November 12, 2019 Articles

Expert Witnesses and the Substantial Evidence Rule

The Supreme Court’s decision in Biestek v. Berryhill has implications for wider application that may make challenges to administrative agency decisions more difficult.

By David C. Kent

In a 6–3 opinion issued in April 2019, the Supreme Court of the United States addressed the meaning of “substantial evidence” as applied to expert witness testimony in administrative agency proceedings. Biestek v. Berryhill, No. 17-1184, 139 S. Ct. 1148 (Apr. 1, 2019). Although ostensibly a narrow holding, the decision has implications for wider application that may make challenges to agency decisions more difficult.

The Facts Were Relatively Straightforward

Michael Biestek, a former construction worker, applied for Social Security disability benefits, claiming he could not work due to physical and mental disabilities. At an administrative hearing, the government’s vocational expert witness testified that Biestek was suitable for and capable of performing sedentary, unskilled work such as the work of a bench assembler or sorter. The expert testified there were 240,000 and 120,000 such job positions, respectively, in the national economy.

When asked for the basis of those numbers, the expert said they came from her own confidential job surveys conducted on behalf of private clients, which she declined to disclose or produce. The administrative law judge rejected Biestek’s attorney’s request that the expert produce the job surveys, even in redacted form. Rather, the administrative law judge relied on the expert’s bare opinion testimony, which the judge said was entitled to “great weight,” in finding that Biestek was not disabled for a certain period.

The district court and the Sixth Circuit Court of Appeals affirmed the decision based on the “substantial evidence” rule. The rule is defined as “more than a mere scintilla” but only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, No. 17-1184, slip op. at 5–6.

The Supreme Court Weighs In

Writing for the majority, Justice Kagan framed the question before the Court as whether it should adopt a “categorical” rule that expert testimony could never constitute substantial evidence if the expert failed to supply supporting data when requested to do so. The Seventh Circuit had established such a rule years earlier, McKinnie v. Barnhart, 368 F.3d 907, 910–11 (7th Cir. 2004), but here the Sixth Circuit declined to follow that decision, choosing instead to side with the Second, Third, and Ninth Circuits in avoiding a per se rule. Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 790–91 (6th Cir. 2017). Justice Kagan pointedly noted that Biestek had not requested a review of whether, in the absence of such supporting data, the record otherwise satisfied the substantial evidence rule. Thus, the Court declined to engage in such a review. Biestek v. Berryhill, No. 17-1184, slip op. at 11.

Justice Gorsuch, joined by Justice Ginsburg, dissented, arguing in favor of the so-called “categorical” rule proposed by Biestek and arguing further that the record lacked substantial evidence. Justice Sotomayor separately dissented, agreeing to the deficiencies in the record but not supporting the call for a per se rule.

To justify its decision against imposing a per se rule, the majority posited two hypothetical cases in which the data supporting the expert’s testimony was not produced. In the first hypothetical, the expert did not produce the supporting data because the opposing party did not request it. In the second hypothetical, the opposing party did request the data, but the expert refused to produce it. The end result in both cases was the same: The supporting data was not revealed. The Court was not inclined to say the sufficiency of the expert’s testimony should turn on the reason why the supporting data was not disclosed, i.e., whether the opposing party had requested its production or not.

The dissent was not convinced, arguing that the prospect of an expert’s refusal to produce supporting data was such a blow to the expert’s credibility that it warranted a virtual dismissal of the testimony. Justice Gorsuch likened it to cases involving clearly mistaken testimony, falsified evidence, speculative evidence, or conclusory opinions, all of which amounted to no evidence at all. Biestek had complained that little substantiated the reliability of the expert’s testimony “other than her word.” Biestek v. Commr of Soc. Sec., 880 F.3d at 790. The dissent bluntly concluded, “for all anyone can tell [the expert’s job estimate numbers] may have come out of a hat.” Biestek v. Berryhill, No. 17-1184, slip op. at 3–4 (Gorsuch, J., dissenting).

Perhaps in response to the dissent’s complaint, the majority opinion appeared to rein in the scope of its holding, focusing on Biestek’s request for an absolute, “all or nothing” rule. The Court expressly noted that assessments of the sufficiency of the expert’s testimony should and necessarily would proceed on a case-by-case basis. Specifically, the Court emphasized considering “all features of the . . . expert’s testimony, as well as the rest of the administrative record.” Biestek v. Berryhill, No. 17-1184, slip op. at 11. Given these avowedly narrow confines of the Court’s ruling, the holding in many ways is unremarkable and may have limited ramifications.

Other Thoughts

Despite these limitations, not all are convinced. Professor Richard J. Pierce Jr. of the George Washington University Law School has expressed concern that it would be “easy” to interpret the majority opinion as “an invitation to allow agencies to rely on junk science in virtually all cases” by insulating experts from having to disclose the data on which they base their opinions and testimony. Richard J. Pierce Jr., Response, October Term 2018, “Is the Court Encouraging Agencies to Rely on Junk Science? Biestek v. Berryhill,” Geo. Wash. L. Rev., On the Docket, Apr. 23, 2019. Professor Pierce cites notorious examples of academic fraud and junk science that have caused major harm to society and been the sole basis for government agency decisions and policies with billions of dollars of consequence to the national economy. If taken to the extreme, Biestek indeed could be the source of mischief. All told, however, this seems unlikely. As noted above, existing case law from the Second, Third, and Ninth Circuits presaged the Biestek ruling, and it has not been criticized as a source of abusive agency decisions. Time will tell if the imprimatur of the Supreme Court will change that result.

David C. Kent is counsel with the Dallas, Texas, office of Drinker Biddle & Reath, LLP. Board-certified in both civil trial law and personal injury trial law by the Texas Board of Legal Specialization, he concentrates his practice on defending engineering companies involved in commercial and personal injury and wrongful death claims arising from major construction projects.

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