Writing District Court Briefs Within the Fourth Circuit. Eric Schnaufer. August 24, 2007

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1 Writing District Court Briefs Within the Fourth Circuit Eric Schnaufer I. Introduction August 24, 2007 This article describes how to litigate successfully in a district court within the Fourth Circuit the Commissioner s denial of an individual s claim for Social Security benefits and/or Supplemental Security Income. While I advocate below specific styles and approaches to litigation, many styles and approaches are successful. Plaintiffs generally are allowed to file two documents addressing the merits of a Social Security case: a main brief and a reply brief. Plaintiffs win weak cases without filing any brief at all, and plaintiffs lose strong cases despite filing ideal briefs. Whether a plaintiff wins or loses depends on much more than the plaintiff s merits briefs, but these are one of the few things in Social Security litigation a plaintiff controls. Each jurisdiction, and sometimes even each judge and magistrate judge, has unique requirements for merits briefing. Obviously, any local rule or order applicable in a particular case governs how a merits brief in that case should be written. II. Litigation Represents a Failure Litigation over Social Security benefits represents a failure the failure to win the claim during the earlier administrative proceedings. Therefore, when a plaintiff drafts a merits brief, the plaintiff should critique the prior work on the claim. The transcript of the administrative hearing may show, e.g., that the vocational expert was not asked a crucial question about transferable skills. The medical evidence may show, e.g., that the treating physician was not asked the dispositive question about the claimant s ability to stoop. The goal of litigation is not just to win a particular case, but to learn how to avoid future litigation by winning cases during the administrative process. Although winning a case at the administrative level is beyond the scope of this article, you can find remarks on advocacy before the Appeals Council on my web site. See III. The Complaint Complaints in Social Security cases have few formal requirements, in part because pro se litigants regularly file them. Some local rules recommend using a standard form complaint. I recommend drafting a relatively detailed complaint. The Social Security Act authorizes judicial review of a final decision of the Commissioner of Social Security denying a claim for disability benefits. See 42 U.S.C. 405(g). The Supreme Court has emphasized the importance of the plain language of 42 U.S.C. 405(g). 1

2 See Shalala v. Schaefer, 509 U.S. 292 (1993); Melkonyan v. Sullivan, 501 U.S. 89 (1991). A complaint should follow the plain language of 405(g). A plaintiff may obtain judicial relief under either sentence four or sentence six of 405(g). Under sentence four, a court has the power to enter judgment affirming, modifying, or reversing the Commissioner s final decision with or without a remand for a rehearing. 42 U.S.C. 405(g) (sentence four). At issue when a court determines whether to enter judgment under sentence four is whether substantial evidence supports the Commissioner s final decision and whether the Commissioner applied the proper legal standard when reaching his final decision. Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). In contrast, a plaintiff may obtain judicial relief (a remand) under sentence six of 42 U.S.C. 405(g) when he or she submits evidence that is new and material and was omitted from the record for good cause. 42 U.S.C. 405(g) (sentence six); see also Borders v. Heckler, 777 F.2d 954, (4th Cir. 1985) (discussing sentence six). When a court remands for consideration of new and material evidence under sentence six, the court does not enter judgment terminating the civil action, but instead retains jurisdiction over the remand proceedings. Melkonyan, 501 U.S. at A complaint should reflect Fourth Circuit law regarding the treatment of Appeals Council evidence and the Appeals Council s denial of review. See Wilkins v. Secretary, Dep t of Health and Human Servs., 953 F.2d 93, (4th Cir. 1991) (en banc). In a complaint in a typical case in which the Appeals Council denies a request for review, the plaintiff may seek judicial review of the Commissioner s final decision, which includes the ALJ s decision and the Appeals Council s denial of review. Id. at However, a plaintiff should not request relief under sentence six of 42 U.S.C. 405(g) for consideration of evidence first submitted to the Appeals Council. In the Fourth Circuit, such evidence is part of the record upon which a court decides, under sentence four, whether substantial evidence supports the Commissioner s final decision. Wilkins, 953 F.2d at IV. Plaintiff s Main Merits Brief A. Statement of Facts 1. Master the Evidence By writing the statement of facts, a plaintiff masters the evidentiary record. There is no better way to become familiar with a case than by writing such a summary. Likewise, the only way to determine that the ALJ was wrong about the facts is to know them yourself. 2. Establish Credibility Through Objectivity Through a statement of facts, a plaintiff has the opportunity to establish credibility with the court. A statement of facts should be unflinchingly objective, including the good, the bad, the ugly, and, especially, all or nearly all the facts the ALJ cited to show that the claimant was not disabled. If a plaintiff s statement of facts does not include the facts upon which the ALJ relied

