The Dangers and :Pitfalls of Forney Appeals -- Leon v. Berryhill

Forney v. Apfel makes clear that a prevailing plaintiff in a Social Security case may appeal the unfavorable parts of a remand order of the district court to expand the relief provided.  This could take the form in expanding the number of issues for consideration on remand or more likely in the Ninth Circuit to get the payment of benefits in federal court rather than waiting for the result from an ALJ on remand.

Forney appeals are dangerous.  Even absent a cross-appeal from the Commissioner, the parts of the district court decision subject to the appeal are up for grabs.  Such is the case with the decision in Leon v. Berryhill.  To understand the dangers and pitfalls, we start with the district court decision

Leon v Colvin, the district court held that improperly credited testimony must be credited as true.  The USDC remanded because it could not assess whether unscheduled breaks without absenteeism would require a finding of inability to engage in substantial gainful activity.  The court entered its order on the docket on December 18, 2014.  Leon files an appeal on the credit-as-true rule, wanting the payment of benefits rather than a straight remand to answer that question -- can a person engage in work with unscheduled breaks.

The Ninth Circuit held that a court could credit-as-true and remand.  But the court clarified that before the credit takes hold, the district court must determine whether other issues require further development.  That concept looks to conflicts, ambiguities, or gaps.  Leon lost the credit and now proceeds to the remand without it.  But the Ninth Circuit wasn't done yet -- it ordered a remand on an open record and limited Leon's cross-examination of agency consultants on the issue of fatigue.

It took 35 months for the Ninth Circuit to decide the appeal.  While SSA has problems, it doesn't take 35 months to hear and decide a remand from the district court.  Leon lost those 35 months and lost his credit-as-true fatigue testimony.  A Forney appeal in this case turned a winner on remand into a probable loser.  That is the danger and the pitfall of taking Forney appeals.

The Court Orders the Payment of Benefits and SSA Drags Its Feet

The court ordered the payment of benefits on a date in the past.  Six months later, the agency has failed to process the claim.  The claimant is prejudiced by the delay because SSI benefits are paid in installments.  POMS SI 02101.020 effectuating 7502 of the Deficit Reduction Act of 2005 (P.L. 109-171). 

If SSA does not initiate the payment of benefits within 21 days, file a motion in the court asking the court to issue an order to show cause why the Commissioner of SS should not be held in contempt.  The claimant is entitled to be paid. 

The claimant should take a copy of the memo and judgment to the congressperson's office and start an inquiry. 

The attorney should write to the District Office and to the Appeals Council Court Case Branch with the judgment and the memorandum demanding immediate processing.  

Remand for Further Proceedings in Esparza v. Colvin

The little trinkets of gold filter down in unpublished opinions.  Esparza v. Colvin provides insight into the court's thinking and assumptions that will prove dangerous.

Esparza remands for further proceedings because the ALJ did not give good reasons for rejecting the claimant's testimony or the opinions of the treating physician.  Pretty pedestrian stuff, the issues that permeate Social Security cases on a daily basis.  The federal courts decide those issues every day.

But a battle wages on in the Ninth Circuit over the remand versus pay issue.  The agency lawyers and the court have yet to address the elephant in the room -- the statute clearly permits the courts to find that the claimant deserves to be paid without a remand for further proceedings.  42 USC sec. 405(g) and (i).  More on that another day.

Esparza remands for further proceedings as a useful exercise to further develop the record.  Fair enough, the court has discretion under the statute and the cases tip the hat in that direction without giving fair account to the statute.  The next sentence has a bomb waiting to explode:

If she deems it appropriate, the ALJ should reopen the hearing to receive additional evidence.  

Whoa Nellie.  We just spent six pages analyzing how the ALJ abused her discretion in weighing evidence and now the court wants to inject another round of unfettered discretion into the process.  Bad politics.

 The closed remand also violates agency policy.  When the ALJ makes a decision on remand by the court,

The ALJ will generally decide the remanded issues through the date of the new hearing  decision, or in title II cases involving an expired date last insured, through the date of last insured status.

HALLEX I-2-8-18.  How will the ALJ adjudicate through the date of the new decision without taking new evidence of recent education, recent work attempts/activity, and medical treatment.

When the ALJ makes an unfavorable decision, the Appeals Council will get around to the request for review in about 18 months.  The district court will take at least another year to decide the case at that leve.  And the court of appeals, Betty hold the door because that level of review will take two years.  We know that because the Ninth Circuit case number is 13-16522.  The "13" -- that means the appellant filed a notice of appeal in 2013.  The District Court case number is 2:12-cv-00733-SPL.  The "12" -- that means that the claimant for benefits filed a complaint in that court in 2012.

The case is likely five years stale from the date of original ALJ decision.  Discretion to receive additional evidence is misguided if not simply wrong.  It is only palatable if the ALJ will just award benefits to a claimant that probably applied for disability in 2008 (my guess).  Thomas Alvarez Esparza has endured a probable seven-year wait and won't get a decision from SSA until mid- to late-2016.