IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31058

LESLIE SUN, 

 Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant - Appellee

Appeals from the United States District Court

for the Eastern District of Louisiana

Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge.

Appellant Leslie Sun filed claims for disability insurance benefits 

(“DIB”) and supplemental security income benefits (“SSI”), alleging disability

under the Social Security Act because of a fractured ankle that took place in 

May 2011. An administrative law judge (“ALJ”) denied her claim, emphasizing 

that “the record contains very minimal evidence of medical treatment since the 

alleged onset date and no evidence of medical treatment since August 2011.” 

In denying her claim, the ALJ concluded that Sun’s impairment did not equal 

the medical severity of an impairment listed in the C.F.R., which required Sun 

to show that her ankle injury rendered her unable to ambulate effectively for 

United States Court of Appeals

Fifth Circuit

FILED

July 17, 2015

Lyle W. Cayce

Clerk

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a full year after the May 2011 onset. Sun requested review of her claim by the 

Appeals Council (“AC”) and submitted additional medical records, which the 

ALJ did not have, indicating that Sun underwent surgery in December 2011. 

The AC made this additional evidence part of the record, but, providing no 

discussion of the newly submitted evidence, denied Sun’s request for review. 

Sun now appeals, contending that the ALJ failed to fully and fairly develop the 

record by not obtaining all of her medical records before denying her claim. 

Because we are unable to determine, from review of the record as a whole, if 

substantial evidence supports the Commissioner’s denial of benefits, we 

reverse and remand for further proceedings. 

FACTUAL BACKGROUND

I. Sun’s Medical Records & Recovery

On May 28, 2011, Sun went to the emergency room in Marietta, Georgia, 

seeking treatment for a fractured ankle, which she reported was a result of a 

domestic altercation. On June 15, 2011, Sun underwent surgery—an “[o]pen 

reduction, internal fixation” of her left ankle fracture—and a metallic plate 

and screws were placed along the ankle fracture. Shortly after her surgery, 

Sun moved to Louisiana. On August 18, 2011, Sun went to North Oaks 

Hospital in Hammond, Louisiana to have her cast removed. At that time, the 

x-ray of her ankle was “unremarkable” and revealed that the “hardware [was] 

in place.” However, seven days later, Sun returned to North Oaks Hospital 

complaining of pain in her ankle that was a “9/10” on the pain scale and 

reporting that she “noticed something poking out under the skin.” The doctor 

examined Sun’s ankle and noticed a “small nodule” but observed that there 

was “[n]o breaking skin no pressure noted to area” and that Sun was “in no 

acute distress.” Sun left the hospital after being told that she needed to see an 

orthopedist. On August 31, 2011, Sun went to LSU Lallie Kemp Hospital 

Emergency Department, again reporting pain in her ankle. The examining 

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doctor noticed an “[a]rea of air evident about the screw . . . which could 

represent some mild loosening.” 

On October 11, 2011, Sun was examined by Dr. Catherine DiGiorgio, who 

noted in a written report that Sun “did not follow up at all whatsoever” after 

her first ankle surgery. Dr. DiGiorgio recorded that Sun’s “pain is daily, 

constant 8-10/10, burning, sharp, no medications, and no doctor.” Dr. 

DiGiorgio’s functional assessment of Sun was that “[s]he can push, pull, and 

reach with no difficulty. She cannot bear weight on the left ankle, so she was 

unable to crouch, squat, or stoop.” Dr. DiGiorgio concluded:

. . . Currently, it appears that the assistive device is 

necessary. I believe the patient has not had a followup with the physician for postoperative surgery and 

screw appears to be emerging and docking out and 

orthopedic hardware that was placed is neglected. I 

believe the patient has neglected her health and she 

needs to be evaluated by a physician, who can follow 

up with her postoperatively. . . . [H]owever, the patient 

should not require crutches for longer than few weeks 

post surgery and she should not be using them any 

longer. However, given that she neglected to follow-up 

with the medical doctor for postoperative care, it is 

possible that she could require crutches right now 

because she could have abnormal healing. Again, I 

recommend this to be further evaluated by qualified 

orthopedic who can assess whether or not she needs to 

have surgery again or whether or not she had 

abnormal healing. 

