ORDER

GREGORY PRESNELL, District Judge

On October 20, 2005, Magistrate Judge Glazebrook issued a Report and Recommendation (Doc. 16) in which he recommended that this case be remanded to the Commissioner of Social Security (the "Commissioner") for further proceedings. The Commissioner filed a timely objection. (Doc. 17). The Plaintiff, Alvin Williams ("Williams"), has not filed a response to the Commissioner's objection. Upon de novo review, the Court concurs with the recommendation of the Magistrate Judge.

I. Background

Williams filed a claim for Supplemental Security Income benefits on October 31, 2001, claiming an entitlement to benefits as of October 22, 2001 due to back problems, a cerebrovascular accident, hypertension and HIV infection. (R. 12). On February 17, 2004, after a hearing, an administrative law judge ("ALJ") issued a decision finding that Williams was not disabled (and therefore not entitled to benefits) because he retained the functional capacity to perform light work. (R. 20). In reaching this conclusion, the ALJ did not credit at least some of Williams's testimony regarding the pain he regularly suffered and the limitations resulting from that pain. (R. 16).

After the ALJ's decision, Williams submitted additional medical evidence (the "Post-Hearing Evidence") to the Appeals Council ("AC"). (Doc. 16 at 29). The Post-Hearing Evidence consisted in pertinent part of two MRIs and a medical evaluation, all of which were performed in April 2004 — i.e., after the ALJ's decision. (Doc. 16 at 29). The AC considered the Post-Hearing Evidence but on August 6, 2004 denied review of Williams' claim. (R. 5). The notice provided to Williams did not explain the basis for the denial other than a statement that the Council "found that [the Post-Hearing Evidence] does not provide a basis for changing the Administrative Law Judge's decision." (R. 5-6).

Williams timely appealed to this Court. (Doc. 1). On November 4, 2004, the Honorable James G. Glazebrook, United States Magistrate Judge, recommended that this case be remanded back to the Commissioner under sentence four of 42 U.S.C. § 405(g). (Doc. 16 at 40). Although Judge Glazebrook found nothing to fault in the decision of the ALJ, he concluded that, in light of the Post-Hearing Evidence, the AC had erred in failing to remand the case back to the ALJ for further consideration. (Doc. 16 at 40).

The Commissioner offers two primary objections to Judge Glazebrook's recommendation. First, the Commissioner argues that this Court has no authority to review the AC's decision denying review of Williams' claim. (Doc. 17 at 2-3). Second, the Commissioner argues that evidence submitted only to the AC can only be evaluated under the standards for remand pursuant to sentence six of 42 U.S.C. § 405(g), and that Judge Glazebrook failed to apply those standards. (Doc. 17 at 8).

II. Standards

A person applying for Social Security benefits must proceed through several steps before being permitted to appear in federal court:

First, a state agency determines whether the claimant has a disability and the date the disability began or ceased. Second, if the claimant is dissatisfied with that determination, he may request reconsideration of the determination. This involves a de novo reconsideration of the disability claim by the state agency, and in some cases a full evidentiary hearing. Additional evidence may be submitted at this stage, either on the request of the claimant or by order of the agency. Third, if the claimant receives an adverse reconsideration determination, he is entitled by statute to an evidentiary hearing and to a de novo review by an [ALJ]. Finally, if the claimant is dissatisfied with the decision of the ALJ, he may take an appeal to the [AC]. . . . These four steps exhaust the claimant's administrative remedies. Thereafter, he may seek judicial review in federal district court.

A claimant's only avenue for judicial review of a denial of claimed Social Security benefits is found in 42 U.S.C. § 405(g) (henceforth, "Section 405(g)"). Mathews v. Eldridge, 424 U.S. 319, 327, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (noting, inter alia, that 42 U.S.C. § 405(h) precludes federal question jurisdiction over Social Security appeals). Under Section 405(g), a claimant may seek review in federal court of "any final decision of the Commissioner of Social Security." 42 U.S.C. § 405(g).

The court reviews the factual determinations of the Commissioner with deference, holding them to be conclusive so long as they are supported by "substantial evidence" — which has been defined as relevant evidence that a reasonable person would accept as adequate to support a conclusion. Keeton v. Department of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). On the other hand, the Commissioner's conclusions of law are not presumed valid. Id. The Commissioner's conclusions of law are reviewed with close scrutiny, and a failure to apply correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal. Id.

