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Sample Briefs | |
District
Court Litigation of Social Security Claims
November
6, 2003 NOSSCR Conference
Chicago,
Illinois
[Last
updated November 5, 2003]
©Eric
Schnaufer
I.
Introduction and Caveats
This
article describes how to litigate successfully in a district court the
Commissioner’s denial of an individual’s claim for Social Security benefits
and Supplemental Security Income. While
I advocate below specific styles and approaches to litigation, a multiplicity of
styles and approaches are successful.
Plaintiffs
generally are allowed to file two documents addressing the merits of a Social
Security case: a main merits brief and a merits reply brief.
Plaintiffs win weak cases without filing any merits brief at all, and
plaintiffs lose strong cases despite filing ideal briefs.
Whether a plaintiff wins or loses depends on much more than the
plaintiff’s merits brief. But a
merits brief is one of the few things in Social Security litigation that a
plaintiff controls.
Each
jurisdiction, and sometimes even each judge or magistrate judge, has unique
requirements for merits briefing. Obviously,
any local rule or order in a particular case governs how a merits brief in that
case should be written.
II.
Sample Briefs Online
Sample
briefs are available at http://www.schnaufer.com/ChicagoCLE. These briefs are from various jurisdictions addressing common
substantial-evidence issues and showing how each case is unique.
III.
Litigation Represents Failure
Litigation over Social Security benefits represents failure—the failure
to win the claim during the administrative proceedings.
Therefore, when a plaintiff drafts a merits brief, the plaintiff should
critique the prior work on the claim during the administrative proceedings.
The transcript of the administrative hearing may show, e.g., that the
vocational expert was not asked a crucial question about transferable skills.
The medical evidence may show, e.g., that the treating physician was not
asked the dispositive question about the claimant’s ability to stoop.
The goal of litigation is not just to win the particular case, but to
learn how to avoid future litigation by winning cases during the administrative
process.
The
best possible advice on litigating Social Security cases is to avoid litigation
entirely by winning the case at the administrative level.
Winning the case at the administrative level is beyond the scope of this
article. For remarks on advocacy
before the Appeals Council, see http://www.schnaufer.com/AppealsCouncil.htm.
IV.
www.uscourts.gov and PACER
The
Internet site http://www.uscourts.gov/ links to the local rules of the district
courts. It is important to visit the web site for the district
court in which you litigate. You
should make a habit of visiting the site both before filing a complaint and at
regular intervals after the filing.
Individual
case dockets for district courts are available on the Internet for a small fee
from PACER (Public Access to Court Electronic Records).
See http://www.pacer.uscourts.gov/. The PACER docket for each district court case should be
checked periodically, e.g., every thirty days, depending on the status of the
case.
V.
The Complaint
Complaints
in Social Security cases have few formal requirements in part because pro se
litigants regularly file them. Some
local rules recommend using a standard form complaint.
A plaintiff should nonetheless draft a relatively detailed complaint.
The
Supreme Court has emphasized the importance of the plain language of 42 U.S.C.
§ 405(g). See Shalala v.
Schaefer, 509 U.S. 292 (1993); Melkonyan v. Sullivan, 501 U.S. 89
(1991). Therefore, a complaint
should follow the plain language of § 405(g).
A
complaint should vary depending on Circuit law regarding the treatment of
Appeals Council evidence. If under
the relevant Circuit law, evidence submitted to the Appeals Council is evaluated
under sentence six of 42 U.S.C. § 405(g), then the complaint should reflect
this. If, instead, evidence
submitted to the Appeals Council is evaluated along with evidence submitted to
the ALJ, the complaint should reflect that law.
The
minority view is that Appeals Council evidence is evaluated under sentence six
of 42 U.S.C. § 405(g). See Matthews
v. Apfel, 239 F.3d 589 (3d Cir. 2001); Falge v. Apfel, 150 F.3d 1320,
1323-24 (11th Cir. 1998); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir.
1993). More Circuits consider
evidence submitted to the Appeals Council along with evidence submitted to an
ALJ when determining whether substantial evidence supports the ALJ’s decision.
Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (following Ramirez
v. Shalala, 8 F.3d 1449, 1451-54 (9th Cir. 1993)); Perez v. Chater,
77 F.3d 41, 45 (2d Cir. 1996); O'Dell v. Shalala, 44 F.3d 855, 859 (10th
Cir. 1994); Nelson v. Sullivan, 966 F.2d, 363,366 (8th Cir. 1992); Wilkins
v. Secretary, Dep’t of Health and Human Servs., 953 F.2d 93, 96 (4th Cir.
1991). Several other Circuits, while not looking to Appeals Council
evidence when evaluating whether substantial evidence supports the ALJ’s
decision, allow a direct attack on the Appeals Council’s denial of review when
additional evidence is submitted to the Appeals Council.
See Mills v. Apfel, 244 F.3d 1, 3-7 (1st Cir. 2001)
(reviewing the Appeals Council’s denial of review for abuse of discretion); Eads
v. Secretary of Dep't of Health and Human Servs., 983 F.2d 815, 816-17 (7th
Cir. 1993) (reviewing the Appeals Council’s denial of review for legal error);
but cf. Damato v. Sullivan, 945 F.2d 982, 989 (7th Cir. 1991)
(Appeals Council’s denial of review is unreviewable).
The Fifth Circuit has discussed in dictum Appeals Council evidence.
See Masterson v. Barnhart, 309 F.3d 267, 273 n.3 (5th Cir.
2002).
Several
sample complaints are at http://www.schnaufer.com/complaints.htm.
VI.
Plaintiff’s Main Merits Brief
A.
Statement of Facts
1.
Master the Evidence
By
writing the statement of facts, a plaintiff masters the evidentiary record. There is no better way to become familiar with a case than by
writing a statement of facts. Likewise,
the only way to determine that the ALJ was wrong about the facts is to know
those facts yourself.
2.
Establish Credibility Through Objectivity
Through
a statement of facts, a plaintiff has the opportunity to establish credibility
with the court. A statement of
facts should be unflinchingly objective, including the good, the bad, and the
ugly and, especially, including all or nearly all of the facts the ALJ cited as
showing that the claimant was not disabled.
If a plaintiff’s statement of facts does not include the facts the ALJ
cited when denying benefits, a court cannot use the plaintiff’s statement as a
road map through the administrative record.
The court will have to look somewhere else besides the plaintiff’s
statement of facts for the facts—either to the administrative record or the
Commissioner’s statement of facts. In
either case, the plaintiff has lost the desired audience.
Litigation
is, in essence, adversarial. But to
be a better advocate, minimize advocacy or contain explicit advocacy to a narrow
domain. If a brief is argumentative
from beginning to end, it serves one purpose—presenting the litigant’s case.
But a litigant should do more than present his or her case; the litigant
should try to do much of the groundwork for the court.
It is important to both anticipate what the court needs and to provide it
unprompted.
3.
Organize the Facts According to the Argument
A
plaintiff organizes the facts for the argument section of the brief in the
statement of facts. Here it is
critical to make legal distinctions. For
example, depending on the Circuit, a plaintiff should not mix facts submitted to
the Appeals Council with facts submitted to the ALJ.
Neither, as a related matter, should facts provided as the basis for
remand under sentence six of 42 U.S.C. § 405(g) be mixed with facts relevant to
judicial relief under sentence four of § 405(g). A plaintiff does not want to force a court to sort through
the evidence according to whether it is Appeals Council or ALJ evidence.
Do the work for the court.
Depending
on the facts of a case, the statement of facts, may be organized by type of
evidence and/or the date of the evidence. If
there is an expired date last insured, categorize the medical evidence according
to whether it originated from before or after the claimant’s date last
insured. If the plaintiff does not
categorize the evidence in this fashion, either the Commissioner or the court
may do so. And if there is little
evidence from before the claimant’s date last insured, be sure that the court
hears that fact first from the plaintiff. In
Social Security litigation, a plaintiff cannot hide the ball.
