CLE Course Materials and NotePad

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1 Identifying Issues in Appeals: Analyzing the ALJ Decision for Appeals Council Review and Beyond Friday, September 16, 2016 Albany Marriott CLE Course Materials and NotePad Complete course materials distributed in electronic format online in advance of the program. Sponsored by the New York State Bar Association and The Committee on Legal Aid

2 This program is offered for education purposes. The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials. Further, the statements made by the faculty during this program do not constitute legal advice. Copyright 2016 All Rights Reserved New York State Bar Association

3 NEW YORK STATE BAR ASSOCIATION Lawyer Assistance Program Q. What is LAP? A. The Lawyer Assistance Program is a program of the New York State Bar Association established to help attorneys, judges, and law students in New York State (NYSBA members and non-members) who are affected by alcoholism, drug abuse, gambling, depression, other mental health issues, or debilitating stress. Q. What services does LAP provide? A. Services are free and include: Early identification of impairment Intervention and motivation to seek help Assessment, evaluation and development of an appropriate treatment plan Referral to community resources, self-help groups, inpatient treatment, outpatient counseling, and rehabilitation services Referral to a trained peer assistant attorneys who have faced their own difficulties and volunteer to assist a struggling colleague by providing support, understanding, guidance, and good listening Information and consultation for those (family, firm, and judges) concerned about an attorney Training programs on recognizing, preventing, and dealing with addiction, stress, depression, and other mental health issues Q. Are LAP services confidential? A. Absolutely, this wouldn t work any other way. In fact your confidentiality is guaranteed and protected under Section 499 of the Judiciary Law. Confidentiality is the hallmark of the program and the reason it has remained viable for almost 20 years. Judiciary Law Section 499 Lawyer Assistance Committees Chapter 327 of the Laws of 1993 Confidential information privileged. The confidential relations and communications between a member or authorized agent of a lawyer assistance committee sponsored by a state or local bar association and any person, firm or corporation communicating with such a committee, its members or authorized agents shall be deemed to be privileged on the same basis as those provided by law between attorney and client. Such privileges may be waived only by the person, firm or corporation who has furnished information to the committee. Q. How do I access LAP services? A. LAP services are accessed voluntarily by calling or connecting to our website Q. What can I expect when I contact LAP? A. You can expect to speak to a Lawyer Assistance professional who has extensive experience with the issues and with the lawyer population. You can expect the undivided attention you deserve to share what s on your mind and to explore options for addressing your concerns. You will receive referrals, suggestions, and support. The LAP professional will ask your permission to check in with you in the weeks following your initial call to the LAP office. Q. Can I expect resolution of my problem? A. The LAP instills hope through the peer assistant volunteers, many of whom have triumphed over their own significant personal problems. Also there is evidence that appropriate treatment and support is effective in most cases of mental health problems. For example, a combination of medication and therapy effectively treats depression in 85% of the cases.

4 Personal Inventory Personal problems such as alcoholism, substance abuse, depression and stress affect one s ability to practice law. Take time to review the following questions and consider whether you or a colleague would benefit from the available Lawyer Assistance Program services. If you answer yes to any of these questions, you may need help. 1. Are my associates, clients or family saying that my behavior has changed or that I don t seem myself? 2. Is it difficult for me to maintain a routine and stay on top of responsibilities? 3. Have I experienced memory problems or an inability to concentrate? 4. Am I having difficulty managing emotions such as anger and sadness? 5. Have I missed appointments or appearances or failed to return phone calls? Am I keeping up with correspondence? 6. Have my sleeping and eating habits changed? 7. Am I experiencing a pattern of relationship problems with significant people in my life (spouse/parent, children, partners/associates)? 8. Does my family have a history of alcoholism, substance abuse or depression? 9. Do I drink or take drugs to deal with my problems? 10. In the last few months, have I had more drinks or drugs than I intended, or felt that I should cut back or quit, but could not? 11. Is gambling making me careless of my financial responsibilities? 12. Do I feel so stressed, burned out and depressed that I have thoughts of suicide? There Is Hope CONTACT LAP TODAY FOR FREE CONFIDENTIAL ASSISTANCE AND SUPPORT The sooner the better! Patricia Spataro, LAP Director

5 New York State Bar Association FORM FOR VERIFICATION OF PRESENCE AT THIS PROGRAM Pursuant to the Rules pertaining to the Mandatory Continuing Legal Education Program for Attorneys in the State of New York, as an Accredited Provider of CLE programs, we are required to carefully monitor attendance at our programs to ensure that certificates of attendance are issued for the correct number of credit hours in relation to each attendee's actual presence during the program. Each person may only turn in his or her form-you may not turn in a form for someone else. Also, if you leave the program at some point prior to its conclusion, you should check out at the registration desk. Unless you do so, we may have to assume that you were absent for a longer period than you may have been, and you will not receive the proper number of credits. Speakers, moderators, panelists and attendees are required to complete attendance verification forms in order to receive MCLE credit for programs. Faculty members and attendees: please complete, sign and return this form along with your evaluation, to the registration staff before you leave the program. You MUST turn in this form at the end of the program for your MCLE credit. Identifying Issues in Appeals: Analyzing the ALJ Decision for Appeals Council Review and Beyond, Friday, September 16, 2016 New York State Bar Association s Committee on Legal Aid, Albany Marriott, Albany NY Name: (Please print) IcertifythatIwaspresentfortheentirepresentationofthisprogram Signature: Date: Speaking Credit: In order to obtain MCLE credit for speaking at today's program, please complete and return this form to the registration staff before you leave. Speakers and Panelists receive three (3) MCLE credits for each 50 minutes of presenting or participating on a panel. Moderators earn one (1) MCLE credit for each 50 minutes moderating a panel segment. Faculty members receive regular MCLE credit for attending other portions of the program.

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7 NEW YORK STATE BAR ASSOCIATION Live Program Evaluation (Attending In Person) Please complete the following program evaluation. We rely on your assessment to strengthen teaching methods and improve the programs we provide. The New York State Bar Association is committed to providing high quality continuing legal education courses and your feedback is important to us. Program Name: Program Code: Identifying Issues in Appeals: Analyzing the ALJ Decision for Appeals Council Review and Beyond FRIDAPD4 Program Location: Albany Marriott - Albany, NY Program Date: September 16th What is your overall evaluation of this program? Please include any additional comments. Excellent Good Fair Poor Additional Comments 2. Please rate each Speaker s Presentation based on CONTENT and ABILITY and include any additional comments. Catherine M. Callery Michael Hampden Carolyn A. Kubitschek Montel A. Cherry CONTENT ABILITY Excellent Good Fair Poor Excellent Good Fair Poor (please turn over)

8 Additional comments (CONTENT) Additional comments (ABILITY) 3. Please rate the program materials and include any additional comments. Excellent Good Fair Poor Additional comments 4. Do you think any portions of the program should be EXPANDED or SHORTENED? Please include any additional comments. Yes Expanded Yes Shortened No Fine as is Additional comments 5. Please rate the following aspects of the program: REGISTRATION; ORGANIZATION; ADMINISTRATION; MEETING SITE (if applicable), and include any additional comments. Please rate the following: Excellent Good Fair Poor N/A Registration Organization Administration Meeting Site (if applicable) Additional comments 6. How did you learn about this program? Ad in legal publication NYSBA web site Brochure or Postcard Social Media (Facebook / Google) Word of mouth 7. Please give us your suggestions for new programs or topics you would like to see offered NEW YORK STATE BAR ASSOCIATION One Elk Street, Albany, NY Phone: Secure Fax:

9 Identifying Issues in Appeals: Analyzing the ALJ Decision for Appeals Council Review and Beyond Program Description This panel session will focus on how to review an unfavorable ALJ decision for appeal where the ALJ has denied the claim without properly taking into account the claimant s limitations in ability to concentrate and attend, or similar vocational considerations. It will cover the difficult but crucial distinctions between the appellate standards of review: error of law and lack of substantial evidence. It will explore how best to structure claims on appeal given the standards of review, and current case law governing vocational issues, including ability to concentrate and attend. This session will be important to all advocates, including those who do not do appellate work. It is critical for advocates to understand how evidence presented at the administrative level can affect appeals.

