Social Security/Judicial Review of Agency Decisions
Overview[edit | edit source]
In a year's time, over 18,000 district court actions involving Social Security and Supplemental Security Income decisions are filed. That amounts to approximately one in seven appealable Social Security Appeals Council dispositions. See SSA, Appeals to Court as a Percentage of Appealable AC Dispositions. The Social Security Act itself, in 42 U.S.C. § 405(g), furnishes the framework for this judicial review. It sets out the standard of review and establishes jurisdiction.
In establishing the framework for judicial review of benefit determinations, the Social Security Act also circumscribes it, specifically precluding judicial review under other federal statutes. 42 U.S.C. § 405(h). It limits review to final agency decisions based on a hearing, and requires that the action be filed in the federal district court for the district in which the claimant resides within 60 days after receipt of notice of the final decision. 42 U.S.C. § 405(g). (By regulation that is presumed to have occurred "5 days after the date of such notice, unless there is a reasonable showing to the contrary." 20 C.F.R. § 422.210(c).)
Since only final decisions of the Social Security Administration "made after a hearing to which … [the claimant] was a party" are subject to judicial review, numerous agency actions and failures to act are not. For example, a remand decision by the Appeals Council exercising its authority to review an ALJ decision on its own motion is not reviewable. The same is true of the Agency's discretionary decision not to accept an untimely hearing request or reopen an earlier application. See Califano v. Sanders, 430 U.S. 99 (1977); Matlock v. Sullivan, 908 F.2d 492 (9th Cir.1990).
Judicial review of an unfavorable benefit determination is restricted to questions of law and whether the decision is supported by "substantial evidence." Questions of law include challenges to the Agency's interpretation of the Act. See, e.g., Astrue v. Capato, 566 U.S. 541 (2012); Barnhart v. Thomas, 540 U.S. 20 (2003); Sullivan v. Zebley, 493 U.S. 521 (1990). They also include constitutional claims. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). Most commonly, however, legal questions concern the compliance of a benefit determination and the procedure by which it was reached with the Social Security Administration's own regulations. See, e.g., Brown v. Colvin, 825 F.3d 936 (8th Cir. 2016); Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015).
Claims of lack of "substantial evidence" are the more frequent basis for judicial appeals. Years ago, the Supreme Court defined that critical phrase in the Social Security context as "more than a mere scintilla... [but] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U. S. 197 (1938)). As elaborated in decades of subsequent decisions, the lower federal courts have construed "substantial evidence" review as necessarily demanding scrutiny of the articulated grounds of the Agency's final decision.
While district judges (or magistrate judges acting on their behalf) conduct their review solely on the basis of the administrative record, the Act does authorize them to consider evidence that was not presented to the Social Security Administration. This is only for the purpose of deciding whether to send the matter back to the Agency for further proceedings. The statute provides that the court can, at any time, remand the case for the consideration of new evidence, upon a showing that the new evidence in question "is material" and that there was "good cause for the failure to incorporate … [it] into the record." 42 U.S.C. § 405(g). See, e.g., Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831 (3d Cir. 1984). Because "new evidence" remands are authorized in the sixth sentence of 42 U.S.C. § 405(g) and remands upon a court's conclusion that the Agency decision was not supported by "substantial evidence" or did not conform to law are covered by the subsection's fourth sentence, the two types of remand are commonly referred to as "sentence six" and "sentence four" remands. The distinction has important consequences for the award of attorney's fees under the Equal Access to Justice Act. See Shalala v. Schaefer, 509 U.S. 292 (1993); Melkonyan v. Sullivan, 501 U.S. 89 (1991).
A substantial fraction of the disability benefit cases filed with the U.S. District Courts are assigned to a magistrate judge. See Table S-17—U.S. District Courts–U.S. Magistrate Judges Judicial Business (September 30, 2017).
Of the 18,000 or so Social Security appeals disposed of by U.S. District Courts in 2016, approximately 8% were dismissed on procedural grounds (such as late filing or a failure to meet subsequent court deadlines), 42% resulted in the Agency's decision being upheld, and at least 50% resulted in the claim being returned to SSA (with an order that benefits be calculated and paid in 2% of the cases). In a good number of the remanded cases (15% of the overall total), that action was requested by the Agency. See Jonah Gelbach & David Marcus, Administrative Conference of the United States, A Study of Social Security Litigation in the Federal Courts, Final Report, July 28, 2016, at 31.
Need to Exhaust Administrative Remedies[edit | edit source]
Normally before seeking judicial review of Agency action, the claimant must have pursued all available administrative remedies up through and including Appeals Council review. A failure to do so within prescribed time limits generally precludes judicial review. See Medellin v. Shalala, 23 F.3d 199 (8th Cir. 1994).
Only in exceptional circumstances will bringing an action at an earlier stage be successful. Situations in which exhausting administrative remedies may be unnecessary include claims challenging the constitutionality of provisions in the Act and those focusing on the functioning of the administrative procedure itself. See, e.g., Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1 (2000); Bowen v. City of N.Y., 476 U.S. 467 1986); Mathews v. Eldridge, 424 U.S. 319 (1976); Weinberger v. Salfi, 422 U.S. 749 (1975); Justiniano v. Soc. Sec. Admin., 876 F.3d 14 (1st Cir. 2017); N.Y. v. Sullivan, 906 F.2d 910 (2d Cir. 1990); Harper v. Bowen, 813 F.2d 739 (5th Cir. 1987).
