Starkweather v. Bisignano: A Ninth Circuit Reminder About Issue Preservation

The Ninth Circuit recently handed down a decision in Starkweather v. Bisignano that every Social Security disability appellate practitioner should read, not because it changes the law, but because it illustrates exactly how procedural missteps and the harmless error doctrine can swallow otherwise valid arguments whole.

What Happened

Starkweather appealed the denial of her Social Security disability benefits. The ALJ discounted her treating physician's opinion, made a factual error about when the doctor last examined her, and failed to consider that she missed medical appointments because she could not afford care, not because she was not suffering.

The Ninth Circuit acknowledged both errors.

And then affirmed anyway.

Harmless Error: A Tough Pill to Swallow

The court applied the Carmickle harmless error doctrine and found that substantial evidence still supported the outcome even after setting aside what the ALJ got wrong. Specifically, physical exam records closer to the date last insured showed no acute distress, normal gait, and no strength or sensation deficits. The treating physician's own notes did not support his restrictive assessment.

That is the harmless error doctrine doing its job. And it is a difficult result to sit with when your client's doctor made errors that genuinely mattered, just not enough to change the outcome.

A successful challenge to ALJ reasoning does not automatically mean reversal. You have to show the error actually changed the result. That is a higher bar than many practitioners expect, and this case is a clean example of why.

The Part That Really Stings

Starkweather also raised arguments about her subjective testimony, her RFC evaluation, and an inadequate hypothetical posed to the vocational expert.

The Ninth Circuit did not address any of them.

Not because they lacked merit, but because her attorneys did not raise them at the district court level. Under Smartt v. Kijakazi, arguments not raised below are forfeited on appeal. The court will not hear them. They are gone.

This is the kind of loss that is entirely preventable, and it is one of the most important lessons this case has to offer.

What SSD Appellate Practitioners Should Take Away

Preserve everything at the district court level. If you think an argument might matter on appeal, brief it. Do not wait to see how the case develops. Forfeiture at the district court level is permanent.

Harmless error is real and it is brutal. Winning on the error does not mean winning the case. You have to connect the error to the outcome and show that the result would have been different without it.

The uninsured gap argument has teeth. The court agreed the ALJ should have considered why Starkweather missed appointments. Under SSR 16-3p, failure to explore inability to afford care as a reason for gaps in treatment is a recognized error. Build that record early and make the argument explicitly.

The 2017 regulations on medical opinion weighting are not going anywhere, at least in the Ninth Circuit. Cross v. O'Malley closed that door. Practitioners challenging ALJ opinion weighting under the prior framework should understand that the circuit has moved on.

The Bottom Line

Starkweather v. Bisignano is not a dramatic shift in Social Security disability law. But it is a clear and instructive example of how the harmless error doctrine and issue forfeiture can eliminate arguments that deserved to be heard.

The reminder is simple: preserve your issues below, connect every error to outcome, and do not assume that a documented ALJ mistake will carry the appeal on its own.

If you have questions about how these principles apply to a case you are working on, I am happy to talk through it.

Got any questions? Schedule a discovery call with us. I’m here to help. It’s a lot to take in, but we’ll get through it together. After all, navigating these waters is always easier when you’ve got someone to chat with.