Respondents Brief — Sims v. Apfel

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Supreme Court, US.

FILE

FER ne. 220

No. 98-9537

In the Supreme Court of the Ulited Hinte

JUATASSA SIMS, PETITIONER

KENNETH S. APFEL, COMMISSIONER

OF SOCIAL SECURITY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

WILLIAM KANTER

ROBERT D. KAMENSHINE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly declined to

address two of petitioner’s three claims of error on the

ground that petitioner had failed to present those

claims to the Social Security Administration’s Appeals

Council.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Summary of argument 12

Argument:

The court of appeals properly declined to address

petitioner’s second and third claims of error based

on petitioner’s failure to present those claims to

the Social Security Administration’s Appeals

Council 15

A. Where exhaustion of an administrative appeal

is a prerequisite to a judicial action, the fail-

ure to raise a claim in the administrative

appeal will ordinarily constitute a procedural

default that bars consideration of the claim on

judicial review 18

B. The second and third claims of error that peti-

tioner asserted in the court of appeals were not

raised in her request for review by the Appeals

Council and are therefore barred under estab-

lished principles of administrative law

C. Administrative default principles are fully

applicable to the Appeals Council process ............. *

D. Petitioner had fair warning that arguments

not raised before the Appeals Council would

be barred on judicial review 41

Conclusion 46

(IIT)

TABLE OF AUTHORITIES

Cases: Page

Adickes v. Kress & Co., 398 U.S. 144 (1970) 39

Alabama ex rel. Siegelman v. U.S.E.P.A., 911 F.2d

499 (11th Cir. 1990) 31

Auer v. Robbins, 519 U.S. 452 (1997) 40-41

Bauzo v. Bowen, 808 F.2d 917 (7th Cir. 1986) .................. 36

Bowen v. City of New York, 476 U.S. 467 (1986). 3, 7,

16-17, 32-33

Bowen v. Yuckert, 482 U.S. 137 (1987) 3, 16

Brotherhood of Railway, Airline, and Steamship

Clerks v. St. Lowis Southwestern Railway,

676 F. 2d 132 (5th Cir. 1982) 30

Coleman v. Thompson, 501 U.S. 722 (1991) 26

Colin K. by John K. v. Schmidt, 715 F.2d 1 (ist

Cir. 1983) 30

Darby v. Cisneros, 509 U.S. 137 (1993) 27,

Director, OWC v. North American Coal Corp.,

626 F.2d 1137 (3d Cir. 1980)

Edwards v. Department of the Army, 708 F.2d 1344

(8th Cir. 1983) 30-31

Engle v. Isaac, 456 U.S. 107 (1982) 26

Fierro v. Bowen, 798 F.2d 1351 (10th Cir. 1986),

cert. denied, 480 U.S. 945 (1987)

Harper v Secretary of Health & Human Servs.,

978 F.2d 260 (6th Cir. 1992)

Harwood v. Apfel, 186 F.3d 1089 (8th Cir. 1999) .............

Heckler v. Day, 467 U.S. 104 (1984) 3, 34

Heckler v. Ringer, 466 U.S. 602 (1984) 17, 19, 32

Hir v. Director, OWCP, 824 F. 2d 526 (6th Cir.

1987)

Hormel v. Helvering, 312 U.S. 552 (1941,

Irwin v. Department of Veterans Affairs, 498 U.S. 89

(1990)

s 588

James v. Chater, 96 F.3d 1341 (10th Cir. 1996) ................

Cases—Continued: Page

Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999) ................. 17,

35, 37, 40

Kolstad v. American Dental Ass'n, 119 S. Ct. 2118

(1999) 39

Mathews v. Eldridge, 424 U.S. 319 (1976) ............... 4, 21, 22

McCarthy v. Madigan, 503 U.S. 140 (1992) . 19. 22, 28

McKart v. United States, 395 U.S. 185 (1969) .................. 19,

22,23

Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 199999

Michigan-Wisconsin Pipe Line Co. v. Calvert,

347 U.S. 157 (1954)

Mullen v. Bowen, 800 F. 2d 535 (6th Cir. 1986) ................

Myron v. Chicoine, 678 F. 2d 227 (7th Cir. 1982

New York v. Hill, 120 S. Ct. 659 (2000)

O'Sullivan v. Boerckel, 119 S. Ct. 1728 (199999

Omnipoint Corp. v. FCC, 78 F.3d 620 (D.C. Cir.

1996)

Parker v. Bowen, 788 F. 2d 1512 (11th Cir. 1886

Paul v. Shalala, 29 F.3d 208 (5th Cir. 1994)

—

S S 8 FREES N68 8

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership, 507 U.S. 380 (19938)

Railway Labor Executives’ Ass'n v. United States,

791 F.2d 994 (2d Cir. 1986)

Rana v. United States, 812 F 2d 887 (4th Cir.

1987)

Richardson v. Perales, 402 U.S. 389 (19717

Rives v. ICC, 984 F.2d 1171 (10th Cir. 1991), cert.

denied, 503 U.S. 959 (1992)

Salt Lake Community Action Program, Inc. v.

Shalala, 11 F.3d 1084 (D.C. Cir. 1993)

Schweiker v. Hansen, 450 U.S. 785 (1981)

SEC v. Chenery Corp. 318 U.S. 80 (1947)

Sears, Roebuck & Co. v. FTC, 676 F 2d 385 (9th Cir.

1982) 29, 30

—

828

Cases Continued: Page

Sullivan v. Zebley, 493 U.S. 521 (1990) 2,3

Unemployment Compensation Comm'n v.

Aragon, 329 U.S. 143 (1946) 30

United States v. L.A. Tucker Truck Lines, Inc.,

344 U.S. 33 (1952) 30, 31

Virginia Bankshares, Inc. v. Sandberg, 501 U.S.

1083 (1991) 39

Weinberger v. Salfi, 422 U.S. 749 (1975) 5, 16,

19, 21, 32, 43

Welck v. Heckler, 808 F.2d 264 (3d Cir. 1986) 36

Woelke & Romero Framing, Inc. v. National Labor

Relations Bd., 456 U.S. 645 (1982) 18

Statutes, regulations and rules:

Administrative Procedure Act, 5 U.S.C. 704 (§ 10(c)) .......

Social Security Act, 42 U.S.C. 301 et seq.

42 U.S.C. 401-433 (1994 & Supp. III 1997)

42 U.S.C. 405

42 U.S.C. 405(b)

42 U.S.C. 405(g) 7, 11, 15, 17, 27, 32,

42 U.S.C. 4050“)

42 U.S.C. 421(a)

42 U.S.C. 423(d)(1A)

42 U.S.C. 1382 (1994 & Supp. ITI 1997)

42 U.S.C. 1382c(aX3)A) (1994 & Supp. III

1997)

Social Security Independence and Program Improve-

ments Act of 1994, Pub. L. No. 103-296, § 106(d),

108 Stat. 1476

28 U.S.C. 1257

28 U.S.C. 1257(a)

28 U.S.C. 2254(b\ 1A) (Supp. IV 1998)

29 U.S.C. 160(e)

20 C. F. R.:

Pt. 404, Subpt. P. App. 1 (Pt. A)

Section 404.900

8 N20

VII

HEE

Iii

404.900(a)(1)-(4)

404.900(a)(4)

404.900(a)(5)

404.900(a)(6)

404.900(b)

404.904

404.906

Seen Sanna

24222

5, 8

404. 968(a)

10, 37, 44

VIII In the Supreme Court of the United States

Regulations and rules—Continued: Page

Section 422.205(b) 5 No. 98-9537

Section 422.205(e) 5

Section 422.210(a) 7,8 J UATASSA SIMS, PETITIONER

Sup. Ct. R.:

Rule 10 36 v.

Wen ; KENNETH S. APFEL, COMMISSIONER

Miscellaneous: OF SOCIAL SECURITY

Administrative Office of the United States Courts,

Judicial Business of the United States Courts:

Annual Report of the Director (1998)... — 8 ON WRIT OF CERTIORARI

Generals Manual on the Administrative TO THE UNITED STATES COURT OF APPEALS

Procedure Act (1947) 27 FOR THE FIFTH CIRCUIT

Charles H. Koch, Jr. & David A. Koplow, The

Fourth Bite at the Apple: A Study of the Opera-

tion and Utility of the Social Security Admini- BRIEF FOR THE RESPONDENT

stration’s Appeals Council, 17 Fla. St. U. L. Rev. 199 a

(1990)

2 —— Giles of — ie 25 OPINIONS BELOW

and Appeals, Key Workload Indicators-Fiscal ** The opinion of the court of appeals (J. A. 85-86) is

1 — (seth — — * - „ reported at 200 F.3d 229. The judgment of the district

4 4169 : 5 court (J.A. 83-84) is unreported. The report and recom-

pp. 4171-4174 5 mendation of the magistrate judge (J.A. 74-82) is unre-

52 Fed. Reg. 49,143 (1987) ported.

2 — - 1— JURISDICTION

p. 22,142 5 The judgment of the court of appeals was entered on

62 Fed. Reg. 49,598-49,602 (1997) 5 November 6, 1998. A petition for rehearing was denied

* a (1998): on February 18, 1999 (J.A. 87). The petition for a writ

of certiorari was filed on May 19, 1999, and was granted

2 on November 29, 1999. 120 S. Ct. 525 (J. A. 88). The

jurisdiction of this Court rests on 28 U.S.C. 12541).

(1)

STATEMENT

1. Title II of the Social Security Act, 42 U.S.C. 301

et seq. (Act), provides for the payment of monthly bene-

fits to disabled persons who have contributed to the

program. 42 U.S.C. 401-433 (1994 & Supp. III 1997).

Title XVI of the Act provides for the payment of di-

sability benefits to certain indigent persons under the

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

1382 (1994 & Supp. III 1997). The Act defines “dis-

ability” as the “inability to engage in any substantial

gainful activity by reason of any medically determin-

able physical or mental impairment which can be

expected to result in death or which has lasted or can

be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. 423(d)(1)(A); 42 U.S.C.

1382¢(a)(3)(A). The Commissioner of Social Security

has promulgated detailed regulations governing both

the substantive standards to be applied in determining

eligibility under the program, and the procedures for

adjudicating individual disability claims.

a. The substantive standards for determining

whether an adult person is disabled are embodied in a

five-step sequential evaluation process. See 20 C.F.R.

