SIMS v. APFEL, COMMISSIONER OF SOCIAL SECURITY

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103 OCTOBER TERM, 1999
Syllabus
SIMS v. APFEL, COMMISSIONER OF SOCIAL
SECURITY
certiorari to the united states court of appeals for
the fifth circuit
No. 98–9537. Argued March 28, 2000—Decided June 5, 2000
Petitioner applied for Social Security disability and Supplemental Security
Income benefits. After a state agency denied her claims, she obtained
a hearing before a Social Security Administrative Law Judge (ALJ),
who also denied her claims. Petitioner then requested review by the
Social Security Appeals Council, which denied review. She next filed
suit in the Federal District Court, contending that the ALJ erred in
three ways. The District Court rejected her contentions, and the Fifth
Circuit affirmed, concluding that it lacked jurisdiction over two of the
contentions because they were not included in petitioner’s request for
review by the Appeals Council.
Held: The judgment is reversed, and the case is remanded.
200 F. 3d 229, reversed and remanded.
Justice Thomas delivered the opinion of the Court with respect to
Parts I and II–A, concluding that Social Security claimants 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. Although administrative issue-exhaustion requirements
are largely creatures of statute, there is no contention that any statute
requires such exhaustion here. It is also common for an agency’s regu-
lations to require issue exhaustion in administrative appeals, but Social
Security Administration (SSA) regulations do not. This Court has re-
quired issue exhaustion even in the absence of a statute or regulation,
but the reason for doing so does not apply here. The desirability of a
judicially imposed issue-exhaustion requirement depends on the degree
to which the analogy to normal adversarial litigation applies in a par-
ticular administrative proceeding. See Hormel v. Helvering, 312 U. S.
552, 556. Where that proceeding is not adversarial, the reasons for a
court to require issue exhaustion are much weaker than where the par-
ties are expected to develop the issues themselves. Pp. 106–110.
Justice Thomas, joined by Justice Stevens, Justice Souter, and
Justice Ginsburg, concluded in Part II–B that the differences be-
tween courts and agencies are nowhere more pronounced than in Social
Security proceedings, which are inquisitorial rather than adversarial.
The ALJ’s duty is to investigate the facts and develop the arguments

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104 SIMS v. APFEL
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both for and against granting benefits, and the Council’s review is simi-
larly broad. The regulations expressly provide that the SSA conducts
the administrative review process in an informal, nonadversary manner.
As the Council, not the claimant, has primary responsibility for identify-
ing and developing the issues, the general issue-exhaustion rule makes
little sense in this context. Pp. 110–112.
Justice O’Connor concluded that the SSA’s failure to notify claim-
ants of an issue exhaustion requirement is a sufficient basis for holding
that such exhaustion is not required in this context. Requiring issue
exhaustion is inappropriate here, where the SSA’s regulations and pro-
cedures affirmatively suggest that specific issues need not be raised be-
fore the Appeals Council. Pp. 112–114.
Thomas, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I and II–A, in which Stevens,
O’Connor, Souter, and Ginsburg, JJ., joined, and an opinion with re-
spect to Part II–B, in which Stevens, Souter, and Ginsburg, JJ., joined.
O’Connor, J., filed an opinion concurring in part and concurring in the
judgment, post, p. 112. Breyer, J., filed a dissenting opinion, in which
Rehnquist, C. J., and Scalia and Kennedy, JJ., joined, post, p. 114.
Sarah H. Bohr argued the cause for petitioner. With her
on the briefs were Chantal J. Harrington, Gary R. Parvin,
and Jon C. Dubin.
Malcolm L. Stewart argued the cause for respondent.
With him on the brief were Solicitor General Waxman,
Acting Assistant Attorney General Ogden, Deputy So-
licitor General Kneedler, William Kanter, and Robert D.
Kamenshine.*
Justice Thomas announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
I and II–A, and an opinion with respect to Part II–B, in
which Justice Stevens, Justice Souter, and Justice
Ginsburg join.
A person whose claim for Social Security benefits is denied
by an administrative law judge (ALJ) must in most cases,
*Rochelle Bobroff, Michael Schuster, and Robert E. Rains filed a brief
for the American Association of Retired Persons et al. as amici curiae
urging reversal.

