Reaffirming the Limits on Waiving Exhaustion in Social Security Cases: Commentary on Shackleford v. Bisignano

I. Introduction

The Second Circuit’s summary order in Shackleford v. Bisignano, No. 24-2335 (2d Cir. Nov. 18, 2025) (summary order), offers a clear and thorough application of the judicial review framework for Social Security decisions under 42 U.S.C. § 405(g). Although the order is explicitly non-precedential under the court’s Local Rule 32.1.1, it is citable and serves as a highly instructive illustration of:

• The final decision requirement under § 405(g);
• The distinction between jurisdictional presentment and waivable exhaustion as clarified in Smith v. Berryhill, 587 U.S. 471 (2019);
• The narrow circumstances in which courts will excuse exhaustion in Social Security cases, following the three-factor test in Abbey v. Sullivan, 978 F.2d 37 (2d Cir. 1992); and
• The constraints on appellate consideration of new issues raised for the first time on appeal, particularly by pro se claimants.

The plaintiff–appellant, Dave D. Shackleford, appeared pro se and challenged the denial of his claims for benefits under both Title II (Disability Insurance Benefits) and Title XVI (Supplemental Security Income) of the Social Security Act. The defendant–appellee is Frank J. Bisignano, Commissioner of Social Security, substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2).

The essence of the dispute is procedural rather than substantive: the court is not reviewing whether Mr. Shackleford is disabled under the Act. Instead, it addresses whether he came to federal court too early, before the Social Security Administration (“SSA”) had issued a final, judicially reviewable decision, and whether any recognized doctrine allowed the courts to waive or excuse the normal exhaustion requirement.

The decision reinforces that, absent very specific and demanding circumstances, federal courts will not entertain a Social Security benefits suit while Appeals Council review is still pending—and that generalized allegations of unfairness, stress, or agency delay are not enough to excuse exhaustion.

II. Procedural Background and Key Issues

A. Procedural Posture

The relevant procedural steps can be summarized as follows:

1. Administrative proceedings: Mr. Shackleford pursued claims for benefits under Title II and Title XVI. An Administrative Law Judge (“ALJ”) issued an unfavorable decision—that is, a denial of benefits.
2. Appeals Council exceptions pending: Rather than ending the process there, Shackleford filed exceptions with the SSA’s Appeals Council challenging the ALJ’s decision. When he then filed suit in federal district court, those exceptions were still pending; the Appeals Council had not issued any decision or dismissal.
3. District court litigation: Shackleford filed a civil action under 42 U.S.C. § 405(g) in the District of Connecticut, seeking judicial review of the denial and asking the court to calculate his benefits under both Titles II and XVI.
   • The Commissioner moved to dismiss or, alternatively, for summary judgment, arguing that there was no “final decision” because the Appeals Council had not yet acted.
   • The district court (Shea, J.) granted summary judgment to the Commissioner, holding that Shackleford failed to exhaust administrative remedies and that there was no basis to waive exhaustion. See Dave S. v. O’Malley, 24-cv-718 (MPS), 2024 WL 3718344 (D. Conn. Aug. 7, 2024).
4. Appeal to the Second Circuit: Shackleford appealed, raising arguments about exhaustion, alleged unfairness and bias in the SSA process, and additional new discrimination-related contentions not presented below. He also filed various motions in the court of appeals (for records, transcripts, default judgment, and “judicial prejudice”).

B. Central Legal Questions

The Second Circuit’s analysis is structured around two core questions:

1. Exhaustion / Final Decision: Did the district court correctly determine that, because Shackleford’s case was still pending at the Appeals Council, there was no “final decision” under § 405(g) and thus he had not completed the required administrative process?
2. Judicial Waiver of Exhaustion: Even if administrative remedies were not exhausted, did Shackleford satisfy the Second Circuit’s strict criteria for judicial waiver of exhaustion (collateral nature of the claim, futility, and irreparable harm) such that the federal courts should nevertheless hear the case?

A related, but secondary, issue is the treatment of new arguments on appeal, particularly discrimination allegations that were not presented to the district court.