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11 NEW YORK STATE BAR ASSOCIATION 2016 PARTNERSHIP CONFERENCE DAP SESSION #4: IDENTIFYING ISSUES IN APPEALS: ANALYZING THE ALJ DECISION FOR APPEALS COUNCIL REVIEW AND BEYOND September 16, :30 3:00 p.m. 1.5 Transitional CLE Credits in Skills Under New York s MCLE rule, this program has been approved for all attorneys, including newly admitted. Panelists: Catherine (Kate) Callery, Esq., Senior Attorney, Empire Justice Center, Rochester Montel Cherry, Esq., Supervising Attorney, MFY Legal Services, Inc., NYC Michael Hampden, Esq., Attorney, Partnership for Children s Rights, NYC Carolyn Kubitschek, Esq., Partner, Lansner & Kubitschek, NYC INTRODUCTION This panel session will focus on how to review an unfavorable ALJ decision for appeal where the ALJ has denied the claim without properly taking into account the claimant s limitations in ability to concentrate and attend, or similar vocational considerations. It will cover the difficult but crucial distinctions between the appellate standards of review: error of law and lack of substantial evidence. It will explore how best to structure claims on appeal given the standards of review, and current case law governing vocational issues, including ability to concentrate and attend. This session will be important to all advocates, including those who do not do appellate work. It is critical for advocates to understand how evidence presented at the administrative level can affect appeals , v. 2 1

12 Appendices: Appendix 1 Unfavorable ALJ Decision Appendix 2 Appeals Council Appendix 3 - Appeal Checklists Appendix 4 AM Appendix 5 AM I. APPEALS COUNCIL REVIEW 20 CFR et seq & et seq A. Must be requested by claimant within 60 days of ALJ decision/dismissal CFR (a)(1) & (a)(1). 2. Extension of time to request review may be requested 20 CFR (a)(2) (a)(2) a) Must be requested from the Appeals Council itself b) Good cause determined pursuant to 20 CFR & c) Generally, federal court will not review denial of extension to appeal i. But see Aschettino v. Sullivan, 724 F. Supp (WDNY 1989) (equities favor tolling statute of limitations for commencing action for review of DIB denial where attorney requested extension to file and audiotape well within 60 days and Appeals Council did not reply for six months) ii. See also Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991) (equitable tolling possible if colorable constitutional violation alleged); Byam v. Barnhart, 324 F.3d 110 (2d Cir. 2003) 3. Request for review made in writing by completing SSA Form HA-520. a) Send to Appeals Council, Office of Disability Adjudication and Review, SSA, 5107 Leesburg Pike, Falls Church, VA by certified mail, return receipt requested, or b) File at any local office of SSA c) Fax d) Follow up on status: Congressional and Public Affairs Branch at or i. Directory for other Branches and assignments: e) Note that a Request for Review by the Appeals Council CANNOT be filed electronically i. Paper form HA-520 is still required. ii. Do not use ALJ level bar code to file HA-520 or any other evidence. A new bar code must be requested from Congressional and Public Affairs Branch iii. See SSA s Appeals Council Best Practices Claimant may appeal unfavorable (i.e. onset or duration) part of partially favorable ALJ decision, but beware that AC can undertake de novo review. B. Appeals Council own motion review 20 CFR & AC may decide to review on its own within 60 days of the ALJ decision/dismissal , v. 2 2

13 2. Allegedly chosen by random sampling 3. Notice sent to claimant 20 CFR & If AC does not make a determination within 110 days after the date it decides to review or reopen a claim, interim benefits will be payable to the claimant 20 CFR (d) & (d); POMS DI et seq & SI AC will occasionally reopen decisions well beyond 60 days under 20 CFR & C. Effect of Appeal Council Review 20 CFR & Appeals Officer may deny or dismiss request for review, or 2. AC Member (AAJ) may grant request for review and either: a) Affirm ALJ s decision b) Reverse ALJ s decision c) Remand case back to ALJ d) Claims are usually remanded back to original ALJ (HALLEX I d), except: i. if the case was previously assigned to that ALJ on a prior remand from the Appeals Council and the ALJ s decision or dismissal after remand is the subject of the new Appeals Council remand, or ii. the Appeals Council or the court directs that the case by assigned to a different ALJ e) AC will often issue specific remand instruction, such as ordering the ALJ to obtain services of a vocational and/or medical expert, but remand hearing can still be de novo review unless otherwise specified 3. New and material evidence submitted a) AC will determine if new and material evidence relates back to the period on or before the date of the ALJ decision b) See also 20 C.F.R (b)(1) & (b)(1) c) But any evidence considered does become part of record considered by district court. Perez v. Chater, 77 F.3d 41 (2d Cir. 1996) d) AC can remand case back to ALJ if additional evidence is considered necessary, or it can obtain the evidence itself 20 C.F.R (b)(2) & (b)(2) e) Beware of AC s referrals to medical support staff (MSS) for opinions i. Denial of due process if proffer not made? ii. Consider FOIA request 4. Common reasons for reversal (rare) or remand See HALLEX I a) Appeals Council Procedures and Practices D. Written briefs accepted 20 CFR & Can be filed with Request for Review a) If filed separately, can be filed electronically in most cases i. Advocates with an Appointment of Representative (1696) on file must enroll for online access to review Appeals Council exhibit , v. 2 3

14 files and submit evidence via SSA s secure website. ii. A new Appeals Council-specific bar code must be requested through the Congressional and Public Affairs Branch at or iii. See AC Best Practices Guide - Best Practices - b) If paper copy is filed instead, make sure it is sent certified mail or faxed; follow up with phone call to ensure that it is associated with appeal i. Mark Do Not Open in Mailroom on any mail ii. POMS GN B.5 permits a faxed request for review iii. Verify fax receipts! 2. Avoid duplicates - submit electronically, fax or mail additional evidence to the Appeals Council, but not all three! 3. No specified format see Section II infra 4. Not mandatory to preserve issues for appeal, but advisable see Sims v. Apfel, 530 U.S. 103,120 S.Ct (2000) E. Additional evidence may be submitted 1. See above re standard for new and material 2. Should be submitted with Request for Review, although Form SSA HA-520 indicates that additional documents should be submitted within 15 days of filing 3. New evidence may be submitted electronically. See above. 4. More evidence can be submitted later. The Appeals Council prefers periodic rather than frequent submission of new evidence. It may, however, be risky to accumulate evidence since one never knows when a decision may be issued. Best to check status with the Appeals Council periodically. 5. In light of the provisions of SSR 11-1p prohibiting (with limited exceptions) the filing of an new application while an AC Request for Review is pending, submitting updated evidence can be crucial. a) Submission of new evidence will trigger a screening to determine if it indicates a critical or dire need situation i. If so, claim will be expedited by the Appeals Council. ii. See, e.g., HALLEX I , which defines critical in terms of dire need or terminal illness. b) If new evidence relates to the period on or before the date of the ALJ decision, and it is determined to be new and material (see above), the Appeals Council will consider the evidence under 20 C.F.R (b) & (b). i. If the new evidence shows a critical or disabling condition, the Appeals Council will expedite review c) Evidence that does not relate to the period on or before the date of the ALJ decision will returned to the claimant pursuant to 20 C.F.R , v. 2 4

15 (b) & (b) when the Appeals Council acts upon the Request for Review. i. Under certain circumstances, the date of the Request for Review will be considered a protective filing date for a new claim. ii. A new Title II claim must be filed with six month of the Appeals Council notice; a new Title XVI/SSI claim within 60 days of the notice 6. Avoid duplicates-either submit electronically (see above), fax or mail additional evidence to the Appeals Council, but not all three. F. Oral argument C.F.R (c)& (c) 2. Permitted only if case raises an important policy or if oral argument would help AC reach proper decision 3. Before panel of at least three appeals judges HALLEX I-3-603A G. Recommended decisions C.F.R & Issued by ALJ following AC remand, 3. Objections must be made within 20 days of recommended decision 4. But see 20 C.F.R & exceptions to AC review of ALJ decision in a case remanded by federal court must be filed within 30 days II. APPEALS COUNCIL LETTERS/BRIEFS A. Format 1. Be clear about what you are requesting a) Separate procedural requests (i.e., extensions) from legal arguments b) Do not bury procedural requests in the request for review or letter c) Examples: i. Requesting remand rather than reversal ii. Requesting different ALJ because of bias 1) Consider asking AC to listen to recording of hearing iii. Requesting reopening 2. Acronyms to keep in mind a) KISS Keep It Simple Stupid b) KISS2nd Keep it Short Stupid i. Long, detailed recitation of facts and evidence probably not necessary ii. Emphasize ALJ errors c) IRAC - Issue, rule, analysis, conclusion; or d) CRAC - Conclusion, rule, analysis, cases i. Let the reader know up front what you want/argue 3. Always lead with your strongest argument a) Corollary of KISS, only use your strongest arguments b) Identify which arguments are in the alternative 4. Use headings to separate legal arguments , v. 2 5