3 when denying benefits, a court cannot use the plaintiff s statement as a road map through the administrative record. The court will have to look somewhere else for the facts either to the administrative record or to the Commissioner s statement of facts. In either case, the plaintiff has lost the desired audience. Litigation is, in essence, adversarial. But to be a better advocate, minimize advocacy or confine explicit advocacy to a narrow domain. If a brief is argumentative from beginning to end, it serves one purpose presenting the litigant s case. But a litigant should do more than present his or her case; the litigant should try to do much of the groundwork for the court. It is important to anticipate what the court s needs and meet them without prompting. 3. Organize the Facts According to the Argument A plaintiff should use the statement of facts to organize the facts for presentation in the argument section of the brief. Here it is critical to make legal distinctions. For example, a plaintiff should not mix facts submitted to the Appeals Council with facts submitted to the ALJ, even though the former will be considered along with evidence before the ALJ in determining whether substantial evidence supports the Commissioner s final decision. See Wilkins, 953 F.2d at While evidence submitted to the Appeals Council may be used to show that substantial evidence does not support the ALJ s decision, id., Appeals Council evidence should nonetheless be segregated. Neither, as a related matter, should facts provided as the basis for remand under sentence six of 42 U.S.C. 405(g) be mixed with facts relevant to judicial relief under sentence four of that statute. E.g., Borders, 777 F.2d at (discussing sentence six). A plaintiff should not force the court to sort evidence according to whether it was submitted to the ALJ, the Appeals Council, or only the court itself. Do the work for the judge. The statement of facts may be organized by type of evidence and/or the date thereof. If there is an expired date last insured, categorize the medical evidence according to whether it originated before or after the claimant s date last insured. If the plaintiff does not categorize the evidence in this fashion, the Commissioner or the court may do so. And if there is little evidence from before the claimant s date last insured, be sure the court hears that fact from you first. In Social Security litigation, a plaintiff cannot afford to afford to hide the ball. There are many possible ways to organize evidence in anticipation of the argument, and the best arrangement depends on the facts of a particular case. The most important point is to remain flexible. The way you organized the evidence in your last brief probably is not how you should organize them in your next one. 4. Describe Symptoms as Hard Facts A statement of facts should strive to be neutral but also to present complaints and symptoms as hard kernels of truth. Symptoms are subjective; signs are objective. 20 C.F.R. 3

4 , (2007). However, this does not mean that symptoms must sound subjective in a statement of facts. If possible, find a way to convey information about subjective symptoms as though it pertained to objective signs. For example, claimants do not complain of pain; they report or have pain. B. Argument 1. Use an Outline Both the argument section of the brief and the brief as a whole should follow a standard outline form. Ideally, after merely skimming the outline of the argument section of a brief, the court should know all the key errors the plaintiff alleges as well as why it should provide relief. Additionally, the outline is critical for drafting the plaintiff s reply brief. The outline provides a natural checklist from which to evaluate the Commissioner s response to the plaintiff s main merits brief. If through the outline the plaintiff clearly communicates distinct arguments, the plaintiff later can argue convincingly that the Commissioner failed to respond to one or more of those arguments. It should be rare that an outline of an argument section of one brief is identical to that of another brief. Instead, the outline should reflect the particular issues and facts of an individual case. Each outline should be unique. 2. Identify Key Findings At issue on judicial review are the ALJ s findings. 42 U.S.C. 405(g); 20 C.F.R (a) (2007). As a fundamental task on judicial review, a plaintiff must describe the ALJ s decision in the context of the five- or eight-step sequential evaluation. 20 C.F.R (2007) (five-step sequential evaluation); 20 C.F.R (2007) (eight-step sequential evaluation for continuing disability reviews and closed periods). Moreover, when describing the basis for the ALJ s decision in the context of the sequential evaluation, determine whether in fact the ALJ s findings are adequate for judicial review. For example, if the ALJ did not make a residual functional capacity finding and if the ALJ concluded that the claimant was not disabled at step four, the ALJ s decision probably is unreviewable. See SSR (requiring an ALJ to determine a claimant s residual functional capacity at step four). A plaintiff cannot show that substantial evidence does not support a finding the ALJ never made. Even so, with almost any argument that the ALJ s decision does not include findings adequate for judicial review, provide an alternative argument that substantial evidence does not support the ALJ s findings in case the court rules that the ALJ s findings are reviewable. Thus, as in the example above, argue that substantial evidence does not support any implicit finding that the plaintiff had the residual functional capacity sufficient to perform his or her past relevant work. It is vital to anticipate the Commissioner s response that a particular finding is reviewable and that substantial evidence supports it.

