Mitchell Mackey appeals a district court 1 judgment affirming the Secretary’s denial of his application for Social Security disability benefits. After again probing the perplexing issue of how medical evidence first submitted to the Secretary’s Appeals Council should be evaluated by a reviewing court, we affirm.
Mackey applied for benefits in January 1992, alleging that he suffers from disabling pain in his back, shoulders, and knees and from numbness in his arms and legs. After the application was denied, both initially and on reconsideration, Mackey’s attorney requested a hearing. Shortly before the hearing, Mackey was examined for the first time by a psychiatrist, Dr. W. Gerald Fowler, who diagnosed somatoform pain disorder, major depression, and borderline intellectual functioning. Dr. Fowler estimated that Mackey has an IQ of 70 to 74 but did no IQ testing.
After the hearing, the administrative lаw judge (ALJ) found (i) that Mackey has “severe early, mild degenerative disc disease of the lumbosacral spine, lumbar myofascitis, sacroiliitis and mild chondromalacia patella of both knees,” (ii) that Mackey has no listed impairment, (iii) that his testimony as to disabling pain was not credible, (iv) that he is unable to perform his past relevant work as a laborer, maintenance man, and warehouse manager, but (v) that he has the residual functional capacity to perfоrm the full range of sedentary work and is therefore not disabled. Regarding Dr. Fowler’s psychiatric diagnosis, the ALJ commented: “Dr. Fowler states that claimant has borderline intellectual functioning but no where in the report does any evidence exist that demonstrates claimant took an acceptable IQ test, sрecifically the WAIS-R, 2 that is required for IQ assessment.”
Mackey then requested review by the Secretary’s Appeals Council, submitting a report by Psychologist George M. De Roeck. This repоrt stated that Mackey has a full scale IQ of 65, placing him in the mild mentally retarded range, based upon WAIS-R tests conducted after the ALJ’s decision. Based upon De Roeck’s report, Mackey argued for the first time that he has an impairment listed in the Secretary’s regulations as presumptively disabling: a “valid verbal, рerformance, or full scale I.Q. of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function.” 20 C.F.R., Pаrt 404, Subpart P, App. 1, § 12.05C. Nonetheless, the Appeals Council denied review, concluding:
Although Dr. De Roeck’s report includes the Wechsler Adult Intelligence Scаle scores, the report appears to be inconsistent with the record as a whole. The Appeals Council, therefore, is of the opiniоn that this additional evidence provides no substantial basis for changing the Administrative Law Judge’s decision.
Mackey now seeks judicial review. He argues only onе issue, that substantial evidence does not support the ALJ’s decision because he meets Listing 12.05C and is therefore disabled. The district court rejected this cоntention, concluding on the basis of
Woolf v. Shalala,
1. When a disability claimant seeks to present new medical evidence to a reviewing court, the claimant must show that the evidence is material and that there is “good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). That wаs the issue in Woolf. However, if the claimant submits new medical evidence to the Appeals Council, the Appeals Council “shall evaluate the entire reсord including the new and material evidence” if it determines that the evidence is material. 20 C.F.R. § 404.970(b). That is what happened in this case, so the district court’s rebanеe upon Woolf was misplaced.
2. The district court was correct, however, in stating that a reviewing court need not always consider a post-hearing medical report which suggests an impairment not urged before the ALJ. That was the issue in
Sullins v. Shalala,
3. When the Appeals Council has considered material new evidence and nonetheless declined review, the ALJ’s decision becomes the final action of the Secretary. We then have no jurisdiction to review the Appеals Council’s action because it is a nonfinal agency action.
See Browning v. Sullivan,
4. That brings us to the merits of this case. The only evidence of mental impairment before the ALJ was Dr. Fowlеr’s report, which did not support a 12.05C listed impairment because there was no adequate IQ evidence; indeed, Dr. Fowler’s IQ estimate was above the 12.05C range. The expanded record contains De Roeck’s report, which includes the results of WAIS-R testing showing that Mackey has a full scale IQ of 65, well within the 12.05C range. However, the Appeals Council rejected De Roeck’s report as inconsistent with the record before the ALJ. Although we are not bound by the Appеals Council’s evaluation of this IQ evidence, we should give it considerable deference, at least when, as in this ease, it has support in the record. Nоthing in Mackey’s prior work history or educational background, and nothing in the medical evidence before the ALJ, supports an IQ so low as to reflect mild mental retardation. Moreover, De Roeek’s report notes that Mackey’s “slow response rate [during the WAIS-R tests] did negatively interfere with his score on thе performance subtests.”
The parties to this appeal have presented an interesting administrative law question— whether a reviewing court may find that a claimant has a 12.05C listed impairment when the evidence before the ALJ suggested only a less severe mental impairment and the Appeals Council deniеd review. Certainly the regulations appear to authorize the Appeals Council to step in and make a final decision in the claimant’s favor. See 20 C.F.R. §§ 404.970(b), 404.979. Assuming without deciding that a reviewing court also has this power, and at a minimum has the power to remand for an additional hearing on the 12.05C issue, we nonetheless agree with the Appeals Council that Mackey’s post-hearing new evidence does not establish a 12.05C listed impairment. Accordingly, the judgment of the district court is affirmed. Mack-ey’s motion for leave to file a supplemental brief is granted.