The regulations expressly provide for an expedited appeals process with a direct path to district court in cases that raise no factual issues, but only Constitutional questions about a provision of the Social Security Act. Its use requires the claimant to relinquish all other grounds for appeal. 20 C.F.R. §§ 404.923 - 404.928; 20 C.F.R. §§ 416.1423 - 416.1428.
A narrower doctrine of "issue exhaustion" accepted by some courts prior to 2000 precluded arguing issues during judicial review that had not previously been raised before the ALJ or the Appeals Council. In Sims v. Apfel, 530 U.S. 103 (2000) the Supreme Court reversed the Fifth Circuit and held that Social Security claimants who exhaust administrative remedies need not in doing so have raised all issues in a request for review by the Appeals Council in order to preserve them for judicial review.
Timely Filing by the Claimant[edit | edit source]
The Act requires that the action to review a final Agency decision be filed within 60 days. While the Agency can extend the period for "good cause," its exercise of that discretion is itself not reviewable. While courts may interpret the time limit with some flexibility, particularly in terms of when it begins to run, compliance is normally strictly enforced.
In Bowen v. City of New York, 476 U.S. 467 (1986), the Supreme Court held that the 60-day limit is not jurisdictional. Consequently, under proper circumstances a federal district court may hold that the period's running is tolled on equitable grounds. The Supreme Court held that a case for tolling exists when claimants do not know of an internal Agency policy that violates their rights. Subsequent decisions suggest that the grounds for tolling are strongest in cases involving government misconduct. See, e.g., Vernon v. Heckler, 811 F.2d 1274 (9th Cir. 1887). In some circuits, at least, that is not required. See, e.g., Torres v. Barnhart, 417 F.3d 276 (2d Cir. 2005); Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991). In addition, a court can allow late filing upon a showing of "excusable neglect." The standard is a strict one. See McCarty v. Astrue, 528 F.3d 541 (7th Cir. 2008).
District Court Procedures[edit | edit source]
Unlike most other civil actions filed in U.S. District Court, those seeking review of a determination by the Social Security Administration place the court in a strictly appellate role. Consequently, they fit awkwardly against the Federal Rules of Civil Procedure. That has led individual courts to adopt local rules or orders that apply specifically to such cases and fill in crtical procedural details. Consistency from court to court or even judge to judge cannot be assumed. The nature, length, and schedule of filings vary considerably across the country. See Jonah Gelbach & David Marcus, Administrative Conference of the United States, A Study of Social Security Litigation in the Federal Courts, Final Report, July 28, 2016, at 127-136.
Available Remedies[edit | edit source]
In the normal case requiring judicial review of an Agency determination, the court confronts a choice between affirming the Agency action or finding it in error. In the latter case the court may flatly reverse the determination and order the Agency to calculate and pay benefits. Alternatively, it may remand for further administrative proceedings. In the wake of the Supreme Court's detailed discussion of remedies as they affect claims for attorneys fees under the Equal Access to Justice Act, in Melkonyan v. Sullivan, 501 U.S. 89 (1991), remands are now, themselves, divided into two categories, often referred to as "sentence four" and "sentence six" remands. The terminology is based on the two different sentences in 42 U.S.C. § 405(g), authorizing remand. When a court finds the Agency in error and remands the case, the court has ordered a sentence four remand. On the other hand, when a court has not passed on the substance of the Agency's decision, but has merely remanded the case for the Agency to consider new evidence, the remand is pursuant to sentence six.
The choice between outright reversal and remand can sometimes be difficult. This is especially true when the case includes issues that involve credibility and fact-finding, on the one hand, but the proceeding has already gone on for an inordinate length of time. Under the Ninth Circuit's "credit-as-true" rule, a remand for payment of benefits is appropriate when the rejection of the claimant's testimony or that of a medical source by the administrative law judge is not linked to substantial evidence and that testimony, if accepted, would justify an award. See Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014); Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2006); Harman v. Apfel, 211 F.3d 1172 (9th Cir. 2000). The Eleventh Circuit appears to follow a similar approach. See Hale v. Bowen, 831 F.2d 1007 (11th Cir. 1987).
The most difficult questions of the scope of relief a court may grant under the Act or some other source of authority arise when the court is asked to order the Agency to implement a new procedure, to attain certain standards of performance, or to issue administrative guidance in particular form. In individual claims, the most difficult issue has to do with the circumstances that warrant a court's effectively taking a decision away from the Agency rather than remanding for a new determination employing proper standards and procedures.
Since the Act both precludes judicial review under other statutes and refers only to review of Agency actions, doubt once existed about authority for other forms of relief. In Califano v. Yamaski, 442 U.S. 682 (1979), the Supreme Court held that injunctive relief could be awarded in a proceeding under the Act. However, in Heckler v. Day, 467 U.S. 104 (1984), the Supreme Court held that federal district courts do not have authority to issue injunctions imposing deadlines on the Agency's processing of disability claims or to require interim benefits in cases of delay. In Schweiker v. Chilicky, 487 U.S. 412 (1988), the Supreme Court held that money damages were not an available remedy in an action against federal officials alleging due process procedural violations in disability terminations.
