# Respondents Brief — Sims v. Apfel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 103

## Text

Supreme Court, US.
FILE

FER ne. 220

No. 98-9537
In the Supreme Court of the Ulited Hinte

JUATASSA SIMS, PETITIONER
v.

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

ae

(IIT)

IV

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

28
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

36

36

37

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)

—
=

a
&
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

f

Kw
—

828

VI

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

il
tt

Iii
1

7

"
=
8
8
3

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

=

3
3

*
24222

5, 8

404. 968(a)

7

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).

8

(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.

3

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.

4

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

—

5

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.

6

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.

7

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

8

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.

9

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

10

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.

11

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

12

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.

13

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

14

_ 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.

15

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

16

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.

—

17

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.

© We use the term “administrative default,” in preference to
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

18

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.

19

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

20

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

21

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

22

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.

23

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.”).

24

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

25

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.

27

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)

28

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.

29

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.

30

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.

31

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).

32

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

33

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.

34

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).

35

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).

36

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.

37

* * * 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

38

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-

39

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-
— — exmghunthy and hain ©
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.

40

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).

41

(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.”

42

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

43

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. ;

44

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

45

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.

46

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0311%3A08. Public record. Not legal advice.