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ALJ Issue Exhaustion – Practical Countermeasures Last updated May 7, 2002 ©By Eric Schnaufer I. Introduction: ALJ Issue Exhaustion is the Rule in All Circuits. Issue exhaustion refers to the doctrine requiring a non-government party to raise to an agency a particular issue in order to preserve that issue for later judicial review. See Sims v. Apfel, 530 U.S. 103, 106-108 (2000). ALJ issue exhaustion is the doctrine that a claimant for disability benefits must present an issue to an ALJ to preserve that issue for later judicial review under 42 U.S.C. § 405(g). [Footnote: “Disability benefits” refer to Social Security disability benefits and Supplemental Security Income based on a disability. 42 U.S.C. §§ 423(d), 1382c(a).] Claimants’ representatives should labor under the assumption that ALJ issue exhaustion is the rule in all Circuits. First, it is quite possible that this year or several years from now, the Supreme Court will rule that ALJ issue exhaustion applies to administrative proceedings for disability benefits. In other words, consistent with the four-Justice dissent in Sims, a claimant for disability benefits must present an issue to an ALJ in order to preserve that issue for later judicial review. See Sims, 530 U.S. at 117 (“Yet I assume the plurality would not forgive the requirement that a party ordinarily must raise all relevant issues before the ALJ.”) (Breyer, J., dissenting). Obviously, even arguably clear Circuit law against ALJ issue exhaustion is no help in the face of superseding authority from the Supreme Court. Second, regardless of Circuit law, representing a claimant as though ALJ issue exhaustion were the rule is a useful way of enhancing representation of the claimant. ALJ issue exhaustion provides a significant incentive to develop and present a detailed theory of disability at the hearing level. ALJ issue exhaustion should motivate representatives to work harder. Third, even if ALJ issue exhaustion were not the rule, a federal court may reasonably take less seriously any argument that had not been presented to the ALJ. If the issue were so important that it requires judicial relief, the representative should have raised the issue to the ALJ. Fourth, the agency can impose ALJ issue exhaustion (and/or Appeals Council issue exhaustion) at any time. Consistent with this, for example, the Association of Administrative Law Judges apparently has recommended that the agency impose ALJ and Appeals Council issue exhaustion on represented claimants. II. Non-Exhaustive Survey of Appellate Case Law A. First Circuit In the post-Sims case of Mills v. Apfel, 244 F.3d 1 (1st Cir. 2001), cert. denied 122 S. Ct. 822 (2002), the First Circuit imposed ALJ issue exhaustion. Id. at 8. B. Third Circuit In Burnett v. Commissioner of Social Security Admin., 220 F.3d 112 (3d Cir. 2000), the Third Circuit addressed ALJ issue exhaustion. Id. at 120 n.2. A claimant’s representative may reasonably interpret Burnett as holding that ALJ issue exhaustion is inappropriate. Nonetheless, a claimant’s representative working within the Third Circuit (or any other Circuit in which ALJ issue exhaustion is not the rule) should work as though ALJ issue exhaustion were the rule in the Third Circuit (or any other Circuit in which ALJ issue exhaustion is not the rule). C. Fifth Circuit In Jackson v. Apfel, 222 F.3d 207 (5th Cir. 1999), the Fifth Circuit imposed issue exhaustion of some sort. The Fifth Circuit's decision was vacated and remanded for consideration of Sims. Jackson v. Apfel, 530 U.S. 1227 (2000). On remand, the Fifth Circuit was not through with issue exhaustion. The Fifth Circuit imposed ALJ issue exhaustion as a jurisdictional issue. Jackson v. Apfel, 234 F.3d 246 (5th Cir. 2000). Jackson petitioned for a writ of certiorari. In response, the Commissioner conceded that Jackson had in fact raised an issue to the ALJ. Consistent with the Commissioner's concession, the Supreme Court granted Jackson's petition for a writ of certiorari, vacated the Fifth Circuit's decision, and remanded for further proceedings. Jackson v. Massanari, 122 S. Ct. 25 (2001). D. Seventh Circuit In Wood v. Thompson, 246 F.3d 1026 (7th Cir. 2001), the Seventh Circuit imposed some sort of issue exhaustion in the Medicare context. Id. at 1033 ("He did not rely on this policy in his arguments before the ALJ or the Medicare Appeals Council, and he has therefore waived this argument.") (citing Johnson v. Apfel, 189 F.3d 561, 562 (7th Cir. 1989)). In Kepple v. Massanari, 268 F.3d 513 (7th Cir. 2001), the Seventh Circuit observed that ALJ issue exhaustion is an open issue. Id. at 516-17. E. Ninth Circuit In the pre-Sims case of Silveira v. Apfel, 204 F.3d 1257 (9th Cir. 2000), the Ninth Circuit reached an issue that had not be preserved below:
