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Federal Civil
Litigation in Social Security Claims: Facts, Law, and Rhetoric
September 15, 2000
(Last Updated September 15, 2003)
Indianapolis, Indiana
Eric Schnaufer,
Attorney at Law
I. Introduction
This article
addresses the litigation of individual claims for Social Security disability
benefits and Supplemental Security Income in the district courts within the
Sixth Circuit and Seventh Circuit. This
article with hyperlinks is available at http://www.schnaufer.com/icle.htm.
While I advocate below specific styles and approaches to litigation, a
multiplicity of styles and approaches are successful.
II.
Avoid Litigation: Take the Appeals Council Seriously.
A.
Advocate as Though Sims Was Decided
the Other Way.
Within the Sixth and Seventh Circuits, plaintiffs routinely lose
meritorious court cases. Even with
the best advocacy and a strong factual record, a plaintiff can lose.
Because a plaintiff can never depend on judicial relief, a claimant
should take the Appeals Council seriously.
Thankfully if a claimant takes the Appeals Council seriously, the Appeals
Council may carefully review the claimant’s arguments presented to the Appeals
Council. The Appeals Council
currently provides relief in one in four to one in five requests for review.
With careful arguments to the Appeals Council, a claimant’s
attorney’s success in the Appeals Council should be much greater than the
average.
Appeals
Council advocacy is particularly important within the Sixth and Seventh Circuits
because there plaintiffs generally do not convince courts to reverse without a
remand for a rehearing the Commissioner’s final decision, i.e., reverse for a
finding of disability. Instead,
reversal with a remand for further administrative proceedings may as a practical
matter be the only judicial relief possible.
If that same or similar relief could have been obtained from the Appeals
Council, the litigation is inefficient.
Because the Appeals
Council should be taken seriously, the Supreme Court’s decision in Sims v.
Apfel, 120 S. Ct. 2080 (2000) (cornell.edu),
should have no effect on advocacy during administrative proceedings.
In Sims, the issue was whether to preserve for judicial review, a
claimant had to raise an issue to the Appeals Council in connection with a
request for review. Agreeing with
the Seventh Circuit’s decision in Johnson v. Apfel, 189 F.3d 561,
563-564 (7th Cir. 1999) (FindLaw),
and (implicitly) disagreeing with the Sixth Circuit’s decision in Harper v.
Secretary of Health and Human Servs., 978 F.2d 260, 265 (6th Cir. 1992), the
Sims Court held that there was no such requirement and that a court
should not impose such a requirement. Claimants’
attorneys should pretend that Sims was decided the other way, namely,
that raising an issue to the Appeals Council is a prerequisite to judicial
review of that issue.
As a formal matter,
Sims forgives an attorney who misses an issue at the Appeals Council.
The legal rule of Sims should not, however, be assumed to have any
effect on how courts actually decide cases.
Before and after Sims, an issue first raised on judicial review is
tainted. If the issue warrants judicial relief, why wasn’t the issue
raised earlier? So long as the
claimant was represented by an attorney, any issue not raised to the Appeals
Council is rhetorically weak.
B.
ALJ Issue Exhaustion May Be on the Distant Horizon.
The four-Justice
dissent in Sims raises the specter of ALJ issue exhaustion.
Writing for the dissenters, Justice Breyer stated, “An initial ALJ
proceeding is, after all, itself nonadversarial. . . . Yet I assume the
plurality would not forgive the requirement that a party ordinarily must raise
all relevant issues before the ALJ.”
Sims, 120 S. Ct. at 2089 (cornell.edu)
(citation omitted) (emphasis added). A
requirement that a claimant needs to raise all issues to an ALJ would be much
more onerous than a requirement to raise all issues to the Appeals Council to
preserve those issues for judicial review.
Consider, for example, the issue what are the demands of a claimant’s
past relevant work as usually performed. SSR
82-61 (ssa.gov).
Typically an ALJ will not address the demands of the claimant’s past
relevant work as usually performed before the ALJ issues a written decision.
