Last Thursday Judge Raymond Fisher of the Ninth Circuit noted the existence of a deep circuit split involving Title II of the Social Security Act.
For those readers who are not acquainted with the application process for social security disability benefits, the Social Security Administration (SSA) relies on an army of administrative law judges (ALJs) to determine whether applicants are eligible for disability benefits. Applicants who are not happy with the Administration’s initial decision may request reconsideration, followed by a hearing with an ALJ. If the applicant is still not satisfied, they may appeal the ALJ’s decision to the Administration's “Appeals Council.”
Only after the Commissioner of Social Security has rendered a “final decision” may the applicant request a district court’s review of that decision. "In such a proceeding," Judge Fisher explained last week, "the Commissioner . . . shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based." Brewes v. Comm'r of SSA, No. 11-35216 (9th Cir. June 14, 2012) (quoting 42 U.S.C. § 405(g)). "Based on 'the pleadings and transcript of the record,' the court hearing the case may enter 'a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing." Id.
What qualifies as a "final decision," you ask? The answer to this question is particularly important to district courts tasked with reviewing the administrative record because it determines whether the court should treat evidence submitted by the applicant to the Appeals Council, but not to the ALJ, as having been submitted after the Commissioner's final decision.
But given the SSA's multilayered appeals process coupled with its ambiguous regulations, courts have understandably struggled to come up with a uniform definition for the term. Some circuits have held that "final decision" refers to the ALJ’s decision alone, while other circuits have held that the final decision also includes the Appeals Council’s denial of a request for review (district courts adopting the latter position may consider new evidence submitted to the Appeals Council). Compare Matthews v. Apfel, 239 F.3d 589, 593-94 (3d Cir. 2001) (holding that the “final decision” to be reviewed by a district court refers only to the ALJ’s decision); Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998) (same); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993) (same); Eads v. Sec'y of Dep't of Health & Human Servs., 983 F.2d 815, 817-18 (7th Cir. 1993) (same); with Higginbotham v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005) (holding that, because the Appeals Council’s denial of a request for review is part of the “final decision,” the district court may review and consider evidence that the appellant submitted to the Appeals Council but failed to submit to the ALJ); Perez v. Chater, 77 F.3d 41, 44-45 (2d Cir. 1996); O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994) (same); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) (same); Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992) (same); Wilkins v. Sec'y, Dept. of Health Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en banc) (same).