Id. at 1260 n.8. In the pre-Sims case of Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999), the Ninth Circuit ruled:
Id. at 1115. III. Practical Countermeasures – ALJ Level There are many practical countermeasures to ALJ issue exhaustion at the ALJ level. Four such countermeasures are outlined below. A. Written and Oral Argument – Fact Specific Obviously, written argument and oral argument on the record at an ALJ hearing raising a fact-specific issue should satisfy any ALJ issue exhaustion requirement. Moreover, with ALJ issue exhaustion, it is especially important to file a timely response to any post-hearing proffer letter from an ALJ. If ALJ issue exhaustion has teeth, it will require a representative to protest to the ALJ at every important opportunity to protest. B. Written and Oral Argument – General Statements To preempt issue exhaustion, a representative may submit a general statement (sometimes called "boilerplate") either before or after a hearing. However, ideally pre- and post-hearing statements should be submitted. Further, beware that a district court may actually try to refine ALJ issue exhaustion to have required raising an issue to an ALJ at the ALJ hearing. Thus, a representative should consider integrating oral advocacy with written argument. Anyone reading the transcript of the oral hearing should know where to find the representative's arguments. The intent of a general statement or boilerplate may be to raise any and every possible argument to the ALJ. Although there is no assurance that a general statement will be sufficient to defeat ALJ issue exhaustion for any narrow legal or factual issue, a general statement should not undermine an attempt to preserve any and all issues before the ALJ renders a decision. Therefore, a representative should consider submitting a letter to an ALJ setting forth a request for the ALJ to apply all relevant legal authority, including, but not limited to: • the Constitution, This letter should also ask the ALJ to evaluate properly
all aspects of the claimant’s medical condition (hair to toenails), age,
education, and work experience. C. Duty to Develop the Record There is an obvious tension between ALJ issue exhaustion and an ALJ’s duty to develop an adequate record. If ALJ issue exhaustion is the rule, arguably whatever development the ALJ is normally required to do is the representative’s responsibility. For example, if the representative intends to argue that the ALJ should take into account the claimant’s ability to afford treatment of a certain sort, the representative needs to elicit relevant testimony making a record for later judicial review of that argument. It is not enough that SSR 96-7p suggests that an ALJ should take such testimony. In addition, even if ALJ issue exhaustion does not require that a representative actually develop an adequate record, ALJ issue exhaustion may at least require that a representative make an explicit demand on an ALJ to develop an adequate record. Thus, for example, it would not be enough that an ALJ failed to develop a record consistent with 20 C.F.R. § 404.1512(e) (2002). The representative must also make a pre-decision demand on the ALJ to comply with that regulation. It is possible that, notwithstanding any ALJ issue exhaustion rule, courts will enforce an ALJ’s independent duty to develop the record. But if the legal environment includes ALJ issue exhaustion, it is also possible that, either as a general matter or in the context of specific cases, courts may require a representative to demand explicitly that an ALJ develop an adequate record with respect to a particular issue and/or require a representative to undertake record development about that issue. Thus, representatives can be certain that ALJ issue exhaustion will increase the uncertainty associated with representing claimants. D. Cross-examination of Vocational Expert Without