Biestek v. Berryhill (17-1184)

argument 17-1184

Biestek v. Berryhill

Supreme Court of the United States 59 min 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the Supreme Court’s definition of “substantial evidence” for vocational expert testimony?

John G. Roberts 0:00

We'll hear argument first this morning in case 17-11-84, Vistek v. Berryhill. Mr. Bhabha.

Naveen Bobbitt 0:07

Thank you, Mr. Chief Justice, and may it please the Court. When a vocational expert testifies about the existence of a specific number of jobs in a specific location at a specific time, that testimony can only be based on statistical, data-driven sources. And when the expert refuses upon request to provide those sources, the expert's testimony standing alone cannot constitute substantial evidence for three reasons. First, this Court's definition of the term substantial evidence and its application of that term in reviewing the decisions of administrative tribunals. Second, because the government's arguments as to why the expert's testimony standing alone is sufficient are unpersuasive. And third, because this is the rule that has worked since 2002 in the Seventh Circuit and indeed is consistent with the government's own policy as encapsulated in the Social Security Administration's Vocational Expert Handbook.

Unknown 0:58

The counsel for the claimant asked for the source material but then didn't engage in any cross-examination of the witness, of the expert witness.

Naveen Bobbitt 1:15

Your Honor, as a factual matter, after being denied the material, he did engage in some cross-examination that appears in the record. But I think critical, Your Honor, is that without the material itself, any meaningful cross-examination regarding the expert's methodology, the provenance of the expert's labor market surveys was impossible. And I would note that it would be a rare case when you would be asked to cross-examine a statistical expert who is opining upon specific numbers that the expert has then modified through calculations without actually seeing the data sources itself. I think this Court's decision in Florida, Power and Light, is an important precedent in this respect because there the Court noted

Naveen Bobbitt 1:57

that the testimony, the well-founded testimony of an expert may be enough if first-hand information is unavailable. And here, particularly because there were two sources the expert relied upon, the Bureau of Labor Statistics data, which was public, but then also her private labor market surveys, which the ALJ never saw and we never saw, that made any form of cross-examination or meaningful inquiry into the basis for these numbers impossible. What I

Samuel A. Alito 2:23

don't understand about your argument is how it connects with the substantial evidence question. Substantial evidence refers to a quantum of proof, and it's hard for me to see why that inquiry is different depending on whether the underlying information in question was requested or not. The argument that you're making sounds like a procedural question, a due process question, whether it was requested unfair not to require the expert to produce the underlying data. Can you just explain how the procedural question that seems to be at the core of what you're arguing fits in with the substantial evidence test?

Naveen Bobbitt 3:12

Of course, Your Honor. So I think we have two answers to that question. First and foremost, we are not asking for the document-on-demand procedural rule that the government characterizes us The government who bears the burden at step five is choosing in these cases to only rely on the testimony of a vocational expert. Now, the government has as its availability to enter other evidence into the record as well. If the government chose to submit its own labor market surveys, we would not say and are not saying that there's a standalone constitutional violation because the vocational expert didn't give her surveys.

Samuel A. Alito 3:43

Well, I know you're not saying that, but you have a quantum of evidence. It's substantial or it's not substantial. Explain, if you can, why the issue of substantiality depends on whether the evidence was asked for or not.

Naveen Bobbitt 3:58

Your Honor, I think it flows from the basic intuition that when you question an expert about data, if the expert cannot then back up their testimony, that creates doubt. And although I don't think it's an exact match, I think a useful analogy are the adverse inference cases, which this Court has recognized when a party or a witness says,