952 F.3d 1172
10th Cir.2020Background
- Noreja applied for Social Security disability benefits (filed 2012). An ALJ denied benefits in July 2013; Appeals Council remanded in March 2015 for additional evidence about mental impairments and suggested, if available, a consultative mental exam with testing.
- The case returned to the same ALJ, who held another hearing and denied benefits again in May 2016 without ordering a new consultative mental examination; the ALJ instead relied on additional treatment records and the opinion/testimony of a reviewing psychologist (Dr. Bruce), and continued to give little weight to Dr. Madsen.
- The Appeals Council declined further review in July 2017; the district court affirmed the Commissioner, concluding the Appeals Council’s remand did not mandate a new consultative exam and that the ALJ obtained sufficient additional evidence.
- On appeal to the Tenth Circuit, Noreja argued the ALJ failed to follow the Appeals Council remand directive (requiring additional evidence and suggesting a consultative exam), rendering the ALJ’s decision invalid.
- The Tenth Circuit held: (1) courts have jurisdiction to consider alleged ALJ noncompliance with an Appeals Council remand order as part of §405(g) review; (2) usual §405(g) standards apply—noncompliance is material only if it shows legal error or the decision lacks substantial evidence; and (3) the ALJ here did not violate the remand order (its language was permissive regarding a consultative exam) and substantial evidence supports the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review alleged ALJ noncompliance with Appeals Council remand | Tenth Circuit lacks jurisdiction to review Appeals Council remand compliance (challenge is to remand order) | §405(g) authorizes review of final Commissioner decisions, which can include whether ALJ complied with remand directives | Court has jurisdiction to consider noncompliance as part of its usual §405(g) review |
| Standard of review for alleged noncompliance | Any failure to follow Appeals Council order warrants reversal | Apply ordinary review: legal-error and substantial-evidence standards; only material noncompliance requires reversal | Apply usual standards; noncompliance is material only if it causes legal error or lack of substantial evidence |
| Whether the Appeals Council required a new consultative mental exam | Remand language (saying consultative exam "should" be obtained) mandated a new consultative mental exam | Remand required additional evidence but used permissive language about a consult exam; regs permit but do not require consult exams | Remand did not mandate a consultative exam; the Council required additional evidence but only suggested (permissive) a consult exam |
| Whether the ALJ’s May 2016 decision is supported by substantial evidence | Lack of a new consultative exam and continued discounting of Dr. Madsen fatally undermines the decision | ALJ obtained additional evidence (treatment records, Dr. Bruce) and reasonably weighed opinions; substantial evidence supports denial | ALJ did not violate the remand order and her denial is supported by substantial evidence; affirm |
Key Cases Cited
- Knight ex rel. P.K. v. Colvin, 756 F.3d 1171 (10th Cir. 2014) (standard of review: correct legal standards and substantial evidence)
- Grogan v. Barnhart, 399 F.3d 1257 (10th Cir. 2005) (definition of substantial evidence)
- Hamlin v. Barnhart, 365 F.3d 1208 (10th Cir. 2004) (agency’s failure to apply correct legal standards warrants reversal)
- Fischer-Ross v. Barnhart, 431 F.3d 729 (10th Cir. 2005) (de novo appellate review of ALJ decisions)
- Martinez v. Barnhart, 444 F.3d 1201 (10th Cir. 2006) (courts lack jurisdiction to review Appeals Council remand order itself)
- Miller v. Barnhart, [citation="175 F. App'x 952"] (10th Cir. 2006) (apply usual standards when Appeals Council later finds ALJ complied)
- Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (2013) (jurisdictional precision; caution against overbroad "jurisdictional" labels)
- Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019) (statutory limitations are jurisdictional only when Congress clearly says so)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (treatment of statutory coverage limits vs. jurisdiction)
- Tisdale v. United States, 248 F.3d 964 (10th Cir. 2001) (interpretation of "should" as permissive rather than mandatory)