Briefing Forfeiture in the District Court -- Address Every Discernible Articulation

The decisions are Nadon v. Saul and Nadon v. Bisignano. Same administrative case, twice to the District of Montana and twice to the Ninth Circuit Court of Appeals. To avoid confusion, I refer to Saul and Bisignano to make it clear which decision we are discussing. Saul is unpublished memorandum disposition; Bisignano is a published binding precedent.

Saul finds error in three aspects with the ALJ decision, the district court proceedings, and the Commissioner's briefing. First, the three points of demarcation combined Nadon's depression and posttraumatic stress disorder in the decision. The COSS must address the impairments separately citing Ghanim v. Colvin, 763 F.3d 1154, 1160, 1164 (9th Cir. 2014). Second, the treating physician's opinions after the relevant date can relate back in time citing Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). Nadon could prove a continuous disability with a retrospective diagnosis and opinion citing Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1461 (9th Cir. 1995); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999); Lester v. Chater, 81 F.3d 821, 832 & n.10 (9th Cir. 1995). Saul vacates and remand to consider PTSD, the treatment notes, and to address the PTSD as a distinct impairment from the coexisting depression. Saul is a solid win on a technical basis. Where the record establishes a different impairment than that assumed by the examining or non-examining physicians, the COSS must address those opinions separately.

Nadon's claim goes back to another administrative proceeding, and she loses again before the ALJ. Nadon bypassed the AC and went straight back to federal court. Nadon v. O'Malley. I would and generally advise attorneys to bypass the AC for the second court action.

The district court rejected Nadon's claim of error. Nadon files her second appeal to the Ninth Circuit. Judge Ronald Gould is drawn on the panel, a repeat from Saul. The court assigns Richard Tallman and Morgan Christen to the case. Judge Christen writes for the panel in the published opinion.

We understand the scope of the ALJ decision from Bisignano. The ALJ found that Nadon could perform her past relevant work as a personal care attendant and in the alternative could perform other work as a housekeeper, marker, and small products assembler. Missing the RFC assessment, we jump to the district court decision in Nadon v. O'Malley. Nadon can perform light work; stand/walk six hours; frequently reach overhead; occasionally climb; frequently posture except occasionally crawl; limited to occasional interaction with coworkers, supervisors, and the public but able to tolerate one-on-one patient interactions; and able to tolerate usual work situations and changes in routine work settings.

It is clear that the work activity in 2020-2021 is not past relevant work as to a claim of disability in 2015. It may be past relevant work in 2020 or later and as Bisignano holds and it may be relevant to 2015 without evidence of improvement in the intervening five years, but it is not past relevant work for the insured period. Bisignano focuses on the issue raised, that the earnings were insufficient to cross the substantial gainful activity (sga) threshold. Because the ALJ made a step five other work determination, any error in past relevant work is harmless.

When a claimant returns to work, it is incumbent on the hearing representative to make a record of why. Nadon is entitled to a trial work period. Nadon may have gotten better to permit non-sga work. Nadon may have a special circumstance caring for an elderly person. The facts as recited by the district court and Bisignano fail to fill in the missing facts and considerations.

And the work activity problem takes center stage. Nadon argues that the ALJ rejected the treating physician opinion from 2016 and Nadon's own testimony solely because of the non-sga work activity five or more years after the relevant period, the date last insured.

Bisignano identifies the licensed clinical social worker and nurse practitioner as not accepted medical sources in this 2015 application for benefits. Bisignano recounts that the ALJ found the opinions of a treating physicians inconsistent with the treatment record in addition to inconsistent with post-onset work activity. The core holding and the reason the court published Bisignano:

the Commissioner was correct to assert that Nadon forfeited the argument that the ALJ did not provide sufficient reasons for discounting the opinions of the healthcare professionals. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (refusing to address an ALJ's reasons for rejecting a claimant's assertions when the claimant "failed to argue th[e] issue with any specificity in his briefing").

The case was lost at the district court. Failure to pull out every reason that the ALJ hinted at in the decision. And that is the hard part of appellate work. The courts are willing to read into an ALJ decision reasons that might have the slightest grain of origination. The reasonably discerned doctrine in found in Alaska Dep't of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.2014); and Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). The reasonably discerned doctrine has its counter point, that the courts consider the reasons actually stated by the ALJ. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir.2001); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.2003).

Nadon suffered a tough loss. Whether the meager work performed five years after the date last insured was central or critical to the finding of not disabled in 2015 is unclear. In the old days, knocking out the core or several reasons could win a remand on the theory that the court could not be reasonably confident that the ALJ would have made the same decision without that reason(s). Today, the claimant must show the failure of every reason stated and every reason that a court might discern from the ALJ decision in order to win.

Rough job.