considering ALJ issue exhaustion, a representative must make difficult decisions whether to cross-examine a vocational expert and how to cross-examine a vocational expert. Because the agency has the burden of production at step five, in theory, a representative can sit on his or her hands if the ALJ did not elicit from the vocational expert testimony sufficient to carry the agency’s step-five burden. ALJ issue exhaustion only makes more difficult the decisions whether to cross-examine a vocational expert and how to cross-examine a vocational expert. Even so, it is possible to make several comments. If ALJ issue exhaustion is the rule, it is likely that some courts will require a representative to have cross-examined a vocational expert regarding the consistency of the Dictionary of Occupational Titles with the vocational expert’s statements even if SSR 00-4p imposed on the ALJ an affirmative obligation to explore the consistency. Further, if ALJ issue exhaustion is the rule, it is likely that some courts will require a representative to have cross-examined a vocational expert about any functional limitation if the representative alleges that the ALJ failed to account for such a limitation. In other words, to prove that the incompleteness of a hypothetical question is harmful, the vocational expert must have been asked to describe the vocational impact of a particular limitation omitted from the hypothetical question upon which the ALJ relied. E. Cross-examination of Medical Expert Cross-examination of a medical expert is tricky apart from an environment with ALJ issue exhaustion. With ALJ issue exhaustion, arguably closer cross-examination of a medical expert may be required. In any case, a representative should make clear prior to the medical expert testifying that the representative does not endorse the medical expert's testimony merely by virtue of the fact that the representative does not object to the admissibility of the medical expert's testimony. A representative can politely explain to the ALJ that sometimes agency counsel argue in litigation that merely by not objecting to the admissibility of a medical expert's testimony, the representative concedes rationality and relevance of the testimony. Before hearing a medical expert's testimony, the representative cannot agree or disagree with its rationality and relevance. IV. Practical Countermeasures - Appeals Council Level Sims held that a court may not impose Appeals Council issue exhaustion, i.e., require a claimant to have raised an issue to the Appeals Council to preserve that issue for later judicial review. Sims, 530 U.S. at 111-14. Regardless of whether ALJ issue exhaustion is the rule, a representative should work as though Sims was decided the other way, i.e., as though Appeals Council issue exhaustion were required. Unfortunately, identifying all relevant issues for the Appeals Council does not guarantee that ALJ issue exhaustion will not be a stumbling block in later litigation. It is quite possible that a court will hold that raising a particular issue to the Appeals Council does not remedy a failure to raise that particular issue to the ALJ or to raise the issue at the oral hearing. For example, a court may hold that a representative should have cross-examined a vocational expert about an environmental limitation and that raising the issue of the environmental limitation for the first time to the Appeals Council is too late. V. Practical Countermeasures - Federal Court There are many ways in litigation to counter ALJ issue exhaustion. A. ALJ Issue Exhaustion is Not the Rule in a Particular Circuit. Obviously, if ALJ issue exhaustion is not the rule in a particular Circuit, a court within that Circuit should not impose ALJ issue exhaustion. If a Circuit has not addressed ALJ issue exhaustion, a representative may argue that ALJ issue exhaustion is not the rule in that Circuit. If ALJ issue exhaustion were the rule, there must be some Circuit authority imposing the rule. Thus, if the agency argues for ALJ issue exhaustion in a Circuit which has not addressed ALJ issue exhaustion, the agency proposes to change the law in that Circuit, including Circuit law regarding an ALJ’s duty to develop the record. B. ALJ Issue Exhaustion is Not a Jurisdictional Rule. In Jackson v. Apfel, 234 F.3d 246 (5th Cir. 2000), the Fifth Circuit imposed sua sponte