# Opposition Brief — Hollins v. Barnhart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 811

## Text

No. 02-1489

Jn the Supreme Court of the Gnited States

LINDA HOLLINS, PETITIONER
Vv.

JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

THEODORE B. OLSON
Solicitor General
Counsel of Record

ROBERT D. MCCALLUM, JR.
Assistant Attorney General

WILLIAM KANTER
MICHAEL E. ROBINSON
Attorneys

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether, after a district court remands a Social
Security disability case to the Commissioner of Social
Security pursuant to sentence four of 42 U.S.C. 405(g),
an Administrative Law Judge (ALJ) is limited to de-
ciding only the specific issues identified by the district
court’s decision, or whether the ALJ may reconsider
other issues where doing so is not inconsistent with the
district court’s judgment.

(1)

TABLE OF CONTENTS

Page
Opinions below ........ 1
Jurisdiction 1
Statement 2
Argument nine 8
Conclusion 18
TABLE OF AUTHORITIES
Cases:
Bowen v. Yuckert, 482 U.S. 187 (1987) 3
Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir.

1987) 9, 13, 14-15
Clay v. United States, 123 S. Ct. 1072 (2008) ...........sssseee 18
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S.

795 (1999) 3
FPC v. Idaho Power Co., 344 U.S. 17 (1952) .........scsceseees 11
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.

394 (1981) 16
Fogel v. Chestnutt, 668 F.3d 100 (2d Cir. 1981),

cert. denied, 459 U.S. 828 (1982) 16
Heckler v. Campbell, 461 U.S. 458 (1988) ........ccccccssseseees 3
Hooper v. Heckler, 752 F.2d 83 (4th Cir. 1985) ............000 16
Horrell v. Chater, 54 F.3d 787 (10th Cir. 1995) ................ 16
INS v. Ventura, 123 S. Ct. 353 (2002) 11
Key v. Sullivan, 925 F.2d 1056 (7th Cir. 1991) ................ 16
Mefford v. Gardner, 383 F.2d 748 (6th Cir. 1967) ............ 9
Port of Portland v. United States, 408 U.S. 811

(1972) 11
Quern v. Jordan, 440 U.S. 332 (1979) 17
Rivet v. Louisiana, 522 U.S. 470 (1998) 16
Ruiz v. Apfel, 24 F. Supp. 2d 1045 (C.D. Cal. 1998) ........ 15
SEC v. Chenery Corp., 332 U.S. 194 (1947) .........000+ 11, 15, 16

(IIT)

IV

Cases—Continued: Page

Semtek Int'l, Inc. v. Lockheed Martin Corp., 531 U.S.

497 (2001) .... 17
Shalala v. Schaefer, 509 U.S. 292 (1993) 18
Sullivan v. Hudson, 490 U.S. 877 (1989) 8,9, 10 -
United States v. Campbell, 168 F.3d 263 (6th Cir.),

cert. denied, 528 U.S. 882 (1992) 10, 11
United States v. Moore, 131 F.3d 595 (6th Cir. ~

1997) - 11
United States v. Washington, 172 F.3d 1116

(9th Cir. 1999) 10
United States v. Young, 66 F.3d 830 (7th Cir.

1995) . 10

Statutes and regulations:

~ Equal Access to Justice Act, 28 U.S.C. 2412 et seq. ......... 10
Social Security Act, Tit. II, 42 U.S.C. 401 et seq. .........0000 2

42 U.S.C. 402(e)(1)(B) 2

42 U.S.C. 402(e)(4) 2

0

2

2

42 U.S.C. 405(g) 1
42 U.S.C. 423(d)(1)(A)
42 U.S.C. 423(d)(2)(A)
20 C.F.R. Pt. 404:
Subpt. J:
OI GGT itadicersceniciinennicninianientnitieninnieieninin 14, 15
Section 404.983 10, 14, 15
Subpt. P:
Section 404.1520(a)
Section 404.1520(b)
Section 404.1520(c)
Section 404.1520(d)

Section 404.1520(f)
App. 1 . ”
Listing 12.05C 4, 5, 12,1

3
3
3
3
Section 404.1520(e) 4
4
3
3

Miscellaneous: Page
OS FOG, Oe: BTU I itive 10, 14

a

oe

In the Supreme Court of the Gnited States

No. 02-1489
LINDA HOLLINS, PETITIONER
Vv.

