Higginbotham v. Barnhart, No. 04-10197, __F.3d__ (5th Cir. Mar. 31, 2005)

The Fifth Circuit, in an opinion by Circuit Judge E. Grady Jolly, holds that since the Commissioner's "final decision" includes the Appeals Council denial of a request to review, the District Court must consider evidence that was first submitted to and considered by the Appeals Council. In so holding, the Fifth Circuit joins the Second, Fourth, Eight, Ninth and Tenth Circuits. The Third, Sixth, Seventh and Eleventh have held that when the Appeals Council denies review, the "final decision" to be reviewed by the court is the ALJ decision and the record actually before the ALJ. Any evidence first submitted to the Appeals Council is not considered by the district courts in these circuits.