There are only two ways in which a District Court is permitted to remand a Social Security appeal back to the Commissioner. Melkonyan v. Sullivan, 501 U.S. 89, 99, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). The fourth sentence of 42 U.S.C. 405(g) provides that the court shall have "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The sixth sentence of 42 U.S.C. § 405(g) provides that the court may order additional evidence to be taken before the Commissioner, but only upon a showing "that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." The two methods are therefore informally referred to as "sentence four remands" and "sentence six remands".

III. Analysis

A. Reviewability of AC's decision

In the instant case, the first question to be considered is what, precisely, may the claimant seek to have reviewed in the federal district court — or, in other words, what constitutes "the final decision of the Commissioner" under Section 405(g). It is well settled that when the AC grants review, its decision is the "final decision of the Commissioner" for purposes of Section 405(g). But when the AC exercises its discretion to deny review, the result is less clear. The Commissioner contends that in such a case only the decision of the ALJ becomes the final decision of the Commissioner and therefore only the decision of the ALJ may be reviewed by the court. In his Report and Recommendation (Doc. 16), Judge Glazebrook concluded that the AC's decision to deny review is, itself, a "final decision," subject to judicial scrutiny to determine whether it is supported by substantial evidence. (Doc. 16 at 7).

The Social Security Act "does not define `final decision,' instead leaving it to the [Social Security Administration] to give meaning to that term through regulations." Sims, 530 U.S. at 106, 120 S.Ct. 2080 (2000). The regulations promulgated by the Commissioner do not explicitly define that term. The Commissioner contends that 20 C.F.R. § 416.1481, which deals with the effect of the AC's decision or denial of review, provides that when the Appeals Council denies a claimant's request for review, "the decision of the administrative law judge becomes the final decision of the Commissioner." (Doc. 17 at 3). The language of that regulation does not support such an interpretation. In its entirety, 20 C.F.R. § 416.1481 provides that:

The Appeals Council may deny a party's request for review or it may decide to review a case and make a decision. The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court, or the decision is revised. You may file an action in a Federal district court within 60 days after the date you receive notice of the Appeals Council's action.

A fair amount of case law addresses the "final decision of the Commissioner" language of Section 405(g). However, most of that case law addresses the "finality" of the Commissioner's decision for purposes of appealability rather than its makeup. In the Sims case, for example, the Supreme Court considered whether a claimant whose request for review from the AC did not raise a particular issue could nonetheless seek judicial review of that issue Sims, at 106, 120 S.Ct. 2080. In assessing the existence of any so-called "issue exhaustion" requirement, the Sims court noted that SSA regulations provided that when the AC grants review, its decision is the Commissioner's final decision, "[b]ut if, as here, the Council denies the request for review, the ALJ's opinion becomes the final decision." Id. at 106-07, 120 S.Ct. 2080.

Contrary to the Commissioner's representation, however, the Sims court did not "h[o]ld that the decision of the Appeals Council can only become the Commissioner's final decision if the Appeals Council grants Plaintiff's request for review." (Doc. 17 at 3) (emphasis in Commissioner's Brief). Rather, the Court was addressing finality. Immediately after the quoted passage, the Court noted that if a claimant fails to request review by the AC, "there is no final decision and, as a result, no judicial review in most cases" because the claimant has failed to exhaust administrative remedies. Id. at 107, 120 S.Ct. 2080. The issue of the boundaries of the "final decision" was not before the Court, and to the extent the quoted text appears to address that issue, it is merely dicta. On the other hand, the Court does not interpret Sims as standing for the proposition that the AC's denial of review is subject to judicial review to determine if it is supported by substantial evidence. (Doc. 16 at 7) (citing Sims, 120 S.Ct. at 2086).

Undermining any assertion that the Supreme Court has resolved this issue is the fact that the Circuits are split as to the content of the "final decision of the Commissioner" that may be appealed: "In interpreting these regulations, some courts have held that the ALJ decision alone is the final decision of the Commissioner, and other courts have held that the final decision includes the Appeals Council's denial of a request for review." Higginbotham v. Barnhart, 405 F.3d 332, 335 (5th Cir. 2005) (agreeing with the latter interpretation, along with the Second, Fourth, Eighth and Tenth circuits, while finding that the Third, Sixth, Seventh, and Eleventh circuits have adopted the former interpretation).