16 5. Check your grammar and spelling! a) Pay attention to those red and green underlines in your word processing program b) See William Strunk, Jr. and E.B. White, The Elements of Style (4 th ed. 2000) B. Legal Arguments 1. Sources of Law a) Statute: 42 U.S.C. 401 et seq. (Title II); 42 U.S.C et seq. (Title XVI/SSI) b) Regulations: 20 C.F.R. Part 404 (Title II); 20 C.F.R. Part 416 (Title XVI)(available at c) Case law: Many Social Security disability cases end up in Federal Court on appeals from administrative denials. A whole body of case law exists. d) Social Security Rulings (SSR)/Acquiescence Rulings (AR), published periodically by Social Security in the Federal Register and available on-line at Also in West Social Security Reporting Service and CCH Unemployment Insurance Reporter, Vol. 1, 1A and 1B. SSRs state Social Security policy or decisions at various levels of adjudication with which Social Security agrees. ARs are Circuit court rulings with which SSA does not agree but which Social Security will follow only in the particular Circuit. e) POMS [Program Operation Manual Systems]: Manual used by Social Security District Offices and Program Service Centers to interpret and apply Social Security rules and regulations. Contains policy statements and procedural and substantive material. Available at f) HALLEX [Hearings and Appeals, Litigation and law (LEX)]: A manual for OHA (ALJs and Appeals Council) as well as the Office of Civil Litigation; contains procedural material mainly including due process guidelines; some substantive material. Available at 2. Keep citations to a minimum a) Emphasize cases from Second Circuit b) Be sure to explain citation s meaning or relevance to your case c) Cite check! i. See The Bluebook: A Uniform System of Citation (Columbia Law Review Ass n et al. eds., 18 th ed. 2005) for proper citation forms ii. See also iii. Use Westcheck if available through Westlaw 3. Probably more effective to cite to SSA s own regulations or rulings a) Don t forget SSRs, especially 1996 SSRs , v. 2 6

17 III. FEDERAL COURT REVIEW A. Jurisdiction U.S.C. 405(g) is exclusive jurisdictional statute-see attached a) Made applicable to Title XVI/SSI cases through 42 USC 1383(a)(3) b) Actions commenced against SSA in any other court, including state court, may be dismissed 42 U.S.C. 405(h) c) But actions for mandamus have been sustained see Bowen v. City of New York, 476 U.S. 467, 106 S.Ct (1986) 2. Sixty (60) day time limit is jurisdictional a) Appeals Council has authority to extend time i. 20 C.F.R & ii. Denial of extension generally not appealable iii. See Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980 (1977) iv. But see Stieberger v. Apfel, 134 F.3d 37 (2d Cir. 1997) where Court sets forth limited examples of collateral claims over which the court may assume jurisdiction; Canales v. Sullivan, 936 F.2dd 755 (2d Cir. 1991) aff d on rehearing, 947 F.2d 45 (2d Cir 1991) where the court held that equitable tolling of S/L might be warranted where claimant missed the deadline because of mental impairment; and Byam v. Barnhart, 324 F.3d 110 (2d Cir. 2003) where the court, in the context of a reopening request, held that claimant s ability to act upon the notice to appeal in light of her mental impairments should been considered under SSR 91-5p b) Presumption that decision is received within five days of date of mailing 20 C.F.R & c) Action commenced upon filing- Fed.R.Civ.P 3 3. Exhaustion of administrative remedies required a) Action may be commenced only after final decision by the Commissioner i. Final decision is generally decision of Appeals Council ii. Failure to exhaust results in dismissal for lack of subject matter jurisdiction see, e.g., Heckler v. Ringer, 466 U.S. 602 (1987) b) Beware of decisions that are not considered final, and therefore not appealable i. See 20 C.F.R & ii. iii. E.g., refusal to reopen, denial of request to extend time, etc. But see above re possible jurisdiction over collateral claims if colorable constitutional issues B. Venue 1. Differs from general venue provisions of 28 U.S.C Determined by place of residence of plaintiff at time of filing 3. Venue may be transferred under 28 U.S.C. 1406(a) C. Filing and Service 1. Fed.R.Civ. P. Rules 3 & 4 2. Commenced by filing complaint and summons with clerk of district court , v. 2 7

18 3. Filing fee of $400 a) Can be waived upon filing of motion to proceed in forma pauperis (IFP) b) 28 U.S.C c) See sample forms at nysd.uscourts.gov/cases/show.php?db=forms&id= d) Check local rules! 4. Administrative fee of $50 a) Not applicable to applications for a writ of habeas corpus, the initiation of a miscellaneous case, or to persons granted in IFP status 5. Notice pleading a) Simple complaint is sufficient i. Attach AC memo to complaint in hopes of convincing SSA early on of merits of claim? ii. Copy of Appeals Council decision should be attached - Mandatory in some districts check local rules! 6. Original and four copies of complaint and summons, along with civil cover sheet, must be filed with clerk. a) Summons and cover sheet available at court websites: i. See, e.g., ii. Also has sample complaint and instructions for Social Security appeals 7. Electronic Court Filing (ECF) mandatory as of 1/1/2004 a) See for information on ECF b) Check local rules to see if ECF filing, including filing of Complaint, mandatory or permissive 8. Special privacy and extra security rules apply in Social Security appeals a) See Fed.R.Civ.P 5.2, requiring redaction of all but last four numbers of social security numbers, names of minor children, and all but the year of dates of birth. b) Local rules may require more redaction c) Also see local rules for filing under seal 9. Summons will be signed and returned by clerk of court and must be served pursuant to F.R.Civ.P. 4(m) within 90 days after filing of complaint 10. Service by certified mail, or by U.S. Marshall if IFP granted, pursuant to F.R.Civ.P. 4(i), on: a) United States Attorney, Constitution Avenue and 10 th Street, N.W., Washington, D.C., b) Local office of the US Attorney (can also be done personally) c) SSA Office of the General Counsel responsible for litigation in court jurisdiction in which complaint filed i. See 20 C.F.R (a) , v. 2 8

19 ii. See for listing of OGC addresses iii. For NY/Region 2: Office of Regional Chief Counsel, Region II, SSA, 26 Federal Plaza, Room 3904, New York New York Complaint may be amended in accordance with F.R.Civ.P. 15 as of right before responsive pleading, or subsequently by motion or stipulation 12. Complaint will be assigned a docket number and assigned to district judge 13. May be referred to Magistrate Judge under 28 U.S.C. 636(b)(1) a) Magistrate issues Report & Recommendation b) Objections to Magistrate s Report & Recommendation must be filed within fourteen (14) days c) Question of whether to consent to referral? i. 28 U.S.C. 636(c) ii. Magistrate Judge renders final decision iii. Appealable only to Circuit Court of Appeals D. Government s Response 1. Under Fed.R.Civ.P. 12, response is due 60 days after service of complaint a) Check local rules for exceptions b) For summary of rules, see 2. Motion to Dismiss instead of Answer will be made if plaintiff has failed to exhaust or filed late 3. Answer includes copy of entire administrative record, including transcript of the hearing, along with pleading a) Transcripts now filed electronically in many jurisdictions E. Motion for Judgment on Pleadings 1. Fed.R.Civ.P.12(c) 2. More appropriate than summary judgment? 3. Rules vary by court and by practice of individual judges/magistrates a) Be sure to check Local Rules and Judge s Individual Rules 4. Memorandum must accompany motion a) Twenty-five page limit b) See local rules re page limits exceptions, typeface, footnotes, etc. c) See also d) Motions and memoranda must be filed electronically in most districts e) Check Individual Judge s Rules about timing of filing 5. Oral argument at discretion of individual judges F. Scope of Judicial Review 1. Court s review is limited to pleadings and transcript (42 U.S.C. 405(g)) 2. Court must affirm any findings if supported by substantial evidence, which is defined as such relevant evidence as a reasonable mind might accept as , v. 2 9