Class actions that challenge a widespread Agency policy or practice almost invariably pose difficult questions of appropriate remedy.
Class Actions[edit | edit source]
Where a federal district court has jurisdiction over the claims of the individual class members under the Act, the Supreme Court held, in Califano v. Yamaski, 442 U.S. 682 (1979), that court has the discretion to certify a class to litigate those claims. In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme Court held that the Act did not, however, provide for jurisdiction over the claims of unnamed class members who had not yet received a "final decision."
Use of Magistrate Judges in Social Security Appeals[edit | edit source]
The Federal Magistrates Act grants federal district courts broad authority to assign magistrates duties beyond those specifically listed in its provisions. In Mathews v. Weber, 423 U.S. 261 (1976), the Supreme Court held that this authorized a district court's order requiring initial reference of all actions seeking review of Social Security benefit determinations to a magistrate. The Court noted that when such references are made the federal district judge retains ultimate responsibility for the decision. Many districts employ this procedure.
If the claimant consents the magistrate judge will handle the appeal completely. 28 U.S.C. § 636(c). Otherwise the magistrate judge prepares a report and recommendation – the proposed basis for a district judge's decision. The use of the latter procedure, in effect, creates a two level process with the district judge being placed in an appellate role. Issues not raised with the magistrate cannot be the basis of an objection to the magistrate's report and recommendation. See, e.g., Berna v. Chater, 101 F.3d 631 (10th Cir. 1996); Borden v. Sec'y of Health & Human Servs., 836 F.2d 4 (1st Cir. 1987). (No similar limitation applies to judicial review of the Agency's decision. The Supreme Court held, in Sims v. Apfel, 530 U.S. 103 (2000), that a claimant is not precluded from raising issues in judicial review that were not presented when appealing the ALJ's decision to the Appeals Council.) Issues that have not been waived can be the basis for a timely objection to a report and recommendation and its subsequent rejection or modification by the assigned district judge. See, e.g., Butler v. Colvin, No. 13-2459, 2014 U.S. Dist. LEXIS 119053, 2014 WL 4231078 (E.D. La. Aug. 25, 2014).
Common Grounds for Appeal[edit | edit source]
How the ALJ Conducted the Hearing[edit | edit source]
The administrative law judge (ALJ) is responsible for setting the time and place for the hearing, and the method of conducting it. A claimant who objects to the time or place set for a hearing should do so in writing as soon as possible. Regulations specify deadlines and acceptable reasons for last minute objections. The Agency uses videoconference hearings as a means of reaching claimants in areas that are remote from a hearing office and also as a means of addressing the need for additional ALJs in overburdened areas. Any claimant scheduled for a videoconference hearing has the right, however, upon request, to be rescheduled for one conducted face-to-face so long as that is feasible. The request must be timely and the change may be at the cost of some delay. Even with in-person hearings, testimony by vocational or medical experts may be introduced via videoconference or telephonic linkups. See generally 20 C.F.R. § 404.936.
The ALJ has authority to issue subpoenas requiring the appearance of a reluctant witness or the production of documents. The decision to do so can be upon the ALJ's own motion or at the claimant's request. A claimant has a right to request issuance of a subpoena, but must do so at least 10 business days prior to the hearing. See 20 C.F.R. § 404.950(d).* In LA, MS, and TX an acquiescence ruling (AR 91-1) has implemented the Fifth Circuit's ruling in Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990) that an ALJ must grant a claimant's request for a subpoena for the purpose of cross-examining an examining physician. The Agency's position is that the decision on whether to issue a subpoena is discretionary, requiring a showing by the claimant that the testimony sought is reasonably necessary for presentation of the claimant's case.
At the hearing, the administrative law judge (ALJ) is responsible for looking into the issues of a case. The ALJ's role is an active one. He or she has a duty not merely to receive evidence and to preside over the hearing, but to ask questions of the appellant and other witnesses. The ALJ is supposed to discharge three contending duties at once. In addition to serving as an impartial decider, the ALJ is responsible for testing the claimant's evidence, asking questions that the Agency might ask if it were represented at the hearing. Critically, the ALJ also has a duty to assure full development of the claimant's case, especially when the claimant is not represented by an attorney.
Despite these obligations the ALJ remains in charge of the hearing and therefore may limit questions and interrupt the claimant or other witnesses and may admonish them about delays or repetitious testimony.
The ALJ's Treatment of an Unrepresented Claimant[edit | edit source]
Courts generally hold that the basic obligation of an administrative law judge (ALJ) to develop a full and fair record rises to a higher level when the claimant is unrepresented and unfamiliar with the procedures. When the claimant is confused or has language difficulties, the duty is especially strong. This duty requires the ALJ to inquire, to probe, to explore and even to seek additional evidence in order to assure a full record on the issues raised by the claim. See, e.g., Nelms v. Astrue, 553 F.3d 1093 (7th Cir. 2009); Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009).