LSU clinical reports, which the ALJ did not have, indicate that in 

December 2011, about seven months after the onset of her injury, Sun had a 

second surgery, which included “[h]ardware removal and revision, open 

reduction and internal fixation” and bone grafting. The operating doctor 

detailed the surgery and noted that “[t]he patient will need to remain 

nonweightbearing for at least 6 weeks.” On January 4, 2012, Sun had a two-

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week follow-up at the LSU clinic, during which the doctor removed her splint, 

put her in a CAM boot, and instructed her to “remain[] nonweightbearing for 

[an] additional 6 to 8 weeks and return to clinic.” Sun returned to the clinic on 

April 11, 2012, at which time a doctor reported that “images today show some 

small callus confirmation; however, still no union. Today, we will allow her to 

begin weightbearing in her CAM boot. We will set her up with physical therapy 

for range of motion and straightening of the right ankle as well as give her 

exercises to perform at home.” The last relevant medical report is dated June 

4, 2012, slightly over twelve months after her initial injury. On that date, the 

doctor reported “healing of the distal fibula where [Sun] had her iliac crest bone 

graft placed. Malleolar hardware appears to be intact with no hardware 

failure. Plate appears to be in good position. Overall, joints at the base appears

[sic] to be normal with only minimal lateral subluxation . . . .” The doctor took 

Sun out of her CAM boot and instructed her to “be weightbearing as tolerated.” 

II. Sun’s Application for DIB & SSI

Meanwhile, in June and July of 2011, shortly after her initial injury, Sun 

filed an application for DIB and SSI. Based on medical assessments and 

projections of what Sun’s functional capacity would be by May 2012, one year 

after she was injured, the Commissioner denied her application. In December 

2011, Sun requested a hearing by an ALJ. The Office of Disability Adjudication 

and Review asked Sun to sign a medical authorization form so that the office 

could obtain her medical records. On April 27, 2012, and again on May 24, 

2012, someone from that office sent a letter to the LSU Interim Hospital 

requesting Sun’s medical records. No response was received before the ALJ 

held a hearing on July 20, 2012. 

A. Hearing Before the ALJ

Sun waived her right to representation and participated in the hearing 

unrepresented. During the hearing, the ALJ explained that he had no medical 

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records regarding her second surgery or subsequent visits to the LSU clinic 

and that there was “no documentation at all since August of last year . . . no 

medical records at all.” Acknowledging a possible evidentiary gap, the ALJ 

questioned Sun about her second surgery and subsequent recovery. Because 

Sun thought the ALJ already had her medical records, she did not bring a 

detailed list of when everything took place. Sun estimated that she had the 

boot on her foot for six to eight weeks and that she stopped using crutches 

“[p]robably in May” of 2012. Later, however, Sun claimed that she still 

“usually” needed to use a crutch, especially if she would be walking long 

distances. Sun did not use a crutch the day of the hearing. Sun testified 

extensively about her physical capabilities and limitations as well as her daily

routine. 

The ALJ also questioned a Vocational Expert about Sun’s past work and 

present capabilities. The Vocational Expert testified that given Sun’s physical 

capabilities, she would not be able to perform any past work and that she had 

no transferable skills. The Vocational Expert then listed some positions that 

were both unskilled and sedentary, such as “[i]nterviewers,” “[r]eception and 

information clerks,” and “[g]eneral office clerks” that Sun might be able to 

perform.

B. The ALJ’s Decision

On August 10, 2012, the ALJ issued a written decision, finding that Sun 

was not disabled under the Social Security Act. The ALJ went through the 

five-step analysis set forth in 20 C.F.R. §§ 404.1520, 416.920.1 While the ALJ 

did find that Sun had a “severe impairment,” he determined that it did not 

meet the medical severity of one of the impairments listed in the C.F.R. The 

 

1 Part 404 of 20 C.F.R. relates to disability insurance benefits. See 20 C.F.R. § 404.1. 

Part 416 relates to supplemental security income. See 20 C.F.R. § 416.101. As relevant here, 

the regulations are not materially different. We will therefore refer only to Part 404. 