The claimant will not dispute an ALJ’s finding about the demands of the
claimant’s past relevant work as usually performed until the ALJ actually
makes the finding. If courts bend
towards ALJ issue exhaustion, there are likely to be considerable confusion and
inconsistent decisions as courts struggle to differentiate between those issues
that a claimant must raise to an ALJ before the ALJ’s decision and those
issues that a claimant need only raise after an ALJ’s decision presents the
issue. ALJ issue exhaustion is on
the distant, not near horizon. ALJ
issue exhaustion should not keep you awake at night, but its potential may help
keep you on your toes.
III.
The Complaint Should Reflect Litigation Strategy.
Partially because
pro se litigants regularly file complaints in Social Security cases, complaints
in Social Security cases have few formal requirements. Despite the fact that almost any complaint that identifies
the plaintiff (including his or her Social Security number), identifies the
Commissioner, and cites 42 U.S.C. § 405(g) (ssa.gov)
suffices, a plaintiff should draft a
relatively thorough complaint. A
complaint will vary depending Circuit law regarding the treatment of Appeals
Council evidence (discussed in more detail below). A complaint should also reflect the plain language of 42
U.S.C. § 405(g) (discussed in more detail below).
Several sample complaints are at http://www.schnaufer.com/complaints.htm.
Although many perhaps most attorneys may believe that preparing thorough
complaint is inefficient, I advocate drafting a thorough complaint as part of a
litigation tactic to mirror as closely as possible the plain language of 42
U.S.C. § 405(g) (ssa.gov).
IV.
PACER and uscourts.gov
The Internet site www.uscourts.gov
links to the local rules of most every district court.
Additionally, many district courts have electronic forms and even
electronic filing. Before preparing
the summons and complaint, it may useful to visit your local district court web
via uscourts.gov to see if the district court clerk has made still more
efficient the filing of a complaint.
Dockets
from several district courts are available free on the Internet (and for all to
see). For example the dockets of
the Southern District of Indiana are on the Internet without password
protection. Where dockets are not
available at no cost, PACER (Public Access to Court Electronic Records) makes
those dockets available at a nominal cost.
See <http://pacer.psc.uscourts.gov/>.
Even if you have just one court case pending in a PACER jurisdiction, it
is efficient as well as wise to set up a PACER account.
V. Plaintiff’s
Main Brief
A. Look Mom, No
Hands! All You Need is § 405(g).
A reader may expect
remarks about federal court 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.
And until ALJs stop making factual mistakes, winning district court
briefs can be written without reliance on any case law or law of any sort.
B.
Statement of Facts - Goals
There are at least
three goals when writing the statement of facts.
1.
Master the Evidence.
By writing the
statement of facts, an attorney masters the evidentiary record. There is no better way to know a case than by writing a
statement of facts. There is no
better way to know that the ALJ was wrong about the facts than by knowing the
facts.
2.
Establish Credibility Through Objectivity.
Through a statement
of facts, a plaintiff has the opportunity to establish credibility with the
court. I take the view that a
statement of facts should be radically 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 of
facts as a road map through the administrative record.
The court will have to look somewhere else besides plaintiff’s
statement of facts for the facts – either the administrative record or the
Commissioner’s statement of facts. In
either case, plaintiff has lost the desired audience.
Litigation is in
its essence adversarial. Paradoxically,
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 want to do more than present his or her case.
The litigant should try to do much of the groundwork for the court.
3.
Organize the Facts According to the Argument.
Through the
statement of facts, a plaintiff organizes the facts for the argument section of
the brief. Here it is critical to
make legal distinctions. For
example, in the Sixth and the Seventh Circuit, evidence submitted to the Appeals
Council is treated differently than evidence submitted to the ALJ. As will be discussed below, Appeals Council evidence cannot
be used to attack directly the ALJ’s decision.
Therefore, evidence submitted to the Appeals Council should not be mixed
with ALJ evidence. 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. Rest assured that if the
plaintiff does not categorize the evidence in this fashion, either the Commissioner
or the Court will. 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.
