Fischer v. Colvin , 831 F.3d 31 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1041
GLORIA GEAN FISCHER,
Plaintiff, Appellee,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Barron, Selya, and Lipez,
Circuit Judges.
Joshua M. Salzman, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom Benjamin C. Mizer,
Acting Assistant Attorney General, John P. Kacavas, United States
Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General,
Alisa B. Klein, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice, David F. Black, General Counsel, Social
Security Administration, Christopher A. Michaels, Acting Regional
Chief Counsel, Region 1, Social Security Administration, Matthew
J. Del Mastro, Assistant Regional Counsel, Social Security
Administration, and Sean D. Santen, Assistant Regional Counsel,
Social Security Administration, were on brief, for appellant.
Christine Woodman Casa, with whom Francis X. Quinn, Jr. and
Boynton Waldron Doleac Woodman & Scott, PA were on brief, for
appellee.
July 29, 2016
LIPEZ, Circuit Judge. An administrative law judge (ALJ)
denied Gloria Gean Fischer's claim for disability insurance
benefits (DIB) under the Social Security Act. The ALJ concluded
that Fischer was not disabled prior to the date on which her
insured status expired and thus not eligible to receive benefits.
On petition for judicial review, the district court found that the
ALJ erred as a matter of law when he failed to consult a medical
expert before reaching this conclusion. The district court relied
upon Social Security Ruling (SSR) 83-20, which instructs an ALJ to
consult a medical expert when the ALJ must infer a claimant's date
of disability onset on the basis of ambiguous medical evidence.
See SSR 83-20, 1983 WL 31249, at *3 (Jan. 1, 1983); May v. Soc.
Sec. Admin. Comm'r, 125 F.3d 841 (1st Cir. 1997) (per curiam)
(unpublished table decision), 1997 WL 616196, at *1.
Defendant-appellant Carolyn W. Colvin, Acting
Commissioner of Social Security, challenges the district court's
interpretation of SSR 83-20 and its application to the facts of
this case. We find it unnecessary to resolve the parties' dispute
concerning the general applicability of SSR 83-20 to the disability
inquiry in this case. Even assuming that the ruling applies here,
the medical evidence was not ambiguous and thus the ALJ did not
need to draw inferences as to whether Fischer's onset date preceded
the expiration of her insured status. Hence, SSR 83-20 did not
require the ALJ to consult a medical expert. We therefore vacate
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the judgment of the district court and remand for consideration of
Fischer's remaining claims.
Although our conclusion does not require us to determine the
scope of SSR 83-20, we take this opportunity to highlight the
analytical disarray surrounding the rule. We identify our concerns
below so that the Commissioner is aware of the need to clarify the
ruling's purpose and resolve the inconsistencies in her approach
to its applicability.
I.
A. Background1
On February 28, 2012, Gloria Gean Fischer applied for
disability insurance benefits, alleging a disability stemming from
a fall from a ladder in the late 1990s. Fischer had previously
worked as a hair stylist, a lingerie store owner, and operator of
a gift basket company. She alleges a disability onset date of
October 31, 1995. Fischer's date last insured (DLI) was March 31,
1998. For Fischer to be eligible for benefits, she had to
demonstrate that her disability existed prior to her DLI. See
Cruz Rivera v. Sec. of Health & Human Servs., 818 F.2d 96, 97 (1st
Cir. 1986) (per curiam).
Fischer's first relevant medical records reflect that
she visited the Exeter Hospital Pain Clinic in October 1996,
1The facts recounted here are not in dispute and are taken
from the decisions of the ALJ and the district court.
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complaining of increasingly severe left buttock and leg pain,
resulting from a June 1996 fall.2 Fischer reported that the pain
worsened with standing and that it woke her up at night. An
examination revealed that Fischer had a full range of motion of
the lumbar spine, good flexion and extension of the lower
extremities, and that she was able to toe walk and heel walk. The
examination also revealed that Fischer had tenderness between
vertebrae in both the lumbar vertebrae and the thoracic vertebrae
regions of her spine and "unusual paraspinal tenderness." A
magnetic resonance imaging (MRI) indicated a bulging disc in the
lumbar vertebrae, and an admitting physician administered an
epidural steroid injection, diagnosed Fischer with sciatica
secondary to a lumbar strain, and prescribed Naproxen for six
weeks.
