By: Ariel Shuster1
This article discusses recent Social Security cases finding that, when a treating source opinion is submitted to the Appeals Council after issuance of a decision by an Administrative Law Judge (ALJ), the Appeals Council must apply the treating source rule as set forth in the governing regulations and applicable case law, and explain whether the opinion is being given controlling weight or, if not, articulate the weight afforded to the opinion and the reasons for the weight assigned. According to these cases, a generic statement merely indicating that a claimant’s request for review has been denied does not satisfy the Appeals Council’s obligations in this regard. Starting in 2021, with an opinion by Magistrate Judge David E. Peebles, there began to emerge a competing line of cases in the Northern District of New York; these cases hold that when the Appeals Council denies a request for review, it need not articulate the consideration given to a newly submitted medical opinion. Before discussing these differing cases, this article pauses to explain the issue in more detail.
When reviewing a claimant’s application for Social Security benefits, an ALJ must review medical opinions from the claimant’s treating providers as well as Social Security medical consultants.2 For claims filed before March 27, 2017, the ALJ is required to apply the treating physician rule.3 Under that rule, “the ALJ must decide whether the opinion” from the claimant’s treating provider “is entitled to controlling weight.”4 “[T]he opinion of a claimant’s treating physician as to the nature and severity of [an] impairment is given ‘controlling weight’ so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.”5 If an opinion from a treating source is not given controlling weight, the ALJ must apply several factors to determine what degree of weight should be assigned to the opinion, including: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence supporting the treating provider’s opinion; (4) the degree of consistency between the opinion and the record as a whole; (5) whether the opinion is given by a specialist; and (6) other evidence that has been brought to the attention of the decisionmaker.6 The failure to apply the appropriate legal standards for considering a treating physician’s opinion constitutes a basis for reversal of an adverse determination, as is the ALJ’s failure to provide reasons for rejecting the opinion.7
For claims filed on or after March 27, 2017, the amended regulations apply, which instruct that “[w]e will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.”8 Rather, “[w]e will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”9 When evaluating a medical opinion under the amended regulations, the ALJ considers five “persuasiveness” factors, the “most important” of which are “supportability” and “consistency.”10 The ALJ must “explain” how he or she evaluated the regulatory factors.11 It is “procedural error” for an ALJ to fail “to explain how [he or she] considered the supportability and consistency of medical opinions in the record.”12
When a claimant is denied disability benefits by an ALJ, he or she can seek review of the ALJ’s decision by the Appeals Council, which, like the ALJ, is also part of the Social Security Administration. “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 an administrative law judge. The Appeals Council shall notify the parties at their last known address of the action it takes.”13
The Appeals Council will review a case at a party’s request or on its own motion if—
(1) There appears to be an abuse of discretion by the administrative law judge or administrative appeals judge who heard the case;
(2) There is an error of law;
(3) The action, findings or conclusions in the hearing decision or dismissal order are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.14
Additionally,
[t]he Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in § 404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause;
(iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or
(v) You received a hearing level decision on the record and the Appeals Council reviewed your decision.15
Under a series of cases interpreting the regulations, judges determined that if the Appeals Council denied review of an ALJ’s decision where the claimant submitted a new medical opinion to the Appeals Council, then the Appeals Council was required to articulate consideration of the new opinion under the same rules prescribed to the ALJ: either applying the treating physician rule or the persuasiveness factors.16 The Second Circuit has not addressed this issue. Rather, when confronted with the issue in 2015, the Second Circuit expressly declined to address it, stating, “because we hold that the ALJ’s decision was not supported by substantial evidence, we need not consider [the] alternative argument that the Appeals Council has an independent obligation to provide ‘good reasons’ before declining to give weight to the new, material opinion of a treating physician submitted only to the Appeals Council and not to the ALJ.”17
