Leslie Sun v. Carolyn Colvin, Acting Cmsnr
793 F.3d 502
5th Cir.2015Background
- Leslie Sun fractured her left ankle in May 2011, had initial ORIF in June 2011, and moved to Louisiana; she later sought DIB and SSI in June–July 2011.
- Record available to the ALJ showed minimal treatment after August 2011; Sun testified she underwent a second surgery in December 2011 but the ALJ lacked LSU records documenting that surgery and post-op care.
- LSU clinical records (submitted to the Appeals Council after the ALJ decision) show hardware removal/revision and bone grafting in Dec. 2011, prolonged non-weightbearing, delayed union as late as April 2012, and instruction to begin weightbearing in a CAM boot on April 11, 2012; final note on June 4, 2012 allowed weightbearing as tolerated.
- The ALJ found Sun had a severe impairment but did not meet Listing 1.06 (fracture with inability to ambulate effectively for 12 months), credited some of Sun’s testimony but emphasized lack of medical evidence after Aug. 2011, and concluded she could perform light work.
- Sun submitted the LSU records to the Appeals Council (AC); the AC added them to the record but denied review without discussing the new records. District court affirmed; Fifth Circuit reversed and remanded for further proceedings.
Issues
| Issue | Sun's Argument | Commissioner/AC Argument | Held |
|---|---|---|---|
| Whether the ALJ had a duty to obtain all medical records before decision | ALJ failed to fully and fairly develop the record by not obtaining LSU records, prejudicing Sun | ALJ satisfied duty by eliciting testimony about gaps and requesting records; regs require reasonable efforts (initial + one follow-up) not exhaustive collection | ALJ not required to obtain all existing records; duty is to develop relevant facts, and agency attempted to obtain records per regs |
| Whether the Appeals Council properly considered new evidence | AC perfunctorily denied review without discussing significant new evidence (LSU records) so judicial review is impaired | AC may deny review after "considering" new and material evidence and is not required to explain denial | AC not required to provide detailed analysis when denying review, but remand was necessary because new evidence was significant and not addressed by a factfinder |
| Whether the new LSU evidence compels a finding that Listing 1.06 was met | Sun: LSU records show delayed union and inability to ambulate effectively within 12 months, so Listing 1.06 may be met for a closed period | Commissioner: ALJ’s determination can be reconciled with LSU records and other evidence; burden is on Sun to show listing met | Court: cannot determine whether substantial evidence supports denial because no factfinder resolved or reconciled the significant but not one-sided new evidence; remand required |
| Whether the Commissioner’s final decision is supported by substantial evidence given the expanded record | Sun: combined record undermines ALJ’s credibility and step-three finding; remand required | Commissioner: final decision includes AC denial and thus considers LSU records; substantial-evidence review should stand | Court: Because the Appeals Council denial left significant factual uncertainty unresolved, the record does not permit meaningful substantial-evidence review; reverse and remand for rehearing |
Key Cases Cited
- Perez v. Barnhart, 415 F.3d 457 (5th Cir. 2005) (standard for burden-shifting and substantial-evidence review)
- Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005) (evidence submitted to Appeals Council becomes part of the record for judicial review)
- Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980) (Appeals Council must evaluate new evidence when it issues its own decision; failure to do so can require remand)
- Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011) (remand where Appeals Council considered new evidence that was ‘‘significant but not one-sided’’ and no factfinder resolved conflicts)
- James v. Bowen, 793 F.2d 702 (5th Cir. 1986) (definition of substantial evidence)