United States District Court, M.D. Alabama, Northern Division
SUSAN RUSS WALKER, Chief Magistrate Judge.
Plaintiff Teresa McMeans, on behalf of her minor child, brings this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security ("Commissioner") denying her application for child disability benefits under Title XVI of the Social Security Act. The parties have consented to entry of final judgment by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). (Doc. ## 22, 23). Upon review of the record, the court concludes that the Commissioner's decision is due to be reversed because the administrative record does not demonstrate that the Appeals Council evaluated the new medical evidence submitted by the plaintiff on November 17, 2011, as it was required to do.
RELEVANT PROCEDURAL BACKGROUND
On October 12, 2011, after an administrative hearing, the ALJ issued a decision denying plaintiff's claim for benefits. (R. 8-32). Thereafter, plaintiff requested review by the Appeals Council. (R. 7). Plaintiff's counsel transmitted the request for review to the Appeals Council with a memorandum brief alleging error, a medical source statement from Dr. Clemmie Palmer,  updated progress notes from Dr. Palmer, an appointment of representative form, and plaintiff's contract with counsel for representation. (R. 7, 202-05, 412-18). On January 9, 2013, the Appeals Council denied review. (R. 1-5). Thereafter, plaintiff commenced the present action seeking review of the Commissioner's final decision. (Doc. # 1).
THE PARTIES' CONTENTIONS
Plaintiff argues, inter alia, that "[t]he Appeals Council failed to show in its written denial that it adequately evaluated the new evidence submitted by Ms. McMeans before denying review." (Doc. # 11, p. 3). She notes that she transmitted fourteen pages to the Appeals Council by facsimile on November 17, 2011, but that the sole exhibit identified in the Appeals Council's exhibit list is her brief. ( Id., pp. 3-4)(citing R. 4, 5, 7 and R. 202-205 (Exhibit 13E)). She points out that the last "F" exhibit in the administrative transcript is Exhibit 18F - a June 2011 progress note from Dr. Palmer - and that Dr. Palmer's medical source opinion and progress notes submitted with her request for review do not appear in the administrative transcript. (Doc. # 11, p. 4 and n. 3)(citing R. 410-11 and the "Court Transcript Index, " Doc. # 21-1, pp. 1-3). Plaintiff attaches to her brief the fourteen pages that she sent to the Appeals Council on November 17, 2011, and a fax confirmation showing successful transmission of fourteen pages to the Appeals Council. (Doc. # 11-2). Plaintiff further observes that the Appeals Council did not return the omitted evidence to her, as it should have if the evidence were not material. (Doc. # 11, p. 7 n. 7 and p. 8 n. 8). After noting the omission of the additional medical evidence from the administrative transcript, plaintiff argues that the AC failed to explain its analysis of the new, material evidence adequately (Doc. # 11, pp. 4-8), and, further, that the Appeals Council erred by failing to remand her claim to the ALJ in light of that new and material evidence (id., pp. 8-12).
The Commissioner does not dispute that plaintiff submitted Dr. Palmer's signed MSO form and treatment notes to the Appeals Council with her request for review. (See Commissioner's brief, Doc. # 20, pp. 9-10). On October 28, 2013, the Commissioner appended a copy of the medical evidence that plaintiff had filed in this court to the administrative transcript, with a "supplemental certification" stating "that the documents annexed hereto are true and accurate copies of Medical Records submitted on November 17, 2011 that were omitted from the administrative record[.]" (Doc. # 21-10 through Doc. # 21-12). The Commissioner argues that the Appeals Council's notice denying review "is not a final decision of the Commissioner" that is subject to judicial review and, further, that the Appeals Council is not required to explain its denial of review. (Doc. # 20, pp. 10-11). She notes that "new evidence first submitted to the Appeals Council is part of the administrative record that goes to the district court for review'" (id. at p. 11)(quoting Keeton v. Dep't. of Health & Human Servs. , 21 F.3d 1064, 1067 (11th Cir. 1994), and contends that, under Ingram v. Commissioner of Soc. Sec. Admin. , 496 F.3d 1253 (11th Cir. 2007), this court should determine whether the new evidence deprives the ALJ's decision to deny benefits of substantial evidentiary support (id.)(citing Ingram , 496 F.3d at 1266). In other words, the Commissioner contends that this court may not review the Appeals Council's decision at all and that, in reviewing the ALJ's decision, it should apply the "sentence four" substantial evidence standard to the record as a whole, including the additional medical evidence.
The judicial review provision of the Social Security Act provides that "[a]ny individual, after any final decision of the Commissioner of Social Security... may obtain a review of such decision by a civil action[.]" 42 U.S.C. § 405(g). In such a civil action,
[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.... The court... may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.
Id. (sentences four and six). In this action, plaintiff challenges the decision of the Appeals Council to deny review, based on the new evidence she submitted to the Appeals Council. (See plaintiff's statement of issues, Doc. # 11, p. 3). Contrary to the Commissioner's contention, the Appeals Council's denial of review is a final decision of the Commissioner subject to judicial review. See Ingram , 496 F.3d at 1262 ("The settled law of this Circuit is that a court may review, under sentence four of section 405(g), a denial of review by the Appeals Council.")).
While this case involves "new evidence" first presented properly - as the parties agree - at the Appeals Council level, it does not present the paradigmatic "sentence four" appeal in which the Appeals Council has denied review after considering a claimant's new evidence and finding it insufficient to impeach the ALJ's decision. Here, instead, the administrative record does not demonstrate that the Appeals Council considered the new evidence in denying review, or that it even evaluated the new evidence at all. In its notice denying review, under the heading "What We Considered[, ]" the Appeals Council states:
In looking at your case we considered the reasons you disagree with the decision in the material listed on the ...