Christopher Obrien v. Frank Bisignano

                     FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

CHRISTOPHER A. OBRIEN,                              No. 22-55360

                 Plaintiff-Appellant,            D.C. No. 8:20-cv-
                                                    01356-AS
    v.

FRANK BISIGNANO, Commissioner                         OPINION
of Social Security,

                 Defendant-Appellee.

         Appeal from the United States District Court
            for the Central District of California
          Alka Sagar, Magistrate Judge, Presiding

              Argued and Submitted May 2, 2024
                    Pasadena, California
                         Filed July 1, 2025
     Before: Jacqueline H. Nguyen, Daniel P. Collins, and
              Holly A. Thomas, Circuit Judges. ∗
                    Opinion by Judge Collins
∗
  This case was originally argued and submitted to a panel consisting of
Judges Kleinfeld, Watford, and Collins. After Judge Watford resigned
from the court and Judge Kleinfeld became unavailable, Judges Nguyen
and H.A. Thomas were drawn to replace them pursuant to General Order
3.2(h), the submission to the prior panel was vacated, and the case was
reargued and resubmitted.
2                       OBRIEN V. BISIGNANO


                          SUMMARY **


                         Social Security

   The panel reversed the district court’s judgment
upholding the denial by a Social Security Administration
(SSA) administrative law judge (ALJ) of Christopher
Obrien’s claim for disability insurance benefits and
supplemental security income under Titles II and XVI of the
Social Security Act.
    The ALJ denied the applications on the basis that Obrien
had the residual functional capacity to perform his past
relevant work as a telemarketer and sales representative and
therefore was not disabled. Obrien challenged the ALJ’s
decision in the district court, arguing in part that his prior
work as a telemarketer was either too far in the past, or too
insubstantial, to count as “past relevant work.” The
Commissioner of Social Security conceded below and in this
court that substantial evidence did not support the ALJ’s
finding that Obrien could perform his past work as a sales
representative. The district court upheld the denial of
benefits, finding that Obrien’s objections to the ALJ’s
determination regarding his past relevant work as a
telemarketer were both forfeited and meritless.
    The panel first rejected the Commissioner’s argument
that Obrien had forfeited in the district court any objections
to the Commissioner’s administrative forfeiture arguments
by failing to respond to them in his optional reply. The panel
next rejected the Commissioner’s argument that Obrien

**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     OBRIEN V. BISIGNANO                   3


administratively forfeited his objections to the ALJ’s past
relevant work determination by failing to specifically raise
the objections before the ALJ. The issue of whether
Obrien’s past telemarketing work constituted “past relevant
work” under the applicable regulations was inherent in the
five-step disability evaluation process that the ALJ was
required to follow in determining whether Obrien was
disabled within the meaning of the Act. Given that SSA ALJ
hearings are “informal, nonadversarial proceedings,” and
ALJs are required to “look fully into the issues themselves”
before rendering a decision on the disability determination,
Obrien had no further responsibility to specifically flag the
issue before the ALJ. Therefore, no administrative issue-
exhaustion requirement precluded the panel’s consideration
of Obrien’s arguments on the merits.
    On the merits, the panel held that substantial evidence
did not support the ALJ’s determination that Obrien’s work
as a telemarketer in 2003 and 2009 counted as “past relevant
work” under the applicable regulations. First, there was no
basis to conclude that Obrien’s 2003 telemarketing work was
“done within the past 15 years,” as required by the
regulations. Second, as to Obrien’s 2009 telemarketing
work, there were critical ambiguities in the evidence
pertaining to his average monthly wages over the relevant
timeframe, which triggered the ALJ’s duty to develop the
record further. Where, as here, additional development of
the record by the ALJ is required to permit an adequate
determination, the ALJ’s decision is not supported by
substantial evidence and must be remanded for further
proceedings.
4                    OBRIEN V. BISIGNANO


                        COUNSEL

Lawrence D. Rohlfing (argued), Law Offices of Lawrence
D. Rohlfing, Santa Fe Springs, California, for Plaintiff-
Appellant.
Shea L. Bond (argued), Special Assistant United States
Attorney, San Francisco, California; Matthew W. Pile,
Associate General Counsel; Office of the General Counsel,
Office of Program Litigation, Social Security
Administration; E. Martin Estrada, United States Attorney;
for Defendant-Appellee.



                        OPINION

COLLINS, Circuit Judge:

    Christopher Obrien appeals the district court’s decision
upholding the denial of his claim for disability insurance
benefits and supplemental security income by an
administrative law judge (“ALJ”) of the Social Security
Administration (“SSA”). Obrien contends that, in several
respects, the ALJ’s decision was not supported by
substantial evidence when measured against the regulatory
standards that the ALJ was required to apply and that he
recited in his decision. The district court upheld the ALJ’s
decision, ruling that (1) Obrien had forfeited his objections
by failing to specifically raise them before the ALJ; and
(2) in any event, Obrien’s objections were meritless. We
conclude that the district court erred on both counts, and we
therefore reverse the district court’s judgment and remand
with instructions to remand the matter back to the agency for
further proceedings.
                        OBRIEN V. BISIGNANO                         5


                                  I
    In September 2016, Obrien applied for disability
insurance benefits under Title II of the Social Security Act
(“the Act”), alleging that he suffered from various medical
conditions that, starting on August 21, 2010, rendered him
disabled within the meaning of the Act. In connection with
his application, Obrien provided certain required
information concerning his work history. In particular, he
stated that he had performed telemarketing work in 2003 and
2009 and that he had worked as a door-to-door salesperson
in 2013 and 2014.
    The SSA denied Obrien’s claim for benefits, and Obrien
timely requested reconsideration by an ALJ. Shortly
thereafter, Obrien also filed an application for supplemental
security income under Title XVI of the Act, and that
application was concurrently considered by the ALJ. At the
hearing before the ALJ concerning the applications, both
Obrien and a vocational expert testified. During the
vocational expert’s testimony, the ALJ posed a hypothetical
question that asked the expert to assume that Obrien had the
“residual functional capacity” to perform certain specified
tasks, and the ALJ asked the expert whether, in light of that
assumption, Obrien would be able to perform his past work
as a telemarketer. The vocational expert answered that, on
that assumption, Obrien would be able to perform that past
work.
    After the hearing, the ALJ issued a written decision in
November 2019 determining that, although Obrien had a
number of severe impairments, he was not disabled within
the meaning of Title II or Title XVI of the Act. 1 The ALJ
1
  The ALJ applied “the familiar ‘five-step sequential evaluation
process’” for determining disability under Title II and Title XVI. See
6                          OBRIEN V. BISIGNANO


concluded that, despite his impairments, Obrien had a
residual functional capacity that matched what the ALJ had
described in the above-referenced hypothetical question to
the vocational expert. The ALJ further concluded that, in
light of that residual functional capacity, Obrien was able to
perform his “past relevant work” as a telemarketer and as a
sales representative. See 