A claimant is entitled to representation by counsel in proceedings before the Agency. This is a statutory right, not one flowing from the U.S. Constitution. The standard notice of a claimant's right to a hearing explains the right to be represented. See 42 U.S.C. § 406(c). The right to counsel does not mean that an attorney is assured or that the Agency will provide counsel. The right is effectively denied, however, in cases where the Agency fails to give notice of the hearing to the claimant's attorney or to determine that a claimant appearing without counsel is, in fact, represented. See, e.g., Graham v. Apfel, 129 F.3d 1420 (11th Cir. 1997)
Some U.S. Court of Appeals circuits have held that for an effective waiver of the right to counsel there must be notice to the claimant of how an attorney can be helpful, the existence of free and contingent fee representation, and the Act's limitations on fees. See, e.g., Cowart v. Schweiker, 662 F.2d 731 (11th Cir. 1981); Clark v. Schweiker, 652 F.2d 399 (5th Cir. 1981).
In cases where due to the claimant's psychological, intellectual, or language limitations an attorney would be especially valuable, the administrative law judge (ALJ) may be required by a court to assure that a claimant proceeding unrepresented has made an intelligent waiver of this right or had reasonable opportunity to secure counsel. In such cases, however, there must be a showing that the lack of counsel resulted in prejudice to the claimant or an unfair proceeding. Smith v. Schweiker, 677 F.2d 826 (11th Cir. 1982). This means that cases raising this issue are also likely to involve issues about the adequacy of the record developed by the ALJ.
Quality of the ALJ's Written Opinion[edit | edit source]
The decision of an administrative law judge (ALJ) is subject to judicial review. That review does not constitute an independent appraisal of the record but simply a determination whether the record contains substantial evidence supporting the ALJ's findings. The ALJ's decision must address all the evidence at some reasonable level. When there is considerable evidence that runs counter to the Agency's position it must be dealt with.
While courts express understanding for the practical burdens under which ALJs operate, they view an adequate ALJ decision as essential for appropriate judicial review. Adequacy for these purposes requires the ALJ to apply the relevant legal standards to the pertinent evidence in the record and to explain the legal and factual underpinnings of a determination in sufficient detail for a reviewing court to understand them. While the ALJ need not discuss every document, the ALJ cannot select for comment only the evidence that supports his or her ultimate conclusion. It is enough that the findings be related to a summary of the evidence that will enable a court to follow how the determination was made.
The court's role is not to find whether substantial evidence can be found in the record to support the ALJ's ultimate conclusion but whether the intermediate determinations the ALJ made were supported by substantial evidence. That requires the ALJ's decision to contain findings on the factors and stages of determination laid out in the Act and regulations. See, e.g., Scrogham v. Colvin, 765 F. 3d 685 (7th Cir. 2014); Knight v. Colvin, 756 F. 3d 1171 (10th Cir. 2014); Cook v. Heckler, 783 F.2d 1168 (4th Cir. 1986)
Social Security Ruling SSR 16-3p sets out a detailed approach for adjudicators to follow when evaluating symptoms in disability cases.
The ALJ's Evaluation of Medical Evidence[edit | edit source]
Under the Act the Agency has the ultimate responsibility for determining disability. It is not bound by the judgments of other bodies administering related benefit programs nor by the testimony of a physician who characterizes the claimant as "disabled" or "unable to work."
It is generally stated that an administrative law judge (ALJ) hearing a disability benefit appeal has the responsibility for weighing all the medical evidence and that the claimant has the burden of proof in establishing the existence and degree of his or her physical and mental impairments. It is also generally stated that an ALJ cannot substitute his or her own medical opinion for those of medical professionals or interpret raw medical data without expert assistance. See, e.g., Akin v. Berryhill, 887 F.3d 314 (7th Cir. 2018); Diedrich v. Berryhill, 874 F.3d 634 (9th Cir. 2017). Issues of proper treatment of medical evidence arise when an Agency decision is appealed to federal district court, and it is argued that the ALJ's decision is not supported by the record. In that setting courts have established some more detailed guidelines on proper treatment and weight for certain types of medical evidence in relation to others. Most widespread among these guidelines are the positions of the various circuits of the U.S. Court of Appeals on the weight to be given testimony by treating physicians. Another has to do with determinations by other agencies.
While the Agency has the ultimate responsibility for evaluating the claimant's medical condition, courts have held that the Agency and an administrative law judge (ALJ) hearing an appeal must give special weight or attention to reports and testimony from a physician who has treated the claimant. Such testimony and reports are distinguished from those coming from physicians who have simply examined the claimant in order to evaluate his or her condition for purposes of the claim. See, e.g., Trevizo v. Berryhill, 862 F.3d 987 (9th Cir. 2017); Childress v. Colvin, 845 F.3d 789 (7th Cir. 2017); Brown v. Comm'r of Soc. Sec., 873 F.3d 251 (4th Cir. 2017); Kneeland v. Berryhill, 850 F.3d 749 (5th Cir. 2017).
While not being bound by the determinations of other federal agencies administering disability programs (like the Veterans Administration), courts have also held that SSA must give them some weight and have refused to affirm ALJ decisions that failed to give explicit consideration to such findings. See, e.g., Hiler v. Astrue, 687 F.3d 1208 (9th Cir. 2012).