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Opinion of the Court
before seeking judicial review of that denial, request that
the Social Security Appeals Council review his claim. The
question is whether a claimant pursuing judicial review has
waived any issues that he did not include in that request.
We hold that he has not.
I
In 1994, petitioner Juatassa Sims filed applications for dis-
ability benefits under Title II of the Social Security Act, 49
Stat. 622, 42 U. S. C. § 401 et seq., and for supplemental secu-
rity income benefits under Title XVI of that Act, 86 Stat.
1465, 42 U. S. C. § 1381 et seq. She alleged disability from a
variety of ailments, including degenerative joint diseases and
carpal tunnel syndrome. After a state agency denied her
claims, she obtained a hearing before a Social Security ALJ.
See generally Heckler v. Day, 467 U. S. 104, 106–107 (1984)
(describing stages of review of claims for Social Security ben-
efits). The ALJ, in 1996, also denied her claims, concluding
that, although she did have some medical impairments, she
had not been and was not under a “disability,” as defined in
the Act. See 42 U. S. C. §§ 423(d) (1994 ed. and Supp. III)
and 1382c(a)(3) (1994 ed., Supp. III); Sullivan v. Zebley, 493
U. S. 521, 524–526 (1990).
Petitioner then requested that the Social Security Appeals
Council review her claims. A claimant may request such
review by completing a one-page form provided by the So-
cial Security Administration (SSA)—Form HA–520—or “by
any other writing specifically requesting review.” 20 CFR
§ 422.205(a) (1999). Petitioner, through counsel, chose the
latter option, submitting to the Council a letter arguing that
the ALJ had erred in several ways in analyzing the evidence.
The Council denied review.
Next, petitioner filed suit in the District Court for the
Northern District of Mississippi. She contended that (1) the
ALJ had made selective use of the record; (2) the questions
the ALJ had posed to a vocational expert to determine peti-
tioner’s ability to work were defective because they omitted

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several of petitioner’s ailments; and (3) in light of certain
peculiarities in the medical evidence, the ALJ should have
ordered a consultative examination. The District Court re-
jected all of these contentions. App. 74–84.
The Court of Appeals for the Fifth Circuit affirmed. 200
F. 3d 229 (1998). That court affirmed on the merits with
regard to petitioner’s first contention. With regard to the
second and third contentions, it concluded that, under its de-
cision in Paul v. Shalala, 29 F. 3d 208, 210 (1994), it lacked
jurisdiction because petitioner had not raised those conten-
tions in her request for review by the Appeals Council. We
granted certiorari, 528 U. S. 1018 (1999), to resolve a conflict
among the Courts of Appeals over whether a Social Security
claimant waives judicial review of an issue if he fails to ex-
haust that issue by presenting it to the Appeals Council in
his request for review. Compare Paul, supra, at 210; James
v. Chater, 96 F. 3d 1341, 1343–1344 (CA10 1996), with Har-
wood v. Apfel, 186 F. 3d 1039, 1042–1043 (CA8 1999); Johnson
v. Apfel, 189 F. 3d 561, 563–564 (CA7 1999).1
II
A
The Social Security Act provides that “[a]ny individual,
after any final decision of the Commissioner of Social Secu-
rity made after a hearing to which he was a party, . . . may
obtain a review of such decision by a civil action” in federal
district court. 42 U. S. C. § 405(g). But the Act does not
define “final decision,” instead leaving it to the SSA to give
meaning to that term through regulations. See § 405(a);
Weinberger v. Salfi, 422 U. S. 749, 766 (1975). SSA regula-
tions provide that, if the Appeals Council grants review of a
claim, then the decision that the Council issues is the Com-
1 We agree with the parties that, even were a court-imposed issue-
exhaustion requirement proper, the Fifth Circuit erred in treating it as
jurisdictional. Cf. Mathews v. Eldridge, 424 U. S. 319, 328 (1976).