(a)(4)(iv)
(stating that, if the claimant can still perform “past relevant
work” in light of his “residual functional capacity,” he is
“not disabled” under Title II); 

 § 416.920(a)(4)(iv) (same
for Title XVI); see also 

(d)(2)(A) (stating
that a claimant must be “unable to do his previous work” to
be disabled for purposes of Title II disability insurance
benefits); 

 § 416(i)(1) (applying a similar definition to
Title II generally); id. § 1382c(a)(3)(B) (applying a similar
definition to Title XVI). Obrien sought review from the

Woods v. Kijakazi, 

, 787 n.1 (9th Cir. 2022) (citation
omitted). We have described that process as follows:
     At the first step, a claimant “doing substantial gainful
     [work] activity” is not disabled. At the second step, a
     claimant is not disabled unless she has a “medically
     determinable physical or mental impairment” or
     combination of impairments that is severe and either lasts
     at least a year or can be expected to result in death. At the
     third step, a claimant is disabled if the severity of her
     impairments meets or equals one of various impairments
     listed by the Commissioner of Social Security. At the
     fourth step, a claimant is not disabled if her residual
     functional capacity allows her to perform her past relevant
     work. At the fifth step, a claimant is disabled if, given her
     residual functional capacity, age, education, and work
     experience, she cannot make an adjustment to other work
     that “exists in significant numbers in the national
     economy.”

 (alteration in original) (citations omitted).
                         OBRIEN V. BISIGNANO                            7


Social Security Appeals Council, and in doing so, he did not
submit any new evidence or arguments. The Appeals
Council denied Obrien’s request for review, making the
ALJ’s order the final decision of the Commissioner. See
Wischmann v. Kijakazi, 

 (9th Cir. 2023).
    Obrien then timely filed this action against the
Commissioner in the district court pursuant to § 205(g) and
§ 1631(c)(3) of the Act. See 

(g) (providing
for civil cause of action against the Commissioner for denial
of benefits under Title II); 

 § 1383(c)(3) (stating that final
benefits decisions under Title XVI are subject to judicial
review under § 205(g) of the Act, 

(g)).
Under the magistrate judge’s standard order prescribing the
special procedures applicable in social security cases, 2 the
parties were required to prepare and file a single joint
document that contained Obrien’s arguments challenging
the Commissioner’s decision, the Commissioner’s response,
and Obrien’s “optional reply.”
    As relevant here, Obrien’s opening portion of the joint
submission raised only two issues: (1) whether the ALJ
properly determined that he “could perform past work as a
sales representative”; and (2) whether the ALJ properly
determined that he “had past relevant work as a telephone
solicitor/telemarketer.” 3 With respect to the first issue, the
Commissioner agreed with Obrien’s contention that
substantial evidence did not support the ALJ’s determination
that Obrien could perform his past work as a sales

2
 Both sides consented to proceed before a magistrate judge pursuant to

(c).
3
  Obrien also argued that “the ALJ and Appeals Council acted under an
unconstitutional delegation of authority,” but the district court rejected
that contention, and Obrien has not challenged that ruling on appeal.
8                     OBRIEN V. BISIGNANO


representative. As to the second issue, Obrien argued that
his prior work as a telemarketer was either too far in the past,
or too insubstantial, to count as “past relevant work” within
the meaning of the applicable regulations. In response, the
Commissioner contended that Obrien had forfeited his
current objections concerning his telemarketer work by
failing to raise them before the ALJ and that, in any event,
Obrien’s objections were meritless. The Commissioner
asserted that, based on the ALJ’s valid finding that Obrien
could perform his past relevant work as a telemarketer, the
ultimate determination that Obrien was not disabled could
be upheld notwithstanding the ALJ’s erroneous reliance on
Obrien’s prior work as a sales representative.
    The district court upheld the ALJ’s denial of benefits,
agreeing with the Commissioner that Obrien’s objections to
the ALJ’s finding concerning his prior work as a
telemarketer were both forfeited and meritless. Obrien has
timely appealed.
    We have jurisdiction pursuant to 

. “We
review the district court’s order affirming the ALJ’s denial
of social security benefits de novo,” Tommasetti v. Astrue,

 (9th Cir. 2008), meaning that we review
the ALJ’s decision through the same lens as the district court
did, see Tidwell v. Apfel, 

 (9th Cir. 1998).
We review questions of law de novo. See Avenetti v.
Barnhart, 

 (9th Cir. 2006). In the
absence of legal error, we “will disturb the denial of benefits
only if the [ALJ’s] decision . . . ‘is not supported by
substantial evidence.’” Tommasetti, 

(citation omitted). Substantial evidence “means only[] ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Biestek v. Berryhill, 587
                      OBRIEN V. BISIGNANO                     

