Supreme Court’s Biestek Decision Compromises Fairness

Kyle Roat, Blog Editor, University of Cincinnati Law Review

I. Introduction

Michael Biestek worked most of his life as a laborer in the construction industry.[1]In 2005, at the age of fifty-four, Mr. Biestek ceased working as a result of a combination of degenerative disc disease, Hepatitis C, and depression.[2]Five years later, Mr. Biestek applied for Supplemental Security Income and Disability Insurance Benefits, requesting benefits from a disability date in 2009.[3]

After the Social Security Administration (“SSA”) denied his application, Mr. Biestek requested review by an Administrative Law Judge (ALJ) who affirmed the denial of benefits.[4]The Social Security Administration Appeals Council refused to review the ALJ’s decision and Mr. Biestek appealed to the District Court.[5]The District Court found in part that the ALJ had not posed “a sufficiently specific hypothetical to the vocational expert,” and remanded the case to the ALJ for review.[6]The redetermination resulted in an opinion that found Mr. Biestek disabled as of his fiftieth birthday in 2013 but not disabled prior to that time.[7]On second appeal to the District Court, the judge affirmed the ALJ’s decision.[8]

Mr. Biestek then appealed multiple issues to the Sixth Circuit, one of which would ultimately reach the Supreme Court, whose decision is the subject of this article.[9]The question presented to the Supreme Court was whether a vocational expert’s report could serve as substantial evidence when the expert refused to disclose the sources on which the report was based.[10]Part II of this article presents the Sixth Circuit’s decision on this issue. Part III covers the Supreme Court’s opinion. Part IV analyzes the two opinions and argues that the Supreme Court has missed the mark in deciding that an expert’s testimony in these kinds of administrative proceedings can serve as substantial evidence when the applicant is not granted access to the data on which the expert’s testimony was based.

II. Sixth Circuit Opinion

The vocational expert relied on in part by the ALJ cited to the Dictionary of Occupational Titles and her own experience in reaching the decision that there were jobs available in the national economy that Mr. Biestek was able to perform despite his limitations.[11]Mr. Biestek’s counsel requested the data the vocational expert used in her analysis.[12]The expert refused the request, citing confidentiality concerns, and the ALJ refused to compel the disclosure.[13]

      In evaluating Mr. Biestek’s argument that an opinion not substantiated by specific data could not be substantial evidence, the Sixth Circuit acknowledged a pair of cases from the Seventh Circuit, which the Sixth Circuit viewed as importing Federal Rule of Evidence 702 into the administrative process.[14]

The Sixth Circuit ultimately rejected the Seventh Circuit’s decisions for two reasons. First, borrowing the Second Circuit’s observation that Congress exempted Social Security disability proceedings from the Federal Rules of Evidence, the Sixth Circuit agreed the rule did not apply to ALJs.[15]Second, the Sixth Circuit pointed to a lack of clarity in the Seventh Circuit’s instruction to the agency to create a rule “similar though not necessarily identical to that of Rule 702.”[16]

Rather than adopting the rule proposed by Mr. Biestek, the Sixth Circuit decided that the existing procedural safeguards such as the vocational expert’s expertise and the ALJ’s evaluation of the expert’s credibility are sufficient to protect the rights of disability benefits applicants.[17]

III. Supreme Court Opinion

The Supreme Court heard arguments in Mr. Biestek’s case in December of 2018.[18]Unlike the Sixth Circuit, which based its decision largely on the treatment the issue had received in the other Circuit court, the majority based its holding in the body of administrative law from which the issue derived.[19]

The Court explained that an ALJ’s findings of fact are conclusive so long as they are supported by substantial evidence.[20]Substantial evidence, the majority clarified, is a low threshold consisting of “more than a mere scintilla.”[21]The majority also further clarified Mr. Biestek’s proposed rule included a requirement that a party request the underlying data before it took effect.[22]Additionally, the effect of the rule would be felt only if there was no other basis for the ALJ’s decision.[23]

Invoking a hypothetical ideal vocational expert, the majority asks why such an expert’s testimony should be dismissed for the refusal to provide the expert’s data when, in the absence of a request for the information, the testimony would be accepted.[24]The majority holds that the ALJ is free to draw the “adverse inference” that a refusal to turn over data suggests, making a bright line rule unnecessary.[25]Although the majority rejected Mr. Biestek’s proposed rule, they did hold out that there are occasions where an expert’s refusal to provide the data underlying their opinion would, considered in light of the whole record, would prevent the evidence from being considered substantial.[26]