5 3. Use Boilerplate in Narrow Circumstances Boilerplate is a recitation of legal authority detached from the facts of any particular case. The most common boilerplate in Social Security cases reiterates the substantial-evidence standard of judicial review and its general application. Minimize boilerplate when possible. The more boilerplate a plaintiff s brief contains, the more a judge may ignore it. For the same reason a string citation often is superfluous, extended boilerplate about well-known issues often is unnecessary. In many cases, simply citing the statutory standard of judicial review, i.e., 42 U.S.C. 405(g), and a single case, e.g., Richardson v. Perales, 402 U.S. 389, 401 (1971), is sufficient. The court is likely very well aware of the standard of judicial review. 4. Identify Factual Errors A reader may expect remarks about litigation of Social Security claims to address significant case law developments or trends. The most important trend for plaintiffs is not legal, but factual. ALJs continue to get the facts wrong. E.g., Bailey v. Chater, 68 F.3d 75, 78 n.2 (4th Cir. 1995) (noting factual error); Flowers v. United States Dep t of Health & Human Servs., 904 F.2d 211, 213 (4th Cir. 1990) (same). Until ALJs stop making factual mistakes, winning district court briefs can be written without relying on any law. In a typical decision, an ALJ will make many factual assertions. Test the truth of each such assertion by reviewing the administrative record. Assume that what the ALJ says is false, but do not allege factual error unless there actually is a significant one. E.g., Stone v. Finch, 434 F.2d 364, 365 (4th Cir. 1970) ( Stone has overstated his claims and understated the medical evidence in the record which provides substantial support for the findings of the hearing examiner ). The goal is to create an inventory of the ALJ s significant factual mistakes. On judicial review, a plaintiff does not want to boast about having found a factual error only to have the court determine that there was none. E.g., Payne v. Sullivan, 946 F.2d 1081, 1083 (4th Cir. 1991) ( The premise of Payne s argument that the ALJ only considered his average monthly earnings to determine that he was not disabled is mistaken ). To establish a factual error, a plaintiff should quote the ALJ or summarize the ALJ s statements and then contrast the quote or summary with that portion of the evidentiary record that indicates otherwise. Obviously, for this argumentation, no legal authority is needed. In most courts the benefit of the doubt goes to the ALJ, not to the claimant. Therefore, a plaintiff should not assume that a court is sympathetic, but instead should prove that the ALJ made factual errors and that those errors were harmful. 5. Identify Factual Omissions Evidence that an ALJ does not mention is important: indeed, it often is more important than evidence the ALJ actually addresses. An ALJ cannot mention every fact. Necessarily, each ALJ decision is a selective review of the evidence. One important task is to ascertain what the 5

6 ALJ neglected, whether intentionally or unintentionally. E.g., Hines, 453 F.3d at 565 ( The ALJ selectively cited evidence concerning tasks which Mr. Hines was capable of performing ); id. at 566 ( This recitation of the evidence ignores Mr. Hines further testimony ). ALJs use two main techniques to deal with evidence that favors disability: ignore it or address it. A plaintiff should generally prefer that an ALJ does not address the important evidence favoring disability, for in such a case a court is less likely to defer to the ALJ s weighing of the evidence. Deferential substantial-evidence review is predicated on the ALJ s actually having weighed important evidence that both supports and undercuts a finding of disability. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Universal Camera Corp. v. NLRB., 340 U.S. 474, 488 (1951). There are four main sources of legal authority requiring an ALJ to address important evidence: general administrative law, Social Security cases, Social Security regulations, and Social Security Rulings. As a matter of general administrative law, an ALJ must address important evidence. E.g., Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Many Social Security cases require consideration of important evidence. E.g., Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987) ( the Secretary... is required to explicitly indicate the weight given to all relevant evidence ) (quoting Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984)); cf. Walls v. Barnhart, 296 F.3d 287, 291 (4th Cir. 2002) (rejecting district court s holding that an ALJ needed to provide special clarity for a finding). Several regulations include articulation requirements. E.g., 20 C.F.R (d)(2) (2007) ( We will always