Obviously
there are many possible ways to organize evidence in anticipation of the
argument, and the arrangement is dependent on each individual case. The main thing is to remain flexible. The way that the statement of facts organized the evidence in
your last brief is probably not how the statement of facts should organize the
evidence in your next brief.
4.
Describe Symptoms as Hard Facts
A
statement of facts may strive to be objective not only in terms of being
neutral, but also in terms of rhetorically presenting complaints and symptoms as
hard factual kernels. Symptoms are
subjective; signs are objective. But
this does not mean that symptoms must sound subjective in a statement of facts.
If possible, find a way to convey the information about subjective
symptoms as though the information were about objectives signs.
For example, claimants do not “complain” of pain; they “report”
pain or “have” pain.
B.
Argument
1.
Use an Outline
Both
the argument section of the brief and the brief as a whole should follow a
standard outline form. Ideally,
after merely skimming the outline of the argument section of a brief, a court
will know all the key errors the plaintiff alleges as well as why the court
should provide relief.
Additionally,
the outline is critical for drafting the plaintiff’s reply brief.
The outline provides a natural checklist from which to evaluate the
Commissioner’s response to the plaintiff’s main merits brief.
If through the outline the plaintiff clearly communicates distinct
arguments, the plaintiff can later argue convincingly that the Commissioner
failed to respond to distinct arguments.
It
should be rare that an outline of an argument section of one brief is the same
as another brief. Instead, the
outline should reflect the particular issues and facts of an individual case.
Every outline of the argument section should be unique.
2.
Identify Key Findings
At issue on judicial review are the ALJ’s findings. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(a).
As a fundamental task on judicial review, a plaintiff must describe the
ALJ’s decision in the context of the five-step or eight-step sequential
evaluation. 20 C.F.R. § 404.1520
(2003) (five-step sequential evaluation); 20 C.F.R. § 404.1594 (2003)
(eight-step sequential evaluation for continuing disability reviews and closed
periods). Moreover, when describing
the basis for the ALJ’s decision in the context of the sequential evaluation,
determine whether in fact the ALJ’s findings are adequate for judicial review.
For example, if the ALJ did not make a residual functional capacity
finding and if the ALJ found that the claimant was not disabled at step four,
the ALJ’s decision is probably unreviewable.
A plaintiff cannot show that substantial evidence does not support a
finding the ALJ never made. Even
so, with almost any argument that the ALJ’s decision does not include findings
adequate for judicial review, provide an alternative argument that substantial
evidence does not support the ALJ’s findings if in fact those findings are
reviewable. Thus, as in the example
above, argue that substantial evidence does not support any implicit finding
that the plaintiff had the residual functional capacity sufficient to perform
his or her past relevant work. It
is vital to anticipate the Commissioner’s response that a particular finding
is not inadequate for judicial review and that substantial evidence supports
that finding.
3.
Use Boilerplate in Narrow Circumstances
Boilerplate is a recitation of legal authority detached from the facts of
any particular case. The most
common boilerplate reiterates the substantial-evidence standard of judicial
review and its general application. Minimize
boilerplate when possible. The more
boilerplate in a plaintiff’s brief, the more a court’s eyes glaze over.
For the same reason that a string citation is often superfluous, extended
boilerplate about well-known issues is superfluous.
In many cases, simply citing the statutory standard of judicial review,
see 42 U.S.C. § 405(g), and a single case, e.g., Richardson v. Perales,
402 U.S. 389, 401 (1971), is all that is needed to orient the court with respect
to the substantial-evidence standard of review.
The court is likely very well aware of the standard of judicial review.
4.
Identify Factual Errors
A
reader may expect remarks about litigation of Social Security claims to address
significant case law developments or trends.
The most important trend for plaintiffs is not legal, but factual.
ALJs continue to get the facts wrong.
Until ALJs stop making factual mistakes, winning district court briefs
can be written without reliance on any law.
In
a typical decision, an ALJ will make many factual assertions.