In January 1998, Fischer underwent an MRI after
complaining of neck pain radiating to her left shoulder. The
results of the MRI were normal. Three months later, on March 31,
1998, Fischer's insured status expired. In October 1998, x-rays
were taken of Fischer's pelvis and left hip to rule out either a
bone abnormality or inflammation; the imaging results were again
normal.
2The record is not clear as to whether the June 1996 fall is
the ladder fall from which Fischer alleges her troubles began.
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The record contains no relevant medical reports for the
next five and a half years. In March 2004, Fischer presented with
sensitivity on her left side and hip joint pain. Multiple x-rays
and an MRI did not reveal any hip or sacroiliac joint problems,
but an MRI of her lumbar spine suggested degenerative disc changes
though no disc herniation. In May 2004, Fischer was treated for
constant pain in her left buttock and down into her leg, as well
as numbness and tingling in her left arm. After a series of MRIs
in 2004 and 2005, Fischer underwent an operation in December 2006
to implant a spinal cord stimulator. As of 2009, Fischer reported
to her treating primary care physician that she held two jobs and
was happy and active. However, in 2010 and 2011, Fischer again
sought treatment for pain in her left buttock, leg, and foot, and
for pain in her lower back, which was aggravated by sitting. From
2011 through 2013, Fischer reported improvements in her pain
followed by recurrences, which ranged from dull aching to
significant limitations on her ability to stand or walk for more
than two hours.
B. Agency proceedings & determinations
In September 2012, a state agency physician reviewed
Fischer's application for benefits and determined that there was
not enough evidence to support the conclusion that Fischer was
disabled between her alleged onset date of October 31, 1995 and
her DLI of March 31, 1998. Fischer requested a hearing before an
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ALJ, which took place on May 16, 2013. At the hearing, Fischer
testified that she was working at her retail shop when she fell
from a ladder in the late 1990s and this fall exacerbated injuries
from a car accident that took place in the 1980s. She stated that
after the fall, she had pain throughout her entire left side,
including her back, arm, and leg, and she had to rely on her
daughter and other employees to do most of the work at the shop.
She testified that she then closed her shop in 2003 and later
underwent the spinal cord stimulator implant procedure. Fischer
testified that after the implantation, she tried to return to work
part-time as a hair stylist, but she could not sustain the work
because of the required grasping, standing, and bending. Her pain
worsened, and she now spends the majority of her time lying down
or in bed for relief. She also testified that she developed
depression during this time.
Following the hearing, the ALJ issued an order denying
Fischer's claim. The ALJ found that, "although there is some
evidence that corroborates the claimant's testimony of a fall in
1996, the medical evidence of record is insufficient to support"
Fischer's assertion that she had a severe impairment prior to her
DLI.
The Appeals Council denied Fischer's appeal, and she
sought judicial review in district court. See 42 U.S.C. § 405(g).
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C. District court decision
The district court vacated the Commissioner's decision
and remanded the case for further administrative proceedings
because the ALJ failed to comply with SSR 83-20 and consult a
medical advisor before concluding that Fischer was not disabled as
of her DLI. The court first concluded that SSR 83-20's application
is not predicated on a finding of present disability. In so
holding, the court relied almost entirely on its previous decision
in Wilson v. Colvin, 17 F. Supp. 3d 128 (D.N.H. 2014).
In Wilson, the court refused to adopt the Commissioner's
contention that an ALJ must first find a claimant presently
disabled in order for SSR 83-20, and its medical expert
requirement, to apply. Id. at 141–42. In the court's view, such
a reading "would permit, and possibly encourage, an ALJ to avoid
the inconvenience of either calling a medical advisor or making a
finding regarding present disability in a case in which the
evidence of a claimant's disability onset date is ambiguous." Id.
at 142. Hence, the court concluded that the Commissioner could
not condition the application of SSR 83-20 on a finding of present
disability. Id. In Fischer's case, the court then found that the
record did not unambiguously establish that Fischer was not
disabled as of her DLI, thus requiring the ALJ to consult a medical
advisor under SSR 83-20.
