Opposition Brief — Sims v. Apfel

ie ORIGINAL Fre

) OCT 15 1999

) No. 98-9537 ,

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JUATASSA SIMS, PETITIONER

Vv.

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

WILLIAM KANTER

ROBERT D. KAMENSHINE

Attorneys

| RECEIVED RIDAEERODS..06_e Soe ;

AFTER HOURS 7

(202) 514-2217

OCT 15 1999

OFFse—-OF-THE—Geenk

SUPREME COURT,_U_S.

QUESTION PRESENTED

Whether the court of appeals properly declined to consider

issues that petitioner failed to raise before the Social Security

Administration.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

No. 98-9537

JUATASSA SIMS, PETITIONER

Vv.

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. 1-2) and of

the district court (Pet. App. 3) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on November

6, 1998. A petition for rehearing was denied on February 18, 1999

(Pet. App. 36). The petition for a writ of certiorari was filed on

May 19, 1999. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

2

STATEMENT

ae Title II of the Social Security Act provides for the

payment of monthly benefits to disabled persons who have contribut-

ed to the program. 42 U.S.C. 401-433.* The initial disability

determination is made by a state agency, acting under the authority

of the Commissioner of Social Security. 42 U.S.C. 421(a). If the

State agency has denied the disability claim after an initial

decision and a de novo reconsideration, the claimant is entitled to

a hearing before an administrative law judge (ALJ). 42 U.S.C.

405(b); 20 C.F.R. 404.944-404.961. The claimant may appeal an

adverse decision by an ALJ to the Appeals Council within the Social

Security Administration (SSA). 20 C.F.R. 404.967-404.982. After

a claimant has exhausted those administrative procedures, he may

seek judicial review in federal court. 42 U.S.C. 405(g) and (h).

See Bowen v. Yuckert, 482 U.S. 137, 142 (1987); Bowen v. City of

New York, 476 U.S. 467, 482 (1986); Mathews v. Eldridge, 424 U.S.

319, 330 (1976); Weinberger v. Salfi, 422 U.S. 749, 765 (1975).

2. Petitioner is a claimant who was denied Social Security

disability benefits. After the state agency denied her claim,

petitioner requested a hearing before an ALJ, who determined that

1

Title XVI of the Act provides for the payment of disability

benefits to certain indigent persons under the Supplemental

Security Income Program. 42 U.S.C. 1382.

3

petitioner was not disabled under the Act. Pet. App. 26. The

Appeals Council found that there was no basis for review of the

ALJ's decision. Id. at 34. Petitioner was represented by counsel

before the ALJ and the Appeals Council. Id. at 17, 35.

3. The district court affirmed, adopting as its opinion the

report and recommendation of the United States Magistrate. Pet.

App. 5-6. The court found that the ALJ properly declined to credit

the report of petitioner's psychologist, Dr. Morris, because his

findings were “controverted by other evidence." Id. at 10. The

court then addressed and rejected several other arguments that

petitioner failed to present to the ALJ. Ibid.’

4. The court of appeals affirmed in an unpublished per curiam

opinion. Pet. App. 1-2. The court found petitioner's contention

that the ALJ failed to accord proper weight to Dr. Morris' opinion

“without merit because the ALJ is entitled and expected to

determine the credibility of medical experts and to weigh their

opinions accordingly." Id. at 2. The court further found that it

"lack [ed] jurisdiction" to review petitioner's remaining

2 The court rejected petitioner's contentions that the ALJ

selectively ignored the evidence (Pet. App. 10); that the ALJ

improperly failed to order a consultative examination under 20

C.F.R. 404.1519 (Pet. App. 11); and that the ALJ erred in not

asking the vocational expert a hypothetical question as to the type

of jobs petitioner could perforn in light of the impairments found

by the ALJ (Pet. App. 12).

4

contentions because "they were not raised before the Appeals

Council.” Ibid. The court therefore did not consider petitioner's

contentions that the ALJ improperly excluded certain of her

impairments in assessing her residual function capacity and that

the ALJ should have ordered a consultative examination to assess

her mental impairment. Ibid.

ARGUMENT

Petitioner argues (Pet. 7-16) that the court of appeals'

refusal to consider the contentions that petitioner failed to raise

before the Appeals Council conflicts with the Social Security Act

and the informal nature of disability determinations. That

contention, however, is incorrect and does not warrant this Court's

review.