The main thing is to remain flexible.
How the statement of facts organized the evidence in your last brief is
probably not how the statement of facts should organize the evidence in the next
brief.
C.
Statement of Facts – No “Complaints,” No “Symptoms”
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.
I don’t know about your clients, but my clients never “complain” of
pain, they “report” pain or “have” pain.
D.
Statement of Facts – Omit or Truncate Claimant’s Testimony.
A claimant’s
testimony and other statements should be included in the statement of facts
either as a stand alone section or integrated into another section of the
statement of facts only for a special reason.
Unless there is a particular reason to summarize the claimant’s
testimony, the claimant’s testimony may be omitted.
This correlates with the recommendation below to avoid or recharacterize
any argument that turns on the claimant’s credibility. Because the arguments do not depend on the claimant’s
testimony or statements, there may be no reason to summarize the claimant’s
testimony.
E.
Statement of Facts – Mechanics
Writing a thorough
statement of facts is work. Some
attorneys delegate the entire task, but delegation may come at the cost of
intimate familiarity with the administrative record.
Attorneys are using speech recognition software such as Dragon’s
Naturally Speaking to compose briefs and other legal documents.
I have no first hand experience using speech recognition software to
write briefs.
If the statement of
facts is typed, the writer should use extensively macros and keyboard macros in
Word or Word Perfect. I say this
because some attorneys are typing the names of doctors over and over again.
Experiment with
using a flatbed scanner, handheld scanner, or pen scanner.
I have used a handheld scanner with some efficiency to include vocational
expert testimony in the statement of facts. Similarly if in your statement
of the case you quote verbatim the ALJ’s formal findings, a scanner may be
ideally suited for transposing those findings.
F.
Argument – Fact-Based
Errors
In a typical ALJ
decision from about six to twelve pages in length, the ALJ will make many
factual assertions and fail to mention many facts,
1.
Mistakes of Fact
In reviewing each
and every one of the ALJ’s factual assertions, test the truth value.
When writing a brief, a reader should assume as false any factual
assertion by the ALJ. Here the goal
is to make a list of significant factual mistakes.
You want to be able to quote precisely the ALJ and then contrast the
quote from the ALJ with the evidentiary record saying something else.
For this argumentation, obviously no legal authority is needed.
Now after for
cataloging the ALJ’s mistakes, separate those mistakes for which a court could
charitably construe the ALJ as having not made a mistake.
Definitely on judicial review a plaintiff does not want to boast about
having found a factual error only to have the court find that this is not the
case. Nor does the benefit of the
doubt go to the claimant. The ALJ
gets the benefit of the doubt, and the court’s sympathies are likely with the
ALJ.
2.
Errors of Omission
What an ALJ does
not mention is important. No ALJ
will mention every fact in the record. In
fact, no ALJ gets even close. Necessarily
each ALJ decision is a selective review of the evidence. The first order of business is to see what the ALJ tried to
hide.
ALJs use two main
techniques to deal with evidence that favors disability: ignoring it or
expressly rejecting it. A plaintiff
should generally prefer that an ALJ does not address the important evidence
favoring disability. When the ALJ
represses or tries to conceal an important fact, the ALJ thereby forfeits any
deference a court might have to the ALJ’s rationation as the front-line
fact-finder.
There are three
main sources of legal authority requiring an ALJ to address important evidence:
case law, regulations, and Social Security Rulings.
On a regular basis, the Seventh Circuit will reiterate its rule from
administrative law generally that an ALJ must address at least minimally
important evidence. See, e.g.,
Lauer v. Apfel, 169 F.3d 489 (7th Cir. 1999) (FindLaw)
(“An ALJ must consider all of the evidence and discuss significant evidence
contrary to her ruling.”); Groves v. Apfel, 148 F.3d 809, 811 (7th Cir.