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missioner’s final decision. But if, as here, the Council denies
the request for review, the ALJ’s opinion becomes the final
decision. See 20 CFR §§ 404.900(a)(4)–(5), 404.955, 404.981,
422.210(a) (1999).2 If a claimant fails to request review
from the Council, there is no final decision and, as a result,
no judicial review in most cases. See § 404.900(b); Bowen
v. City of New York, 476 U. S. 467, 482–483 (1986). In
administrative-law parlance, such a claimant may not obtain
judicial review because he has failed to exhaust administra-
tive remedies. See Salfi, supra, at 765–766.
The Commissioner rightly concedes that petitioner ex-
hausted administrative remedies by requesting review by
the Council. Petitioner thus obtained a final decision, and
nothing in § 405(g) or the regulations implementing it bars
judicial review of her claims.
Nevertheless, the Commissioner contends that we should
require issue exhaustion in addition to exhaustion of reme-
dies. That is, he contends that a Social Security claimant,
to obtain judicial review of an issue, not only must obtain
a final decision on his claim for benefits, but also must spec-
ify that issue in his request for review by the Council.
(Whether a claimant must exhaust issues before the ALJ is
not before us.) The Commissioner argues, in particular,
that an issue-exhaustion requirement is “an important corol-
lary” of any requirement of exhaustion of remedies. Brief
for Respondent 13. We think that this is not necessarily so
and that the corollary is particularly unwarranted in this
case.
Initially, we note that requirements of administrative issue
exhaustion are largely creatures of statute. Marine Mam-
mal Conservancy, Inc. v. Department of Agriculture, 134
F. 3d 409, 412 (CADC 1998). Our cases addressing issue
2 Part 404 of 20 CFR (1999) applies to Title II of the Act. The regula-
tions governing Title XVI, which can be found at 20 CFR pt. 416 (1999),
are, as relevant here, not materially different. We will therefore omit
references to the latter regulations.

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exhaustion reflect this fact. For example, in Woelke & Ro-
mero Framing, Inc. v. NLRB, 456 U. S. 645 (1982), we held
that the Court of Appeals lacked jurisdiction to review objec-
tions not raised before the National Labor Relations Board.
We so held because a statute provided that “ ‘[n]o objection
that has not been urged before the Board . . . shall be consid-
ered by the court.’ ” Id., at 665 (quoting 29 U. S. C. § 160(e)
(1982 ed.)). Our decision in FPC v. Colorado Interstate Gas
Co., 348 U. S. 492, 497–498 (1955), followed similar reasoning.
See also United States v. L. A. Tucker Truck Lines, Inc.,
344 U. S. 33, 36, n. 6 (1952) (collecting statutes); Washing-
ton Assn. for Television and Children v. FCC, 712 F. 2d
677, 681–682, and n. 6 (CADC 1983) (interpreting issue-
exhaustion requirement in 47 U. S. C. § 405 (1982 ed.) and
collecting statutes). Here, the Commissioner does not con-
tend that any statute requires issue exhaustion in the re-
quest for review.
Similarly, it is common for an agency’s regulations to re-
quire issue exhaustion in administrative appeals. See, e. g.,
20 CFR § 802.211(a) (1999) (petition for review to Benefits
Review Board must “lis[t] the specific issues to be considered
on appeal”). And when regulations do so, courts reviewing
agency action regularly ensure against the bypassing of that
requirement by refusing to consider unexhausted issues.
See, e. g., South Carolina v. United States Dept. of Labor,
795 F. 2d 375, 378 (CA4 1986); Sears, Roebuck and Co. v.
FTC, 676 F. 2d 385, 398, n. 26 (CA9 1982). Yet, SSA regula-
tions do not require issue exhaustion. (Although the ques-
tion is not before us, we think it likely that the Commissioner
could adopt a regulation that did require issue exhaustion.)
It is true that we have imposed an issue-exhaustion re-
quirement even in the absence of a statute or regulation.
But the reason we have done so does not apply here. The
basis for a judicially imposed issue-exhaustion requirement is
an analogy to the rule that appellate courts will not consider

