PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MAURICE E. MEYER, III,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner No. 10-1581
of the Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(3:08-cv-03828-JFA)
Argued: October 27, 2011
Decided: December 2, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge King and Judge Duncan
joined.
COUNSEL
ARGUED: Robertson H. Wendt, Jr., LAW OFFICES OF
ROBERTSON WENDT, North Charleston, South Carolina,
2 MEYER v. ASTRUE
for Appellant. Jennifer Randall, SOCIAL SECURITY
ADMINISTRATION, Denver, Colorado, for Appellee. ON
BRIEF: William N. Nettles, United States Attorney, Marvin
J. Caughman, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Car-
olina; Dorrelyn K. Dietrich, Special Assistant United States
Attorney, SOCIAL SECURITY ADMINISTRATION, Den-
ver, Colorado, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After suffering severe injuries in an accidental fall, Maurice
Eugene Meyer applied for Social Security disability insurance
benefits. An administrative law judge ("ALJ") denied the
claim, noting that Meyer failed to provide an opinion from his
treating physician. When Meyer requested review of his claim
by the Appeals Council, he submitted a letter from his treating
physician detailing the injuries and recommending significant
restrictions on Meyer’s activity. The Appeals Council made
this letter part of the record but summarily denied Meyer’s
request for review; thus, the ALJ’s decision denying benefits
became the final decision of the Commissioner of the Social
Security Administration. Meyer appeals, contending that the
Appeals Council erred by failing to articulate specific findings
justifying its denial of his request for review. We reject that
argument. The Appeals Council need not explain its reasoning
when denying review of an ALJ decision. But because in this
case we cannot determine, from review of the record as a
whole, if substantial evidence supports the denial of benefits,
we must reverse and remand for further proceedings.
I.
In December 2004, Meyer fell 25 feet out of a deer stand
while hunting and suffered significant injuries. He fractured
MEYER v. ASTRUE 3
three lumbar vertebrae, which required reconstructive surgery.
He also fractured his left wrist and injured his left shoulder,
requiring additional surgery. At the time of his fall, Meyer
was 51 years old and owned and operated a rural feed store.
On December 13, 2004, Dr. Byron Bailey, an attending
neurosurgeon at the Medical University of South Carolina in
Charleston, performed Meyer’s back surgery. On December
26, Dr. Bailey discharged Meyer from the hospital, and
referred him for physical and occupational therapy. Dr. Bailey
observed Meyer in clinic for post-surgical follow-up through
the spring of 2005, and reviewed Meyer’s post-operative
progress through at least April 2006.
Following his surgery, Meyer underwent extensive physical
therapy at the Rehabilitation Centers of Charleston, averaging
between five and ten visits per month until his discharge in
June 2006. At that time, Dr. Bailey referred Meyer to the hos-
pital’s pain management clinic. Dr. Arthur R. Smith, an anes-
thesiologist, treated Meyer in clinic with various injections
that provided Meyer "short-term relief" from his pain. In
August 2007, however, Dr. Smith ceased the injections,
acknowledging that they failed to provide Meyer with any
"long-term benefit."
On July 13, 2005, Meyer filed a claim for disability insur-
ance benefits with the Social Security Administration. After
both his initial claim and request for reconsideration were
denied, Meyer requested a hearing. The ALJ heard Meyer’s
claim and issued an unfavorable decision on June 5, 2008.
In his opinion, the ALJ followed the federal regulations
governing administrative review of Social Security disability
claims, proceeding through the customary five-step sequential
analysis. See 20 C.F.R. § 404.1520(a). Applying the first three
steps, the ALJ determined that Meyer (1) had not engaged in
"substantial gainful activity" since the date of his accident, (2)
had the "severe impairments" of degenerative disc disease and
4 MEYER v. ASTRUE
a history of left wrist injury, but (3) did not have an impair-
ment "that meets or medically equals" an impairment that the
federal regulations define as disabling.