___________________________

Suggested Citation:

Lawrence Rohlfing, Briefing Forfeiture in the District Court -- Address Every Discernible Articulation, California Social Security Attorney (August 14, 2025) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

Forfeiture of Step Five Vocational Issues -- Don't

Today, we examine Cain v. Bisignano, a published opinion by the Seventh Circuit Court of Appeals. Cain has a residual functional capacity for sedentary work with no public interaction. We can assume that Cain is a younger individual with more than a marginal education. Thomas Dunleavy testifies that such a person can work as a “sorter (18,000 jobs), assembler (20,000 jobs), and visual inspector (21,000 jobs).” The hearing representative did nothing. The representative requested review and did nothing. The representative in court attacked the job numbers as insubstantial. Cain found the issue forfeit. Cain is correct.

The five step sequential evaluation process is well- and long-established. 20 CFR § 404.1520. A reasonable representative is prepared to address:

1.   Earnings during the relevant period of alleged disability.

2.   The existence of medically impairments.        

a.     Are they determinable by accepted clinical and laboratory diagnostic techniques?

b.     Are the impairments severe – do they cause a significant impact of the ability to perform basic work functions?

3.   Do the impairments:

a.     Meet a listed impairment in Appendix 1?

b.     Equal a listed impairment in Appendix 1?

c.     What is the residual functional capacity that the person retains?

4.   Can the claimant perform past relevant work?

a.     Does the claimant have past relevant work?

i.            In the five years before the decision and/or before the date last insured?

ii.    That the claimant performed long enough to learn how to do it?

iii.   That the claimant performed as substantial gainful:

1.     Based on earnings?

2.     Based on value of the services where the person is not a bona fide employee?

b.     Does the past relevant work require more than the residual functional capacity?

5.   Can the person perform other work:

a.     Considering age;

b.     Considering education;

c.     Considering work experience (transferable skills);

d.     Does the work exist in significant numbers?

Some representatives fail to do their job at steps 4.a and 5. Those issues involve numbers and representatives are math phobic. According to the Dictionary of Occupational Titles, working as a lawyer (and any representative doing legal work should be held to that standard) requires mathematics level 4. The DICOT defines math level 4:

ALGEBRA: Deal with system of real numbers; linear, quadratic, rational, exponential, logarithmic, angle and circular functions, and inverse functions: related algebraic solution of equations and inequalities: limits and continuity and probability and statistical inference. GEOMETRY: Deductive axiomatic geometry, plane and solid, and rectangular coordinates. SHOP MATH: Practical application of fractions, percentages, ratio and proportion, measurement, logarithms, practical algebra, geometric constructions, and essentials of trigonometry.

SkillTRAN states that math level 4 requires basic algebra. In the modern era, representative must understand and use statistics. That ability is embedded in math level 4 and more clearly required by math level 5. Representatives have at least a masters’ level education. Representatives have the education to do math levels 4 and 5.

A representative must cross-examine the vocational expert and challenge job numbers and methodology. Doing nothing is probably below the standard of care. Let’s look at the job numbers:

 

Occupation	JBP	ORS	OEWS	EP	SOEUQ
Sorter 521.687-086	2,370	<<3,639 <<3,666	8,210 SOC-NAICS	8,500 SOC-NAICS	5,481
Dowel Inspector 669.687-014	193		6,290 SOC-NAICS	6,500 SOC-NAICS	238
Film Touch Up Insp. 726.684-050	1,067		35,230 SOC-NAICS	33,900 SOC-NAICS	2,800
Final Assembler 713.687-018	71	<350 <366	3,790 SOC-NAICS	4,800 SOC-NAICS	74

 

We quickly discover that sorter and inspector in reside in the same SOC, inspectors, testers, sorters, samplers, and weighers 51-9061. Final assembler is a production workers, all other (SOC 51-9199) occupation. Neither JBP nor the SOEUQ identify many jobs, certainly not the number offered by Dunleavy. My guess is that Dunleavy used an old version of the OEQ and was completely oblivious to the fact that he identified 51-9061 occupations twice with the second unclear if it was dowel or film touch up inspector.

What does a representative need?

1.   Job Browser Pro or OASYS from SkillTRAN.

2.   OccuCollect to get an ORS based number using the Employment Projections (OOH) or OEWS job numbers.

3.   OEQ and SOEUQ.

Why? Because vocational experts use SkillTRAN, the ORS with the OOH or OEWS gross job numbers, and/or the OEQ/SOEUQ from US Publishing. If we don’t have ready access to SkillTRAN, OccuCollect, AND US Publishing data to cross-examine the witness on the fly, right there, right now, we will let the vocational witness steal from the client and rob the representative of fees.

Disjointed complaining is not sufficient.

1.   What is your methodology?

2.   Is your testimony consistent with:

a.   Job Browser Pro/OASYS?

b.   ORS using OEWS/EP?

c.    OEQ and for sedentary occupations SOEUQ?