give good reasons in our... decision for the weight we give your treating source s opinion ). So do many SSRs. E.g., SSR 96-8p (requiring a thorough evaluation of the evidence); SSR 96-6p (requiring express consideration of the determinations of non-examining state-agency sources). Generally, a plaintiff should not rely on just one source of legal authority when arguing that an ALJ did not grapple with important evidence. Argue instead that the ALJ s failure to evaluate important evidence violated not only longstanding Circuit authority but also the Agency s regulations and rulings. When the Commissioner denies that the ALJ was required to grapple with important evidence, he typically disputes a plaintiff s reliance on one source of legal authority, but leaves uncontested the plaintiff s contention that the ALJ violated additional sources of legal authority. Further, a court may be reluctant to enforce certain sources of legal authority. For example, even though the regulations require express consideration of a treating source s opinion, see 20 C.F.R (d)(2) (2007), a court may be reluctant to enforce these provisions. Significantly, Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005), arguably requires an ALJ to consider expressly the regulatory factors in 20 C.F.R (d) when weighing a treating source s opinion. Thus, a plaintiff should cite both (d) and Johnson, 434 F.3d at 654, when arguing that the ALJ did not provide a legally sufficient rationale with respect to a treating source s opinion.

7 Similarly, even though SSRs are binding by regulation, see 20 C.F.R (2007), a court may implicitly consider too demanding an articulation requirement such as SSR 96-8p s requirement for a thorough evaluation of the evidence, but instead enforce case law or a regulatory articulation requirement. Because the Fourth Circuit has enforced generally SSR 96-8p, see Hines, 453 F.3d at , it may be vital to cite Hines along with SSR 96-8p when relying on that Ruling s articulation requirement. See also Pass v. Chater, 65 F.3d 1200, & n.3 (4th Cir. 1995) (applying SSRs); Kennedy v. Shalala, 995 F.2d 28, (4th Cir. 1993) (upholding the validity of an SSR). 6. Identify the ALJ s Reasoning ALJ decisions contain surprisingly little reasoning. Most of an ALJ s decision is composed of boilerplate, procedural history, factual summary, and formal findings. These sections are obviously much easier to write than is a rationale. Identify each paragraph in an ALJ decision that actually contains a rationale. Identify that rationale. Without regard to any legal reasoning, is what the ALJ says sensible? E.g., Hatcher v. Secretary, Dep t of Health and Human Servs., 898 F.2d 21, 24 (4th Cir. 1989) ( We fail to see any significant inconsistency in this testimony ); Smith v. Bowen, 837 F.2d 635, 637 (4th Cir. 1987) ( We conclude that the ALJ s finding is not supported by substantial evidence. Nothing in claimant s testimony suggests or implies that the extra lifting was optional ); Neal ex rel. Pumphrey v. Bowen, 828 F.2d 1027, 1028 (4th Cir. 1987) ( We disagree with the reasoning of the Appeals Council ). Typically, at least part of the ALJ s rationale is deficient. It is easy to infer how irrationality infects ALJ decisions. An ALJ s decision-writer has the responsibility to write a decision to support a certain result. Typically, the decision-writer will put too much evidence in the non-disability column. ALJs generally do not write decisions that are balanced. ALJs overreach and, in that overreaching, leave reason and fairness behind. As you identify the ALJ s rationale, consider whether the ALJ cited the proper legal standard. Although not dispositive, an ALJ s failure to cite the proper standard may be evidence that the ALJ did not apply that standard. E.g., Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986) ( The ALJ did not explain which of those listed impairments were considered to be relevant. He also failed to compare Cook s symptoms to the requirements of any of the four listed impairments, except in a very summary way ). 7. Identify Medical Judgments An ALJ s decision often is based expressly or implicitly on the ALJ s lay judgment about medical facts. In specific circumstances, such judgments may be improper. Compare Bailey, 68 F.3d at 79 n.3 ( These issues are so complex that they cannot be accurately resolved unless a medical advisor is consulted ) with Murphy, 810 F.2d at 437 ( the ALJ did not simply substitute 7

