# Reply Brief — Forney v. Apfel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0193%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 266 ## Text rN & Sugreme «Court, U - FILED No. 97-5737 In The CLERK Supreme Court of the United States October Term, 1997 ¢ SANDRA K. FORNEY, Petitioner, KENNETH S. APFEL, Commissioner of Social Security, Respondent. ¢ On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit . REPLY BRIEF FOR PETITIONER 6 RavpH W'LBoRN (Counsel of Record for Petitioner) RavpH WILBORN AND Erra L. Wicsorn, P.C. 1580 Valley Drive, Suite 170 Eugene, Oregon 97401 (541) 485-4265 Etta L. WiLBporN Tim WILBORN RavrpH WILBORN AND Etta L. Wivsorn, P.C. 1580 Valley Drive, Suite 170 Eugene, Oregon 97401 (541) 485-4265 Eric SCHNAUFER 2501 N. Lincoln Ave. #285 Chicago, Illinois 60614 (773) 935-4016 Counsel for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 Il. IV. VI. TABLE OF CONTENTS Page The Positions Of Petitioner, The Commissioner Of Social Security, And Amicus ............. Under Its Own Rationale, The District Court Should Have Entered Judgment Reversing The Commissioner’s Final Decision, Without A Remand For A Rehearing, To Award Benefits Petitioner Did Not Get “Everything She Asked PU Sa GaSb CRNSE NER UeCROEE Sos aderetusvecesss The Availability Of Judicial Review Following An Unfavorable Decision After New Adminis- trative Proceedings Upon Remand Will Not Provide Petitioner With An Adequate Forum To Challenge The District Court’s Judgment EN Site 90 bes Wen ebedestee cedgececs cess Recognizing That Plaintiffs Such As Petitioner May Appeal Would Likely Decrease Appellate PN 5 6 sScesesecectenecstesesevessecess a ee 10 12 TABLE OF AUTHORITIES Page Cases Allen v. Bowen, 881 F.2d 37 (3d Cir. 1989) .......... 4,6 Bowen v. Yuckert, 482 U.S. 137 (1997)..............4.. 4 California v. Rooney, 483 U.S. 307 (1987) .............. 8 Consolidated Edison Co. v. NLRB, 305 U.S. 197 ti BM 12 Detrick v. Chater, 115 F.3d 573 (8th Cir. 1997)......... -) Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (0 | PPM Sree 4 Drummond v. Commissioner of Social Security, 126 RS S57 (6th Cle. S000)... o000cc00000neeeeneeeeeeee 2 Electrical Fittings Corp. v. Thomas & Betts Co., 307 US. 260 (IGG)... occcescscveuueeheuaneeeneene 8 Faucher v. Secretary of HHS, 17 F.3d 171 (6th Cir. BODE)... occ cenvccesenessenp sus seein nnn 8, 9 Gibson-Jones v. Apfel, __ F. Supp. __. No. 95- C-874, 1998 WL 57080 (N.D. Ill. Jan. 23, 1998) .... 19 Johnson v. Heckler, 741 F.2d 948 (7th Cir. 1984)........ 6 Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48 (2962) . . oo ce cesccenswoutthe ue onan enn 17 Key v. Sullivan, 925 F.2d 1056 (7th Cir. 1991) ......... 2 Lester v. Chater, 81 F.3d 821 (9th Cir. 1995).......... 16 Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997) ...... 5 Light v. Social Security Admin., 119 F.3d 789 (9th Cig. 2997) ...cccccveneckpoesus eeu ) Parr v. United States, 351 U.S. 513 (1956) ......... 16, 17 TABLE OF AUTHORITIES — Continued Page Partmar Corp. v. Paramount Pictures Theatres Corp., CC 12 Richardson v. Perales, 402 U.S. 389 (1971) ............. 6 Shalala v. Schaefer, 509 U.S. 292 (1993)............... 16 Smith v. Shalala, 46 F.3d 45 (8th Cir. 1995)............ 4 Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996)......... 5 Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985).......... 6 Sullivan v. Finkelstein, 496 U.S. 617 (1990)..... 2, 16, 17, 18 Terry v. Sullivan, 903 F.2d 1273 (9th Cir. 1990)........ 4 Titus v. Callahan, 133 F.3d 561 (8th Cir. 1997)......... 4 United States v. Jose, 117 S. Ct. 463 (1996) ..... 2, 15, 16 STATUTES EID 6, 13, 16 ccicncbmdacdevcescesccccccscece passim eee cba eGbcdscccncceoscctcccccccce 6 REGULATIONS ee ED, ee ee 3 20 C.F.R. § 404.1520(f) (1997)... 2... 2... e ees 3, 4 Orner AUTHORITY Social Security Ruling 96-8p, 61 Fed. Reg. 34,474 Cis E Cpa seeSGcbbdecsecccovccevccosce cee 5 1 Il. The Positions Of Petitioner, The Commissioner Of Social Security, And Amicus. The issue presented is whether a plaintiff seeking Social Security Disability benefits may appeal a district court judgment entered pursuant to sentence four of 42 U.S.C. § 405(g), reversing, with a remand for a rehearing, a final decision of the Commissioner of Social Security, in order to obtain a reversal of the Commissioner's final decision, without a remand for a rehearing (or a more favorable remand order). Petitioner and the Commis- sioner agree that Petitioner