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ALJ initially “credit[ed] [Sun’s] testimony that her pain symptoms continued 

and that she underwent a second left ankle surgery in December 2011,”

however, he then repeatedly emphasized that the record contained “very 

minimal evidence of medical treatment since the alleged onset date and no 

evidence of medical treatment since August 2011.” The ALJ stated that “[e]ven 

affording the claimant the benefit of the doubt that she has continued to seek 

medical care as alleged at the hearing, the record contains no evidence of 

physical findings to support her reported limitations and no evidence of doctor 

recommended activity restrictions.” The ALJ noted that there were “several 

inconsistencies” in Sun’s testimony that detracted from her credibility. 

Further, the ALJ declined to give great weight to the October 2011 evaluation 

by Dr. DiGiorgio because “the lack of consistent treatment suggests that [Sun] 

retained greater functional abilities than suggested by Dr. DiGiorgio.” 

Ultimately, the ALJ determined that Sun was able to perform “light 

exertional” activities and would be able to perform jobs that “exist in 

significant numbers in the national economy.” For this reason, the ALJ 

concluded that Sun was not disabled under the Social Security Act.

C. Sun’s Subsequent Appeals

After the ALJ issued his decision, Sun hired an attorney to represent her 

and filed a “Request for Review of Hearing Decision/Order.” Sun’s attorney 

submitted the LSU medical records to the AC and amended her original 

application to request “a closed period of disability from the initial fracture of 

her leg May 18, 2011, through June 4, 2012 when she was known to be finally 

healed and weightbearing.” Sun’s lawyer also submitted a letter brief, arguing 

that the ALJ failed to fully and fairly develop the record. The AC made the 

LSU Clinical Reports part of the record. After considering “the reasons [Sun] 

disagree[d] with the decision and the additional evidence,” the AC denied Sun’s 

request for review. The AC provided no discussion or analysis of the additional 

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medical records, but, instead, simply concluded that the ALJ’s “action, 

findings, or conclusion” were not “contrary to the weight of evidence of record.”

Sun filed a complaint against the Acting Commissioner of the Social 

Security Administration (“Commissioner”), requesting judicial review of the 

final administrative decision, pursuant to 42 U.S.C. § 405(g). After an 

established briefing schedule, the magistrate judge issued a Findings and 

Recommendation, recommending that Sun’s complaint be dismissed. On 

August 11, 2014, the district court adopted the magistrate’s Findings and 

Recommendation, dismissed Sun’s complaint, and entered a judgment in favor 

of the Commissioner. Sun timely appealed.

DISCUSSION

The Social Security Act defines disability as the “inability to engage in 

any substantial gainful activity by reason of any medically determinable 

physical or mental impairment which can be expected . . . to last for a 

continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The 

C.F.R. sets forth a five-step sequential process for evaluating disability under 

the Act.2 The burden of proof is on the claimant for the first four steps, but for

the fifth step, the burden shifts to the Commissioner. Perez v. Barnhart, 415 

F.3d 457, 461 (5th Cir. 2005). Before denying Sun’s claim, the ALJ went 

through each of the five evaluative steps. At step one and two, the ALJ found 

in favor of Sun—that she was not engaging in substantial gainful activity and 

 

2 The steps are: “(1) whether the claimant is currently engaged in substantial gainful 

activity (whether the claimant is working); (2) whether the claimant has a severe 

impairment; (3) whether the claimant’s impairment meets or equals the severity of an 

impairment listed in 20 C.F.R., Part 404, Subpart B, Appendix 1; (4) whether the impairment 

prevents the claimant from doing past relevant work (whether the claimant can return to his 

old job); and (5) whether the impairment prevents the claimant from doing any other work.” 

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); see also 20 C.F.R. § 404.1520(a)(4). If it 

is determined that the claimant is or is not disabled at any step, the evaluation is stopped 

and the decision is made. 20 C.F.R. § 404.1520(a)(4).