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arguments not raised before trial courts. As the Court
explained in Hormel v. Helvering, 312 U. S. 552 (1941):
“Ordinarily an appellate court does not give consider-
ation to issues not raised below. For our procedural
scheme contemplates that parties shall come to issue in
the trial forum vested with authority to determine ques-
tions of fact. This is essential in order that parties may
have the opportunity to offer all the evidence they be-
lieve relevant to the issues which the trial tribunal is
alone competent to decide; it is equally essential in order
that litigants may not be surprised on appeal by final
decision there of issues upon which they have had no
opportunity to introduce evidence. And the basic rea-
sons which support this general principle applicable to
trial courts make it equally desirable that parties should
have an opportunity to offer evidence on the general is-
sues involved in the less formal proceedings before ad-
ministrative agencies entrusted with the responsibility
of fact finding.” Id., at 556.
As we further explained in L. A. Tucker Truck Lines, courts
require administrative issue exhaustion “as a general rule”
because it is usually “appropriate under [an agency’s] prac-
tice” for “contestants in an adversary proceeding” before it
to develop fully all issues there. 344 U. S., at 36–37. (We
also spoke favorably of issue exhaustion in Unemployment
Compensation Comm’n of Alaska v. Aragon, 329 U. S. 143,
154–155 (1946), without relying on any statute or regulation,
but in that case the waived issue had not been raised before
the District Court, see id., at 149, 155.)
But, as Hormel and L. A. Tucker Truck Lines suggest,
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 adminis-
trative proceeding. Cf. McKart v. United States, 395 U. S.
185, 193 (1969) (application of doctrine of exhaustion of ad-

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ministrative remedies “requires an understanding of its pur-
poses and of the particular administrative scheme involved”);
Salfi, 422 U. S., at 765 (same). Where the parties are ex-
pected to develop the issues in an adversarial administrative
proceeding, it seems to us that the rationale for requiring
issue exhaustion is at its greatest. Hormel, L. A. Tucker
Truck Lines, and Aragon each involved an adversarial
proceeding. See Hormel, supra, at 554, 556; L. A. Tucker
Truck Lines, supra, at 36; Aragon v. Unemployment Com-
pensation Comm’n of Alaska, 149 F. 2d 447, 449–452 (CA9
1945), aff ’d in part and rev’d in part, 329 U. S. 143 (1946).
(In Hormel, we allowed an exception to the issue-exhaustion
requirement. 312 U. S., at 560.) Where, by contrast, an ad-
ministrative proceeding is not adversarial, we think the rea-
sons for a court to require issue exhaustion are much weaker.
More generally, we have observed that “it is well settled that
there are wide differences between administrative agencies
and courts,” Shepard v. NLRB, 459 U. S. 344, 351 (1983), and
we have thus warned against reflexively “assimilat[ing] the
relation of . . . administrative bodies and the courts to the
relationship between lower and upper courts,” FCC v. Potts-
ville Broadcasting Co., 309 U. S. 134, 144 (1940).
B
The differences between courts and agencies are nowhere
more pronounced than in Social Security proceedings. Al-
though “[m]any agency systems of adjudication are based to
a significant extent on the judicial model of decisionmaking,”
2 K. Davis & R. Pierce, Administrative Law Treatise § 9.10,
p. 103 (3d ed. 1994), the SSA is “[p]erhaps the best example
of an agency” that is not, B. Schwartz, Administrative Law
469–470 (4th ed. 1994). See id., at 470 (“The most important
of [the SSA’s modifications of the judicial model] is the re-
placement of normal adversary procedure by . . . the ‘investi-
gatory model’ ” (quoting Friendly, Some Kind of Hearing, 123
U. Pa. L. Rev. 1267, 1290 (1975))). Social Security proceed-