Jo ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-15a)
is unreported. The opinion of the district court (Pet.
App. 16a-30a) is reported at 160 F’. Supp. 2d 834. A
previous opinion of the district court remanding the
ease to the Commissioner (Pet. App. 75a-78a) is unre-
ported.

JURISDICTION

The judgment of the court of appeals was entered on
Octoher 17, 2002. A petition for rehearing was denied
on January 10, 2008. The petition for a writ of certio-
rari was filed on April 7, 2003. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. Title II of the Social Security Act, 42 U.S.C. 401 et
seq., provides disability insurance benefits to covered
workers and, in certain circumstances, te the disabled
widows and widowers 01 covered workers. The Act
defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can
be expected to result ir 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). An indi-
vidual may be found to be under a disability, moreover,
“only if his physical or mental impairment or impair-
ments are of such severity that he is not only unable to
do his previous work but cannot, considering his age,
education, and work experience, engage in any other
kind of substantial gainful work-which exists in the
national economy.” 42 U.S.C. 423(d)(2)(A). To qualify
for widow’s insurance benefits, a claimant must estab-
lish that she became disabled sometime between her
50th birthday and the seventh year following the death
of her spouse. 42 U.S.C. 402(e)(1)(B), 402(e)(4).

Petitioner filed a claim for benefits as the disabled
widow of a covered worker. Her claim was denied
initially and on reconsideration. Pet. App. 96a. Peti-
tioner then sought a hearing before an Administrative
Law Judge (ALJ), who conducted the hearing in April,
1996. Ibid. The ALJ determined that petitioner had
several physical impairments and limited intellectual
functioning. Jd. at 108a. Nonetheless, the ALJ deter-
mined that petitioner was not disabled. Petitioner’s
residual functional capacity, the ALJ found, permitted
her to perform a significant number of light jobs. Id. at
106a-107a, 110a; see id. at 4a, 19a. The ALJ concluded

3

that petitioner’s “capacity for light work has not been
significantly compromised by the functional limitations
imposed by her impairments.” Jd. at 107a.

Petitioner sought review in district court, arguing
that the ALJ’s determination was not supported by
substantial evidence. Specifically, petitioner argued
that she should have been found disabled based on the
Social Security Administration’s “Listing of Impair-
ments.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The
Listings identify impairments that are presumed to be
So severe as to preclude all gainful activity. If a claim-
ant has a listed impairment (and is not currently
engaged in substantial gainful activity), the claimant
generally will be found disabled without further in-
quiry. 20 C.F.R. 404.1520(d).! If the claimant’s impair-
ments do not meet the Listing requirements, however,
the ALJ will evaluate her “residual functional capacity”
and decide whether she can perform her former work
or any other work. Such a claimant will be found
disabled only if (a) she is functionally incapable, because

1 The Listings are employed at step three of the five-step se-
quential evaluation process the Commissioner uses to decide dis-
ability claims. See Heckler v. Campbell, 461 U.S. 458, 460-461
(1983); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804
(1999); Bowen v. Yuckert, 482 U.S. 187, 147-148 (1987). Under that
process, a claimant can be found disabled or not disabled at various
points. If that occurs, the evaluation does not proceed further. 20
C.F.R. 404.1520(a). At step one, the Commissioner asks whether
the claimant is currently engaging in substantial gainful activity; if
the claimant is, she is not disabled. 20 C.F.R. 404.1520(b). At step
two, the Commissioner asks whether the claimant has a severe
impairment, or combination of impairments, “which significantly
limits” her “ability to do basic work activities,” such as lifting,
standing, and walking, 20 C.F.R. 404.1520(c); if the impairment or
impairments are not so severe as to significantly limit such activi-
ties, the claimant is not disabled. Jbid.

eee eas

4

of her impairment or combination of impairments, of
performing the kind of work she has done in the past,
and (b) she cannot perform any other work in the
national economy, considering her residual functional
capacity, age, education, and work experience. 20
C.F.R. 404.1520(e), 404.1520(f).?

