Fourth Circuit Rules on New Evidence Submitted to Appeals Council

In a recently published opinion, the U. S. Court of Appeals for the Fourth Circuit resolved a conflict within the Circuit over the summary denial of requests for review when new evidence is submitted to the Appeals Council. Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011) The court rejected arguments that the Appeals Council has a duty to articulate reasons for denying a request for review, but went on to reverse the Commissioner and remand the case for administrative findings of fact regarding new and material opinion evidence submitted to the Appeals Council.

Meyer suffered severe spinal injuries when he fell 25 feet out of a stand while hunting. His neurosurgeon and pain management doctors declined to provide medical opinions in support of the disability claim, forcing Meyer to obtain an independent medical examination (IME) to prove his case. The ALJ rejected the IME opinion and denied the claim, noting that none of Meyer’s treating physicians had expressed an opinion concerning work-related restrictions.

On request for Appeals Council review, Meyer was advised to make another attempt at getting the treating neurosurgeon to support his claim. This time, the doctor agreed to help and prepared a detailed opinion letter. The Appeals Council admitted the new opinion into the administrative record but summarily denied the request for review.

The Fourth Circuit agreed with the majority of the circuits in holding that neither the Social Security Act nor the regulations requires the Appeals Council to articulate reasons for its decision to deny a request for review, even when new and material evidence is submitted at the Appeals Council level. The court also held that when the Appeals Council denies a request for review, the ALJ decision becomes the final decision of the Commissioner for purposes of the judicial review statute, 42 U.S.C. § 405(g).

The Court also held that lack of administrative analysis of new evidence by the Appeals Council does not render judicial review “impossible”—as long as the record provides an adequate explanation of the Commissioner’s decision. In such cases the Court can either affirm or reverse outright based solely on its review of the administrative record as a whole.

While the Fourth Circuit affirmed the Commissioner’s interpretation of the Act and regulations regarding Appeals Council review, the court reversed and remanded the case on the ground that the court could not determine whether substantial evidence supported the ALJ decision without further findings of fact by the Commissioner regarding the new opinion evidence submitted to the Appeals Council. In so ruling, the Fourth Circuit relied on its prior holding in Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93 (4th Cir. 1991)(en banc).

The Court outlined a range of options available to reviewing courts when new evidence is submitted to the Appeals Council. At one end of the spectrum the Court cited Smith v. Chater, 99 F.3d 635 (4th Cir. 1996), as an example of an ALJ decision that is supported by substantial evidence and should be affirmed despite the submission of new evidence, because the new evidence is not material. On the other end of the spectrum is Wilkins, which the Court cited as an example of when it is appropriate to reverse an ALJ decision outright, with instructions to award benefits because the new and material evidence submitted to the Appeals Council is not controverted by other evidence in the record. The third option available to reviewing courts, which lies between the two bookends of affirmance and outright reversal, occurs when the court cannot determine whether substantial evidence supports the ALJ denial of benefits because the new evidence is material but there is other competing evidence of record that conflicts with the new evidence.

The Fourth Circuit concluded that Meyer’s new evidence required the middle path of remand for administrative findings of fact. The Court concluded that assessing the probative value of competing evidence is quintessentially the role of the fact-finder, not the courts. In cases in which the Commissioner has not made any findings of fact regarding new and material evidence submitted to the Appeals Council, and there is other evidence of record which conflicts with the new evidence, the court cannot undertake that action in the first instance but must remand the case instead.

The Court also acknowledged that in some cases, additional administrative fact-finding would be helpful for purposes of judicial review, though not required by the regulatory scheme. The Court went on to observe that analysis of new evidence by the Appeals Council or remand by the Appeals Council to the ALJ for such analysis, would be “particularly” helpful when the new evidence constitutes the only medical opinion evidence in the record from a treating physician.

The Meyer case will be disappointing to those looking for a bright line test. The Fourth Circuit firmly held that it is not the role of the courts to weigh evidence. And the court made it clear that it will not reverse outright or remand a case based on new evidence submitted to the Appeals Council unless that evidence is material in the sense that it could have changed the ALJ’s decision. But the court’s determination of materiality requires it to evaluate the administrative record as a whole—and how can this be accomplished unless the court, to some degree, weighs the evidence?