may appeal such a sentence- four judgment and that Petitioner is aggrieved by that judgment, but they disagree about matters related to the latter conclusion. (See Br. for Pet’r at 17-28; Br. for the Resp’t at 31; see also id. at 16-23.) Amicus argues that Petitioner is not aggrieved by the judgment, and that the judgment is not appealable. (Br. of Amicus Curiae (“Br. of A.C.”) at 12-19.) Petitioner and Amicus disagree whether Petitioner is aggrieved by the legal effect the district court's disposi- tion of Petitioner‘s Complaint will have on any new administrative proceedings upon remand. While Amicus does not dispute that the law of the case applies during any new administrative proceedings, or that the Commis- sioner is bound by any district court remand order, Amicus contends that the effect of the law of the case, or any district court remand order, does not make Petitioner an aggrieved party. (Br. of A.C. at 22-25.) With respect to issue preclusion, Petitioner and Amicus disagree about which of the district court's rulings are “necessary to the judgment.” Amicus contends that issue preclusion applies only to a single issue, while Petitioner contends the district court’s judgment precludes more issues. 2 The Commissioner appears to take the extraordinary position that (1) issue preclusion’ does not apply generally to sentence-four judgments reversing with a remand for a rehearing, (Br. for Resp’t at 30-34); (2) the law of the case? does not apply to administrative proceedings following a sentence-four judgment but may be invoked only in subse- quent civil litigation, (id. at 33 & n.19); and (3) on remand, the Commissioner is “free to,” but not required to, follow the district court’s remand order, regardless of whether the court remand order includes rulings favorable or unfavor- able to the non-government party, (id. at 24, 34). The Court should conclude that the district court's final decision is appealable under the normal rules of civil litigation with special reference to the procedural posture of Petitioner’s case and the plain language of sentence four of 42 U.S.C. § 405(g). United States v. Jose, 117 S. Ct. 463 (1996); Sullivan v. Finkelstein, 496 U.S. 617 (1990). Il. Under Its Own Rationale, The District Court Should Have Entered Judgment Reversing The Commissioner’s Final Decision, Without A Remand For A Rehearing, To Award Benefits. Sentence four of 42 U.S.C. § 405(g) provides that a court “shall have power to enter, upon the pleadings and ' The Commissioner's attack on issue preclusion based on court judgments is an extension of his attack on issue preclusion based on final agency actions. See, e.g., Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997). 2 In civil litigation after a new final decision of the Commissioner, the Commissioner has resisted the reach of the law of the case. See, e.g., Key v. Sullivan, 925 F.2d 1056 (7th Cir. 1991). (See also Br. of A.C. at 22 n.18 (noting tension in Commissioner's litigation position).) 3 transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Secu- rity, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (emphasis added). Petitioner appealed a dis- trict court sentence-four judgment reversing a final decision, with a remand for a rehearing, on the basis that the district court was required to enter a sentence-four judgment without a remand for a rehearing. Given the district court’s own rationale, absent an articulated legitimate justification, the district court should have entered a sentence-four judgment without a remand for a rehearing. A Social Security disability claim- ant may be found “disabled” either at step three or at step five of the sequential analysis of disability. 20 C.F.R. § 404.1520(d) (1997) (step three); 20 C.F.R. § 404.1520(f) (1997) (step five). The Commissioner found Petitioner “not disabled” at step five. (J.A. at 27-28.) When it reviewed the Commissioner’s decision finding Petitioner not disabled, the district court accepted that the Commis- sioner had the “burden of showing that [Petitioner] can engage in substantial gainful work in the economy/|.]” (J.A. at 128.) Moreover, the district court held that the Commissioner “did not sustain her burden of proof in step five of the five-step evaluative process in determin- ing whether [Petitioner] is entitled to benefits.” (J.A. at 128.) The court reached this conclusion accepting as true the Commissioner’s factual findings regarding Peti- tioner’s