Test the truth of each of the ALJ’s factual assertions by reviewing the
actual administrative record. Assume
that what the ALJ says is false, but do not allege a factual error unless there
actually is a significant factual error. The goal is to create an inventory of the ALJ’s significant
factual mistakes. On judicial
review a plaintiff does not want to boast about having found a factual error
only to have the court determine that there was none.
To
establish a factual error, a plaintiff should precisely quote the ALJ or
summarize the ALJ’s statements and then contrast the quote or summary with the
evidentiary record that says something else.
Obviously, for this argumentation, no legal authority is needed.
Understand
that in most courts the benefit of the doubt goes to the ALJ, not the claimant.
Therefore, a plaintiff should not assume that a court is sympathetic, but
should prove that the ALJ made factual errors and that those errors were
harmful.
5.
Identify Factual Omissions
Evidence
that an ALJ does not mention is important and often more important than the
evidence that the ALJ addresses. No
ALJ can mention every fact. Necessarily,
each ALJ decision is a selective review of the evidence. A main task is to ascertain what the ALJ neglected either
intentionally or unintentionally.
ALJs
use two main techniques to deal with evidence that favors disability: ignoring
it or addressing it. A plaintiff
should generally prefer that an ALJ does not address the important evidence
favoring disability for in this case a court is less likely to defer to the
ALJ’s weighing of the evidence. Deferential
substantial-evidence review is predicated on the ALJ actually having weighed
important evidence supporting and detracting from a finding of disability.
“The substantiality of evidence must take into account whatever in the
record fairly detracts from its weight.”
Universal Camera Corp. v. NLRB., 340 U.S. 474, 488 (1951).
There
are four main sources of legal authority requiring an ALJ to address important
evidence: general administrative law, Social Security cases, Social Security
regulations, and Social Security Rulings.
As
a matter of general administrative law, an ALJ must address important evidence.
See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mutual
Automobile Ins. Co., 463 U.S. 29, 43 (1983).
Many Social Security cases require consideration of important evidence.
See, e.g., Groves v. Apfel, 148 F.3d 809, 811 (7th Cir.
1998). Several regulations include
articulation requirements. See,
e.g., 20 C.F.R. § 404.1527(d)(2) (2003) (“We will always give good
reasons in our notice . . . decision for the weight we give your treating
source's opinion.”). So do many
SSRs. See, e.g., SSR 96-8p
(requiring a “thorough” evaluation of the evidence); SSR 96-6p (requiring
express consideration of the determinations of non-examining state-agency
sources).
Generally,
a plaintiff should not rely on just one source of legal authority when arguing
that an ALJ did not grapple with important evidence.
Argue instead that the ALJ’s failure to evaluate important evidence
violated not only longstanding Circuit authority but also the agency’s
regulations and rulings. If the
Commissioner denies that the ALJ was required to grapple with important
evidence, the Commissioner typically disputes a plaintiff’s reliance on only
one source legal authority, leaving uncontested the plaintiff’s contention
that the ALJ violated one or two other sources of legal authority.
Relying
on multiple sources of law is important because the Commissioner may neglect to
address all sources upon which a plaintiff relies.
Further, a court may be reluctant to enforce one or more sources of legal
authority. For example, even though
SSRs are binding by regulation, see 20 C.F.R. § 402.35 (2003), a court
may implicitly consider too demanding an articulation requirement in an SSR such
as SSR 96-8p’s requirement for a “thorough” evaluation of the evidence.
6.
Identify the ALJ’s Reasoning
ALJ
decisions contain surprisingly little reasoning.
Most of an ALJ’s decision is composed of boilerplate, procedural
history, factual summary, and formal findings.
These sections are obviously much easier to write than a rationale.
Identify
each paragraph in an ALJ decision that actually contains a rationale.
Identify the rationale. Without
regard to any legal reasoning, is what the ALJ says sensible?
Typically, at least part of the ALJ’s rationale is deficient. It is easy to infer how irrationality infects ALJ decisions.
An ALJ’s decision-writer has the responsibility to write a decision to
support a certain result. Typically,
the decision-writer will put too much evidence in the non-disability column.
Thankfully for plaintiffs on judicial review, ALJs generally do not write
decisions that are balanced. ALJs
overreach and, in that overreaching, leave reason and fairness behind.
