NOSSCR Social Security Forum: Fourth Circuit Rules on New Evidence Submitted to Appeals Council
Published in the NOSSCR (National Organization of Social Security Claimants’ Representatives) Social Security Forum, February 2012
By Robertson H. Wendt, Jr., Esq.
North Charleston, SC
In a recently published opinion, the U. S. Court ofAppeals for the Fourth Circuit resolved a conflict within the Circuit over the summary denial ofrequests for review when new evidence is submittedto the Appeals Council. Meyer v. Astrue, 662 F.3d
700 (4th Cir. 2011) The court rejected argumentsthat the Appeals Council has a duty to articulatereasons for denying a request for review, but wenton to reverse the Commissioner and remand the case for administrative findings of fact regardingnew and material opinion evidence submitted tothe Appeals Council.
Meyer suffered severe spinal injuries when he fell 25feet out of a stand while hunting. His neurosurgeonand pain management doctors declined to provide medical opinions in support of the disability claim, forcing Meyer to obtain an independent medicalexamination (IME) to prove his case. The ALJ rejected the IME opinion and denied the claim, noting that none of Meyer’s treating physicianshad expressed an opinion concerning work-relatedrestrictions.
On request for Appeals Council review, Meyerwas advised to make another attempt at getting the treating neurosurgeon to support his claim.This time, the doctor agreed to help and prepareda detailed opinion letter. The Appeals Counciladmitted the new opinion into the administrativerecord but summarily denied the request for review.
The Fourth Circuit agreed with the majority of thecircuits in holding that neither the Social SecurityAct nor the regulations requires the Appeals Councilto articulate reasons for its decision to deny a requestfor review, even when new and material evidence is submitted at the Appeals Council level. The court also held that when the Appeals Council denies a request for review, the ALJ decision becomes thefinal decision of the Commissioner for purposes ofthe judicial review statute, 42 U.S.C. § 405(g).
The Court also held that lack of administrative analysis of new evidence by the Appeals Councildoes not render judicial review “impossible” – aslong as the record provides an adequate explanation of the Commissioner’s decision. In such cases the Court can either affirm or reverse outright basedsolely on its review of the administrative record asa whole.
While the Fourth Circuit affirmed the Commissioner’s interpretation of the Act and regulations regardingAppeals Council review, the court reversed andremanded the case on the ground that the courtcould not determine whether substantial evidence
supported the ALJ decision without further findingsof fact by the Commissioner regarding the newopinion evidence submitted to the Appeals Council.
In so ruling, the Fourth Circuit relied on its prior holding in Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93 (4th Cir. 1991)(en banc).
The Court outlined a range of options available to reviewing courts when new evidence is submitted to the Appeals Council. At one end of the spectrumthe Court cited Smith v. Chater, 99 F.3d 635 (4th Cir. 1996), as an example of an ALJ decision that is supported by substantial evidence and should be affirmed despite the submission of new evidence, because the new evidence is not material. On the other end of the spectrum is Wilkins, which the Court cited as an example of when it is appropriate toreverse an ALJ decision outright, with instructionsto award benefits because the new and material evidence submitted to the Appeals Council is notcontroverted by other evidence in the record. The third option available to reviewing courts, whichlies between the two bookends of affi rmance and outright reversal, occurs when the court cannotdetermine whether substantial evidence supportsthe ALJ denial of benefits because the new evidence is material but there is other competing evidence ofrecord that conflicts with the new evidence.
The Fourth Circuit concluded that Meyer’s newevidence required the middle path of remandfor administrative findings of fact. The Court concluded that assessing the probative value ofcompeting evidence is quintessentially the role ofthe fact-finder, not the courts. In cases in which the Commissioner has not made any findings of factregarding new and material evidence submitted tothe Appeals Council, and there is other evidenceof record which conflicts with the new evidence, the court cannot undertake that action in the first instance but must remand the case instead.
The Court also acknowledged that in some cases, additional administrative fact-finding would behelpful for purposes of judicial review, though notrequired by the regulatory scheme. The Court went on to observe that analysis of new evidence by the Appeals Council or remand by the Appeals Councilto the ALJ for such analysis, would be “particularly” helpful when the new evidence constitutes theonly medical opinion evidence in the record from a treating physician.
The Meyer case will be disappointing to those looking for a bright line test. The Fourth Circuit firmly held that it is not the role of the courts toweigh evidence. And the court made it clear that it will not reverse outright or remand a case basedon new evidence submitted to the Appeals Councilunless that evidence is material in the sense that
it could have changed the ALJ’s decision. But the court’s determination of materiality requires it to evaluate the administrative record as a whole – and how can this be accomplished unless the court, to some degree, weighs the evidence?
Practice Tips
While the Meyer decision may not simplify federalcourt appeals in which new evidence is submitted to the Appeals Council, it does provide some valuable lessons for Social Security practitioners.
• First and foremost, Meyer emphasizes the primacyof the treating physician opinion in determining whether a claimant is disabled. If the new evidence submitted at the Appeals Council level is theopinion of a treating physician, the court is morelikely to find that the new evidence is material and that reversal or remand is warranted. This is particularly the case when the new evidenceconstitutes the only opinion evidence in the record from a treating physician.
• The second lesson to be gleaned from Meyer is that attorneys should always strive to obtain and submit new evidence from treating physicians atany level of appeal, including the Appeals Council or federal court. In cases such as Meyer, a treatingphysician who was reluctant to give a writtenopinion at the hearing level may be convinced toprovide that opinion on appeal when advised that the case was denied because the doctor had declined to help. Attorneys should consider taking cases atthe Appeals Council level even though the claimantwas previously represented by another attorney or appeared at the hearing pro se. Many of these casescan be won on appeal by submitting a new treating physician’s opinion, particularly when there wasno treating physician opinion in the record before the ALJ.
• Last of all, Meyer suggests that when a treatingphysician refuses to provide an opinion prior tothe ALJ hearing, it is important to document that fact in the record. Meyer’s efforts to get opinions from his treating physicians prior to the hearingwere addressed in the pre-hearing brief, Meyer’stestimony, and in closing argument at the hearing. These facts were cited by the Fourth Circuit andhighlighted the materiality of the new treating physician opinion. While there is no good causerequirement for submission of new evidence at theAppeals Council level, the fact that Meyer had beendiligent in seeking a treating physician opinionmade the case for a remand far more compelling to the reviewing court.