residual functional capacity and vocational char- acteristics. (J.A. at 125-28.) Given the foregoing, Petitioner established her claim. Because the district court articu- lated no reason to give the Commissioner another oppor- tunity to show that Petitioner could perform a significant number of jobs, the district court should have entered 4 judgment reversing the Commissioner's final decision without a remand for a rehearing. See, e.g., Allen v. Bowen, 881 F.2d 37 (3d Cir. 1989) (“The Secretary, in effect, asks this court for a second chance to prove his case because the testimony given by the first vocational expert did not satisfy the Podedworny teaching. We see no reason, how- ever, why the Secretary should be afforded such an addi- tional opportunity.”). As matters of law, public policy, and fairness, absent the court's articulated and legitimate justification, there should be no further administrative proceedings concern- ing the merits of a claim when a claimant fer Social Security disability insurance benefits proves to a court that she has satisfied any burden of proof, including any burden of production or persuasion, she may have had and when the government did not satisfy any burden of proof, including any burden of production or persuasion, it may have had. Through 42 U.S.C. § 405(g), Congress has accorded claimants for Social Security disability insurance benefits this very protection — the right to court judgments reversing, without remands for rehearing, unfavorable agency decisions.* ’ A “burden of proof” may be a burden of production and/ or a burden of persuasion. Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 272-74 (1994). The issue of the precise nature of the allocation of the burden of proof at step five of the sequential analysis, 20 C.F.R. § 404.1520(f) (1997), is not before this Court. Nonetheless we note that in Bowen v. Yuckert, 482 U.S. 137 (1997), this Court observed that the Commissioner “bears the burden of proof at step five,” and that this “allocation of burdens of proof” was within the Commissioner's regulatory authority, id. at 146 n.5. 5 Petitioner appealed the district court's judgment for other reasons as well At step five, a claimant is “dis- abled” if she cannot work on a full-time basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34,474, 34,476 (1996) (Titles II and XVI: Assessing Residual Functional Capac- ity in Initial Claims). Due to this full-time work require- ment, the district court should have found Petitioner disabled for two reasons. If the district court had accepted Petitioner's arguments regarding the weight due a treating physician's opinion and/or the evaluation of her credibility, the district court would have found that Petitioner could not work full time and that she was therefore disabled. (Pl.-Appellant’s Br. at 18-23, 28.)4 The Amicus grounds its arguments in the erroneous assertion that Petitioner did not appeal the district court's judgment and that Petitioner’s Ninth Circuit appeal was directed solely against the Commissioner's decision. (See e.g. Br. of A.C. at 3, 5, 21, 23-25.) Amicus overlooks that Petitioner's Notice of Appeal expressly appealed from the district court judgment. Amicus also fails to appreci- ate that Petitioner's appeal arose under appellate law governing Social Security appeals. When, pursuant to 42 * Contrary to appellate authority, Amicus asserts that the issues Petitioner raised (in addition to the failure of the vocational expert's testimony to carry the Commissioner's burden of proof) “are scarcely the type of challenges that, even when credited, lend themselves to outright reversal by a court lacking the authority to reweigh the evidence.” (Br. of A.C. at 19 n.15.) See, e.g., Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997) (awarding benefits based on review of Commissioner's evaluation of treating source opinions); Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (awarding benefits based on review of Commissioner's evaluation of claimant's testimony and treating source opinions). 6 U.S.C. § 405(g), a plaintiff initiates a civil action for judicial review of a final decision of the Commissioner finding that she was not under a “disability,” 42 U.S.C. § 423(d), a district court determines both whether sub- stantial evidence supports the Commissioner’s final deci- sion, including its essential subsidiary factual findings, and whether the Commissioner applied the proper legal standards when making his decision, 42 U.S.C. § 405(g) (sentence five). Moreover, if a district court enters judgment under sentence four of section 405(g) affirming the Commis- sioner’s decision, and the plaintiff appeals the district court’s final decision, 28 U.S.C. § 1291, an appellate court applies the same substantial-evidence standard of review the district court applied. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420 (1971); Johnson v. Heckler, 741 F.2d 948, 953 (7th Cir. 1984) (“Our standard of review is the same as that of the district court pursuant to. . . 42 U.S.C. § 405(g).”). The standard of appellate review is thus de novo. Although an appellate court may reference a district court’s rationale, see, e.g., Allen, 881 F.2d at 41, ultimately at issue is the Commissioner's final decision, not the dis- trict court’s rationale for affirmance of that decision, see, e.g., Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985). Given the foregoing, in the Ninth Circuit, Petitioner argued that the Commissioner's decision was not supported by substantial evidence and that it was based on the application of incorrect legal standards. When arguing that Petitioner did not attack the district court’s judgment in the Ninth Circuit, Amicus thus overlooks both the applicable standard of appellate review and that, in the Ninth Circuit, Petitioner expressly appealed from the dis- trict court’s judgment: 7 This is an appeal, in a Social Security dis- ability case, from the Judgment of Robert E. Jones, U.S. District Judge, District of Oregon, vacating the agency’s final decision that Forney was not disabled, but remanding to the agency for further proceedings. Forney appeals, and requests a finding of disability and payment of benefits, instead of remand for additional pro- ceedings. (Pl.-Appellant’s Br. at 2.) Because the appellate standard of review is de novo, on appeal of the district court's sentence-four judgment, Petitioner, of course, focused on errors in the Commissioner’s final decision. The unwary appellant challenges the district court’s rationale, neglect- ing the ultimate issue - whether the Commissioner’s final decision should be reversed and, if so, in what manner. Amicus asserts that Petitioner “seeks reversal of the agency decision, for reasons different than those stated in the district court opinion.” (Br. of A.C. at 3 (emphasis original).) Amicus makes a similar assertion in his state- ment of the Question Presented: Whether a social security claimant who suc- ceeds in winning a district court judgment pur- suant to 42 U.S.C. § 405(g), setting aside an agency decision to deny benefits and remanding to give the claimant an opportunity to secure all the benefits she seeks, is entitled to bring an appeal seeking reversal of the agency’s decision for additional reasons not relied upon by the district court in entering judgment in the claimant's favor. (Br. of A.C. at i (emphasis added).) Amicus thus over- looks that Petitioner appealed the district court’s judg- ment because, given its own reasoning and findings, the district court should have entered judgment reversing the Commissioner’s final decision, without a remand for a rehearing. At the appellate court, Petitioner argued that, 8 given its own rationale, the district court should have entered judgment reversing the Commissioner's decision, without a remand for a rehearing. Petitioner is thus aggrieved by the district court’s final judgment. Amicus also erroneously argues that “a remand is plainly necessary so that additional evidence may be taken on whether employment opportunities exist for someone with [Petitioner's] ability.” (Br. of A.C. at 19 n.15 (emphasis original).) With this proposition, Amicus ignores the significance of its citation to Faucher v. Secre- tary of HHS, 17 F.3d 171 (6th Cir. 1994). Petitioner has endured two administrative hearings and, according to the district court, the record already includes the Commissioner’s proffer of step-five voca- tional evidence for someone with Petitioner’s residual functional capacity and vocational characteristics. (J.A. at 47, 125-28.) This is consistent with the record. In response to a question from an administrative law judge (ALJ), a vocational expert identified two occupations which Peti- tioner purportedly could perform. In response to a ques- tion whether there were any other jobs the vocational expert could rely on, the vocational expert answered “No.” (Transcript at 88; Pl.