1998) (FindLaw)
(“No matter; the failure so much as to mention the competent medical evidence
that went contrary to [a doctor’s] opinion made the administrative law judge's
explanation for his decision to deny benefits unacceptable.”).
Several regulations
include articulation requirements. See,
e.g., 20 C.F.R. § 404.1527(d)(2) (2000) (ssa.gov)
(“We will always give good reasons in our notice . . . decision for the weight
we give your treating source's opinion.”).
Many SSRs have
articulation requirements. Social
Security Ruling 96-8p is bold, requiring a “thorough discussion and
analysis of the objective medical and other evidence.”
(Emphasis added) (ssa.gov).
The question then immediately arises about the interplay between
the articulation requirement in a ruling and the articulation requirement from
case law. Although SSRs are
binding, 20 C.F.R. § 402.35 (2000)
(ssa.gov), it is
unlikely that a court will enforce fully SSR 96-8p’s “thorough”
articulation requirement rendering irrelevant the less stringent articulation
requirement from case law. SSR 96-8p (ssa.gov).
Therefore, a plaintiff should not rest on a single source of authority
for articulation law. Allege and explain how the ALJ’s decision does not satisfy
the articulation requirements from various sources of legal authority.
G.
Argument – Reason and Medical Judgment
ALJ decisions
contain surprisingly little reasoning. Most
of an ALJ decision is 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 irrational.
It is easy to infer how irrationality infects ALJ decisions.
A 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, ALJs generally don’t write decisions that
are balanced. ALJs overreach and in
that overreaching leave reason behind.
H.
Argument – Medical Judgment and Hidden Assumptions
In
the Seventh Circuit, there is pro-claimant case law holding that an ALJ should
not base a decision on the ALJ’s lay medical judgment.
See Green v. Apfel, 204 F.3d 780 (7th Cir. 2000) (uscourts.gov)
(collecting cases). In contrast in
the Sixth Circuit, there is no strong condemnation of ALJ lay medical judgment. But this contrast between the Sixth and Seventh Circuit
should not be considered black letter law.
As a practical matter, both within the Sixth and Seventh Circuits courts
engage in commonsense decision-making expressly or implicitly taking into
account whether the ALJ’s decision
is based on a lay medical judgment beyond his or her ken.
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 determining a claimant's residual functional
capacity. 20 C.F.R. § 404.1546
(2000) (ssa.gov).
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 properly 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, proper or improper, 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 true that the ALJ’s rationale involves a medical judgment, a
plaintiff would have a very high burden to overcome the intrinsic appeal of the
ALJ’s rationale. Simply asserting
that the ALJ’s rationale involved an impermissible medical judgment should
elicit a yawn.
I.
Argument – Don’t Give Up the Store.
When at issue is an
impairment for which arguably subjective symptoms play a key role – e.g.,
chronic fatigue syndrome or mental impairments – don’t 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) (2000) (ssa.gov).
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. SSR 96-4p (ssa.gov).
J.
Argument -Identify Inconsistencies.
ALJs shop for
inconsistencies. Social Security
Ruling SSR 96-7p reemphasized that one of the main tasks of the ALJ denying
benefits is to identify inconsistencies.
SSR 96-7p (ssa.gov).
Some ALJs shop overtly for inconsistencies,
trying to trip claimants at administrative hearings. Other ALJs quietly take notes at hearings to be used later to
justify a written denial. Turn the
table on an ALJ. Just as the ALJ is
looking for inconsistencies to legitimate a denial, plaintiff should look for
inconsistencies in the ALJ’s decision to legitimate reversal.
1.
Peterson Inconsistencies
In Peterson v.
Chater, 96 F.3d 1015 (7th Cir. 1996), the ALJ said that the claimant could
do “light” work and that the claimant could not do prolonged standing and
walking. Id. at 1016 (FindLaw).
The Seventh Circuit found that the “two findings are irreconcilable,
requiring a remand to the agency for new findings.”
Id. Look carefully
through the text of the ALJ’s decision to see whether the ALJ made any finding
inconsistent with the ALJ’s formal findings.