404.1520-404.1576.’ As this Court explained in Sullivan

v. Zebley, 493 U.S. 521 (1990):

The Social Security Independence and Program Improve-

ments Act of 1994, Pub. L. No. 103-296, § 106(d), 108 Stat. 1476,

transferred the administration of the Social Security program from

the Secretary of Health and Human Services to the Commissioner

of Social Security.

2 The regulations discussed in the text are applicable to the

Title II disability program. The parallel regulations governing the

Title XVI program appear at 20 C. F. R. 416.920-416.976.

The first two steps involve threshold determinations

that the claimant is not presently working and has

an impairment which is of the required duration and

which significantly limits his ability to work. (20

C. F. R. 404.1520(b) and (c).] In the third step, the

medical evidence of the claimant’s impairment is

compared to a list of impairments presumed severe

enough to preclude any gainful work. (20 C. F. R. Pt.

404, Subpt. P, App. 1 (Pt. A).] If the claimant’s im-

pairment matches or is “equal” to one of the listed

impairments, he qualifies for benefits without

further inquiry. (20 C.F.R. 404.1520(d).] If the

claimant cannot qualify under the listings, the

analysis proceeds to the fourth and fifth steps. At

these steps, the inquiry is whether the claimant can

do his own past work or any other work that exists

in the national economy, in view of his age, educa-

tion, and work experience. If the claimant cannot do

his past work or other work, he qualifies for bene-

fits. [20 C. F. R. 404.1520(e) and (f).]

Id. at 525-526; see also Bowen v. Yuckert, 482 U.S. 137,

141-142 (1987).

b. “To facilitate the orderly and sympathetic admini-

stration of the disability program of Title II, the

[Commissioner] and Congress have established an

unusually protective [administrative] process for the

review and adjudication of disputed claims.” Heckler v.

Day, 467 U.S. 104, 106 (1984); see also id. at 106-107

(describing administrative scheme); Yuckert, 482 U.S.

at 142 (same); Bowen v. City of New York, 476 U.S. 467,

471-472 (1986) (same); 20 C.F.R. 404.900 (same).’ If it is

determined at any stage of the process that the individ-

The parallel procedural regulations governing adjudication of

Title XVI claims appear at 20 C. F. R. 416.903, 416.1400 et seq.

ual is eligible for benefits, he is entitled to retroactive

payments for the period of his eligibility, beginning no

more than 12 months prior to the filing of the appli-

cation for benefits. Schweiker v. Hansen, 450 U.S. 785,

786-787 (1981). See also Mathews v. Eldridge, 424 U.S.

319, 339 (1976) (termination of benefits).

The initial determination whether a particular in-

dividual is eligible for disability benefits is made by a

state agency, acting under the authority of the Com-

missioner. 42 U.S.C. 421(a); 20 C.F.R. 404.1503. If the

state agency makes an initial determination that the

applicant is not disabled, the individual may request a

de novo reconsideration by the state agency. 20 C. F. R.

404.904, 404.907-404.921. If the request for reconsia-

eration is unsuccessful, the claimant is entitled to a

hearing before an administrative law judge (ALJ) with-

in the Social Security Administration (SSA). 42 U.S.C.

405(b); 20 C. F. R. 404.929-404.961.

If the ALJ issues an adverse decision, the claimant

may seek review by SSA’s Appeals Council. See 20

C.F.R. 404.900(a)(4) (“If you are dissatisfied with the

decision of the administrative law judge, you may

request that the Appeals Council review the decision.”);

20 C.F.R. 404.966-404.982 (Appeals Council pro-

cedures). The Appeals Council was established in

As part of its disability redesign initiative, the Social Security

Administration (SSA) is currently testing possible modifications to

the disability determination process. Inter alia, SSA is testing in

10 States the effect of eliminating the requirement that a claimant

request reconsideration by the state agency before proceeding to

the next step of the administrative process. See 20 C. F. R. 404.906;

60 Fed. Reg. 20,023-20,026 (1995); 64 Fed. Reg. 47,218-47,219

(1999).

5 As part of its disability redesign initiative (see note 4, supra),

SSA is currently testing in certain cases the elimination of the

—

January 1940 by the Social Security Board, see 5 Fed.

Reg. 4169, 4171-4174 (1940), based on a 1940 Report

of the Social Security Board regarding the manner

in which the hearing and review provisions in 42 U.S.C.

405 would be implemented. See Monograph of the

Attorney General’s Committee on Administrative Pro-

cedure, S. Doc. No. 10, 77th Cong., Ist Sess., Pt. 3

(Appendix) at 36, 39, 53-55 (1941); Weinberger v. Salfi,

422 U.S. 749, 759-760 n.6 (1975); Charles H. Koch, Jr. &

David A. Koplow, The Fourth Bite at the Apple: A

Study of the Operation and Utility of the Social

Security Administration’s Appeals Council, 17 Fla.

St. U. L. Rev. 199, 234 (1990). The Appeals Council is

chaired by the Associate Commissioner for Hearings

and Appeals. Jd. at 236; 60 Fed. Reg. 22,142 (1995). In

fiscal year 1999, the Appeals Council received 115,151

requests for review and acted on 91,173 such requests.

See Social Security Administration, Office of Hearings

and Appeals, Key Workload Indicators—Fiscal Year

1999 (Key Workload Indicators) at 21. A request for

review is typically considered by a panel of the Appeals

Council, but the Appeals Council may consider a case en

banc at the direction of the Chairman. See 20 C. F. R.

422.205(b) and (e).

“The Appeals Council may deny or dismiss the re-

quest for review, or it may grant the request and either

issue a decision or remand the case to an administrative

law judge.” 20 C.F.R. 404.967; see also 20 C.F.R.

requirement that a claimant file a request for Appeals Council

review before seeking relief in court. See 20 C.F.R. 404.966; 62

Fed. Reg. 49,598-49,602 (1997).

The Appeals Council remanded 20,135 cases in fiscal year

1999 (22% of the 91,173 dispositions) and ordered an award of

benefits in 1824 other cases (2.0%). Key Workload Indicators at

21.

404.981.’ SSA regulations provide that, as a general

matter, review by the Appeals Council is appropriate

where (1) “[t]here appears to be an abuse of discretion

by the [ALJ]”; (2) “[t]here is an error of law”; (3) At he

action, findings or conclusions of the [ALJ] are not

supported by substantial evidence”; or (4) “[t]here is a

broad policy or procedural issue that may affect the

general public interest.” 20 C.F.R. 404.970(a)(1)-(4).

The Appeals Council’s review is made on the basis of

the record before the ALJ unless the claimant submits

“new and material evidence” that “relates to the period

on or before the date of the [ALJ] hearing decision.” 20

C.F.R. 404.970(b); see also 20 C. F. R. 404.968(a) (“[a]ny

documents or other evidence [the claimant] wish[es] to

have considered by the Appeals Council should be sub-

mitted with [the] request for review”). If the claimant

submits new evidence satisfying the regulatory criteria,

the Appeals Council will consider the entire record,

including the new evidence, and “will then review the

case if it finds that the [ALJ’s] action, findings, or

conclusion is contrary to the weight of the evidence

currently of record.” 20 C.F.R. 404.970(b).

If the Appeals Council grants review, the claimant is

given an “opportunity to file briefs or other written

statements about the facts and law relevant to the

case.” 20 C.F.R. 404.975. The Appeals Council may

choose to limit the issues that it will consider on review

of the ALJ decision. 20 C.F.R. 404.976(a). The claimant

may also request an opportunity to present oral argu-

ment, and such a request will be granted if the Appeals

Council “decides that [the] case raises an important

7 The Appeals Council is also authorized to review an ALJ

decision on its own motion. 20 C. F. R. 404.969.

question of law or policy or that oral argument would

help to reach a proper decision.” 20 C.F.R. 404.976(c).

2. An unsuccessful applicant for disability benefits

may seek judicial review in federal district court of

“any final decision of the Commissioner of Social Secur-

ity made after a hearing to which he was a party.” 42

U.S.C. 405(g). The Social Security Act does not specify

the point at which the Commissioner’s decision becomes

“final.” SSA’s regulations make clear, however, that,

with exceptions not relevant here, an individual must

file a request for review by the Appeals Council in

order to obtain a “final decision” of the Commissioner.

See 20 C.F.R. 404.900(a)(5), 404.955, 404.981; City of

New York, 476 U.S. at 482.° If the Appeals Council

denies review, the ALJ’s decision becomes the agency’s

“final decision” and is then subject to judicial review.

See 20 C.F.R. 422.210(a) (“A claimant may obtain judi-

cial review of a decision by an administrative law judge

if the Appeals Council has denied the claimant’s request

for review”).’ If the Appeals Council grants review and

8 SSA has established an expedited appeals process under

which claimants may obtain access to judicial review without full

exhaustion of administrative remedies in cases where the only

matter in controversy concerns the constitutionality of a provision

of the Social Security Act. See 20 C. F. R. 404.900(a)(6), 404.923-

404.928. In addition, SSA is currently testing the elimination of

Appeals Council review in certain cases. 20 C.F.R. 404.966; see

note 5, supra. The instant case does not implicate either of those

exceptions to the general rule that a claimant must seek review by

the Appeals Council in order to obtain a “final decision” of the

Commissioner subject to judicial review under 42 U.S.C. 405(g).

In that respect judicial review of SSA disability determina-

tions is analogous to this Court’s review of state court decisions

under 28 U.S.C. 1257. Under that statute, the Court is authorized

to review “(flinal judgments or decrees of the highest court of a

State in which a decision could be had.” 28 U.S.C. 1257(a). To

issues its own decision in the case, that is the “final

decision of the Commissioner.” bid."

3. On August 3, 1994, petitioner Juatassa Sims filed

an application for disability benefits under Title II and

Title XVI of the Act. J.A. 29. She alleged disability

beginning April 1, 1992, due to a variety of medical

problems, including degenerative joint disease of the

lumbar spine and possible carpal tunnel syndrome.

After the state agency denied petitioner’s claim and her

subsequent request for reconsideration, petitioner

requested a hearing before an ALJ. Petitioner was

represented by an attorney at the ALJ hearing. See

ibid.

The ALJ denied petitioner’s claim for benefits. J.A.