, 103 (2019) (quoting Consolidated Edison Co. v.
NLRB, 

 (1938)).
                              II
    Obrien argues that the district court erred in its threshold
determination that, by failing to argue in the administrative
proceedings that his prior telemarketing work did not meet
the regulatory requirements for “past relevant work,” Obrien
forfeited any such arguments and could not raise them in the
district court. We conclude that no forfeiture occurred.
                               A
    Before we address the administrative forfeiture
argument accepted by the district court, we first address the
Commissioner’s threshold contention that Obrien committed
an additional forfeiture in the district court. According to
the Commissioner, after the issue of administrative forfeiture
was raised in the Commissioner’s response to Obrien’s
opening arguments in the district court, Obrien was required
to address that administrative forfeiture issue in his reply,
and his asserted failure to do so constitutes a forfeiture of
any objections to the Commissioner’s administrative
forfeiture arguments. For multiple reasons, this contention
fails.
     As an initial matter, the Commissioner is wrong in
contending that the district court found any such additional
forfeiture by Obrien. According to the Commissioner, the
“District Court correctly observed” that Obrien “never
contested in his [district court] briefing that he had
forfeited/waived” his telemarketer-work arguments by
failing to raise them before the ALJ. No record citation was
supplied for this assertion, which is inaccurate. The district
court never stated that Obrien had forfeited any objection to
10                      OBRIEN V. BISIGNANO


the Commissioner’s administrative forfeiture arguments by
assertedly failing to respond to them in his optional reply in
the district court. Nor did the district court, in accepting the
Commissioner’s administrative forfeiture arguments, rely on
the ground that those arguments were unopposed. On the
contrary, the district court explained in detail why it agreed
with the Commissioner’s administrative forfeiture
arguments on the merits, and that purely substantive ruling
is alone sufficient to allow Obrien to then challenge that
ruling in his opening brief on appeal (as he has done). See
JL Beverage Co. v. Jim Beam Brands Co., 

 (9th Cir. 2016) (holding that, where the district court
does not rely on waiver or forfeiture, but instead considers
and rules on the merits of the assertedly forfeited issue, “it is
not waived on appeal”). 4
    In any event, the Commissioner’s argument that Obrien
committed an additional forfeiture in the district court is
factually and legally erroneous. Although Obrien’s reply in
the district court did not specifically mention the
Commissioner’s administrative forfeiture arguments, that
reply staked out a view of the district court’s role that was
fundamentally inconsistent with the Commissioner’s
position. Specifically, Obrien argued in his reply that the
district court’s role was to “sit[] in quasi-appellate
jurisdiction”; that the court therefore was obligated to review
the ALJ’s decision “for substantial evidence and error of
4
  The Commissioner also notes that the district court stated that Obrien
had not provided any basis for the court “to find a manifest injustice”
that could excuse his administrative forfeiture. Obrien may thereby have
forfeited in the district court any arguments that, if he committed an
administrative forfeiture, a “manifest injustice” exception to that
forfeiture rule should be applied. But any such more limited forfeiture
is irrelevant, because Obrien has not argued for a “manifest injustice”
exception in his briefing on appeal.
                         OBRIEN V. BISIGNANO                          11


law”; and that this role required the court to “test the explicit
factual findings made” by the ALJ against “the elements of
past relevant work as required by the regulation.” If the
court performed that role, Obrien argued, the court would
see that, when measured against the regulatory standard, the
ALJ’s findings were “wanting.” Obrien’s reply thus
necessarily rested on the premise that the district court was
in all events required to weigh the ALJ’s findings against the
applicable legal standard. The Commissioner’s assertion
that Obrien wholly failed to oppose the Commissioner’s
administrative forfeiture arguments is thus factually
erroneous.
    The Commissioner’s argument is also legally flawed. A
forfeiture occurs when a party fails “to make the timely
assertion of a right” in accordance with the governing
procedural requirements that are set forth in the applicable
statutes, rules, orders, or case authority. United States v.
Olano, 

 (1993); see also Brown v. Arizona,

 (9th Cir. 2023) (en banc) (“[I]t is claims
that are deemed waived or forfeited, not arguments.”
(citation omitted)). Here, the Commissioner has not pointed
to any relevant procedural requirement mandating that
Obrien had to expressly reply to the Commissioner’s
responsive contentions concerning administrative forfeiture.
The district court’s governing procedural order afforded
Obrien an “optional reply,” 5 which means, of course, that a


5
  We also note, parenthetically, that under the new national rules that
took effect after the district court proceedings, reply briefs in social
security cases are likewise optional. See FED. R. CIV. P., SUPP. R. 8 FOR
SOC. SEC. ACTIONS UNDER 

(g) (stating that, in the
parties’ merits briefing concerning the agency decision, “[t]he plaintiff
may file a reply brief”).
12                       OBRIEN V. BISIGNANO


reply was not required and that no forfeiture can be attached
to a partial or total “failure” to file one. 6
   For all of these reasons, we reject the Commissioner’s
argument that the issue of administrative forfeiture is not
properly before us.
                                    B
    We therefore turn to whether the district court correctly
held that Obrien forfeited his current challenges to the ALJ’s
ruling by failing specifically to raise those objections before
the ALJ. In considering that issue, we begin by examining
the Supreme Court’s most recent decisions addressing the
extent to which a claimant seeking disability benefits is
required to exhaust issues during the administrative process.
                                    1
    In Sims v. Apfel, 

 (2000), the Court
considered whether a claimant seeking disability-related
benefits under Titles II and XVI of the Act forfeited judicial
review of any objections that the claimant failed to raise in
her request for administrative review of the ALJ’s decision
by the Social Security Appeals Council. 

 at 105–06.
Because a forfeiture occurs only when there is a failure to
6
  We note, however, that even where there is, strictly speaking, no
procedural default or forfeiture, a party’s failure in a reply brief to
respond to a particular argument raised in an opponent’s answering
briefing may nonetheless be construed as an abandonment of certain
arguments or claims. See, e.g., Sabra v. Maricopa Cnty. Cmty. Coll.
Dist., 

, 881–82 (9th Cir. 2022) (holding that a plaintiff-
appellant’s failure to respond, in a reply brief, to the answering brief’s
claim-specific arguments for dismissal of one particular cause of action
against one defendant amounted to an “abandonment” of that particular
claim). Here, there is no basis for concluding that Obrien’s district court
reply “abandoned” any particular claim or argument in favor of his
remaining points.
                      OBRIEN V. BISIGNANO                    13


comply with a procedural requirement concerning the
presentation of issues or objections, the Court focused on
whether there was any such requirement to raise specific
issues before the Appeals Council. See 

 at 107–10.
    The Court in Sims observed that “requirements of
administrative issue exhaustion are largely creatures of
statute,” although the Court also noted that it is “common for
an agency’s regulations to require issue exhaustion in
administrative appeals.” 