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II.
In social security cases, we review the district court's
decision de novo, and we review the Commissioner's ultimate
determination for substantial evidence. Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). We review questions of law presented
by an ALJ's decision de novo. See id.The stated purpose of Social Security Ruling 83-20 is to
"describe the relevant evidence to be considered when establishing
the onset date of disability under the provisions of titles II and
XVI of the Social Security Act (the Act) and implementing
regulations."3 SSR 83-20, 1983 WL 31249, at *1. The ruling states:
In addition to determining that an individual
is disabled, the decisionmaker must also
establish the onset of disability. In many
claims, the onset date is critical; it may
affect the period for which the individual can
be paid and may even be determinative of
whether the individual is entitled to or
eligible for any benefits.
Id.When determining the onset date of disability, an ALJ
considers factors that include "the individual's allegation, the
3Title XVI of the Social Security Act governs applications
for Supplemental Security Income (SSI) and Title II governs
applications for DIB, such as Fischer's. See SSR 83-20, 1983 WL
31249, at *1. An award of SSI benefits requires a finding of
present disability but, unlike an award of DIB, does not require
the claimant to be insured at the time of onset. See 42 U.S.C.
§§ 1381a, 423(a)(1)(A); Splude v. Apfel, 165 F.3d 85, 87 (1st Cir.
1999).
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work history, and the medical evidence." Id. The ruling
recognizes that this determination may be especially difficult
when "the alleged onset and the date last worked are far in the
past and adequate medical records are not available." Id. at *2.
In such cases, if the alleged disability involved a slowly
progressing impairment, the ALJ may need "to infer the onset date"
based on "medical and other evidence that describe the history and
symptomatology of the disease process." Id. Where an inference
must be made, it "must have a legitimate medical basis." Id. at
*3. To this end, SSR 83-20 requires that "[a]t the hearing, the
[ALJ] should call on the services of a medical advisor when onset
must be inferred." Id.
The Commissioner challenges the district court's
interpretation of SSR 83-20's general application to Fischer's
case as well as the court's specific application here of SSR 83-
20's medical advisor directive. As a general matter, the
Commissioner asserts that "onset" is conceptually distinct from
the disability determination, and "[t]he Ruling," as a whole, "is
not concerned with the threshold question of whether a disability
exists," which the ALJ was tasked with deciding in Fischer's case.
The Commissioner also argues that SSR 83-20's medical advisor
directive applies only if "an impairment of nontraumatic origin is
[first] found to be presently disabling." However, even if that
directive could apply here, the Commissioner argues that the
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district court erred in concluding that Fischer's medical evidence
was ambiguous, requiring the ALJ to infer Fischer's onset date and
call a medical advisor.
As we discuss in detail below, the Commissioner's
arguments as to SSR 83-20's general applicability are confusing
and inconsistent. However, we need not resolve this case on the
basis of the ruling's general applicability, if, based on the facts
before us, we conclude that Fischer's medical evidence is not
ambiguous and therefore the ruling's medical advisor requirement
would not apply here.
Where "[p]recise [e]vidence [is] [n]ot [a]vailable" and
thus there is a "[n]eed for [i]nferences," SSR 83-20 instructs the
ALJ to call a medical advisor. SSR 83-20, 1983 WL 31289, at *3.
Therefore, the dispositive question before us is whether SSR 83-
20's requirement to consult a medical advisor applies to the facts
of this case. That is, did the ALJ need to make an inference based
on a lack of "precise evidence" as to disability onset prior to
DLI?
Arguably, every onset determination reached by an
ALJ -- a lay individual with no required medical training -- will
involve some degree of ambiguity and inference. See Manso-Pizarro
v. Sec'y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996).
However, there must be some line. In Grebenick v. Chater, the
Eighth Circuit concluded that no ambiguity existed where the
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claimant's multiple records from the two years subsequent to her
DLI indicated that her "symptoms had not yet reached the disabling
level of severity" prior to her DLI. 121 F.3d 1193, 1201 (8th
Cir. 1997); see also Karlix v. Barnhart, 457 F.3d 742, 747 (8th
Cir. 2006).