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that she had a “severe impairment”—and neither party contests those findings. 

At step three, however, the ALJ found that Sun’s impairment did not medically 

equal the severity of one of the listed impairments in appendix 1 of the C.F.R. 

See 20 C.F.R. Pt. 404, Subpt. P, App.1. It is this determination that Sun 

contests.3 

Relevant here, appendix 1, listing 1.06 provides that a person is disabled 

if she has a fracture of the femur, tibia, pelvis, or one or more of the tarsal 

bones, with: 

A. Solid union not evident on appropriate medically 

acceptable imaging and not clinically solid; 

and 

B. Inability to ambulate effectively, as defined in 

1.00B2b, and return to effective ambulation did not 

occur or is not expected to occur within 12 months of 

onset. 

20 C.F.R. Pt. 404, Subpt. P, App. 1. Section 1.00(B)(2)(b), entitled “What We 

Mean by Inability To Ambulate Effectively,” provides:

(1) Definition. Inability to ambulate effectively 

means an extreme limitation of the ability to walk; i.e., 

an impairment(s) that interferes very seriously with 

the individual’s ability to independently initiate, 

sustain, or complete activities. Ineffective ambulation 

is defined generally as having insufficient lower 

extremity functioning . . . to permit independent 

ambulation without the use of a hand-held assistive 

device(s) that limits the functioning of both upper 

extremities. . . .

 

3 The regulation provides that if the ALJ finds in favor of the claimant at step three, 

he should end the evaluation and find that the claimant is disabled. See 20 C.F.R. 

§ 404.1520(a)(4)(iii). In this case, the ALJ went on to steps four and five and determined 

that, based on Sun’s residual functional capacity, she was capable of performing light work 

and would be able to perform jobs that exist in significant numbers in the national economy. 

Sun does not contest the ALJ’s findings at steps four and five, but, instead, argues that the 

ALJ should have ended his evaluation at step three.

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(2) To ambulate effectively, individuals must be 

capable of sustaining a reasonable walking pace over 

a sufficient distance to be able to carry out activities of 

daily living. They must have the ability to travel 

without companion assistance to and from a place of 

employment or school. Therefore, examples of 

ineffective ambulation include, but are not limited to, 

the inability to walk without the use of a walker, two 

crutches or two canes, the inability to walk a block at 

a reasonable pace on rough or uneven surfaces . . . . 

Relying on the LSU medical records,4 Sun claims that, contrary to the ALJ’s 

determination, she was not able to ambulate effectively by May 2012, twelve 

months after the onset of her injury, and, thus, her impairment met the 

severity of listing 1.06.5

I. Standard of Review

“[A]fter any final decision of the Commissioner of Social Security made 

after a hearing to which [an individual] was a party,” that individual “may 

obtain a review of such decision by a civil action commenced within sixty days.” 

42 U.S.C. § 405(g). “Judicial review of the Commissioner’s decision to deny 

benefits is limited to determining whether that decision is supported by 

substantial evidence and whether the proper legal standards are applied.” 

 

4 Although the ALJ did not have the LSU medical records when he denied Sun’s claim, 

they constitute part of the record upon which the Commissioner’s final decision was based. 

See Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005) (“[T]he Commissioner’s final 

decision necessarily includes an Appeals Council’s denial of a claimant’s request for review. 

It follows that the record before the Appeals Council constitutes part of the record upon which 

the final decision is based.”). 

5 The ALJ concluded that Sun’s impairment did not equal the severity of an 

impairment listed in appendix 1, without first making an explicit finding regarding when 

Sun was able to ambulate effectively. By finding that Sun’s medical impairment did not meet 

the severity of listing 1.06, however, the ALJ at least implicitly found that Sun returned to 

effective ambulation within twelve months of the onset of her injury. Later in his opinion, 

when discussing Sun’s residual functional capacity, the ALJ noted that “the claimant’s own 

testimony establishes that she was able to ambulate without an assistive device since May 

2012.” 