7.
Identify Medical Judgments
An
ALJ’s decision often is based expressly or implicitly on the ALJ’s lay
judgment about medical facts. In
specific circumstances, such judgments may be improper.
See, e.g., Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999) (“In addition, an ALJ is not free to employ her own expertise against
that of a physician who presents competent medical evidence.”); Nguyen v.
Chater, 172 F.3d 31 (1st Cir. 1999) ("As a lay person, however, the ALJ
was simply not qualified to interpret raw medical data in functional terms and
no medical opinion supported the determination."); Schmidt v. Sullivan,
914 F.2d 117, 118 (7th Cir.1990) (“But judges, including administrative law
judges of the Social Security Administration, must be careful not to succumb to
the temptation to play doctor.”).
To
a certain degree, ALJs must have the authority to evaluate medical facts.
It cannot be true that ALJs are prohibited completely from interpreting
and evaluating medical evidence. An
ALJ, after all, is charged with the task of determining a claimant's residual
functional capacity. 20 C.F.R. §
404.1546 (2003). Therefore, from
legal and logical standpoints, it is generally weak to argue that the ALJ’s
residual functional capacity finding was improper because no medical opinion
directly supports the ALJ’s residual functional capacity finding.
There is no requirement that a particular medical opinion directly
support an ALJ’s residual functional capacity finding.
An ALJ’s residual functional capacity finding may be more restrictive
or even less restrictive than all the medical opinions in the administrative
record. The particular facts are
important, and close argument to the facts is desired.
The more general the legal objection to an ALJ making a factual finding,
the easier it is for the Commissioner to rebut.
When
arguing that an ALJ made an impermissible medical judgment, focus on the
important medical facts where the ALJ’s medical judgment does not seem
intuitively rational. Consider, for
example, an ALJ’s rationale that a minimal medical finding of some sort does
not establish moderate or severe limitations or symptoms.
Although it is true that the ALJ’s rationale involves a medical
judgment, the ALJ’s rationale sounds sensible.
Thus, a plaintiff should offer law, medical evidence, or medical opinions
to prove that the ALJ’s rationale is unreasonable.
Simply asserting that the ALJ’s rationale involved a medical judgment
may elicit a yawn from the court.
8.
Look for Objective Evidence
When
at issue is an impairment for which arguably subjective symptoms play a key
role—e.g., chronic fatigue syndrome or mental impairments—do not give up the
store. By this I mean, hesitate
before making the medico-legal argument that the impairment is characterized by
“subjective” complaints. If a
plaintiff states that his or her claim is based largely on subjective symptoms,
the claimant has given up the store. Stop
before arguing that the ALJ improperly rejected the claimant’s subjective
complaints because they were subjective. Look
for the stronger argument that the ALJ improperly rejected facts as subjective
when they were objective as a matter of law.
Thus, for example, with mental impairments, emphasize that observations
of mood and affect are signs, not symptoms.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A, § 12.00(B) (2003).
As a matter of regulation, medical evidence of mental illness may be
objective. An ALJ who claims that
mental impairments are wholly subjective makes a legal error.
As a related matter, symptoms are not always symptoms.
Under footnote 2 of SSR 96-4p, symptoms may be signs.
9.
Identify Inconsistencies
Social
Security Ruling SSR 96-7p emphasizes that one of the main tasks of an ALJ
denying benefits is to identify inconsistencies.
SSR 96-7p. Consistent with
that ruling, ALJs search for inconsistencies in a claimant’s statements.
Some ALJs try overtly during administrative hearings to impeach
claimants. Other ALJs quietly take
notes which will later be used as justification of a denial of benefits.
Turn the table on an ALJ. Just
as the ALJ is looking for inconsistencies to legitimate a denial, a plaintiff
should look for inconsistencies in the ALJ’s decision to obtain judicial
relief. See, e.g., Peterson
v. Chater, 96 F.3d 1015, 1016 (7th Cir. 1996) (“The two findings are
irreconcilable, requiring a remand to the agency for new findings.”); Adorno
v. Shalala, 40 F.3d 43, 44 (3d Cir. 1994) (“Because the findings of fact
on which the [ALJ] based its decision are logically inconsistent and
contradictory, we will . . . remand
for further proceedings consistent with this opinion.”).