IV. Dissents

Biestek v. Berryhillresulted in two dissenting opinions, one from Justice Sotomayor and one from Justice Gorsuch, joined by Justice Ginsberg. Justice Sotomayor wrote briefly, arguing the majority could properly reject Mr. Biestek’s rule while finding in his favor in his disability determination case.[27]Justice Sotomayor focused particularly on the ALJ’s role intervention in the petitioner’s cross-examination of the expert witness.[28]The ALJ, Justice Sotomayor noted, is tasked with fully developing the record, including the arguments for and against granting benefits, and by terminating the inquiry, the ALJ neglected that task.[29]

Justice Gorsuch’s dissent rested on other legal contexts in which the “substantial evidence” standard governs.[30]Among the kinds of evidence courts have ruled out as qualifying as “substantial,” Justice Gorsuch argues, is conclusory assertions offered by a party or expert.[31]While the majority was skeptical that an expert’s refusal to provide support for their analysis is an indicator of unreliability, Justice Gorsuch’s dissent argues that the inference is nearly a necessary one.[32]Finally, Justice Gorsuch criticizes the majority for failing to resolve the question presented in a way that provides guidance to lower courts.[33]

V. Analysis

In its hesitance to adopt a bright-line rule seemingly at odds with the expedient nature of administrative proceedings, the majority sacrifices other values citizens should expect of adjudications by their government. Regularity, openness, and fairness all suffer in a system where the government is permitted to rely on secret evidence. The majority contends that it is unnecessary to compel expert witnesses to produce the data or information on which they based their opinion because disability hearings are informal and non-adversarial.[34]But instructions to conduct these proceedings in a non-adversarial manner does not change the nature of the inquiry. There are two interested parties and the interests of those parties are frequently opposite.

The majority is likely correct in its belief that the majority of vocational exports hired by the Social Security Administration participate in disability hearings in good faith, providing evidence that is in fact based on expertise and existing data. Even so, a democratic government should not rely on a Star Chamber to render adjudications of its citizens rights with respect to any program, let alone one intended to ensure persons unable to work are not left completely bereft. 

Disability applicants must already contend with the arcane rules of the Social Security Administration’s processes and procedures. To require them further to succeed in a hearing in which the government is entitled to rely on the unsupported conclusions of an expert hired by the SSA in making its decision is a bizarre injustice. No person should be satisfied with a system in which the government can so easily escape its duties by simply refusing to allow them to access the evidence eon which the government has decided their case. 

VI. Conclusion

There is good reason to be leery of adopting sweeping rules; not all facts are susceptible to the same rules. But Mr. Biestek did not ask the Court to adopt a rule in all cases- only in those where an expert’s testimony formed the basis of the ALJ’s decision and the expert refused to provide the information on which they developed their testimony. Applicants are not entitled to a full civil trial in a disability determination proceeding, and such a system would be so cumbersome as to do more harm than good. But they are entitled to fairness, and should to the extent possible, be given sufficient procedural protection to make confidence in the fairness of the decision a realistic outcome. Unfortunately, the Court declined to provide that in Biestek.


[1]Biestek v. Berryhill, 880 F.3d 778, 782 (6th Cir. 2017).

[2]Id. at 782.

[3]Id. at 782.

[4]Id. at 782.

[5]Id. at 782.

[6]Id. at 782.

[7]Id. at 782.

[8]Id. at 782.

[9]See Biestek v. Berryhill, 139 S.Ct. 1148 (U.S. Apr. 1, 2019). 

[10]Id. at 1152.

[11]Biestek, 880 F.3d at 789 (6th Cir. 2017).

[12]Id. at 790.

[13]Id. at 790.

[14]Id. at 790 (citing Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002) and McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004).

[15]Id. at 790.

[16]Id. at 790 (quoting Donahue, 279 F.3d at 446 (7th Cir. 2002)).

[17]Id. at 790-791.

[18]Biestek, 139 S.Ct. 1148 (U.S. Apr. 1, 2019).

[19]Id. at 1154.

[20]Id. at 1153.

[21]Id. at 1154 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

[22]Id. at 1155.

[23]Id. at 1154.

[24]Id. at 1155.

[25]Id. at 1156.

[26]Id. at 1157.

[27]Id. at 1157.

[28]Id. at 1157.

[29]Id. at 1157-1158.

[30]Id. at 1159.

[31]Id. at 1159, citing Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

[32]Id. at 1160. “The refusal to supply readily available evidentiary support for a conclusion strongly suggests that the conclusion is, well, unsupported.”

[33]Id. at 1162. “The bad news is that we must wait to find out, leaving many people and courts in limbo in the meantime.”

[34]Id. at 1152.

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