The Chenery Doctrine in Federal Social Security Disability Appeals.

The Chenery doctrine is one of the most useful tools in federal social security appeals. Established in SEC v. Chenery Corp in 1947, the doctrine limits agency counsel and the federal courts from evaluating the merits of an appeal based on a rationale not contained in the record. As a result, it is valuable asset limiting opposing arguments during the appeal.

The Foundations of the Chenery doctrine.

In Chenery, the Supreme Court held that when presented an administrative agency decision, a reviewing court may only affirm the decision based on “the grounds invoked by the agency.” Thus, a reviewing court is “powerless to affirm” a decision by substituting its own rationale for the agency’s action. This is because relying on a post hoc rationale would “propel the court into the domain which Congress has set aside exclusively for the administrative agency.” The Circuit Courts have applied Chenery to establish a general rule that a reviewing court cannot affirm an administrative agency’s decision on grounds not considered by the agency. In turn, the Circuit Courts apply Chenery in considering decisions from Social Security ALJs. Therefore, when determining whether an ALJ’s decision is supported by substantial evidence, the reviewing court is limited to considering only the rationale supplied in the decision—not its own or those supplied by agency counsel.

Applying the Chenery doctrine in an appeal.

There are two ways to apply the Chenery doctrine in a federal social security disability appeal. First, it can be used to counter agency counsel’s attempts to justify the ALJ’s findings based on a justification not included in the decision. Second, it can be used to preemptively refocus the judge on the ALJ’s decision. The most effective use of the Chenery doctrine is to rebut agency counsel’s attempts to provide a post hoc rationale for the ALJ’s decision. Often, agency attorneys try to direct the reviewing court’s attention to an alternate justification for an ALJ’s decision. However, if the justification is not present in the ALJ’s decision—no matter how valid it may be—the reviewing court cannot rely on it to affirm the ALJ’s findings.

The obvious place to assert the Chenery doctrine in this situation is in the reply brief. Here, it serves as a stinging rebuttal telling the court that the agency’s position is not valid and cannot be considered. This is especially effective when agency counsel attempts to rationalize an ALJ’s decision by challenging a claimant’s credibility on grounds not identified by the ALJ. The second effective use of the Chenery doctrine occurs when you want to refocus the judge’s attention on your arguments and the relevant facts. The key is to remind the judge that his or her decision to affirm the ALJ’s decision must be based on the ALJ’s rationale. One technique is to point out the adverse facts, then assert Chenery as a reminder that unless mentioned by the ALJ, those bad facts are not relevant in considering whether to affirm the ALJ’s decision. This is especially important when addressing bad facts such as drug abuse, a criminal background, or allegations of malingering.

The best place to assert this is near the end of the initial brief. This puts the judge in the proper frame of mind before reading the agency’s response brief. It alerts the judge to look out for post hoc rationalizations provided by agency counsel and to be mindful that the ALJ’s decision must be supported by the ALJ’s own findings. Always be on the lookout for opportunities to employ Chenery in federal appeals. It can mean the difference for your clients.

[1] 332 U.S. 194 (1947).

[2] Id. at 196.

[3] Id.

[4] Id.

[5] See Ecology Ctr., Inc. v . U.S. Forest Serv., 451 F.3d 1183, 1195 (10th Cir. 2006).

[6] See e.g. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001).

[7] See Healtheast Bethesda Lutheran Hosp. and Rehab. Ctr. v. Shalala, 164 F.3d 415, 418 (8th Cir. 1998); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006)(“In defending the administrative law judge’s decision on a ground that he himself did not mention, the government violates the Chenery principle.”).