United States District Court, D. South Carolina
Crystal Weaver Brown, on behalf of K.M.M. 1490, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
case concerns an appeal from a denial of social security
benefits for Plaintiff's minor child. In a related
“Motion to Add Evidence to Exhibits, ” Plaintiff
“respectfully requests permission to add evidence that
was submitted to the Appeals Counsel [sic] before denial of
review.” ECF No. 50. Plaintiff asserts that
“[b]ecause of unusual circumstances, it appears that
plaintiff could have had several more months to submit even
more evidence such as additional IEP, Mental Health records
and other medical evidence in general during this period had
she known that the Appeals Counsel [sic] was still considered
to have control of this case after District Court filing
date.” Id. The additional evidence Plaintiff
seeks to add includes an Individualized Education Program
(“IEP”) report from Dorchester School District 4
dated April 20, 2017, and a Medical Source Statement from
Sandi E. Engler PA-C and David Castellone, MD dated March 27,
Commissioner argues that the motion should be denied because
Plaintiff has not demonstrated good cause for failing to
submit the evidence earlier and does not specify the nature
of the “unusual circumstances” that prevented her
from timely submitting the materials to the Appeals Council
as required. ECF No. 57.
reply Plaintiff acknowledges that she was given 25 days to
submit additional evidence, but that “this most new and
updated material evidence was received outside of the time
frame that was granted by the Appeals Council by no fault of
my own.” ECF No. 60. Plaintiff states that she
“is not seeking remand based on this evidence but only
requesting that it be numbered and considered with the rest
of the exhibits that was viewed by the Appeals Counsel [sic]
prior to the Federal Court Filing because the timing of
acquiring this evidence was out of [her] control going past
the time frame allotted by the Appeals Council. Id.
at 2. Plaintiff asserts that she “cannot explain nor
understand the communication from the Appeals Council dated
March 3, 2018 referring to review of March 27, 2017 Medical
Source Statement and April 20, 2017 IEP evidence.”
Id.; see Letter from Appeals Council to Pl.
(Mar. 3, 2018) at ECF No. 60-1 at 17.
the second administrative hearing on July 14, 2016, the ALJ
issued an unfavorable decision on November 2, 2016. Tr.
18-20. The ALJ's Notice of Decision informed
Plaintiff that she could request review of his decision by
the Appeals Council and she could also submit new evidence.
Id. Plaintiff's representative requested review
on December 2, 2016. Tr. 12. On February 24, 2017, the
Appeals Council acknowledged the request and informed the
representative that she could submit additional evidence but
that it “must be new and material to the
issues considered in the hearing decision dated October 28,
2016. Tr. 7 (emphasis in original). The Appeals
Council noted that any information must be sent within 25
days of the date of the letter. Id. On April 25,
2017, the Appeals Council issued a notice denying
Plaintiff's request for review. Tr. 1-5. The Appeals
Council concluded the additional evidence submitted by
Plaintiff did not provide a basis for changing the ALJ's
decision. Tr. 2. The Appeals Council indicated that it
considered additional evidence from Dr. McLeod Gwynette dated
September 26, 2013, but determined the evidence was not new
because it was a copy of Exhibit B12F. Id. The
Appeals Council informed Plaintiff she had 60 days to file a
civil action. Tr. 3. Other evidence submitted by Plaintiff
was made a part of the record. That evidence consisted of the
• Exhibit B23E - Representative correspondence, dated
December 2, 2016, authored by Joyce A. Carson.
• Exhibit B22E - Teacher questionnaire, dated December
• Exhibit B36F - Medical records from MUSC dated August
27, 2013 through November 14, 2016.
• Exhibit B37F - Medical records from S.C. Department of
Mental Health, dated November 19, 2013 through January 9,
March 3, 2018, the Appeals Council sent Plaintiff a letter
regarding additional evidence submitted-the April 20, 2017
IEP report from Dorchester School District 4 and the March
27, 2017 Medical Source Statement from Sandi E. Engler PA-C
and David Castellone. ECF No. 60-1 at 17. The Appeals Council
informed Plaintiff that it had reviewed the evidence
submitted and “concluded that no change in the prior
action is warranted. The case is now before the district
court and no further administrative action will be taken
pending the court's review.” Id.
law indicates that 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 an [ALJ].” 20
C.F.R. § 404.967. The regulations permit claimants to
submit additional evidence that was not before the ALJ when
requesting Appeals Council review. 20 C.F.R. §§
404.968, 404.970. In such cases, the regulations require
that the Appeals Council first determine if the submission
constitutes “new and material” evidence that
“relates to the period on or before the date of the
[ALJ's] hearing decision.” 20 C.F.R. §
404.970(b). “The new evidence need not have existed
during that period, but rather must be considered if it has
any bearing upon whether the claimant was disabled during the
relevant period of time.” Outlaw v. Colvin,
No. 5:11-CV-647-FL, 2013 WL 1309372, at *2 (E.D. N.C. Mar.
28, 2013) (citing Wooldridge v. Bowen, 816 F.2d 157,
160 (4th Cir. 1987)). “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 changed the outcome.'” Meyer,
662 F.3d 700, 705 (4th Cir. 2011) (quoting Wilkins v.
Sec'y, Dep't Health and Human Servs., 953 F.2d
93, 95-96 (4th Cir. 1991)). Courts in this District have
limited Meyer's applicability to cases where
there is an evidentiary gap in the medical record. See
Fallaw v. Berryhill, C/A No. 6:16-cv-02623-JMC, 2018 WL
1566729, at *2-3 (D.S.C. Mar. 30, 2018); Stepp v.
Berryhill, C/A No. 1:17-771-MBS-SVH, 2017 WL 6806664, at
*18 (D.S.C. Dec. 6, 2017), report and recommendation
adopted, No. CV 1:17-0771-MBS, 2018 WL 294517 (D.S.C.
Jan. 3, 2018); New v. Colvin, No. CIV.A.
6:14-291-BHH, 2015 WL 5671789, *3 (D.S.C. Sept. 25, 2015)
(noting that “Meyer requires a blind spot in
the record. The new evidence must fill an ‘evidentiary
gap' and be ‘missing evidence.'”).
upon consideration of all the evidence (including any new and
material evidence), the Appeals Council finds that the
ALJ's action, findings, or conclusions are not contrary
to the weight of the evidence, it can simply deny the request
for review. Meyer, 662 F.3d at 705. Nothing in the
SSA or the regulations requires the Appeals Council to
explain its rationale for denying review. Id. In
this case the Appeals Council considered the evidence
Plaintiff is now seeking to add to the record but found it
did not change its decision.
of this evidence is not warranted in this case. First,
according to Plaintiffs own motion, she is not seeking remand
based on the new evidence. ECF No. 60 at 2. Second, although
it did not make the evidence part of the record, the Appeals
Council considered it and concluded that it did not affect
the ALJ's decision. ECF No. 60-1 at 17. ...