For example, an ALJ will assert in the text of a decision that the
claimant has the mental capacity to do unskilled work yet return the claimant to
semi-skilled past relevant work. For
another example, an ALJ will endorse a medical opinion without qualification
when elements of the medical opinion are inconsistent with the ALJ’s residual
functional capacity finding. Yet an
inconsistency alone is not guarantee of reversal with a remand for a rehearing.
A court may repair the ALJ’s decision.
See Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir. 1999) (FindLaw)
(“That the administrative law judge did conclude this rather than overlook the
check mark in the `limited’ box seems to us the most plausible interpretation
of the opinion, and no more is required to uphold it.”).
2.
Hypothetical-RFC Match and Ragsdale
Look for
inconsistencies between the ALJ’s hypothetical question upon which the ALJ
relied and the ALJ’s residual functional capacity finding and determination of
the claimant’s 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.
Even if a
hypothetical question is less restrictive than the ALJ’s residual functional
capacity finding, a court may affirm the ALJ’s decision.
The court with the Commissioner’s help will look for a way to conclude
that the inaccuracy of the ALJ’s hypothetical question is harmless error or
not error at all. The Seventh
Circuit has addressed incomplete hypothetical questions on several occasions,
but most importantly, in Ragsdale v. Shalala, 53 F.3d 816 (7th Cir. 1995)
(Kent).
In Ragsdale,
the district court affirmed an ALJ’s reliance on vocational expert testimony even
though the vocational expert was not asked an accurate hypothetical question on
the assumption that the vocational expert otherwise took into account any
relevant limitation. Id. at
818-20. The Ragsdale court
also affirmed, remarking that a plaintiff could ascertain through
cross-examination and interrogatories whether the vocational expert actually
took into account a fact the hypothetical question omitted.
Id. at 819. Importantly,
Ragsdale did not make it the claimant’s sole responsibility to
ascertain whether the vocational expert testified solely in regards to a
hypothetical question or whether the vocational expert made other assumptions. Ragsdale announced a rule for “future” cases:
“it would be most helpful if ALJs would make clear on the record any
assumptions underlying the vocational expert's conclusions regarding the
claimant's ability to work.” Id.
at 821. Thus when the Commissioner
relies on Ragsdale to excuse an incomplete hypothetical question, explain
how Ragsdale announced a prospective rule under which it is the ALJ’s
responsibility to ask an accurate hypothetical question.
K.
Argument - Challenge Alternative Findings.
Plaintiffs should
avoid the trap of attacking only the ALJ’s formal findings when the ALJ made
express or implied alternative findings. 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 claimant could 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 will generally affirm based on defensible explicit or implicit alternative
finding. A plaintiff overlooks such an alternative finding at his or
her own peril.
L.
Argument - Avoid Arguments Over Credibility and Testimony
Courts show the
greatest deference to ALJ fact-finding when that fact-finding relates to the
evaluation of testimonial evidence. The
ALJ, not the court, had the opportunity to observe the demeanor of the
witnesses. See, e.g., Kelley
v. Sullivan, 890 F.2d 961, 964 (7th Cir. 1989); Beavers v. Secretary of
Health, Educ. and Welfare, 577 F.2d 383, 387 (6th Cir. 1978). If you are in court, most likely the ALJ found the plaintiff
not disabled in part because the claimant’s testimony was not “credible.”
Therefore, consider avoiding the issue of the claimant’s testimony
directly. Thus for example in the
statement of facts in an ordinary brief, there is no reason to include any
testimony from the claimant. If the
court wants to learn what the claimant testified, the court can read the
administrative record. Thus for
example in the argument section of an ordinary brief, there is no reason to
mention the claimant’s testimony once. Of
course there will be cases in which the claimant’s testimony is crucial.
But there should be a special reason for summarizing the claimant’s
testimony or referring to it in the argument section of the brief.