-Appellant’s Reply Br. at 14.) The district court held that the ALJ’s finding Peti- tioner could perform the jobs identified by the vocational expert — assuming the validity of the AL]’s own findings regarding Petitioner's residual functional capacity —- was not 5 In light of Petitioner’s challenge of the district court's judgment on its own terms, Amicus’ heavy reliance on California v. Rooney, 483 U.S. 307 (1987), and its attempt to distinguish Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241 (1939), are inapposite. (Br. of Amicus Curiae at 20-22 (Rooney); id. at 24-25 (Electrical Fittings).) _ 9 supported by substantial evidence. At that point, the district court should have reversed the ALJ’s decision and directed that Petitioner be found disabled because, assuming the residual functional capacity as ultimately found by the ALJ, the vocational expert could not identify any other jobs Petitioner could perform. Thus, with the two inappropriate jobs eliminated (by the district court’s holding) and no other jobs identifiable, it is established that Petitioner cannot perform any jobs, and she is, there- fore, disabled. Under these circumstances, “all essential factual issues have been resolved and the record ade- quately establishes a plaintiff's entitlement to benefits.” Faucher, 17 F.3d at 176. Under such circumstances, where the Commissioner fails to satisfy his burden at step five, a court has author- ity to hold — and in some cases is required to hold — that the Commissioner’s final decision should be reversed without a remand for a rehearing, i.e., the court should hold that the claimant is under a disability. See, e.g., Terry v. Sullivan, 903 F.2d 1273, 1278-80 (9th Cir. 1990) (holding the Commissioner did not satisfy his step-five burden and further fact-finding was unwarranted); Detrick v. Cha- ter, 115 F.3d 573, 575 (8th Cir. 1997) (similar); Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995) (similar). Petitioner acknowledges that the Commissioner’s failure to satisfy his burden of proof at step five, however construed, does not always warrant reversal of the Com- missioner’s final decision, without a remand for a rehear- ing. The Commissioner’s failure sometimes warrants reversal with a remand for a rehearing,-see, e.g., Light v. Social Security Admin., 119 F.3d 789, 793-94 (9th Cir. 1997); Titus v. Callahan, 133 F.3d 561, 564-65 (8th Cir. 1997). However, this Court should not find that the district 10 court’s judgment below was not appealable, based on the Amicus’ erroneous assertion that Petitioner would not be able to prevail on the merits before the Ninth Circuit (i.e., to procure a Ninth Circuit decision holding that reversal of the Commissioner’s final decision without a remand for a rehearing was warranted). III. Petitioner Did Not Get “Everything She Asked For.” The Amicus erroneously states that “as a matter of pleading, [Petitioner] got everything she asked for when the District Court set aside the agency decision and remanded.” (Br. of A.C. 14 (emphasis added).) Petitioner sought first and foremost reversal of the Commissioner's final decision without a remand for a rehearing, i.e., reversal and a remand for a (ministerial) finding that she was under a disability (and thus entitled to benefits). (J.A. at 37, 92-93.) Only as a lesser relief did Petitioner seek a judgment reversing with a remand “for proper evaluation of the evidence or a hearing de novo.” (J.A. at 37.) Petitioner received only part® of the latter relief.” 6 Petitioner received a remand, but not for proper evaluation of the evidence and not for a de novo rehearing. Instead, the district court expressly ordered the agency to apply improper standards to the evaluation of the evidence during remand proceedings and to narrowly restrict those proceedings: “IT IS ORDERED that this case be REMANDED to the Secretary for further proceedings in accordance with this opinion.” (J.A. at 128 (emphasis added).) 