanks to its conclusory 

nature, for all anyone can tell it may have come out of a 
 

4 BIESTEK v. BERRYHILL 

GORSUCH, J., dissenting 

hat—and, thus, may wind up being clearly mistaken, fake,

or speculative evidence too. Unsurprisingly given all this, 

the government fails to cite even a single authority blessing the sort of evidence here as substantial evidence, 

despite the standard’s long history and widespread use. 

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. The agency might still rest decisions on a hunch—just so long as the hunch comes from an

agency contractor rather than an agency examiner. 

Instead of addressing the realities of this case, the 

government asks us to imagine a hypothetical one. Assume, it says, that no one had requested the underlying 

data. In those circumstances, the government points out,

even Mr. Biestek appears to accept that the agency’s 

decision could have stood. And if that’s true, the government asks, why should it make a difference if we add only 

one additional fact—the expert’s refusal to produce the 

data? See ante, at 7–9 (presenting the same argument).

The answer is an old and familiar one. The refusal to 

supply readily available evidentiary support for a conclusion strongly suggests that the conclusion is, well, unsupported. See, e.g., Interstate Circuit, Inc. v. United States, 

306 U. S. 208, 226 (1939) (“The production of weak evidence when strong is available can lead only to the conclu-
Cite as: 587 U. S. ____ (2019) 5 

GORSUCH, J., dissenting 

sion that the strong would have been adverse”); Clifton v. 

United States, 4 How. 242, 248 (1846) (the withholding of 

“more direct” proof suggests that “if the more perfect

exposition had been given it would have laid open deficiencies and objections which the more obscure and uncertain testimony was intended to conceal”); 31A C. J. S.,

Evidence §156(2), p. 402 (1964) (“The unfavorable inference . . . is especially applicable where the party withholding the evidence has had notice or has been ordered to 

produce it”). Meanwhile, a similar inference may not arise

if no one’s bothered to ask for the evidence, or if the evidence is shown to be unavailable for a good reason. In 

cases like those, there may be just too many other plausible and innocent excuses for the evidence’s absence. Maybe,

for example, nobody bothered to seek the underlying data 

because everyone knew what it would show. 

Fine, the Court responds, all that’s true enough. 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. Whether an inference is appropriate depends on the facts of the particular 

case. See ante, at 9–10. 

But what more do we need to know about the facts of 

this case? All of the relevant facts are undisputed, and it 

remains only to decide the legal question whether they 

meet the substantial evidence standard. We know that 

the expert offered a firm and exact conclusion about the

number of available jobs. We know that the expert

claimed to have private information to support her conclusion. We know Mr. Biestek requested that information 

and we have no reason to think any confidentiality concerns could not have been addressed. We know, too, that 

the hearing examiner had “no other reason to trust the 

expert[’s]” numbers beyond her say-so. Ibid. Finally and

looking to the law, we know that a witness’s bare conclu-
 

 

 

6 BIESTEK v. BERRYHILL 

GORSUCH, J., dissenting 

sion is regularly held insufficient to meet the substantial 

evidence threshold—and we know that the government

hasn’t cited a single case finding substantial evidence on

so little. This is exactly the sort of case where an adverse 

inference should “tip the scales.” Ibid. 

With so much now weighing against the government,

everything seems to turn on a final hypothetical. Now we 

are asked to imagine that the expert had offered detailed

oral testimony about the withheld data. Her testimony

was so detailed, we are asked to suppose, that Mr. Biestek

could have thoroughly tested the data’s reliability through

cross-examination. (You might wonder just how effective

this cross-examination could be if Mr. Biestek didn’t have 

access to the data. But overlook that.) Surely in those 

circumstances it wouldn’t matter whether the expert 

failed to produce the data even in bad faith. Any failure to

produce would be harmless as a matter of law because the 

expert’s testimony, all by itself, would amount to substantial evidence on which a rational factfinder might rely. 

Ante, at 10. 

The problem is that this imaginary case has nothing to

teach us about our real one. In Mr. Biestek’s case, it is 

undisputed that the expert offered only a bare conclusion

about the number of available jobs. No other relevant 

testimony was offered or received: no testimony about the 

underlying data, no testimony about its specific sources, 

no testimony about its reliability. In our real case, there is 

simply no way to shrug off the failure to produce the data

as harmless error. To the contrary, and as we have seen, 

cases like this routinely fail to satisfy the substantial

evidence standard. And if the government has a “duty to

fully develop the record,” ante, at 2 (SOTOMAYOR, J., dissenting), that conclusion should follow all the more 

strongly.

What leads the Court to a different conclusion? It says

that it views Mr. Biestek’s petition as raising only the 
 

Cite as: 587 U. S. ____ (2019) 7 

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 
 

 

8 BIESTEK v. BERRYHILL 

GORSUCH, J., dissenting 

cases like the one before us, and in that way begin to offer 

lower courts meaningful guidance in this important area. 

While I would not hesitate to take this course and make 

plain that cases like Mr. Biestek’s fail the substantial 

evidence standard, I understand the Court today to choose

the first option and leave these matters for another day.

There is good news and bad news in this. If my understanding of the Court’s opinion is correct, the good news is

that the Court remains open to the possibility that in realworld cases like Mr. Biestek’s, lower courts may—and

even should—find the substantial evidence test unmet. 

The bad news is that we must wait to find out, leaving 

many people and courts in limbo in the meantime. Cases 

with facts like Mr. Biestek’s appear to be all too common. 

See, e.g., Dubin, Overcoming Gridlock: Campbell After a 

Quarter-Century and Bureaucratically Rational GapFilling in Mass Justice Adjudication in the Social Security 

Administration’s Disability Programs, 62 Admin. L. Rev. 

937, 966 (2010). And many courts have erred in them by

finding the substantial evidence test met, as the Sixth 

Circuit did in the case now before us. Some courts have 

even conflated the substantial evidence standard—a substantive standard governing what’s needed to sustain a 

judgment as a matter of law—with procedural rules governing the admission of evidence. These courts have 

mistakenly suggested that, because the Federal Rules of 

Evidence don’t apply in Social Security proceedings, anything an expert says will suffice to meet the agency’s

burden of proof. See, e.g., Welsh v. Commissioner of Social 

Security, 662 Fed. Appx. 105, 109–110 (CA3 2016); Bayliss 

v. Barnhart, 427 F. 3d 1211, 1218, and n. 4 (CA9 2005).

Definitively resolving this case would have provided more 

useful guidance for practitioners and lower courts that 

have struggled with a significant category of cases like Mr. 

Biestek’s, all while affording him the relief the law promises in disputes like his. 
Cite as: 587 U. S. ____ (2019) 9 

GORSUCH, J., dissenting 

The principle that the government must support its

allegations with substantial evidence, not conclusions and 

secret evidence, guards against arbitrary executive decisionmaking. See Friendly, “Some Kind of Hearing,” 123 

U. Pa. L. Rev. 1267, 1313–1314 (1975). Without it, people

like Mr. Biestek are left to the mercy of a bureaucrat’s

caprice. Over 100 years ago, in ICC v. Louisville & Nashville R. Co., 227 U. S. 88 (1913), the government sought to 

justify an agency order binding private parties without 

producing the information on which the agency had relied. 

The government argued that its findings should be “presumed to have been supported.” Id., at 93. In essence, the 

government sought the right to “act upon any sort of secret evidence.” Gellhorn, Official Notice in Administrative 

Adjudication, 20 Texas L. Rev. 131, 145 (1941). This 

Court did not approve of that practice then, and I would

not have hesitated to make clear that we do not approve of

it today.

I respectfully dissent.