29-49. After reviewing the relevant medical evidence,

the ALJ performed the five-step sequential-evaluation

analysis described at pages 2-3, supra. (1) The ALJ

noted that petitioner hald] not engaged in substantial

gainful activity since the alleged onset date, April 1,

1992.” J.A. 30; see J.A. 40 (Finding No. 2). (2) The ALJ

found that petitioner “has ‘severe’ impairments, [includ-

ing] degenerative disc disease of the lumbar spine,

thyroid enlargement, possible carpal tunnel syndrome,

exogenous obesity, depression, borderline intellectual

obtain review under Section 1257, a party who has received an

unfavorable decision from an intermediate state appellate court

must ordinarily seek discretionary relief from the highest court of

the State. But if the highest state court denies review, it is the

intermediate court’s decision (rather than the order of the highest

state court denying review) that is then subject to review in this

Court. See, e.g., Michigan - Wisconsin Pipe Line Co. v. Calvert, 347

U.S. 157, 159-160 (1954); Sup. Ct. R. 18.1.

10 Alternatively, the Appeals Council may grant review and

remand the case to the ALJ for further proceedings. See 20 C. F. R.

404.967.

functioning, and somatoform disorder.” J.A. 36; see

J.A. 40 (Finding No. 3). (3) The ALJ determined that

Ablased on the record, [petitioner’s) mental impair-

ments and physical impairments do not meet or equal a

listing in Appendix 1.” J.A. 37; see J.A. 40 (Finding No.

3). The ALJ further found that petitioner “has the

residual functional capacity to perform the physical

exertion and nonexertional requirements of work

except for being unable to lift more than 20 pounds and

being unable to perform jobs precluded by mild to

moderate difficulties with concentration and attention.”

J.A. 40 (Finding No. 5); see J.A. 37 (stating that peti-

tioner is unable to “lift{] heavy weights” or do “work

that involves a high level of concentration,” but that she

“is able to perform a reduced range of light work”); J. A.

41 (Finding No. 7) (same). (4) “Based on [petitioner’s]

chronic back pain and diagnoses of degenerative disc

disease and possible carpal tunnel syndrome, [the ALJ]

flou}nd that she would not be able to return to her past

relevant work because the exertional demands of the

work exceed her present residual functional capacity.”

J.A. 39; see J.A. 40 (Finding No. 6). (5) However, rely-

ing on the hearing testimony of a vocational expert, the

ALJ determined that petitioner is capable of per-

forming a number of “light exertional” jobs that exist in

the national economy. J.A. 39; see J.A. 41 (Finding No.

10). The ALJ accordingly held that petitioner does not

suffer from a “disability” within the meaning of the

Social Security Act. J.A. 39; see J.A. 41 (Finding No.

12); J.A. 31.

Along with the ALJ’s decision, petitioner and her

attorney were provided with a Notice of Decision form

that briefly described the Appeals Council process.

J.A. 25-28. The Notice of Decision stated: “If you do not

agree with [the ALJ’s] decision, you may file an appeal

with the Appeals Council.” J.A. 25. It explained that

the request for review must be made in writing, either

through use of SSA’s Form HA-520 or by letter. /bid."

The Notice of Decision stated that if petitioner re-

quested Appeals Council review, “the Council will

consider all of [the ALJ’s) decision, even the parts with

which [petitioner] may agree.” J.A. 26. It also

explained that the Appeals Council could review the

ALJ’s decision even if petitioner did not request re-

view. J.A. 27. The Notice of Decision then stated: “If

you do not appeal and the Council does not review [the

ALJ’s]} decision on its own motion, you will not have a

right to court review. [The ALJ's] decision will be a

final decision that can be changed only under special

rules.” Ibid."

Petitioner then sought review by the Appeals

Council. Petitioner’s attorney initiated the administra-

tive appeal by submitting to the Appeals Council a

letter describing numerous purported flaws in the

ALJ’s analysis of the evidence and conduct of the

Form HA-520 is a standardized SSA form that may be used

to request Appeals Council review. The current version of Form

HA-520 is available at <http://www.ssa.gov/online/ha-520.pdf. SSA

regulations provide that a request for Appeals Council review

“may be made on Form HA-520 * or by any other writing

specifically requesting review.” 20 C. F. R. 422.205(a). We have

lodged a copy of Form HA-520 with the Clerk of this Court.

The Notice of Decision further explained: “You have the

right to file a new application at any time, but filing a new appli-

cation is not the same as appealing this decision. If you disagree

with [the ALJ's) decision and you file a new application instead of

appealing, you might lose some benefits, or not qualify for any

benefits. [The ALJ's} decision could also be used to deny a new

application for insurance benefits, if the facts and issues are the

same. So, if you disagree with this decision, you should file an

appeal within 60 days.” J. A. 27-28.

hearing. See J. A. 51-70. The Appeals Council denied

the request for review. J.A. 71-73.

3. Petitioner filed suit in federal district court

pursuant to 42 U.S.C. 405(g). The case was assigned to

a magistrate judge, who prepared a report and recom-

mendation concluding that SSA’s ruling should be

affirmed and the complaint dismissed with prejudice.

J.A. 74-82. The magistrate judge found that the ALJ

had properly declined to credit the report of peti-

tioner’s psychologist, Dr. Morris, because Dr. Morris’s

findings were controverted by other evidence. J.A. 77-

78. The magistrate judge also rejected petitioner’s con-

tentions that the ALJ had selectively ignored evidence

bearing on her mental condition (J.A. 78-79); that the

ALJ had improperly failed to order a consultative

examination under 20 C. F. R. 404.1519 (J. A. 79-80); and

that the ALJ had erred by failing to include all of peti-

tioner’s impairments in posing a hypothetical question

regarding the availability of jobs that petitioner is

capable of performing (J.A. 80-81). The district court

adopted the report and recommendation of the magis-

trate judge and entered a final judgment affirming the

Commissioner’s decision and dismissing the suit. J.A.

83-84.

4. Petitioner appealed, raising three claims of error.

First, petitioner contended that the ALJ had given

insufficient weight to the medical opinion of Dr. Morris,

and had improperly substituted his own views for those

of the medical expert with respect to the extent of

petitioner’s impairments. Pet. C.A. Br. 20-35. Second,

petitioner argued that, even accepting the ALJ’s own

findings as to the severity of petitioner’s medical im-

pairments, the ALJ had erred in assessing petitioner’s

residual functional capacity (RFC)—+.e., in concluding

that she was capable of performing “light work.“ Id. at

35-38. Finally, petitioner contended that, in light of the

ALJ’s findings regarding the severity of petitioner’s

impairments, the ALJ had violated his duty of full in-

quiry by failing to order either a psychological or physi-

cal consultative examination. /d. at 39-43.

The court of appeals affirmed. J.A. 85-86. The court

rejected petitioner’s contention that the ALJ had failed

to accord proper weight to Dr. Morris’s opinion. It

explained that the claim was “without merit because

the ALJ is entitled and expected to determine the

credibility of medical experts and to weigh their opin-

ions accordingly.” J.A. 86. Relying on Paul v. Shalala,

29 F.3d 208 (5th Cir. 1994)," the court held that it

“lack[ed]) jurisdiction to review [petitioner’s] second

and third contentions because they were not raised

before the Appeals Council.” J.A. 86.

SUMMARY OF ARGUMENT

1. The requirement that a disability claimant seek

Appeals Council review before instituting a judicial

i The Fifth Circuit in Paul held that it hald] jurisdiction to

review the [agency’s] finai decision [in a disability ease] only where

a claimant has exhausted her administrative remedies.” 29 F. 3d at

210. The court held that one of the two claims of error raised by

the claimant in that case had not been raised before the Appeals

Council, and it accordingly declined to consider that claim. bid.

After comparing Paul's brief on appeal with her submission to the

Appeals Council, the court held that the claim in question was a

“distinct” new argument rather than simply “an expansion of the

general rationale proffered in support of the (administrative)

appeal.” Ibid. The Fifth Circuit acknowledged that under some

circumstances, “equitable grounds may support this court’s de-

cision to consider issues not previously presented.” Ibid. It found,

however, that no such grounds existed in that case, explaining that

Paul's failure to raise her claim during the administrative process

was her own doing” and was not caused by any misrepresentation

made by the SSA. /d. at 211.

action serves the interests of both the Social Security

Administration (SSA) and the courts. That exhaustion

requirement affords SSA the opportunity to correct its

own mistakes, thereby obviating the need for judicial

intervention, or to clarify the agency’s interpretation of

governing statutory and regulatory provisions in a

manner that facilitates judicial review. Those policies

can be effectively vindicated, however, only if the party

that pursues an administrative appeal alerts the agency

to the purported flaws in its preliminary resolution of

the dispute. The requirement that individual claims

of error must be raised before the Appeals Council

in order to be cognizable in court is therefore an impor-

tant corollary to the basic exhaustion requirement.

Such a rule significantly facilitates the Appeals Coun-

cil’s performance of its assigned functions, while impos-

ing no meaningful incremental burden on the claimant.

This Court has developed an analogous procedural

default rule in the context of federal habeas corpus. A

prisoner in state custody has “exhausted” his state

remedies if he has pursued all available avenues of state

court review (or if the time for doing so has expired),

even if he has failed to raise a particular claim at the

appropriate time. The Court has recognized, however,

that enforcement of procedural default rules, with

respect to claims not raised, is essential in order to vin-

dicate the underlying purposes of the statutory ex-

haustion requirement. The same reasoning applies

here.

2. In the instant case, the claims that the court of

appeals held to be barred were not raised in any ad-

ministrative forum. Because petitioner’s second and

third claims of error were premised on the findings

made by the ALJ, and were therefore logically unavail-

able until the ALJ issued his decision, petitioner’s

_ failure to present those arguments to the ALJ does not

constitute an independent barrier to their consideration

by the courts. But precisely because no SSA official

had previously been given an opportunity to consider

those claims of error, it was particularly important that

the claims be presented to the Appeals Council. On the

facts of this case, application of a procedural default

rule thus serves to vindicate the basic administrative

law principle that an agency’s decision is not subject to

judicial invalidation on grounds not first presented to

the agency.

3. Enforcement of an administrative default rule is

fully consistent with the informal and non-adversarial

character of SSA’s administrative processes for resolv-

ing disability claims. Because the Appeals Council

functions as an appellate tribunal, it is reasonable to

expect that the party who invokes its jurisdiction will

perform an appellant’s usual role, by identifying the

alleged deficiencies in the ALJ’s disposition of the case

and explaining why the matter warrants further

review. Notwithstanding the informal and non-adver-

sarial character of the proceedings, the claimant and

her attorney are given both the right and the incentive

to perform that role. There is also no basis for

petitioner’s contention that an administrative default

rule would complicate the proceedings by requiring

long or hyper-technical filings in support of requests for

Appeals Council review. Even a very short and

relatively inartful statement of the grounds for review

is sufficient, so long as the claimant’s filing identifies

the purported flaws in the ALJ’s disposition of the

case, thereby enabling the Appeals Council to focus its

attention on those aspects of the ALJ decision with

which the claimant disagrees.

