Disability Law Blog

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.

Chambers v. Barnhart, No. 02-5163 (10th Cir. Nov. 23, 2004)

The Tenth Circuit, in an interesting opinion by Circuit Judge Terrence L. O'Brien, affirms a denial of Title II and Title XVI benefits at step 4 of the SEP. The sole issue, as formulated by the Court, was "whether the Appeals Council erred in failing to consider evidence first submitted on her administrative appeal pursuant to 20 C.F.R. §§ 404.970 (b), 416.1470(b)." Since the claimant alleged disability primarily due to hip and leg pain, and since the new evidence related to lung problems, the new evidence had no bearing on the claimant's disability prior to the date of the ALJ's hearing decision, and the evidence was properly disregarded.

The opinion is significant in at least two respects: First, the Court summarizes the guiding principles it has developed in a series of unpublished decisions following O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994), the first case in which the Court considered the question of the status of evidence submitted to the Appeals Council. Second, the decision contains a very important reminder that the District Court (or, in this case, the Magistrate Judge) must defer to the agency to make factual determinations:

[I]t is important to disclaim reliance on an alternative rationale invoked by the judge for upholding the denial of benefits. Specifically, the judge held that even if some of the new evidence in question qualified under the regulations and, thus, should have been considered by the Appeals Council, the denial of benefits could be affirmed under O’Dell despite the Appeals Council’s omission, because “there would still be substantial evidence supporting the ALJ’s determination.” App. Vol. II, at 236.

This holding misreads O’Dell and invades the administrative province of the Appeals Council, which has the responsibility to determine in the first instance whether, following submission of additional, qualifying evidence, the ALJ’s decision “is contrary to the weight of the evidence currently of record.” 20 C.F.R. §§ 404.970(b), 416.1470(b). See generally Parris v. Heckler, 733 F.2d 324, 326 (4th Cir. 1984) (discussing Appeals Council’s broad authority over and ultimate responsibility for factual determinations in matters involving new evidence under § 404.970(b)). Only after the Appeals Council makes this determination do the courts properly review the denial of benefits–if that was the Appeals Council’s decision–on the entire record under the deferential substantial-evidence standard. That is in fact what happened in O’Dell.

In a footnote, the Court continues the theme: "The magistrate judge’s approach would arrogate to the courts the power to deprive a claimant of this potential administrative benefit through a form of preemptive judicial review. We know of no authority for such power."

Pollard v. Halter, No. 03-6007, __ F.3rd __ (2nd Cir. July 23, 2004)

The Second Circuit, in an opinion authored by Judge Rosemary S. Pooler, reverses and remands a child's SSI claim involving ADHD and ODD based on new and material evidence that was not considered by SSA:

"[Plaintiff] claims that the Commissioner erred in denying disability benefits to David by failing to consider new evidence regarding the severity of David’s attention deficit hyperactivity disorder (“ADHD”) and oppositional defiant disorder (“ODD”), as well as evidence regarding neurological and chemical imbalances in his brain. A. 8. We find that the district court erred in applying outdated SSA regulations in reviewing David’s claim. Moreover, we find that the new evidence was material and should have been considered. Accordingly, we reverse and remand to the district court with instructions to remand the matter to the Commissioner for further proceedings consistent with this opinion."