 at 107–08 (emphasis added).
Neither source, however, supported imposition of an issue-
exhaustion requirement in Sims. Although the SSA’s
regulations made clear that requesting review by the Appeals
Council was generally required in order for a claimant to
obtain a judicially reviewable final decision, 

 at 106–07,
there was no applicable statute or regulation that further
“require[d] issue exhaustion,” id. at 108 (emphasis added).
The only remaining question, then, was whether case
authority recognized or supported the judicial imposition of
“an issue-exhaustion requirement even in the absence of a
statute or regulation.” Id. at 108.
     Because the predicate for any such “judicially imposed
issue-exhaustion requirement is an analogy to the rule that
appellate courts will not consider arguments not raised
before trial courts,” the Court held that “the desirability of a
court imposing a requirement of issue exhaustion depends
on the degree to which the analogy to normal adversarial
litigation applies in a particular administrative proceeding.”
Sims, 530 U.S. at 108–09. Thus, “[w]here the parties are
expected to develop the issues in an adversarial
administrative proceeding, . . . the rationale for requiring
issue exhaustion is at its greatest.” Id. at 110. But “[w]here,
by contrast, an administrative proceeding is not adversarial,
14                   OBRIEN V. BISIGNANO


. . . the reasons for a court to require issue exhaustion are
much weaker.” Id.
    Applying that principle, a plurality of the Court noted
that, as a general matter, “Social Security proceedings are
inquisitorial rather than adversarial.” Sims, 530 U.S. at 110–
11. As the plurality explained, “[i]t is the ALJ’s duty to
investigate the facts and develop the arguments both for and
against granting benefits, and the Council’s review is
similarly broad.” Id. at 111 (citation omitted). Moreover,
“[t]he Commissioner has no representative before the ALJ
to oppose the claim for benefits,” and the Court “found no
indication that he opposes claimants before the Council.” Id.
The plurality further observed that the agency’s regulations
expressly state that the agency will “conduct[] the
administrative review process in an informal, nonadversary
manner,” id. (quoting 

(b) (1999)), and
that this informality was reflected in the short standard form
that the Appeals Council provides for requesting review, 

at 111–12. Because there is no “adversarial development of
issues by the parties” and “[t]he Council, not the claimant,
has primary responsibility for identifying and developing the
issues,” the plurality concluded that the “analogy to judicial
proceedings is at its weakest in this area.” 

. The
plurality therefore declined to impose “a judicially created
issue-exhaustion requirement” and held that “[c]laimants
who exhaust administrative remedies need not also exhaust
issues in a request for review by the Appeals Council in
order to preserve judicial review of those issues.” 

(emphasis added).
    Justice O’Connor concurred in part and in the judgment.
In her view, “the regulation[s] and procedures of the
[agency] affirmatively suggest that specific issues need not
be raised before the Appeals Council,” and that made it
                     OBRIEN V. BISIGNANO                   15


“particularly inappropriate” to impose any additional
judicially created requirement that specific issues must be
raised before the Appeals Council. 

 at 113–14 (O’Connor,
J., concurring) (emphasis added).
    The Court in Sims explicitly left open, however, whether
claimants must also “exhaust issues before the ALJ” in order
to preserve them for judicial review. Sims, 

(majority opinion) (emphasis added); see also Shaibi v.
Berryhill, 

 (9th Cir. 2017) (noting that
“Sims concerned only whether a claimant must present all
relevant issues to the Appeals Council to preserve them for
judicial review”). The Court subsequently considered such
a question in Carr v. Saul, 

 (2021).
    In Carr, several claimants, some of whom had been
represented by attorneys during their administrative
proceedings, filed actions in the relevant district courts
challenging the agency’s denial of disability benefits. 

; see also Brief for the Respondent, Carr v. Saul (No. 19-
1442), 

, at *7. In those district court
proceedings, the claimants invoked a recent Supreme Court
decision in challenging, for the first time, the
constitutionality of the appointments of the SSA ALJs who
had denied their claims for benefits. See Carr, 593 U.S. at
86–87 (noting that the claimants relied on Lucia v. SEC, 

 (2018), which held that “ALJs within the Securities
and     Exchange       Commission     (SEC)     had      been
unconstitutionally appointed” in violation of the
Appointments Clause). The question in Carr was whether
the claimants had “forfeited their Appointments Clause
challenges by failing to make them first to their respective
ALJs.” Id. at 85.
16                    OBRIEN V. BISIGNANO


    The Court’s analysis of that issue started with “the
baseline set by Sims.” Carr, 

. Under Sims,
the Court explained, the question whether a judicially
fashioned exhaustion requirement should be recognized
turns on the extent to which “the parties are expected to
develop the issues in an adversarial administrative
proceeding,” as opposed to an informal, nonadversarial
proceeding in which the agency has a primary role in
framing the issues and developing the record. 

 (quoting
Sims, 

). On that score, the Court noted that
“[m]uch of what the Sims opinions said about Appeals
Council review applies equally to ALJ proceedings.” Id. at
90.     “The SSA regulations that ensure informal,
nonadversarial proceedings and plenary review apply as
much to ALJs as to the Appeals Council,” the Court held,
inasmuch as those regulations “provide that ALJs will
‘loo[k] fully into the issues’ themselves, [20 C.F.R.]
§ 404.944, and may ‘raise a new issue’ at ‘any time . . .
before mailing notice of the hearing decision,’ [id.]
§ 404.946(b)(1).” Id. at 91. The Court also stated, however,
that there were “several differences that may make ALJ
hearings relatively more adversarial.” Id. In particular,
“ALJ hearings are typically available as a matter of right”;
such hearings “present far more opportunities for claimants
to press issues, and the SSA consequently relies more
heavily on those proceedings to conduct the agency’s
principal and most thorough investigation of disability
claims”; and the “notice of hearing” that the SSA sends to
claimants lists “the specific issues to be decided in the case,”
and “[c]laimants must notify the ALJ in writing if they object
to the issues to be decided at the hearing.” Id. at 91–92
(simplified). However, the Court concluded that, “[e]ven
accepting that ALJ proceedings may be comparatively more
                     OBRIEN V. BISIGNANO                   17


adversarial than Appeals Council proceedings, the question
nonetheless remains whether the ALJ proceedings at issue
here were adversarial enough to support the ‘analogy to
judicial proceedings’ that undergirds judicially created
issue-exhaustion requirements.” Id. at 92 (quoting Sims, 

).
    In answering that question, Carr held that, when the
generally nonadversarial nature of SSA proceedings was
considered in light of “two additional considerations”
applicable to “the specific context of [the claimants’]
Appointments Clause challenges,” the scales tipped
“decidedly against imposing an issue-exhaustion
requirement.” Carr, 

. “First, th[e] Court has
often observed that agency adjudications are generally ill
suited to address structural constitutional challenges, which
usually fall outside the adjudicators’ areas of technical
expertise.” 