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Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (citation omitted). “Substantial 

evidence is more than a scintilla, less than a preponderance, and is such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” James v. Bowen, 793 F.2d 702, 705 (5th Cir. 1986). “In applying 

the substantial evidence standard, the court scrutinizes the record to 

determine whether such evidence is present, but may not reweigh the evidence 

or substitute its judgment for the Commissioner’s.” Perez, 415 F.3d at 461; see 

also Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (“We will not reweigh the evidence, try the questions de novo, or substitute our judgment for 

the Commissioner’s, even if we believe the evidence weighs against the 

Commissioner’s decision.”). “Conflicts of evidence are for the Commissioner, 

not the courts, to resolve.” Perez, 415 F.3d at 461.

II. Did the ALJ have a duty to obtain all of Sun’s medical records? 

On appeal, Sun argues that the ALJ “neglected to fully and fairly develop 

the record evidence” by not obtaining all of her medical records and that such 

failure prejudiced Sun and warrants reversal of the Commissioner’s decision. 

This court has previously explained that because hearings under the Social 

Security Act are non-adversarial, “[t]he hearing examiner has the duty, 

accentuated in the absence of counsel, to develop the facts fully and fairly and 

to probe conscientiously for all of the relevant information.” Ware v. Schweiker, 

651 F.2d 408, 414 (5th Cir. 1981) (citation omitted). If the ALJ fails to fulfill 

this duty, “he does not have before him sufficient facts on which to make an 

informed decision and consequently the decision is not supported by 

substantial evidence.” James, 793 F.2d at 704. For this reason, the court may

reverse the ALJ’s decision if the claimant can show that “(1) the ALJ failed to 

fulfill his duty to develop the record adequately and (2) that failure prejudiced 

the plaintiff.” Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012). 

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While Sun is correct in her assertion that the ALJ had a duty to fully 

and fairly develop the facts, we do not endorse her understanding of that duty

as requiring the ALJ to obtain all of a claimant’s medical records before 

reaching a decision. This court has described the ALJ’s duty as one of 

developing “all relevant facts,” not collecting all existing records. See Castillo 

v. Barnhart, 325 F.3d 550, 552-53 (5th Cir. 2003) (per curiam) (describing the 

ALJ’s “heightened duty to scrupulously and conscientiously explore all 

relevant facts” (emphasis added)); Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 

1996) (per curiam) (describing the ALJ’s “heightened duty to elicit all relevant 

facts” (emphasis added)). Consistent with that description, the court often

focuses on the ALJ’s questioning of the claimant in order to determine whether 

the ALJ gathered the information necessary to make a disability 

determination. See, e.g., Brock, 84 F.3d at 728 (finding that the ALJ satisfied 

his duty by “extensively question[ing] [the claimant] about his education, 

training, and past work history; about the circumstances of his injury; and 

about his daily routine, pain, and physical limitations” and by inviting the 

claimant to “add other relevant evidence to the record”); Castillo, 325 F.3d at 

552-53 (finding that ALJ satisfied his duty where he “questioned [the claimant] 

and her husband regarding her age, education, ability to read and comprehend, 

past relevant work, impairments, vision problems, and medical testing and 

treatment, and gave both [the claimant] and her husband opportunities to add 

anything else to the record”); cf. Kane v. Heckler, 731 F.2d 1216, 1218-20 (5th

Cir. 1984) (finding that the ALJ failed to adequately develop the facts and 

record where the ALJ held a five-minute hearing and asked “only one 

perfunctory question about [the claimant’s] subjective complaints” before 

denying her claim, despite the existence of objective medical-record evidence 

that supported those complaints). Further, imposing a duty on the ALJ to 

obtain all of a claimant’s medical records would be in tension with the C.F.R.’s 

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explicit provision that the Commissioner will “make every reasonable effort to 

help [the claimant] get medical reports from [his or her] own medical sources” 

by making “an initial request for evidence from [the claimant’s] medical source 

and . . . one followup request to obtain medical evidence necessary to make a 

determination,” which the Commissioner did in this case.6 20 C.F.R. § 

404.1512(d). 