In March 2021, Magistrate Judge Peebles concluded in Jessica v. Saul, that the line of cases holding that the Appeals Council was obligated to articulate consideration of a newly submitted medical opinion when it denied review of an ALJ’s decision was incorrect.18 Tracing the cases back to their “apparent genesis,” Magistrate Judge Peebles came to Shrack v. Astrue, 608 F. Supp. 2d 297 (D. Conn. 2009), which cited Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999).19 He explained that “[i]n Shrack, [a]lthough the Appeals Council identified the additional new evidence[, which included opinions of a treating physician,] it did not specifically address any of it in its decision denying review, instead stating that [it] found no reason under [its] rules to review the [ALJ]’s decision.”20 “Citing to Snell . . . , the magistrate judge [in Shrack] issued the sweeping proclamation that the treating physician rule applies to the Appeals Council when the new evidence at issue reflects the findings and opinions of a treating physician.”21
Magistrate Judge Peebles astutely noted that “a distinction seemingly overlooked by the Court in Shrack is that in Snell, ‘rather than merely denying review of an ALJ decision, the Appeals Council addressed the merits of the matter sua sponte, and reversed the decision of the ALJ to grant benefits.’“22 Rather, “[i]n Snell, ‘the Appeals Council proactively considered the record and issued a merits-based decision and, in doing so, was plainly obligated to apply the treating source rule, just as an ALJ must when making an initial determination.’“23 He explained that “[t]he Appeals Council’s actions in Snell were different from the actions taken in Shrack where the ‘Appeals Council simply denie[d] review, [and] the focus for a reviewing court [wa]s upon the ALJ’s decision, which represents the final determination of the agency . . . .’“24
In determining that there is a difference between an Appeals Council’s denial and decision, Magistrate Judge Peebles relied on Vallejo v. Berryhill, in which the Tenth Circuit held that because the Appeals Council “simply denied review . . . it was not required to follow the same rules for considering opinion evidence as the ALJ followed[.]”25 In a May 2022 case, Magistrate Judge Christian F. Hummel noted that “the First, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits similarly distinguish the articulation requirements for the Appeals Council denying review versus it issuing a decision.”26
Magistrate Judge Hummel also explored the regulatory distinction between an Appeals Council’s denial of review versus a grant of review and issuance of a decision or determination. The regulations applicable to claims filed before March 27, 2017 state, “[r]egardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source’s medical opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.”27 The amended regulations state, “[w]e will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”28 Under either regime, the SSA defines “[w]e or us mean[ing], as appropriate, either the Social Security Administration or the State agency making the disability or blindness determination.”29 The SSA defines “determination” as “the initial determination or the reconsidered determination.”30
Then, looking beyond the regulations, Magistrate Judge Hummel turned to the SSA’s internal policies. He reviewed the SSA’s HALLEX which “‘is a manual that provides the Social Security Administration with a set of guidelines and procedures’ and ‘district courts within the Second Circuit have found that ‘HALLEX policies are not regulations and therefore not deserving of controlling weight.’”31 The HALLEX states that
[p]rior to July 20, 1995, the Appeals Council (AC) required analysts to respond directly to the issue(s) raised in contentions. However, due to workload concerns and resource issues, the AC implemented a new initiative on July 20, 1995, suspending the requirement to provide a detailed discussion of additional evidence and provide specific responses to contentions in the denial notice.32
“In its July 20, 1995, memorandum, the SSA provided the Appeals Council with ‘temporary paragraphs’ to use in ‘denial notices.’“33 “Specifically, if a claimant submitted additional evidence to the Appeals Council, it was advised to state that ‘[t]he Appeals Council has also considered the additional evidence from (a) __________ dated (b) __________, but concluded that this additional evidence does not provide a basis for changing the Administrative Law Judge’s decision.’“34 Magistrate Judge Hummel explained that “‘[i]n 2012, the [Appeals Council] officially adopted this initiative[]’ and, therefore, continued the use of its ‘temporary paragraphs[.]’“35
Thus, Magistrate Judge Hummel concluded, “[i]n denying review, the Appeals Council is not making the initial or reconsideration disability determination; therefore, it is not a part of the ‘we’ and is not required to ‘articulate’ the persuasiveness of a newly submitted medical opinion.”36 He also noted that “[t]he regulations clearly state that ‘[t]he Appeals Council may deny a party’s request for review or it may decide to review a case and make a decision.’“37 Thus, he agreed with Magistrate Judge Peebles and concluded that “[t]he regulations do not require the Appeals Council to issue a decision when it denies a request for review.”38 Numerous judges in the Northern District of New York have since followed this analysis and conclusion.39
Because the Second Circuit has not ruled on the issue, the cases holding that the Appeals Council is required to articulate consideration of a newly submitted medical opinion remain good law. However, the newer caselaw, as outlined in this article, is at odds with those decisions. This is something that Social Security practitioners should be mindful of moving forward if they are challenging an Appeals Council’s denial of review in the Northern District of New York.
