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.