 Second, given that ALJs are not “capable of
remedying any defects in their own appointments,” such
objections fell within the long-recognized “futility exception
to exhaustion requirements.” 

 at 93–94. The Court
therefore held that “[t]aken together, the inquisitorial
features of SSA ALJ proceedings, the constitutional
character of [the claimants’] claims, and the unavailability
of any remedy make clear that adversarial development of
the Appointments Clause issue simply did not exist (and
could not exist) in [the claimants’] ALJ proceedings.” 

 at
95–96 (simplified).
    The Court reserved, however, the question whether “the
scales might tip differently” in the context of “routine
objections to individual benefits determinations.” Carr, 

 n.5. Nonetheless, the Court also reiterated the
general rule that, “[w]here claimants are not expected to
18                       OBRIEN V. BISIGNANO


develop certain issues in ALJ proceedings, it is generally
inappropriate to treat those issues as forfeited.” 

 at 89 n.3.
                                   2
    In applying Carr’s standards for determining whether
“to impose a judicially created issue-exhaustion
requirement,” Carr, 

, 7 we must first identify
the relevant “issues” raised by Obrien and then determine
whether, notwithstanding the generally informal and
inquisitorial nature of ALJ proceedings, those issues are the
sort that claimants are “expected to develop” in those
proceedings, such that requiring issue exhaustion is
appropriate, 

 at 89 n.3.
    Obrien’s claim before the district court, and on appeal, is
that the record evidence did not support the ALJ’s
conclusion that Obrien’s prior telemarketing work met the
specific regulatory requirements to count as “past relevant
work.” Here, the ALJ’s ruling expressly recognized that, at
“step four” of the five-step disability analysis, see supra note
1, the ALJ was required to apply those regulatory
requirements, and he explained at some length what they
were:

         Next, the undersigned must determine at step
         four whether the claimant has the residual
         functional capacity to perform the
         requirements of his past relevant work (20
7
  The Commissioner does not contend that any statute or regulation
requires issue exhaustion here, and we are not aware of any such statute
or regulation either. In particular, the Commissioner has not argued that
the points raised by Obrien were not embraced within the SSA’s notice
of hearing in his case, which broadly framed the issues in terms of the
five-step evaluation process and the regulatory standards governing that
process. See Carr, 593 U.S. at 91–92.
                      OBRIEN V. BISIGNANO                    19


       CFR 404.1520(f) and 416.920(f)). The term
       past relevant work means work performed
       (either as the claimant actually performed it
       or as it is generally performed in the national
       economy) within the last 15 years or 15 years
       prior to the date that disability must be
       established. In addition, the work must have
       lasted long enough for the claimant to learn
       to do the job and have been SGA [“significant
       gainful activity”] (20 CFR 404.1560(b),
       404.1565, 416.960(b), and 416.965). If the
       claimant has the residual functional capacity
       to do his past relevant work, the claimant is
       not disabled. If the claimant is unable to do
       any past relevant work or does not have any
       past relevant work, the analysis proceeds to
       the fifth and last step.

Although the ALJ’s ruling does not set forth his reasoning as
to why he thought those standards were satisfied with respect
to Obrien’s telemarketing work, he clearly concluded that
they were, because he explicitly held that this telemarketing
work constituted “past relevant work.” Obrien’s contention
is thus that, when measured against the regulatory standards
that the ALJ himself recited and necessarily applied, the
ALJ’s conclusion that Obrien’s past telemarketing work
qualified as “past relevant work” was not supported by
substantial evidence.
    Viewing the question that way, we discern no basis for
imposing a judicially crafted requirement that Obrien was
“expected” to do more “to develop [this] issue[]” in order to
preserve it for judicial review in the district court. Carr, 

 n.3; see also 

 (“The critical feature that
20                   OBRIEN V. BISIGNANO


distinguishes adversarial proceedings from inquisitorial ones
is whether claimants bear the responsibility to develop issues
for adjudicators’ consideration.”). The question whether
Obrien’s telemarketing work constituted “past relevant
work” under the regulations was not some extraneous or
additional issue that, if not specifically called to the ALJ’s
attention, the ALJ would have no occasion to decide. On the
contrary, as the ALJ himself recognized, the issue inheres in
the five-step disability evaluation process that the ALJ was
required to follow in determining whether Obrien was
disabled within the meaning of the Act. Even granting that
the fundamentally inquisitorial ALJ proceedings used in
Social Security disability cases have some adversarial
aspects, see 

 at 90–92, this issue, which is inherent in the
five-step process, relates more to the inquisitorial aspects of
those proceedings, under which the SSA “assures claimants
that [it] ‘will consider at each step of the review process any
information you present as well as all the information in our
records,’” 

 (emphasis added) (quoting Sims, 

 (quoting 

(b) (1999))).
    Moreover—and importantly—the contentions that
Obrien raised in the district court did not involve the
presentation of new evidence or information that had not
been presented to the ALJ. Although “[t]he ALJ always has
a special duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered even when
the claimant is represented by counsel,” Celaya v. Halter,

 (9th Cir. 2003) (simplified), the
claimant nonetheless bears some measure of “responsibility
to develop” the evidence needed to support his or her claim
for benefits, 

. See 

(g) (stating that
the Commissioner may reject a claim based on the
claimant’s failure “to submit proof in conformity with any
                      OBRIEN V. BISIGNANO                    21


regulation prescribed” by the Commissioner); see also 

(stating that the matter may be remanded to the agency if
“there is new evidence which is material” and “there is good
cause for the failure to incorporate such evidence into the
record in a prior proceeding” (emphasis added)). Here,
however, Obrien did not seek to present any new evidence
in the district court. His argument was simply that, in light
of the applicable regulatory standards that the ALJ himself
stated he was applying, the determinations made by the ALJ
were not supported by substantial evidence.
    Given that SSA ALJ hearings are “informal,
nonadversarial proceedings,” and that ALJs are required to
“look fully into the issues themselves” before rendering a
decision on the disability determination, Carr, 