Regulations that apply to claims filed on or after March 27, 2017 attempt to loosen some of the more specific judicially crafted rules that address the treatment of medical evidence and determinations by other agencies. 20 C.F.R. § 404.1520c.
In Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court held that written reports by physicians who had examined a disability claimant constituted substantial evidence supporting a finding of not disabled, notwithstanding the absence of cross-examination and opposing testimony by the claimant and claimant's medical witness.* In LA, MS, and TX an acquiescence ruling (AR 91-1) has implemented the Fifth Circuit's ruling in Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990) that an ALJ must grant a claimant's request for a subpoena for the purpose of cross-examining an examining physician. The Agency's position is that the decision on whether to issue a subpoena is discretionary, requiring a showing by the claimant that the testimony sought is reasonably necessary for presentation of the claimant's case.
When an administrative law judge (ALJ) hears a disability benefit appeal, the record may include a report from a Medical Expert (ME), a physician who has not examined the claimant but has simply reviewed the reports, tests, and other medical evidence provided by others. The extent to which the ALJ may rely on the testimony or report of such a non-examining physician, particularly when it rejects the diagnosis or conclusion of medical personnel who have examined or even treated the claimant, can be a critical issue. The use of a Medical Expert is left to the ALJ's discretion. While use of a ME may occur before, during or after a hearing, ALJs are directed to avoid off-the-record exchange with such a physician. The appropriate role of such an expert is providing impartial assessment of the available medical evidence in response to specific questions from the ALJ or the claimant. See generally HALLEXI-2-5-30 to I-2-5-45.
The ALJ's Reliance on Flawed Vocational Expert Testimony[edit | edit source]
Once a claimant has established that he or she cannot perform past relevant work, the next issue is whether there is work available in the national economy that a person with the claimant's residual functional capacity can perform.
In cases properly resolved under the Medical-Vocational Guidelines, the guidelines themselves embody the necessary evidence of work availability.
In cases that fall outside the guidelines evidence of work the claimant can perform must come from other sources. An agency decision that the claimant is not disabled that does not rest on such evidence will generally be overturned. Social Security RulingSSR 96-9p focuses on treatment of cases in which the claimant's residual functional capacity assessment indicates an ability to perform less than a full range of sedentary work.
The issue of how many positions spread over how large a region it takes to meet the Act's test of "substantial gainful work which exists in the national economy . . . in significant numbers" has resisted detailed resolution. See, e.g., Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519 (9th Cir. 2014); Beltran v. Astrue, 700 F.3d 386 (9th Cir. 2012); Barrett v. Barnhart, 368 F.3d 691 (7th Cir. 2004).
In cases falling outside the Medical-Vocational Guidelines, it is common to use a vocational expert to testify on the availability of work that can be performed by individuals with the claimant's skills and residual functional capacity. Indeed, expert testimony is probably required in most such cases if the Agency is to meet the burden of coming forward with vocational evidence that courts have placed on it.
The regulations simply state that such specialists may be used at the discretion of the Agency. Social Security Ruling SSR 00-4p provides more detailed agency policy on the use of vocation expert evidence. Among other things it places a duty on ALJs to obtain explanations of discrepancies between vocational expert testimony and the Dictionary of Occupational Titles. Nothing, of course, prevents claimants from producing experts of their own at a disability benefit hearing.
When a vocational expert is used at a disability benefit hearing, the expert's testimony concerns the number and range of jobs available to individuals with residual functional capacities like those of the claimant. Since that testimony comes before the administrative law judge (ALJ) has reached a conclusion on the precise extent of the claimant's impairments and the vocational expert is not in a position to make medical judgments, the testimony is commonly framed in terms of hypothetical individuals with impairments like those the claimant may be found to have.
When the hypotheticals on which the vocational expert testifies fail to include all elements of the claimant's medical condition, courts may hold that an ALJ's determination resting on that testimony is not supported by substantial evidence. See Lanigan v. Berryhill, 865 F.3d 558 (7th Cir. 2017); Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014); Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2014).
Unique Issues with Cases of Mental Impairment[edit | edit source]
The Act's disability standard includes both physical and mental impairments. Cases involving the latter are, as a class, more difficult to evaluate. The regulations now lay out a procedure or approach for evaluating mental impairments. 20 C.F.R. § 404.1520a. Failure to document its use can lead to a remand. See Patterson v. Comm'r of SSA, 846 F.3d 656 (4th Cir. 2017). In addition, the Listing of Medical Impairments includes categories of mental impairment. Social Security Ruling SSR 85-16 provides guidelines for determining residual functional capacity in cases where the claimant's mental impairment(s) do not meet or equal a listed impairment. Social Security Ruling SSR 85-15 treats the relationship between such impairments and the Medical-Vocation Guidelines. It also contains a discussion of the impact of workplace stress, noting that individuals with mental impairments may function successfully in a restricted environment but fail to deal effectively with the demands of getting to work regularly and receiving supervision.
Cases in which mental impairments pose special difficulty include cases in which the claimant is seeking to establish onset of disability before insured status was lost but no contemporary mental health evaluations are available, cases in which the claimant's mental impairments interfere with presenting the disability claim to the Agency, cases in which the manifestation of mental illness is episodic, and cases in which a degree of mental impairment is but one of a complex of impairments.