III. Summary of the Opinion

The Second Circuit, in a per curiam summary order by a panel of Judges Walker, Carney, and Nardini, affirmed the district court’s judgment in favor of the Commissioner. The key conclusions are:

• Exhaustion not complete: Shackleford had presented his claim to the SSA (satisfying the jurisdictional element under Smith v. Berryhill), but he had not yet obtained a final administrative decision because his exceptions before the Appeals Council remained pending. Thus, the “exhaustion” component of § 405(g)’s final-decision requirement was unsatisfied.
• No basis to waive exhaustion: Applying the longstanding three-part test from Abbey v. Sullivan, the court held:
  • The claim was not collateral to benefits; he was seeking precisely the benefits and calculations at issue in the administrative proceeding.
  • No futility was shown: his allegations of unfairness (such as his former counsel having referred to him as “Isis” and his belief that the agency misled him about his case) did not demonstrate actual bias or a foregone conclusion at the agency.
  • No irreparable harm was demonstrated: while he alleged medical problems and physical and financial stress, he did not show the type of ongoing or threatened deterioration of health that the Second Circuit has previously recognized as irreparable harm.
• New issues on appeal are rejected: The court declined to consider new discrimination allegations raised for the first time in the court of appeals, citing the rule in Green v. Dep’t of Educ. of City of N.Y. that appellate courts generally do not entertain arguments not raised below.
• Pro se status respected but not outcome-determinative: The court reiterated that it liberally construes pro se briefs under McLeod v. Jewish Guild for the Blind, but such liberal construction does not change the exhaustion rules or standards for waiver.
• Ancillary motions denied: In light of its resolution of the appeal, the court denied Shackleford’s motions for reconsideration of the denial of records and transcripts and for default judgment and “judicial prejudice.”
• Practical clarification about next steps: The Commissioner conceded that if Shackleford withdraws his pending exceptions in writing, he may then obtain judicial review of the ALJ decision in district court. If he does not withdraw, the Appeals Council will resume its consideration of his exceptions now that this appeal has concluded.

IV. Detailed Analysis

A. The Statutory Framework: § 405(g), Presentment, and Exhaustion

Judicial review of Social Security determinations is governed by 42 U.S.C. § 405(g), which authorizes federal district courts to review:

“any final decision of the Commissioner of Social Security made after a hearing.”

The Supreme Court in Smith v. Berryhill, 587 U.S. 471 (2019), explained that this “final decision” requirement has two distinct components:

1. Presentment (jurisdictional): The claimant must have presented a claim for benefits to the agency. This requirement is jurisdictional—courts cannot waive or alter it.
2. Exhaustion (waivable): The claimant must have exhausted the administrative remedies established by the SSA before seeking judicial review. This requirement, while mandatory, is not jurisdictional and may be waived by the agency or “excused” by courts under limited circumstances.

The Court in Smith further described the SSA’s modern four-step (sometimes characterized as five-step) administrative review process:

1. Initial determination (e.g., denial of benefits);
2. Reconsideration of the initial determination;
3. Hearing before an ALJ;
4. Review by the Appeals Council.

Only after that sequence is completed (or effectively concluded) does the Commissioner’s decision become “final” and subject to judicial review under § 405(g), unless some recognized principle justifies skipping the remaining steps.

In Shackleford, there is no dispute that:

• The presentment requirement was met—Shackleford plainly presented his claims to the SSA and received an ALJ decision; and
• The exhaustion requirement was not strictly met, because the Appeals Council had not yet acted on his exceptions when he filed in federal court.

Accordingly, the legal analysis centers on whether courts should excuse or waive the incomplete exhaustion.

B. Failure to Exhaust: Pending Appeals Council Review

The evidence before the district court—and recited by the Second Circuit—showed that:

• After an unfavorable ALJ decision, Shackleford filed exceptions (a means of asking the Appeals Council to review the ALJ’s decision).
• Those exceptions were still pending at the time he filed his district court action.
• The Commissioner submitted documentation of this fact, and Shackleford did not dispute it; indeed, he confirmed that the Appeals Council had not yet issued a decision.