Inconsistencies
may be found in any part of an ALJ’s decision.
Look everywhere for inconsistencies, including between the hypothetical
question upon which the ALJ relied and the ALJ’s determination of the
claimant’s residual functional capacity and vocational profile (age,
education, and work experience). Of
course, if the ALJ’s hypothetical question is more restrictive than the
ALJ’s residual functional capacity finding or vocational findings, the
inconsistency is probably harmless error. But
even if the ALJ’s residual functional capacity finding or a vocational finding
is more restrictive than the ALJ’s hypothetical question, a court may affirm
the ALJ’s decision. The court,
along with the Commissioner’s help, will look for a way to conclude that the
inaccuracy of the ALJ’s hypothetical question is either a harmless error or
none at all. Therefore, consider
addressing at the outset why any identified inconsistency is harmful or be
prepared to address in a reply brief whether the inconsistency is harmless
error.
10.
Challenge Alternative Findings
Plaintiffs
should avoid the trap of attacking only some of the ALJ’s formal findings when
the ALJ made either express or implied alternative findings. E.g., Milton v. Harris, 616 F.2d 968, 973 (7th
Cir. 1980) (“Such alternative rulings are indisputably proper”).
For example, if an ALJ found that the claimant could do a limited range
of light work without a sit/stand option and the ALJ relied on vocational-expert
testimony to support a step-five denial, the ALJ’s failure to find formally
that the claimant needed a sit/stand option is potentially harmless error.
Even given such a finding, the plaintiff may be able to do all the jobs
the vocational expert identified. Thus,
beware of alternative findings buried in the text of the ALJ’s decision or
implicit alternative findings discernable through a reconstruction of the
vocational expert’s testimony. A
court may affirm based on a defensible explicit or implicit alternative finding.
11.
Turn Down the Volume
A federal court brief is not an opportunity to rant, rave, exaggerate, or
lie. Very few ALJ decisions are
“absurd.” Even if a decision
were absurd, there should be a more persuasive and less inflammatory way to
convey the same point. Plaintiffs
commonly allege that “no” evidence supports a finding or that “all” the
evidence supports another finding. These
allegations are typically demonstrably false.
Only after very careful review of the administrative record should a
plaintiff ever allege that “no” evidence or “all” evidence supports a
certain finding.
12.
Recharacterize Each Argument
Virtually
all arguments may be recharacterized and should be recharacterized. Almost all significant arguments should be expressed in at
least two ways. For example, a
plaintiff may argue that substantial evidence does not support an ALJ’s
finding that she could lift twenty pounds.
This argument may be recharacterized as an argument that the ALJ did not
provide “good reasons” under the regulations to reject a treating
physician’s opinion that the plaintiff could lift only ten pounds.
See 20 C.F.R. § 404.1527(d)(2) (2003). A plaintiff should not worry about classifying a particular
argument as a legal error or an evidentiary error.
Instead, the plaintiff should demonstrate that the argument is based on
both kinds of error. It should be
quite ordinary for a plaintiff to present three or more independent arguments of
why a court should not ratify a particular finding.
13.
Carefully Use Appeals Council Evidence
Either
an ALJ or the Appeals Council may issue the final administrative decision of the
Commissioner. When an ALJ renders a
decision after which the Appeals Council denies the claimant’s request for
review, the ALJ’s decision stands as the final decision of the Commissioner.
Because a claimant is permitted to submit additional evidence to the
Appeals Council with a request for review, there is a recurrent legal issue
regarding such Appeals Council evidence when the Appeals Council denies a
claimant’s request for review.
When
the Circuit law is murky about the treatment of Appeals Council evidence, a
claimant may be in hand-to-hand combat about how the evidence should be
evaluated. That conflict may be a
distraction from the central arguments addressing the merits of the ALJ’s
decision. A claimant should
therefore consider not relying on Appeals Council evidence.
