Late Evidence in Social Security Disability Cases - Brewes v. Commissioner of Social Security

August 25,2009
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While medical evidence is often hard to obtain from doctors and hospitals, the sooner it is submitted in a Social Security Disability case, the better. In Brewes v. Commissioner of Social Security, the Ninth Circuit Court of Appeals considered whether evidence submitted late in the claim process should be included in the record on an appeal.

Plaintiff Mindy Brewes filed a Social Security Disability Insurance benefits claim, maintaining that she was unable to work due to depression, bipolar disorder, anxiety and agoraphobia. After the Social Security Administration (SSA) initially denied the claim, Plaintiff appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ) in February 2007. The evidentiary record before the judge at the time of the hearing covered Plaintiff’s medical history from 2002 to 2007. Although the ALJ found that Plaintiff suffered from a number of severe mental impairments, he nevertheless concluded that she retained the residual functional capacity (RFC) to perform “simple one-, two-, three-step work with limited interaction with co-workers and no public interaction.” As a result, the ALJ determined that Plaintiff was not disabled for benefits purposes.

Plaintiff then requested the SSA’s Appeals Council to review the ALJ’s decision and provided additional medical evidence to the Council which was not before the ALJ. The Council denied the request for review, finding that the additional evidence did not provide a basis for further review.

On appeal, a federal district court refused to consider the additional evidence because it was not before the ALJ when he rendered the decision. On further appeal, the Ninth Circuit ruled that not only was the district court’s ruling erroneous, but all of the evidence combined to show that Plaintiff was disabled and entitled to benefits.

“[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence” the Court ruled.

Furthermore, the Court found that the evidentiary record as a whole showed that Plaintiff was unable to work due to her impairments. Although a vocation expert (VE) testified at the hearing that a person with Plaintiff’s impairments and background could perform certain limited jobs, the VE further stated that the person would be unemployable if she had to miss work two or more days a month due to the impairments. The additional evidence provided by Plaintiff included a joint letter from her psychologist and a mental health practitioner stating that Plaintiff “would miss quite a few days a month” because she would be inable to leaver her home due to anxiety.”

As a result, the Court reversed the ALJ’s decision and remanded the case with instructions to award disability benefits.

This 9th Circuit decision reinforces the importance of obtaining clear and convincing evidence regarding a Social Security claimant’s impairments and inability to work. It further stresses that the fact that it is never too late to obtain medical evidence for inclusion in the administrative record. An experienced Social Security Disability lawyer can assist in making sure that the claimant’s medical records are clear and complete, following up regularly with doctors so that their reports are timely submitted to the SSA, and that they are presented in the most convincing manner.