For example, a claimant’s testimony may be crucial when at issue are
the demands of a claimants past relevant work as actually performed. See, e.g. Brewer v. Chater, 103 F.3d 1384 (7th
Cir. 1997) (Kent).
Yet any fight over the facts turning on the veracity of claimant’s
testimony is an uphill fight.
Rest assured that
even though you did not summarize in the statement of facts the claimant’s
testimony, the Commissioner will talk about the claimant’s testimony both in
his statement of facts and in the argument section of his brief. The Commissioner may be itching for a fight about the
claimant’s testimony. Use your
judgment and when appropriate decline the invitation.
Just as the
Commissioner will want to pick a fight about the claimant’s testimony, the
Commissioner will want to debate the claimant’s credibility.
Avoid or bypass the debate. Turn
the tables on the ALJ. A plaintiff
wants essentially to debate whether the ALJ’s statements are credible.
A plaintiff wants to show that the ALJ’s statements are false just as
the ALJ tried to show that the claimant’s complaints or testimony were false
or exaggerated. Put the ALJ on the ropes and keep the ALJ there until the
concluding paragraph.
In theory,
credibility law is the same in all jurisdictions.
The main regulation implicitly addressing credibility – 20 C.F.R. §
404.1529 (2000) (ssa.gov)
– and the main rulings on
credibility – SSR 96-7p and SSR 96-8p – apply with equal force in every
Circuit with the possible exception of the Eighth Circuit.
(In the Eighth Circuit, ALJs may still apply Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir.1984).) But
credibility law is not the same in all jurisdictions.
In the Sixth
Circuit, there is straightforward deference to ALJ credibility findings of
almost any sort. See, e.g., Walters
v. Commissioner of Social Security, 127 F.3d 525, 531-32 (6th Cir. 1997) (FindLaw).
It is exceptionally rare to see a court redo an ALJ’s credibility
finding. See, e.g., Felisky
v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
A plaintiff within the Sixth Circuit has no legitimate expectation that a
court will pick apart an ALJ’s credibility finding.
A plaintiff within
the Sixth Circuit should not expect a court to pick apart the ALJ’s
credibility finding, but should expect the court to pick through the evidence to
find evidence that might plausibly support an ALJ’s credibility finding. There is little chance that the Sixth Circuit will reverse a district court for having violated
Chenery by supplying too much support for the
ALJ’s credibility finding. The
Sixth Circuit is unlikely to reverse a district court for showing that based on
the entire record, even the record the ALJ did not touch, substantial evidence
supports the ALJ’s decision. The
reason for this is that the Sixth Circuit itself will search the whole record
for substantial evidence underlying an ALJ’s decision.
Like the Sixth
Circuit, there is strong deference in the Seventh Circuit to an ALJ’s
credibility finding. See, e.g.,
Powers v. Apfel, 207 F.3d 431 (7th Cir. 2000) (uscourts.gov).
Most often when the Seventh Circuit mentions credibility, the claimant
loses, the Commissioner’s final decision is affirmed.
Within the Seventh Circuit, there is a tension between two lines of case.
Familiarity with the tension is needed even if a court is unlikely to
address explicitly the tension. Instead, the Court’s result with be coupled
with the line of cases consistent with result.
In Imani ex rel.
Hayes v. Heckler, 797 F.2d 508 (6th Cir. 1986), the Seventh Circuit stated:
However,
that we might have reached a different conclusion does not mean that the ALJ
reached the wrong one. He observed
the witnesses directly, and those intangible, unarticulable elements that
constitute "credibility" unfortunately leave no trace that can be
discerned in this or any other transcript we must review.
. . . Unless the ALJ's assessment of the witnesses is patently wrong in
view of the cold record before us, it must stand.
Id.
With only a little exaggeration, when a court mentions the patently-wrong
standard of review of credibility findings, the plaintiff loses while the
Commissioner wins. (Although there
is a genuine question whether a patently-wrong standard of review of credibility
finding is inconsistent with the already deferential substantial evidence
standard, attacking the patently-wrong standard of review directly either in a
district court or appellate court is likely ineffectual or misguided.)