Similarly, Fischer's medical tests around the time of
her DLI consist of an MRI and x-rays whose results were
consistently normal. A diagnostic report of Fischer's January
1998 cervical spine MRI, taken two months prior to her DLI, found
"the cord to be normal," and stated that the imaging revealed "no
extra-dural defects," "no disc herniation or degeneration," "[n]o
destructive lesions of bone," "[n]o anterior or posterior
subluxation," and that "the nerve root sleeves [were] exiting in
a normal fashion from C3 to C7." These results led Dr. Eric
Geslien, who reviewed the MRI, to conclude that the imaging was a
"[n]ormal MRI of the cervical spine." The diagnostic report of x-
rays of Fischer's pelvis and left hip, taken about seven months
after her DLI, also was normal. With regard to Fischer's pelvis,
Dr. Michael Marrero saw "no fracture or dislocation" and "a normal
appearance to the . . . joints." Dr. Marrero studied two views of
Fischer's left hip and again found "[n]o evidence of a fracture,
dislocation or other intrinsic bony pathology."
The ALJ did not rely upon the absence of medical evidence
but rather the existence of "precise" medical evidence -- the
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normal results of the diagnostic imaging -- when concluding that
Fischer's impairments had not reached disabling severity prior to
her DLI. Compare Grebenick, 121 F.3d at 1201 (discussed supra),
with Blea v. Barnhart, 466 F.3d 903, 912–13 (10th Cir. 2006)
(concluding that the ALJ improperly made inferences based on a
"gap in the [claimant's] medical record"). This precise medical
evidence eliminated the need for the ALJ to infer that Fischer's
onset date preceded her DLI.
We recognize that where contemporaneous medical evidence
is lacking, post-DLI medical records may support a finding that
the claimant's impairments were severe prior to her DLI,
"[d]epending on the nature of the disability." Arnone v. Bowen,
882 F.2d 34, 39 (2d Cir. 1989). Here, however, the contemporaneous
medical evidence was specific and unequivocal. See Grebenick, 121
F.3d at 1201; Jakubowski v. Comm'r of Soc. Sec., 215 F. App'x 104,
108 (3d Cir. 2007). Hence, assuming arguendo that SSR 83-20
applies to the disability inquiry in Fischer's case -- a matter on
which we take no view -- the ruling would not require the ALJ to
call upon the services of a medical advisor to determine date of
onset, and the district court erred when it concluded that the ALJ
had to infer onset on the basis of ambiguous medical evidence.
III.
As noted at the outset of this opinion, we see a need to
call attention to the analytical problems confronting
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decisionmakers who must interpret and apply SSR 83-20. Although
delineating the application of SSR 83-20 ultimately proved
unnecessary to resolve this case, our attempt to clarify the law
was frustrated by the Commissioner's failure to provide a full
explanation of the DIB eligibility process and the inconsistent
positions she has taken both in this case and across cases. We
describe below three instances in which the Commissioner's
approach has generated confusion.
A. The shifting relevance of SSR 83-20
The Commissioner argues that SSR 83-20 applies only to
the question of "onset" -- the pinpoint inquiry into when a
previously determined disability began -- and not to the threshold
question of whether a claimant has a disability, either presently
or prior to her DLI. The Commissioner asserts that "onset" and
"disability" are distinct inquiries even when the disability
question focuses on the claimant's condition on a particular date
in the past -- i.e., whether the claimant was disabled prior to
her DLI.
Inconsistently, however, the Commissioner suggests that
the ruling does apply to the disability-prior-to-DLI inquiry if
the claimant is found to be presently disabled.4 The Commissioner
4 The Commissioner has not always taken this position.
Previously, the agency insisted that SSR 83-20 does not apply even
where a present disability has been found. For example, in May,
where the ALJ had found a present disability for SSI purposes, the
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therefore argues that the onset determination and the disability-
prior-to-DLI determination are distinct, except when they are not.