4. Petitioner had fair warning that arguments not

raised before the Appeals Council would be barred on

judicial review. Petitioner was represented by counsel

during the Appeals Council proceedings. Her attorney

can fairly be charged with knowledge of the funda-

mental background rule that objections not presented

to an administrative agency will be foreclosed in a

subsequent judicial proceeding. SSA’s regulations and

administrative practice do not suggest any exception to

that presumptive rule. Petitioner’s claim of unfair

surprise is particularly unpersuasive in light of the

Fifth Circuit’s prior decision in Paul v. Shalala, 29

F.3d 208, 210-211 (1994), which gave petitioner and her

attorney unambiguous notice that claims not raised

before the Appeals Council would ordinarily be barred

from subsequent judicial consideration.

ARGUMENT

THE COURT OF APPEALS PROPERLY DECLINED

TO ADDRESS PETITIONER’S SECOND AND THIRD

CLAIMS OF ERROR BASED ON PETITIONER’S

FAILURE TO PRESENT THOSE CLAIMS TO THE

SOCIAL SECURITY ADMINISTRATION’S APPEALS

COUNCIL

Judicial review in Social Security cases is governed

by 42 U.S.C. 405(g). Section 405(g) provides that “[a]ny

individual, after any final decision of the Commissioner

of Social Security made after a hearing to which he was

a party, may obtain a review of such decision by a civil

action” filed in federal district court. Although the

Social Security Act requires a “final decision of the

Commissioner” as a prerequisite to judicial review, the

Act does not specify the point at which the Com-

missioner’s decision becomes “final.” As this Court

observed in Weinberger v. Salfi, 422 U.S. 749, 766

(1975), the term ‘final decision’ is not only left unde-

fined by the Act, but its meaning is left to the [Com-

missioner] to flesh out by regulation.“

SSA’s regulations make clear that, with exceptions

not relevant here (see note 8, supra), an applicant for

disability benefits must seek review by the Appeals

Council in order to obtain a “final decision” of the Com-

missioner. Thus, 20 C. F. R. 404.900(a)(1)-(4) describes

the four levels of administrative review available in

such cases: an initial determination by the relevant

state agency, a request for reconsideration of that

decision, a hearing before the ALJ, and a request for

review by the Appeals Council. Section 404.900(a)(5)

then states:

When you have completed the steps of the admini-

strative review process listed in paragraphs (a)(1)

through (a)(4) of this section, we will have made our

final decision. If you are dissatisfied with our final

decision, you may request judicial review by filing

an action in a Federal district court.

20 C.F.R. 404.900(a)(5); see also 20 C.F.R. 404.955,

404.981, 422.210(a); Bowen v. Yuckert, 482 U.S. 137, 142

(1987); Bowen v. City of New York, 476 U.S. 467, 472,

14 The Commissioner “is authorized to delegate to any member,

officer, or employee of the Social Security Administration desig-

nated by the Commissioner any of the powers conferred upon the

Commissioner.” 42 U.S.C. 40500). As the Court in Salfi explained,

“Section 40500) accords the [Commissioner] complete authority to

delegate his statutory duties to officers and employees of the

[SSA]. The statutory scheme is thus one in which the [Com-

missioner} may specify such requirements for exhaustion as he

deems serve his own interests in effective and efficient admini-

stration.” 422 U.S. at 766.

—

482 (1986); Heckler v. Ringer, 466 U.S. 602, 606, 627

(1984). Where (as here) the Appeals Council denies the

claimant’s request for review, the ALJ’s decision be-

comes the “final decision of the Commissioner” and is

subject to judicial review under 42 U.S.C. 405(g). See

20 C. F. R. 422.210(a); pp. 7-8, supra.

By seeking Appeals Council review of the ALJ’s ad-

verse decision, petitioner satisfied the statutory ex-

haustion requirement—i.e., she obtained a “final de-

cision of the Commissioner” subject to judicial review

under 42 U.S.C. 405(g). Under established principles of

administrative law, however, petitioner’s second and

third claims of error in the Fifth Circuit were barred by

her failure to raise those claims during the administra-

tive process. That rule of “administrative default”” is

fully applicable to Social Security disability appeals.

petitioner’s term “issue exhaustion,” in order to make clear our re-

cognition that petitioner obtained a “final decision of the Com-

missioner” and therefore did not fail to comply with that statutory

exhaustion requirement. Compare O Sullivan v. Boerckel, 119 S.

Ct. 1728, 1734 (1999) and id. at 1736-1737 (Stevens, J., dissenting),

discussed at pp. 26-27, infra. In Johnson v. Apfel, 189 F.3d 561

(7th Cir. 1999), the court of appeals misunderstood that termi-

nology. In Johnson, as in the instant case, a disability claimant

unsuccessfully requested Appeals Council review. The claimant

then sought to raise in court a claim that had not been asserted in

the administrative appeal. Id. at 562. ‘In rejecting the govern-

ment’s contention that the claim was barred, the court of appeals

noted that “[t]he government’s lawyers * * * are explicit that

Johnson] did not fail to exhaust his administrative remedies.” Id.

at 563. The court tlook] this to mean * that requiring the

claimant to brief his issues before the Appeals Council is not

important to the agency’s mission.” Ibid. As we explain below, that

conclusion does not follow. Although petitioner’s default did not,

precisely speaking, constitute a failure to exhaust her

A. Where Exhaustion Of An Administrative Appeal Is A

Prerequisite To A Judicial Action, The Failure To

Raise A Claim In The Administrative Appeal Will

Ordinarily Constitute A Procedural Default That Bars

Consideration Of The Claim On Judicial Review

1. The purposes that underlie exhaustion require-

ments strongly suggest that, where pursuit of an

administrative appeal is a prerequisite to judicial re-

view, the court should ordinarily entertain only those

claims that have been presented to the agency tri-

bunal.“ As the Court recognized in McKart v. United

administrative remedies, it nevertheless impaired the Appeals

Council's ability to perform its assigned appellate function.

16 Some statutory review provisions specifically preclude the

assertion in court of any objections or issues that have not been

raised in the administrative proceedings. See, e.g., 29 U.S.C. 160(e)

(“No objection that has not been urged before the [National Labor

Relations] Board, its member, agent, or agency, shall be con-

sidered by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary circum-

stances.”). This Court has treated such express statutory pre-

clusion provisions as going to the “jurisdiction” of the reviewing

court. See Woelke & Romero Framing, Inc. v. National Labor

Relations Board, 456 U.S. 645, 666 (1982) (“the Court of Appeals

lacks jurisdiction to review objections that were not urged before

the Board”). The “common law” administrative default principle

applies as an essential corollary to a statutory exhaustion require-

ment where (as here) the governing law contains no express

statutory bar to judicial consideration of issues not raised before

the agency. In the latter context, however, the reviewing court

has greater latitude to excuse a claimant’s default in appropriate

eases. See, eg., Hormel v. Helvering, 312 U.S. 552, 557 (1941)

(“There may always be exceptional cases or particular circum-

stances 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 * * * administra-

tive agency below.”); note 13, supra.

States, 395 U.S. 185, 193-195 (1969), consistent enforce-

ment of exhaustion requirements is supported both by

respect for agency prerogatives and by concern for

judicial efficiency. The Court explained:

A complaining party may be successful in vindi-

cating his rights in the administrative process. If he

is required to pursue his administrative remedies,

the courts may never have to intervene. And

notions.of administrative autonomy require that the

agency be given a chance to discover and correct its

own errors. Finally, it is possible that frequent and

deliberate flouting of administrative processes could

weaken the effectiveness of an agency by encourag-

ing people to ignore its procedures.

Id. at 195. Accord, e.g., Salfi, 422 U.S. at 765 (“Exhaus-

tion is generally required as a matter of preventing

premature interference with agency processes, so that

the agency may function efficiently and so that it may

have an opportunity to correct its own errors, to afford

the parties and the courts the benefit of its experience

and expertise, and to compile a record which is ade-

quate for judicial review.”); Heckler v. Ringer, 466 U.S.

602, 619-620 n.12 (1984); McCarthy v. Madigan, 503

U.S. 140, 144-146 (1992). The Social Security Board

identified a number of those advantages when it estab-

lished the Appeals Council in 1940 and required that

a claimant request review by the Appeals Council in

order to obtain the agency’s final decision. See Mono-

graph of the Attorney General’s Committee on Admini-

strative Procedure, S. Doc. No. 10, 77th Cong., Ist

Sess., pt. 3 (Appendix) at 39, 51, 53-56 (1941).

Those purposes can be effectively vindicated, how-

ever, only if the party who pursues an administrative

appeal alerts the agency to the purported flaws in its

preliminary resolution of the dispute. In the instant

case, petitioner argued at length in her administrative

appeal to the Appeals Council that the ALJ had impro-

perly rejected the examining physician’s assessment of

petitioner’s medical impairments. See J.A. 51-70.

Petitioner did not, however, raise the challenges sub-

sequently advanced in the court of appeals as her

second and third claims of error.” With respect to

7 The government's brief in the court of appeals argued that

the court should not consider petitioner’s second and third claims

of error because those claims had not been raised administratively.

Gov't C.A. Br. 13-15. With respect to the purported need for a

consultative examination (the third claim of error), petitioner did

not dispute the government’s assertion that the claim had not been

presented to the Appeals Council. See Pet. C.A. Reply Br. 5. With

respect to the second claim of error, however, petitioner argued

that she had

adequately raised the issue of the Commissioner’s assessment

of her RFC to the Appeals Council and to the district court. In

fact, the entire basis of her appeal is that the ALJ failed to

adequately evaluate the opinions of her medical providers in

formulating her residual functional capacity to work. Even if

[petitioner’s] counsel did not word the Appeals Council argu-

ment as to her RFC in exactly the same manner as in the

{court of appeals brief], the substance of the argument is the

same.

Id. at 2. In her brief in this Court, petitioner suggests that her

second claim of error was raised at least obliquely in the admini-

strative process, and that the Fifth Circuit’s dismissal of that claim

necessarily reflects a highly technical pleading requirement. See

Pet. Br. 4 n.3, 19, 45 n.33.