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ings are inquisitorial rather than adversarial. It is the
ALJ’s duty to investigate the facts and develop the argu-
ments both for and against granting benefits, see Richardson
v. Perales, 402 U. S. 389, 400–401 (1971), and the Council’s
review is similarly broad. The Commissioner has no repre-
sentative before the ALJ to oppose the claim for benefits,
and we have found no indication that he opposes claimants
before the Council. See generally Dubin, Torquemada
Meets Kafka: The Misapplication of the Issue Exhaustion
Doctrine to Inquisitorial Administrative Proceedings, 97
Colum. L. Rev. 1289, 1301–1305, 1325–1329 (1997).
The regulations make this nature of SSA proceedings
quite clear. They expressly provide that the SSA “con-
duct[s] the administrative review process in an informal,
nonadversary manner.” 20 CFR § 404.900(b) (1999). They
permit—but do not require—the filing of a brief with the
Council (even when the Council grants review), § 404.975, and
the Council’s review is plenary unless it states otherwise,
§ 404.976(a). See also § 404.900(b) (“[W]e will consider at
each step of the review process any information you present
as well as all the information in our records”). The Commis-
sioner’s involvement in the Appeals Council’s decision
whether to grant review appears to be not as a litigant
opposing the claimant, but rather just as an adviser to
the Council regarding which cases are good candidates for
the Council to review pursuant to its authority to review a
case sua sponte. See §§ 404.969(b)–(c); Perales, supra, at
403. The regulations further make clear that the Council
will “evaluate the entire record,” including “new and mate-
rial evidence,” in determining whether to grant review.
§ 404.970(b). Similarly, the notice of decision that ALJ’s pro-
vide unsuccessful claimants informs them that if they re-
quest review, the Council will “consider all of [the ALJ’s]
decision, even the parts with which you may agree,” and that
the Council might review the decision “even if you do not
ask it to do so.” App. 25–27. Finally, Form HA–520, which

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the Commissioner considers adequate for the Council’s pur-
poses in determining whether to review a case, see
§ 422.205(a), provides only three lines for the request for re-
view, and a notice accompanying the form estimates that it
will take only 10 minutes to “read the instructions, gather
the necessary facts and fill out the form.” The form there-
fore strongly suggests that the Council does not depend
much, if at all, on claimants to identify issues for review.
Given that a large portion of Social Security claimants either
have no representation at all or are represented by non-
attorneys, see Dubin, supra, at 1294, n. 29, the lack of such
dependence is entirely understandable.
Thus, the Hormel analogy to judicial proceedings is at its
weakest in this area. The adversarial development of issues
by the parties—the “com[ing] to issue,” 312 U. S., at 556—
on which that analogy depends simply does not exist. The
Council, not the claimant, has primary responsibility for
identifying and developing the issues. We therefore agree
with the Eighth Circuit that “the general rule [of issue
exhaustion] makes little sense in this particular context.”
Harwood, 186 F. 3d, at 1042.
Accordingly, we hold that a judicially created issue-
exhaustion requirement is inappropriate. Claimants who
exhaust administrative remedies need not also exhaust is-
sues in a request for review by the Appeals Council in order
to preserve judicial review of those issues. The judgment
of the Fifth Circuit is reversed, and the case is remanded for
further proceedings.
It is so ordered.
Justice O’Connor, concurring in part and concurring in
the judgment.
In most cases, an issue not presented to an administrative
decisionmaker cannot be argued for the first time in federal
court. On this underlying principle of administrative law,
the Court is unanimous. See ante, at 108; post, at 114–115

