# Cobern HAMILTON, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, OF the UNITED STATES of America, Defendant-Appellee

> Court of Appeals for the Tenth Circuit · April 17, 1992 · 961 F.2d 1495

URL: https://www.frixlaw.com/law-library/cases/9482851

## Case

- **Full name:** 37 soc.sec.rep.ser. 151, unempl.ins.rep. (Cch) P 16558a Cobern Hamilton v. Secretary of Health & Human Services, of the United States of America
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** April 17, 1992
- **Citations:** 961 F.2d 1495; 1992 U.S. App. LEXIS 6978; 1992 WL 76501
- **Precedential status:** Published
- **Opinion:** Concurrence by Kane
- **Judges:** Ebel, Barrett, Kane
- **Cited by:** 424 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482851

## How later opinions describe it (automated extraction)

- explaining that because this Court acts as a first-tier appellate court, this Court applies the rule that arguments raised for the first time in a reply brief are generally deemed waived
- finding that claimant’s arguments that strength of evidence favored disability improperly asked court to reweigh evidence where ALJ’s determination was supported by substantial evidence
- rejecting contention that ALJ did not adequately consider nonmedical evidence of disabling pain; “[t]he ALJ 3 stated that he considered all of the evidence; his reliance on medical findings does not allow us to assume otherwise”
- rejecting contention that ALJ did not adequately consider nonmedical evidence of disabling pain; "[t]he ALJ stated that he considered all of the evidence; his reliance on medical findings does not allow us to assume otherwise"
- stating that it is within the province of the ALJ to weigh the medical evidence and discount it for specific and legitimate reasons