8 his own evaluation in place of medical evidence but instead, denied benefits by relying on Doctor Andrews findings rather than Doctor Rudin s ). To a certain degree, ALJs must have the authority to evaluate medical facts. It cannot be true that ALJs are prohibited completely from interpreting and evaluating medical evidence. An ALJ, after all, is charged with the task of determining a claimant s residual functional capacity. 20 C.F.R (2007). Therefore, from legal and logical standpoints, it generally is weak to argue that the ALJ s residual functional capacity finding was improper because no medical opinion directly supports it. There is no requirement that a particular medical opinion directly support such a finding, which may be more restrictive or even less restrictive than all the medical opinions in the administrative record. The particular facts are important, however, and argument tied closely to the facts is critical. The more general the legal objection to an ALJ s making a factual finding, the easier it is for the Commissioner to rebut. When you argue that an ALJ made an impermissible medical judgment, focus on the important medical facts with respect to which the ALJ s medical judgment does not seem intuitively rational. Consider, for example, an ALJ s rationale that a minimal medical finding of some sort does not establish moderate or severe limitations or symptoms. Although it is true that the ALJ s rationale involves a medical judgment, the ALJ s rationale may seem reasonable. Thus, a plaintiff should offer law, medical evidence, and/or medical opinions to prove that the ALJ s rationale is unreasonable. Simply asserting that the ALJ s rationale involved a medical judgment may elicit only a yawn from the court. 8. Look for Objective Evidence When an impairment with respect to which arguably subjective symptoms play a key role is at issue e.g., chronic fatigue syndrome or a mental impairment do not undercut your own position. That is, think twice before making the medico-legal argument that the impairment is necessarily characterized by subjective complaints. If a plaintiff states that his or her claim is based largely on subjective symptoms, the claimant has undercut his or her position. Stop contending that the ALJ improperly rejected the claimant s subjective complaints because they were subjective. Look for the stronger argument that the ALJ improperly rejected facts as subjective evidence when indeed they were objective as a matter of law. With mental impairments, emphasize that observations of mood and affect are signs, not symptoms. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A, 12.00(B) (2007). As a matter of regulation, medical evidence of mental illness may be objective. An ALJ who claims that mental impairments are wholly subjective makes a legal error. As a related matter, symptoms are not always symptoms. Under footnote 2 of SSR 96-4p, symptoms may constitute signs. 9. Identify Inconsistencies Social Security Ruling 96-7p emphasizes that one of the main tasks of an ALJ who would deny benefits is to identify inconsistencies in the record. SSR 96-7p. In accord with that ruling, ALJs search for inconsistencies in a claimant s statements. During administrative hearings, some ALJs try overtly to impeach claimants. Others quietly take notes that they will use later to justify a denial of benefits. Turn the tables on the ALJ. Just as the ALJ is looking for

9 inconsistencies to legitimate a denial, the plaintiff should look for inconsistencies in the ALJ s decision so as to obtain judicial relief. E.g., Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987) ( we... conclude that the ALJ s findings on this point are inconsistent and confusing and constitute an additional reason for remanding the case ); cf. also Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ( The Commissioner s incongruous position of allowing Smith to remain a representative payee for her children s SSI checks, while Smith herself has been found to need a representative payee in her own right, makes even less sense ); Young v. Bowen, 858 F.2d 951, 956 n.6 (4th Cir. 1988) ( The Secretary s position here is subject to a serious internal inconsistency ). Inconsistencies may be found in any part of an ALJ s decision. Look everywhere for them, including between the hypothetical question upon which the ALJ relied and the ALJ s determination of the claimant s residual functional capacity and vocational profile (age, education, and work experience). Cf. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (vocational expert's testimony must be in response to proper hypothetical questions which fairly set out all of the claimant s impairments ). Of course, if the ALJ s hypothetical question is more restrictive than the ALJ s residual functional capacity finding or vocational findings, the inconsistency is probably harmless error. But even where the ALJ s residual functional capacity finding or a vocational finding is more restrictive than the ALJ s hypothetical question, a court may affirm the ALJ s decision. With the Commissioner s help or encouragement, the court may look for a way to conclude that the inaccuracy of the ALJ s hypothetical question is either harmless error or no error at all. Therefore, consider addressing at the outset why any identified inconsistency is harmful or be prepared to argue in a reply brief that the inconsistency is harmful error. 