3.   Is your testimony an accepted methodology in the community of vocational experts?

a.   Is your methodology unique to you?

While we ask those six questions, we pull up the source identified in question 1 or the three subparts of question 2. Then we read the data to the judge. We submit the data to the judge after the hearing. We used to drive back to the office. Now we use commute time to submit rebuttal briefs. Dunleavy’s testimony is typical of lazy witnesses that give the ALJ what the witness thinks the ALJ wants to hear. We must expose the lack of rational foundation for that testimony.

Don’t let Cain be the bane or your experience.

  ___________________________

Suggested Citation:

Lawrence Rohlfing, Forfeiture of Step Five Vocational Issues -- Don't, California Social Security Attorney (August 11, 2025, revised August 15, 2025) 

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

 

Past Relevant Work -- Obrien v. Bisignano

 The Ninth Circuit published its opinion in Obrien v. Bisignano on July 1, 2025. This is a step four past relevant work claim. Obrien arose under the 15-year paradigm. Obrien has continued relevance under the 5-year rules for what is and is not relevant in comparing residual functional capacity (RFC) to past work. 20 CFR 404.1560, 404.1565 (2024). 

Obrien filed a claim for benefits and wound his way through the administrative process. Obrien's representative at the hearing and before the Appeals Council did not much. The court decision does not suggest the presence of a pre-hearing brief of a merits brief to the Appeals Council. The Commissioner smells blood and cries forfeiture on the question whether past work was relevant. 

The Commissioner did capitulate to error in finding sales representative outside of the RFC assessed. As to Obrien's past work as a telemarketer, the Commissioner argued that whether the work was performed within 15 years of the relevant date (date of decision for SSI or date last insured for DIB) or whether the earnings exceeded the threshold amount for substantial gainful activity was forfeited. 

The Commissioner raised the issue in the opposition portion of the joint submission to the district court. Obrien's attorney responded on the merits but not directly to the forfeiture argument. On appeal, the Commissioner argued that Obrien forfeited the forfeiture issue. Five times in the decision Obrien characterizes the reply portion of the joint submission as optional. Nor did the district court treat Obrien's submissions as forfeiting the issue. Obrien further noted that the supplemental rules classify a reply as optional. No forfeiture of the forfeiture issue occurred. This holding has broad civil procedure applications on whether an issue is preserved on appeal. Where the reply is optional, a party does not have an obligation to respond to every argument made by the opposing party -- but clearly the party with the burden of proof or persuasion should address all issues. We will discuss that in a future blog post. 

The merits question asks whether Obrien forfeited the issue of the ALJ's classification of past work as relevant. The Court relies on Sims v. Apfel for the judicially created administrative issue exhaustion requirement. Sims rejected the holding of several circuits that an issue not raised to the Appeals Council was waived under judicial review. Shaibi v. Berryhill addressed and applied forfeiture of step five findings, challenges to vocational testimony must be raised to the ALJ or Appeals Council. Obrien further addressed Carr v. Saul for the non-forfeiture of appointments clause challenges. 

Applying Sims, Shaibi, and Carr, the court observed that the issue of the existence of past relevant work and the ability to perform past relevant work were squarely raised in the notice of hearing. The ALJ found the existence and ability to perform past relevant work but did not explain those findings. Those issues exist essentially or permanently in the step four requirements for past work, relevance, and the ability to perform described in the regulations. Obrien's contentions that one occupation exceeded his RFC and the others were either too long ago or not substantial gainful activity did not rest on any new evidence but on the record before the ALJ. Obrien then cautions that raising issues is still required where new evidence is submitted as in Shaibi and Meanel v Apfel. 

On the merits, Obrien considers whether work performed outside of the 15-year period. Obrien rejects the district court unadvocated position that 15 years is measured from the initial determination. The ALJ did not invoke the discretionary portion that generally 15 years is the measure. Therefore, any work performed outside of 15 years prior to the date last insured cannot meet the recency test of past relevant work. 

Obrien advocated that he worked from January to April 2009 and that his posted earnings should be averaged over four months. The Commissioner argued that because Obrien had called January to April 2009 three months, his earnings should be averaged over three months. The court noted that SSR 83-35 suggested averaging over calendar months worked. The court further observed that neither party relied on POMS DI 10505.015 suggesting that averaging must account for partial months of work activity. POMS states that months and earnings in partial months should not be used in calculating average earnings. The court found no basis in the record to allocate the earnings. The court further noted that it would not resolve the issue because even if Obrien worked 3.25 months, his earnings would fall below substantial gainful activity. The problem with the court's journey down the un-briefed rabbit hole is that POMS does not count fractions, it either includes the month and the earnings or it excludes both.  

Obrien ends the analysis with the duty to develop the record. Substantial evidence does not support the ALJ decision triggering the duty to develop. This holding represents a protentional restriction on the duty to develop theory. The duty to develop theory typically rests on a record that was underdeveloped but in that state supports a denial of benefits. 