If
Circuit law prohibits reliance on Appeals Council evidence when arguing that
substantial evidence does not support the ALJ’s decision, respect that law
carefully. A plaintiff pitches a
softball when the plaintiff mixes Appeals Council evidence with ALJ evidence in
the statement of facts or argument. When
the two types of evidence are mixed in the statement of facts or argument, the
Commissioner can cast doubt over the plaintiff’s entire brief and raise the
issue of whether the plaintiff is familiar with controlling precedent regarding
Appeals Council evidence and 42 U.S.C. § 405(g).
Resist the temptation to address casually Appeals Council evidence.
Unless
an argument about Appeals Council evidence is the only argument or clearly the
best argument, do not lead with it.
C.
Request for Relief
1.
Follow 42 U.S.C. § 405(g)
At
the close of the plaintiff’s main brief, the plaintiff should state precisely
the relief requested. A plaintiff
may obtain relief under sentence four or sentence six of 42 U.S.C. § 405(g).
Under § 405(g), the plaintiff should never request a “remand.”
There is no such thing as a generic “remand.”
If a plaintiff seeks a remand under sentence six of § 405(g), the
plaintiff should expressly ask for a “remand under sentence six of 42 U.S.C.
§ 405(g).”
In
contrast to sentence six, sentence four of § 405(g) provides, “The court
shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” Thus, there are two types of reversal under sentence four:
reversal without and reversal with a remand for a rehearing.
Id. A sentence-four
reversal is a “substantive ruling as to the correctness” of the
Commissioner’s administrative decision. Melkonyan
v. Sullivan, 501 U.S. 89, 98 (1991). A
sentence-four reversal without a remand for a rehearing is a reversal with a
finding of disability. This is
sometimes called an “award” or
“payment” of benefits. This
terminology is imprecise because when SSI is involved, a reversal without a
remand for a rehearing does not establish entitlement to SSI, but only that the
claimant was disabled for the purpose of SSI.
See Willis v. Sullivan, 931 F.2d 390, 398-99 (6th Cir.
1991). A sentence-four reversal
with a remand for a rehearing is a reversal of the Commissioner’s final
decision with a remand for further administrative proceedings.
Additionally, whether the plaintiff seeks a sentence-four reversal with
or without a remand for a rehearing, the plaintiff also seeks entry of judgment
reversing the Commissioner’s final decision with or without a remand for a
rehearing. 42 U.S.C. § 405(g)
(sentence four).
I
discourage requesting as relief a “sentence-four remand” as shorthand for a
judgment entered under sentence four of 42 U.S.C. § 405(g), reversing the
Commissioner’s final decision with a remand for a rehearing.
If a plaintiff seeks as relief for substantive error in the ALJ’s
decision further administrative proceedings, a plaintiff should request entry of
judgment reversing the Commissioner’s final decision with a remand for a
rehearing. 42 U.S.C. § 405(g)
(sentence four).
If
a plaintiff seeks relief under sentence four and sentence six of § 405(g), the
plaintiff should specify which is the primary relief and which is the
alternative relief. But see Jackson
v. Chater, 99 F.3d 1086, 1094-96 (11th Cir. 1996) (court may provide relief
under both sentences four and sentence six of § 405(g)).
In most instances, relief under sentence four is preferred to relief
under sentence six for practical considerations.
Relief under sentence four is less difficult to obtain, and attorney fees
under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), are available soon
after a judgment of reversal under sentence four.
Shalala v. Schaefer, 509 U.S. 292 (1993).
2.
Apply the Relevant Test
If the plaintiff seeks reversal of the Commissioner’s final decision
without a remand for a rehearing, i.e., for a finding of disability and an award
of benefits, the plaintiff should first set forth the test in the relevant
Circuit for holding a claimant disabled on the existing record and second apply
that test. See, e.g., McCartey
v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002) (describing Ninth
Circuit’s test).
D.