10. Challenge Alternative Findings Plaintiffs should avoid the trap of attacking only some of the ALJ s formal findings when the ALJ makes either express or implied alternative findings. E.g., Duvall v. Califano, 569 F.2d 820, 821 (4th Cir. 1978) (affirming ALJ s alternative finding). For example, if an ALJ determines that the claimant can do a limited range of light work without a sit/stand option and the ALJ relies on vocational-expert testimony to support a step-five denial, the ALJ s failure to determine formally that the claimant needs a sit/stand option is potentially harmless error. Even given such a ruling, the plaintiff may be able to do all the jobs the vocational expert identifies. Thus, beware of alternative findings buried in the text of the ALJ s decision or implicit alternative findings discernable through a reconstruction of the vocational expert s testimony. A court may affirm based on a defensible explicit or implicit alternative finding. 11. Turn Down the Volume A federal court brief is not an opportunity to rant, rave, exaggerate, or lie. Very few ALJ decisions are absurd. Even if a decision were absurd, there should be a more persuasive and less inflammatory way to convey this point. Plaintiffs commonly allege that no evidence supports a finding or that all the evidence supports another finding. These allegations are 9

10 typically demonstrably false. Only after a very careful review of the administrative record should a plaintiff ever allege that no evidence or all evidence supports a certain finding. There is a device to avoid making false statements about what the entire record or all the evidence contains. A plaintiff can argue, when true, that the ALJ did not cite any evidence or evidence of a certain kind. Thus, although there may be some evidence to support a finding hidden in the administrative record, a plaintiff can make the same essential point about missing evidence by looking at what the ALJ wrote and explaining how the ALJ did not locate the evidence in question. 12. Recharacterize Each Argument Virtually all arguments may and should be recharacterized. Almost all significant arguments should be expressed in at least two ways. For example, a plaintiff may argue that substantial evidence does not support an ALJ s finding that she could lift twenty pounds. This argument may be recharacterized as an argument that the ALJ did not provide good reasons under the regulations to reject a treating physician s opinion that the plaintiff could lift only ten pounds. See 20 C.F.R (d)(2) (2007). A plaintiff should not worry about classifying a particular argument as a legal error or an evidentiary error. Instead, the plaintiff should demonstrate that the argument is based on both kinds of error. It should be standard practice for a plaintiff to present three or more independent arguments as to why a court should not ratify a particular finding. There is another way in which arguments should be recharacterized. The Fourth Circuit has its own quasi-common law of the disability program. Those Fourth Circuit cases should be cited along with the closest legal authority from the Commissioner. For example, in August 1991 the Agency promulgated regulations governing the weighing of medical opinions, including opinions from treating sources. See 20 C.F.R (2007) (codifying August 1991 regulations, as amended). Since the Agency has broad authority to promulgate regulations, in theory the 1991 regulations arguably control in all instances the weighing of medical opinions. See Schisler v. Sullivan, 3 F.3d 563, (2d Cir. 1993) (August 1991 regulations trump prior Second Circuit case law). But that theory breaks down in practice, as after August 1991 the Fourth Circuit applied its own common law for weighing medical opinions. See, e.g., Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (citing treating-source cases from mid-1980s). The Fourth Circuit has not held explicitly that its case law jurisprudence trumps the August 1991 regulations. Instead, the Fourth Circuit will apply at the same time (1) its own case law jurisprudence, (2) the 1991 regulations, and (3) its case law enforcing the 1991 regulations. See, especially, Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (citing Hunter, 993 F.2d at 35; 1991 regulations); cf. Hines, 453 F.3d at 563 (citing Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005); Mastro, 270 F.3d at 178; 1991 regulations); Johnson, 434 F.3d at 654 (citing Mastro, 270 F.3d at 178; 1991 regulations).