The question whether petitioner actually raised her second

claim of error in the Appeals Council is not fairly included within

the question presented in the petition for certiorari. In any event,

the court of appeals correctly held that the claim had not been

raised in the administrative appeal. The gravamen of the letter

submitted to the Appeals Council by petitioner’s attorney was that

those claims, petitioner’s administrative appeal gave

SSA no meaningful “opportunity to correct its own

errors” (Salfi, 422 U.S. at 765), or to state the agency’s

views regarding the pertinent aspects of the ALJ’s

decision. The requirement that individual claims of

error must be brought before the Appeals Council in

order to be cognizable in court is therefore an impor-

tant corollary to the requirement that administrative

remedies must be exhausted as a prerequisite to judi-

cial review.”

the ALJ’s findings regarding the severity of petitioner’s mental

and physical impairments was contrary to the available medical

evidence. See J.A. 51-70. Petitioner pursued that argument (as

her first claim of error) in the court of appeals, and the court

rejected the claim on the merits. See J.A. 86. In the court of

appeals, however, petitioner also contended (as her second claim of

error) that, even accepting the ALJ’s factual findings as to the

scope of her impairments, there was still no basis for the AL.J’s

determination that petitioner was capable of performing gainful

work. See Pet. C.A. Br. 35-38.

That claim of error is quite different from the arguments made

in the Appeals Council. There is consequently no basis for

concluding that the Fifth Circuit applied a highly technical

standard in determining that her second claim of error had not

been raised before the Appeals Council.

18 Petitioner and her amici contend (Pet. Br. 42 n.31; AARP Br.

8-14) that presentation of particular claims to the Appeals Council

will sometimes be futile, since the Appeals Council is required to

decide individual cases in conformity with SSA policy. This case

does not present the question whether, and under what circum-

stances, a “futility” exception to the basic administrative default

rule might permit a claimant to advance in court an argument that

was not presented in her request for Appeals Council review, on

the ground that the Appeals Council would have been bound by

the Act or governing regulations to reject the argument. See

Mathews v. Eldridge, 424 U.S. 319, 329-330 (1976). Whatever the

contours of such an exception, it would not apply here, since the

Indeed, the “administrative default” principle is

significantly less burdensome than the antecedent re-

quirement that a disability claimant must seek Appeals

Council review in order to obtain a “final decision” of

the Commissioner. That basic exhaustion requirement

benefits both the agency and the court, but it imposes

meaningful costs for claimants as well, since it delays

the ultimate resolution of those cases in which, the

Appeals Council denies review.” The prospect of such

delay has sometimes led this Court to conclude that

exhaustion of specific administrative remedies is not an

appropriate prerequisite to judicial review. See, e. g.,

McCarthy v. Madigan, 503 U.S. at 146 (“In determining

whether exhaustion is required, federal courts must

balance the interest of the individual in retaining

prompt access to a federal judicial forum against coun-

tervailing institutional interests favoring exhaustion.”);

id. at 146-147 (citing cases); Eldridge, 424 U.S. at 330

(“cases may arise where a claimant’s interest in having

claims that the court of appeals held to be barred indisputably fall

well within the Appeals Council’s bailiwick. Moreover, there is no

reason to suppose that a large percentage of objections that might

provide the basis for judicial relief will be beyond the cognizance of

the Appeals Council. As SSA has explained, “the vast majority of

adverse circuit court decisions do not conflict with [SSA’s) inter-

pretation of the Act or regulations; they are based either on the

issue of whether substantial evidence supports SSA’s final admini-

strative decision or on the issue of whether the final administrative

decision adheres to established agency rules.” 63 Fed. Reg. 24,930

(1998).

10 Of course, the availability of an administrative appeal also

benefits claimants by affording them an opportunity for relief in a

non-adversary setting following an adverse ALJ decision, without

the need to file suit in court. The Appeals Council granted some

form of relief in 21,959 cases in 1998, a total of over 22% of the

91,173 Appeals Council dispositions. See p. 5 & note 6, supra.

a particular issue resolved promptly is so great that

deference to the agency’s judgment (regarding the need

for exhaustion] is inappropriate”).

But where (as here) it is undisputed that a party

must invoke a particular administrative tribunal before

seeking relief in court, the requirement that all objec-

tions to the agency’s preliminary disposition must be

presented to that tribunal imposes no meaningful incre-

mental burden on the claimant. To the contrary, under

the Social Security disability programs, such a require-

ment can be expected to serve the interests of

claimants by enhancing the Appeals Council’s ability to

identify those cases in which relief should be awarded

without the need for judicial proceedings.” By con-

trast, a regime in which disability claimants were re-

quired to request review by the Appeals Council before

pursuing judicial remedies, but were not required to

® By enhancing the Appeals Council's ability to identify meri-

torious claims, thereby obviating the need for judicial review,

administrative default principles serve the interests of the courts

as well. The burden on judicial resources imposed by disability

litigation under the Social Security Act is very substantial. In

fiscal year 1998, 7770 disability insurance cases under Title II of

the Act, and 5887 Supplemental Security Income cases under Title

XVI, were filed in the federal district courts. See Administrative

Office of the United States Courts, Judicial Business of the United

States Courts: Annual Report of the Director 144 (1998). And

insofar as the application of administrative default principles re-

duces the burden on reviewing courts, it directly furthers the pur-

poses of the underlying exhaustion requirement. See, 9.

McCarthy v. Madigan, 503 U.S. at 145 (“exhaustion promotes

judicial efficiency” because (inter alia) “[wJhen an agency has the

opportunity to correct its own errors, a judicial controversy may

well be mooted”); McKart, 395 U.S. at 195 (“A complaining party

may be successful in vindicating his rights in the administrative

process. If he is required to pursue his administrative remedies,

the courts may never have to intervene.”).

identify the purported flaws in the ALJ’s decisions,

would give claimants, SSA, and the courts the worst of

both worlds. Compliance with the exhaustion require-

ment would delay the claimant’s access to court, and

thus defer the ultimate resolution of the dispute,

without providing the agency a fully adequate op-

portunity either to correct its own mistakes and there-

by obviate the need for judicial intervention altogether,

or at least to clarify the issues for judicial review and

give the reviewing court the benefit of its experience or

expertise.

For essentially the same reasons, the fact that SSA

has considered eliminating the requirement that claim-

ants seek review in the Appeals Council before pro-

ceeding to court (see Pet. Br. 23-24, 35) is irrelevant to

the question presented in this case. Reasonable people

may disagree as to whether the systemic benefits of

Appeals Council review are sufficient to justify the

delay and expense that the exhaustion requirement

entails. But doubts concerning the wisdom of the

underlying exhaustion requirement can provide no

justification for the regime that petitioner advocates, in

which claimants and the agency must accept the dis-

advantages that attend the Appeals Council process

without the advantages that administrative default

rules provide.

Petitioner and her amici also suggest (Pet. Br. 36-37,

40-41; AARP Br. 5-8) that her position is supported by

the facts that (a) the resources of the Appeals Council

are strained by the enormous volume of cases brought

— it, and (b) in a majority of cases the Appeals

Council denies review without explanation. Those

arguments are without merit. As to the former point:

the fact that the Appeals Council’s resources are

limited simply reinforces the importance of using those

resources wisely by requiring claimants to identify the

particular respects in which ALJs are alleged to have

erred. As to the latter: the Appeals Council granted

some form of relief in almost 22,000 cases in fiscal year

1999, which represented more than 24% of the cases in

which it entered dispositions.” In any event, whatever

relevance those statistics might have to the question

whether exhaustion of Appeals Council remedies should

be required at all, they provide no justification for

the regime that petitioner advocates, under which a

claimant would be required to seek Appeals Council

review, but would not be required to specify the alleged

flaws in the ALJ’s decision, in order to file suit in court.

See pp. 22-24, supra.

2. This Court has developed an analogous pro-

cedural default rule in the context of federal habeas

corpus. The federal habeas statute provides that a

prisoner in state custody may not obtain relief unless he

“has exhausted the remedies available in the courts of

the State.” 28 U.S.C. 2254(b)(1)(A) (Supp. IV 1998). In

applying Section 2254(b)(1)(A) (and its predecessors),

this Court has recognized that while the question of

procedural default is technically distinct from that of

exhaustion, the application of procedural bar rules is an

essential means of vindicating the purposes that the

exhaustion requirement is intended to serve.

A prisoner in state custody has “exhausted” his state

remedies if he has invoked every available avenue of

21 The Appeals Council received 115,151 requests for review in

fiscal year 1999 and acted upon 91,173 requests. See Social Secur-

ity Administration, Office of Hearings and Appeals, Key Workload

Indicators—Fiscal Year 1999 at 21. It remanded 20,135 of those

cases (22% of the 91,173 dispositions) and ordered an award of

benefits in 1824 other cases (2.0%). Ibid. See also Pet. Br. 37 n.26

(citing comparable statistics for fiscal year 1998).

state court review (or if the time for doing so has

expired), even if the prisoner failed to raise a particular

claim at the appropriate time. See, e.g., O’Sullivan v.

Boerckel, 119 S. Ct. 1728, 1734 (1999); id. at 1736-1737

(Stevens, J., dissenting); Coleman v. Thompson, 501

U.S. 722, 732 (1991); Engle v. Isaac, 456 U.S. 107, 125-

126 n.28 (1982). This Court has recognized, however,

that if federal habeas courts were willing to entertain

claims that had not been presented to the state courts,

a prisoner could evade the exhaustion requirement

—and thereby undercut the values that it serves—

by “letting the time run” on state remedies. To

avoid this result, and thus “protect the integrity” of

the federal exhaustion rule, we ask not only whether

a prisoner has exhausted his state remedies, but

also whether he has properly exhausted those

remedies, i.e., whether he has fairly presented his

claims to the state courts.

O'Sullivan, 119 S. Ct. at 1734 (citations omitted); see

also Coleman, 501 U.S. at 731-732 (explaining the con-

nection between exhaustion and procedural default

2 In O'Sullivan, the state prisoner filed a petition for leave to

appeal to the Illinois Supreme Court, raising three challenges to

his state conviction. 119 S. Ct. at 1730. The Illinois Supreme

Court denied the petition for leave to appeal. Ibid. The prisoner

then sought federal habeas review. Included in his habeas petition

were three claims that might have been, but were not, presented

in his request for discretionary review in the state supreme court.