 (simplified) (quoting 

), an ALJ is to
be expected, without issue-specific prompting by the parties,
to make the predicate findings that are necessary under the
governing five-step disability evaluation process to support
the conclusions that the ALJ makes. Here, as the ALJ’s own
order recognized, he could not properly make any
determination, at step four, that Obrien was able to perform
his “past relevant work” as a telemarketer unless that
telemarketing work met the applicable legal standards to
qualify as “past relevant work.” The ALJ thus did not need
to be reminded by the claimant that, in order to render a
decision on that particular ground, the ALJ had to evaluate
whether the record evidence supported all of the findings
that were necessary for that determination under the
applicable legal standards. Accordingly, Obrien had no
further responsibility to specifically flag the issue before the
ALJ, and a judicially imposed issue-exhaustion requirement
with respect to that issue is unwarranted under Carr. It was
therefore open to Obrien to argue in the district court that, on
22                   OBRIEN V. BISIGNANO


this administrative record, there was no substantial evidence
to support a finding that his telemarketing work met the
regulatory requirements to count as “past relevant work.”
     In arguing for a contrary conclusion, the Commissioner
relies heavily on our previous statements that, “at least when
claimants are represented by counsel, they must raise all
issues and evidence at their administrative hearings in order
to preserve them on appeal.” Shaibi, 

(emphasis added) (quoting Meanel v. Apfel, 

 (9th Cir. 1999)). The Commissioner argues for a
strictly literal interpretation and application of this
statement, which would impose an across-the-board
judicially created issue-exhaustion requirement on “all
issues,” including the issue Obrien has sought to raise in the
district court and in this court. 

 (emphasis added). But
that sweeping reading of Shaibi and Meanel would be
directly contrary to the reasoning and result in Carr, which
squarely held that the “issue” sought to be raised there—
whether SSA ALJs are appointed in conformity with the
Appointments Clause—was properly raised in federal court
even though it had not been raised at the ALJ hearing. Carr,
593 U.S. at 95–96.
    The Commissioner alternatively argues that we should
construe Carr as narrowly applying only to “constitutional”
issues, so that all nonconstitutional issues would remain
subject to the Commissioner’s preferred bright-line issue-
exhaustion requirement.        Indeed, according to the
Commissioner, Carr is not “even persuasive, much less
controlling” with respect to the exhaustion question
presented here. Contrary to the Commissioner’s arguments,
we are not free to limit Carr to its specific facts while
rejecting, as not “persuasive,” the reasoning applied by the
Court. See Langere v. Verizon Wireless Servs., LLC, 983
                      OBRIEN V. BISIGNANO                    

 (9th Cir. 2020) (stating that our obligation
“to follow the controlling opinions of the Court” “extends to
the reasoning of Court decisions, too—not just their
holdings”). As relevant here, Carr’s reasoning is flatly
inconsistent with the Commissioner’s proposed categorical
approach to issue exhaustion, because Carr requires a more
nuanced assessment of whether an issue-exhaustion
requirement applies given the place of the underlying issue
in the context of the administrative proceedings. Moreover,
the fact that the Carr Court applied that controlling analysis
only in the context of a constitutional issue and reserved
judgment as to how that analysis might apply in other
contexts, see Carr, 

 & n.5, does not make that
analysis any less binding when lower courts subsequently
address such other contexts. Accordingly, even if the
Commissioner were correct in contending that Meanel and
Shaibi require counseled disability claimants to exhaust “all
issues . . . at their administrative hearings,” Shaibi, 

 (emphasis added) (quoting Meanel, 

), that bright-line rule did not survive Carr. See Miller
v. Gammie, 

, 899–900 (9th Cir. 2003) (en banc).
And for the reasons we have explained, an issue-exhaustion
requirement is unwarranted here under Carr’s standards.
    We emphasize, however, that our decision does not
create a converse rule that no issues need to be specifically
exhausted in ALJ proceedings before they may be raised in
federal court. Such a converse rule would likewise be
contrary to Carr.          Indeed, while we reject the
Commissioner’s overbroad and out-of-context reading of
Meanel and Shaibi as contrary to Carr, our analysis leaves
largely intact the actual reasoning and results of those two
cases. Both cases involved an effort to introduce new
evidence in the district court, and new issues that were based
24                   OBRIEN V. BISIGNANO


on that new evidence. See Shaibi, 883 F.3d at 1105–06,
1110 (addressing the claimant’s contentions that the
vocational expert’s job estimates were contradicted by
various government data sources that had not been presented
to the agency); Meanel, 

 (noting that the
claimant’s federal court challenge to the vocational expert’s
job numbers “relie[d] on new statistics that she admittedly
failed to raise at both her hearing before the ALJ and the
Appeals Council”). Applying an analysis that is consistent
with Carr’s holding that the “critical feature” in the issue-
exhaustion analysis is “whether claimants bear the
responsibility to develop issues for adjudicators’
consideration,” Carr, 

 (emphasis added),
Meanel and Shaibi held that the responsibility for presenting
such additional evidence concerning the vocational expert’s
job numbers rested with the claimants and their counsel. See
Shaibi, 

 (noting that the ALJ had no duty
under the statute, regulations, or caselaw to “sua sponte take
administrative notice” of the types of “economic data” the
claimant presented to the district court and that the Act
generally required “good cause” before a claimant could rely
on new evidence in court); Meanel, 

(emphasizing that the claimant “was represented by counsel
who knew that all relevant evidence should have been
brought to the ALJ’s attention” (emphasis added)).
Meanel’s and Shaibi’s reasoning and results are fully
consistent with Carr to the extent that they hold that
claimants generally may not present new evidence, and new
issues dependent on that evidence, that they failed to present
to the ALJ. Although those decisions thus remain fully
binding in that respect, see Miller, 335 F.3d at 899–900,
Obrien’s case does not involve any such failure to present
evidence, see supra at 20–21.
                          OBRIEN V. BISIGNANO                            25