Moreover, even if the ALJ did have a duty to obtain all of Sun’s medical 

records, his failure to do so in this case would not warrant reversal of the 

Commissioner’s final decision. This court has held that “the Commissioner’s 

final decision necessarily includes an Appeals Council’s denial of a claimant’s 

request for review” and that, therefore, “the record before the Appeals Council 

constitutes part of the record upon which the final decision is based.”7 

Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005). According to 

Higginbotham, the Commissioner’s final decision to deny Sun’s claim, which 

includes the AC’s denial of Sun’s request for review, was based on all of Sun’s 

medical records, including the LSU records that Sun now argues should have 

 

6 Sun cites only one case that discusses an ALJ’s duty to obtain medical records, Rosa 

v. Callahan, 168 F.3d 72, 79-80 (2d Cir. 1999). However, the section of Rosa cited by Sun is 

entitled “The Treating Physician Rule” and discusses the general rule that “[t]he opinion of 

a treating physician is given controlling weight if it is well supported by medical findings and 

not inconsistent with other substantial evidence.” Id. at 78-79. In Rosa, the ALJ rejected 

the treating physician’s explicit finding that the claimant was disabled, emphasizing that 

certain portions of the physician’s report were incomplete. Id. at 79. In that context, the 

Second Circuit explained that before rejecting the treating physician’s diagnosis, the ALJ 

should have attempted to fill gaps in the administrative record by requesting additional 

records from the treating physician as well as medical records from other physicians, physical 

therapists, and hospitals that the claimant had visited. Id. at 79-80. The Second Circuit 

concluded that the ALJ improperly substituted her own expertise for that of the treating 

physician and committed legal error by not developing the factual record before rejecting the 

treating physician’s disability finding. Id. at 80. While Rosa does discuss the value of 

obtaining a claimant’s medical records, it does not impose on ALJs a duty to obtain medical 

records before reaching a decision. 

7 The court in Higginbotham acknowledged a circuit split on this issue. 

Higginbotham, 405 F.3d at 335-36. 

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been obtained by the ALJ. See id. Accordingly, even were there ALJ 

deficiency, it would not necessarily follow that the Commissioner’s final 

decision, which includes the AC’s consideration of the new evidence and 

subsequent denial of review, was also not supported by substantial evidence. 

Instead, this court must examine all of the evidence, including the new 

evidence submitted to the AC, and determine whether the Commissioner’s 

final decision to deny Sun’s claim was supported by substantial evidence. See 

Boyd, 239 F.3d at 704 (“Judicial review of the Commissioner’s decision to deny

benefits is limited to determining whether that decision is supported by 

substantial evidence and whether the proper legal standards are applied.”

(citation omitted)); Higginbotham, 405 F.3d at 337 (“[T]he evidence submitted 

for the first time to the Appeals Council is part of the record on appeal because 

the statute itself provides that such record includes the ‘evidence upon which 

the findings and decision complained of are based.’” (quoting 42 U.S.C. § 

405(g))). 

III. Did the AC properly consider the newly submitted evidence?

Relying on Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980), Sun contends 

that the AC did not adequately evaluate the newly submitted evidence, as it 

provided no discussion of the evidence, and simply “found that this information 

does not provide a basis for changing the Administrative Law Judge’s 

decision.” In Epps, this court reversed a decision by the Commissioner to deny

a claimant’s disability claim after finding that the AC had “perfunctorily 

adhered to the decision of the hearing examiner.” 624 F.2d at 1273. The court 

explained that “[a]lthough the Appeals Council acknowledged that Epps had 

submitted new evidence, it did not adequately evaluate it” and “[t]his failure 

alone makes us unable to hold that the Secretary’s findings are supported by 

substantial evidence and requires us to remand this case for a determination 

of Epps’ disability eligibility reached on the total record.” Id. 

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As the court in Epps recognized, judicial review of the Commissioner’s 

decision is difficult, if not impossible, when the AC provides no discussion of 

relevant, new evidence. Id. It is significant, however, that Epps involved the 

AC’s affirmance and adoption of the ALJ’s decision, rather than the AC’s denial 

of a request for review. Id. at 1272; see also Parks ex rel. D.P. v. Comm’r, Soc. 