Unique Issues in Cases Involving Pain and Other Subjective Impairments[edit | edit source]
Pain and such other subjective impairments as dizziness and drowsiness create great difficulty for disability claimants and the Agency. The Act requires that a disability be medically determinable. That does not mean that the particular manifestation of a medical condition be measurable by medical tests. It does, however, exclude problems that have no evident basis in a medical condition. Determining whether a person's complaints of pain have a sufficient medical connection is one of the most frequently litigated Social Security issues. Since judgments about the claimant's credibility go to the core of a disability claim of this type, the issue is often framed in those terms. Where there is medical evidence of a condition that is consistent with the subjective complaints and their severity, some courts require the Agency to explain its grounds for rejecting the claimant's testimony about pain or similar impairments. On the other hand, when the stated grounds include one resting on a factual error but the reviewing court concludes there is still substantial evidence to support the credibility determination it may conclude that the error was harmless.
The different circuits of the U.S. Court of Appeals have all addressed the problem. Their formulations vary but they are similar in recognizing that a disability determination can rest heavily on the claimant's own testimony about subjective complaints, but that some medical evidence is necessary. See, e.g., Hall v. Colvin, 778 F.3d 688 (7th Cir. 2015); Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015)
A long. succession of Social Security Rulings have addressed this subject. The most recent, superseding all prior ones, is Social Security Ruling SSR 16-3p. It seeks to reduce the emphasis on the claimant's "credibility," directing evaluation of all evidence of an impairment's "intensity, persistence, and limiting effects." The conditions of Chronic Fatigue Syndrome and Fibromyalgia are the subject of specific rulings. Social Security Ruling 14-1p.html SSR 114-1p.html 4-1p addresses the former; SSR 12-2p, the latter.
Unique Issues in Cases Involving Alcohol or Drugs[edit | edit source]
Alcoholism and other substance addictions pose distinct disability problems. Prior to a 1996 amendment, however, they were assessed like other sources of disability. Alcoholism and drug addiction could qualify as disabilities apart from any other physical or mental impairment, and they could also be a major contributing element in cases involving other impairments. Under the Act prior to the 1996 amendment, some courts even placed an affirmative duty on the Agency to develop further medical evidence, notwithstanding a claimant's denial of the condition, in cases where there was evidence of substance abuse.
The 1996 amendment radically changed the law on this point. Under its provisions, neither alcoholism nor drug addiction can be an independent basis for a disability determination. Further, neither can be a major contributing factor ("material") to such a determination. 42 U.S.C. § 423(d)(2)(C).
Social Security Ruling SSR 13-2p sets out Agency policy on evaluation of disability claims in which drug addiction or alcoholism is a factor. The ruling explains what disorders the Agency considers covered by the exclusion (importantly, not nicotine or caffeine dependence) and how it makes the "materiality" determination. New POMS sections followed in 2014. See DI 90070.000.
The need for medical evidence on the role of drug addiction or alcoholism in the claimant's condition and who bears the burden of proof on "materiality" continue to be litigated issues. See, e.g., Cage v. Comm'r of Soc. Sec., 692 F.3d 118 (2d Cir. 2012); Campbell v. Astrue, 627 F.3d 299 (7th Cir. 2010).
Substantial Evidence[edit | edit source]
As applied "substantial evidence" necessarily demands scrutiny of the articulated grounds of the Agency's final decision. Several related propositions follow:* It is not the reviewing court's role to search the entire record for "substantial evidence" supporting the administrative denial. The Administrative Law Judge's decision (or Appeals Council ruling) must, to use frequently repeated language, "build an accurate and logical bridge between the evidence and the result." See, e.g., Monroe v. Colvin, 826 F.3d 176 (4th Cir. 2016); Sarchet v. Chater, 78 F.3d 305 (7th Cir. 1996).
- A rationale for the agency disposition furnished in the government's brief to the court but not found in the agency decision itself does not satisfy the "substantial evidence" test. See, e.g., Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014); Bray v. Comm'r of SSA, 554 F.3d 1219 (9th Cir. 2009); Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999).
- An agency decision that rests on a serious factual error cannot be sustained on the basis of an alternative ground not expressed in the decision. See, e.g., Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996).
- While the benefit claimant has the burden of establishing eligibility, the Agency is under an obligation to develop the record, an obligation that is heightened in the case of an unrepresented individual. See 20 C.F.R. § 404.1512(b); 20 C.F.R. § 416.912(b). Some courts have tied this obligation to the "substantial evidence" test, reasoning that: "When a "full and fair record" is lacking, the ALJ will not have "sufficient facts on which to make an informed decision" and thus his decision will not be "supported by substantial evidence." Kane v. Heckler, 731 F.2d 1216 (5th Cir.1984). On the effect of the lack of legal representation, see, e.g., Brown v. Shalala, 44 F.3d 931 (11th Cir. 1995), Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979).
Harmless Error[edit | edit source]
Even if the benefit claimant can establish that the Social Security Administration (SSA) committed procedural error or that SSA's final decision failed to address a pertinent issue, the Government may argue that the error did not affect the outcome. In such cases it will ask the reviewing court to affirm, characterizing the defect as "harmless error" or not "prejudicial."
