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Click here for the full text of this decision FACTS:Charles Higginbotham applied for SSI benefits in 1999, claiming that he had most recently worked in 1994 and that mixed bipolar disorder rendered him totally disabled. In 2000, the Social Security Administration denied Higginbotham’s application. Higginbotham then requested, and was granted, a hearing before an administrative law judge. The ALJ denied Higginbotham’s claim for benefits, because Higginbotham could not sustain a claim of total disability. Specifically, the ALJ held that Higginbotham had no “exertional limitations,” but that he did have “non-exertional limitations” that restricted him to jobs requiring only short, simple instructions and limited interaction with other people. Higginbotham timely filed a request for review by the appeals council. While his request was pending, Higginbotham, in accordance with applicable regulations, submitted a medical source statement completed by Chandrakant Patel M.D., his treating physician. That statement included Dr. Patel’s evaluation of Higginbotham’s “mental abilities critical for performing unskilled work.” Dr. Patel concluded that Higginbotham suffered from a complete loss of ability to perform regular employment activity. In a letter dated Aug. 30, 2001, the appeals council denied Higginbotham’s request for review, noting that, although it had considered Dr. Patel’s statement, the additional evidence did not provide a basis for reversing the ALJ’s decision. Next, Higginbotham filed a complaint in the U.S. District Court for the Northern District of Texas, seeking review of the commissioner’s denial of SSI benefits. Then, in October 2003, the magistrate judge recommended that the commissioner’s decision be reversed. Judge McBryde, however, rejected the magistrate judge’s recommendation, specifically declining to consider the new evidence submitted to the appeals council, and affirmed the commissioner’s denial of SSI benefits. Higginbotham then filed this appeal. HOLDING:Vacated and remanded. The precise issue raised by this appeal is whether the district court should have reviewed and considered the evidence that Higginbotham submitted to the appeals council but failed to present to the ALJ. The Social Security Act provides that courts may review the “final decision” of the commissioner. 42 U.S.C. 405(g). The act does not expressly define the term “final decision”; instead, it leaves that question to be answered by regulations. However, the regulations are anything but clear, the court states. They provide only that “[t]he appeals council’s decision, or the decision of the administrative law judge if the request for review is denied, is binding unless [the claimant] file[s] an action in Federal district court.” 20 C.F.R. 404.981, 416.1481. In interpreting these regulations, some courts have held that the ALJ decision alone is the final decision of the commissioner, and other courts have held that the final decision includes the appeals council’s denial of a request for review. The courts generally agree that, when the appeals council denies a request for review, the ALJ’s decision becomes the commissioner’s final decision. This conclusion, however, does not resolve the questions of what is encompassed within the “final decision” and what record is reviewable on appeal. The court notes, for example, that the regulations provide little clear guidance as to the substance of the record to be reviewed by the district court and as to whether the final decision incorporates the appeals council’s denial of a request for review. The applicable regulations, 20 C.F.R. 404.981 and 404.955(a)-(b), only state that the ALJ’s decision becomes “binding” when the appeals council denies review and the claimant fails to seek judicial review. These provisions do not expressly state that the ALJ’s decision alone is the “final decision.” Nor do they state that reviewing courts must consider only evidence that was before the ALJ. Furthermore, 20 C.F.R. 416.1400 makes it clear that the commissioner’s decision does not become final until after the appeals council makes its decision denying the claimant’s request for review. 20 C.F.R. 416.1400(a)(5) advises claimants that “[w]hen you have completed the steps of the administrative review process . . . we will have made our final decision. If you are dissatisfied with our final decision, you may request judicial review by filing an action in a Federal district court.” The steps of the administrative review process include the initial determination, reconsideration, the hearing before an ALJ, and a request for review by the appeals council. Thus, the regulations plainly, if implicitly, include the denial of review by the appeals council as part of the commissioner’s final decision. Furthermore, the regulations require a claimant to request review by the appeals council before seeking judicial review in district court. This is another reason for including the appeals council’s denial of a request for review as a component of the commissioner’s final decision. Therefore, the court thinks that under the commissioner’s own regulations, the commissioner’s final decision necessarily includes an appeals council’s denial of a claimant’s request for review. It follows that the record before the appeals council constitutes part of the record upon which the final decision is based. OPINION:E. Grady Jolly, J.; Jolly, Davis and Clement, JJ.

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