Herron v.
Shalala, 19 F.3d 329 (7th Cir. 1994) (Kent),
softens the patently-wrong standard by restricting its domain:
Since
the ALJ is in the best position to observe witnesses, we usually do not upset
credibility determinations on appeal so long as they find some support in the
record and are not patently wrong. Oftentimes,
a credibility determination involves inarticulable elements that "leave no
trace that can be discerned in this or any other transcript."
However, when such determinations rest on objective factors or
fundamental implausibilities rather than subjective considerations, appellate
courts have greater freedom to review the ALJ's decision.
Id.
at 335 (citations omitted). Thus
the patently-wrong standard only applies when at issue is an inarticulable based
for the credibility finding. Although
Herron reads as though it should have guided later case law, it remains
largely unused.
For plaintiffs the
patently-wrong standard may be attacked directly using SSR 96-7p.
SSR 96-7p (ssa.gov).
The ruling states, “The finding on the credibility of the individual's
statements cannot be based on an intangible or intuitive notion about an
individual's credibility.” SSR 96-7p. In
other words, the agency does not endorse a credibility finding that would
warrant the patently-wrong standard of review.
Thus when the Commissioner invokes the patently-wrong standard of review,
the Commissioner implies that the credibility finding is based on an intangible
element -- precisely the kind of credibility finding that SSR 96-7p rejects.
But these arguments are lawyers' arguments.
The real task is not making legal arguments about credibility but
demonstrating that the ALJ had the facts wrong and that the ALJ’s rationale
was irrational.
For the Seventh
Circuit there is a footnote about credibility.
If the Commissioner tries argues as though substantial evidence review of
an ALJ’s residual functional capacity finding is a credibility finding, quote Peterson
v. Chater, 96 F.3d 1015 (7th Cir. 1996):
At argument the Social Security Administration's lawyer described the
administrative law judge's finding that Peterson can do sedentary to light work
as a "credibility" determination to which we must defer.
It is nothing of the sort. It
is the application of a legal standard (sedentary work as defined by the Social
Security Administration) to the medical facts concerning Peterson's physical
capacity.
Id.
at 1016 (FindLaw).
M. Argument -
Appeals Council Evidence
Appeals Council evidence is evidence submitted to the Appeals Council in
conjunction with a request for review of an ALJ’s decision when the Appeals
Council denies review. The issue
then arises how a court should treat that evidence.
1.
Consider Leaving Appeals Council Evidence at Home.
In the Sixth
Circuit, Appeals Council evidence is only considered under sentence six of 42
U.S.C. § 405(g) (ssa.gov).
Cotton v.
Sullivan, 2 F.3d 692 (6th Cir. 1993). Sentence
six has three distinct requirements. Therefore,
to obtain judicial relief with Appeals Council evidence, the plaintiff needs to
prevail on three distinct issues. Generally a plaintiff is happy if a court agrees with him or
her two out of three times. But
with sentence six, two out of three is not enough.
Thus unless the sentence-six evidence is particularly compelling or if
the Appeals Council evidence under sentence six evidence is plaintiff’s best
argument, consider not addressing Appeals Council evidence either in the
statement of facts or argument.
In the Seventh
Circuit, Appeals Council evidence is even more problematic.
Unquestionably Appeals Council evidence cannot be considered on
substantial evidence review of an ALJ’s decision. Eads v. Secretary of Dep’t of Health and Human Servs.,
983 F.2d 815, 817 (7th Cir. 1993) (Kent).
Unquestionably, Appeals Council evidence can be treated as sentence six
evidence as in the Sixth Circuit with Cotton. Id. But
that is not the end of the story. Eads
and other Seventh Circuit law suggest that a court can also review the Appeals
Council’s denial of review for legal error, id.; Nelson v. Bowen,
855 F.2d 503, 506-08 (7th Cir. 1988), or procedural irregularity, Perkins
v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997) (FindLaw).