Id. at 1730-1731. This Court first held that a state prisoner must

generally file a petition for discretionary review in the state

supreme court in order to satisfy Section 2254(b)(1)(A)’s exhaus-

tion requirement. See 119 S. Ct. at 1731-1734. The Court then

held that claims not presented in that petition for discretionary

review would be barred from consideration on federal habeas on

the ground of procedural default. See id. at 1734.

rules). The same reasoning applies here. Although

petitioner’s request for Appeals Council review techni-

cally satisfied the statutory requirement that she

obtain a “final decision of the Commissioner” (42 U.S.C.

405(g)) before filing suit, the purposes of that require-

ment would be substantially undermined if petitioner

were permitted to raise in court objections to the ALJ’s

decision that were not presented in her administrative

appeal.”

3 In Darby v. Cisneros, 509 U.S. 137 (1998), this Court con-

sidered the effect of Section 10(c) of the Administrative Procedure

Act (APA), 5 U.S.C. 704. The Court held that Section 10(c), by

defining the circumstances under which agency action becomes

“final” for purposes of judicial review, precludes the courts from

imposing additional exhaustion requirements in APA suits. 509

U.S. at 144-147, 153-154. That holding has no direct relevance to

this case. Petitioner’s suit was brought under 42 U.S.C. 405(g), not

under the APA; SSA regulations state unambiguously that a

request for Appeals Council review is an essential prerequisite to

filing suit in court; and the validity of that exhaustion requirement

— dy prior decisions of this Court and is not in dispute

Petitioner, however, appears to read Darby to stand for a much

broader proposition—i.e., that courts lack power under either the

APA or the Social Security Act to apply any judicially fashioned

limitations on the availability or scope of judicial review beyond

those expressly stated in the governing statute or applicable

regulations. See Pet. Br. 25-27. Petitioner’s reliance on Darby is

misplaced. The Court’s analysis in Darby rested on the fact that

Section 10(c) of the APA directly and comprehensively addresses

the specific question of when an appeal to a higher administrative

authority is a prerequisite to judicial review. The Court recog-

nized, however, that “federal courts may be free to apply, where

appropriate, other prudential doctrines of judicial administration

to limit the scope and timing of judicial review.” 509 U.S. at 146.

The Court’s recognition of that authority in APA cases is con-

sistent with the original understanding of the Act. See Attorney

General's Manual on the Administrative Procedure Act 93 (1947)

B. The Second And Third Claims Of Error That

Petitioner Asserted In The Court of Appeals Were

Not Raised In Her Request For Review By The

Appeals Council And Are Therefore Barred Under

Established Principles Of Administrative Law

For the reasons stated above, the purposes of an

exhaustion requirement will generally be served only if

the appellant is required to present, in his admini-

strative appeal, all claims that he intends to raise in

court. A disability claimant’s failure to present a claim

of error to the Appeals Council therefore should

ordinarily bar its consideration in subsequent judicial

proceedings.

That rule should apply even in cases where the rele-

vant legal or factual theory was advanced in the pro-

ceedings before the ALJ, for in those circumstances the

failure to renew the same objection before the Appeals

Council would manifest not merely procedural default,

but a deliberate abandonment. Here, however, the

second and third claims of error that petitioner ad-

vanced in the court of appeals were never presented to

any administrative authority. Because those claims

(observing that Section 10 of the APA “deals largely with

principles” and “generally leaves the mechanics of judicial review

to be governed by other statutes and by judicial rules. In noting

that “the exhaustion doctrine continues to apply as a matter of

judicial discretion in cases not governed by the APA,” 509 U.S. at

153-154, the Darby Court further acknowledged the continuing

authority of courts to apply “common law” principles to judicial

review of federal agency action, so long as the applicable statutory

review provision does not specifically address the relevant ques-

tion. Because Section 405(g) does not specifically address the

authority of a reviewing court to consider objections to an ALJ

decision that were not raised before the agency, that question is

governed by background principles of administrative law.

were premised on the findings made by the ALJ, and

were therefore logically unavailable until the ALJ

issued his decision, petitioner’s failure to present the

arguments to the ALJ does not constitute an inde-

pendent barrier to their consideration by the courts.”

But precisely because no SSA adjudicatory official had

previously been given an opportunity to consider those

claims of error, it was particularly important to the

agency’s decisionmaking process that the claims be

presented to the Appeals Council.

This Court has long recognized, as a fundamental

background rule of administrative law, that plaintiffs

may not ordinarily obtain judicial review of legal chal-

lenges to agency action unless those challenges are first

presented to the agency itself. As the Court explained

in United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33 (1952),

orderly procedure and good administration require

that objections to the proceedings of an admini-

* Petitioner’s second claim of error in the court of appeals was

that, even accepting the ALJ’s findings as to the severity of her

medical impairments, the ALJ had erred in assessing petitioner’s

RFC. See Pet. C.A. Br. 35-38; note 17, supra. By its nature, that

claim could not have been raised during the proceedings before the

ALJ. Petitioner’s third claim of error—i.e., her contention that

under the circumstances of this case, the ALJ was required (even

in the absence of a request by petitioner) to order a consultative

examination before denying benefits—was similarly premised on

the ALJ’s finding that petitioner suffered from “severe” impair-

ments. See id. at 39-43. Thus, petitioner contended in the court of

appeals that “the ALJ’s own findings that the medical evidence

established the presence of specific medical conditions raises the

requisite level of suspicion such that the Commissioner is required

to order consultative examinations to determine the extent of

such conditions.” Id. at 40-41. That claim likewise could not

have been raised during the ALJ proceedings.

strative agency be made while it has opportunity for

correction in order to raise issues reviewable by

the courts. * * * Simple fairness to those who are

engaged in the tasks of administration, and to

litigants, requires as a general rule that courts

should not topple over administrative decisions un-

less the administrative body not only has erred but

has erred against objection made at the time

appropriate under its practice.

Id. at 37; see also id. at 36 & n.5 (citing earlier cases).”

Accord, e.g., Unemployment Compensation Comm'n v.

Aragon, 329 U.S. 143, 155 (1946) (“A reviewing court

usurps the agency’s function when it sets aside the

administrative determination upon a ground not there-

tofore presented and deprives the [agency] of an op-

portunity to consider the matter, make its ruling, and

state the reasons for its action.”).”

2% Correspondingly, a reviewing court may not affirm an

agency’s decision on a ground that the agency did not invoke in the

administrative proceedings. See SEC v. Chenery Corp., 318 U.S.

80, 88 (1943).

26 In a variety of circumstances, the courts of appeals have

recognized the general rule that a plaintiff may not object in court

to administrative action on grounds not first presented to the

agency. See, e. g., Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C.

Cir. 1996); Salt Lake Community Action Program, Inc. v. Shalala,

11 F.3d 1084, 1087 (D.C. Cir. 1993); Colin K. by John K. v.

Schmidt, 715 F.2d 1, 5-6 (Ist Cir. 1983); Railway Labor Executives’

Ass n v. United States, 791 F.2d 994, 1000 (2d Cir. 1986); Director,

OWCP v. North American Coal Corp., 626 F.2d 1137, 1143 (3d Cir.

1980); Rana v. United States, 812 F.2d 887, 890 (4th Cir. 1987);

Brotherhood of Railway, Airline, and Steamship Clerks v. St.

Louis Southwestern Railway, 676 F.2d 132, 136-139 (5th Cir. 1982);

Hiæ v. Director, OWCP, 824 F. 2d 526, 527 (6th Cir. 1987); Myron v.

Chicoine, 678 F.2d 727, 731-732 (7th Cir. 1982); Edwards v.

Department of the Army, 708 F.2d 1344, 1346-1347 (8th Cir.

As Tucker Truck Lines makes clear, the rule that

objections not presented to an administrative agency

will thereafter be deemed waived applies even where

the plaintiff has invoked every available layer of

administrative review. The plaintiff in Tucker Truck

Lines was aggrieved by the decision of an Interstate

Commerce Commission hearing examiner. 344 U.S. at

34. The plaintiff filed exceptions to the examiner’s

decision; subsequently requested reconsideration by

the full Commission; and later petitioned the Com-

mission for “extraordinary relief.” Ibid. Nothing in the

Court’s opinion suggests that any additional level of

administrative review remained available. Rather, the

defect in the plaintiff's lawsuit was that the particular

objection asserted in court—i.e., the contention that the

hearing examiner had been appointed in an invalid

manner—had not been raised during the administrative

process.

Under petitioner’s approach, however, unsuccessful

applicants for disability benefits under the Social

Security Act could routinely obtain judicial review of

legal and factual issues that no SSA official had been

given the opportunity to consider. To permit judicial

review of those claims would subvert the Appeals

Council’s performance of its assigned function and

— contravene established principles of administra-

tive law.

1983); Sears, Roebuck & Co. v. FTC, 676 F.2d 385, 398 (9th Cir.

1982); Rives v. I. C. C., 934 F.2d 1171, 1176 (10th Cir. 1991), cert.

denied, 503 U.S. 959 (1992); State of Alabama ex rel. Siegelman v.

U.S.E.P.A., 911 F.2d 499, 505-506 (11th Cir. 1990).

C. Administrative Default Principles Are Fully Appli-

cable To The Appeals Council Process

Petitioner appears to accept the general proposition

that claims not pursued in a mandatory administrative

appeal cannot thereafter be asserted in court. She

contends, however, that application of administrative

default principles in the present context would be

inappropriate because SSA’s administrative processes

for resolving disability claims are informal and non-

adversarial. That argument is incorrect.

1. This Court has recognized that the requirement of

Appeals Council review in Social Security cases serves

essentially the same purposes as exhaustion require-

ments generally. Thus, the Court in Salfi cited McKart

and described the justifications for Section 405(g)’s

exhaustion requirement in terms that tracked McKart’s

general discussion of exhaustion principles. See 422

U.S. at 765; see also Ringer, 466 U.S. at 619-620 n.12;

page 19, supra. In City of New York, the Court

excused the failure of many members of the class of

disability claimants to exhaust their administrative

remedies on the ground that

[t]his case is materially distinguishable from one in

which a claimant sues in district court, alleging mere

deviation from the applicable regulations in his

particular administrative proceeding. In the normal

course, such individual errors are fully correctable

upon subsequent administrative review since the

claimant on appeal will alert the agency to the

alleged deviation. Because of the agency’s expertise

in administering its own regulations, the agency

ordinarily should be given the opportunity to review

application of those regulations to a particular

factual context.

476 U.S. at 484-485 (emphasis added).” As the itali-

cized language makes clear, the guiding assumption in

the context of Social Security disability claims, as in

other administrative settings, is that the claimant in

exhausting his administrative remedies will identify the

purported flaws in the agency decision that is the sub-

ject of higher-level administrative review.