Sec. Admin., 783 F.3d 847, 853 (11th Cir. 2015) (“Epps arose in a different 

procedural context, where the Appeals Council affirmed the decision of the 

administrative law judge. Epps has little bearing on a denial of a request for 

review.” (citation and internal quotation marks omitted)). When a claimant 

requests that the AC review an ALJ’s decision, the AC “may deny a party’s 

request for review or it may decide to review a case and make a decision.” 20 

C.F.R. § 404.981 (emphasis added). “When the Appeals Council makes a 

decision,” as it did in Epps, “it will follow the same rules for considering opinion 

evidence as [ALJs] follow.” 20 C.F.R. § 404.1527; see also Meyer v. Astrue, 662 

F.3d 700, 706 (4th Cir. 2011) (“Only if the Appeals Council grants a request for 

review and issues its own decision on the merits is the Appeals Council 

required to make findings of fact and explain its reasoning.”). The AC’s 

decision then becomes binding unless the claimant seeks judicial review. 20 

C.F.R. § 404.981. On the other hand, when the AC denies the claimant’s 

request for review, as it did in this case, that denial becomes part of the 

Commissioner’s final decision, Higginbotham, 405 F.3d at 336-37, but the 

ALJ’s decision remains binding, 20 C.F.R. § 404.981. 

In deciding whether to deny the claimant’s request for review, the AC 

must consider and evaluate any “new and material evidence” that is submitted,

if it relates to the period on or before the ALJ’s decision. 20 C.F.R. § 404.970(b). 

If the AC finds that the ALJ’s “action, findings, or conclusion is contrary to the 

weight of the evidence currently of record,” the AC will then review the case. 

Id. Otherwise, it will deny the claimant’s request for review. The regulations 

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do not require the AC to provide a discussion of the newly submitted evidence 

or give reasons for denying review.8 See Meyer, 662 F.3d at 706 (“In sum, the 

regulatory scheme does not require the Appeals Council to do anything more 

than what it did in this case, i.e., ‘consider new and material evidence . . . in 

deciding whether to grant review.’” (citation omitted)); Mitchell v. Comm’r, Soc. 

Sec. Admin., 771 F.3d 780, 785 (11th Cir. 2014) (“[W]e hold that the Appeals 

Council is not required to explain its rationale when denying a request for 

review.”); Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006) (“[The 

claimant] points to nothing in the statutes or regulations that would require 

such an analysis where new evidence is submitted and the Appeals Council 

denies review.”). 

It is also important to note that in Epps, unlike in the present case, the 

ALJ based its findings on a fact that was later directly contradicted by the new 

evidence submitted to the AC, yet the AC adopted the ALJ’s decision

unchanged, without addressing that new evidence. 624 F.2d at 1273; see also 

Mitchell, 771 F.3d at 783 (“[T]he record in Epps provided us with an affirmative 

basis for concluding the Appeals Council failed to evaluate the claimant’s new 

evidence.”). Thus, there was no way to reconcile the AC’s adoption of the ALJ’s 

 

8 In 1995, the Social Security Administration issued a memorandum that temporarily 

suspended the previous requirement that the AC articulate findings when it considers new 

evidence and denies review. See Office of Disability Adjudication and Review, Social Security 

Administration, HALLEX I-3-5-90, The Request for Review Workload, From the Executive 

Director, Office of Appellate Operations (July 20, 1995), available at 2001 WL 34096367

(“Effective immediately, we are temporarily suspending the requirement for a detailed 

discussion of additional evidence and for specific responses to contentions in denial notices.”); 

see also Higginbotham, 405 F.3d at 335 n.1 (rejecting a similar argument that the AC failed 

to explain its weighing of the evidence, stating that “the requirement of a detailed discussion 

of additional evidence was suspended by a memorandum from the Executive Director of 

Appellate Operations dated July 20, 1995”). According to the Executive Director, the 

suspension was necessary to help alleviate the rapidly growing workload of the AC. In 2012, 

the AC officially adopted the 1995 initiative. See Office of Disability Adjudication and 

Review, Social Security Administration, HALLEX I-3-5-30, Consideration of Legal 

Arguments or Contentions (Dec. 27, 2012), available at 1993 WL 643144. 

