Brewes v. Commissioner of Social Security Administration, 2012 U.S. App. LEXIS 12064

Brewes applied for disability benefits in June 2005, alleging disability since February 2004 due to depression, bipolar disorder, anxiety, and agoraphobia.
The administrative record showed multiple mental-health diagnoses from 2002–2007, with GAF scores ranging from 40 to 60 indicating substantial impairment.
The ALJ found Brewes had several severe mental impairments but discredited her testimony and limited her residual functional capacity to simple unskilled work with minimal interaction, concluding she was not disabled.
Brewes submitted additional evidence to the Appeals Council, which accepted it and included it in the record while denying review of the ALJ’s decision.
The district court refused to consider the Appeals Council’s new evidence, and Brewes appealed; the Ninth Circuit reversed, holding that the new evidence becomes part of the administrative record and must be considered in the substantial-evidence review, remanding for benefits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether new evidence submitted to the Appeals Council is part of the administrative record	Brewes argues the evidence is part of the record since the Council considered it.	Commissioner contends it remains outside the district court record unless material and good cause shown.	Yes; new evidence to the Council becomes part of the record and must be considered.
Whether the new evidence undermines the denial of benefits	The evidence shows Brewes would miss many days of work, undermining employability.	The letter is not material or inconsistent with the record.	Evidence shows Brewes would miss multiple days monthly; supports disability and requires remand for benefits.

Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993) (considering new evidence submitted to the Appeals Council)
Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999) (review requires considering the record as a whole)
O’Dell v. Shalala, 44 F.3d 855 (10th Cir. 1994) (treats new evidence considered by Appeals Council as part of record)
Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993) (reiterates consideration of Council-added evidence)
Harman v. Apfel, 211 F.3d 1172 (9th Cir. 2000) (adequacy of evidence in Council-denied review context)
Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007) (remand where new evidence affects vocational determinations)
Vernoff v. Astrue, 568 F.3d 1102 (9th Cir. 2009) (standard of review for substantial evidence)
Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228 (9th Cir. 2011) (non-final Appeals Council decision; final decision review)
Perez v. Chater, 77 F.3d 41 (2d Cir. 1996) (interpretation of Council’s consideration of new evidence)