As the regulations instruct, the ALJ evaluated Meyer’s "re-
sidual functional capacity" before proceeding to step four. See
20 C.F.R. § 404.1520(a)(4). The ALJ concluded that Meyer
could perform "the full range" of "light work," which involves
"lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds," and "a good
deal of walking or standing, or . . . sitting most of the time
with some pushing and pulling of arm or leg controls." See id.
§ 404.1567(b). In reaching these conclusions, the ALJ found
Meyer’s assertion that "he suffered from constant, unrelent-
ing" pain not entirely "credible" because it was "inconsistent
with the medical evidence of record," including Meyer’s "re-
ports to his physicians, and the treatment sought and
received." The ALJ relied on evidence that between August
2005 and June 2006, Meyer reported improvements in his
condition, decreased pain, and less use of pain medication,
and clinical observations that during this time Meyer was "in
no apparent distress" and appeared "generally healthy." The
ALJ also cited a June 2006 one-page physical therapy dis-
charge form noting that Meyer "was able to perform his activ-
ities of daily living independently; had no work/recreational
restrictions; and could ambulate independently." Further, the
ALJ considered Meyer’s testimony that he was able to drive
and assist his wife in caring for their horses and dog, and evi-
dence suggesting that Meyer continued, although to a lesser
degree, to ride horseback and operate his tractor.
The ALJ emphasized that "[g]iven the claimant’s allega-
tions of totally disabling symptoms, one might expect to see
some indication in the treatment records of restrictions placed
on the claimant by a treating physician," yet a "review of the
records . . . reveals no [such] restrictions." Meyer had asserted
before the ALJ that although he sought opinions from Dr.
Bailey and Dr. Smith, his treating physicians, it was their pol-
MEYER v. ASTRUE 5
icy not to provide such opinion evidence in these types of pro-
ceedings. Meyer did submit the findings of Dr. Barry
Weissglass, who, at Meyer’s request, performed an indepen-
dent occupational evaluation of Meyer in November 2007. Dr.
Weissglass opined that Meyer was incapable of performing
the functions of light work and recommended restrictions on
his activities that were consistent with that finding, including
that Meyer not lift more than 10 pounds and refrain from
extended sitting or standing. However, the ALJ accorded Dr.
Weissglass’s opinion "only minimal evidentiary weight as it
is inconsistent with the other evidence of record," i.e., that
detailed above.
Proceeding to step four of the analysis, the ALJ concluded
that Meyer was unable to perform his past relevant work of
operating a rural feed store or being a marine machinist. At
the fifth and final step, the ALJ considered Meyer’s residual
functional capacity for light work, his age of 51 years, and his
"limited education," and, based on the Medical-Vocational
Guidelines, which take administrative notice of the availabil-
ity of job types in the national economy, concluded that
Meyer was not disabled. See 20 C.F.R. Pt. 404, Subpt. P, App.
2, R. 202.11.
After issuance of the ALJ decision on June 5, 2008, Meyer
timely sought review by the Appeals Council. With his
request for review, Meyer submitted new evidence not before
the ALJ, including an opinion letter from his treating physi-
cian, Dr. Bailey, dated August 18, 2008. In the letter, Dr. Bai-
ley described Meyer’s back injury and surgery and explained
that Meyer’s "post operative course has been complicated by
chronic, debilitating back pain which was anticipated due to
the magnitude of his injury." Dr. Bailey opined that Meyer’s
"long term restrictions include no lifting greater than 10
pounds, avoid bending, stooping, squatting, and no sitting,
standing or walking for more than 30 minutes without rest
periods." He explained that Meyer "will continue to require
frequent follow-up and medical management" and "will
6 MEYER v. ASTRUE
[likely] require further surgical intervention in the future." At
the close of his letter, Dr. Bailey noted his "agreement with
the majority of [Dr. Weissglass’s] findings."