1. It is well-settled that a party's failure to raise an

issue that he or she had an opportunity to present to an

administrative agency ordinarily bars the party from raising the

issue for the first time upon appeal of the administrative

Gecision. See, ¢.g., Unemployment Compensation Comm'n v. Aragon,

329 U.S. 143, 155 (1946). Sound reasons support the principle that

a party must raise an issue in an administrative proceeding in

order to preserve the issue on judicial review. "[(0) rderly

procedure and good administration require that objections to the

proceedings of an administrative agency be made while it has the

5

opportunity for correction in order to raise issues reviewable by

the courts." United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33, 37 (1952); accord Aragon, 329 U.S. at 155 ("A reviewing

court usurps the agency's function when it sets aside the

administrative determination upon a ground not theretofore

presented and deprives the [agency] of an opportunity to consider

the matter, make its ruling, and state the reasons for its

action.").’

Petitioner argues (Pet. 8, 11-14) that the above principle is

inconsistent with the informal and nonadversarial nature of a

disability determination by the SSA. However, "(t]he same

principles which guiie [other cases involving judicial review of

administrative action] — agency autonomy and expertise, efficient

judicial review and promoting judicial economy - apply to social

security administration appeals." Fernandez v. Apfel, No. 97 Civ.

6936 1998 WL 603151, at *16 (S.D. N.Y. Sept. 11, 1998); see also

James v. Chater, 96 F.3d 1341, 1344 (10th Cir. 1996) ("[T]his kind

* Although the court of appeals (Pet. App. 2) stated that it

lacked “jurisdiction” to review issues not raised before the

agency, the doctrine is one of judicial practice and does not

involve a matter of appellate jurisdiction in the technical sense.

See Hormel v. Helvering, 312 U.S. 552, 557 (1941) ("There may

always be exceptional cases or particular circumstances which will

prompt a reviewing or appellate court, where injustice might

otherwise result, to consider questions of law which were neither

pressed nor passed upon by the * * * administrative agency

below.").

6

of request for administrative review, which does not identify the

issues with any particularity, effectively sandbags the Appeals

Council" and "thereby deprive([s] [the court] of its informed views

on those issues"). The court of appeals therefore correctly

declined to review the contentions that petitioner failed to raise

before the Appeals Council. Pet. App. 1-2.

2. Petitioner contend: (Pet. 7, 14-15) that the decision

below conflicts with this Court's decision in Darby v. Cisneros,

509 U.S. 137 (1993). That is not correct. The Court in Darby held

that a claimant seeking judicial review under Section 10 of

Administrative Procedure Act (APA), 5 U.S.C. 702 et geg., must

first exhaust his administrative remedies only when “mandated

either by statute or by agency rule." 509 U.S. at 147. Here, the

Social Security Act explicitly requires the exhaustion of

administrative remedies. 42 U.S.C. 405(g) and (h); see Bowen v.

Yuckert, 482 U.S. 137, 142 (1987); Bowen v. City of New York, 476

U.S. 467, 482 (1986); Califano v. Sanders, 430 U.S. 99, 103 n.3

(1977); Mathews v. Eldridge, 424 U.S. 319, 330 (1976); Weinberger

v. Salfi, 422 U.S. 749, 765 (1975).

Petitioner asserts (Pet. 9-11, 15) that neither the Social

Security Act nor the Commissioner's implementing regulations

require a claimant to raise an issue before the agency in order to

preserve the issue for judicial review. Specifically, petitioner

-

argues that because the Act and regulations require a claimant to

raise an issue before the agency in certain instances, see 42

U.S.C. 405(g) (limiting judicial review when claimant fails to

“submit proof in conformity" with a regulation) and 20 C.F.R.

404.940 (requiring claimant to notify ALJ of an objection to

particular ALJ on grounds of bias "at your earliest opportunity"),

the claimant is not required to preserve an issue before the agency

in any other instance. Nothing in Section 405(g) or the

regulations, however, suggests that a court should depart from the

usual practice in administrative law by considering a matter not

presented to the agency in the first instance. Cf. Darby, 509 U.S.

at 153-154 ("the exhaustion doctrine continues to apply as a matter

of judicial discretion in cases not governed by the APA").

The prudential requirement that a litigant must have raised a

matter before the Appeals Council in order to raise it in court is

similar to than this Court's general practice of not reviewing an

issue not raised in or passed upon by the lower courts. See, e.g.,

Youakim v. Miller, 425 U.S. 231, 234 (1976). It is entirely

consistent with that requirement for the Appeals Council itself to

consider any issue it deems relevant to the matter before it,

whether or not the matter was raised by a party. See Kolstad v.