In this case, petitioner argued that her combined
physical and mental impairments were equivalent to
the Listing for mental retardation, 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Listing 12.05C. See Pet. App. 4a, 83a.
In addition, petitioner argued that the ALJ should have
found that she was illiterate. Jbid. Adopting the
recommendations of a magistrate judge, id. at 79a-87a,
the district court agreed that the ALJ had not ad-
dressed those issues with sufficient clarity, but declined
to rule that petitioner’s impairments were equivalent to
Listing 12.05C (mental retardation). Pet. App. 75a-76a,
86a; see id. at 4a. Instead, the court remanded the case
to the agency “for further proceedings.” Jd. at 75a.

2. On remand, the ALJ reconsidered the specific
issues identified by the district court, taking new evi-
dence and conducting a new hearing. The ALJ ex-
plained that, following a psychological examination, Dr.
West had reported that petitioner’s IQ test scores
ranged from 68 to 79. Pet. App. 45a. However, Dr.
West concluded that those scores were “invalid due to
low effort, interest, and motivation on [petitioner’s]
part.” Jbid. In addition, Dr. West found “no indication

2 The inquiry into whether the claimant can do her former work
is step four of the five-step sequential evaluation process. 20
C.F.R. 404.1520(e). The inquiry into whether the impairment
prevents the claimant “from doing any other work,” considering
her residual functional capacity, age, education, and work ex-
perience, is step five. 20 C.F.R. 404.1520(f).

‘

nn SRE SEEN TR Nl cy nee nN ER A oe
enema

5

of a formal thought disorder, hallucinations, or delu-
sional thinking.” Jd. at 46a. Although petitioner
suffered from depression, Dr. West stated that peti-
tioner “would be able to relate appropriately with
fellow workers and supervisors,” could follow simple
instructions, and could maintain adequate concentration
to accomplish assigned tasks. Ibid. Dr. West con-
cluded: “The findings indicate that [petitioner] would
have minimal impairment in being able to deal with day
to day work activity, given her current cognitive and
psychological functioning.” Ibid.

To determine whether petitioner’s impairments
“equalled” the Listing for mental retardation, Listing
12.05C, the ALJ also obtained the “medical expert
opinion” of Dr. Serednesky. Pet. App. 47a. Dr.
Serednesky reported that petitioner did not meet the
Listing for mental retardation because “the subtest
scatter between * * * IQ testing contained in the
record * * * demonstrated malingering, the IQ scores
conflicted with memory testing, and [petitioner] put
forth no effort during the testing.” Jbid. Dr. Sered-
nesky also stated that “the record contained no data
that would suggest medical equivalence to any Listing.”
Ibid. The ALJ therefore determined that petitioner did
not meet Listing 12.05C. Pet. App. 56a-57a, 62a.

The ALJ further determined, however, that he had
erred in his previous evaluation of petitioner’s physical
impairments. In particular, the ALJ concluded that
petitioner did not have any severe physical impair-
ments and that her non-exertional (e.g., mental) impair-
ments did not preclude substantial gainful activity. The
ALJ explained that his earlier (pre-remand) finding
that plaintiff could perform only a reduced range of
light work was incorrect because it was based not on
medical evidence but rather “on plaintiff’s age and

6 —_

general deconditioning,” which are irrelevant to the
determination of residual functional capacity. Pet. App.
48a, 49a; see id. at 102a. Examining the medical evi-
dence in the record, the ALJ found that “the evidence
documented no severe nerve or muscle damage which
might cause significant weakness or limited move-
ment.” Id. at 52a-538a. The ALJ continued:

The evidence of record documents no bony changes,
muscle atrophy or weakness, or reflex or sensory
changes. Accordingly, as there is no objective evi-
dence of a significant physical impairment, and
[petitioner] has refused to cooperate in an assess-
ment of her physical condition, a “severe” physical
impairment cannot be found.

Id. at 58a.2 Relying on the testimony of a vocational
expert, the ALJ concluded that there was a range of
jobs that someone with petitioner’s residual functional
capacity could perform. Id. at 59a-6la. The ALJ there-
fore found that petitioner was not disabled. Jd. at 64a.