20 adequate to support a conclusion. Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000) quoting Richardson v. Perales, 402 U.S. 389, 401(1971) 3. Court may reverse if Commissioner fails to apply correct legal standard. See, e.g., Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) G. Disposition on Merits 1. Court may affirm, reverse or remand - 42 U.S.C..405(g) 2. Either party may move for remand for new and material evidence a) Commissioner may move before answer is filed b) Court may remand if evidence is both new and material see Tirado v. Bowen, 842 F.2d 595 (2d Cir. 1988) 3. Parties may stipulate to a voluntary remand a) Plaintiff s ability to influence terms of remand limited? b) Beware of existence of subsequently filed applications that could be consolidated on remand i. Less likely to occur post SSR 11-1p, which prohibits the filing of subsequent applications, but does allow for new application to be filed if appeal of original claim is in federal court. ii. See POMS GN , HALLEX I iii. Specify in remand order? 4. Court may remand if Commissioner applied incorrect legal standard, gaps in record, etc. see, e.g., Rosa v. Callahan, 168 F.3d 72 (2d Cir.1999) 5. Remands distinguished by Supreme Court a) Remands pursuant to Sentence Four of 42 U.S.C. 405(g) are considered final judgments and are immediately appealable by either party. Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct 2688 (1990); Forney v. Apfel, 509 U.S. 292,118 S.Ct (1998) b) Sentence Six remands are interlocutory because they are for the further proceedings (i.e., new and material evidence). Court retains jurisdiction while remand proceedings are pending. c) Distinctions are relevant for timing of attorney s fees petitions under EAJA. Shalala v. Schaefer, 113 S.Ct (1993) H. Appeals 1. Appealable as of right to US Court of Appeals 28 U.S.C Notice of Appeal filed with clerk of District Court Fed.R.App.P 3(a) 3. Must be filed within sixty (60) days of entry of judgment Fed.R.App.P. 4(a)(1) 4. Filing fee ($455) will be waived if IFP in district court 5. Check court rules for circuit specific civil management plans or mediation requirements 6. CM/EMF mandatory in most circuit courts 7. Attorney must be registered/admitted 8. Beware of local rules for scheduling, format, briefing, etc. 9. Beware of making bad law , v. 2 10

21 IV. REVIEWING DECISIONS FOR APPEAL A. Calendar 60 day deadlines 1. Appeals Council 20 C.F.R (a)(1) & (a)(1) 2. U.S.D.C. 42 U.S.C. 405g a) Appeals Council has authority to extend b) 20 C.F.R & B. Practice tips for Appeal Council practice 1. Download the ALJ's decision from ERE 2. OCR the ALJ's decision obtained from ERE 3. Download an all-in-one PDF of the exhibits 4. Don't rely on the exhibit file obtained prior to the ALJ's decision. C. Merits review 1. See HALLEX I-3-7 for common reasons AC remands 2. See Appendix 3 Appeal Checklist D. Ethical considerations 1. New York Rules of Professional Conduct govern attorney-client relationships a) 22 NYCRR 1200 b) Code is available at Prof-Conduct-1200.pdf 2. See Rule Lawyer can decline or terminate representation 3. See also Rule 3.1- non-meritorious claims 4. Retainer agreement? V. STANDARD OF REVIEW AN ESSENTIAL FACTOR IN APPEAL STRATEGY A. ALJ Decisions. The administrative law judge must base the decision on the preponderance of the evidence offered at the hearing or otherwise included in the record. 20 C.F.R , (a), (a). Preponderance of the evidence is such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not. 20 C.F.R , The claimant generally bears the burden of proving disability at all appeal stages. 42 U.S.C. 423(d)(5); 20 C.F.R (a). In an adult SSI or SSD case, the claimant bears the burden of proving the first four elements of the five-step sequential evaluation, Betances v. Comm r of Soc. Sec., 206 Fed. App x 25, 26 (2d Cir. 2006). In a child s SSI case, claimant bears the burden of proof at all three sequential evaluation steps , v. 2 11

22 B. Appeals Council Review. 1. Review will be granted when a) there appears to be an abuse of discretion by the [ALJ]; b) there is an error of law ; c) the action, findings or conclusions of the [ALJ] are not supported by substantial evidence (defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, 20 C.F.R ); or d) there is a broad policy or procedural issue that may affect the general public interest. 20 C.F.R , In an SSI application case, post-hearing evidence will be considered only if it is new and material, and where it relates to the period on or before the date of the [ALJ] decision. When posthearing evidence is submitted in other SSI cases (cessation cases), the Appeals Council shall evaluate the entire record including any new and material evidence submitted, regardless whether it relates to the period on or before the ALJ decision. 20 C.F.R (b). (See the rules for post-hearing evidence in SSD cases at 20 C.F.R (b).) Practice tip: We all know how rarely the Appeals Council grants review and vacates an ALJ decision. One reason for this is that the Appeals Council s two standards of review addressing the factual findings by the ALJ abuse of discretion or lacking substantial evidence are lenient and highly deferential to the ALJ. Therefore, unless you have a powerful argument based on the quantity or quality of the factual evidence alone, focus your appeal away from the Appeals Council s standards for reviewing issues of fact. Two effective ways of doing this are: (a) construct your argument to show that the ALJ s decision is affected by legal error; and (b) while your request for review is pending, use your time (often many months!) wisely by developing new and material evidence to submit with your appeal statement. This post-hearing evidence may support a strong argument that the case should be remanded to enable the ALJ to assess the new evidence not in the record at the time of the decision; it will also strengthen the record for an eventual district court action. C. U.S. District Court. 1. Standard of review as to issues of fact: The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. 405(g). A reviewing court (be it district court or Court of Appeals) performs a diligent search of the record for substantial evidence: We review the record de novo to determine whether there is substantial evidence supporting the Commissioner s decision... Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002). See also Simmons v. Comm r of Soc. Sec., 2015 WL , at *3 (D. Vt , v. 2 12

23 2015), 1 Cook o/b/o CC v. Astrue, 2009 WL , at *3 (N.D.N.Y. 2009). So far, so good. No argument with a district court or Court of Appeals search for the presence of substantial evidence in the record de novo is the most rigorous and least deferential standard of review. And, we can have no argument with a court treating substantial evidence as conclusive with respect to findings of fact it s in the statute. Rather, the problem for the appellate advocate is in the nature of substantial evidence itself it is defined in terms requiring such a minimal quantity of evidence that, particularly with a rigorous, de novo search of the record, it will almost always be found. Consider the following: a. Substantial evidence is " more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). b. Suspicion, conjecture, and theoretical speculation qualify as less than a scintilla. N.L.R.B. v. Local 46, Metallic Lathers Union, 149 F.3d 93 (2d Cir. 1998). c. While substantial evidence is more than a scintilla, it is less than a preponderance of the evidence. Burns v. Barnhart, 312 F.3d 113 (3 rd Cir. 2002); see also Hardesty v. Astrue, 2011 WL , at *3 (D. Conn. 2011). d. The district court may not decide facts anew, reweigh the evidence, or substitute its judgment for that of the ALJ. Michaels v. Apfel, 46 F. Supp. 2d 126, 134 (D. Conn. 1999) (citing Dotson v. Shalala, 1 F.3d 571, 577 (7th Cir.1993)). It only reviews the administrative record to assess whether there is substantial evidence to support the ALJ's factual findings. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam). e. In examining the record for substantial evidence that would support a finding by the ALJ, a reviewing court cannot accept an AUSA s reference to evidence in the record when the ALJ s decision did not rely on such evidence. See Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) ("[O]n appeal, we may not affirm an administrative action on grounds different from those considered by the agency. ) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (holding that a reviewing court may not accept counsel s post hoc rationalizations for agency action ) (citing Burlington 1 Westlaw cites in this Outline are not given in Bluebook form. They omit court docket numbers and complete dates , v. 2 13

24 Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). See also Hamedallah o/b/o E.B. v. Astrue, 876 F. Supp. 2d 133, 144 (N.D.N.Y. 2012) ( Subsequent arguments by the Commissioner detailing the substantial evidence supporting the ALJ's decision are not a proper substitute for the ALJ engaging in the same evaluation. ); Peralta v. Barnhart, 2005 WL , at *10 (E.D.N.Y. 2005) ( [T]he Commissioner's explanation of the ALJ's rationale is not a substitute for the ALJ providing good reasons in his decision for the weight given to treating physician's opinions. ) (citing Snell). f. The substantial evidence standard applies to findings of fact and inferences and conclusions drawn from those facts. Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.1966); D'Amato v. Apfel, 2001 WL , at *3 (S.D.N.Y. 2001). g. The Court of Appeals has described substantial evidence as a fairly deferential standard, Gonzalez ex rel. Guzman v. Comm r, U.S. Dep t of Health & Human Services, 360 Fed. App x. 240, 242 (2d Cir. 2010), under which it must afford the Commissioner s determination considerable deference and may not substitute its own judgment for that of the Commissioner even if in its own judgment it would have reached a different result, Valente v. Sec y of Health & Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984). In practice, it is a highly deferential standard of review, as there is only one standard known to the law that is more lenient: the abuse of discretion standard (one of those applied by the Appeals Council in its own review of ALJ findings see above). h. When substantial evidence exists to support an ALJ finding of fact, it will be upheld even if contrary evidence exists, Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); and even if there is substantial evidence for both sides, DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998); House v. Comm r of the Soc. Sec. Admin., 2014 WL , at *3 (N.D.N.Y. 2014); and even if a preponderance of the evidence supports the claimant's position, Jones v. Comm r of Soc. Sec., 336 F.3d 469, 477 (6 th Cir. 2003). Practice tip: Unless you have already shown that the agency decision is not based on substantial evidence, do not argue to the court that substantial evidence does support your client s disability claim. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.2013) ( If there is substantial evidence to support the [agency's] determination, it must be upheld. ); Talavera v. Astrue, 697 F.3d 145, 151 (limiting court review to determining whether the SSA's conclusions were supported by substantial evidence ); Rutherford v. Schweiker, 685 F.2d 60, 62 (2d , v. 2 14