Inexplicably, the Commissioner has not identified a
rationale for applying SSR 83-20 to the disability-prior-to-DLI
inquiry only when an ALJ makes a present disability finding.5
Thus, oddly, when an ALJ considers disability prior to DLI where
there is a finding of present disability, the claimant receives
the protection of the ruling; when confronting the same question
where there is no finding as to present disability, the claimant
does not have that protection. In sum, even though the DIB
question is the same in both scenarios, the Commissioner does not
explain why the ruling applies in one setting but not the other.
agency nevertheless argued that SSR 83-20 did not apply because
May had not been found disabled prior to his DLI. See Brief for
Defendant-Appellee at 8 n.4, 12–13, May, 1997 WL 616196; see also,
e.g., Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 590
(9th Cir. 1998) (noting that, in a case where the ALJ had found a
present disability, the Commissioner argued that "the ALJ did not
err in refusing to call a medical expert because Armstrong did not
fulfill his burden of proving that he was disabled prior to" his
DLI).
5 According to the Commissioner (in her brief to the district
court), this scenario typically occurs in "a concurrent
application case, where both SSI and DIB are sought." Def.'s Mem.
in Supp. of Mot., at 12 & n.6. In such a case, "the ALJ has an
obligation to make a finding of present disability" for SSI
purposes and, if a present disability is found, the ALJ would apply
SSR 83-20 in determining, for purposes of the DIB inquiry, whether
the disability existed prior to the claimant's DLI. Def.'s Mem.
in Supp. of Mot., at 12 & n.6.
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B. The role of present disability
We also struggle with the Commissioner's unsupported and
undeveloped contention that a claimant's present disability status
is irrelevant to a claimant's DIB application. The Commissioner
asserted below, and reiterates on appeal, that an ALJ considering
a DIB-only claim needs solely to determine disability status prior
to DLI. See Def.'s Mem. in Supp. of Mot., at 11 n.4 (stating that
the agency "has not adopted a rule requiring adjudicators to
determine disability for the period after a claimant's date last
insured where the claimant seeks DIB only"); see also Appellant's
Br. at 17. Thus, when a claimant in Fischer's circumstances seeks
only DIB, the Commissioner maintains that the applicability of SSR
83-20 to the question of disability prior to DLI depends on whether
the ALJ chooses to perform a present disability inquiry that the
Commissioner has told us is unnecessary.6
Taking at face value the Commissioner's assertion that
an award of DIB does not depend on disability status after DLI,
she appears to contemplate benefit payments to an individual who,
though not disabled in recent years, is found to have been disabled
within the meaning of the Social Security Act before her insurance
status expired decades ago. This is the necessary implication of
6 This choice appeared to concern the district court in Wilson
because it left the ruling's application to the ALJ's whim. See
17 F. Supp. 3d at 142.
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her contention that the only required inquiry in a DIB case is
whether the claimant was disabled prior to her DLI. This position,
without elaboration, is perplexing and may well be antithetical to
the spirit of the Social Security Act. See Flaten v. Sec'y of
Health & Human Servs., 44 F.3d 1453, 1458-59 (9th Cir. 1995) ("The
Social Security Act . . . [was] designed both to provide protection
for individuals who can no longer work because of disability and
to encourage individuals who have previously suffered from a
disability to return to substantial gainful employment when their
medical condition improves sufficiently to allow them to do so.").7
The Commissioner nowhere -- in her briefing to the
district court or on appeal -- fully explains the analysis an ALJ
must employ to determine whether a claimant may receive disability
7 We note that a claimant may be entitled to insurance
benefits, despite the termination of a disability, if the claimant
applies for benefits within twelve months of the disability
termination. See Soc. Sec. Admin., Program Operations Manual Sys.,
DI 10105.015, Retroactivity of Disability Application (Feb. 12,
2013); cf. Nguyen v. Chater, 172 F.3d 31, 35 n.2 (1st Cir. 1999)
(per curiam) ("Irrespective of claimant's status on the hearing
date, he qualified for benefits if he was disabled for any
relevant, continuous twelve-month period."). The Commissioner did
not raise or address this qualification and its effect on the ALJ's
decisionmaking process in either her briefing or at argument.
Moreover, the Commissioner's broad contention that present
disability is irrelevant to a DIB-only claim appears at odds with
the rule, embraced across many circuits, that "an individual cannot
receive disability benefits . . . unless the individual can
establish that the current period of disability began on or prior
to the expiration of insured status." Flaten, 44 F.3d at 1458,
1460–62 (listing cases).