7 Amicus claims that after the district court entered judgment Petitioner only “belatedly and self-servingly” argued that she sought as her primary relief reversal of the Commissioner’s final decision without a remand for a rehearing 11 A sentence-four judgment reversing a final decision of the Commissioner, with a remand for a rehearing, is necessarily a denial of the request for a judgment revers- ing without a remand for a rehearing. When the district court remanded this matter for a rehearing, it implicitly denied Petitioner’s request for a judgment reversing the Commissioner’s final decision without a remand for a rehearing. Thus, Amicus is simply wrong to assert that Petitioner “got everything she asked for,” (Br. of A.C. at 14), particularly when Amicus accepts that, all else being equal, Petitioner has only a sixty percent chance of being found disabled after her claim is reheard by the agency, (id. at 13). Amicus further argues that because Petitioner “emphatically does not challenge the judgment in her favor,” Petitioner “runs afoul of the rule that courts review judgments, not statements in opinions.” (Br. of A.C. at 8 (emphasis original).) Petitioner discussed above how this is not true. Properly understood, Petitioner’s challenge to the rulings underlying the district court’s denial of this requested relief is a challenge to the judg- ment. Hence, contrary to Amicus’ arguments, issues Peti- tioner raised in the Ninth Circuit (besides the significance as opposed to reversal with a remand for a rehearing. (Br. of A.C. at 15 n.12.) This claim is unreasonable given that in her Complaint Petitioner plainly stated that she first sought a reversal of the Commissioner’s final decision without a remand for-a rehearing and only if that relief were not granted a reversal with a remand for a “de novo” rehearing. (J.A. at 37.) Further, in the district court, Petitioner concluded her brief with a request for relief that mentioned only reversal without a remand for a rehearing, i.e., for a finding of disability. (J.A. at 92-93 (“and Plaintiff should be found disabled”).) 12 of the Commissioner’s failure to satisfy his step-five bur- den of proof), are subject to issue preclusion in subse- quent administrative and judicial proceedings insofar as the district court’s rulings on those issues were necessary to the district court’s denial of Petitioner’s request for a judgment reversing without a remand for a rehearing. Thus aggrieved, Petitioner has standing to appeal the district court’s final decision for reasons other than the district court's failure to appreciate the significance of the Commissioner’s failure to satisfy his burden of proof. Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 99-101 (1954). IV. The Availability Of Judicial Review Following An Unfavorable Decision After New Administrative Proceedings Upon Remand Will Not Provide Peti- tioner With An Adequate Forum To Challenge The District Court’s Judgment And Order. In support of his position that the district court's judgment is not appealable, Amicus argues that Peti- tioner may obtain judicial review of any of the district court’s rulings if she is not found disabled after the remand proceedings. (Br. of A.C. at 14, 23, 26-29.) Amicus does not acknowledge the significance of the standard of judicial review of a new final decision of the Commis- sioner. If Petitioner receives an unfavorable final decision after her claim is reheard by the agency, and if Petitioner files a new complaint, the district court will determine whether substantial evidence supports the Commissioner’s new final decision. 42 U.S.C. § 405(g) (sentence five). Because substantial evidence is less than a preponderance of the evidence, Consolidated Edison Co. v. NLRB, 305 U.S. 13 197, 229 (1938), a district court may (in some circum- stances) properly enter a sentence-four judgment affirming the Commissioner's new final decision even if on remand Petitioner established to the Commissioner by a prepon- derance of the evidence that she was disabled. Given the substantial-evidence standard of review, this Court should find that Petitioner's right to file a new complaint following receipt of an unfavorable decision after her claim is reheard does not provide Petitioner with an adequate forum to challenge the district court’s prior rulings. The importance of the substantial-evidence standard of review is stark when one assumes, as the Court should to resolve the issue of appealability of the district court's final decision pursuant to 28 U.S.C. § 1291, that Petitioner correctly maintains that the district court should have entered a sentence-four judgment reversing the Commis- sioner’s final decision, without a remand for a rehearing. Amicus would permit Petitioner to be denied benefits even though the record showed three times that she was disabled at step five, as follows: First, the Commissioner should have found Petitioner