As the coup de grace, footnote 8 ends the litigation over the application of five-year rule for past relevant work as applied to cases final before June 22, 2024. Obrien cites 89 Fed. Reg. 48138 (June 5, 2024). In none of the unpublished cases preceding Obrien did either the Commissioner or the Court cite the clear statement in that de facto amendment of the final rule amending 20 CFR secs. 404.1560, 404.1565). 

Obrien represents a win for claimants seeking review on the increasingly frequent resort to forfeiture, the civil procedure question of the role of the reply brief in transcript litigation, the duties of the ALJ to make findings in the five-step sequential evaluation process, and the need for articulated findings even when the issue is typically without controversy at the past relevant work issue at step four. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Past Relevant Work -- Obrien v. Bisignano, California Social Security Attorney (August 8, 2025) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

It Is the Percentage of the Day, Not the Hours of the Day that Matters

In a NOSSCR CLE and in hearings before SSA, I heard presenters, vocational witnesses, and ALJs express reliance on the hours of the day for sitting and standing (including walking) relying on the Occupational Requirements Survey. In Social Security disability hearings, reliance on hours in a day is a mistake.  

We use packers and packagers, hand (SOC 53-7064) as our example of the day. The ORS reports:

Occupational Requirements – sitting, standing (including walking)	2018	2023	2024
choice of sitting or standing is allowed	4.3	2.3	<0.5
choice of sitting or standing is not allowed	95.7	97.7	>99.5
Percent of Day standing is required (10th percentile)	90	90	100
Percent of Day standing is required (25th percentile)	100	100	100
Percent of Day standing is required (50th percentile - median)	100	100	100
Percent of Day standing is required (75th percentile)	100	100	100
Percent of Day standing is required (90th percentile)	100	100	100
Percent of Day standing is required, mean	95.5	95.9	98
hours of standing (10th percentile)	4	4	6
hours of standing (25th percentile)	5	5.88	6
hours of standing (50th percentile - median)	8	8	8
hours of standing (75th percentile)	8	8	8
hours of standing (90th percentile)	8	8	12

The amount of standing at the 10th and 25th percentiles falls within the generally used (and wrong) assumption that light and medium work require six hours of standing/walking during a workday. The question is whether those jobs are full-time work. Packers and packagers stand 90 to 100% of the workday at the 10th and 25th percentiles. How can that be? The jobs are part-time. If a job requires four to six hours of standing during the workday and that standing represents at least 90% of the workday, the person is not working and eight-hour workday. Algebraically:

                                Workday x 90% = 4 hours

Divide each side by 90%. 

                                Workday = 4 hours / 90%

                                Workday = 4.44 hours

The O*NET reports that all packers and packagers work at least a 40-hour workweek.  The ORS disagrees. In the special release dataset for "SVP 1-2 and 35-40 weekly hours - reference year 2023," the downloaded XLSX spreadsheet states that 58.2% of packers and packagers work 35-40 hours and requires a high school diploma or less; 44.4% of packers and packagers have no minimum education requirement. The ORS reports  that 18.2% of packers and packagers require a high school diploma and 70.3% have no minimum education requirement. How do we get from 88% and 70% down to 58% and 44%? Some of the jobs require more than 40 hours and some represent part-time work. 

SSR 96-8p is clear that full-time work satisfies the Commissioner's burden at step five - the existence of other work assuming the claimant's medical-vocational profile. (A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.). At step four, part-time work may matter. (The ability to work 8 hours a day for 5 days a week is not always required when evaluating an individual's ability to do past relevant work at step 4 of the sequential evaluation process. Part-time work that was substantial gainful activity, performed within the past 15 years, and lasted long enough for the person to learn to do it constitutes past relevant work, and an individual who retains the RFC to perform such work must be found not disabled.). 

Do not allow vocational witnesses to use "hours" as a substitute for "percentage of the day" when assessing the requirements of work. Part-time work does not count. 

That was not always the case. Prior to 2003, the regulations provided for a step-five finding of the ability to perform other work "on a full-time or reasonably regular part-time basis." 20 CFR 404.1562, 416.962 (2002). SSA deleted that language in 2003. 68 Fed. Reg. 51153 (Aug. 26, 2003). The notice explains:

However, in SSR 96-8p, we explain that at step 5 we consider only full-time work when we consider other work you are able to do. (See 61 FR 34474, 34475 (July 2, 1996).) 

The number of hours that includes consideration of part-time work is not probative at step five. The percentage of the day is the better measure of how much time a worker will spend sitting or standing/walking during a full-time workday. 

___________________________

Suggested Citation:

Lawrence Rohlfing, It Is the Percentage of the Day, Not the Hours of the Day that Matters, California Social Security Attorney (July 25, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.