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insurance benefits. She cites no current statute, regulation, or
policy directive explaining the relationship between a present
disability and an application for disability benefits based on
long-ago expired insurance coverage.8 Because we need not do so
on the facts of this case, we decline to speculate about how (or
whether) the Commissioner's positions can be reconciled with each
other and with the logic of the disability benefits system.
Unsurprisingly, there is no uniform approach in the courts on when
to apply SSR 83-20. Compare Eichstadt v. Astrue, 534 F.3d 663,
667 (7th Cir. 2008) ("The ALJ in this case found that Eichstadt
was not disabled at any point before [her DLI]. With no finding
of disability, there was no need to determine an onset date."),
and Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997) (similar),
with Grebenick, 121 F.3d at 1200–01 (applying SSR 83-20 to the
8 In her brief to the district court, the Commissioner did
quote language from the agency's litigation manual, which at one
time stated that "it serves 'no purpose to make findings regarding
the claimant's impairments or ability to work after the date last
insured.'" Def.'s Mem. in Supp. of Mot., at 11 n.4 (quoting Soc.
Sec. Admin., Hearings, Appeals and Litig. Law Manual ("HALLEX")
§ I-5-4-40 (Implementation of the Difford Acquiescence Ruling)
(Sept. 28, 2005)). However, the agency removed the cited section
from the manual on October 31, 2013, months before the Commissioner
filed her brief. See HALLEX § I-5-440 (Implementation of the
Difford Acquiescence Ruling) (Oct. 13, 2013) ("We removed the
[temporary instructions] titled 'Implementation of the Difford
Acquiescence Ruling.'").
Moreover, the district court in Wilson rejected the reference
to the manual section, finding that the quoted material was taken
out of context. See 17 F. Supp. 3d at 143 n.30 (quoting HALLEX
§ I-5-4-40).
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disability-prior-to-DLI determination where the ALJ made no prior
finding of disability, either at present or prior to DLI).
Plainly, there is a need for clarification.
C. The meaning of "should"
To compound the confusion, the Commissioner has taken
directly conflicting positions during this case on the meaning of
a key provision within SSR 83-20. The ruling states that "the
[ALJ] should call on the services of a medical advisor when onset
must be inferred." SSR 83-20, 1983 WL 31249, at *3 (emphasis
added). Before the district court, the Commissioner argued that
"SSR 83-20 . . . does not explicitly require an ALJ to call a
medical advisor, but states that one should be called," thus
appealing to the non-mandatory nature of the word "should." Def.'s
Mem. in Supp. of Mot., at 13 n.8. During oral argument on appeal,
however, counsel for the Commissioner conceded that "should" is
mandatory.9 This concession is especially puzzling given that
other circuits have held to the contrary -- i.e., that SSR 83-20's
directive is not mandatory because the ruling states that the ALJ
"should" seek the aid of a medical advisor rather than "must" or
"shall." See, e.g., Eichstadt, 534 F.3d at 667.
9 When asked if the Commissioner's position is that SSR 83-
20's use of "should" should be read as "shall," counsel for the
Commissioner replied in the affirmative, adding "we don't contest
that."
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In sum, the gaps and inconsistencies in the
Commissioner's arguments as to the general applicability of SSR
83-20 pose a challenge to any decisionmaker attempting to determine
when or how to apply the ruling. We urge the Commissioner to act
swiftly to revise SSR 83-20 and enunciate a coherent explanation
of the ruling's purpose and application, thereby providing much-
needed clarity for claimants, the agency's own adjudicators, and
the courts.
IV.
As explained above, assuming the applicability of SSR
83-20, we find error in the court's determination that Fischer's
contemporaneous medical evidence was ambiguous and required the
ALJ to call a medical advisor. We therefore vacate the judgment
of the district court and remand for consideration of Fischer's
remaining claims.10
So ordered.
10In her brief to the district court, Fischer argued, among
other things, that the ALJ violated SSR 03-02p when he did not
properly evaluate her Chronic Pain Syndrome diagnosis. The
district court did not reach Fischer's asserted claims, and the
parties have not argued them before us or asked us to resolve them.
We therefore leave these matters to the district court to address
in the first instance on remand.
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