11 13. Use Appeals Council Evidence Carefully Either an ALJ or the Appeals Council may issue the Commissioner s final administrative decision. When an ALJ renders a decision and then the Appeals Council denies the claimant s request for review, the ALJ s decision stands as the final decision of the Commissioner. 20 C.F.R (a) (2007). Because a claimant is permitted to submit additional evidence to the Appeals Council with a request for review, there is a recurrent legal issue regarding such Appeals Council evidence in cases where the Appeals Council denies the claimant s request for review. In the Fourth Circuit, Appeals Council evidence is considered when determining whether substantial evidence supports the ALJ s decision. See Wilkins, 953 F.2d Because the Commissioner may attack or ignore Wilkins, a plaintiff should explain the holding of Wilkins before asking a court to rely on Appeals Council evidence in assessing whether substantial evidence supports the ALJ s decision. Do not assume that a court is familiar with Wilkins. Even though Wilkins holds that a court considers Appeals Council evidence when determining whether substantial evidence supports the Commissioner s final decision, a plaintiff pitches a softball when the plaintiff mixes Appeals Council evidence with ALJ evidence in the statement of facts or argument. When the two types of evidence are so confounded in the statement of facts or argument, the Commissioner can easily cast doubt over the plaintiff s entire brief and raise the issue as to whether the plaintiff is familiar with controlling precedent regarding Appeals Council evidence and 42 U.S.C. 405(g). Resist the temptation to address Appeals Council evidence in a casual fashion. Moreover, understand that Appeals Council evidence is relevant only to the extent that it pertains to the claimant s condition at the time of the ALJ s decision (or other crucial date such as the claimant s date last insured). Even though a plaintiff does not need to show that he or she had good cause (under sentence six of 42 U.S.C. 405(g)) for not submitting the evidence to the ALJ, the additional evidence still must pertain to the time period on or before the ALJ s decision. C. Request for Relief 1. Follow 42 U.S.C. 405(g) At the close of the plaintiff s main brief, the plaintiff should state precisely the relief requested. A plaintiff may obtain relief under sentence four or sentence six of 42 U.S.C. 405(g). Under 405(g), the plaintiff should never request a remand. There is no such thing as a generic remand. See Melkonyan, 501 U.S. at If a plaintiff seeks a remand under sentence six of 405(g), the plaintiff should expressly ask for a remand under sentence six of 42 U.S.C. 405(g). 11

12 In contrast to sentence six, sentence four of 405(g) provides, The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. Thus, there are two types of reversal under sentence four: reversal without and reversal with a remand for a rehearing. Id. A sentence-four reversal is a substantive ruling as to the correctness of the Commissioner s administrative decision. Melkonyan, 501 U.S. at 100. A sentence-four reversal without a remand for a rehearing is a reversal with a finding of disability. This is sometimes called an award or payment of benefits. This terminology is imprecise because when SSI is involved, a reversal without a remand for a rehearing establishes only that the claimant was disabled for the purpose of SSI, but does not establish entitlement to that benefit. See Willis v. Sullivan, 931 F.2d 390, (6th Cir. 1991). A sentence-four reversal with a remand for a rehearing is a reversal of the Commissioner s final decision with a remand for further administrative proceedings. Additionally, whether the plaintiff seeks a sentence-four reversal with or without a remand for a rehearing, the plaintiff also seeks entry of judgment reversing the Commissioner s final decision. 