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A federal appeals court has ruled that new evidence cannot be considered if it is introduced after an administrative agency’s “final decision.” In a case that stems from a Social Security claim, the 1st U.S. Circuit Court of Appeals also maintained that it may consider rulings of an administrative appeals board under certain conditions. The March 22 decision, written by 1st U.S. Circuit Court Judge Michael Boudin, ultimately went against the claimant in Wanda Mills v. Kenneth S. Apfel, Commissioner of Social Security, No. 00-1446, by not allowing additional evidence she produced to the appeals council after an administrative law judge (ALJ) ruled against her disability claim in 1997. But her attorney, Francis M. Jackson of Jackson & MacNichol in Portland, Maine, said the decision did not entirely rule out court reviews of administrative appeals board decisions, as the Social Security Administration contended it should have. “Some claimants will benefit in the future, because the court would be free to review an appeal council decisions within certain limits,” said Jackson. “If an appeals council treats a claim in a way that is not sensible, the court would be free to review it.” However, Social Security Administration counsel Richard Fox said such future cases would have to be “egregious cases in which the council really misstates something, and hopefully we would catch it before it gets to that point.” The appeals court decision on how to treat evidence was “expected,” said Fox, the assistant regional counsel in Social Security’s Office of the Chief Counsel for Region 1 in Boston. EVIDENCE OUT, THEN IN, THEN . . . On Nov. 17, 1997, a hearing before an administrative law judge was held regarding Mills’ application for Social Security benefits. The controlling question was whether Mills, an assembly-line worker, was subject to a “disability,” which could last more than 12 months and created an inability to work. According to the ruling, Mills had not worked since 1993, and had previous bouts of alcoholism. However, she had not used alcohol since 1996. The ALJ also considered Mills’ physical and mental health evidence, namely that she had right-knee pain and that she was subject to a panic disorder. On April 7, 1997, the ALJ rejected her claim, concluding that nothing prevented her from returning to a prior unskilled job. Mills appealed to the Social Security Appeals Council with new evidence. Mills sought to introduce a doctor’s “progress note” that confirmed that Mills was subject to a panic disorder with agoraphobia as well as dysthymia (a form of depression). She also attempted to introduce a social worker’s report that recommended a psychiatric evaluation. The council indicated that while new evidence she produced regarding her physical and mental conditions would be made part of the council’s record, it would not change the decision of the ALJ to disallow those claims for disability benefits. A U.S. magistrate in Maine, disagreed and remanded the case back to Social Security for reconsideration. The Social Security Administration appealed the magistrate’s decision to the U.S. District Court, which sided with the agency regarding the evidence question, but not with its argument that the council’s decision was not subject to court review. “The ALJ has not ‘made a mistake’ in ignoring new evidence that was never presented to him,” Boudin wrote. “However, the Appeals Council may have ‘made a mistake’ in refusing to consider new evidence presented to it, depending on the ground it gave.” The court was not free to remand the case because Mills never showed good cause for failing to offer the evidence to the ALJ. Boudin added that “a serious mistake by the Appeals Council in denying review on such a ground should itself be reviewable in court (again, only where articulated.)” The court concluded: “The Appeals Council slightly overstated the case in describing the new evidence as ‘consistent’ [with the original evidence presented], but not in a way that undermines its refusal to alter the ALJ’s conclusion.”

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