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(Breyer, J., dissenting). In the absence of a specific statute
or regulation requiring issue exhaustion, however, such a
rule is not always appropriate. The inquiry requires careful
examination of “the characteristics of the particular adminis-
trative procedure provided.” McCarthy v. Madigan, 503
U. S. 140, 146 (1992). The Court’s opinion provides such an
examination, and reaches the correct result. Accordingly,
I join Parts I and II–A of the Court’s opinion, as well as
its judgment. I write separately because, in my view, the
agency’s failure to notify claimants of an issue exhaustion
requirement in this context is a sufficient basis for our deci-
sion. Requiring issue exhaustion is particularly inappropri-
ate here, where the regulations and procedures of the Social
Security Administration (SSA) affirmatively suggest that
specific issues need not be raised before the Appeals Council.
Although the SSA’s regulations warn claimants that com-
pletely failing to request Appeals Council review will forfeit
the right to seek judicial review, see 20 CFR § 404.900(b)
(1999), the regulations provide no notice that claimants must
also raise specific issues before the Appeals Council to pre-
serve them for review in federal court, see ante, at 108 (SSA
regulations do not require issue exhaustion). To the con-
trary, the relevant regulations and procedures indicate that
issue exhaustion before the Appeals Council is not required.
To request Appeals Council review, a claimant need not
file a brief. See § 404.975. Rather, he can file either Form
HA–520, “Request for Review of Hearing Decision/Order,”
or “any other writing specifically requesting review.”
§ 422.205(a). Form HA–520, the suggested means of re-
questing review, provides only three lines (roughly two
inches) for the statement of issues and grounds for appeal,
and the SSA estimates that it should take a total of 10 min-
utes to read the instructions, collect the relevant informa-
tion, and complete the form, see 58 Fed. Reg. 28596 (1993);
ante, at 111–112. Moreover, Appeals Council review is ple-
nary unless the Council informs the claimant otherwise in

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114 SIMS v. APFEL
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writing, see § 404.976(a); as the notice of decision of the Ad-
ministrative Law Judge (ALJ) to petitioner stated, if she re-
quested review before the Appeals Council, “the Council will
consider all of [the ALJ’s] decision . . . . Requesting review
places the entire record of your case before the Council.”
See App. 26–27.
Justice Breyer concedes that these factors “might mis-
lead the Social Security claimant” to believe that issue ex-
haustion is not required. Post, at 118 (dissenting opinion).
He nonetheless contends that this is not a problem because
the SSA has assured the Court that it “has not invoked [issue
exhaustion] in suits brought by claimants who were unrep-
resented during the Appeals Council proceedings.” Brief
for Respondent 41–42. As a matter of past practice, the
agency’s statement appears to be inaccurate. See Owens v.
Apfel, No. 1:98CV1442 (ND Ohio, Aug. 3, 1999), vacated on
other grounds, 205 F. 3d 1341 (CA6 2000). But even if this
stated policy were uniformly followed, I think it would be
unwise to adopt a rule that imposes different issue exhaus-
tion obligations depending on whether claimants are repre-
sented by counsel.
In this case, the SSA told petitioner (1) that she could
request review by sending a letter or filling out a 1-page
form that should take 10 minutes to complete, (2) only that
failing to request Appeals Council review would preclude ju-
dicial review, and (3) that the Appeals Council would review
her entire case for issues. She did everything that the
agency asked of her. I would not impose any additional
requirements, and would reverse the judgment and remand
for further proceedings consistent with this opinion.
Justice Breyer, with whom The Chief Justice, Jus-
tice Scalia, and Justice Kennedy join, dissenting.
Under ordinary principles of administrative law a review-
ing court will not consider arguments that a party failed to
raise in timely fashion before an administrative agency. See

