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Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security

Paid petition · United States Court of Appeals for the Sixth Circuit, No. 17-1459 · judgment December 27, 2017

Decided · April 1, 2019
Pre-decision estimate: 9% cert probability (95% interval 6%–14%)

Before the decision, about 2.2× the 4.1% base rate. The model weighted this up for a petition filed soon after the judgment below, a circuit split argued in the petition, and a Sixth Circuit decision below.

Question presented

When assessing an applicant's eligibility for social security benefits on the basis of a disability, an administrative law judge ("ALJ") must determine whether the applicant "can make an adjustment to other work." 20 C.F.R. § 404.1520(a)(4)(v). This determination must be supported by substantial evidence. See 42 U.S.C. § 405(g). In making the determination, an ALJ is authorized to call a vocational expert to testify about other work available to an applicant. See 20 C.F.R. § 404.1566(e). These assessments occur hundreds of thousands of times annually. The question presented is: Whether a vocational expert's testimony can constitute substantial evidence of "other work," 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant's request to provide the underlying data on which that testimony is premised.

Counsel of record

For petitioner
Ishan Kharshedji Bhabha
Jenner and Block LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 3 conferences

Amicus briefs
2 merits
(2 supporting pet./neither)

Argument & decision

Argued December 4, 2018 — Ishan Bhabha · Anthony A. Yang. Audio and transcript

Decided April 1, 2019. Opinion by Kagan.

Proceedings

  1. May 03 2019
    JUDGMENT ISSUED.
  2. Apr 01 2019
    Adjudged to be 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.
  3. Dec 04 2018
    Argued. For petitioner: Ishan Bhabha, Washington, D. C. For respondent: Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
  4. Nov 14 2018
    Reply of petitioner Michael J. Biestek filed. (Distributed)
  5. Oct 19 2018
    CIRCULATED
  6. Oct 15 2018
    Record received from the U.S.C.A. 6th Circuit.
  7. Oct 15 2018
    Brief of Nancy A. Berryhill, Deputy Commissioner for Operations, Social Security Administration not accepted for filing. (Revised brief submitted - 10/16/18)
  8. Oct 15 2018
    Brief of respondent Nancy A. Berryhill, Deputy Commissioner for Operations, Social Security Administration filed. (10/16/18)
  9. Oct 09 2018
    SET FOR ARGUMENT on Tuesday, December 4, 2018
  10. Oct 01 2018
    Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
  11. Sep 04 2018
    Brief amicus curiae of National Association of Disability Representatives filed.
  12. Sep 04 2018
    Brief amici curiae of National Organization of Social Security Claimants' Representatives, et al. filed.
  13. Aug 27 2018
    Brief of petitioner Michael J. Biestek filed.
  14. Aug 03 2018
    Blanket Consent filed by Petitioner, Michael J. Biestek
  15. Aug 03 2018
    Motion to dispense with printing the joint appendix filed by petitioner Michael J. Biestek.
  16. Jul 13 2018
    Joint motion for an extension of time to file the opening briefs on the merits filed.
  17. Jul 13 2018
    Joint motion to extend the time to file the opening briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 27, 2018. The time to file respondent's brief on the merits is extended to and including October 15, 2018.
  18. Jun 25 2018
    Petition GRANTED.
  19. Jun 25 2018
    As Rule 34.6 provides, “If the Court schedules briefing and oral argument in a case that was governed by Federal Rule of Civil Procedure 5.2(c) or Federal Rule of Criminal Procedure 49.1(c), the parties shall submit electronic versions of all prior and subsequent filings with this Court in the case, subject to [applicable] redaction rules.” Subsequent party and amicus filings in the case should now be submitted through the Court’s electronic filing system, with any necessary redactions.
  20. Jun 18 2018
    DISTRIBUTED for Conference of 6/21/2018.
  21. Jun 11 2018
    DISTRIBUTED for Conference of 6/14/2018.
  22. May 22 2018
    DISTRIBUTED for Conference of 6/7/2018.
  23. May 21 2018
    Reply of petitioner Michael J. Biestek filed.
  24. May 14 2018
    Brief of respondent Nancy A. Berryhill, Deputy Commissioner for Operations, Social Security Administration in opposition filed.
  25. Apr 20 2018
    Motion to extend the time to file a response from April 25, 2018 to May 14, 2018, submitted to The Clerk.
  26. Apr 20 2018
    Motion to extend the time to file a response is granted and the time is further extended to and including May 14, 2018.
  27. Mar 21 2018
    Motion to extend the time to file a response is granted and the time is extended to and including April 25, 2018.
  28. Mar 20 2018
    Motion to extend the time to file a response from March 26, 2018 to April 25, 2018, submitted to The Clerk.
  29. Feb 21 2018
    Petition for a writ of certiorari filed. (Response due March 26, 2018)
  30. Feb 21 2018
    Pursuant to Rule 34.6 and Paragraph 9 of the Guidelines for the Submission of Documents to the Supreme Court’s Electronic Filing System, filings in this case should be submitted in paper form only, and should not be submitted through the Court’s electronic filing system.