On October 24, 2008, the Appeals Council denied Meyer’s
request for review. In doing so, the Appeals Council noted
that it made Dr. Bailey’s letter a part of the record. But in the
Notice of Appeals Council Action, the Appeals Council
"found that this information does not provide a basis for
changing the [ALJ]’s decision" and so "the [ALJ]’s decision
is the final decision of the Commissioner of Social Security
in [Meyer’s] case."
Meyer then filed this action. A magistrate judge recom-
mended affirmance of the Commissioner’s decision, conclud-
ing, inter alia, that Dr. Bailey’s letter should be accorded only
minimal weight because he was not one of Meyer’s treating
physicians. Meyer objected to the magistrate’s recommenda-
tion but the district court entered a final order affirming the
Commissioner’s decision. Meyer timely noted this appeal.
As the Appeals Council properly informed Meyer, because
it denied review, the decision of the ALJ became "the final
decision of the [Commissioner]." Wilkins v. Sec’y, Dep’t of
Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en
banc); see also Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
We uphold the factual findings underpinning the Commis-
sioner’s final decision "if they are supported by substantial
evidence and were reached through application of the correct
legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996); see 42 U.S.C. § 405(g). In making this determination,
we "review the record as a whole" including any new evi-
dence that the Appeals Council "specifically incorporated . . .
into the administrative record." Wilkins, 953 F.2d at 96.
II.
Meyer argues that the Appeals Council erred by failing to
make "specific findings of fact" as to why the new evidence
MEYER v. ASTRUE 7
that he submitted to it—particularly, Dr. Bailey’s letter—did
not require reversal of the ALJ’s decision. Appellant’s Br. at
14-15. This argument rests on a misunderstanding of the role
of the Appeals Council and misreading of our precedent.
If "dissatisfied" with an ALJ decision as to entitlement to
disability benefits, a claimant "may request" that the Appeals
Council review "that action." 20 C.F.R. § 404.967. When a
claimant requests review of an ALJ decision, the Appeals
Council "may deny or dismiss the request for review, or it
may grant the request and either issue a decision or remand
the case to [the ALJ]." Id. (emphases added). The Appeals
Council will grant a claimant’s request for review rather than
deny or dismiss the request if:
(1) There appears to be an abuse of discretion by
the [ALJ];
(2) There is an error of law;
(3) The action, findings, or conclusions of the
[ALJ] are not supported by substantial evi-
dence; or
(4) There is a broad policy or procedural issue that
may affect the general public interest.
Id. § 404.970(a).
The regulations also specifically permit claimants to submit
additional evidence, not before the ALJ, when requesting
review by the Appeals Council. See id. §§ 404.968,
404.970(b). In such cases, the Appeals Council first deter-
mines if the submission constitutes "new and material" evi-
dence that "relates to the period on or before the date of the
[ALJ’s] hearing decision." Id. § 404.970(b). Evidence is new
"if it is not duplicative or cumulative" and is material if there
is "a reasonable possibility that the new evidence would have
8 MEYER v. ASTRUE
changed the outcome." Wilkins, 953 F.2d at 96. Here, the
Commissioner has conceded that Dr. Bailey’s letter—the only
opinion from a treating physician in the record—constituted
new and material evidence.1 See 20 C.F.R. § 404.1527(d)(2)
(providing that a treating physician’s opinion is entitled to
deference).
Confronted with such new and material evidence, the
Appeals Council then "evaluate[s] the entire record including
the new and material evidence." Id. § 404.970(b). After this
evaluation, if the Appeals Council finds that the ALJ’s "ac-
tion, findings, or conclusion is contrary to the weight of the
evidence currently of record," id., it will grant the request for
review and either issue its own decision on the merits or
remand the case to the ALJ. Id. §§ 404.967, 404.977(a),
404.979. But if upon consideration of all of the evidence,
including any new and material evidence, the Appeals Coun-
cil finds the ALJ’s action, findings, or conclusions not con-
trary to the weight of the evidence, the Appeals Council can
simply deny the request for review. Contrary to Meyer’s con-
tention, nothing in the Social Security Act or regulations pro-
mulgated pursuant to it requires that the Appeals Council
explain its rationale for denying review.
