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  • Stephen Sloan

Biestek v. Berryhill Five Years Later: Good or Bad for Disability Claimants?

The Supreme Court decision of Biestek v. Berryhill found that a vocational expert’s refusal to provide the underlying private data during a Social Security disability benefits hearing does not categorically preclude the testimony from counting as “substantial evidence” in federal court. Multiple courts around the country have now had numerous opportunities to interpret and apply Biestek’s holding, but what has been the impact of this case? Has it helped or hurt disability claimants and their advocates?

In Biestek v. Berryhill, our client, a former construction worker, applied for social security disability benefits because he could no longer work due to physical and mental disabilities. Following a hearing, the Administrative Law Judge (ALJ) denied his benefit application. In doing so, the ALJ found that despite fairly extensive limitations, Mr. Biestek could perform a significant number of different jobs in the national economy at the sedentary level, specifically the occupations of final assembler of optical goods (DOT#713.687-018) and nut sorter (DOT#521.687-086). If these jobs sound archaic it is because they are. The Dictionary of Occupational Titles that classifies these jobs has not been updated in nearly thirty years, and these specific job titles have not been updated since 1977. Thus, the critical question in this case is: how did the ALJ conclude that these jobs constituted a significant number in the economy?

In Social Security hearings, the ALJ will often retain a vocational “expert” to provide opinion testimony, including their opinions about the number of jobs that exist for specific occupations. In Biestek, the vocational expert testified she reached her opinions based upon individual market surveys in her possession. So, on cross-examination, Mr. Daley asked to see the data. However, the VE refused, asserting that the data was confidential and the ALJ cut off Mr. Daley’s request to simply redact any confidential information and supply the surveys. Subsequently, the ALJ relied upon these job numbers despite their existence being based solely upon the unverifiable and unsupported word of the vocational expert. This was the issue that was in front of the Supreme Court.

The Supreme Court majority issued a narrow decision that explicitly declined to address whether substantial evidence supported the ALJ’s findings in this particular case, stating that “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.” Biestek, 139 S. Ct. at 1157. The dissenting opinions disagreed, with Justice Neil Gorsuch (joined by Justice Ruth Bader Ginsberg while Justice Sonia Sotamayor authoring a separate dissent) asking “But what more do we need to know about the facts of this case?” In fact, it is worth emphasizing that while the majority quite specifically declined to address the broader issue of what constitutes substantial evidence in the context of vocational expert testimony, the dissent did address this issue and found that such a case quite emphatically did not meet such the standard. Justice Gorsuch went on to observe that “If clearly mistaken evidence, fake evidence, speculative evidence, and conclusory evidence aren't substantial evidence, the evidence here shouldn't be either” but observing that “the good news is that the Court remains open to the possibility that in real-world cases like Mr. Biestek's, lower courts may—and even should—find the substantial evidence test unmet.” 

It is worth noting that some post-Biestek courts have cited Justice Gorsuch’s dissent when addressing the substantial evidence standard, even in other contexts. Specifically, courts have cited his observation that “clearly mistaken evidence, fake evidence, speculative evidence, and conclusory evidence” are not substantial evidence. E.g. Colgan v. Kijakazi, No. 20-3297, 2022 WL 18502, at *7 (2d Cir. Jan. 3, 2022). Or his statement that substantial evidence review that does not require evidence would leave disability applicants at “the mercy of a bureaucrat’s caprice.” E.g. Schofield v. Saul, 950 F.3d 315, 321 (5th Cir. 2020).

Contrary to the belief of many disability practitioners at the time of the decision and many arguments by the Administration since that time, the case is not bad news for Social Security disability claimants and their representatives if correctly understood and argued. Biestek does not stand for the proposition that the ALJ’s burden at Step Five is reduced or that vocational expert testimony is ipso facto reliable. 

Rather, both the majority opinion and the dissent should be a read as a call to action for Social Security representatives. In the majority decision, the Court states: “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.” Biestek, 139 S. Ct. at 1156. The Supreme Court also favorably cited the Seventh Circuit case of Chavez v. Berryhill, 895 F.3d 962, 969–970 (CA7 2018). In Chavez the court remanded after the representative objected to the VE’s job-number estimates and the VE was unable to provide a coherent explanation, stating “The transcript leaves us with the conviction that the VE mechanically relied on outdated sources to estimate job numbers, without bringing any aspect of his extensive experience to bear on the reality of those numbers. We are left with the possibility that the job-number estimates were “conjured out of whole cloth.” Id at 970. 

Advocates should pounce upon Biestek’s language and the fact that it cited favorably to Chavez because it provides both the authority and the roadmap for zealous cross-examination. Cases since Biestek illustrate how this decision can be effectively used by advocates in support of their continued cross examination as a result of the need to “probe the strength of testimony”. In the Seventh Circuit, Ruenger v. Kijakazi, No. 20-2598, 2022 WL 134748, at *2-3 (7th Cir. Jan. 14, 2022), stated that “in the context of job-number estimates, substantial evidence requires the ALJ to ensure that the vocational expert's estimate is the product of a reliable methodology.” Ruenger v. Kijakazi, 23 F.4th 760, 763 (7th Cir. 2022). The court cited Biestek in support of holding that “a methodology is reliable when it is based on ‘well-accepted’ sources and the vocational expert explains her methodology ‘cogently and thoroughly.’ Id citing Biestek, 139 S. Ct. at 1155. 

In Goode v. Comm'r of Soc. Sec., 966 F.3d 1277, 1283 (11th Cir. 2020), The 11th Circuit cited Gorsuch’s dissent and observed that “The fact that vocational expert testimony is admissible does not necessarily mean that it constitutes substantial evidence.” See Biestek, 139 S. Ct. at 1162 (Gorsuch, J., dissenting) (“Some courts have ... 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.”).

Conversely, in the 9th Circuit Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020), criticized the fact that claimant did not “not argue that the expert lacked the necessary qualifications, that his testimony was untrustworthy, or that the testimony was contradicted by other evidence in the record”. Id. However, this case does not suggest that representatives should simply give up on Step Five cross-examination, but rather err by not doing so.


Ultimately, the answer to the question of whether the Biestek decision was good for disability claimants and advocates is dependent on whether disability representatives fulfill their duty to zealously advocate on behalf of their clients. The lesson that we, as attorneys and representatives, should take from Biestek is to persist and improve our challenges to the outdated nature of the DOT, the lack of reliable data sources, and the lack of coherent explanations from VEs of questionable qualifications, not to give up on them.

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