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decision with its consideration of the new evidence. Here, on the other hand, 

the newly submitted evidence is significant, and casts doubt on the soundness 

of the ALJ’s findings, but it does not necessarily contradict the ALJ’s decision. 

As the district court correctly determined, the Commissioner’s decision to 

reject Sun’s claim can be reconciled with the LSU medical records. Therefore, 

we cannot be sure, as the court was in Epps, that the AC neglected to evaluate 

the new evidence.

In Meyer v. Astrue, the Fourth Circuit faced a similar situation and 

remanded the case to the Commissioner for further fact finding on the evidence 

that was submitted to and considered by the AC. 662 F.3d at 707. The Fourth 

Circuit recognized that the AC was under no obligation to provide a detailed 

discussion of the new evidence, but shared our concern that meaningful judicial 

review of the Commissioner’s decision is challenging when there has been no 

discussion of significant evidence below. Id. at 706-07; see also Martinez, 444 

F.3d at 1208 (noting that an express analysis by the AC would be “helpful for 

purposes of judicial review”). The court concluded that it could not determine 

whether substantial evidence supported the Commissioner’s decision because 

the new evidence was significant, but “not . . . one-sided,” and because no fact 

finder had made findings as to that evidence. 662 F.3d at 707. Accordingly, 

the court reversed the Commissioner’s decision and remanded the case for 

further fact finding. Id.

Like the Fourth Circuit in Meyer, we are unable to determine, 

considering the record as a whole, whether substantial evidence supports the 

ALJ’s denial of benefits here. The ALJ found that Sun was able to ambulate 

effectively within a year of her injury’s onset and had the residual functional 

capacity to perform light work. These findings may still be correct and 

supported by substantial evidence, but the LSU medical records and Sun’s 

second surgery create considerable uncertainty that has not been addressed or 

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resolved by a fact finder below. In reaching his conclusion, the ALJ highlighted

the lack of medical evidence in the record. The ALJ claimed to credit Sun’s 

testimony about her pain and December 2011 surgery, but then repeated that 

“the record contains very minimal evidence of medical treatment since the 

alleged onset date and no evidence of medical treatment since August 2011” 

and “no evidence of physical findings to support her reported limitations and 

no evidence of doctor recommended activity restrictions.” The ALJ indicated 

that the discrepancy between Sun’s testimony and the lack of medical evidence

contributed to his determination that Sun was not credible. Even more 

significant, the ALJ declined to give great weight to Dr. DiGiorgio’s evaluation 

of Sun because “the lack of consistent treatment suggests that [Sun] retained 

greater functional abilities” than Dr. DiGiorgio suggested. Though the LSU 

medical records are not decisive, they are certainly significant, as they support 

Sun’s testimony and indicate that as late as April 2012 there was “still no 

union” in Sun’s ankle, and she was only “begin[ing] weightbearing in her cam 

boot.” Despite the significance of this new evidence, no fact finder has made 

findings regarding the LSU clinical reports or attempted to reconcile these 

reports with other conflicting and supporting evidence in the record. 

“Assessing the probative value of competing evidence is quintessentially the 

role of the fact finder. We cannot undertake it in the first instance.” Meyer, 

662 F.3d at 707; see also Perez, 415 F.3d at 461 (“Conflicts of evidence are for 

the Commissioner, not the courts, to resolve.”).

CONCLUSION

For the reasons explained above, we REVERSE the judgment of the 

district court and REMAND with instructions to REVERSE the decision of the 

Commissioner and REMAND the case for a rehearing pursuant to 42 U.S.C. 

§ 405(g). In doing so, we express no opinion as to whether Sun can ultimately 

establish that she is disabled within the meaning of the Social Security Act. 

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