Meyer v. Astrue

Fourth Circuit Rules on New Evidence Submitted to Appeals Council

by Robertson H. Wendt, Jr., Esq.

In a recently published opinion, the U. S. Court of Appeals for the Fourth Circuit resolved a conflict within the Circuit over the summary denial of requests for review when new evidence is submitted to the Appeals Council. Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011) The court rejected arguments that the Appeals Council has a duty to articulate reasons for denying a request for review, but went on to reverse the Commissioner and remand the case for administrative findings of fact regarding new and material opinion evidence submitted to the Appeals Council.

Meyer suffered severe spinal injuries when he fell 25 feet out of a stand while hunting. His neurosurgeon and pain management doctors declined to provide medical opinions in support of the disability claim, forcing Meyer to obtain an independent medical examination (IME) to prove his case. The ALJ rejected the IME opinion and denied the claim, noting that none of Meyer's treating physicians had expressed an opinion concerning work-related restrictions.

On request for Appeals Council review, Meyer was advised to make another attempt at getting the treating neurosurgeon to support his claim. This time, the doctor agreed to help and prepared a detailed opinion letter. The Appeals Council admitted the new opinion into the administrative record but summarily denied the request for review.

The Fourth Circuit agreed with the majority of the circuits in holding that neither the Social Security Act nor the regulations requires the Appeals Council to articulate reasons for its decision to deny a request for 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 the final decision of the Commissioner for purposes of the judicial review statute, 42 U.S.C. § 405(g).

The Court also held that lack of administrative analysis of new evidence by the Appeals Council does not render judicial review "impossible" as long as the record provides an adequate explanation of the Commissioner's decision. In such cases the Court can either affirm or reverse outright based solely on its review of the administrative record as a whole.

While the Fourth Circuit affirmed the Commissioner's interpretation of the Act and regulations regarding Appeals Council review, the court reversed and remanded the case on the ground that the court could not determine whether substantial evidence supported the ALJ decision without further findings of fact by the Commissioner regarding the new opinion 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 bane).

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 spectrum the 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 to reverse an ALJ decision outright, with instructions to award benefits because the new and material evidence submitted to the Appeals Council is not controverted by other evidence in the record. The third option available to reviewing courts, which lies between the two bookends of affirmance and outright reversal, occurs when the court cannot determine whether substantial evidence supports the ALJ denial of benefits because the new evidence is material but there is other competing evidence of record that conflicts with the new evidence.

The Fourth Circuit concluded that Meyer's new evidence required the middle path of remand for administrative findings of fact. The Court concluded that assessing the probative value of competing evidence is quintessentially the role of the fact-finder, not the courts. In cases in which the Commissioner has not made any findings of fact regarding new and material evidence submitted to the Appeals Council, and there is other evidence of 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 be helpful for purposes of judicial review, though not required by the regulatory scheme. The Court went on to observe that analysis of new evidence by the Appeals Council or remand by the Appeals Council to the ALJ for such analysis, would be "particularly" helpful when the new evidence constitutes the only 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 to weigh evidence. And the court made it clear that it will not reverse outright or remand a case based on new evidence submitted to the Appeals Council unless 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 federal court 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 primacy of the treating physician opinion in determining whether a claimant is disabled. If the new evidence submitted at the Appeals Council level is the opinion of a treating physician, the court is more likely to find that the new evidence is material and that reversal or remand is warranted. This is particularly the case when the new evidence constitutes 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 at any level of appeal, including the Appeals Council or federal court. In cases such as Meyer, a treating physician who was reluctant to give a written opinion at the hearing level may be convinced to provide that opinion on appeal when advised that the case was denied because the doctor had declined to help. Attorneys should consider taking cases at the Appeals Council level even though the claimant was previously represented by another attorney or appeared at the hearing pro se. Many of these cases can be won on appeal by submitting a new treating physician's opinion, particularly when there was no treating physician opinion in the record before the ALJ.
  • Last of all, Meyer suggests that when a treating physician refuses to provide an opinion prior to the 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 hearing were addressed in the pre-hearing brief, Meyer's testimony, and in closing argument at the hearing. These facts were cited by the Fourth Circuit and highlighted the materiality of the new treating physician opinion. While there is no good cause requirement for submission of new evidence at the Appeals Council level, the fact that Meyer had been diligent in seeking a treating physician opinion made the case for a remand far more compelling to the reviewing court.

The Meyer Fourth Circuit Slip Opinion, Briefs of the Appellee and Appellant, and Reply Brief of the Appellant can be ordered as Available Material No.1896. See Order Form on page 43.

Meyer v. Astrue Opinion 4th Circuit Website by Robertson Wendt