Falge v. Apfel

• Decision Date: 14 August 1998
• Docket Number: No. 97-3279,97-3279
• Citation: 150 F.3d 1320
• Parties: 23 Fla. L. Weekly D1721, 57 Soc.Sec.Rep.Ser. 811, Unempl.Ins.Rep. (CCH) P 16080B Jay C. FALGE, Jr., Plaintiff-Appellant. v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1320

150 F.3d 1320

23 Fla. L. Weekly D1721, 57 Soc.Sec.Rep.Ser. 811,

Unempl.Ins.Rep. (CCH) P 16080B

Jay C. FALGE, Jr., Plaintiff-Appellant. v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.

No. 97-3279.

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Aug. 14, 1998.

Michael A. Steinberg, Tampa, FL, for Plaintiff-Appellant.

Charles R. Wilson, U.S. Atty., Tampa, FL, Elyse Sharfman, Office of SSA, Mary Ann Sloan, Nancy Jordak, Atlanta, GA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, BLACK and HULL, Circuit Judges.

EDMONDSON, Circuit Judge:

Jay Falge, Jr. appeals the district court's order affirming the Commissioner's denial of Falge's applications for disability benefits, 42 U.S.C. § 405(g), and supplemental security income, 42 U.S.C. § 1382(c)(3). We affirm.

Background

Falge applied for disability benefits and supplemental security income after an automobile accident, that occurred on 18 February 1992, allegedly left him with neck and back injuries. Falge claims that the accident left him with a pinched nerve in his neck and bulging discs in his back, causing severe headaches.

Before the accident, Falge worked as an air conditioner mechanic and as a sheet metal worker. Falge has a high school education and four years of vocational training. At the time of the accident, Falge was 48 years old.

After the initial denial of Falge's application for benefits, Falge requested a hearing. A hearing was scheduled before an Administrative Law Judge (ALJ). As a result of the hearing, the ALJ decided that Falge was not "disabled" as defined in the Social Security Act and, thus, that Falge was not entitled to the requested benefits. ¹ Falge requested review of this decision by the Appeals Council of the Social Security Administration (AC). The AC denied review of Falge's claim. ²

Falge states in his brief that, at the hearing before the ALJ, no vocational or medical expert testimony about Falge's physical capabilities for employment was presented. But many medical records and written opinions documenting treatment and diagnosis of Falge's medical condition (including some physical limitations due to the injuries) were provided to the ALJ. After the ALJ's decision--but before the AC's denial of review--Falge produced an additional doctor's report, by Dr. Inga, describing Falge's physical limitations. ³

The AC, after considering the new evidence of Dr. Inga's report, ⁴ denied review. The district court then affirmed the ALJ's decision to deny benefits.

Discussion

A "final" decision of the Secretary of the Social Security Administration is subject to judicial review. See 42 U.S.C. § 405(g). "When the Appeals Council grants review, the Appeals Council decision is reviewable as the final decision of the Secretary[, but w]hen the Appeals Council denies review, the decision of the ALJ becomes the final decision of the Secretary." Keeton v. Department of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir.1994).

An ALJ's decision will be reversed only if the decision is not supported by substantial evidence. See Barron v. Sullivan, 924 F.2d 227, 229-30 (11th Cir.1991). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In other words, substantial evidence is "more than a mere scintilla." Id. We review de novo the district court's judgment that substantial evidence supports the ALJ's decision.

When evidence has been presented to the AC that was not presented to the ALJ (new evidence), we have already concluded that the new evidence is part of the record on appeal. ⁵ See Keeton, 21 F.3d at 1066-67. But until now, we have not directly answered the next question: What consideration should be afforded that new evidence by reviewing courts when the AC denied review of the ALJ's decision?

The circuits addressing this question have followed different approaches. Some circuits have concluded that courts should review the ALJ's decision for substantial evidence "on the record as a whole, including the new evidence submitted after the determination was made [by the ALJ]." See, e.g., Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.1994); O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994). But those circuits do recognize the difficulty posed by reviewing evidence never presented to the ALJ: "Of necessity, that means that we must speculate to some extent on how the administrative law judge would have weighed the newly submitted reports if they had been available for the original hearing. We consider this to be a peculiar task for a reviewing court." Riley, 18 F.3d at 622. We agree that this speculation would be a peculiar task: reviewing courts would be placed in the unfamiliar position of acting as fact finders.

We think the better approach is the approach taken by the Seventh Circuit in Eads v. Secretary of Dep't of Health and Human Servs., 983 F.2d 815 (7th Cir.1993); and we adopt today that general approach as the law of this circuit. The Seventh Circuit wrote these words about new evidence:

[T]he new evidence is a part of the administrative record that goes to the district court in the judicial review proceeding, and then to this court if there is an appeal. It might seem therefore that the district judge and we would be free to consider the new evidence that was before the Appeals Council in deciding whether the decision denying benefits was supported by the record as a whole. And of course this is right when the Council has accepted the case for review and made a decision on the merits, based on all the evidence before it ... [but i]t is wrong when the Council has refused to review the case. For then the decision reviewed in the courts is the decision of the administrative law judge.... The correctness of that decision depends on the evidence that was before him.... He cannot be faulted for having failed to weigh evidence never presented to him....

Eads, 983 F.2d at 817. ⁶ Thus, this will be our rule: when the AC has denied review, we will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence.

In different kinds of cases, however, we will consider evidence submitted only to the AC. For example, 42 U.S.C. § 405(g) permits courts to remand a case to the Social Security Administration for consideration of newly discovered evidence. To succeed on a claim that remand is appropriate, Falge would have had to show that (1) new, noncumulative evidence exists, (2) the evidence is material such that a reasonable possibility exists that the new evidence would change the administrative result, and (3) good cause exists for the applicant's failure to submit the evidence at the appropriate administrative level. See Cannon v. Bowen, 858 F.2d 1541 (11th Cir.1988); see also Keeton, 21 F.3d at 1067 (court may remand to Secretary if new evidence is material and good cause exists for failure to incorporate the evidence in the record during proceedings before the ALJ). ⁷ But, Falge has provided no reason--no good cause--why Dr. Inga's report was not made available during proceedings before the ALJ. ⁸

We accept that, if an applicant can show good cause for his failure to introduce evidence during a hearing before the ALJ (even if the evidence was available to the applicant before the ALJ's decision) courts may consider that evidence in deciding whether the case should be remanded for further administrative proceedings to include the new evidence. But again, that kind of case is not before us. Falge has neither shown nor alleged good cause for his failure to introduce Dr. Inga's May 1994 report during the hearing before the ALJ.

And, we can think of another kind of case where we will consider evidence submitted only to the AC. "When the Appeals Council refuses to consider new evidence submitted to it and denies review, that decision [the denial of review] is ... subject to judicial review because it amounts to an error of law." Keeton, 21 F.3d at 1066. To review the AC's denial of review, courts will have to look at the pertinent evidence to determine if the evidence is new and material, the kind of evidence the AC must consider in making its decision whether to review an ALJ's decision. See 20 C.F.R. § 404.970(b) ("Appeals Council shall evaluate the entire record including the new and material evidence submitted to it if it relates to the period on or before the date of the administrative law judge hearing decision.") (emphasis added); 20 C.F.R. § 416.1470(b) (same).

In this case, however, Falge does not seem to appeal the AC's decision to deny review. Instead Falge appeals only the ALJ's decision to deny benefits and the district court's affirmance of that denial, claiming the decision is not supported by substantial evidence. So, we need not consider the new evidence of Dr. Inga's report in the light of the AC's...