Under the regulatory framework cited by the Second Circuit (20 C.F.R. § 416.1400), and under Smith’s articulation of the process, a claim is not “finally decided” for § 405(g) purposes while Appeals Council review is still ongoing.

Applying the summary judgment standard (reviewed de novo, Bey v. City of New York, 999 F.3d 157 (2d Cir. 2021)), the Second Circuit agreed with the district court that:

• There was no genuine dispute of material fact about the status of the administrative proceedings: the case was still at the Appeals Council.
• Under the governing law, this meant administrative remedies were not exhausted.

Thus, unless some exception applied—such as judicial waiver of exhaustion—the district court could not proceed to adjudicate the merits of the benefits denial.

C. Judicial Waiver of Exhaustion: Application of the Abbey Factors

Although the SSA itself may waive exhaustion requirements in some circumstances, the focus here is on whether the courts may excuse non-exhaustion. The Second Circuit applies a well-established three-factor test, originating in Abbey v. Sullivan, 978 F.2d 37 (2d Cir. 1992) and reaffirmed in Skubel v. Fuoroli, 113 F.3d 330 (2d Cir. 1997):

1. Whether the claim is collateral to a demand for benefits;
2. Whether exhaustion would be futile;
3. Whether claimants would suffer irreparable harm if required to exhaust.

The Second Circuit analyzed each factor and found none supported waiver in Shackleford’s case.

1. Collateral vs. Benefits Claim

The “collateral” factor asks whether the plaintiff is:

• Challenging only the procedures or legality of an agency policy, or raising constitutional or other structural claims; or
• Simply attempting to accelerate judicial review of the substantive entitlement to benefits (e.g., the amount or entitlement determination itself).

In Pavano v. Shalala, 95 F.3d 147 (2d Cir. 1996), the Second Circuit explained that claims are not collateral when “the plaintiff is challenging the lawfulness of the denial [of benefits], and not seeking relief other than that sought in the administrative proceeding.”

Applying Pavano, the Shackleford panel held that the first factor weighed against waiver:

• Shackleford’s complaint was not collateral to his benefits demand.
• He was directly seeking judicial review of the ALJ’s denial and asking the court to calculate his benefits under Titles II and XVI.
• He did not seek distinct relief (e.g., a declaration of the invalidity of an agency policy, or purely procedural reforms) that would exist regardless of whether he personally received benefits.

Because the complaint focused on the merits of entitlement and the amount of benefits, this factor gave the court little justification to bypass SSA’s exhaustion framework.

2. Futility

The second factor examines whether requiring further administrative steps would be futile, either because:

• The agency or its decisionmakers are biased; or
• The agency has already uniformly or definitively decided the issue such that further internal review would be pointless.

The panel relied on Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019), which states that exhaustion may be unnecessary “where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue.”

Here, Shackleford argued futility primarily on fairness grounds:

• His former counsel allegedly referred to him as “Isis” in a filing (a term that could be understood as referencing a terrorist organization, and thus potentially stigmatizing); and
• He contended that the agency had given him false or misleading information about the status of his case.

The court acknowledged these allegations but found they did not demonstrate futility:

• There was no evidence that SSA decisionmakers (e.g., the ALJ, Appeals Council, or other agency adjudicators) were biased or partial against him.
• He pointed to no concrete statement or action by SSA adjudicators indicating that the outcome was predetermined or that the Appeals Council would not fairly consider his case.

Thus, the court concluded that the futility factor also did not support waiving exhaustion.

3. Irreparable Harm

The third factor asks whether the claimant will suffer harm that is both:

• Serious (e.g., threatening life, health, or other interests that cannot be adequately remedied by later relief); and
• Irreparable (harm that cannot be undone or compensated by a later award of benefits or money damages).

The Second Circuit has previously recognized significant health-related harm as potentially irreparable. In Abbey v. Sullivan, 978 F.2d at 46, the court noted that “if the delay attending exhaustion would subject claimants to deteriorating health, because the Secretary has altogether denied them benefits, then waiver may be appropriate.” Similarly, in State of New York v. Sullivan, 906 F.2d 910, 918 (2d Cir. 1990), the court found “a colorable claim of irreparable harm” where denial of benefits “potentially subjected claimants to deteriorating health.”