    Because no administrative issue-exhaustion requirement
precludes our consideration of the merits of Obrien’s
substantive arguments, we will proceed to address those
arguments in the next section.
                                    III
    The ALJ’s determination that Obrien was not disabled
rested on his finding that Obrien could perform his “past
relevant work” as a “sales representative” and as a
“telephone solicitor” (i.e., telemarketer). The Commissioner
conceded below, and in this court, that substantial evidence
does not support the ALJ’s finding that Obrien could
perform his past work as a sales representative. Obrien
contends that the remaining basis for the ALJ’s decision also
fails, because his work as a telemarketer in 2003 and 2009
does not count as “past relevant work” within the meaning
of the applicable regulations.
    The applicable regulations under both Title II and Title
XVI contain an identical definition of “past relevant work,”
which is written (like most of the regulations governing the
disability determination process) as if the agency were
directly addressing the claimant: “Past relevant work is work
[1] that you have done within the past 15 years, [2] that was
substantial gainful activity, and [3] that lasted long enough
for you to learn to do it.” 

(b)(1),
416.960(b)(1) (2016). 8 Obrien contends that neither of his

8
  While this appeal was pending, the SSA amended the regulations under
both Title II and Title XVI to shorten the 15-year period to a five-year
period. See 

 (Apr. 18, 2024). However, by its terms,
this amendment applies only to “claims newly filed and pending
beginning on June 22, 2024.” 

 (June 5, 2024). All
further references to the regulations are therefore to the previous versions
applicable to this case.
26                       OBRIEN V. BISIGNANO


two instances of telemarketer work in 2003 and 2009
satisfies these regulatory requirements. We agree. 9
                                   A
   As to the 2003 telemarketing work, there is no basis to
conclude that it was “done within the past 15 years,” as
required by the regulations.
    The Title II regulations state that the 15-year period is
calculated backwards from “the time we are deciding
whether you are disabled (or when the disability insured
status requirement was last met, if earlier).” 

(a). Under Title XVI (which is not subject to the
same disability insurance status requirement), the relevant
time period runs simply from “the time we are deciding
whether you are disabled.” 

 § 416.965(a). In the district
court and in this court, both sides have agreed with the ALJ’s
conclusion that the last date on which Obrien met the
disability insured status requirement was September 30,
2019. In their district court briefing, both sides also agreed
that the relevant date of the agency’s disability determination
was the date of the ALJ’s decision, i.e., November 7, 2019.
    The district court nonetheless rejected the parties’
position on the latter point, instead holding that the relevant
date was when the agency initially denied benefits, which
was April 7, 2017. In support of its view, the district court
quoted, with added italics, Social Security Ruling (“SSR”)
82-62, which states that the “relevant 15-year period will be
determined” based on “the 15 years prior to the time of
adjudication at the initial, reconsideration or higher appellate
9
  Obrien contends that the record is not entirely clear as to whether the
ALJ relied on the 2003 telemarketer work or only on the 2009
telemarketer work. We need not resolve this issue, because we conclude
that the ALJ’s decision is flawed either way.
                     OBRIEN V. BISIGNANO                   27


level.” SSR 82-62, 

, at *2 (Jan. 1, 1982)
(emphasis added). Contrary to what the district court
thought, this quoted language squarely refutes its
conclusion. If, as the district court held, the relevant date
were always the initial decision date, there would have been
no reason for the SSR to also mention “adjudication” at the
“reconsideration or higher appellate level.” 

 The
alternative reference to all three possible dates in SSR 82-62
can only reasonably be understood as referring to whichever
date happens to be applicable in light of the particular
procedural history of the matter in the agency. Here, because
the Appeals Council denied review, the relevant
“adjudication” is the ALJ’s decision. See supra at 7. The
district court therefore erred in rejecting the parties’
agreement that the relevant date of the agency’s disability
determination was November 7, 2019.
    Because the last-insured date was September 30, 2019,
which is earlier than November 7, 2019, the 15-year period
for Title II purposes runs backwards from the former date.
For Title XVI purposes, the 15-year period instead runs from
November 7, 2019. Because 2003 is more than 15 years
before either date, Obrien’s 2003 telemarketing work is
plainly outside the respective 15-year periods applicable
under Title II and Title XVI. The Commissioner argues that
this does not matter, because the 15-year period is assertedly
only a guideline and, in appropriate cases, prior work that
occurred more than 15 years ago may still be considered.
But in reciting the applicable legal standards that he was
applying to Obrien’s case, the ALJ made no mention of any
such discretionary exception to the 15-year timeframe and
instead described that period as a bright-line requirement.
Because “[w]e review only the reasons provided by the ALJ
in the disability determination and may not affirm the ALJ
28                   OBRIEN V. BISIGNANO


on a ground upon which he did not rely,” Revels v. Berryhill,

 (9th Cir. 2017) (citing, inter alia, SEC v.
Chenery Corp., 

 (1943)), the Commissioner’s
reliance on such an asserted exception is unavailing.
    Accordingly, on this record, substantial evidence does
not support the ALJ’s determination that Obrien’s 2003
telemarketing work met the applicable regulatory
requirements to count as past relevant work.
                              B
    The only remaining question is whether Obrien’s 2009
telemarketing work meets the relevant regulatory
requirements. Although that work is well within the relevant
15-year time periods under the Title II and Title XVI
regulations, substantial evidence does not support the ALJ’s
conclusion that this work constituted “substantial gainful
activity.” 

(b)(1), 416.960(b)(1).
    In determining whether past work qualifies as
“substantial gainful activity” under the applicable
regulations, the “primary consideration” is “the earnings [the
claimant] derive[s] from the work activity.” 

(a)(1), 416.974(a)(1). Specifically, a particular
past employment will generally be considered “substantial
gainful activity” if the claimant’s average monthly wages
exceed a specified amount calculated in accordance with a
formula set forth in the regulations.                       