In Richardson v. Perales, 402 U.S. 389 (1971), this

Court recognized that the informal nature of SSA

disability proceedings does not relieve a represented

claimant of responsibility for protecting his interests

during the administrative process. The Court in

Perales noted that “strict rules of evidence, applicable

in the courtroom, are not to operate at social security

hearings so as to bar the admission of evidence other-

wise pertinent.” Jd. at 400. The Court accordingly held

that the written report of an examining physician could

provide a sufficient evidentiary basis to support a

hearing examiner’s denial of benefits. Jd. at 402. The

Court observed, inter alia, that

lallthough the claimant complains of the lack of

opportunity to cross-examine the reporting physi-

cians, he did not take advantage of the opportunity

afforded him under [the regulations] to request

2 In City of New York, the Court found that the plaintiffs’

failure to exhaust administrative remedies should be excused

based on the district court’s finding of “a systemwide, unrevealed

policy that was inconsistent in critically important ways with

established regulations.” 476 U.S. at 485. The Court concluded

that “{uJnder these unique circumstances, there was nothing to be

gained from permitting the compilation of a detailed factual record,

or from agency expertise.” Ibid.

subpoenas for the physicians. * * * This inaction

on the claimant’s part supports the Court of Ap-

peals’ view that the claimant as a consequence is to

be precluded from now complaining that he was

denied the rights of confrontation and cross-

examination.

Id. at 404-405 (citation omitted). Perales makes clear

that, at least where a disability claimant is represented

by counsel (see id. at 395-396), he may be foreclosed

from raising particular objections to the conduct of the

administrative process if he fails to assert his rights in a

timely fashion.

2. The Appeals Council is an appellate body exer-

cising discretionary jurisdiction.” SSA regulations

make clear that the Appeals Council will not ordinarily

grant review simply to reconsider the ALJ’s assess-

ment of the relevant evidence. Rather, Appeals Council

review is appropriate where (1) “[t]here appears to be

an abuse of discretion by the [ALI]; (2) At here is an

error of law”; (3) “(t]he action, findings or conclusions of

the [ALJ] are not supported by substantial evidence”;

or (4) there is a broad policy or procedural issue that

2% In that sense the relationship between the Appeals Council

and the ALJ is fundamentally different from the relationship be-

tween the ALJ and the state agency that makes the initial

determination of disability. An individual claimant must apply for

benefits with the state agency, and seek reconsideration if the

initial application is denied, as a prerequisite to a hearing before

the ALJ. But once that prerequisite has been satisfied, the ALJ

proceeding involves a de novo determination of the claimant’s

eligibility for benefits, not an appellate review of the state agency’s

determination. See Heckler v. Day, 467 U.S. 104, 107 (1984).

may affect the general public interest.” 20 C.F.R.

404.970(a)(1)-(4).”

The Seventh Circuit, in its recent decision holding

that a claimant’s failure to raise a particular issue be-

fore the Appeals Council did not bar him from asserting

the claim on judicial review, stated: “Basically all that

seems contemplated or required [by SSA regulations] is

that the disappointed claimant ask the Appeals Council

to take a look at what the administrative law judge has

done and reverse if it finds an error. The Appeals

Council operates more like a complaint bureau than an

appellate court.” Johnson v. Apfel, 189 F.3d 561, 563

(7th Cir. 1999). As the preceding discussion makes

clear, that statement reflects a fundamental misconcep-

tion of the regulatory framework and of the Appeals

Council’s place in the administrative scheme. The

pertinent SSA regulations make clear that the Appeals

Council functions as an appellate tribunal, whose ordi-

nary practice is to exercise jurisdiction only in defined

categories of cases. It is consequently reasonable to

expect that a claimant who invokes the Appeals

Council’s jurisdiction will perform an appellant’s usual

role—i.e., to identify the alleged deficiencies in the

ALJ’s disposition of the case, and to explain why the

*® Pursuant to 20 C.F.R. 404.970(b), a claimant who is denied

benefits by the ALJ may submit “new and material” evidence to

the Appeals Council, so long as that evidence “relates to the period

on or before the date of the [ALJ] hearing decision.” Under that

provision, it is possible for the Appeals Council to overturn an

ALJ’s ruling based on evidence that was not before the ALJ.

Even under Section 404.970(b), however, the Appeals Council does

not ordinarily undertake a de novo assessment of eligibility for

benefits. Rather, it reviews the case “if it finds that the [ALJ’s]

action, findings, or conclusion is contrary to the weight of the

evidence currently of record.” 20 C.F.R. 404.970(b).

case satisfies the Appeals Council’s standards for

exercising discretionary review.”

Indeed, the majority of the courts of appeals to

consider the question have held that administrative

default principles apply in this setting and typically bar

a claimant from asserting in court objections not pre-

sented to the agency. See Meanel v. Apfel, 172 F.3d

1111, 1115 (9th Cir. 1999) (“at least when claimants are

represented by counsel, they must raise all issues and

evidence at their administrative hearings in order to

preserve them on appeal”); James v. Chater, 96 F.3d

1341, 1343-1344 (10th Cir. 1996) (La] request for ad-

ministrative review, which does not identify the issues

with any particularity, effectively sandbags the Ap-

peals Council”); Harper v. Secretary of Health &

Human Services, 978 F.2d 260, 265 (6th Cir. 1992)

(“Because the record does not indicate that the issue

was raised at the administrative level, we are not in a

position to consider the issue”); Paul v. Shalala, 29

F.3d 208, 210 (5th Cir. 1994) (Paul's failure to raise her

3° The courts of appeals have consistently held that the Appeals

Council may review a case on its own motion pursuant to 20 C.F.R.

404.969, whether or not the case falls within one of the categories

described in 20 C. F. R. 404.970. See, e.g., Welch v. Heckler, 808

F.2d 264, 267-268 (3d Cir. 1986); Bauzo v. Bowen, 803 F.2d 917,

920-922 (7th Cir. 1986); Mullen v. Bowen, 800 F.2d 535, 542-545

(6th Cir. 1986) (en banc); Fierro v. Bowen, 798 F. 2d 1351, 1353-1354

(10th Cir. 1986), cert. denied, 480 U.S. 945 (1987); Parker v. Bowen,

788 F.2d 1512, 1518-1519 (11th Cir. 1986) (en banc). Section 404.970

is therefore properly regarded not as a binding constraint on the

Appeals Council’s discretion to grant review in particular cases,

but as a statement regarding the manner in which that discretion

will generally be exercised. Cf. Sup. Ct. R. 10. It is nevertheless

entirely reasonable to expect that a claimant who invokes the

Appeals Council’s jurisdiction will at least briefly explain why the

case is appropriate for Appeals Council review.

* * * claim in the Appeals Council * * * deprives us

of jurisdiction to review the claim”). Prior to its

decision in Johnson, the Seventh Circuit had applied

that rule as well. See Johnson, 189 F.3d at 562-563

(citing cases). The Eighth Circuit is the only other

court of appeals to have held that a disability claimant

may challenge the Commissioner’s adverse decision on

grounds not raised before the Appeals Council. See

— v. Apfel, 186 F.3d 1039, 1042-1043 (8th Cir.

3. The informal and non-adversarial character of the

Appeals Council proceedings (see 20 C. F. R. 404.900(b))

does not alter the foregoing analysis. Appeals Council

proceedings are informal in the sense that technica!

rules of pleading, document preparation, and evidence

do not apply. See 20 C. F. R. 422.205(a) (request for Ap-

peals Council review may be made on a form provided

by SSA “or by any other writing specifically requesting

review”); cf. Perales, 402 U.S. at 400-401. They are

non-adversarial in the sense that the disability claimant

is not opposed by any advocate charged with defending

the ALJ ruling. In those respects the Appeals Council

proceedings differ from any subsequent litigation in the

federal courts concerning SSA’s benefits determina-

tions, whicl: vill be governed by the Federal Rules of

Civil (or Appellate) Procedure, and in which govern-

ment counsel will appear to defend the Commissioner’s

“final decision.”

The informal and non-adversarial character of the

Appeals Council process, however, does not mean-

ingfully affect the relationship between the claimant

and the Appeals Council. As with an appellant in civil

litigation or in an “adversarial” administrative appeal,

the claimant’s objective is to attempt to persuade the

appellate body that the trial-level decisionmaker has

erred and that the error warrants appellate correction.

In pursuing that objective, the claimant is free to

submit Aalny documents or other evidence [she]

wishles] to have considered * with [her] request

for review.“ 20 C.F.R. 404.968(a). The essential first

step in that process is for the claimant to identify,

with at least some degree of specificity, the particular

respects in which she believes that the ALJ has erred.

The fact that no particular form of documentation is

required, and that no agency counsel is assigned to

oppose the claimant’s submission or to defend the

ALJ’s ruling, cannot reasonably be supposed to render

that step superfluous.

Nor does the informal and non-adversarial character

of the proceedings alter the role of the claimant's

attorney. The claimant’s lawyer does not owe primary

loyalty to the government, and his role before the

Appeals Council is not to assist SSA in arriving at the

most accurate possible benefits determination. It

is instead to serve as an advocate for the claimant’s

interests, and to represent those interests as vigorously

as possible consistent with applicable norms of ethical

practice. The absence of any opposing counsel at that

stage of the administrative process does not lessen that

duty of vigorous advocacy. Just as with any other

appellate agency tribunal, the requirement that a

disability claimant seek Appeais Council review before

filing suit in court therefore carries with it the re-

quirement that a claimant must alert the agency to the

purported flaws in the ALJ’s decision during the course

of the administrative process in order to preserve those

claims for judicial review.

The fact that the Appeals Council may choose sua

sponte to address issues not raised by the claimant does

not alter the foregoing analysis. The prudential re-

quirement that a litigant must have raised a matter

before the Appeals Council in order to raise it in court

is similar to this Court’s general practice of declining to

review a claim that was “neither raised before nor

considered by” the lower court. Adickes v. Kress & Co.

398 U.S. 144, 147 n.2 (1970). Where a lower court

actually addresses a question not raised by the parties,

its resolution of the issue is subject to this Court’s re-

view. See, e. g., Virginia Bankshares, Inc. v. Sandberg,

501 U.S. 1083, 1099 n.8 (1991). But the fact that a lower

court has discretion to decide such questions, ef.

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 parties.”), does not

vitiate the application of waiver rules in a case where

the lower court declines to exercise that discretion.