Citing 20 C.F.R. § 404.1527(f)(3), Meyer maintains that
"[b]ecause ALJs are required to make detailed findings about
1
Although Dr. Bailey did not provide Meyer with medical care at the
time he wrote the letter in question, the Commissioner considers a physi-
cian to be a treating source when that physician "provides" or "has pro-
vided" a claimant "with medical treatment or evaluation and who has, or
has had, an ongoing treatment relationship" with the claimant. 20 C.F.R.
§ 404.1502 (emphases added). The uncontroverted record evidence reveals
that Dr. Bailey not only "treated" Meyer but actually performed Meyer’s
back surgery, observed his post-operative progress for a number of
months, and made referrals for physical therapy and pain management.
Thus, the magistrate judge erred in concluding that Dr. Bailey was not a
treating physician whose opinion constituted new and material evidence.
(The district court never considered whether Dr. Bailey was a treating
physician.)
MEYER v. ASTRUE 9
all medical evidence they consider, so is the Appeals Coun-
cil." Appellant’s Br. at 17-18. He further urges that an "Ap-
peals Council decision to deny review when new evidence is
submitted is a final decision . . . subject to judicial review."
Reply Br. at 4 (emphasis added). The statutory scheme gov-
erning social security disability benefits, however, offers no
support for these contentions.
Rather, the regulation on which Meyer relies,
§ 404.1527(f)(3), provides that "[w]hen the Appeals Council
makes a decision, it will follow the same rules for considering
opinion evidence as [ALJs] follow." (emphasis added). By its
own terms, the regulation only applies when the Appeals
Council actually "makes a decision," and the Appeals Council
may "issue a decision" only after it "grant[s] the request" for
review. 20 C.F.R. § 404.967. Here, the Appeals Council never
granted Meyer’s request for review and, thus, did not "make
a decision" within the terms of the regulations.
The Appeals Council’s denial of a request for review dif-
fers sharply from an ALJ’s decision. Social Security regula-
tions do explicitly require the ALJ to issue decisions
supported by "findings of fact and the reasons for the deci-
sion." Id. § 404.953(a). In contrast, the regulations do not
require the Appeals Council to articulate its rationale for
denying a request for review. Only if the Appeals Council
grants a request for review and issues its own decision on the
merits is the Appeals Council required to make findings of
fact and explain its reasoning. See id. §§ 404.979,
404.1527(f)(3).
Nor does our holding in DeLoatche v. Heckler, 715 F.2d
148 (4th Cir. 1983), assist Meyer. There, in examining a
faulty ALJ decision, we noted that "[j]udicial review of an
administrative decision is impossible without an adequate
explanation of that decision by the administrator." Id. at 150.
We found fault with the ALJ’s decision—not the Appeals
Council’s denial of review—finding that the "ALJ’s failure to
10 MEYER v. ASTRUE
make requisite findings or to articulate the bases for his con-
clusions makes our task impossible." Id.
In sum, the regulatory scheme does not require the Appeals
Council to do anything more than what it did in this case, i.e.,
"consider new and material evidence . . . in deciding whether
to grant review." Wilkins, 953 F.2d at 95; see also Martinez
v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir. 2006) (finding
"nothing in the statutes or regulations" requires the Appeals
Council to articulate its reasoning when "new evidence is sub-
mitted and the Appeals Council denies review"); Browning v.
Sullivan, 958 F.2d 817, 822 (8th Cir. 1992) (rejecting conten-
tion that Appeals Council must "make its own finding" and
"articulate its own assessment" as to new evidence when
denying review); Damato v. Sullivan, 945 F.2d 982, 988-89
(7th Cir. 1992) (holding that "the Appeals Council may deny
review without articulating its reasoning" even when new and
material evidence is submitted to it).2
III.
