Standards of Review and Federal Court Remedies

• Author: David Traver
• Pages: 56-139

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Chapter Two

Standards of Review and Federal Court

Remedies

§200 Introduction to the Weight of Evidence and Judicial Review

§201 Standards of Review

§201.1 Standards of Review at an ALJ Hearing

§201.1.1 Practice Tip

§201.2 Standards of Review at the Appeals Council

§201.3 Practice Tip

§201.4 Standards of Review in Federal Court

§201.5 42 U.S.C. § 405 (g) Sentence by Sentence

§202 Amount of Proof Required

§202.1 Preponderance of the Evidence

§202.2 Abuse of Discretion

§202.3 “Substantial Evidence”

§202.3.1 “Relevant Evidence”

§202.4 Federal Courts Are Not Rubber Stamps

§202.5 Guesses, Speculations, Common Sense and Ruminations Are Not Substantial Evidence

§203 “Legal Error”

§203.1 The “Harmless Error” Rule

§203.2 Practice Tip

§204 Sequential Evaluation and Burden of Proof

§204.1 Practice Tip

§204.2 SSA’s Legal Error Tactic in Federal Court

§204.3 Government’s Waiver, the Counterweight to Harmless Error

§204.4 Burden of Proof in Medical Improvement Cessation Cases

§205 Which Law Controls the Case?

§205.1 When Circuit Precedent Construes the Underlying Social Security Act

§205.2 When Circuit Precedent Is Consistent With SSA’s Regulations and Rulings

2-55 Standards of Review and Federal Court Remedies

§205.3 When Circuit Precedent Conflicts With the Regulations or Rulings

§20 5.4 SSR 06-03p and Conflicting Circuit Court Decisions Regarding Retroactive Application of the Ruling

§206 Post Hoc Rationalizations

§206.1 Practice Tip

§206.2 “New” Internal Agency Memoranda Related to Specific Litigation

§206.3 Practice Tip

§207 Nonadversarial Social Security Administrative Proceedings and the Commissioner’s Duty Fully and

Fairly to Develop the Record

§207.1 Duty to Develop the Record for Unrepresented Claimants

§207.2 Practice Tip: Standard Form Notice of “Right to Representation”

§207.3 Concluding Remarks About Review

§208 Administrative Finality and SSR 11-1p: Appeals to the Appeals Council Versus

New Applications

§208.1 “Dire Need” and “Critical” Cases

§208.2 SSR 11-1p Outlined

§208.3 SSA’s Informal Interpretations of SSR 11-1p

§208.4 New and Material Evidence to Support a New Application for the Same Title and

Benefit Types While an Appeal Is Pending at the Appeals Council

§208.5 Preserving an Application Date While the Case Is Pending at the Appeals Council

§208.6 “Unreviewable” Late Evidence to the Appeals Council May Be “Reviewable”

§209 Remedies

§209.1 Remedies From the Federal Courts

§209.2 The Varney II “Credit as True” Remedy

§209.3 Lay Evidence in the Varney II “Credit as True” Analysis

§209.3.1 Vasquez, the Ninth Circuit Credit-as-True Rule Under Fire

§209.4 The Non-Varney Remedy Analysis

§210 The Remedy of Equal Access to Justice Act—EAJA Fees and Costs

§210.1 The EAJA Standard

§210.2 “Substantial Justification” Under the EAJA

§210.3 When Is an Application Timely Filed Under the EAJA?

§210.3.1 Amending an EAJA Application

§210.4 When Does the Absence of a Judgment Become a Judgment?

§210.5 Who Is a Prevailing Party Under the EAJA?

§210.5.1 Practice Tip

§210.6 What Circumstances Make an Award “Unjust” Under the EAJA?

§210.7 “Bad Faith” EAJA Fees

§210.8 EAJA Fees and Special Factors

§210.9 Sample EAJA Motion — One Attorney — Work in District Court Only

§210.9.1 Sample EAJA Declaration — One Attorney — Work in District Court Only

§210.9.2 Sample EAJA Calculations

§210.10 EAJA Costs — Sample Motion and Brief Add-In

§210.11 Proof of Net Worth Below §2,000,000 and Assignment of the EAJA Fee

§210.12 Sample EAJA Motion — Two Attorneys — Work in District and Circuit Courts

§210.13 Non-EAJA Attorney’s Fees — 42 U.S.C. § 406 (b)

§210.14 Sample Brief — § 406 (b) and the Evolving Law Regarding Offset of Agency Fees

Social Security Disability Advocate’s Handbook 2-56

§211 EAJA Fees — Representative Registration for Debt Collection and Taxes

§212 Ratliff and Federal Interception of EAJA Fees

§212.1 Recovery From a Representative Payee, Such as in Child’s Case

§212.2 Practice Tip

§213 Mathews-Sheets v. Astrue: Proving Inflation Affects the Attorney

§213.1 Sample EAJA Brief Addressing Mathews-Sheets