ALJ issue exhaustion as a jurisdictional rule. Jackson, 234 F.3d 246, 247. But ALJ issue exhaustion is not a jurisdictional rule. In Sims, the Court noted that the Fifth Circuit erroneously considered Appeals Council issue exhaustion a jurisdictional rule. Sims, 530 U.S. at 106 n.1 (citing Mathews v. Eldridge, 424 U.S. 319, 328 (1976)). For the same reason, the Fifth Circuit in Jackson erroneously considered ALJ issue exhaustion a jurisdictional rule. Jackson, 234 F.3d 246, 247. Because the exhaustion of administrative remedies generally is not a jurisdictional requirement for judicial proceedings pursuant to 42 U.S.C. § 405(g), see Bowen v. City of New York, 476 U.S. 467, 482-87 (1986), issue exhaustion cannot be a jurisdictional requirement for judicial proceedings pursuant to 42 U.S.C. § 405(g). On October 1, 2001, the Supreme Court granted the petition for a writ of certiorari, vacated the Fifth Circuit's decision, and remanded Jackson's. See Jackson v. Massanari, 122 S. Ct. 25 (2001), vacating 234 F.3d 246 (5th Cir. 2000). The Supreme Court remanded for "further consideration in light of the position presently asserted by the Solicitor General in his brief for the Acting Commissioner of Social Security filed June 20, 2001." Because the Commissioner stated that claimant Jackson in fact preserved the issue the Fifth Circuit found waived, Jackson no longer has precedential meaning as an issue exhaustion case. C. The Particular Issue Was in Fact Presented to the ALJ. ALJ issue exhaustion can be defeated with respect to an issue by showing that the issue was in fact presented to the ALJ. Thus, ALJ issue exhaustion can be defeated in the same manner as Appeals Council issue exhaustion was defeated before Sims. See McQueen v. Apfel, 168 F.3d 152, 177 (5th Cir. 1999) (holding that an issue was raised to the Appeals Council); Limberopoulos v. Shalala, 17 F.3d 975, 979 (7th Cir. 1994) (holding that a district court erroneously held that an issue had not been presented to the Appeals Council). When arguing that a particular issue was in fact raised to an ALJ, a representative may reasonably argue that a court should not require a claimant to have presented in detail the issue to the ALJ. It should be enough that a claimant or a representative alluded to a general matter or related issue to preserve any particular issue. After all, because no agency rule required the claimant or representative to raise a particular issue to an ALJ, when implementing ALJ issue exhaustion, a court should not require the equivalent of a federal court brief to have been submitted to the ALJ. D. The Particular Issue Only Arose in the ALJ’s Decision Itself. There are many issues that definitely appear first in the ALJ’s decision itself or arguably appear first in the ALJ’s decision itself. For any such issue, imposition of ALJ issue exhaustion would be unreasonable and unfair. Consider the agency’s rule in SSR 96-8p that an ALJ must provide a “thorough” discussion and analysis of the evidence. It would make little sense to require a representative to request that the ALJ provide such a thorough discussion and analysis of the evidence to preserve an objection that the ALJ did not comply with this articulation rule. If ALJ issue exhaustion applied to such issues, a representative would need to make a pre-decision demand that an ALJ follow any agency articulation rule prior to the ALJ’s decision in order to grieve later non-compliance with that rule. E. ALJ Issue Exhaustion Must Be Harmonized With Other Rules. ALJ issue exhaustion may be opposed in litigation on the ground that ALJ issue exhaustion must not be interpreted or applied so broadly that it supersedes long-standing legal rules such as an ALJ’s independent duty to develop an adequate record. See 20 C.F.R. § 404.944 (2002). Rephrased, a judicially-created doctrine such as ALJ issue exhaustion should not be applied in a way that makes unenforceable regulations such as 20 C.F.R. § 404.944 (2002), and case law expressing a similar principle such as Plummer v. Apfel, 186 F.3d 422, 434 (3d Cir. 1999). F. The
Purposes of Exhaustion Would Not Be Served for a Particular Issue. If
the agency argues or a court holds that a claimant should have raised a
particular issue to an ALJ, the claimant may argue that the purposes of issue
exhaustion would not be served for that particular issue.