§§ 404.1574(b)(2)(ii)(B), 416.974(b)(2)(ii)(B). The details
of the formula are not important here, because both sides
agree that the applicable amount for 2009 produced by that
formula, which is listed on the agency’s website, is $980 per
month. See Substantial Gainful Activity, SOC. SEC. ADMIN.,
https://www.ssa.gov/oact/cola/sga.html
[https://perma.cc/NE63-X8T7].
                        OBRIEN V. BISIGNANO                         29


    The parties also agree that in 2009, Obrien’s total
earnings from his telemarketing work were $3,172.64.
However, given the specific evidence in the record as to the
portion of 2009 in which that work was performed, the
parties disagree as to what the proper denominator is for
determining Obrien’s average monthly earnings.             In
connection with his application, Obrien completed various
forms asking about his work history, and those forms asked
him to list only the “month” and “year” in which the relevant
employment started and ended, and not the specific days.
Accordingly, Obrien listed the timeframe of his
telemarketing work as “January 2009” through “April
2009.” 10 Obrien therefore argues that, in order to calculate
his average monthly earnings, his total earnings of $3,172.64
should be divided by four, which yields $793.16, well below
the $980-per-month requirement to find substantial gainful
activity. The Commissioner notes, however, that on one
form Obrien also provided an additional handwritten
narrative comment in which he stated that he “worked at the
job for 3 month [sic] and was terminated.”               The
Commissioner thus argues that the total earnings of
$3,172.64 should be divided by three, which yields
$1,057.55, thereby surpassing the requisite $980-per-month
threshold.
    Neither side has pointed to any agency regulation or
ruling that explicitly states how the average monthly salary
is to be calculated where, as here, the record suggests that
the claimant did not work the entirety of the four calendar
months listed. On the one hand, the fact that the agency’s

10
   Elsewhere on one of the forms, Obrien also stated that he “stop[ped]
working” on “06/05/2009.” However, neither side has contended that
this comment refers to Obrien’s telemarketing work, which all parties
agree was completed earlier in the year.
30                      OBRIEN V. BISIGNANO


own forms do not request any more granular detail than the
listing of the relevant calendar months arguably suggests that
the total earnings should simply be divided by the number of
calendar months listed. Under this view, if the agency
believed that it mattered whether the first or last months (or
both) were only partial months, it could and should have
requested that the timeframes be listed down to the exact day
or at least that they be listed by number of weeks. In
addition, the relevant SSR that both sides cite for general
guidance about short periods of employment tellingly uses
examples that break down the earnings by the total for each
calendar month, and no further. See SSR 83-35, 

, at *3–5 (Jan. 1, 1983). On the other hand, the SSA’s
Program Operations Manual System (“POMS”), which
“provides nonbinding guidance to SSA employees,” Cooper
v. Social Sec. Admin., 

 (9th Cir. 2025),
affirmatively indicates that the agency should account for “a
partial month of work activity,” Soc. Sec. Admin., POMS,
DI     10505.015,       Averaging     Countable      Earnings,
https://secure.ssa.gov/poms.nsf/lnx/0410505015 (May 22,
2020) [https://perma.cc/B8HF-G3LV]. But notably, the
manner in which that is to be done, according to the POMS,
is to identify, if possible, any partial months and then to
exclude them (and any earnings attributable to them) in
calculating the average, so as to ensure that the average is
calculated based only on apples-to-apples full months. See
POMS, DI 10505.015 (stating that such a partial month
constitutes a “significant change” in work patterns or
earnings, thereby requiring that it be treated separately under

.1574a). 11 Here, however, there is nothing
11
   Section 404.1574a provides, in relevant part, that “[i]f there is a
significant change in your work pattern or earnings during the period of
work requiring evaluation, we will average your earnings over each
separate period of work to determine if any of your work efforts were
                       OBRIEN V. BISIGNANO                        31


in the record about the specific portions of January and April
2009 in which Obrien performed his telemarketing work.
Nor is there any basis for allocating the total wages of
$3,172.64 among the four calendar months in which it was
performed.
    We need not resolve this issue about the proper method
for calculating average monthly income in the context of
partial months.     Even assuming arguendo that the
Commissioner is correct in arguing that calendar months
should be disregarded and that the total amount of wages
should simply be divided by the specific length of time in
which it was earned, the ALJ’s decision here still cannot be
sustained.
     On this record, there is no nonspeculative basis for
concluding that, in describing the length of time he worked
as a telemarketer as “three months,” Obrien’s handwritten
narrative meant to denote exactly three months as opposed
to approximately three months. And Obrien’s case is one
where such exactitude makes all the difference: if Obrien’s
actual length of employment was three months and one week
(i.e., 3.25 months), the relevant monthly average would be
$976.20, which is below the $980 threshold. Particularly
where the agency’s own forms do not request that
information about timing be supplied with a greater degree
of precision than at a monthly level, it seems unwarranted,
without some clarifying inquiry, to attach case-dispositive
weight to the lack of a greater level of granular detail.
   Moreover, there is a further indication that the relevant
timeframe is more complicated than the Commissioner
posits. Obrien described this work as having been performed

substantial gainful activity.” 

.1574a(c); see also 

§ 416.974a(c) (same for Title XVI).
32                   OBRIEN V. BISIGNANO


on a full-time 40-hours-a-week basis at $11 per hour, but if
he worked continuously at that pace, he would have earned
more than $3,172.64 in just over seven weeks (i.e., less than
two months). That strongly suggests that the telemarketing
work may have been performed intermittently over the
January–April timeframe, making it all the more difficult to
say which months involved partial work and to what extent.
Given these critical ambiguities in the evidence, this is a
paradigmatic case in which “the record is inadequate to
allow for proper evaluation of the evidence,” thereby
triggering the “ALJ’s duty to develop the record further.”
Ford v. Saul, 

 (9th Cir. 2020) (citation
omitted); see also Carr, 

 (noting that, in light
of the generally nonadversarial nature of SSA procedures,
the ALJ may sometimes have a “duty to investigate the facts
and develop the arguments” necessary to make an accurate
determination of eligibility for benefits). Where, as here,
additional development of the record by the ALJ is required
to permit an adequate determination, the ALJ’s decision is
not supported by substantial evidence and must be remanded
for further proceedings. See Smolen v. Chater, 

 (9th Cir. 1996).
                             IV
    For the foregoing reasons, we reverse the district court’s
judgment and remand the case to the district court with
instructions to remand to the agency for further proceedings
consistent with this opinion.
     REVERSED AND REMANDED.