42 U.S.C. 405(g) (sentence four). I discourage requesting as relief a sentence-four remand as shorthand for a judgment entered under sentence four of 42 U.S.C. 405(g) reversing the Commissioner s final decision with a remand for a rehearing. If a plaintiff seeks further administrative proceedings as relief for substantive error in the ALJ s decision, a plaintiff should request entry of judgment reversing the Commissioner s final decision with a remand for a rehearing. 42 U.S.C. 405(g) (sentence four). If a plaintiff seeks relief under sentences four and six of 405(g), the plaintiff should specify which is the primary relief and which is the alternative relief. In most instances, relief under sentence four is preferred to relief under sentence six for practical considerations. Relief under sentence four is less difficult to obtain, and attorney fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d), are available soon after a judgment of reversal under sentence four. Schaefer, 509 U.S. at Apply the Relevant Test If the plaintiff seeks reversal of the Commissioner s final decision without a remand for a rehearing, i.e., for a finding of disability, the plaintiff should set forth the relevant test for holding a claimant disabled on the existing record and apply that test. E.g., Hines, 453 F.3d at 567 ( The district court properly reversed the ALJ's ruling and awarded disability benefits to Mr. Hines ) (citing Crider v. Harris, 624 F.2d 15, (4th Cir. 1980)); Bailey, 68 F.3d at 79 n.3 (declining to hold that the claimant was disabled); Jenkins v. Sullivan, 906 F.2d 107, 109 (4th Cir. 1990) (holding that the claimant was disabled). D. Attachments Apart from the requirements of any particular judge or local rule, consider attaching to the merits brief any subregulatory guidance such as an SSR, the POMS, or the HALLEX. Or, at

13 a minimum, provide the Internet address for that authority. In this way, the judge or magistrate judge need not spend time locating those sources and is more likely to consult them. More generally, the plaintiff should try to minimize the amount of time a judge or magistrate judge needs to decide the merits of any given case. V. Plaintiff s Reply Brief A. Identify Post Hoc Rationalizations A reply brief should be filed in almost every case, if for no other reason than to identify and rebut the Commissioner s improper post hoc rationalizations. See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (holding that post hoc rationalizations are improper); see also Island Creek Coal Co. v. Henline, 456 F.3d 421, 426 (4th Cir. 2006) (citing Chenery Corp., 318 U.S. at 95); Cunningham v. Harris, 658 F.2d 239, 244 n.3 (4th Cir. 1981) (citing Chenery, 318 U.S. at 94-95). B. Identify Uncontested Arguments Often the Commissioner s best defense of an ALJ s decision is to ignore alleged errors. If the Commissioner does not have a substantive response to a plaintiff s argument, the Commissioner may simply not address the argument. It is not uncommon for the Commissioner to ignore several of a plaintiff s main arguments. A plaintiff should use the outline of the arguments from his or her brief to inventory those arguments to which the Commissioner provides no response. C. Follow Plaintiff s Outline In drafting a reply brief, a plaintiff should consider following the outline of the arguments in his or her main brief. Following that outline focuses the court s attention on the plaintiff s characterization of the relevant issues and the Commissioner s response, if any, to those issues. D. Don t Trust; Verify The Commissioner more than occasionally misstates the facts or law. Often this is due to the fact that Commissioner s counsel is inexperienced or unaware of relevant legal authority. If a court is inclined to believe the Commissioner s characterization of relevant legal authority issued by the Agency itself, e.g., a regulation, ruling, or HALLEX provision, a reply brief will be critical to demonstrate the Commissioner has not accurately depicted Agency policy. 13