1 Ariel Shuster is a term law clerk to a United States district judge in the United States District Court for the Northern District of New York. This article is intended to be informational and does not express any views of the United States District Court for the Northern District of New York, where the author is employed.
2 See Nedzad O. v. Comm’r of Soc. Sec., 577 F. Supp. 3d 37, 46 (N.D.N.Y. 2021) (quoting Rivera v. Comm’r of Soc. Sec., 368 F. Supp. 3d 626, 640 (S.D.N.Y. 2019)) (“‘The claimant’s RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant’s credible testimony, objective medical evidence, and medical opinions from treating and consulting sources’”).
3 See 20 C.F.R. §§ 404.1527, 416.927.
4 Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019).
5 Id. (quoting Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008)) (additional quotation marks omitted).
6 See 20 C.F.R. §§ 404.1527(c), 416.927(c); Burgess, 537 F.3d at 129; Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam).
7 See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
8 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
9 Id. §§ 404.1520c(b), 416.920(b).
10 Id. §§ 404.1520c(b)(2), 416.920c(b)(2).
11 Id. §§ 404.1520c(b)(2), 416.920c(b)(2).
12 Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *2 (2d Cir. June 17, 2022) (summary order).
13 20 C.F.R. §§ 404.967, 416.1467.
14 Id. §§ 404.970(a), 416.1470(a).
15 Id. §§ 404.970(b), 416.1470(b).
16 See, e.g., Hissin v. Comm’r of Soc. Sec., No. 17-CV-1264 (FPG), 2019 WL 4253899, at *3 (W.D.N.Y. Sept. 9, 2019); Patrick M. v. Saul, No. 18-CV-0290 (ATB), 2019 WL 4071780, at *7 (N.D.N.Y. Aug. 28, 2019); Durrant v. Berryhill, No. 16-CV-6781 (FPG), 2018 WL 1417311, at *4 (W.D.N.Y. Mar. 22, 2018); Djuzo v. Comm’r of Soc. Sec., No. 13-CV-0272, 2014 WL 5823104 (GLS), at *4 (N.D.N.Y. Nov. 7, 2014); Seifried v. Comm’r of Soc. Sec., No. 13-CV-0347 (LEK), 2014 WL 4828191, at *4 (N.D.N.Y. Sept. 29, 2014); James v. Comm’r of Soc. Sec., No. 06-CV-6180 (DLI/VVP), 2009 WL 2496485, at *10 (E.D.N.Y Aug. 14, 2009).