Thus, for example, exhaustion may be excused for a purely legal issue.
See Silveira v. Apfel, 204 F.3d 1257, 1260 n.8 (9th Cir.
2000) (“We nevertheless consider the issue because it is a pure question of
law and the Commissioner will not be unfairly prejudiced by Vargas's failure to
raise the issue below.”). G. Exhaustion
Would Have Been Futile. If it would have been futile to raise a
particular issue to an ALJ, the futility of raising that issue to the ALJ
excuses not presenting the issue to the ALJ.
See Marcus v. Sullivan, 926 F.2d 604, 614-15 (7th Cir.
1991) (discussing futility). An example of a futile challenge might
involve a challenge to the validity a regulation H. The
Agency Waived Any Waiver. In theory, ALJ issue exhaustion is a doctrine that protects the agency. Therefore, if the agency does not contend that ALJ issue exhaustion should be imposed, the agency should be considered to have waived any argument that ALJ issue exhaustion should be imposed. Cf. Nolen v. Sullivan, 939 F.2d 516, 518-19 (7th Cir. 1991) (holding that agency waived any argument that an issue had been waived). I. ALJ Issue Exhaustion Should Not Be Imposed. In litigation, a representative may choose to argue against ALJ issue exhaustion as a general matter or may have no choice but to argue against ALJ issue exhaustion as a general matter. For example, if a district court imposed ALJ issue exhaustion, on appeal to a circuit court, the appellant may be forced to defeat ALJ issue exhaustion in order to obtain judicial relief. There are many reasons why a court should not impose ALJ issue exhaustion as a general matter. 1. The Social Security Act Does Not Require ALJ Issue Exhaustion. Theoretically,
the Social Security Act could require ALJ issue exhaustion.
It does not. See 42 U.S.C. § 405(b), (g). The Social Security Act no more requires ALJ issue exhaustion
than it requires Appeals Council issue exhaustion. Cf. Sims, 530 U.S. at 108 (“Here, the
Commissioner does not contend that any statute requires issue exhaustion in the
request for review.”). 2. Agency Regulations Do Not Require ALJ Issue Exhaustion. If there were a regulation requiring ALJ issue exhaustion, a challenge to ALJ issue exhaustion would take the form of an attack on the validity of that regulation. But just as no regulation requires Appeals Council issue exhaustion, no regulation requires ALJ issue exhaustion. Cf. Sims, 530 U.S. at 108 (“Yet, SSA regulations do not require issue exhaustion.”). [Footnote: The Sims plurality stated parenthetically that “[a]lthough the question is not before us, we think it likely that the Commissioner could adopt a regulation that did require issue exhaustion.” Sims, 530 U.S. at 108.] Instead, the long-standing regulations establish a very different scheme for the identification of issues at the ALJ level. By regulation, the “issues before the [ALJ] include all the issues brought out in the initial, reconsidered or revised determination that were not decided entirely in [a claimant’s] favor.” 20 C.F.R. § 404.946(a) (2002). Also by regulation, an ALJ must provide a claimant prior to an oral hearing with a “notice of hearing” that “contain[s] a statement of the specific issues to be decided . . . .” 20 C.F.R. § 404.938 (2002). A claimant has a right to object to the ALJ’s statement of the issues. 