American Dental Ass'n, 119 S. Ct. 2118, 2127 (1999) ("The Court has

not always confined itself to the set of issues addressed by the

EE

8

parties."). Accordingly. the fact that the Appeals Council, if it

reviews a case, may decide to consider issues not raised by the

Claimant, does not suggest that a court may do so. Specification

of issues to the Appeals Council facilitates the performance of its

role in the administrative process by enabling it to identify cases

of possible error, and therefore to correct those errors before the

case goes to court. See Weinberger v. Salfi, 422 U.S. 749, 765-766

(1975). If a claimant fails to raise an issue with the Appeals

Council, but then presents it for the first time in court, that

purpose of the exhaustion requirement is undermined.

3. Petitioner also argues (Pet. 8-9, 13) that a rule

requiring claimants to present their contentions to the Appeals

Council raises due process concerns, especially in cases where the

claimant is not represented by an attorney or is not advised of the

rule by the agency. This case, however, does not raise any such

issue, because petitioner was represented by counsel before the ALJ

and the Appeals Council. See Meanel v. Apfel, 172 F.3d 1111, 1115

(9th Cir. 1999) (claimant's "fairness argument might be more

persuasive if [claimant] had not been represented by counsel").

Indeed, petitioner's counsel submitted to the Appeals Council a 12

page single-spaced letter specifying petitioner's objections to the

ALJ's decision. Admin. Rec. 164-176.

9

Moreover, at the time petitioner, through counsel, appealed

her disability determination to the ALJ and the Appeals Council,

the rule requiring claimants to present their contentions to the

agency in order to preserve them for judicial review was well-

settled in the Fifth Circuit as well as other courts of appeals.

Pet. App. 2 n.1; see also p. 10, infra. Petitioner therefore

cannot credibly contend that her due process rights were violated

because she lacked notice of the rule -- even if we assume,

arguendo, that some sort of notice were required in those

circumstances, especially where the claimant is represented by

counsel.

Apart from lack of any unfairness in this case, this Court's

review of petitioner's due process contentions is not warranted for

another reason as well. We have been informed by the SSA that, in

any case in which the claimant was not represented during the

administrative process, SSA as a matter of policy ordinarily does

not argue that the claimant is barred from making arguments on

judicial review that he failed to preserve in support of the claim

that he presented in the administrative proceedings. See Supp.

Pet. App. C2. Thus, the instances in which a court will find that

an unrepresented claimant has waived legal issues not raised before

the agency is not likely to occur with any significant frequency.

a

10

4. At the time the court of appeals issued its decision in

this case, the other courts of appeals that had considered the

question had also concluded that a claimant may forfeit the right

to raise issues on appeal if he did not raise them before the

Appeals Council. See, e.g., Krafsur v. Secretary of Health & Human

Services, 757 F.2d 446, 447 (list Cir. 1985); Krysztoforski v.

Chater, 55 F.3d 857, 860 (3d Cir. 1995); Harper v. Secretary of

Huma rvi , 978 F.2d 260, 265 (6th Cir. 1992); Pope v.

Shalala, 998 F.2d 473, 480 n.6 (7th Cir. 1993); Johnson v. Chater,

108 F.3d 942, 945-946 (8th Cir. 1997); Meanel v. Apfel, 172 F.3d

1111, 1115 (9th Cir. 1999); James v. Chater, 96 F.3d at 1343-1344.‘

After the decision below was rendered, however, two courts of

appeals issued decisions concluding that a claimant will not be

held to have waived issues that were not presented to the Appeals

Council. Harwood v. Apfel, 1999 WL 608649, at *2-*3 (8th Cir.

1999); Johnson v. Apfel, 1999 WL 675368 (7th Cir. 1999); see Supp.

Pet. 1-3 and Supp. Pet. App. A and B. The Eighth Circuit in

Harwood reasoned that the Appeals Council “routinely considers

arguments not specifically raised by claimants before it" and that

claimants are given "no advance notice that issues not specifically

: The Fourth Circuit has reached the same result in

unpublished dispositions. See, e.g., Cline v. Chater, No. 95-2076,

1996 WL 189021, at **4 (April 19, 1996); Clagg v. Chater, No.94-

2302, 1995 WL 679841, at **1 (Nov. 16, 1995).

raised will be forfeited." 1999 WL 608649 at *2.° The Eighth

Circuit explained that the SSA form through which claimants appeal

an adverse ALJ decision "provides a three-line space for claimants

to articulate the grounds for appeal -- and no warning of the

waiver rule." Ibid. Similarly, the Seventh Circuit in Johnson

overruled its prior precedent (see, e.g. Pope v. Shalala, supra)

and held that a claimant need not raise all contested issues before

the agency, because the Secretary's regulations and forms do not

require the claimant to present contested issues to the Appeals

Council. 1999 WL 675368, at *2.