Although the regulatory scheme does not require the
Appeals Council to articulate any findings when it considers
new evidence and denies review, we are certainly mindful that
"an express analysis of the Appeals Council’s determination
2
Certainly, when the Appeals Council grants a request for review and
issues its own decision, it must "articulate . . . conclusions with respect
thereto." Jordan v. Califano, 582 F.2d 1333, 1335 (4th Cir. 1978)
(remanding when the Appeals Council "summarily affirmed the denial of
benefits" without making any findings regarding "new items of medical
evidence"). A failure to do so constitutes "reversible error." Myers v. Cali-
fano, 611 F.2d 980, 983 (4th Cir. 1980) (remanding when Appeals Coun-
cil "adopted" ALJ’s decision without making "specific findings" about
new medical evidence). In Jordan and Myers, unlike here, the Appeals
Council—not the ALJ—issued the Commissioner’s final decision. See 20
C.F.R. § 404.979 (providing that the Appeals Council, when "mak[ing] a
decision," "may affirm, modify or reverse the administrative law judge
hearing decision or it may adopt, modify or reject a recommended deci-
sion").
MEYER v. ASTRUE 11
would [be] helpful for purposes of judicial review." Martinez,
444 F.3d at 1207-08; see also Damato, 945 F.2d at 989 n.6
(noting that in "fairness to the party appealing the ALJ’s deci-
sion, the Appeals Council should articulate its reasoning"
when it rejects new material evidence and denies review). In
view of the weight afforded the opinion of a treating physi-
cian, see 20 C.F.R. § 404.1527(d)(2), analysis from the
Appeals Council or remand to the ALJ for such analysis
would be particularly helpful when the new evidence consti-
tutes the only record evidence as to the opinion of the treating
physician. Cf. id. ("[ALJs] will always give good reasons in
our notice of determination or decision for the weight we give
your treating source’s opinion."); id. § 404.977 (providing
"[t]he Appeals Council may remand a case to an [ALJ] . . .
[when] additional evidence is needed or additional action by
the administrative law judge is required").
Of course, the lack of such additional fact finding does not
render judicial review "impossible"—as long as the record
provides "an adequate explanation of [the Commissioner’s]
decision." DeLoatche, 715 F.2d at 150. Thus, we have
affirmed an ALJ’s denial of benefits after reviewing new evi-
dence presented to the Appeals Council because we con-
cluded that "substantial evidence support[ed] the ALJ’s
findings." Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir.
1996). Conversely, when consideration of the record as a
whole revealed that new evidence from a treating physician
was not controverted by other evidence in the record, we have
reversed the ALJ’s decision and held that the ALJ’s denial of
benefits was "not supported by substantial evidence." Wilkins,
953 F.2d at 96.
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 evi-
dence 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
12 MEYER v. ASTRUE
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 evi-
dence 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 quint-
essentially the role of the fact finder. We cannot undertake it
in the first instance. Therefore, we must remand the case for
further fact finding.3
IV.
Accordingly, we reverse the judgment of the district court
and remand with instructions to reverse the decision of the
Commissioner and remand the case for a rehearing pursuant
to sentence four of 42 U.S.C. § 405(g).
REVERSED AND REMANDED
3
We note that the record indicates that Meyer attended more than 170
physical therapy sessions after his surgery through June 2006. Following
the lead of the Fifth Circuit in Newton v. Apfel, 209 F.3d 448, 459 (5th Cir.
2000), a case the Commissioner concedes supports Meyer, we further
instruct the Commissioner on remand to "consider the effect of [this]
ongoing treatment on [Meyer’s] ability to remain gainfully employed dur-
ing the period of claimed disability." See also Walker v. Bowen, 889 F.2d
47, 49 (4th Cir. 1989) (noting that "whether [a] nonexertional condition
affects an individual’s residual functional capacity to perform work of
which he is exertionally capable" is a relevant inquiry in determining dis-
ability). The Commissioner should also consider whether such evaluation
requires expert vocational testimony to prove Meyer "retains the ability to
perform specific jobs which exist in the national economy." See id. at 50.
The ALJ made no findings with respect to these issues.