3. Petitioner again sought review in district court.
This time, petitioner argued that the ALJ was bound
by the earlier determination that she did have severe
physical impairments that greatly restricted the range
of work she can do. Pet. App. 25a-26a; see id. at 5a.
The district court disagreed, concluding that the earlier
decision of the ALJ was no longer binding, because
petitioner had sought judicial review and the court had
entered an order reversing and remanding. Id. at 27a;
see id. at 5a.

3’ The ALJ had determined that a formal orthopedic evaluation
was necessary. Pet. App. 49a. Petitioner, however, declined to
participate in the evaluation based on the advice of counsel. Jd. at
49a, 52a.

7

Petitioner also argued that the district court’s initial
decision established the law of the case regarding her
physical capacity; in the alternative, she relied on issue
preclusion. Pet. App. 27a. The district court rejected
those arguments. Petitioner, the district court ob-
served, could not rely on res judicata principles because
critical requirements for issue preclusion—a final judg-
ment on the merits and resolution of the specific issues
as a “necessary” or “essential” component of that
judgment—were absent. See id. at 27a-28a.

4. The court of appeals affirmed in an unpublished
decision. Pet. App. 3a-15a. Before the court of appeals,
petitioner did not argue that the ALJ was bound by his
own earlier determination that petitioner had severe
physical impairments. Jd. at 5a. Instead, relying on the
district court’s earlier decision remanding the case,
petitioner argued that reconsideration was barred by
the law-of-the-case doctrine or res judicata (claim and
- issue preclusion). Ibid. The court of appeals rejected
those arguments, explaining that a district court ruling
is preclusive with respect to claims and issues only if
there is a final judgment on the merits, and that issue
preclusion applies only as to an issue “actually litigated
and decided in the prior action” and only if “resolution
of the issue was necessary and essential to a judgment
on the merits.” Jd. at 5a-6a (citation omitted).

In this case, the court of appeals found that the
district court’s initial decision “did not constitute a
decision on the merits regarding [petitioner’s] residual
functional capacity.” Pet. App. 6a. To the contrary, the
court explained, the decision addressed only “the two
narrow errors committed by the ALJ in the initial
hearing.” Ibid. “The merit of the ALJ’s determination
regarding [petitioner’s] physical capacity,” the court
continued, was merely “assumed” but not decided.

8

“The fact that the ALJ made certain factual findings”
may have been important, the court explained, “but the
truth of those findings” was not at issue. Jbid.

The court of appeals also rejected petitioner’s argu-
ment that the ALJ had exceeded the scope of the
district court’s initial remand order. The court agreed
that an agency may not deviate from the court’s
remand order in later administrative proceedings. Pet.
App. 7a (citing Sullivan v. Hudson, 490 U.S. 877, 886
(1989)). But the court of appeals held that that limit
“do[es] not preclude the ALJ from acting in ways that
go-beyond, but are not inconsistent with, the district
court’s opinion.” Jbid. In this case, the court concluded
that “(rjeconsideration of [petitioner’s] physical impair-
ments was not inconsistent with any express or implied
order of the district court.” Jd. at 7a-8a.

The court of appeals also observed that the ALJ did
not need a mandate from a federal court to consider the
extent of petitioner’s physical impairments, because the
power to do so derives from the legislative grant of
authority contained in the Social Security Act. The
court noted that the Social Security Administration has
promulgated a regulation informing claimants that,
upon remand by a federal court, “any issues relating to
your claim may be considered by the administrative law
judge whether or not they were raised in the admini-
strative proceedings leading to the final decision in your
case.” Pet. App. 8a (quoting 20 C.F.R. 404.983). The
court held that “(t]he ALJ therefore did not act outside
his authority” in examining petitioner’s “physical capa-
city.” Ibid. :
ARGUMENT

The decision of the court of appeals is correct and
does not conflict with any decision of this Court or any

SR ennnen enone REPRISE pins rn ¥ ene rn OH ETO SMES lin] 8e NaN Gg OestSere UBT LeSV LICR Shai OE Tn Sts aa Tee ca a
FERRER == SS

9

other court of appeals. Further review therefore is not
warranted.