A 2009 decision of the Supreme Court, Shinseki v. Sanders, 556 U.S. 396 (2009), dealt with that line of argument in an analogous setting – judicial review of disability benefit decisions made by the Veterans Administration. In Shinseki the Court held that in this context the reviewing court was to "apply the same kind of 'harmless-error' rule that courts ordinarily apply in civil cases." Id. at 406. Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal has the burden of explaining how the error caused harm. One circuit court, the ninth, has explicitly concluded that rationale of Shinseki v. Sanders applies to Social Security cases:
We conclude that Sanders applies to Social Security cases as well as VA cases. In both, the agency has a duty to help the claimant, so the Social Security Administration's duty to assist claimants does not distinguish the cases. The Veterans Court has a statute providing for a harmless error rule and the Social Security statute does not so provide, but this makes no difference, because the [Supreme] Court held that all the Veterans Court statutory provision did was import the Administrative Procedure Act rule and the general federal rule for civil cases. The Court cited 28 U.S.C. § 2111, under which the harmless error rule applies to "any" case.…
But Sanders does not mean that the claimant necessarily has to show what other evidence could have been obtained.…
We infer from Sanders that, despite the burden to show prejudice being on the party claiming error by the administrative agency, the reviewing court can determine from the "circumstances of the case" that further administrative review is needed to determine whether there was prejudice from the error. Mere probability is not enough. But where the circumstances of the case show a substantial likelihood of prejudice, remand is appropriate so that the agency "can decide whether reconsideration is necessary." By contrast, where harmlessness is clear and not a "borderline question," remand for reconsideration is not appropriate.
Most of the other circuit courts employ similar verbal formulae when faced with a government argument of harmless error. However, the degrees of the "burden to show prejudice" they place on the claimant vary considerably.
Treatment of New Evidence Submitted to the Appeals Council[edit | edit source]
When the claimant has submitted new evidence to the Appeals Council pursuant to 20 C.F.R. § 404.907, but the Appeals Council has declined to review the ALJ's decision, two issues arise upon subsequent judicial review:
- whether the new evidence is part of the record against which the court will perform "substantial evidence" review, and
- whether the Appeals Council denial of review is itself subject to judicial review.
The U.S. Circuit Courts of Appeals are divided on these questions.
New Evidence Remand ("Sentence four")[edit | edit source]
The Act authorizes a federal district judge to remand a case to the Agency to hear new evidence. For such a remand, the Agency need not have committed any error in the original proceeding.
Where the remand is requested by the claimant so as to permit the consideration of new evidence, the Act requires that the evidence be both new and material and that there be a showing of good cause for the failure to incorporate that evidence into the record in the prior proceeding. See, e.g., Jones v. Astrue, 647 F.3d 350 (D.C. Cir. 2011). Even where such a remand is requested by the Agency, the Act requires a showing of "good cause." 42 U.S.C. § 405(g).
Availability of Review under Other Statutes[edit | edit source]
In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme Court held that the Act's bar of federal question jurisdiction applies even to litigation challenging the Constitutionality of particular provisions of the Act. In Califano v. Sanders, 430 U.S. 99 (1977), the Supreme Court held that the Administrative Procedure Act does not provide subject matter jurisdiction for judicial review of Agency action under the Social Security Act. In Jude v. Comm'r of Soc. Sec., 908 F.3d 152 (6th Cir. 2018), plaintiffs sought damages under the Federal Tort Claims Act (FTCA) for the "wrongful death" of their deceased spouses, alleging that their suicides were the result of improper notifications of benefit suspension and redetermination. The court dismissed their claim on the ground that such actions by the Social Security Administration fell within the FTCA's "discretionary function exception."
In theory mandamus is available against the Social Security Administration and its employees but only if there is clear right to relief, a clear duty to act, and no other adequate remedy available. See, e.g., Power v. Barnhart, 292 F.3d 781 (D.C. Cir. 2002); Kildare v. Saenz, 325 F.3d 1078 (9th Cir. 2003).
Agency Acquiescence in Adverse Precedent[edit | edit source]
Except for class actions, successful Social Security litigation in federal court yields relief for but a single individual. Yet, sometimes a court's holding concerning an Agency interpretation, procedure, or policy has clear implications for other cases. If that court is the nation's highest the decision will, of course, affect program operations nationwide. See, e.g., Sullivan v. Zebley, 493 U.S. 521 (1990). In contrast, if that court is a district court or a circuit court of appeals issuing an unpublished or non-precedential opinion, the Social Security Administration will not view it as binding in similar cases. A precedential U.S. Court of Appeals decision taking a view of the Act or regulations with which the Agency disagrees will, on the other hand, sometimes (but not always) prompt it to issue an acquiescence ruling, binding on all Social Security units handling cases within that circuit court's jurisdiction. The Agency website maintains a full collection of such rulings. Until the Agency issues such an acquiescence ruling, Social Security Administration decisionmakers are directed to ignore the implications of district court and court of appeals opinions for other cases. See Social Security Ruling SSR 96-1p.