Although the decisions in Harwood and Johnson are in conflict

with the decision below and the decisions of other courts of

appeals, there is no occasion at this time for the Court to

consider the question whether a claimant seeking social security

benefits must raise an issue at the administrative level in order

to preserve the issue for appeal. The SSA has informed us that it

intends to amend the form that claimants and their representatives

must file with the SSA in order for the agency to recognize someone

other than the claimant as acting on the claimant's behalf in

matters before the agency. See 20 C.F.R. 404.1707, 410.684, and

* As we have explained above, the fact that the Appeals

Council, under existing regulations, may chose to consider issues

not raised by a claimant does not mean that a court may do so.

12

416.1507. That form in the future will advise the claimant's

representative that the failure to present an issue to the Appeals

Council may preclude the claimant from raising the issue upon

judicial review of the agency's decision. That notice not only

responds to the concerns expressed by the Seventh and Eighth

Circuits about lack of notice, but also reflects SSA's judgment,

contrary to the Seventh Circuit's speculation in Johnson, 1999 WL

675368 at *2, that application of the waiver rule adopted by the

court below and a number of other courts of appeals is consistent

with the orderly administration of the Social Security program

where the claimant is represented in the review process.

The Seventh and Eighth Circuit have had no occasion to

consider the Commissioner's new procedures, and those courts

therefore have not decided whether a claimant whose representative

is actually notified of an obligation to present all contested

issues to the Appeals Council may nonetheless raise on judicial

review an issue not presented to the agency. It therefore would be

premature for this Court to consider that question until the courts

of appeals have considered the question presented in light of the

change in SSA's procedures.

S. This case is not ripe for this Court's review for another

reason as well. Quite aside from the revision of notices to

claimant's representatives, the extent to which a claimant must

13

present an issue to the Appeals Council is a matter that may be

conclusively resolved by regulation. See 42 U.S.C. 405(a). In

1994, the Commissioner of Social Security released a study and

proposal for a major restructuring of the administrative process

for reviewing disability claims. Social Security Admin., U.S.

Dept' of Health and Human Services, Pub. No. 01-005, Plan for a New

Disability Claim Process (1994), reprinted at 59 Fed. Reg. 47,887

(Sept. 18, 1994). We have been informed by the Social Security

Administration that, in April 1997, it began testing models that

include several changes to its disability determination procedures.

See, e.g., 20 C.F.R. 404.906, 404.943, 416.1406, 416.1443. One

change currently being tested is the elimination altogether of

requests for review by the Appeals Council. 20 C.F.R. 404.966,

416.1466. Selection of cases for those tests in eleven States

began in April 1997, and adjudication under the modified process

continues. Because the question presented in this case can be

conclusively resolved by regulation, and because the Social

Security Administration has the matter under review, we do not

believe that review by this Court is warranted at the present time.

Cf. Braxton v. United States, 500 U.S. 344, 348-349 (1991);

Richardson v. Wright, 405 U.S. 208, 209 (1972) (per curiam).

We have similarly relied on ongoing evaluation of possible

changes in the Appeals Council's role or procedures in opposing

14

certiorari in other cases in which a circuit conflict had arisen on

a different legal issue, and the Court has denied certiorari. See

Falge v. Apfel, 119 S. Ct. 907 (1999); Roark v. Chater, 519 S. Ct.

1094 (1997); Sullins v. Shalala, 513 U.S. 1076 (1995). The Court

should do the same here, especially since SSA in any event has

undertaken to address the question in its revised notice in cases

involving represented claimants.

NaTOT Us TON

a a Ne et ~ wes

The petition itor a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney General

WILLIAM KANTER

ROBERT D. KAMENSHINE

Attorneys

OCTOBER 1999

a RECEIve

No ~JPPEpe D

98-9537 POLS Oe URT, U.S

“SE DEPARTMENT

tect Nan

“+! 19 1999

JUATASSA ao

SA SIMs

+ PETITIONER 7181920,11,12; 119.5 4 Me

KENN v. Bitte,

E eo

TH S. APPEL, COMM (We

ISSIONER or SOCIAL

SECURITY

ate

FOR THE

; UN

1rst class ma een STATES

il, POStage

Counsel of Rosset S

ober 15, 1999