In Shackleford, the claimant alleged:

• Difficult medical issues;
• Physical and financial stress.

However, the court held that these allegations did not rise to the level previously recognized as sufficient:

• He did not allege concrete evidence of deteriorating health attributable to the delay in receiving benefits.
• While financial and physical stress is serious, the court has historically demanded a more specific and compelling showing—such as new or worsening medical conditions that cannot be adequately remedied later—for irreparable harm to justify skipping exhaustion.

Therefore, the irreparable harm factor also did not support waiver.

4. Overall Assessment of the Waiver Test

Having found all three Abbey factors unsatisfied:

• Not collateral;
• No futility shown;
• No irreparable harm shown;

the Second Circuit agreed with the district court that the case did not qualify for judicial waiver of the exhaustion requirement.

This analysis reflects a consistently strict application of the Social Security exhaustion doctrine: courts will waive exhaustion only in rare cases involving collateral, systemic, or constitutional challenges, clear futility, or demonstrable and substantial irreparable harm.

D. Treatment of Pro Se Status and New Claims on Appeal

Two procedural doctrines shape how the Second Circuit treated Shackleford’s briefing and additional allegations.

1. Liberal Construction of Pro Se Filings

Citing McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam), the court reiterated that filings by pro se litigants must be:

“liberally construed, reading such submissions to raise the strongest arguments they suggest.”

The panel accordingly reviewed his submissions with a generous eye, ensuring that technical defects in how arguments were framed did not prevent consideration of any reasonably arguable claims that could be discerned in his papers.

However, liberal construction does not override jurisdictional or structural requirements. Even when broadly reading his submissions, the court could not conjure:

• Evidence that exhaustion had actually occurred; or
• Specific facts sufficient to satisfy the Abbey test for waiver (especially for futility and irreparable harm).

2. New Issues Raised for the First Time on Appeal

On appeal, Shackleford raised “various new allegations of discrimination,” including that he had filed a civil rights complaint with SSA that was dismissed. The panel invoked the longstanding principle, reaffirmed in Green v. Dep’t of Educ. of City of N.Y., 16 F.4th 1070, 1078 (2d Cir. 2021) (per curiam):

“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”

Accordingly, the court declined to consider those new discrimination-related theories because they had not been raised and developed in the district court.

This underscores a critical practical point: even pro se litigants must raise their key legal and factual contentions in the district court if they wish to preserve them for appellate review.

E. Ancillary Motions in the Court of Appeals

Shackleford also filed additional motions in the Second Circuit, including:

• A motion for reconsideration of the court’s earlier denial of his request for copies of medical records and administrative transcripts;
• A motion for default judgment;
• A motion alleging “judicial prejudice”.

The panel summarily denied these motions “in light of [its] resolution of this appeal.” That is, once the court determined:

• That exhaustion was incomplete; and
• That no basis existed for judicial waiver;

there was no occasion to proceed to a review of the merits or to consider sanctions or other extraordinary relief.

F. The Commissioner’s Concession Regarding Future Judicial Review

Notably, the opinion records an important concession by the Commissioner:

• If Shackleford withdraws his pending exceptions to the Appeals Council in writing, he could then seek judicial review of the ALJ’s decision in district court under § 405(g).
• If he instead maintains his exceptions, the Commissioner’s counsel represented at oral argument that, following the conclusion of this appeal, the Appeals Council will resume consideration of his pending exceptions.

This highlights a practical strategic choice available to claimants:

• They may either complete the administrative process (awaiting Appeals Council action), or
• In some situations, request to withdraw that last layer of review to convert the ALJ’s decision into a “final decision” for § 405(g) purposes—thereby allowing district court review sooner, but at the cost of forfeiting a level of internal SSA review.

The opinion does not treat this as a categorical rule for every case, but it memorializes the Commissioner’s position and clarifies a pathway forward for this specific claimant (and, by implication, others similarly situated).