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Breyer, J., dissenting
United States v. L. A. Tucker Truck Lines, Inc., 344 U. S.
33, 36–37 (1952); Unemployment Compensation Comm’n of
Alaska v. Aragon, 329 U. S. 143, 155 (1946); Hormel v. Hel-
vering, 312 U. S. 552, 556–557 (1941); see also 2 K. Davis &
R. Pierce, Administrative Law Treatise § 15.8, pp. 341–344
(3d ed. 1994). As this Court explained long ago:
“[O]rderly procedure and good administration require
that objections to the proceedings of an administrative
agency be made while it has opportunity for correction
in order to raise issues reviewable by the courts. . . .
[C]ourts should not topple over administrative decisions
unless the administrative body not only has erred but
has erred against objection made at the time appro-
priate under its practice.” L. A. Tucker Truck Lines,
supra, at 37.
Although the rule has exceptions, it applies with particular
force where resolution of the claim significantly depends
upon specialized agency knowledge or practice. In this case,
petitioner asked the reviewing court to consider arguments
of the kind that clearly fall within the general rule, namely,
whether an administrative law judge should have ordered a
further medical examination or asked different questions of
a vocational expert. No one claims that any established
exception to this ordinary “exhaustion” or “waiver” rule
applies. See, e. g., Bethesda Hospital Assn. v. Bowen, 485
U. S. 399, 406–407 (1988) (futility); Mathews v. Eldridge, 424
U. S. 319, 329, n. 10 (1976) (constitutional claims).
The Court nonetheless concludes that the law requires a
new exception. It points out that the ordinary waiver rule
as applied to administrative agencies “is an analogy to the
rule that appellate courts will not consider arguments not
raised before trial courts.” Ante, at 108–109. And the
plurality argues that the agency proceedings here at issue,
unlike those before trial courts, are not adversarial pro-
ceedings. Ante, at 110–112. Although I agree with both

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116 SIMS v. APFEL
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propositions, I do not see how they lead to the plurality’s
conclusion.
There are, of course, important differences between a
court and an administrative agency, but those differences
argue in favor of, not against, applying the waiver principle
here. Cf. SEC v. Chenery Corp., 318 U. S. 80, 88–95 (1943).
As this Court has explained, the law ordinarily insists that
a party invoke administrative processes before coming to
court in order to avoid premature interruption of the admin-
istrative process and to enable the expert agency to develop
the necessary facts. McKart v. United States, 395 U. S. 185,
193–194 (1969). In addition, exhaustion is required be-
cause a
“complaining party may be successful in vindicating his
rights in the administrative process. If he is required
to pursue his administrative remedies, the courts may
never have to intervene. And notions of administrative
autonomy require that the agency be given a chance to
discover and correct its own errors. Finally, it is pos-
sible that frequent and deliberate flouting of adminis-
trative processes could weaken the effectiveness of an
agency by encouraging people to ignore its procedures.”
Id., at 195.
Certain of these reasons apply with equal force to courts and
to administrative agencies. Others, such as the notion of
“administrative autonomy,” apply with special force to agen-
cies. None of them applies only to courts. Practical con-
siderations arising out of the agency’s familiarity with the
subject matter as well as institutional considerations caution
strongly against courts’ deciding ordinary, circumstance-
specific matters that the parties have not raised before the
agency—at least where there is no good reason excusing that
failure. These considerations apply where a party fails to
give an agency an opportunity to correct its own mistake,
i. e., to a failure to raise a matter on an internal agency ap-

