WILSON v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 27

ORDER ADOPTING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE adopting Report and Recommended Decision re 22 Report and Recommendations. By JUDGE JON D. LEVY. (nwd)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TIMOTHY THOMAS WILSON,

)
)
Plaintiff,
)
)
v.
)
) Case No. 2:13-cv-197-JDL
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security )
)
Defendant.
)
ORDER ADOPTING THE RECOMMENDED DECISION OF THE
MAGISTRATE JUDGE
The United States Magistrate Judge filed his Report and Recommended
Decision (ECF No. 22) on June 27, 2014. The plaintiff, Timothy Thomas Wilson
(“Wilson”), filed an Objection to the Report and Recommended Decision (ECF No. 25)
on July 28, and the defendant, Commissioner Colvin (“Commissioner”), filed the
government’s Response on August 7 (ECF No. 26). After de novo review, I adopt the
Magistrate Judge’s recommendation.
I. BACKGROUND
On October 24, 2012, an administrative law judge (“ALJ”) denied Wilson’s
application for Title II disability insurance benefits. Administrative Record, ECF No.
11-2 at 39-42.

Seeking review of this decision to the Appeals Council, Wilson

submitted additional medical evidence that related to a period of hospitalization
which followed the ALJ’s decision. Id. at 5-37. The Appeals Council declined to
consider this additional evidence, and denied review. Id. at 1-2.

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In his Objection, Wilson raises three specific issues with the Magistrate
Judge’s Recommended Decision: (1) that the Recommended Decision did not employ
the correct standard when reviewing the Appeals Council’s decision not to consider
new evidence, (2) that the ALJ erred in assigning little weight to plaintiff’s Veterans
Affairs disability rating, and (3) that the ALJ erred in relying upon the medical
opinion of Dr. Seung Park. ECF No. 25 at 1-4.
II. DISCUSSION
Wilson’s first ground for objection takes issue with the Recommended
Decision’s conclusion that “[t]he Appeals Council . . . was not egregiously mistaken in
determining that the new evidence was not outcome-determinative.” ECF No. 25 at
1. Wilson contends that this standard of review is too deferential and that the correct
standard of review is whether the ALJ’s decision “might reasonably have been
different” had the new evidence been before him. Id. (citing Falu v. Sec’y of Health
and Human Servs., 703 F.2d 24 (1st Cir. 1983)).
As an initial matter, the Appeals Council may consider additional evidence
only if “there is a reasonable probability that the evidence, alone or when considered
with the other evidence of record, would change the outcome of the decision.” 20
C.F.R. § 405.401(c). Once this inquiry is satisfied, the Appeals Council may then
review a claim if, considering the new evidence, the ALJ’s conclusion is contrary to
the weight of the evidence in the record. 20 C.F.R. § 404.970(b). The standard for
examining an Appeals Council denial of review in the face of new evidence is whether
the Appeals Council was “egregiously mistaken” in its denial. Mills v. Apfel, 244 F.3d
1 (1st Cir. 2001). The decisive issue in this case, then, is whether the Appeals Council
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was egregiously mistaken in its threshold determination that the new evidence did
not present a reasonable probability of changing the ALJ’s decision.
While the words “reasonable probability” were not included in the
Recommended Decision’s ultimate conclusion, ECF No. 22 at 5, it is apparent that
the Recommended Decision, when read in its entirety, applied the correct standard
of review. See, e.g., id. at 3 (“The Appeals Council determined that ‘this information
does not show a reasonable probability that . . . would change the outcome . . . . ’”); id.
at 4 (“plaintiff . . . argu[es] that the Appeals Council was egregiously mistaken in
finding that there was no reasonable probability that the new evidence would change
the outcome of the decision . . . . ”). As the Commissioner suggests, the verbatim
wording of the Recommended Decision’s conclusion does not mean that it in fact
applied an inappropriately deferential standard of review.1
For these reasons, I adopt the Magistrate Judge’s conclusion that it was not an
egregious mistake for the Appeals Council to refuse review of Wilson’s claim, even in
light of the new evidence he presented. Additionally, I concur with the reasoning set
forth in the Magistrate Judge’s recommendation as to the second and third issues
presented.

1 In addition, the Falu standard suggested by Wilson does not apply in this circumstance. As Wilson
points out, Falu has been used by courts to assess the materiality of new evidence in Social Security
appeals. See, e.g., Evangelista v. Sec’y of Health and Human Servs., 826 F.2d 136 (1st Cir. 1987).
However, materiality is not at issue in this appeal. This court has not been asked to assess whether
newness, materiality, and good cause merit re-opening the record pursuant to 42 U.S.C. § 405(g).
Moreover, in Social Security Region 1, the “reasonable probability” test, rather than a newness and
materiality test, applies to Appeals Council reviews. 20 C.F.R. pt. 405, subpt. A, app.; 20 C.F.R. §
405.401(c); see Social Security Administration, Hearings, Appeals, and Litigation Law Manual
(HALLEX) I-3-3-6 (Dec. 27, 2012).

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It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED. The Commissioner’s decision is AFFIRMED.
SO ORDERED.

/s/Jon D. Levy___________
United States District Judge
Dated this 22nd day of September, 2014.

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