## Opinion text

KANE, Senior District Judge,
concurring.
I concur with the well-reasoned opinion of the court, believing that under the circumstances of the case, Claimant Hamilton was not prejudiced. I write this concurring opinion because I think the procedures used at the district court were inappropriate. Since, however, these issues were not raised in the briefs, the views expressed here are not, in my view, appropriate for the opinion of the court.
This case was decided on appeal by the district court on the basis of a “Motion to Affirm” filed by the Secretary. This so-called motion to affirm is not authorized by Congress and in fact is prohibited by this court in cases before us — see 10th Cir.R. 27.2.1. (“Except as otherwise expressly provided in this rule, no motion may be filed to affirm the judgment appealed from or to dismiss the appeal.”) For reasons which follow, I think the same rule should obtain in the district courts when they function in an appellate capacity. In that regard I note that no mention of motions to affirm is included in the Kansas District Court Rules. However, Rule 503 of that district’s rules, entitled “Social Security Cases,” states:
*1501 In proceedings for review of actions by the Secretary of Health and Human' Services under Title 42 of the United States Code, the Secretary shall cause an answer and a certified copy of the transcript of the record to be filed, within 90 days, or within such additional time as may be granted by order of the court for good cause shown, after service of the complaint for review pursuant to Fed. R.Civ.P. 4. Within 30 days from the filing of the defendant’s answer, the plaintiff shall also serve and file an appropriate dispositive motion and memorandum. Within 60 days from receipt of plaintiffs motion and memorandum, defendant shall serve and file a memorandum in opposition. The case shall be deemed submitted 15 days after the filing of the defendant’s memorandum, without oral argument, unless otherwise directed by the court.
D.Kan.Rule 503.
Thus, even under this rule, I think the government’s filing of a motion to affirm was improper. Rule 503 provides that only the claimant may file “an appropriate dis-positive motion,” and limits the government to a responsive memorandum in opposition to the claimant’s motion. There is wisdom in the rule. When the government files a motion to affirm, it reverses the positions of the parties, limiting a claimant’s appellate arguments to responses to the government’s motion.
Thus, a claimant is deprived of the opportunity to file a reply brief, and the government, in filing a motion to affirm, implicitly defines the issues on appeal. D.Kan.R. 503 does not provide for the filing of a reply brief, although, in this case, Claimant did file one, but, because individual social security cases begin with the filing of a Complaint, that document defines the issues on appeal. Practically speaking, reducing the claimant to responding to the government’s motion to affirm can have the effect of limiting the claimant’s arguments on appeal. In sum, D.Kan.R. 503 precludes the government’s filing of a motion to affirm in this case. I have found no ease law addressing the propriety of motions to affirm in social security cases or any other context. I did find, however, individual social security cases where motions to affirm were filed and so noted on appeal. See, e.g., Martinez v. Secretary of Health & Human Servs., 815 F.2d 1381, 1382 (10th Cir.1987) (per curiam).
Other social security appeals in the district courts have been considered on the basis of motions for summary judgment. The inappropriateness of summary judgment at the district court level in an individual social security case is likewise obvious and commonsensical. First, the purpose of summary judgment, to avoid meritorious consideration of nontriable issues, see Jones v. Nelson, 484 F.2d 1165, 1167 (10th Cir.1973), is not served by making such a motion at the district court level. The “trial” has already occurred at the agency level, and the district court acts as a first-tier appellate court in reviewing these cases. See Igonia v. Califano, 568 F.2d 1383, 1387 (D.C.Cir.1977).
Second, the district court does not apply summary judgment standards, namely, whether material issues of fact exist and, if not, whether the moving party is entitled to judgment as a matter of law, in review of an individual social security case. Basically, the facts are determined by an ALT at the agency level, including both medical facts and ultimate ■ facts such as whether the claimant is disabled. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.1984). The AU also makes credibility determinations and weighs the evidence as a factfinder to reach a result. See Swanson v. Secretary of Health & Human Servs., 763 F.2d 1061, 1064 (9th Cir.1985) (credibility determinations); Sanchez v. Secretary of Health & Human Servs., 812 F.2d 509, 511 (9th Cir.1987) (resolving disputes in evidence). When a social security case comes before a district court, the court’s review is limited, as.is this court’s, to a determination of whether the record as a whole contains substantial evidence to support the agency’s decision, and whether the agency applied the proper legal standards. See Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir.1991).
*1502 Nonetheless, the practice is quite common. A quick review of circuit-level decisions on Westlaw provided several examples where courts recited that motions for summary judgment were filed before district courts in individual social security cases. See, e.g., White v. Sullivan, 901 F.2d 94, 95 (8th Cir.1990) (per curiam). Further, several courts have gone so far as to cite to both standards of review — social security and summary judgment — in support of their decisions. See, e.g., Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989) (“This court reviews de novo the district court’s grant of summary judgment for the Secretary. We affirm a denial of benefits when the Secretary’s decision is supported by substantial evidence and is free from legal error.”) (citations omitted.) 1