1. Petitioner argues (Pet. 10) that the court of
appeals’ unpublished decision is inconsistent with this
Court’s decision in Sullivan v. Hudson, 490 U.S. 877,
886 (1984), and conflicts with Chrupcala v. Heckler, 829
F.2d 1269 (3d Cir. 1987). According to petitioner,
“CwJhere a remand order expressly states the terms of-
the remand, then neither the Appeals Council nor
the ALJ may revisit previous determinations on other
issues.” Pet: 10. Petitioner argues that “the original
remand order” in this case “was for such a limited,
specific purpose,” and therefore foreclosed recon-
sideration of issues “beyond the scope of [that] order.”
Ibid. Those arguments lack merit.

a. In Hudson, this Court observed that “the district
court’s remand order will often include detailed instruc-
tions concerning the scope of remand, the evidence to
be adduced, and the legal or factual issues to be
addressed.” 490 U.S. at 885. In those circumstances,
the Court noted, “[dJeviation from the court’s remand
order in the subsequent administrative proceedings is
itself legal error, subject to reversal on further judicial
review.” Id. at 886; see also Mefford v. Gardner, 383
F.2d 748, 758 (6th Cir. 1967) (noting “the general rule
that, on the remand of a case after appeal, it is the duty i
of the lower court, or the agency from which appeal is
taken, to comply with the mandate of the court and to
obey the directions therein without variation and with-
out departing from such directions”). As the court of
appeals explained in this case, however, Hudson did not
address the extent to which an ALJ might consider
issues “that go beyond, but are not inconsistent with,
the district court’s opinion.” Pet. App. 7a.

10

Indeed, Hudson did not involve any issue concerning
the limits on an ALJ’s authority after a remand; rather,
the issue in Hudson was whether the Equal Access
to Justice Act, 28 U.S.C. 2412 et seq., entitles a Social
Security claimant to attorney’s fees for representation
in administrative proceedings before the agency
following a district court remand. 490 U.S. at 879.
Hudson thus had no reason to address, and did not
address, the effect of the Commissioner’s regulations,
including 20 C.F.R. 404.983, which provides that, after
“a Federal court remands a case to the Commissioner
for further consideration,” any “issues relating to your
claim may be considered by the administrative law
judge whether or not they were raised in the admini-
strative proceedings leading to the final decision in your
case.” |
In any event, remands (whether to a lower court or
an administrative agency) generally can be categorized
either as “limited” or “general” in scope. See, ¢.g.,
United States v. Washington, 172 F.3d 1116, 1118 (9th
Cir. 1999); United States v. Campbell, 168 F.3d 263, 265
(6th Cir.), cert. denied, 528 U.S. 882 (1999); United
States v. Young, 66 F.3d 830, 835 (7th Cir. 1995).
“Limited remands explicitly outline the issues to be
addressed by the [lower] court and create a narrow
framework within which the [lower] court must
operate. * * * General remands, in contrast, give
[lower] courts authority to address all matters as long

4 Petitioner mistakenly argues that 20 C.F.R. 404.983 “does not
apply to sentence four remands under 42 U.S.C. § 405(g),” the type
of remand at issue here. Pet. 12. Petitioner identifies no support
for such a conclusion, and nothing in the language of the regulation
limits Section 404.983 to sentence six remands. See 54 Fed. Reg.
37,789 (1989). If the agency had wanted to limit the regulation to
sentence six remands, it certainly could have done so.

11

as remaining consistent with the remand.” Campbell,
168 F.3d at 265 (citation omitted). It is generally under-
stood that, “[{iJn the absence of an explicit limitation, [a]
remand order is presumptively a general one.” Jd. at
268 (quoting United States v. Moore, 131 F.3d 595, 598
(6th Cir. 1997)).

That presumption has special force in the context of
judicial review of agency action, for “the function of the
reviewing court ends when an error of law is laid bare.
At that point the matter once more goes to the [agency]
for reconsideration.” F'PC v. Idaho Power Co., 344 U.S.
17, 20 (1952). The reviewing court’s role, in other
words, “is limited to considering whether the announ-
ced grounds for the agency decision comport with the
applicable legal principles,” Port of Portland v. United
States, 408 U.S. 811, 842 (1972), not to limit the agency’s
authority to re-examine the case (perhaps through the
receipt of new evidence) and identify other grounds for
decision. See INS v. Ventura, 123 S. Ct. 353, 356 (2002).