V. Precedents and Authorities Cited

Although a summary order, the panel draws on a series of significant precedents that structure Social Security judicial review and appellate procedure.

A. Smith v. Berryhill, 587 U.S. 471 (2019)

The Supreme Court’s decision in Smith is foundational to the Shackleford panel’s understanding of § 405(g). The key contributions of Smith are:

• Clarifying that “final decision” under § 405(g) has two elements:
  • Jurisdictional presentment;
  • Waivable exhaustion of administrative remedies.
• Reiterating the four-step SSA review process that claimants must ordinarily follow before obtaining judicial review.

While Smith also addressed whether a particular type of Appeals Council dismissal could itself be a “final decision,” the critical takeaway for Shackleford is the distinction between:

• A requirement that courts cannot waive (presentment); and
• One that they may waive or excuse (exhaustion) under strict conditions.

B. Abbey v. Sullivan, 978 F.2d 37 (2d Cir. 1992), and Skubel v. Fuoroli, 113 F.3d 330 (2d Cir. 1997)

Abbey is the Second Circuit’s leading case on judicial waiver of exhaustion in the Social Security context. It introduced the three-part test, which Skubel later reaffirmed:

1. Collateral nature;
2. Futility;
3. Irreparable harm.

Abbey also discussed scenarios in which deteriorating health due to denied benefits can constitute irreparable harm. Skubel applied and refined the doctrine in a Medicaid context but within the broader health-benefits administrative law framework.

In Shackleford, these cases supply the analytical structure for deciding whether courts may excuse non-exhaustion and are applied in a straightforward, relatively strict manner.

C. Pavano v. Shalala, 95 F.3d 147 (2d Cir. 1996)

Pavano underscores that a claim is not “collateral” if the plaintiff is simply:

“challenging the lawfulness of the denial [of benefits], and not seeking relief other than that sought in the administrative proceeding.”

The Shackleford court quotes and applies this principle to characterize Shackleford’s claim as non-collateral, because he is seeking the same relief (benefits and their calculation) that is the core subject of the administrative process.

D. Washington v. Barr, 925 F.3d 109 (2d Cir. 2019)

Although not a Social Security case, Washington provides a general statement about futility in administrative law:

Exhaustion “may be unnecessary where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue.”

This standard is invoked in Shackleford to evaluate whether the SSA’s conduct—or the alleged “Isis” reference and supposed misinformation—suggested that the Appeals Council process was hopelessly biased or preordained. The court found that no such showing was made.

E. State of New York v. Sullivan, 906 F.2d 910 (2d Cir. 1990)

Sullivan is cited for its recognition that denial of benefits leading to “deteriorating health” can support a “colorable claim of irreparable harm.” It provides a benchmark for the type and magnitude of harm required to justify waiving exhaustion.

In contrast, Shackleford’s allegations—while serious—did not allege comparable deteriorating physical health resulting directly from delayed or denied benefits.

F. Summary Judgment and Procedural Standards: Bey, Green, and McLeod

• Bey v. City of New York, 999 F.3d 157 (2d Cir. 2021) Provides the standard of review for summary judgment:
  • De novo review;
  • Evidence construed in the light most favorable to the non-moving party;
  • Summary judgment appropriate only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.
• Green v. Dep’t of Educ. of City of N.Y., 16 F.4th 1070 (2d Cir. 2021) Reaffirms that the court of appeals will not consider issues raised for the first time on appeal, absent exceptional circumstances. This doctrine bars appellate reliance on new discrimination arguments Shackleford advanced only at the appellate stage.
• McLeod v. Jewish Guild for the Blind, 864 F.3d 154 (2d Cir. 2017) Articulates the obligation to liberally construe pro se submissions, reading them to raise the strongest arguments they suggest. Shackleford reflects this principle but simultaneously demonstrates its limits when statutory exhaustion requirements are at issue.

VI. Complex Concepts Simplified

Several legal terms and concepts embedded in the opinion can be easily misunderstood without some unpacking. The following explanations aim to make them accessible.