20 C.F.R. § 404.939 (2002). Crucially, this regulatory right to object to the ALJ’s identification of the (very general) issues is not a requirement that the claimant make specific contentions about narrow issues such as whether the claimant can only walk two hours in a workday, but is a requirement that a claimant make a fundamental objection to the issues the ALJ specifies such as that a case involves retirement benefits instead of disability benefits. Additionally, given the established regulatory scheme, an ALJ is not misled that any narrow issue is not in dispute if the claimant does not specifically identify that narrow issue to the ALJ. Irrespective of any argument a claimant articulates, an ALJ is required to make all the findings necessary to look fully into the issues when reaching a decision. 20 C.F.R. § 404.944 (2002). Therefore, there should be no genuine concern that an ALJ did not consider any specific issue. Therefore, any general rule imposing issue exhaustion has no application in the context of administrative proceedings for disability benefits. See Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1146, 1151 (D.C. Cir. 1987) (“This court has excused the exhaustion requirements for a particular issue when the agency has in fact considered the issue.”). Thus, under the regulatory scheme, the ALJ, not the claimant, identifies the general “issues” after which an ALJ normally conducts an oral hearing and renders a written decision addressing the general issues previously identified. 20 C.F.R. §§ 404.938, 404.939, 404.944, 404.946 (2002). In short, ALJ issue exhaustion is antithetical to the agency’s regulatory scheme. 3. ALJ Proceedings Are Non-adversarial. The Sims plurality looked closely at the purpose of issue exhaustion in administrative law and in appellate litigation. See Sims, 530 U.S. at 108-12. The plurality found that the application of issue exhaustion at the Appeals Council level was inappropriate given that, by regulation, proceedings for disability benefits are non-adversarial. Id. at 111 (citing 20 C.F.R. § 404.900 (1999)). Proceedings before an ALJ are also non-adversarial. 20 C.F.R. § 404.900(b) (2002). 4.
An ALJ’s Duty to Develop the Record Conflicts The Sims plurality recognized that an ALJ’s independent duty to develop the record weighed against imposing Appeals Council issue exhaustion. See Sims, 530 U.S. at 111 (“It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits”) (citing Richardson v. Perales, 402 U.S. 389, 400-01 (1971)). As discussed above, ALJ issue exhaustion would undercut an ALJ’s duty to develop the record. While an ALJ would still have a regulatory obligation to “look[] fully” into the issues, see 20 C.F.R. § 404.944 (2002), if ALJ issue exhaustion applied, that obligation would be enforceable only insofar as a claimant specifically asked the ALJ to look into any particular issue. See also Burnett, 220 F.3d at 120 n.2 (recognizing the tension between an ALJ’s duty to develop the record and ALJ issue exhaustion). An ALJ’s duty to develop the record does not only conflict with ALJ issue exhaustion. More generally, an ALJ’s duty to develop the record entails that issue exhaustion does not apply to administrative proceedings for disability benefits. If an agency considers an issue apart from any argument urged by the non-government party, the main policy reasons for requiring issue exhaustion are not present and a court may address the issue. See Natural Resources Defense Council, Inc, 824 F.2d at 1151 (“This court has excused the exhaustion requirements for a particular issue when the agency has in fact considered the issue.”). An ALJ’s independent duty to look fully into the issues thus minimizes, if not defeats, any general issue-exhaustion requirement imported from administrative law. 5.