Indeed, in SEC v. Chenery Corp., 332 U.S. 194 (1947),
this Court rejected the contrary view, upholding an
agency decision that, following the Court’s remand,
reaffirmed the agency’s initial decision on new grounds.
See id. at 200-201. “After the remand was made,” the
Court explained, “the [agency] was bound to deal with
the problem afresh, performing the function delegated
to it by Congress. * * * Only in that way could the
legislative policies embodied in the Act be effectuated.”
Id. at 201. General remands, moreover, are particularly
appropriate in disability cases such as this one, because
disability determinations turn on numerous variables,
some of which change with the passage of time. To
construe remand orders with undue rigidity would in
many cases prejudice claimants—particularly those

12

with progressive diseases—by precluding consideration
of additional evidence supporting their disability claims.

In this case, petitioner’s argument rests on the mis-
taken premise that the district court’s initial remand
order was “limited” to the specific issues discussed in
the district court’s opinion. While the district court
remanded the case to permit the agency to give further
consideration to the equivalency issue—+.e., petitioner’s
contention that her impairments should be considered
the equivalent of the impairment described in Listing
12.05(C)—and petitioner’s claim that she was illiterate,
see Pet. App. 84a-86a, neither the magistrate judge’s
Report and Recommendation, nor the district _court’s
order adopting that Report and Recommendation, con-
tained detailed or specific instructions regarding the
scope of the remand, the evidence to be adduced on
remand, or limitations on the legal or factual issues that
the ALJ could address. Instead, both simply concluded
that the case should be remanded “for further pro-
ceedings pursuant to 42 U.S.C. § 405(g), sentence four.”
See Pet. App. 75a-76a, 86a.

Thus, as the court of appeals explained, “[rJecon-
sideration of [petitioner]’s physical impairments was
not inconsistent with any express or implied order of
the district court.” Pet. App. 7a-8a. In any event,
whether or not the particular district court judgment at
issue here contained language expressly or impliedly
foreclosing the ALJ’s consideration of a given matter is
a highly fact-bound issue that does not warrant this
Court’s review. In fact, further review is especially
unwarranted because resolution of that issue turns in
the first instance on the district court’s interpretation
of its own prior judgment in the case, based on its
familiarity with the prior and current proceedings, and
the court of appeals sustained the district court’s ruling.

13

_The issues addressed by the ALJ on remand, more-
over, were within the scope of the remand order even as
petitioner would narrowly construe it. That order
directed reconsideration of whether petitioner met the
Listing for mental retardation, Listing 12.05C. Listing.
12.05(C) provides that an individual will be presumed
disabled if: (1) her IQ is between 60 and 70; (2) she has
another physical or mental impairment that imposes
“an additional and significant work-related limitation of
function”; and (3) her mental deficiency manifested
before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
Listing 12.05C. Thus, in applying that Listing, the ALJ
was permitted to examine not only petitioner’s IQ but
also her other physical and mental impairments, and to
determine whether they impose “significant work-
related limitation[s].” Nothing in the district court’s re-
mand order required that the ALJ, after having done
so, ignore the resulting findings insofar as they relate to
other disability issues (e.g., ability to perform jobs in
the national economy).

b. Contrary to petitioner’s claims, the decision below
does not conflict with the Third Circuit’s decision in
Chrupcala v. Heckler, supra, decided more than 15
years ago. In Chrupcala, the ALJ determined that the
claimant had been disabled for a year and a half and
awarded benefits for that period. Because the ALJ
determined that the disability had ceased, however, he
also denied the claim for continued benefits. The
claimant sought judicial review of the determination
that his disability had ended, and the district court
remanded the case for a further administrative hearing.
On remand, the ALJ determined that the claimant was
not entitled to any period of disability. 829 F.2d at
1270-1271. Reversing, the court of appeals held that
the ALJ lacked authority to examine issues on remand

14

other than those that were actually raised by the
claimant in his civil action in district court. The court
concluded that, absent adequate notice, the claimant
had no reason to question the finality of the portion of
the agency decision finding him disabled for a certain
period of time, which was favorable to the claimant and
therefore not subject to judicial review on the prior
occassion. See id. at 1270, 1273-1274.