The same principle applies here. If the Appeals Council

grants review in a particular case and addresses a

question not raised by the claimant, its resolution of the

issue is reviewable in court. But where (as here) the

Appeals Council denies review, issues not raised in the

request for review will ordinarily be deemed to be

defaulted, notwithstanding the fact that the Appeals

Council might have chosen to resolve questions not

pressed before it.

4. Petitioner also contends (Br. 14) that the admini-

case ity and formality to

the SSA adjudicative process,” in derogation of con-

* Similarly, the Appeals Council may (and occasionally does)

review an ALJ decision even though the claimant has not filed a

request for review. See 20 C.F.R. 404.969. But if the Appeals

Council does not choose to review a particular case sua sponte, the

claimant’s failure to file a request for Appeals Council review will

bar any effort to obtain relief in court.

gressional intent. In a similar vein, the Seventh Circuit

suggested that application of administrative default

principles in this setting would “compel disappointed

applicants for disability benefits to bombard the Ap-

peals Council with full briefs in order to preserve their

right to judicial review.” Johnson, 189 F.3d at 563.

That fear is groundless. Even a very short and

relatively inartful statement of the grounds for review

is sufficient, so long as the claimant’s filing identifies

the purported flaws in the ALJ’s disposition of the case,

thereby enabling the Appeals Council to focus its

attention on those aspects of the ALJ decision with

which the claimant disagrees. Application of the stand-

ard procedural default rule in this setting does not re-

quire that claims be presented in a legally sophisticated

manner, or otherwise disturb the relatively informal

character of the Appeals Council proceedings.

The Johnson court was wrong in any event to

substitute its views for those of the agency regarding

the manner in which SSA’s administrative process can

most efficiently be implemented. SSA’s invocation of

administrative default principles in courts around the

country (see pp. 36-37, supra) reflects the agency’s

view that, with respect to claimants who are repre-

sented during Appeals Council proceedings, such rules

are consistent with the informal and non-adversarial

character of the administrative process. SSA’s views

regarding the essential character and adjudicatory

requirements of a body that the agency itself has

created are entitled to substantial respect from a

reviewing court. Cf. Auer v. Robbins, 519 U.S. 452, 462

* See also note 35, infra (describing SSA’s plans to revise

forms given to claimants’ representatives to inform them of

administrative default rule).

(1997) (a reviewing court should defer to an agency’s

interpretation of its own regulation, even where that

“interpretation comes to [the court] in the form of a

legal brief,” so long as the brief “reflect[s] the agency’s

fair and considered judgment on the matter in ques-

tion”).

D. Petitioner Had Fair Warning That Arguments Not

Raised Before The Appeals Council Would Be Barred

On Judicial Review

Petitioner contends (see Br. 42-49) that SSA has

engaged in “misleading and deceptive conduct” regard-

ing the consequences of a claimant’s failure to raise

particular claims before the Appeals Council. She

argues that SSA’s failure to provide adequate notice

precludes application of administrative default prin-

ciples. That argument is without merit.

1. In determining the adequacy of notice in this

setting, the question is whether a represented claimant

may reasonably be charged with knowledge that the

failure to raise an argument before the Appeals Council

will effect a waiver of that argument in a subsequent

judicial proceeding. Petitioner was represented by

counsel both before the ALJ and before the Appeals

Council. Assuming that application of an administra-

tive default rule to her own lawsuit is fair and

equitable, she cannot escape the consequences of her

default by arguing that such a rule would be unfair as

applied to unrepresented claimants. Moreover, as a

* As we explain above (see note 15, supra), the Seventh Cir-

cuit’s error appears to have resulted in part from the court’s

misunderstanding of the government’s acknowledgment that a

failure to raise particular arguments before the Appeals Council is

not, strictly speaking, a failure to “exhaust.”

policy, the government has not invoked administrative

default in suits brought by claimants who were unre-

presented during the Appeals Council proceedings.

See Supp. Pet. App. C2; Gov’t Br. in Opp. 9. The

Court’s inquiry should accordingly focus on whether

petitioner’s attorney had adequate notice that the

failure to raise particular claims before the Appeals

Council would bar their subsequent assertion in court.“

2. Petitioner contends (Br. 44) that SSA has misled

claimants “by advertising an informal, non-adversarial

Appeals Council process, by encouraging claimants to

present their issues in a three-line space, and by failing

to provide an issue waiver warning along with the other

appellate review warnings in the notice of unfavorable

ALJ decision.” To take the last point first: As we

explain above, the rule that objections not presented to

an administrative agency will thereafter be deemed

waived is a firmly established background principle of

administrative law. The essential attribute of a back-

ground rule is that it is assumed to apply absent some

clear indication to the contrary. The agency’s “fail{ure]

to provide an issue waiver warning” (Pet. Br. 44) there-

fore could not reasonably have led petitioner’s counsel

to conclude that issues not preserved before the

Appeals Council could thereafter be pressed in court.”

* Petitioner is accountable for her attorney’s acts and omis-

sions. See, e. g., Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership, 507 U.S. 380, 396-397 (1993). Cf. New York v. Hill,

120 S. Ct. 659, 664 (2000) (“decisions by counsel are generally given

effect as to what arguments to pursue”); Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 92-93 (1990) (attorney’s knowledge

of agency action commencing 30-day period for filing suit is pro-

perly attributed to client).

The ALJ’s Notice of Decision expressly informed petitioner

that if you do not appeal and the [Appeals] Council does not

Rather, the question is whether counsel could reason-

ably have construed SSA regulations and agency prac-

tice as affirmatively recognizing an exception to the

presumptive rule of administrative law.

For the reasons stated at pages 37-40, supra, neither

the informality nor the non-adversarial character of

Appeals Council proceedings is in any way inconsistent

with principles of administrative default. The SSA

regulations do not prevent or discourage the claimant

review [the ALJ's} decision on its own motion, you will not have a

right to court review.” J. A. 27. As the Court explained in Sal fi.

Congress has authorized SSA to decide what avenues of admini-

strative review must be exhausted in order to obtain a “final

decision of the Commissioner” subject to judicial review under 42

U.S.C. 405(g). See Salfi, 422 U.S. at 766 (“The term ‘final decision’

is not only left undefined by the Act, but its meaning is left to the

[Commissioner] to flesh out by regulation.”). Because the require-

ment that disability claimants seek Appeals Council review before

pursuing judicial remedies is the direct result of an SSA-specific

regulation, it is particularly appropriate for SSA to give claimants

express notice of that requirement. By contrast, the admini-

strative default rule that we advocate here is not specific to the

SSA; it simply reflects the application to disability cases of general

principles of administrative law. The absence of explicit, indi-

vidualized notice of that background rule cannot reasonably be

taken to suggest that the normal rule would not apply.

As we explained in our brief at the petition stage (see Gov’t Br.

in Opp. 11-12), SSA has informed us that it intends to amend the

form that claimants and their representatives must file in order for

the agency to recognize someone other than the claimant as acting

on the claimant’s behalf in matters before the agency. The revised

form 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.

Contrary to petitioner’s assertion (Br. 47-48), however, the

agency’s decision to amend the form does not suggest that the

relevant principles of administrative law were previously inacces-

sible to claimants and their counsel. ;

and her attorney from making a forceful challenge to

the adverse decision of the ALJ. To the contrary, the

regulations specifically provide that the claimant is free

to submit “[aJny documents or other evidence [she]

wishles] to have considered * * * with [her] request

for review.” 20 C.F.R. 404.968(a). The regulations

specify the criteria ordinarily applied by the Appeals

Council in determining whether to grant review, see 20

C. F. R. 404.970, and the notice of the ALJ’s decision

sent to petitioner and her attorney stated that t he

Council will review your case if one of the reasons for

review listed in our regulations exists.” J.A. 26-27. An

awareness of the informal, non-adversarial character of

the Appeals Council process therefore could not reason-

ably cause the claimant or her attorney to believe that

ordinary rules of administrative default are inapplicable

in this setting.

There is also no basis for petitioner’s suggestion (Br.

43) that the three lines provided on Form HA-520

(see note 11, supra) for stating objections to the ALJ’s

decision misled her into believing that particular

challenges need not be raised before the Appeals

Council in order to be preserved for judicial review. In

the first place, Form HA-520 is not the exclusive means

of requesting Appeals Council review. SSA regulations

provide that a request for Appeals Council review “may

be made on Form HA-520 * * * or by any other

writing specifically requesting review.” 20 C.F.R.

422.205(a); see also 20 C. F. R. 404.968(a) (“You may

request Appeals Council review by filing a written

request.”). The ALJ’s Notice of Decision in this case

similarly made clear that petitioner could request Ap-

peals Council review either by using Form HA-520 or

by “writ[{ing] a letter.” J.A. 25. Since petitioner’s

counsel did not submit a Form HA-520, but instead

invoked the Appeals Council’s jurisdiction by means of

a lengthy and detailed letter (see J.A. 51-70), there is no

reason to believe that counsel was in any way misled by

the contents of that Form.

In any event, Form HA-520 itself requires the

claimant to identify the grounds for his challenge to the

ALJ decision. The Form states: “I request that

the Appeals Council review the Administrative Law

Judge’s action on the above claim because:” (item 5).

The fact that only three lines are provided for the

claimant’s response indicates that a very brief explana-

tion of the grounds for appeal may suffice and, in any

event, a claimant could attach an additional sheet if she

believed that was necessary. The Form does not

suggest, however, that Appeals Council proceedings

are an exception to the generally applicable require-

ment that one who invokes the jurisdiction of an

appellate tribunal should identify the alleged error(s) in

the decision from which the appeal is taken.

3. Petitioner’s claim of unfair surprise is particularly

unpersuasive in light of the Fifth Circuit’s prior de-

cision in Paul v. Shalala, 29 F.3d 208 (1994). The court

issued its decision in Paul more than 19 months before

petitioner filed her request for review in the Appeals

Council. See ibid.; J.A. 51. That decision gave peti-

tioner and her attorney unambiguous notice that, at

least within the Fifth Circuit, claims not raised before

the Appeals Council would ordinarily be barred from

subsequent judicial consideration. See 29 F.3d at 210-

211. Thus, any uncertainty that might otherwise have

existed regarding the applicability of administrative

default principles in this setting was dispelled by the

ruling in Paul.

CONCLUSION

The judgment of the court of appeals should be

affirmed

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

WILLIAM KANTER

ROBERT D. KAMENSHINE

Attorneys

FEBRUARY 2000

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.