A. “Summary Order” and Non-Precedential Status

The opinion begins with a standard Second Circuit disclaimer:

• Summary orders are non-precedential—they do not bind future panels in the same way as published opinions.
• However, under Federal Rule of Appellate Procedure 32.1 and Local Rule 32.1.1, they may be cited (with proper notation, such as “summary order”) and have persuasive value.

So, while Shackleford does not formally “establish” new binding law for the circuit, it provides a clear example of how existing doctrine is applied to facts like these.

B. “Pro Se” Litigant

A pro se litigant is a person who represents himself or herself in court, without an attorney. Courts give such litigants some procedural leeway:

• Their filings are read liberally and interpreted to raise the strongest arguments they fairly suggest.
• Nevertheless, they remain bound by basic jurisdictional and procedural rules, including filing deadlines, exhaustion requirements, and the need to raise issues at the appropriate time and forum.

C. Administrative Law Judge (ALJ) and Appeals Council

In SSA cases, the ALJ is an in-house judge who conducts hearings, takes testimony, and issues decisions about eligibility for benefits. The Appeals Council is a higher-level review body within SSA that:

• Considers requests to review ALJ decisions;
• May affirm, reverse, modify, or remand ALJ decisions; or
• May dismiss the requests in certain circumstances.

The Appeals Council is generally the final level of administrative review before a claimant may seek judicial review under § 405(g).

D. Presentment vs. Exhaustion

Under § 405(g) as interpreted by Smith v. Berryhill:

• Presentment: The claimant must have made a claim to SSA (e.g., applied for benefits). This is a strict, non-waivable prerequisite for any judicial review.
• Exhaustion: The claimant must have gone through all required internal SSA review steps. This is usually mandatory but can, in rare circumstances, be waived by SSA or excused by the courts using the Abbey factors.

E. Collateral Claims

A claim is “collateral” if it is:

• Not seeking immediate payment of benefits, but instead challenges the legality or constitutionality of procedures, rules, or policies; and
• Would remain relevant even if the individual plaintiff’s benefits dispute were resolved.

For example, a class action alleging that SSA’s hearing procedures systematically violate due process might be collateral. By contrast, asking the court to overturn the denial of benefits and calculate the proper amount is typically not collateral.

F. Futility

“Futility” in this context means that further administrative review would be pointless because:

• The agency is not open to changing its position (e.g., it has a rigid national policy it has no authority or intent to alter); or
• Agency decisionmakers are biased or have so firmly committed to a particular result that review is meaningless.

Mere dissatisfaction with past handling of a case or belief that “the agency won’t listen” is not typically enough.

G. Irreparable Harm

“Irreparable harm” means harm that cannot be adequately remedied by later relief. In this context, examples might include:

• Serious and imminent health deterioration due to lack of medical care that depends on benefits;
• Life-threatening circumstances;
• Harm that no amount of back pay or later benefits could fix.

By contrast, financial hardship—even severe—can be insufficient unless tied to a clear and compelling risk to health or life that cannot be remedied later.

H. Summary Judgment

A court may grant summary judgment when:

• There is no genuine dispute over any fact that would affect the outcome of the case; and
• The moving party (here, the Commissioner) is entitled to judgment as a matter of law.

The appellate court reviews such decisions de novo, examining the evidence in the light most favorable to the non-moving party (here, Shackleford).

VII. Impact and Broader Significance

Even though Shackleford v. Bisignano is a non-precedential summary order, it is instructive in several respects for Social Security practice, administrative law, and access to courts for pro se litigants.

A. Reinforcement of Strict Exhaustion Requirements

The decision underscores that the Second Circuit continues to apply Social Security exhaustion rules strictly:

• Filing suit in district court while Appeals Council review is pending will almost always be premature absent unusual circumstances.
• Courts will carefully distinguish between:
  • Presentment, which is jurisdictional, and
  • Exhaustion, which is mandatory but waivable.

This clarity is especially important for pro se claimants—many of whom may understandably believe that, after receiving an ALJ denial, they are entitled to rush straight to federal court. Shackleford reminds them that SSA must ordinarily be allowed to finish its internal review first.