The court rested its decision in significant part, how-
ever, on the fact that the agency’s regulations regard-
ing remands at that time “provide[d] no clear guidance
as to the scope of issues that may be reviewed when the
district court remands a case to the Secretary.” 829
F.2d at 1272 (discussing 20 C.F.R. 404.983 and 404.977
(1986)). After Chrupcala was decided, the agency
amended its regulations to provide explicit guidance as
to the scope of issues that may be reviewed by the
agency following a remand. Thus, 20 C.F.R. 404.983
now states that, when a federal court remands a case to
the Commissioner for further consideration, “[a]ny
issues relating to [the claimant’s] claim may be
considered by the administrative law judge whether or
not they were raised in the administrative proceedings
leading to the final decision in [the] case.” See 54 Fed.
Reg. 37,791 (1989). In light of that amendment, it is
doubtful that the Third Circuit would consider Chrup-
cala binding precedent today.

Chrupcala, moreover, involved action on remand
quite different from the actions at issue here. In
Chrupcala, the ALJ did not merely reach the same
result on remand—a denial of benefits—based on new
evidence and additional reasoning. Instead, the ALJ in
Chrupcala reached a new result that took away an
award of benefits that the agency had previously
_ granted and that had not been at issue on appeal. 829

15

F.2d at 1271. Whatever Chrupcala’s current vitality,
there is no reason to believe that the Third Circuit
would extend the decision beyond that distinct context
so as to preclude an ALJ from invoking alternative
grounds to reaffirm the results of the ALJ’s initial
decision. See Chenery, 332 U.S. at 200-201; pp. 11-12,

supra.

5 Petitioner also contends (Pet. 10-11) that the decision below
conflicts with Ruiz v. Apfel, 24 F. Supp. 2d 1045 (C.D. Cal. 1998).
Because Ruiz is a district court decision, it does not implicate a
circuit conflict. Ruiz is, in any event, distinguishable. In that case,
the district court remanded the case to permit the ALJ to make
complete credibility findings. Jd. at 1050. On appeal from the re-
mand decision, the district court relied on Chrupcala to hold that
the ALJ had erred in going beyond that remand and re-deciding an
issue that had previously been decided in the claimant’s favor (and
that, as a result, had not previously been addressed on judicial
review). Ibid. The court recognized, however, that “(rjegulations
promulgated after Chrupcala appear to conflict with its holding to
some extent, in that they authorize the ALJ, in a case remanded by
a federal court, to examine ‘{aJny issues relating to your claim . . .
whether or not they were raised in the administrative proceedings
leading to the final decision in your case.’” Jd. at 1050-1051 n.7
(quoting 20 C.F.R. 404.983). The district court therefore also
relied on the fact that the order of the Social Security Admini-
stration Appeals Council in that case—which remanded the case to
the ALJ—could not “reasonably be construed to authorize a
review” of the additional issues given the “very specific and limited
* * * scope” of the district court’s remand order. Ibid. The
district court therefore held that the ALJ’s actions violated the
Social Security Administration’s rule that an ALJ must “follow the
Appeals Council’s remand order ‘and may not take any additional
action that is not inconsistent with the Appeals Council’s remand
order.’” Ibid. (quoting 20 C.F.R. 404.983, 404.977). The court also
distinguished remands that, like the one at issue here, “con-
template[] the taking of new evidence and a de novo adjudication
on the merits.” bid.

