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District Court Litigation of Social Security Claims Eighth
Circuit NOSSCR Conference District Court Litigation of Social Security Claims Within the Eighth Circuit Eighth Circuit NOSSCR Conference
©Eric Schnaufer I. Introduction and Caveats An updated version of this article is available at http://www.schnaufer.com/OmahaCLE.htm. Links to Eighth Circuit case law are at http://www.schnaufer.com/8th.htm. This article describes how to litigate successfully in a district court within the Eighth Circuit 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. 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. III. 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 ten or thirty days, depending on the status of the case. IV. 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 A complaint should reflect Eighth Circuit law regarding the treatment of Appeals Council evidence. Compare Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000), and Nelson v. Sullivan, 966 F.2d, 363,366 (8th Cir. 1992), with Sullins v. Shalala, 25 F.3d 601, 605 & n.6 (8th Cir. 1994). A plaintiff should consider making alternative statements in a complaint reflecting conflicting Eighth Circuit law about Appeals Council evidence. V. 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, a plaintiff should not mix facts submitted to the Appeals Council with facts submitted to the ALJ. See Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000). While evidence submitted to the Appeals Council may be used to show that substantial evidence does not support the ALJ’s decision, id., Appeals Council evidence should nonetheless be segregated. 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 should not force a court to sort evidence according to whether it was submitted to the ALJ, the Appeals Council, or the court itself. 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) (2004). 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 (2004) (five-step sequential evaluation); 20 C.F.R. § 404.1594 (2004) (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 the court finds the findings 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 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.
E.g., Garrett ex rel. In a typical decision, an ALJ will make many factual assertions. Test the truth of each factual assertion by reviewing the 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 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. E.g., 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 such a 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 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.
E.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile
Ins. Co., 463 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. Additionally, 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 (2004), 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, but enforce a case law or regulatory articulation requirement. 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?
E.g., Garrett ex rel. 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. When identifying the ALJ’s rationale, consider whether the ALJ cited the proper legal standard. Although not dispositive, the failure of an ALJ to cite the proper legal standard may be evidence that the ALJ did not apply that standard. E.g., Brueggemann v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003) (“In truth, the ALJ's failure to cite [the relevant regulation] anywhere in his decision was not a mere drafting oversight, but accurately reflected his failure to follow the procedures prescribed there.”). 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. E.g., Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003) (“Here, the ALJ improperly drew inferences from the medical reports”). 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 (2004). 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 seems reasonable. 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. E.g., Brosnahan v. Barnhart, 336 F.3d 671, 678 (8th Cir. 2003) (“Brosnahan’s testimony and reports to the SSA are supported by objective medical evidence of fibromyalgia--consistent trigger-point findings”). 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) (2004). 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. E.g., Stathis v. Sullivan, 964 F.2d 850, 852 (8th Cir. 1992) (“The vocational expert characterized these two potential jobs as semi-skilled work. By statutory definition, semi-skilled work requires some work skills. Based on the ALJ's findings, however, Stathis has no transferable work skills. Logic dictates, therefore, that Stathis is not qualified to work as either a customer service representative or a companion to the elderly. We find that these inconsistencies must be resolved.”) (internal citations and quotation marks omitted). 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. With the Commissioner’s help or encouragement, the court may 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., Masterson v. Barnhart, 363 F.3d 731, 740 n.5 (8th Cir. 2004) (affirming denial of benefits at step four without considering ALJ’s alternative finding of non-disability at step five); Lewis v. Barnhart, 353 F.3d 642, 647-48 (8th Cir. 2003) (same). 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. There is device to avoid making false statements about what the “entire” record or “all” the evidence contains. A plaintiff can argue when true that the ALJ did not cite any evidence or evidence of a certain kind. Thus, although there may be some undiscovered evidence for a finding hidden in the administrative record, a plaintiff can make the same essential point about missing evidence by looking at what the ALJ wrote and explaining how the ALJ did not locate the evidence in question. 12. Recharacterize Each Argument Virtually all arguments may be 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) (2004). 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. There is another way in which arguments
should be recharacterized. The
Eighth Circuit has its own quasi-common law of the disability program.
Those cases may be cited along with the closest legal authority from the
Commissioner. For example, for
decades the Eighth Circuit has emphasized the need of a claimant to be able to
work in a competitive work environment. See
McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc) (cited
in 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. In the Eighth Circuit, Appeals Council
evidence is considered when determining whether substantial evidence supports
the ALJ’s decision. Cunningham
v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000).
It is not used to determine whether the Appeals Council’s denial
of review is correct. A plaintiff should know, however, that Eighth Circuit law is inconsistent regarding the treatment of Appeals Council evidence. See Sullins v. Shalala, 25 F.3d 601, 605 & n.6 (8th Cir. 1994) (apparently considering Appeals Council evidence under sentence six of 42 U.S.C. § 405(g)). 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. Further, resist the temptation to fudge the consideration of Appeals Council evidence. While the Eighth Circuit sometimes does not adhere to its own law — or fudges its own law — about Appeals Council evidence, the Eighth Circuit is able to do so. The Eighth Circuit makes the law, so it can break the law. A plaintiff, on the other hand, does not have the right to transgress Eighth Circuit law. Unless as a last resort and even then probably not, present only solid arguments about Appeals Council evidence. Unless an argument about Appeals Council evidence is the only argument or clearly the best argument, do not lead with it. 14. Understand Eighth Circuit Case Law
There are hundreds of Eighth Circuit cases, more cases than any attorney
or judge can remember. There are so
many cases that, in fact, a dedicated researcher should be able to identify
Eighth Circuit cases standing for contrary propositions.
This has practical significance for briefing cases within the Eighth
Circuit. The plaintiff must decide
whether to address or distinguish contrary case law for any significant
proposition. For some issues, it is
probably essential to address conflicting case law.
The Commissioner is likely to identify conflicting authority.
Compare, e.g., Brachtel v. Apfel, 132 F.3d 417, 421 (8th
Cir. 1997), with The fact that there are hundreds of Eighth Circuit cases requires a plaintiff to have a strategy for legal research. A plaintiff must have a method to keep abreast of Eighth Circuit law and a method to remember relevant cases. One method is to identify the small number of Eighth Circuit cases each year with important holdings and the handful of exemplary Polaski cases involving the weighing of medical evidence. E.g., O'Donnell v. Barnhart, 318 F.3d 811 (8th Cir. 2003) (rejecting in detail ALJ’s adverse credibility finding). Review those cases repeatedly just as you review repeatedly key regulations and SSRs. 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. 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.
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 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, the plaintiff should set forth the relevant test for holding a claimant disabled on the existing record and apply that test. E.g., Ingram v. Barnhart, 303 F.3d 890, 895 (8th Cir. 2002); Hutsell v. Massanari, 259 F.3d 707, 714 (8th Cir. 2001). 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. VI. 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 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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Eric Schnaufer, Attorney at Law, Eric Schnaufer's e-mail address |