Practice Tips

While the Meyer decision may not simplify federal court appeals in which new evidence is submitted to the Appeals Council, it does provide some valuable lessons for Social Security practitioners.

• First and foremost, Meyer emphasizes the primacy of the treating physician opinion in determining whether a claimant is disabled. If the new evidence submitted at the Appeals Council level is the opinion of a treating physician, the court is more likely to find that the new evidence is material and that reversal or remand is warranted. This is particularly the case when the new evidence constitutes the only opinion evidence in the record from a treating physician.

• The second lesson to be gleaned from Meyer is that attorneys should always strive to obtain and submit new evidence from treating physicians at any level of appeal, including the Appeals Council or federal court. In cases such as Meyer, a treating physician who was reluctant to give a written opinion at the hearing level may be convinced to provide that opinion on appeal when advised that the case was denied because the doctor had declined to help. Attorneys should consider taking cases at the Appeals Council level even though the claimant was previously represented by another attorney or appeared at the hearing pro se. Many of these cases can be won on appeal by submitting a new treating physician’s opinion, particularly when there was no treating physician opinion in the record before the ALJ.

• Last of all, Meyer suggests that when a treating physician refuses to provide an opinion prior to the ALJ hearing, it is important to document that fact in the record. Meyer’s efforts to get opinions from his treating physicians prior to the hearing were addressed in the pre-hearing brief, Meyer’s testimony, and in closing argument at the hearing. These facts were cited by the Fourth Circuit and highlighted the materiality of the new treating physician opinion. While there is no good cause requirement for submission of new evidence at the Appeals Council level, the fact that Meyer had been diligent in seeking a treating physician opinion made the case for a remand far more compelling to the reviewing court.

Robertson H. Wendt Jr., is a board certified attorney who specializes in Social Security disability law in Charleston, SC. Find out more about him at www.robertsonwendt.

How to Making Money with Online Marketplaces

It is becoming increasingly common to make money online by participating in online markets like as SMM Panel. People are able to sell their goods and services without the need for a physical storefront thanks to these online marketplaces, which act as platforms that connect customers and sellers. There are countless chances to turn your skills or products into a profitable business, and online marketplaces such as Amazon, Etsy, and eBay provide only some of those opportunities.

The first thing you need to do in order to start earning money through online marketplaces is to choose which platform is most suited for the sale of your goods or services. It is essential to locate a market that caters to your particular area of expertise because online markets each specialise in particular areas. Etsy, for instance, is a well-liked venue for the sale of handcrafted and vintage items, although Amazon is the superior alternative for the marketing of consumer gadgets and printed works.

After you have determined which platform would best serve your needs, the next step is to create a seller account. This often entails presenting information about your company as well as the ways of payment you accept. You will furthermore be tasked with selecting a price strategy that strikes a healthy balance between your profit margins and the requirements of your ideal customer.

The following step is to construct an effective product listing. This entails photographs of a high quality, a clear description of your product or service, as well as any pertinent specifications or characteristics. You may differentiate yourself from the competition and increase sales by maintaining accurate product listings.

It is also essential to think about the fulfilment approach you will use. There are marketplaces that offer fulfilment services, but you also have the option of managing the fulfilment process on your own. This will have an effect on both the shipping prices you charge and the amount of control you have over the overall experience of your customers.

You need to get people to view your listings on online marketplaces if you want to generate money using those platforms. Think about employing paid advertising to reach more people, or implement search engine optimization (SEO) profile backlinks strategies to make your website more visible in people’s search results. The marketing of your items through social media may also be an effective technique for generating sales and promoting your products.

Last but not least, it is essential to keep track of your performance and modify your strategy as appropriate. The majority of online marketplaces have reporting and analytics tools that can assist you in keeping tabs on things like sales, customer behaviour, and other important indicators. Make decisions about your pricing, the products and services you offer, and your marketing endeavours based on the information in this report.
FAQ’s What is an online marketplace?

An online marketplace is a platform where individuals and businesses can buy and sell goods and services.
How can I make money with an online marketplace?

You can make money with an online marketplace by selling goods and services, offering your products for sale, or by offering your services as a seller or provider.
What are some popular online marketplaces?