17 Lesterhuis v. Colvin, 805 F.3d 83, 89 (2d Cir. 2015) (quoting 20 C.F.R. § 404.1527(c)(2)).
18 See Jessica v. Saul, No. 5:19-CV-1427 (DEP), 2021 WL 797069, at *7 (N.D.N.Y. Mar. 2, 2021).
19 Id.
20 Id. (quoting Shrack, 608 F. Supp. 2d at 302) (quotation marks omitted).
21 Id. (quoting Shrack, 608 F. Supp. 2d at 302) (quotation marks omitted).
22 Id. (citing Snell, 177 F.3d at 129-30).
23 Id. (citing Snell, 177 F.3d at 133).
24 Id. (citing 20 C.F.R. § 416.1481; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)).
25 Id. (quoting Vallejo v. Berryhill, 849 F.3d 951, 955-56 (10th Cir. 2017)).
26 Bruce Wayne C. v. Comm’r of Soc. Sec., No. 5:21-CV-160 (CFH), 2022 WL 1304024, at *5 (N.D.N.Y. May 2, 2022) (footnote omitted) (citing Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001) (“It is quite true that an Appeals Council decision refusing review has all the hallmarks of a discretionary decision: the Appeals Council need not and often does not give reasons, and the regulations appear to provide the Appeals Council with a great deal of latitude in deciding which cases should be reviewed.”)); Sun v. Colvin, 793 F.3d 502, 511 (5th Cir. 2015) (“The regulations do not require the AC to provide a discussion of the newly submitted evidence or give reasons for denying review.”); Damato v. Sullivan, 945 F.2d 982, 988 (7th Cir. 1991) (“[W]e hold infra, the district court did not abuse its discretion in finding that the Appeals Council may deny review of an administrative law judge’s decision without articulating its reasons.”); Skipper v. Astrue, 471 F. App’x 558, 559 (8th Cir. 2012) (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992) (“rejecting appellant’s assertion that when Appeals Council denies review, it must make its own findings and articulate its own assessment of new evidence”)); Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996) (superseded by regulation on other grounds as stated in Hudson v. Astrue, No. 11-CV-0025 (CI), 2012 WL 5328786, at *4, n.4 (E.D. Wash. Oct. 29, 2012)) (“[I]n rejecting [newly submitted] evidence, the Appeals Council is not required to make any particular evidentiary finding.”); Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 784-785 (11th Cir. 2014) (collecting cases from the Fourth, Fifth, Seventh, Ninth, and Tenth Circuits in support) (“The Appeals Council, moreover, was not required to provide a detailed rationale for denying review. We note that our conclusion that the Appeals Council is not required to explain its rationale for denying a request for review is consistent with the holdings of other circuits that have considered this issue.”)).
27 20 C.F.R. § 404.1527
28 Id. § 404.1520c(b).
29 Id. § 404.1502(j).
30 Id. § 416.1401.
31 Michelle W. v. Comm’r of Soc. Sec., No. 3:20-CV-707 (CFH), 2021 WL 4972934, at *10 (N.D.N.Y. Oct. 26, 2021) (quoting Dority v. Comm’r of Soc. Sec., No. 14-CV-0285 (GTS), 2015 WL 5919947, at *5 (N.D.N.Y. Sept. 15, 2015)) (additional citations omitted).
32 HALLEX I-3-5-15, Consideration of Legal Arguments Or Contentions, (S.S.A.), 2015 WL 3921874, at *1.
33 Bruce Wayne C., 2022 WL 1304024, at *5 (quoting HALLEX I-3-5-90, Exhibit – Memorandum Dated July 20, 1995, Subject: the Request For Review Workload, From the Executive Director, Office of Appellate Operations, (S.S.A.), 2001 WL 34096367, at *1)).
34 Id. (citation omitted).
35 Id. (quoting HALLEX I-3-5-15, 2015 WL 3921874, at *1).
36 Id. (quoting 20 C.F.R. § 404.1520c(b)).
37 Id. (quoting 20 C.F.R. § 416.1481; citing 20 C.F.R. § 416.1467 (“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 an administrative law judge.”)).
38 Id. (citation omitted).
39 See, e.g., Michele A. v. Kijakazi, No. 6:21-CV-185 (MAD), 2022 WL 4225171, at *5 (N.D.N.Y. Sept. 12, 2022); Lisa C. v. Kijakazi, No. 3:21-CV-0037 (ATB), 2022 WL 2105853, at *9 (N.D.N.Y. June 10, 2022); Leanne S. v. Comm’r of Soc. Sec., No. 3:20-CV-1447 (CFH), 2022 WL 4448245, at *5 (N.D.N.Y. Sept. 23, 2022).