Unlike many other agency review procedures, the district court’s review of an individual social security case begins with a Complaint and Answer. Faced with the government’s Answer, it may be that practitioners with little or limited experience in individual social security cases file motions for summary judgment because that is a common pre-trial practice in nonagency cases. In this case, Claimant’s attorney was also subject to D.Kan.R. 503 and faced with the government’s “Motion to Affirm.” Directed to file an “appropriate dispositive motion,” he filed a motion for summary judgment. In light of the standards and purposes of summary judgment, such a motion is not an “appropriate dispositive motion” before the Kansas district court in an individual social security case. 2
I recognize that other circuits have allowed motions for summary judgment in these cases and that there has been some slippage in this circuit with respect to our rule against such use. Accordingly, I think this present analysis is necessary.
A majority of courts permit district court review by Rule 56 motion, if not expressly require it. 3 See Lovett v. Schweiker, 667 F.2d 1, 2-3 (5th Cir.1981) (permitting use of summary judgment); Milton v. Harris, 616 F.2d 968, 975 (7th Cir.1980) (summary judgment appropriate where plaintiff does not challenge the completeness of the record); Beane v. Richardson, 457 F.2d 758 (9th Cir.), cert. denied, 409 U.S. 859 , 93 S.Ct. 144 , 34 L.Ed.2d 105 (1972); Johnson v. Califano, 434 F.Supp. 302, 310 (D.Md.1977) (whether social security benefits claim is supported by substantial evidence is a legal question to “which summary judgment procedure is particularly applicable”); Harvey L. McCormick, Social Security Claims and Procedures, § 732 at 308 (4th ed. 1991) (stating majority rule).
Others consider such motions to be improper procedurally, deeming them motions for judgment on the pleadings, motions for affirmance, or some hybrid thereof. See, e.g., Igonia, 568 F.2d at 1389 (court should more correctly enter either judgment on the pleadings under Rule 12(c) or an order pursuant to a motion under Rule 7(b)(1)); Morton v. Califano, 481 F.Supp. 908 , 914 n. 2 (E.D.Tenn.1978) (although frequently used as a procedural device, summary judgment “is not technically correct or nec *1503 essary under ... 42 U.S.C. § 405 (g)”); Garcia v. Califano, 463 F.Supp. 1098, 1100-01 (N.D.Ill.1979) (treating cross motions for summary judgment as motions for affirmance and reversal of Secretary’s decision); Torphy v. Weinberger, 384 F.Supp. 1117, 1119 (E.D.Wis.1974) (same).
The Fifth Circuit, in Flores v. Heckler, discussed the prevailing approach on this issue. Relying on cases from its circuit and other jurisdictions, the court noted that because “district courts in § 405(g) cases may not consider evidence outside the administrative record, ... summary judgment is therefore ‘a problematic procedure’ in disability appeals.” 755 F.2d 401, 403 (5th Cir.1985) (quoting Lovett, 667 F.2d at 2-3 ). The more important consideration in Flores was whether parties had an appropriate opportunity to present their arguments. Id. In that case, the district court entered summary judgment for the Secretary sua sponte, apparently before any briefing had occurred. Counsel for the plaintiff filed a motion for new trial and for summary judgment, including a twenty-two-page memorandum supporting the motion. The Fifth Circuit found no error in this procedure.
Whether the court proceeds under Rule 56 or under Rule 12(c), which authorizes motions for judgment on the pleadings, does not give us pause. We have noted that Rule 56 does not fully fit the district court’s role in the review of the Secretary’s decision. Regardless, the procedures of Rule 56 are used nigh universally in this circuit because its familiar procedural commands get the job done. Nothing prohibits this course.
On these facts, however, the district court’s error was harmless. In his Amended Motion for New Trial, Flores fully presented his substantive arguments to the district court. In denying the motion, the court stated that it had reviewed “the motion, the record, and the law.” Thus, our concern that “a party must have a fair opportunity to develop the record in opposition” to a judgment has been satisfied.
Id.
Although the Fifth Circuit’s opinion in Flores alluded to concern over the fairness of proceedings in which there has been no opportunity for briefing before the court ruled, the dispute over whether to permit decision by way of summary judgment stems more from lack of statutory or other guidance on how to bring social security cases to issue, not whether the summary judgment procedure deprives a claimant of a fair hearing. See, e.g., Clevenger v. Weinberger, 375 F.Supp. 821, 822 (W.D.Mo.1974) (since an action under 42 U.S.C. § 405 (g) raises only an issue of law, it is in the proper posture for summary judgment); Johnson v. Gardner, 284 F.Supp. 230, 233 (C.D.Cal.1968) (summary judgment an “appropriate way of bringing the matter on for judicial decision”).
Courts disapproving of use of the summary judgment procedure have done so not because the plaintiff is deprived of a fair hearing, but because the procedure permits parties to support their position by affidavits, depositions, and other supplemental materials going beyond the administrative record by which the district court is statutorily bound. See, e.g., Mercado v. Secretary of Health & Human Servs., 573 F.Supp. 1023, 1025 (D.P.R.1983). If additional evidence is to be considered; it must be by way of remand. See Brown v. Secretary of Health, Educ. & Welfare, 403 F.Supp. 938, 940-43 (E.D.Wis.1975).
My concern, however, is that the summary judgment procedure deprives the plaintiff of a fair hearing. In this circuit, there is authority that any type of summary proceeding, whether it be by motion for judgment on the pleadings, motion for affirmance or reversal, or motion for summary judgment, is improper in a social security case. In Johnson v. Weinberger, a social security case in which the Secretary moved for summary judgment, Judge Arraj held:
Although we now have before us the entire record, consisting of the pleadings and a certified copy of the transcript of the administrative proceeding, summary judgment is not the proper vehicle for resolution of the issues. As recently pointed out by the Court of Appeals for *1504 the Tenth Circuit, a dispute concerning the presence or absence of substantial evidence in a record is itself a genuine issue of material fact, precluding an award of summary judgment. Nickol v. United States, 501 F.2d 1389 (10th Cir.1974). Therefore the defendants’ motion for summary judgment must be denied. Nevertheless, since all the evidence is now before us, the case is ripe for final disposition; accordingly, we now proceed to make findings of fact and conclusions of law.
388 F.Supp. 628, 629 (D.Colo.1974); see also Morton, 481 F.Supp. at 914 n. 2 (“ ‘Ruling on the transcript and pleadings constitutes final disposition of the cause, and cannot properly be labeled summary within the contemplation of Rule 56.’ ”)
Judge Arraj's reliance on Nickol v. United States was well placed. In that case, we reversed the district court’s decision on summary judgment affirming a Board of Land Appeals’ ruling on the validity of a mining claim. We held that “where the determination [is] under 5 U.S.C. § 706 [of the Administrative Procedure Act], and the issue of whether or not the determination is ‘unsupported by substantial evidence,’ and where there is ‘substantial controversy’ as to the ‘material facts,’ the district court is precluded from entering Fed. R.Civ.P. 56 type of ‘summary judgment.’ ” 501 F.2d 1389, 1391 (10th Cir.1974). We looked to the Supreme Court’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971), as a “significant procedural indication of the nature of the statutory review to be here applied.” Nickol, 501 F.2d at 1391 . We found that under Overton Park, the district court must engage in “ ‘a substantial inquiry’ ” and its review of the administrative record must be “ ‘searching and careful.’ ” Id. Because the district court failed to make any formal findings supporting its ruling in Nickol , we concluded that it had not satisfied the requirements of Overton Park to “examine the facts in the record, evaluate the conflicts, and to then make a determination therefrom whether the facts supported the several elements which made up the ultimate administrative decision.” Id. at 1390 ; see also Heber Valley Milk Co. v. Butz, 503 F.2d 96, 97-98 (10th Cir.1974) (summary judgment improper in action to review Department of Agriculture milk order).
We have indicated that the rationale of Nickol applies in social security cases, see Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th Cir.1975), as did Judge Arraj in Johnson and other district courts in this circuit, see, e.g., Gonzales v. Califano, 452 F.Supp. 411, 412 (D.N.M.1978). But see Milton v. Harris, 616 F.2d at 973 (disagreeing with our position that review of the administrative record requires a more thorough consideration than is possible under summary judgment procedure). Yet our later decisions in the social security area seem to ignore this precedent. See, e.g., Greer ex rel. Greer v. Heckler, 756 F.2d 794, 796 (10th Cir.1985) (affirming district court’s decision on summary judgment motion in action under 42 U.S.C. § 405 (g)). Nevertheless, I think Nickol is still good law.
Although Nickol does not speak directly to my concern that the summary judgment procedure “short circuits” a plaintiff’s ability fully to present his arguments in a social security case, thereby depriving him of due process, it does support my view that the district court must undertake a careful, searching review of the record without resort to the truncated procedure under Rule 56 and, arguably, Rule 12. Therefore, I think this issue merits clarification. The use of motions to affirm, motions to reverse, motions for judgment on the pleadings, and motions for summary judgment in social security actions appears to have started because the parties were uncertain how to bring such actions to a decision. Nickol still reflects this court’s view on summary judgment in social security cases. Consequently, district courts should process these cases as appeals, eliminate aberrant motion practices, and follow the Federal Rules of Appellate Procedure.
. Interestingly, at the circuit level, this juxtaposition of the two standards actually makes some sense, since, as the second-tier appellate court, a circuit court does apply the same standard of review as the district court — the standard applicable to appellate review of individual social security cases.
. I note that it is important to distinguish social security cases determining the disability of individual claimants from other social security cases. In many instances, a motion for summary judgment will be appropriate in a social security setting. For example, Vallejo General Hospital v. Bowen, 851 F.2d 229 (9th Cir.1988), involved a challenge to the Secretáry's decision on reimbursements.
.In fact, one commentator advises practitioners to give "immediate consideration” to the filing of a motion for summary judgment once the Secretary has answered and served a copy of the administrative record, see Harvey L. McCormick, Social Security Claims and Procedures § 732 at 307 (4th ed. 1991), and another points to the local rules of several district courts which require that social security cases be decided by summary judgment motion and establish a briefing schedule for such motions, see The Lawyer’s Co-Operative Publishing Co., Federal Practice: Lawyers Edition § 71:665 n. 70 (1985) • (citing local rules of federal district courts in Illinois, Maine, Missouri, South Carolina, and Texas).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482851. Public record. Not legal advice.