Some popular online marketplaces include Amazon, Etsy, and eBay.

How do I set up a seller account on an online marketplace?

Setting up a seller account on an online marketplace involves registering for an account, providing information about your business, listing your products or services, and setting up payment and shipping options.
How do I price my products or services on an online marketplace?

Pricing your products or services on an online marketplace involves researching the competition, considering the cost of goods or services, and setting a price that will allow you to make a profit while still being competitive.
How do I handle shipping and fulfillment for my products on an online marketplace?

Shipping and fulfillment for your products on an online marketplace can be handled through the platform or through a third-party shipping service. The method you choose will depend on factors such as cost, ease of use, and your overall business strategy.
What are some challenges of selling on an online marketplace?

Some challenges of selling on an online marketplace include competition from other sellers, limited control over pricing and branding, and the need to comply with the marketplace’s policies and regulations. However, these challenges can also be offset by the increased exposure and convenience offered by selling on an online marketplace.
Conclusion

To summarise, making money through online markets needs meticulous planning, strategy, and execution of the plan. You can transform online marketplaces into a lucrative revenue stream for your company if you choose the appropriate platform, develop compelling product listings, actively drive traffic, and carefully monitor the outcomes of your efforts.

Upper Mustang- Hidden Gem of Nepal!

Highlights

Visit the antiquated Kingdom of Lo Manthang

Trek through a stark abandon scene with towers and precipices

Lying in the rain shadow, an incredible trek to get away from the mid year storm

Best Season

Upper Mustang lies in the rain shadow of the Himalaya, making it an incredible rainstorm trek and open year-round for trekking. The primary thought is the winter, when most inhabitants leave the cash-flow to keep away from the cool and snow. By and large, the best time to visit Upper Mustang is from March to early November.

Upper Mustang Trek is estranged into two separate belts with the name of Lower Mustang and Upper Mustang where the edging is considered as Kagbeni Village. Lo Manthang Trek one of epic trekking trail in Nepal is some of the time otherwise called The Last Forbidden Kingdom and also Little Tibet. The upper piece of Mustang by and large keep going for 10 days from Kagbeni to Lo Manthang and back to Kagbeni barring different days acquired from Kathmandu Pokhara, Pokhara Jomsom, and the other way around. As a result of the arrangement of controlled tourism exercises with Upper Mustang territory is announced as confined area to trek without issuing uncommon trekking grants and abutting with neighborhood organizations. For the most part, Upper Mustang incorporates of the drive to Pokhara which is trailed by Flight from Pokhara to Jomsom from where the treks start toward the Last taboo kingdom. Typically outsider searches for the choice of Kathmandu to Jomsom Flight which is unrealistic as there are no such direct from Kathmandu to Jomsom. Upper Mustang Trek offers a nearby perspective of Tibetan Lifestyle as dialect, culture and convention of individuals experienced amid Upper Mustang Trekking Nepal is firmly tied and bound by Tibetan way of life. Colt Nepal is likewise called as locale past Himalayan as not at all like perspective of the mountain on southern side on Nepal from horse one have to move back in the direction of the north side so as to view mountain extend. Lo Manthang otherwise called the city of mud as the whole house, cloisters are made in such a one of a kind way and painting with mud and stones. Tibetan banners, Chorten of remarkable shading and configuration are most alluring a portion of Mustang Trekking. These days on account of development of engine street alternative of Mustang Mountain Bike is plausible with both cycle and bikes too.

Upper Mustang is the Trans-Himalayan mountain range having the considerable impact of Tibetan culture and way of life. This 17 days Upper Mustang Trekking course covers the most regular, profound and promising estimations of west Himalayan district of Nepal. The trail course covers a few tributaries like Kaligandaki originating from Tibet, Kagbeni and some more. Investigate the stunning scene and constructed structures like cloisters, neighborhood stone houses and so forth. Kagbeni (2,858), Syanbochen (3,475m), Lo-Mangthang (3,810m) are the living pictures which mirrors the general public of the thousands years back to display. A large portion of the spots of the trail course offer us to appreciate the brilliant all-around perspectives of Himalayas. Nilgiri, Annapurna, Dhaulagiri and some more other are the mammoth snow masses just before us.