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Thursday, December 8

  1. page Judicial Review - Harmless Error edited ... argue that the error did A 2009 decision of the Supreme Court, Shinseki v. Sanders, 556 US…
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    argue that the error did
    A 2009 decision of the Supreme Court, Shinseki v. Sanders, 556 US 396 (2009), dealt with that line of argument in an arguably analogous setting – judicial review of disability benefit decisions made by the Veterans Administration. In Shinseki the Court held that in this context the reviewing court was to "apply the same kind of 'harmless-error' rule that courts ordinarily apply in civil cases." Id. at 406. Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal has the burden of explaining how the error caused harm.
    One circuit court, the ninth, has explicitly concluded that rationale of Shinseki v. Sanders applies to Social Security cases, as well:
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Wednesday, November 23

  1. page New Evidence Submitted to Appeals Council - 11th Circuit edited ... The settled law of this Circuit is that a court may review, under sentence four of section 405…
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    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. When no new evidence is presented to the Appeals Council and it denies review, then the administrative law judge's decision is necessarily reviewed as the final decision of the Commissioner, but when a claimant properly presents new evidence to the Appeals Council, a reviewing court must consider whether that new evidence renders the denial of benefits erroneous.
    Other circuits on this issue.

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  2. page New Evidence Submitted to Appeals Council - 10th Circuit edited ... We join the Fourth, Eighth, Ninth, and Eleventh Circuits, in holding that the new evidence bec…
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    We join the Fourth, Eighth, Ninth, and Eleventh Circuits, in holding that the new evidence becomes part of the administrative record to be considered when evaluating the Secretary's decision for substantial evidence.
    Other circuits on this issue.

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  3. page New Evidence Submitted to Appeals Council - 9th Circuit edited ... We review the judgment of the district court de novo. Baxter v. Sullivan, 923 F.2d 1391, 1394 …
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    We review the judgment of the district court de novo. Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). In so doing, we consider the rulings of both the ALJ and the Appeals Council. Although the ALJ's decision became the Secretary's final ruling when the Appeals Council declined to review it, the government does not contend that the Appeals Council should not have considered the additional report submitted after the hearing, or that we should not consider it on appeal. Moreover, although the Appeals Council "declined to review" the decision of the ALJ, it reached this ruling after considering the case on the merits; examining the entire record, including the additional material; and concluding that the ALJ's decision was proper and that the additional material failed to "provide a basis for changing the hearing decision." For these reasons, we consider on appeal both the ALJ's decision and the additional material submitted to the Appeals Council. See Bates v. Sullivan, 894 F.2d 1059, 1063-64 (9th Cir. 1990) (reviewing de novo the Appeals Council's refusal to review the decision of the ALJ where the claimant presented new material to the Appeals Council after the hearing before the ALJ). See also 20 C.F.R. § 404.970(b) (providing that the Appeals Council shall evaluate the entire record, including new relevant evidence, and shall review the decision of the ALJ if the ALJ's actions, findings, or conclusions are contrary to the weight of the evidence in the entire record). The Secretary's findings must be reversed if they are tainted by legal error or if the denial of benefits is unsupported by substantial evidence. Wainwright v. Secretary of Health & Human Servs., 939 F.2d 680, 682 (9th Cir. 1991) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
    Other circuits on this issue.

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  4. page New Evidence Submitted to Appeals Council - 8th Circuit edited ... We review the district court's decision de novo, and will affirm if the Commissioner's decisio…
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    We review the district court's decision de novo, and will affirm if the Commissioner's decision is supported by substantial evidence on the record as a whole, including the new evidence that was considered by the Appeals Council. Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner's decision." Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). We consider evidence that "supports as well as detracts from the Commissioner's decision, and we will not reverse simply because some evidence may support the opposite conclusion." Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008) (internal quotations omitted).
    Other circuits on this issue.