Attachments
Apart from the requirements of any particular judge or local rule,
consider attaching to the merits brief any subregulatory guidance such as an
SSR, the POMS, or the HALLEX. The
plaintiff should try to minimize the amount of time a judge or magistrate judge
needs to decide the merits of a case.
VII.
Plaintiff’s Reply Brief
A.
Identify Post Hoc Rationalizations
A
reply brief should be filed in almost every case if for no other reason than to
identify and rebut the Commissioner’s improper post hoc rationalizations.
See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (holding
that post hoc rationalizations are improper); SEC v. Chenery Corp., 332
U.S. 194, 196 (1947) (same); see also Albertson's Inc. v. NLRB,
301 F.3d 441, 453 (6th Cir. 2002) (“A reviewing court . . . must judge the
propriety of [the actions of an administrative agency] solely on the grounds
invoked by the agency.”) (internal quotation marks and citation omitted); Steele
v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (“But regardless whether
there is enough evidence in the record to support the ALJ's decision, principles
of administrative law require the ALJ to rationally articulate the grounds for
her decision and confine our review to the reasons supplied by the ALJ.”); Banks
v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001) (“Our review of the ALJ's
decision, in which he analyzed each of Banks' alleged disabilities, reveals that
the ALJ did in fact make the factual findings necessary for the district court's
alternative holding. Thus, the
general limitation on a reviewing court's ability to use reasons not utilized by
the agency is not applicable to this case.”); Pinto v. Massanari, 249
F.3d 840, 847-48 (9th Cir. 2001) (“Thus, if the Commissioner's contention
invites this Court to affirm the denial of benefits on a ground not invoked by
the Commissioner in denying the benefits originally, then we must decline.”); Fargnoli
v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (“The District Court,
apparently recognizing the ALJ's failure to consider all of the relevant and
probative evidence, attempted to rectify this error by relying on medical
records found in its own independent analysis, and which were not mentioned by
the ALJ. This runs counter to the
teaching of SEC v. Chenery Corporation”); Newton v. Apfel, 209
F.3d 448, 455 (5th Cir. 2000) (“The ALJ's decision must stand or fall with the
reasons set forth in the ALJ's decision, as adopted by the Appeals Council.”);
Maine Gen. Med. Ctr. v. Shalala,
205 F.3d 493, 501 (1st Cir. 2000) (“Courts are generally not permitted to
affirm agency action on grounds implicating the agency's policy judgments or
discretion other than those advanced by the agency whose actions are under
review.”); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (“A
reviewing court may not accept appellate counsel's post hoc rationalizations for
agency action.”) (internal quotation marks and citation omitted); Reyes v.
Bowen, 845 F.2d 242, 244 (10th Cir. 1988) (“Furthermore, it is well
settled that administrative agencies must give reasons for their decisions.”);
Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (“We decline,
however, to affirm simply because some rationale might have supported the ALJ's
conclusion. Such an approach would
not advance the ends of reasoned decision making.”) (footnote omitted).
B.
Identify Uncontested Arguments
Often
the Commissioner’s best defense of an ALJ’s decision is to ignore alleged
errors. If the Commissioner does
not have a substantive response to a plaintiff’s argument, the Commissioner
may simply not address the argument. It
is not uncommon for the Commissioner to neglect several of a plaintiff’s main
arguments. A plaintiff should use
the outline of the arguments from the plaintiff’s brief to inventory those
arguments to which the Commissioner has no response.
C.
Follow Plaintiff’s Outline
In drafting a reply brief, a plaintiff should consider following the
outline of the arguments in the plaintiff’s main brief.
Following the outline focuses the court’s attention on the
plaintiff’s characterization of the relevant issues and the Commissioner’s
response, if any, to those issues.
D.
Don’t Trust, Just Verify
The
Commissioner more than occasionally misstates the facts or law.
Often this is due to the fact that Commissioner’s counsel is
inexperienced or unaware of relevant legal authority.
If a court were inclined to defer to the Commissioner’s statement of
the relevant legal authority from the agency itself, e.g., a regulation, ruling,
or HALLEX provision, a reply brief is critical to demonstrate the
Commissioner has not accurately depicted agency policy.
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