disabled at the hearing level. Second, the district court should have found Peti- tioner disabled and accordingly entered a sentence-four judgment reversing, without a remand for a rehearing, the Commissioner’s final decision. Third, after the hypothesized proceedings upon remand, the Commis- sioner should have found Petitioner disabled, but a court would not reverse the Commissioner’s new decision because although it was not based on a preponderance of the evidence, it was supported by substantial evidence. This Court should not endorse Amicus’ position leading to this anomalous, inequitable result, particularly since 14 the express language of section 405(g) empowers a court to enter a judgment reversing the Commissioner's deci- sion without a remand for a rehearing. Furthermore, a Social Security plaintiff will not be able to obtain review of many of the unfavorable rulings in a district court’s decision related to a sentence-four judgment reversing with a remand for a rehearing a final decision of the Commissioner. In most cases in which there is a rehearing following a district court reversal, additional evidence will be submitted by the claimant, by the Commissioner, or both. Judicial review of a Commis- sioner’s unfavorable final decision following the rehear- ing will thus commonly involve review of significantly different factual findings on a significantly different fac- tual record. For some matters, an expanded record will permit the Commissioner a second, third, or even fourth opportunity to satisfy his burden of proof at step five - subject only to deferential substantial evidence review - even though the pre-remand evidentiary record war- ranted a finding of disability. Moreover, during remand proceedings the Commis- sioner may generally create new medical evidence - e.g., opinion evidence from a non-examining medical source or a report from an examining medical source - that may be substantial evidence permitting judicial affirmance of the Commissioner's incorrect final decision following remand proceedings. Petitioner disagrees with the Commissioner and Amicus that a forty-percent chance of being found “not disabled” after a plaintiff's claim is reheard, (Br. of A.C. at 30 n.25; Br. of Resp’t at 27), provides adequate protec- tion of Petitioner’s interests. This is especially true when, as in Petitioner’s case, the pre-remand evidentiary record 15 interpreted in light of the applicable legal standard mandates a finding of disability: Petitioner appealed the district court’s judgment because the Commissioner should not be permitted a third bite at the apple. Viewed differently, Amicus neglects or denigrates the aspect of the district court’s decision ordering the Com- missioner to conduct remand proceedings consistent with its opinion. (J.A. at 128 (“IT IS ORDERED that this case be REMANDED to the Secretary for further proceedings in accordance with this opinion.” (italicized emphasis added).)* Because the Commissioner was ordered to con- form its remand proceedings to the district court’s Opin- ion and Order (J.A. at 118-28), Amicus’ attempt to distinguish Jose, 117 S. Ct. 473, fails. Amicus argues that, 8 In order to diminish the legal significance of the district court’s remand order, Amicus posits, “As is customary, the District Court did not specify the precise proceedings that must take place on remand.” (Br. of Amicus Curiae at 5 n.3.) It is unclear how Amicus knows what customarily accompanies sentence-four judgments reversing, with remands for rehearings, final decisions of the Commissioner. In any case, it is clear that the Commissioner, during remand proceedings, could not, at least for the time period previously adjudicated, find Petitioner “not disabled” at step four of the sequential analysis of disability. Nor could the Commissioner find Petitioner “not disabled” at step five, without supporting vocational expert testimony. Moreover, although pursuant to the district court’s order, the Commissioner should not revisit the precise issues Petitioner lost in the district court, if the Commissioner did revisit those issues in a manner advantageous to Petitioner, neither the Petitioner nor the Commissioner would have standing to argue in later judicial proceedings that the Commissioner did not comply with those rulings as incorporated in the district court’s remand order. 16 unlike the order at issue in Jose, the district court’s deci- sion herein “imposes absolutely no