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117 Cite as: 530 U. S. 103 (2000)
Breyer, J., dissenting
peal, just as they apply to a failure ever to raise the matter
at all. See id., at 194 (exhaustion principles apply equally
where “administrative process is at an end and a party seeks
judicial review of a decision that was not appealed through
the administrative process”).
I would add that these ordinary “exhaustion of remedies”
rules are particularly important in Social Security cases,
where the Appeals Council is asked to process over 100,000
claims each year, Social Security Administration Office of
Hearings and Appeals, Key Workload Indicators—Fiscal
Year 1999, p. 21 (115,151 requests for Appeals Council re-
view), where many of those cases ultimately find their way
to federal court, Administrative Office of the United States
Courts, L. Mecham, Judicial Business of the United States
Courts: 1998 Report of the Director 144 (Table C–2) (over
14,000 cases in fiscal year 1998), and where the Social Se-
curity Act itself stresses their applicability, 42 U. S. C.
§§ 405(g), (h). See generally Shalala v. Illinois Council on
Long Term Care, Inc., 529 U. S. 1, 12–13 (2000); Weinberger
v. Salfi, 422 U. S. 749, 765–766 (1975).
Nor, with one exception, do I see why the nonadversarial
nature of the Social Security Administration internal appel-
late process makes a difference. An initial ALJ proceeding
is, after all, itself nonadversarial. Ante, at 111 (although
claimant may be represented by counsel, the agency itself
has no representative present and relies upon the ALJ to
“investigate the facts and develop the arguments both for
and against granting benefits”). Yet I assume the plurality
would not forgive the requirement that a party ordinarily
must raise all relevant issues before the ALJ. Cf. Shalala,
supra, at 15 (noting statute’s “nonwaivable and nonexcusable
requirement that an individual present a claim to the agency
before raising it in court”).
Neither does the law in this area disfavor informal pro-
ceedings. See Hormel, 312 U. S., at 556 (“And the basic rea-
sons which support th[e] general principle [of waiver] appli-

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118 SIMS v. APFEL
Breyer, J., dissenting
cable to trial courts make it equally desirable that parties
should have an opportunity to offer evidence on the general
issues involved in the less formal proceedings before admin-
istrative agencies entrusted with the responsibility of fact
finding” (emphasis added)). Considerations of time and ex-
pense can favor such proceedings. And, since a Social Secu-
rity claimant is permitted his own counsel or other repre-
sentative if he wishes, the informality does not necessarily
work to his disadvantage. Indeed, the plurality’s rule, by
interfering with the ordinary ALJ/Appeals Council/District
Court order for presenting agency-specific arguments,
threatens to complicate judicial review, thereby producing
increased delay without any benefit to the agency or to the
claimants themselves.
There is, however, one exception, i. e., one way in which
the informality of the proceedings may matter. Administra-
tive lawyers are normally aware of the basic “exhaustion of
remedies” rules, including the specific waiver principle here
at issue. But the internal appellate review proceeding’s in-
formality; the absence of a clear statement in the rules or
on the Appeals Council instructional form insisting upon the
raising of all, not just some, issues; the presence on the in-
structional form of just a few lines for the listing of issues;
and an attached estimate that on average an appellant can
“read the instructions, gather the necessary facts and fill out
the form” in 10 minutes, see Form HA–520—taken to-
gether—might mislead the Social Security claimant. That
is, it might make the claimant believe he need not raise every
issue before the Appeals Council. Ante, at 113–114 (O’Con-
nor, J., concurring in part and concurring in judgment).
But the Social Security Administration says that it does
not apply its waiver rule where the claimant is not repre-
sented. Brief for Respondent 41–42. And I cannot say it is
“arbitrary, capricious, [or] an abuse of discretion,” 5 U. S. C.
§ 706(2)(A), to apply the waiver rule when a claimant was
represented before the Appeals Council, as was petitioner,

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by an attorney. Petitioner’s lawyer should have known the
basic legal principle: namely, that, with important excep-
tions, a claimant must raise his objections in an internal
agency appellate proceeding or forgo the opportunity later
to raise them in court. The Fifth Circuit, moreover, had
precedent applying the general rule in this specific context.
Paul v. Shalala, 29 F. 3d 208, 210–211 (1994). And far from
being misled by the agency’s form, petitioner’s lawyer fol-
lowed an alternative procedure, see 20 CFR §§ 422.205(a),
404.968(a) (1999), and filed 19 pages of detailed legal and fac-
tual arguments challenging the ALJ’s decision. App. 51–69.
In these circumstances, petitioner is accountable for her law-
yer’s decision—whether neglectful or by design—to reserve
some of her objections for federal court.
For these reasons, I would affirm the judgment of the
Court of Appeals.