Supporting and Elaborating References[edit | edit source]
Social Security Act:[edit | edit source]
Regulations:[edit | edit source]
Acquiescence Rulings:[edit | edit source]
POMS:[edit | edit source]
- GN 01000.000 (Adjudication)
Hallex:[edit | edit source]
Agency Guidance:[edit | edit source]
Selected Cases:[edit | edit source]
Harmless Error[edit | edit source]
- Accepting the government's harmless error argument
- Ward v. Comm’r of Soc. Sec., 211 F.3d 652 (1st Cir. 2000)
- Ulman v. Comm'r of Soc. Sec., 693 F.3d 709 (6th Cir. 2012)
- Rabbers v. Comm'r SSA, 582 F.3d 647 (6th Cir. 2009)
- Stepp v. Colvin, 795 F.3d 711 (7th Cir. 2015)
- Schomas v. Colvin, 732 F.3d 702 (7th Cir. 2013)
- Byes v. Astrue, 687 F.3d 913 (8th Cir. 2012)
- Partee v. Astrue, 638 F.3d 860 (8th Cir. 2011)
- Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
- Mays v. Colvin, 739 F.3d 569 (10th Cir. 2014)
- Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162-63 (10th Cir. 2012)
- Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)
- Rejecting the government's harmless error argument
- Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011)
- Blakley v. Comm'r of Soc. Sec., 581 F.3d 399 (6th Cir. 2009)
- Spiva v. Astrue, 628 F.3d 346 (7th Cir. 2016)
- Rounds v. Comm'r SSA, 807 F.3d 996 (7th Cir. 2015)
- Cuthrell v. Astrue, 702 F.3d 1114 (8th Cir. 2013)
- Marsh v. Colvin, 792 F.3d 1170 (9th Cir. 2015)
- Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015)
- Hackett v. Barnhart, 475 F.3d 1166 (10th Cir. 2007)
- Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004)
Treatment of New Evidence Submitted to the Appeals Council[edit | edit source]
- Holding that the new evidence should be included in "substantial evidence" review
- Perez v. Chater, 77 F.3d 41 (2d Cir. 1996)
- Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011)
- Wilkins v. Secretary, Dep't of Health & Human Servs., 953 F.2d 93 (4th Cir. 1991)
- Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005)
- Van Vickle v. Astrue, 539 F.3d 825 (8th Cir. 2008)
- Nelson v. Sullivan, 966 F.2d 363 (8th Cir. 1992)
- Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993)
- O'Dell v. Shalala, 44 F.3d 855 (10th Cir. 1994)
- Ingram v. Comm'r of SSA, 496 F.3d 1253 (11th Cir. 2007)
- Keeton v. Department of Health & Human Servs., 21 F.3d 1064 (11th Cir. 1994)
- Holding that the new evidence should be excluded from "substantial evidence" review
- Subjecting the stated grounds for Appeals Council denial of review to judicial review
Articles and Notes:[edit | edit source]
- Luci D. Davis. Comment. "Heads We Win; Tails Let's Play Again": The Split over the Credit-as-True Rule in the Ninth Circuit, 50 Ariz. St. L.J. 365 (2018)
- Morton Denlow, Substantial Evidence Review in Social Security Cases as an Issue of Fact, 2007 Fed. Cts. L. Rev. 3
- Jason D. Vendel, Note, General Bias and Administrative Law Judges: Is There a Remedy for Social Security Disability Claimants?, 90 Cornell L. Rev. 769 (2005)
- Philip M. Pro & Thomas C. Hnatowski, Measured Progress: The Evolution and Administration of the Federal Magistrate Judges System, 44 Am. U.L. Rev. 1503 (1995)
- Jody L. Davis, Nonacquiescence by the Social Security Administration as a Matter of Law: Using Stieberger v. Sullivan as a Model, 44 Mercer L. Rev. 1453 (1993)
- Carolyn A. Kubitschek, A Re-Evaluation of Mathews v. Eldridge in Light of Administrative Shortcomings and Social Security Nonacquiescence, 31 Ariz. L. Rev. 53 (1989)
- Robert E. Rains, A Specialized Court for Social Security? A Critique of Recent Proposals, 15 Fla. St. U.L. Rev. 1 (1987)
- Effect of Administrative Law Judge's Failure to Explain Rejection of Probative Evidence in Social Security Disability Case, 167 A.L.R. Fed. 65
- Order, Based on New Evidence Provision of 42 U.S.C.A. § 405(g), That Additional Evidence Be Taken in Administrative Proceeding To Establish Eligibility for Benefits under Social Security Act, 152 A.L.R. Fed. 123
- When is Claim Sufficiently Presented to Secretary of Health and Human Services to Permit Judicial Review Under § 205(g) of Social Security Act (42 USC § 405(g)), 99 A.L.R. Fed. 198
- What Constitutes "Colorable Constitutional Claim" to Permit Judicial Review of Final Action Taken by Secretary of Health and Human Services Without Hearing, 94 A.L.R. Fed. 773
- Provision of 42 U.S.C. § 405(g) Making Secretary of Health and Human Services' Findings of Fact Conclusive if Supported by Substantial Evidence as Applying to Administrative Law Judge or Social Security Appeals Council, 90 A.L.R. Fed. 280
- Mandamus, under 28 U.S.C.A. § 1361, to Compel Prompt Hearing in Appeal from Denial of Social Security Disability Benefits, 47 A.L.R. Fed. 929