16

aa

2. Petitioner further contends that, to the extent
that the decision below “allowed relitigation of an issue
that was or could have been litigated” in the prior
proceeding, it conflicts with this Court’s decisions in
Rivet v. Louisiana, 522 U.S. 470 (1998), and Federated
Department Stores, Inc. v. Movtie, 452 U.S. 394 (1981).
Pet. 11. Those cases hold that “‘{a] final judgment on
the merits of an action precludes the parties or their
privies from relitigating issues that were or could have
been raised in that action.” Rivet, 522 U.S. at 476
(quoting Moitie, 452 U.S. at 398). Alternatively, peti-
tioner argues that the decision below conflicts with
other circuit court decisions holding that, under the
“law of the case” doctrine, “[w]Jhen an appellate court
has either expressly or by necessary implication de-
cided an issue, that decision is binding in all later pro-
ceedings in the same case.” Pet. 16 (citing Key v.
Sullivan, 925 F.2d 1056 (7th Cir. 1991); Horrell v.
Chater, 54 F.3d 787 (10th Cir. 1995) (Table); Fogel v.
Chestnutt, 668 F.2d 100, 108 (2d Cir. 1981), cert. denied,
459 U.S. 828 (1982); and Hooper v. Heckler, 752 F.2d 83,
88 (4th Cir. 1985)).

As an initial matter, petitioner does not claim that
the court of appeals’ unpublished decision announces a
new and incorrect standard for deciding claim pre-
clusion, issue preclusion, and law-of-the-case issues.
Instead, petitioner appears to argue that the court of
appeals misapplied those doctrines to the facts of this
case. The fact-bound claim that a court of appeals
misapplied settled law (in an unpublished opinion) does
not warrant this Court’s review.

Petitioner’s arguments are, in any event, unper-
suasive._.As the court of appeals explained, petitioner
cannot prevail under a law-of-the-case or preclusion
theory because the district court did not issue “a final

17

decision on the merits regarding her physical iripair-
ments and residual functional capacity.” Pet. App. 5a-
6a. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531
U.S. 497, 502 (2001) (“a judgment ‘on the merits’ trig-
gers the doctrine of res judicata or claim preclusion”);
Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979) (noting
that the “doctrine of law of the case comes into play
only with respect to issues previously determined”). As
the court of appeals explained:

[The district court’s first opinion] did not constitute
a decision on the merits regarding [petitioner’s]
residual functional capacity. The district court’s
opinion addressed only the two narrow errors com-
mitted by the ALJ in the initial hearing. The merit
of the ALJ’s determination regarding [petitioner’s]
physical capacity was assumed for the purposes of
evaluating [petitioner’s] claims regarding the ALJ’s
treatment of her combined mental and physical
capacity. In other words, the district court held that
given the ALJ’s findings regarding physical capac-
ity, the ALJ should have considered the combined
effect of her mental and physical impairments and
compared that full picture to Listing 12.05C.

Pet. App. 6a.

Construing its own opinion, the district court judge
likewise found no issue preclusion because (a) “neither
party in the earlier action actually litigated the finding
that [petitioner] was limited to a reduced range of light
work,” and (b) “a finding regarding [petitioner’s] re-
sidual functional capacity was not essential to the
judgment actually rendered * * * in the earlier
action.” Pet. App. 28a. Furthermore, in the context of
judicial review of agency action—where a reviewing
court’s task ends once it uncovers error in the an-

-

18

nounced grounds of the particular agency decision be-
fore it, see pp. 11-12, supra—principles of claim and
issue preclusion should not be applied in a manner that
precludes the agency having primary jurisdiction from
re-examining the case on remand. Cf. Chenery, 332
US. at 200-201; p. 11, supra.

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General

ROBERT D. MCCALLUM, JR.
Assistant Attorney General

WILLIAM KANTER
MICHAEL E. ROBINSON

Attorneys
JUNE 2003

6 Petitioner also argues (Pet. 14) that the court of appeals’
decision conflicts with Shalala v. Schaefer, 509 U.S. 292 (1993),
because it renders remand orders (even those that grant less than
all the relief requested) “non-final.” Petitioner appears to confuse
the issue of finality for purposes of permitting appeal to a court of
appeals with the concept of a final judgment on the merits for pur-
poses of determining claim and issue preclusion. See Clay v.
United States, 123 S. Ct. 1072, 1076 (2003) (“Finality is variously
defined; like many legal terms, its precise meaning depends on
context.”). In this case, the district court’s initial decision did not
conclusively resolve the ultimate issue of petitioner’s entitlement
to benefits.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1419%3A2. Public record. Not legal advice.