25 Cir.1982) ( On an appeal such as this, we are faced with a simple reality which appellants often overlook, namely, that factual issues need not have been resolved by the Secretary in accordance with what we conceive to be the preponderance of the evidence. Congress has instructed us that the factual findings of the Secretary, if supported by substantial evidence, shall be conclusive. We would be derelict in our duties if we simply paid lip service to this rule, while shaping our holding to conform to our own interpretation of the evidence. (citations omitted)). 2. District court standard of review as to issues of law: The deferential standard of review for substantial evidence does not apply to the Commissioner s conclusions of law. Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). We review the record de novo to determine whether... the Commissioner applied the correct legal standard. Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002). By definition, the de novo standard of review is devoid of deference to the ALJ s application of legal principles. (The de novo review of legal issues is applied in both the district court and the Court of Appeals, just as the substantial evidence standard is applied in both courts to factual issues. See, e.g., McClinton v. Colvin, 2015 WL , at *21 (S.D.N.Y. 2015); Soto v. Comm r of Soc. Sec., 2010 WL , at *6 (E.D.N.Y. 2010). a. An important clarification here is that when the courts speak of utilizing the de novo standard in determining whether the Commissioner applied the correct legal standards, they are including constitutional, statutory and regulatory standards, as well as those established by judicial decisions interpreting any such provisions. b. Of course, cases do arise in which a substantial evidence argument can be made that is largely independent of ALJ legal error i.e., the findings simply do not follow from the paucity of evidence in the record. See, e.g., Carroll v. Sec y of Health & Human Services, 705 F.2d 638, (2d Cir. 1983) (finding that where claimant proved his inability to perform past relevant work by overwhelming evidence, Commissioner did not meet his burden that claimant was able to perform other substantially gainful work existing in the national economy, without offering evidence on this issue and relying solely on claimant s testimony); Poarch o/b/o S.Y. v. Colvin, 2014 WL , at *9 (N.D.N.Y. 2014) (finding that ALJ rating of less-than-marked in a childhood functional domain was lacking in substantial evidence when there is no reasonable view of the evidence upon which it could be found that [claimant s] limitation in the domain... during the time in question was not marked. ); Miles o/b/o J.M. v. Astrue, 775 F. Supp. 2d 715, 729 (S.D.N.Y. 2011) ( There is almost no evidence to support a finding that J.M. had anything less than a marked limitation in the domain of interacting and relating with others. ) , v. 2 15

26 Arguably, the line of Second Circuit cases holding that substantial evidence is lacking where the ALJ s misunderstanding of record evidence led to erroneous fact-finding, are a subclass of these cases in which the analysis is unmoored to specific legal principles. See, e.g., Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) ( [T]he ALJ... committed several factual errors in evaluating the medical evidence of Pratts's allegedly disabling condition. We therefore hold that her decision to deny Pratts disability benefits is not supported by substantial evidence. ); Horan v. Astrue, 350 Fed. App x 483, 485 (2d Cir. 2009) (ALJ s credibility determination based largely on factual errors not supported by substantial evidence); Royal v. Astrue, 2012 WL , at *4 (N.D.N.Y. 2012) (holding that ALJ decision based, in large part, on factual errors... is not supported by substantial evidence and must be remanded ). Practice tip: in cases like these that call for a frontal assault on the absence of substantial evidence, don t rely on generalities. With clarity and detail, deconstruct the ALJ s factual findings and persuasively explain why it would be unreasonable to conclude that the requisite quantity/quality of evidence does not exist in the record. c. However, in many cases it is just too much of a stretch to argue that the record is devoid of substantial evidence to support the key findings in the case. In these situations, the litigator needs to persuade the court that the ALJ misapplied the law or regulations in reaching his/her conclusions. In contrast to the highly deferential standard of substantial evidence, when de novo review is applied to an issue of law, the legal argument is more likely to succeed than one based solely on insufficient evidence. Practice tip: in preparing your appellate strategy around an argument that the agency decision was affected by legal error, rigorously assess in advance whether the government can make a persuasive showing of harmless error, and include in your principal brief a strong section demonstrating that the error was not de minimis. Harmless error decisions are numerous: one recent example from the Circuit is McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014), finding that in the ALJ s Step 5 hypothetical to the vocational expert, the claimant s non-exertional limitations in concentration, persistence and pace were explicitly omitted however, the error was found harmless because the hypothetical implicitly accounted for the claimant s limitations in these areas, and substantial evidence in the record established that claimant could engage in simple, routine tasks or unskilled work despite her limitations. 758 F.3d at , v. 2 16

27 d. As distinct as the two concepts may seem lack of substantial evidence, and ALJ errors of law it is thankfully not a question of choosing one to the exclusion of the other. In the Second Circuit, there is a robust body of jurisprudence linking these two grounds for reversal and this will frequently offer a persuasive argument to the federal court litigator. In virtually every district court case, you must and you can avoid conceding that substantial evidence may support the decision below (or almost as bad, arguing that you need not address the issue because your argument is based solely on legal errors that require remand, see Burgos v. Astrue, 2011 WL , at *14 n.1 (S.D.N.Y. 2011) ( Because this case is remanded for legal error, it is not necessary to determine here if, barring such error, there was substantial evidence supporting the ALJ s determination that Burgos was not eligible for [disability benefits]. )). Either of these approaches is a dangerous litigating position, because the AUSA may come back and claim you conceded that the agency decision is supported by substantial evidence. e. Second Circuit case law explicitly recognizes two levels of inquiry in determining whether a decision must be vacated and the case remanded for additional administrative proceedings. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987) ( The scope of review of a disability determination... involves two levels of inquiry.... We must first decide whether [the Commissioner] applied the correct legal principles in making the determination. We must then decide whether the determination is supported by 'substantial evidence. '). However, many cases in the Second Circuit go further than merely electing not to determine the substantial evidence once they have found that legal error was committed. These cases teach that the two issues are not viewed as independent that serious errors of law may affirmatively preclude the court from finding that substantial evidence supports the agency decision under review. Perhaps the most famous statement of this connection is from Johnson v. Bowen, supra: Where there is a reasonable basis of doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles. 817 F.2d at 986. Many cases have followed the Johnson analysis, to the point where there is now a significant body of decisional law linking agency error to the lack of substantial evidence. We need to take advantage of these cases, and whenever we can, incorporate into our arguments the principle that when the agency decision is affected by serious legal error there can be no finding that it is supported by substantial evidence. The Court of Appeals has opened the door to this approach in most or all Social Security cases seeking a remand for further proceedings whether this is the sole relief sought, or the remand is proposed , v. 2 17

28 alternatively to the principal relief of a judgment declaring disability on the record. One of the Court s strongest statements of this approach was made in Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004), holding that where an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (internal quotation marks omitted)). (Before we get too carried away, it should be noted that so far the Court has declined to lay down a per se rule that all agency decisions affected by significant legal error are lacking in substantial evidence therefore we should take care that the language of our arguments is not overheated. In Lesterhuis v. Colvin, 805 F.3d 83, 89 (2d Cir. 2015), the Court held that the Appeals Council erred in not explaining its refusal to review the ALJ decision despite its acceptance of new and material treating physician opinion evidence into the record. But the Court cautioned: Accordingly, based on the record before us, which includes Dr. Holder's opinion, we hold that the ALJ's decision is not supported by substantial evidence in the record. We note, however, that we reach no conclusions about the full range of circumstances in which an ALJ's decision is, or is not, supported by substantial evidence. ) f. The Pollard/Townley language quoted above, is broad enough to apply in virtually all situations involving significant errors of law by the agency; therefore we should be able to make the substantial evidence argument in all such cases. Beyond this, there exist many other decisions within the Circuit involving specific ALJ or Appeals Council errors that preclude a court from finding substantial evidence supporting the challenged decision. These decisions can also be relied on in our briefs whenever applicable to the case we may be litigating use them together with the expansive language in Pollard/Townley to make a persuasive argument that both legal error and lack of substantial evidence, require reversal of the agency decision being challenged. N.B.: The citations below are only a small fraction of many such reported decisions in the Second Circuit, and I may have omitted some important ones. I encourage all of us to share additional examples when we come upon them in our research. To the extent we make this analytical connection a standard strategy in our briefs, I believe we will win more remands and hopefully this approach will find its way into an increasing number of reported decisions. ALJ Fails to Provide Full and Fair Hearing. 20 C.F.R ; Procedural Due Process of Law. Townley v. Heckler, 748 F.2d 109, 112, 114 (2d Cir. 1984) (holding that when an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its , v. 2 18