B. Narrow Path for Judicial Waiver of Exhaustion

By applying the Abbey factors to reject waiver, the decision confirms:

• Courts will excuse exhaustion in rare and compelling circumstances—especially where:
  • The claim is clearly collateral to benefits;
  • There is strong evidence of futility (e.g., entrenched agency bias or fixed policy); or
  • There is a concrete, demonstrated risk of irreparable harm like serious health deterioration.
• General complaints about agency delay, poor communication, or hardship, while important and humanly significant, will usually not be enough.

For lawyers and advocates, this reinforces the need to:

• Develop a strong, fact-specific record on irreparable harm (especially medical evidence), if they intend to argue for waiver; and
• Frame claims carefully if they are truly collateral (e.g., constitutional challenges to SSA procedures) rather than simply disputes about individual entitlement.

C. Guidance on Options When Appeals Council Review Drags On

The Commissioner’s concession about withdrawing pending exceptions to reach a final ALJ decision highlights a practical strategic option:

• Claimants may, in some cases, choose to:
  • Withdraw Appeals Council review, making the ALJ decision final; and then
  • File suit in district court under § 405(g).
• Alternatively, they may:
  • Allow the Appeals Council process to run its course, obtaining a decision that might be more favorable or at least fully exhaust administrative remedies.

This choice involves a tradeoff:

• Withdrawing exceptions may accelerate judicial review but sacrifices a level of internal agency review.
• Waiting for the Appeals Council might lead to relief without litigation, but prolongs administrative delay.

Shackleford serves as a reminder to practitioners to discuss this strategic posture with clients, balancing speed, likelihood of success, and resource constraints.

D. Lessons for Pro Se Litigation

For pro se litigants, the decision conveys several important lessons:

• Raise all key issues in the district court:
  • Appellate courts generally will not consider new arguments raised for the first time on appeal.
• Understand the SSA review process:
  • The ALJ decision is not necessarily final if the Appeals Council is still considering the case.
• Pro se status does not relax jurisdictional rules:
  • Even though courts generously interpret pro se filings, they cannot disregard statutory requirements like exhaustion or the final decision requirement.

E. Stability and Predictability in Social Security Administrative Law

Finally, from a systemic perspective, the decision reflects—and reinforces—an important balance:

• Respect for agency expertise:
  • SSA is given the first and primary role in fact-finding and application of the technical disability standards.
• Judicial oversight within statutory bounds:
  • Courts ensure that claimants have a route to review once the agency issues a final decision, while refraining from premature intervention absent strong reasons.

By adhering closely to statutory and precedential frameworks, the Second Circuit contributes to the predictability and coherence of Social Security judicial review—even in the context of a non-precedential summary order.

VIII. Conclusion

Shackleford v. Bisignano is, in formal terms, a straightforward affirmance of summary judgment on the ground of failure to exhaust administrative remedies. But as a practical and doctrinal matter, it illuminates several key principles governing Social Security litigation in federal court:

• The final decision requirement under 42 U.S.C. § 405(g) has real bite: if Appeals Council review is still pending, federal courts will ordinarily lack a reviewable decision.
• The courts’ power to waive exhaustion is narrow and carefully cabined by the Abbey factors of collateral claims, futility, and irreparable harm.
• Generalized claims of unfairness or hardship, without concrete evidence of bias or deteriorating health, will not suffice to bypass SSA’s internal process.
• Pro se litigants are entitled to liberal construction of their filings, but not exemption from fundamental jurisdictional and procedural constraints.
• The decision records an important practical path forward: a claimant may, in appropriate circumstances, withdraw Appeals Council exceptions to obtain a judicially reviewable ALJ decision.

In the broader legal landscape, Shackleford reinforces the centrality of exhaustion in Social Security cases and confirms that the Second Circuit remains committed to the structured, stepwise process the statute and regulations envision. It serves as a functional guide for claimants, attorneys, and courts navigating the complex intersection of administrative process and judicial review in the Social Security context.