Because the law is
murky about the treatment of Appeals Council evidence, a plaintiff will be in
hand-to-hand combat about how Appeals Council evidence should be evaluated.
That conflict may be a distraction from the central arguments addressing
the merits of the ALJ’s decision. As
in the Sixth Circuit, in the Seventh Circuit a plaintiff should consider not
addressing Appeals Council evidence either in the statement of facts or
argument.
2. Don’t Pitch
a Softball.
If
circuit law does not allow looking to Appeals Council evidence on substantial
evidence review of an ALJ’s decision, respect that law carefully.
A plaintiff pitches a softball when he or she mixes Appeals Council
evidence with ALJ evidence in the statement of facts or argument. When Appeals Council evidence is mixed with ALJ evidence in
the statement of facts or argument, the agency can cast doubt over plaintiff’s
entire brief and raise the issue whether plaintiff is familiar with core
precedent regarding Appeals Council evidence and 42 U.S.C. § 405(g).
Resist the temptation to address casually Appeals Council evidence.
3. Do Not Lead
With Appeals Council Arguments.
Unless an argument
about Appeals Council evidence is the only argument or clearly the best
argument, do not lead with an argument about Appeals Council evidence. When Appeals Council evidence is addressed first in either
the Sixth or Seventh Circuit, implicitly plaintiff cedes the field to the
agency. The ALJ’s decision stands
untouched. If there is no infirmity
in the ALJ’s decision, why bother sending the case back for reevaluation of
the Appeals Council evidence? Plaintiff,
after all, can normally reapply. Only
after exhaustive critique of the ALJ’s decision should Appeals Council
evidence be addressed.
N.
Relief Requested – Follow 42 U.S.C. § 405(g).
At the close of
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) (ssa.gov).
Under 42 U.S.C. § 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 section 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 a 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) (FindLaw).
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 benefits,
but only that the claimant was disabled.
See Willis v. Sullivan, 931 F.2d 390, 398-99 (6th Cir.
1991). A sentence-four reversal
with a remand for a rehearing is reversal
of the Commissioner’s final decision with a remand for further administrative
proceedings. Additionally, whether
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.
As might be
expected, I strongly discourage requesting as relief
a “sentence-four remand.” If
a plaintiff seeks as relief for infirmities in the merits of an 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) (ssa.gov).
If a plaintiff
seeks relief under sentence four and sentence six of section 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 six is more 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) (FindLaw).
Sixth and Seventh
Circuit law provide clear guidance whether a court should reverse the
Commissioner’s final decision without a remand for a rehearing, i.e., with a
finding of disability, or reverse the Commissioner’s final decision with a
remand for a rehearing, i.e., for further administrative proceedings.
See Faucher v. Secretary of Health and Human Servs., 17
F.3d 171, 176 (6th Cir. 1994) (reversal with a remand for a rehearing
warranted); Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993)
(same); cf. Wilder v. Apfel,153 F.3d 799, 804 (7th Cir. 1998) (Kent)
(finding claimant disabled); Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
Cir. 1994) (same).
IV. Writing
Plaintiff’s Reply Brief
A. Identify the
Post Hoc Rationalizations.
A reply brief
should be filed in virtually every case if for no other reason than to identify
and rebut the Commissioner’s improper post hoc rationalizations. See SEC v. Chenery, 332 U.S. 194, 196
(1947) (FindLaw);
O’Connor v. Sullivan, 938 F.2d 70, 73 (7th Cir. 1991) (following Chenery).
B.
Catalog the Arguments to Which the Commissioner Does not Respond.
Often the
Commissioner’s best defense of the 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 plaintiff’s core
arguments. In a reply brief, a
plaintiff should tabulate the arguments to which the Commissioner has not
responded.
C. 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. If
a court were inclined to defer to the Commissioner’s statement of the
relevant legal authority, a reply brief is critical to demonstrate the
Commissioner has not accurately depicted the law.
©2000Eric
Schnaufer
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