29 statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ, and finding that the ALJ violated claimant s due process rights by deciding case on evidence not adduced at the hearing); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) ( In deciding whether the Secretary's conclusions are supported by substantial evidence, we must first be satisfied that the claimant has had a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act. ) (internal quotation marks omitted); Surita o/b/o Cifuentes v. Astrue, 2008 WL , at *3 (SD.N.Y. 2008) ( [F]or the ALJ's decision to be supported by substantial evidence, the ALJ must have held a full and fair hearing. ); Almonte o/b/o M.I.A. v. Apfel, 1998 WL , at *5 (S.D.N.Y. 1998) (same); Ornellas v. Chater, 1996 WL , at *3 (S.D.N.Y. 1996) (same). ALJ Inadequately Develops the Record. 42 U.S.C. 423(d)(5)(B); 20 C.F.R Pratts v. Chater, 94 F.3d 34, 38 ( [T]he ALJ did not, and indeed could not, decide Pratts s claim with the benefit of a complete record... We therefore hold that her decision to deny Pratts disability benefits is not supported by substantial evidence. ); Rosado v. Barnhart, 290 F. Supp. 2d 431, 440 (S.D.N.Y. 2003) ( The ALJ cannot rely on the absence of evidence, and is thus under an affirmative duty to fill any gaps in the record. ) (emphasis in original); Almonte o/b/o M.I.A. v. Apfel, 1998 WL , at *9 (S.D.N.Y. 1998) ( This is a case where the Court has found that the ALJ failed to develop a sufficient record to determine whether there is substantial evidence to support the denial of the plaintiff's claim of disability. ); Oliveras o/b/o Z.G. v. Astrue, 2008 WL , at *8 (S.D.N.Y. 2008), Mag. Judge s R&R ( Where the ALJ has failed to develop the record, a reviewing court need not indeed, cannot reach the question of whether the Commissioner's denial of benefits was based on substantial evidence. Thus, any review of whether the decision was based on substantial evidence must be deferred until the record is complete. ) (internal quotation marks and citations omitted), Mag. Judge s R&R adopted, 2008 WL (S.D.N.Y. 2008); Matejka v. Barnhart, 386 F. Supp. 2d 198, 209 (W.D.N.Y. 2005) ( Since the ALJ failed to properly develop the record sufficiently to determine the severity of plaintiff's depression, the Court cannot find that his conclusion that her depression was not severe is supported by substantial evidence.); Abrams o/b/o J.T.A. v. Comm r of Soc. Sec., 2016 WL , at *10 (E.D.N.Y. 2016) ( [T]he court finds that the ALJ has failed to adequately develop [J.T.A.'s] educational record, and therefore the , v. 2 19

30 ALJ's decision is not supported by substantial evidence. ); McClain o/b/o J.M. v. Apfel, 2001 WL 66403, at *15 (S.D.N.Y. 2001) ( Based on the lack of substantial evidence supporting the ALJ's decision, the case should be remanded for further administrative proceedings....the Commissioner should ensure that the ALJ obtains all relevant documentation, including all available special education records, and evaluate the claim over the four-year period in which it had been pending before the Commissioner. ) (internal footnote and citation omitted). ALJ Credits Agency Consultant Opinion Based on Review of Incomplete Treating Source Records. SSR 96-8p. Stackhouse v. Colvin, 2014 WL , at *3 (W.D.N.Y. 2014) ( Because the [consulting psychologist s] opinion was itself based upon an incomplete and insufficient record, the ALJ's decision cannot be said to rest upon substantial evidence. ). ALJ Misapplies Treating Physician Rule. 20 C.F.R Shaw v. Chater, 221 F.3d 126, 135 (2d Cir. 2000) ( Given these deficiencies in the ALJ s analysis [of the treating physician evidence] the record lacked substantial evidence to support its finding that Shaw was not disabled... ); Lowe v. Colvin, 2016 WL (W.D.N.Y. 2016) ( [A]n ALJ's failure to follow the procedural requirement of identifying the reasons for discounting the opinions and for explaining precisely how those reasons affected the weight given denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record. ) (internal quotation marks omitted); Richardson v. Barnhart, 443 F. Supp. 2d 411, (W.D.N.Y. 2006) (remanding where ALJ decision did not give good reasons [for the weight given to physician opinions], supported by substantial evidence ) (citation omitted); Lebron o/b/o M.L. v. Colvin, 2015 WL , at **17, 21 (S.D.N.Y. 2015) (ALJ s reliance on Medical Expert s conclusions without reconciling contrary opinion of treating physician was violation of treating physician rule and was lacking in substantial evidence); Yates v. Colvin, 959 F. Supp. 2d 233, (N.D.N.Y. 2013) (finding that decision lacked substantial evidence where ALJ failed to give treating physician opinion controlling weight, instead crediting medical expert whose opinion was so vague that it [was] useless for evaluating claimant s residual functional capacity). Practice tip: The treating physician rule, 20 C.F.R (c), is a good example of how and why an ALJ s violation of a rule (a procedural issue), may correlate and overlap with the reviewing court s application of the substantial evidence standard , v. 2 20

31 (a substantive concept). Sec (c)(2) requires the ALJ to always give good reasons in [the] decision for the weight we give your treating source's opinion. The treating physician s opinion will be given controlling weight if it is not inconsistent with other substantial evidence in the case record. Therefore, if the ALJ does not give a sufficiently specific explanation of the weight accorded to a treating source opinion, or if the Appeals Council denies review and fails to give good reasons for ignoring posthearing treating-source opinion evidence, it is impossible for the court to conclude that the decision under review is supported by substantial evidence. Appeals Council Accepts New Treating Source Opinion Evidence for the Record, but Denies Review Without Explanation. 20 C.F.R Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) ( [W]e cannot be certain whether or not the Commissioner s ultimate conclusion that plaintiff was not disabled is supported by substantial evidence. ); Newbury v. Astrue, 321 Fed. App x. 16, 2009 WL , at *19 (2d Cir. 2009) ( Because a proper application of [the treating physician rule] could result in a ruling favorable to Newbury on remand, we decline to consider whether substantial evidence supported the Commissioner s determination that Newbury was not disabled. ); Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015) ( We agree that, on the facts of this case, the ALJ s decision was not supported by substantial evidence because the new evidence contradicted the ALJ s conclusion in important respects. ); Djuzo v. Comm r of Soc. Sec., 2014 WL , at *3 (N.D.N.Y. 2014) (holding that Appeals Council's failure to evaluate new treating source evidence violated treating physician rule, and stating: This error hinders meaningful judicial review, and results in a decision not supported by substantial evidence. ); Covo v. Gardner, 314 F. Supp. 894, 899 (S.D.N.Y. 1970) ( [T]he Appeals Council left wholly unexplored factual issues which may bear significantly on the weight of the case... With the record in this posture, the court is not in a position to determine whether... the denial of her application is supported by substantial evidence. ). ALJ Insufficiently Explains Crucial Factors Underlying Findings and Conclusions. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ( On the basis of the ALJ's insufficient findings here, we cannot determine whether his conclusory statement that Ferraris could carry out sedentary work is supported by substantial evidence. We of course do not suggest that every conflict in a record be reconciled by the , v. 2 21