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  5. page New Evidence Submitted to Appeals Council - 7th Circuit edited ... [Claimant] stakes his all on persuading us to reverse the denial of disability benefits on the…
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    [Claimant] stakes his all on persuading us to reverse the denial of disability benefits on the ground that the administrative law judge's decision is erroneous when evaluated in light of all the evidence in the case, including evidence that the administrative law judge could not have considered because it was never submitted to him. This we cannot properly do. It would change our role from that of a reviewing court to that of an administrative law judge, required to sift and weigh evidence in the first instance, rather than limited as we are to reviewing evidentiary determinations made by the front-line factfinder. Ehrhart v. Secretary, 969 F.2d 534, 538 (7th Cir. 1992). We could require the administrative law judge to reconsider his decision if Eads brought himself within the scope of section 405(g)(6) by persuading us that the doctor's letter was really new and material, which he has not attempted to do. That would be different from making the decision on benefits ourselves, as Eads in effect invites us to do.
    Other circuits on this issue.

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  6. page New Evidence Submitted to Appeals Council - 6th Circuit edited ... Our conclusion that courts may not reverse an administrative law judge's decision on the basis…
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    Our conclusion that courts may not reverse an administrative law judge's decision on the basis of evidence first submitted to the Appeals Council is consistent with the precedents in this circuit.
    Other circuits on this issue.

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  7. page New Evidence Submitted to Appeals Council - 5th Circuit edited ... In sum, the statute provides that a claimant may obtain review of "any final decision of …
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    In sum, the statute provides that a claimant may obtain review of "any final decision of the Commissioner of Social Security." 42 U.S.C. § 405(g). Because the statute does not define "final decision of the Commissioner of Social Security", we must look to the regulations. The regulations do not explicitly define the term. We extrapolate from the words of the regulation, however, that "final decision of the Commissioner of Social Security" includes the Appeals Council's denial of a request for review because the regulations provide that the Commissioner's decision does not become final until after the Appeals Council makes its decision denying the claimant's request for review. We further conclude that the evidence submitted for the first time to the Appeals Council is part of the record on appeal because the statute itself provides that such record includes the "evidence upon which the findings and decision complained of are based." Id. Because the Appeals Council considered and evaluated such evidence, that evidence constitutes "evidence upon which the decision complained of is based." Id. Accordingly, the district court should have considered and addressed the new evidence that Higginbotham submitted to the Appeals Council.
    Other circuits on this issue.

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  8. page New Evidence Submitted to Appeals Council - 4th Circuit edited ... The evidence in this case, however, is not as one-sided as that in Smith or Wilkins. On consid…
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    The evidence in this case, however, is not as one-sided as that in Smith or Wilkins. On consideration of the record as a whole, we simply cannot determine whether substantial evidence supports the ALJ's denial of benefits here. The ALJ emphasized that the record before it lacked "restrictions placed on the claimant by a treating physician," suggesting that this evidentiary gap played a role in its decision. Meyer subsequently obtained this missing evidence from his treating physician. That evidence corroborates the opinion of Dr. Weissglass, which the ALJ had rejected. But other record evidence credited by the ALJ conflicts with the new evidence. The Appeals Council made the new evidence part of the record but summarily denied review of the ALJ decision. Thus, no fact finder has made any findings as to the treating physician's opinion or attempted to reconcile that evidence with the conflicting and supporting evidence in the record. Assessing the probative value of competing evidence is quintessentially the role of the fact finder. We cannot undertake it in the first instance. Therefore, we must remand the case for further fact finding.
    Other circuits on this issue.

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  9. page New Evidence Submitted to Appeals Council - 3d Circuit edited ... We have previously held that evidence that was not before the ALJ cannot be used to argue that…
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    We have previously held that evidence that was not before the ALJ cannot be used to argue that the ALJ's decision was not supported by substantial evidence. See Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991) (citing United States v. Carlo Bianchi & Co., 373 U.S. 709, 10 L. Ed. 2d 652, 83 S. Ct. 1409 (1963)). No statutory authority (the source of the district court's review) authorizes the court to review the Appeals Council decision to deny review. No statutory provision authorizes the district court to make a decision on the substantial evidence standard based on the new and material evidence never presented to the ALJ. Instead, the Act gives the district court authority to remand the case to the Commissioner, but only if the claimant has shown good cause why such new and material evidence was not presented to the ALJ.
    Other circuits on this issue.

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