The Agency Does Not Require a Claimant to Submit When considering the relevance of Appeals Council issue exhaustion, the Sims plurality found it significant that the regulations governing Appeals Council proceedings permitted but did not require the filing of written arguments; that the agency form on which a request for Appeals Council review could be made provided little room for argument; and that the Appeals Council’s review was plenary. See Sims, 530 U.S. at 111. Similarly, the regulations pertaining to ALJ proceedings do not require submission of any oral or written argument to an ALJ, but merely permit making such argument. 20 C.F.R. §§ 404.949, 404.950(a) (2002). The one-page form used to request an ALJ hearing has limited room for a claimant to set forth a theory of disability. Further, it is axiomatic that an ALJ issues a de novo decision, i.e., a new decision giving no deference to the fact that the claimant was previously found not disabled by the state agency. 42 U.S.C. § 405(b); Heckler v. Campbell, 461 U.S. 458, 462 n.6 (1983). Proceedings before the Appeals Council and ALJs are thus indistinguishable in several relevant respects. 6. The Claimant Did Not Receive Prior Notice of ALJ Issue Exhaustion. Justice O’Connor agreed with the “result” of the Sims plurality and wrote “separately because, in [her] view, the agency's failure to notify claimants of an issue exhaustion requirement in this context is a sufficient basis for [the Court’s] decision.” Sims, 530 U.S. at 113. The agency did not tell claimant Sims that she needed to raise an issue to the Appeals Council to preserve that issue for later judicial review. Id. at 113-14. The agency admitted that a form used to request Appeals Council review could be completed in ten minutes and that, generally, submitting written argument was optional. Id. Finally, the Appeals Council’s review of an ALJ’s decision is plenary. Id. A representative may argue that Justice O’Connor’s concurrence applies with equal force to ALJ issue exhaustion. The agency did not notify the claimant he or she would waive the right to judicial review of any issue not articulated expressly to the ALJ. Moreover, the Request for Hearing By Administrative Law Judge form HA-501-U5 includes just three or four lines for a claimant to state his or her disagreement with the state agency’s earlier denial of benefits. This form takes ten minutes to complete. And, just as proceedings before the Appeals Council are plenary, proceedings before an ALJ are de novo, i.e., plenary. 20 C.F.R. § 404.944 (2002); Heckler v. Day, 467 U.S. 104, 107 (1984). 7. There Are Policy Reasons Not to Impose ALJ Issue Exhaustion. There are several policy reasons not to impose ALJ issue exhaustion. First, the imposition of ALJ issue exhaustion likely will not reduce the workload of district and appellate courts. Instead, ALJ issue exhaustion will likely cause protracted litigation to define the boundaries of the doctrine generally and its application in individual cases. For example, to apply ALJ issue exhaustion, a court will be forced to determine whether a particular issue should have been raised to an ALJ before a written decision is rendered or that the particular issue arose only in the ALJ’s written decision itself. Consider the issue whether an ALJ adequately addressed in his written decision the claimant’s credibility. Obviously, a claimant should not have to raise prior to the ALJ’s decision the issue whether the ALJ is required to address adequately his or her credibility or whether the ALJ in fact addressed his or her credibility adequately. A claimant should not have to predict what mistake an ALJ might make and then address that potential future error prior to the ALJ’s decision. In fact, the agency’s Supreme Court litigation counsel in Sims recognized that the “great majority” of issues related to an ALJ’s decision arise only after the ALJ renders his or her decision. It would thus be expedient not to impose ALJ issue exhaustion. Second, besides determining whether a particular issue was one which fairly understood only arises by virtue of the ALJ’s decision itself, to implement ALJ issue exhaustion, courts must undertake fact-intensive inquiries to determine whether a claimant actually raised a particular issue to an ALJ. These inquiries are made problematic given an ALJ’s independent duty to develop the record. 20 C.F.R. § 404.944 (2002). Thus, for example, in Jackson, the agency asserted to the Supreme Court when opposing the petition for a writ of certiorari that the Fifth Circuit had erroneously ruled that Jackson had not raised a particular issue to the ALJ: “We continue to believe that the evidence introduced in the administrative proceedings was sufficient to alert the ALJ to the possibility that petitioner’s hearing loss would affect his wage-earning capacity, and that the ALJ should have conducted a further inquiry on that subject.” Br. for the Resp’t in Opposition at 10, Jackson v. Massanari, No. 00-9044 (U.S.). Third, with ALJ issue exhaustion, courts must determine the relevance of the rule for unrepresented and represented claimants. This determination is further made problematic by the fact that there are different kinds of representatives. For example, lay persons such as claimants’ relatives may serve as representatives. Cf. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“In this case, Tonapetyan was represented, but by a lay person rather than an attorney.”). In short, for all these reasons, a court should not adopt the doctrine of ALJ issue exhaustion.
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Eric Schnaufer, Attorney at Law, Eric Schnaufer's e-mail address |