32 ALJ or the [Commissioner]... but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence. ) (citations omitted); Tanner v. Comm r of Soc. Sec., 2016 WL , at *3 (N.D.N.Y. 2016) ( The ALJ did not appropriately document the reasons for his RFC assessment with respect to these severe impairments, or for his finding that plaintiff could perform her past work. Therefore, this court cannot determine whether the ALJ's findings are supported by substantial evidence. ); Hilsdorf v. Comm r of Soc. Sec., 724 F. Supp. 2d 330, 356 (E.D.N.Y. 2010) ( [T]he ALJ failed to... state sufficient reasons for his conclusions [and failed to] support his findings with substantial evidence. ). ALJ Fails to Explain Listing Determination. 20 C.F.R (e), (e), Twyne v. Barnhart o/b/o J.J., 2003 WL , at *10 (S.D.N.Y. 2003) (remanding where ALJ s inadequate consideration of whether Listing was met left reviewing court unable to determine whether his conclusions [were] supported by substantial evidence ); Lazo-Espinoza v. Astrue, 2012 WL , at *11 (E.D.N.Y. 2012); Hamedallah o/b/o E.B. v. Astrue, 876 F. Supp. 2d 133, 144 (N.D.N.Y.); Velazquez v. Barnhart, 2004 WL , at *7 (D. Conn. 2004); Morales o/b/o A.M. v. Barnhart, 218 F. Supp. 2d 450, 452 (S.D.N.Y. 2002) ( As the record shows, the Commissioner's decision that Angelica was not disabled is not supported by substantial evidence and is the result of legal error: the ALJ and the Appeals Council failed to consider whether Angelica's impairment, which they acknowledged to be severe, met or was medically equal to an impairment listed in the applicable regulations. ). ALJ Commits Legal Error in Making Credibility Findings. 20 C.F.R Evans v. Colvin, Fed. App x, 2016 WL , at **3-4 (2d Cir. May 19, 2016) (Summary Order) ( On this record, we cannot conclude that the ALJ's adverse credibility determination of Evans's credibility and particularly his finding of documented symptom exaggeration is supported by substantial evidence. We therefore remand for the ALJ to reassess Evans's credibility in accordance with the factors set forth under 20 C.F.R (c)(3). ); Horan v. Astrue, 350 Fed. App x 483, 485 (2d Cir. 2009) (holding that credibility determination based largely on factual errors was not supported by substantial evidence); Williams o/b/o Williams v. Bowen, 859 F.2d 255, (2d Cir. 1988) ( A finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary , v. 2 22

33 review of the record.... Here, the subjective testimony of pain and disability given by claimant and her mother is consistent with the objective medical facts and the experts' opinions. Consequently, we hold that the record in this case lacks adequate evidence to support the Secretary's determination. ) (citations omitted); Carroll v. Sec y of Health & Human Services, 705 F.2d 638, 643 (2d Cir. 1983) (finding that ALJ s conclusion that claimant was capable of performing sedentary work was without substantial evidence where he failed to explain his disbelief in claimant s testimony, relying instead on his observation that claimant sat through the hearing without apparent pain). ALJ Fails to Call Medical Consultant to Resolve Perceived Conflicts in Treating Source Evidence. 20 C.F.R a. Matejka v. Barnhart, 386 F. Supp. 2d 198, 209 (W.D.N.Y. 2005) (finding that at a minimum the ALJ should have ordered a consulting psychiatric examination to resolve doubts in the validity of the treating psychotherapist s medical opinion, and stating that the Court cannot find that [the ALJ s] conclusion that [claimant s] depression was not severe is supported by substantial evidence ). ALJ s Hypothetical to Vocational Expert Fails to Account for Claimant s Limitations in Concentration, Persistence and Pace. 20 C.F.R (a)(4)(v). McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (finding that the ALJ s hypothetical to VE was deficient, but finding harmless error based on other evidence in the record, and approving Eleventh Circuit decision in Winschel v. Comm r of Soc. Sec., 631 F.3d 1176, 1180 (11 th Cir. 2011) (holding that when the ALJ s hypothetical fails to account for all the claimant's impairments, the VE testimony is not substantial evidence in support of conclusion that claimant could perform significant numbers of jobs in the national economy). ALJ Fails to Make Express Finding as to Claimant s Residual Functional Capacity, Instead Relying on Testimony of Vocational Expert. 20 C.F.R Townley v. Heckler, 748 F.2d 109, (2d Cir. 1984) (holding that when an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ, and finding that the ALJ violated 20 C.F.R , which specifically states that in cases at the hearing level, the responsibility for deciding [a claimant s] residual functional capacity rests with the administrative law judge ) , v. 2 23

34 ALJ Cherry-Picks Evidence to Support Findings. 42 U.S.C. 423(d)(5)(B). Fiorello v. Heckler, 725 F.2d 174, 175, 176 (2d Cir. 1983) (stating that ALJ dismissed treating physician opinions [b]y picking and choosing excerpts from the reports of other physicians....[w]e cannot accept an unreasoned rejection of all the medical evidence in a claimant s favor.... The ALJ s finding that Mrs. Fiorello was not disabled as of July 30, 1979, is without substantial evidentiary support ) (citation omitted); Garcia o/b/o S.H.S. v. Colvin, 2015 WL , at *8 (S.D.N.Y. 2015) ( The ALJ also improperly relied on evidence of improvement to the exclusion of substantial evidence showing the opposite. ); McClain v. Barnhart, 299 F. Supp. 2d 309, 327 (S.D.N.Y. 2004) (finding in a child s case that the ALJ put exclusive emphasis on evidence favoring less-than-marked limitations in the functional domains, making his findings legally inadequate and not supported by substantial evidence ). Medical Conclusions Based on ALJ s Lay Opinion Without Support of Evidence in Record from Acceptable Medical Source. 20 C.F.R Balsamo v. Chater, 142 F.3d 75, (2d Cir. 1998) ( [T]he ALJ stated without citing to any medical opinion that there is no atrophy of any muscle groups indicative of disuse for the purpose of avoiding discomfort [ ] as one would expect... based on the claimant's allegation of constant and totally disabling pain. In so finding, the ALJ did not choose between properly submitted medical opinions, but rather improperly set his own expertise against that of [ ] physician[s] who submitted opinions to him.... We conclude, therefore, that the Commissioner has failed to sustain her burden of establishing Balsamo's ability to perform sedentary work and that the ALJ's finding that Balsamo could so perform is not supported by substantial evidence. ) (internal quotation marks omitted); Suide v. Astrue, 371 Fed. App x. 684, 690 (7th Cir. 2010) ( [W]hen an ALJ denies benefits, she must build an accurate and logical bridge from the evidence to her conclusion... and she is not allowed to play doctor by using her own lay opinions to fill evidentiary gaps in the record. ) (internal quotation marks omitted); Hilsdorf v. Comm r of Soc. Sec., 724 F. Supp. 2d 330, 354 (E.D.N.Y. 2010) (finding that ALJ's conclusion that claimant s carpal tunnel syndrome and Dupuytren s contracture did not limit his capacity for fingering and handling, thus significantly diminishing the range of work he could perform was not supported by substantial evidence); Morseman v. Astrue, 571 F. Supp. 2d 390, 397, 400 (W.D.N.Y. 2008) ( [T] the ALJ , v. 2 24

35 cannot substitute his own lay opinion in place of established acceptable medical authorities or treating sources.... For the reasons set forth above, I find that the Commissioner's decision... was not in accordance with law and not supported by substantial evidence. ). ALJ Omits Findings Regarding All Disabling Impairments Claimed in SSI Application. 20 C.F.R , , Aponte v. Sec y, Dep t of Health & Human Serv s of the United States, 728 F.2d 588, (2d Cir. 1884) ( [W]here the ALJ has stated no findings or conclusions with respect to a claim of disabling impairment, especially one as to which the claimant arguably has demonstrated the symptoms described in the Secretary's regulations, we cannot determine whether the ALJ's conclusion was based on a correct application of the law and whether there is substantial evidence in the record to support it. ). ALJ Makes Erroneous Finding that Medical Impairment Is Non- Severe under 20 C.F.R (c), (c). Pierce v. Astrue, 946 F. Supp. 2d 296, 298 (W.D.N.Y. 2013) ( Because the ALJ made a significant error of fact in making the severity determination at step two, his decision denying benefits is not supported by substantial evidence. ); Warren v. Colvin, 2014 WL , at *7 (W.D.N.Y. 2014) ( In light of the information provided in [the medical evidence], the Commissioner's ultimate determination that there is insufficient medical documentation in the record to qualify T.M.W.'s bipolar disorder as a severe impairment cannot be found by this court to be supported by substantial evidence. ); but see Reices Colon v. Astrue, 523 F. App'x 796, 798 (2d Cir. 2013) (finding the alleged Step Two error harmless because the ALJ explained why the impairments were found non-severe during subsequent steps in the sequential disability process); Matejka v. Barnhart, 386 F. Supp. 2d 198, 209 (W.D.N.Y. 2005) ( Since the ALJ failed to properly develop the record sufficiently to determine the severity of plaintiff s depression, the Court cannot find that his conclusion that her depression was not severe is supported by substantial evidence. ). ALJ Finds Claimed Condition Not to Be Medically Determinable Impairment. 42 U.S.C. 1382c(a)(3)(C)(i), 20 C.F.R (e), (e). Dow v. Astrue, 2011 WL , at *5 (D. Vt. 2011) (holding that ALJ s conclusion that claimant had no medically determinable mental health impairment when record established , v. 2 25

36 diagnosis and treatment for mental illness, lacked substantial evidence). e. District court relief of remand for calculation of benefits: The material in this section is principally addressed to cases seeking remand for additional administrative proceedings: After all, a showing that serious legal error was committed or that a decision was unsupported by substantial evidence, without more, will not entitle the plaintiff to judgment declaring entitlement to benefits. For that, the record must demonstrate persuasive proof of disability [where] a remand for further evidentiary proceedings would serve no purpose. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). Practice tip: In these cases too, remember to always seek the alternative relief of remand for additional proceedings based on ALJ legal error and be sure to spell this out in your complaint, your motion, and in a separate point heading in your memo of law (in which you will show that legal error was committed, and that substantial evidence was lacking). In federal court appeals strong enough to argue for a finding of disability on the existing evidentiary record, it would seem that a showing of persuasive proof of disability, in itself would necessarily establish that the decision appealed from lacked substantial evidence, and this point should be forcefully made. But there is a further nuance to this argument that may resonate with the courts, as they are generally very comfortable with the terminology of the substantial evidence doctrine. Thus: It is well established... that a reviewing court must consider the record as a whole, not seize upon a specific quantum of evidence that, taken in isolation, might sustain the administrative decision. Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (internal quotation marks omitted). To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988). Finally, it should be noted that in remanding for calculation of benefits only, some district courts have used the term substantial evidence of disability interchangeably with persuasive proof of disability. See, e.g., Henningsen v. Comm r of Soc. Sec. Admin., 111 F. Supp. 3d 250, 273 (E.D.N.Y. 2015); Miles o/b/o J.M. v. Astrue, 775 F. Supp. 2d 715, 730 (S.D.N.Y. 2011). It is an unfortunate shorthand, which hopefully will not confuse the reader , v. 2 26

37 D. Court of Appeals. In Social Security and SSI appeals from the district courts, the Second Circuit Court of Appeals applies the same standards of review for itself, as those discussed above for the district courts. See, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) ( In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard. ). Further, [W]e focus on the administrative ruling rather than the district court's opinion. Kohler v. Astrue, 546 F.3d 260, (2d Cir.2008) (quoting Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000)). Therefore, the same strategies outlined above for the district court stage apply in appeals to the Circuit. VI. LITIGATING VOCATIONAL ISSUES A. Challenging the numbers? 1. Brault v. Comm r, 683 F.3d 443 (2d Cir.) a) ALJ was not required to allow inspection of VE s sources or to explain expressly why he rejected plaintiff's objections to VE testimony b) But court cautioned that an ALJ may sometimes need to question the reliability of VE testimony, and agreed that VE evidence cannot be conjured out of whole cloth. 2. Issue for another day? 3. Under what circumstances must the ALJ question the VE s reliability or allow the claimant to question the VE? B. Failure to call vocational expert (VE) 1. Bapp v. Bowen, 802 F.2d 601 (2d Cir. 1986) a) Application of Medical-Vocational Guidelines (the grids ) versus necessity for expert testimony must be determined on case-by-case basis. b) If claimant s work capacity if significantly diminished beyond that caused by exertional limitations, application of grid is inappropriate c) Significantly diminished means additional loss of work capacity beyond a negligible one that so narrows the possible range of work as to deprive claimant of a meaningful employment opportunity. Id. at But see, e.g., Zedanovich v. Astrue, 361 Fed. App x (2d Cir. Feb. 23, 2010) holding that the mere existence of a non-exertional impairment does not alone trigger the need for vocational expert testimony; there must be significant limitations in the range of unskilled sedentary work 3. See, e.g., Selian v. Astrue, 708 F.3d 409, 422 (2d Cir.2013); Sesa v. Colvin, 629 Fed. App x 30 (2d Cir. 2015), remanding because the ALJ failed to affirmatively find whether the claimants reaching limitations were more than negligible before relying on the Grids 4. But see Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir. 2010) ALJ s finding that claimant s mental condition did not limit her ability to perform , v. 2 27

38 unskilled work, including carrying out simple instructions, dealing with work changes, and responding to supervision upheld C. Failure to incorporate non-exertional limitations into RFC/hypothetical question 1. See McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) - ALJ omitted plaintiff s moderate limitations in concentration, persistence, and pace from hypothetical posed to VE a) ALJ s hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace b) But harmless error if medical evidence demonstrated the ability to engage in simple, routine tasks or unskilled work 2. Finding of moderate limitations in concentration, persistent, or pace at Step three of Sequential Evaluation Process not inconsistent with finding of not disabled a) McIntyre v. Colvin, 758 F.3d at b) But see Mascio v. Colvin, 780 F.3d 632, 638 (4 th Cir. 2015) - ALJ must explain why moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in residual functional capacity D. Does restriction to unskilled work or SRRT (simple, routine, repetitive, tasks) account for limitations in attention and concentration/ability to focus? 1. See Mascio v. at 638: we agree with other circuits that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.2011) (joining the Third, Seventh, and Eighth Circuits). As Mascio points out, the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace. 2. See McIntyre v. Colvin, 758 F.3d at 152, finding substantial evidence demonstrates claimant s ability to engage to simple, routine, low stress tasks notwithstanding limitations in concentration, persistence and pace a) Area for litigation in Second Circuit? E. Proving limitations in concentration, persistence, or pace/inability to stay on task 1. See Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) a) ALJ s failure to provide adequate reasons for rejecting the treating physician s opinion was not harmless where the VE testified the plaintiff could not work if he missed four or more days of work per month b) See also Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015), finding the Commissioner erred in failing to consider the treating physician s opinion that the plaintiff would miss more than four days of work per month, where opinion was also supported by the therapist s opinion. 2. Limitations imposed by treating sources must be well supported a) See Camille v. Colvin, 2016 WL (2d Cir. June 15, 2016), holding that treating physician s opinion was inconsistent with his own treatment notes b) Suggestions for arguing notes are consistent? , v. 2 28

39 i. See Kohler v. Astrue, 546 F.3d 260 (2d Cir. 2008), finding that ALJ erred in focusing in isolation on treating source s use of the word stable ii. See also Administrative Message (AM) titled Policy Reminders for Evaluating Schizophrenia Cases effective 04/04/2012 1) Per the AM, Stable may be relative to a particular individual and the chronicity and severity of his or her condition. Symptoms may be "stable," meaning not showing a significant change from previous visits. Take great care in assuming that notes of stable indicate a claimant is doing well, without any other supporting evidence. Evaluate such descriptions cautiously, within the context of all the evidence of record. 2) AM is attached as Appendix 4 iii. See, e.g., Ubiles v. Astrue, 2012 WL , at *9 (W.D.N.Y. July 2, 2012), holding it unreasonable to expect office notes to contain detailed functional assessments. iv. Argue that normal Mental Status Exams (MSEs) do not contradict restrictive treating source opinion? 1) POMS DI D 2) mental status examination alone should not be used to describe concentration and sustained ability to adequately perform work-like tasks v. Argue that higher GAF score does not necessarily contradict restrictive treating source opinion? 1) Administrative Message (AM) 13066, acknowledging inherent limitations in GAF scores 2) See Appendix 5 3. Obligation of ALJ to clarify/obtain medical source statement/assessment of limitations? a) See Selian v. Astrue, 708 F.3d 409, 421 (2d Cir.2013) i. Terms used by consultative examiner (CE) were remarkably vague ii. At a minimum, ALJ should have contacted CE and sought clarification b) See, e.g,, Aceto v. Commissioner of Soc. Sec., 2012 WL , at *16, 2012 U.S. Dist LEXIS (N.D.N.Y. 2012) - because the ALJ had nothing more than treatment records and consultative reports to review, he had an affirmative duty to develop the record and request that Plaintiff's treating physicians assess her RFC , v. 2 29

40 , v. 2 30

41 APPENDIX 1 Unfavorable ALJ Decision

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63 APPENDIX 2 Appeals Council Memo

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70 APPENDIX 3A Appeal Checklist

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73 Prepared by: Barbara Samuels, formerly of LSU/LSNY

74 APPENDIX 3B Appeal Checklist

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85 This excerpt from Bohr's Social Security Issues Annotated from James Publishing is reprinted with express permission.

86 APPENDIX 4 AM-12048

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