The Eleventh Circuit has not directly considered the issue now before this Court. However, in Keeton v. Department of Health and Human Servs., 21 F.3d 1064 (11th Cir. 1994), the Secretary of Health and Human Services unsuccessfully advanced the argument advanced in this case by the Commissioner. The district court in Keeton had affirmed the Secretary's decision denying benefits but, in doing so, had refused to review evidence that Keeton had submitted only to the Appeals Council. Id. at 1065-66. As paraphrased by the Eleventh Circuit Court of Appeals, the Secretary argued that the district court's refusal was proper "because the decision of the ALJ is the final decision of the Secretary under the regulations." Id. at 1066. The Secretary urged the court to adopt a rule that where the decision of the ALJ becomes the decision of the Secretary, the record only consists of the evidence submitted to the ALJ. Id.

Noting a split within the circuits, the Keeton court held that new evidence first submitted to the AC becomes part of the record whether the AC accepts the case for review or denies it. Id. at 1067. The court did not explicitly reject the Secretary's position. Instead the Court found that the administrative process continued through the claimant's request for review from the AC, and therefore the administrative record ought to continue through that point. Id. The Keeton court remanded the case to the district court with directions to review the new evidence under the three-prong standard of sentence six of Section 405(g). Id. at 1068. The court's refusal to cut off the administrative record at the ALJ's decision — whether the AC grants review or not — at least suggests that it would not cut off judicial review at that stage even if the AC denies review.

Moreover, both in Keeton and in Falge, the Court characterized the district court's action as a review of the action of the Appeals Council (rather than that of the ALJ or the Commissioner). Keeton at 1068 ("In reviewing the decision of the Appeals Council, the district court erroneously believed it could only consider evidence presented to the ALJ."); Falge at 1323 n. 8 (quoting same). Although this language is dicta, it also suggests that the Eleventh Circuit Court of Appeals does not believe that the AC's decision is unreviewable whenever the AC declines to review a case, as the Commissioner contends. (As in the instant case, Falge involved a claimant who presented evidence only to the AC, which denied review. Falge at 1322.) This suggestion is reinforced by the following dicta from Falge:

And, we can think of another kind of case where we will consider evidence submitted only to the AC. "When the Appeals Council refuses to consider new evidence submitted to it and denies review, that decision [the denial of review] is . . . subject to judicial review because it amounts to an error of law." Keeton, 21 F.3d at 1066.

The Commissioner's argument relies on regulations generally stating that upon a denial of review by the AC, the ALJ's opinion becomes the final decision of the Commissioner. (Doc. 17 at 3). As stated in Keeton, however, the AC's decision is not sacrosanct when this occurs: The AC's denial may be reviewed to determine, inter alia, whether the Council committed an error of law. Id. at 1066. Because Section 405(g) only allows review of a "final decision of the Commissioner," the AC's denial of review must therefore be (or be part of) a "final decision of the Commissioner." Nothing cited by the Commissioner or discovered by this Court suggests a basis for distinguishing between AC denials that are purported to contain errors of law and AC denials that are purported to be tainted by other types of errors. If AC denials are subject to judicial review in some cases, they should be reviewable in all cases.

B. Standard for assessing the AC's decision

Having found that the AC's decision is reviewable, the Court now turns to that review. Judge Glazebrook found that the AC's decision was not supported by substantial evidence and should be remanded under sentence four of Section 405(g). (Doc. 16 at 40). Although not agreeing that the AC's decision is reviewable, the Commissioner contends that the courts must apply the three-prong standard for remand under sentence six whenever they assess evidence presented only to the AC. (Doc. 17 at 5-7).

In support, the Commissioner points to Falge, where the AC considered such evidence but denied review, and the district court affirmed. Id. at 1322. On appeal, the Eleventh Circuit reiterated that evidence presented only to the AC is part of the record on appeal but held that when the AC has denied review, "we will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence." Id. at 1323. At this point, however, the decision at issue is the decision of the AC, not that of the ALJ. (In contrast to the instant case, the plaintiff in Falge had not appealed the AC's denial of review. Id. at 1324.) The Commissioner offers no basis for extending the rule of Falge to a case involving analysis of the AC's decision rather than that of the ALJ. To the contrary, the rationale behind the rule in Falge — that the ALJ cannot be faulted for having failed to properly weigh evidence never presented to him or her — is absent in this case, because the Post-Hearing Evidence was actually presented to the AC. In consideration of the foregoing, it is hereby

ORDERED that:

1. The Report and Recommendation of the Magistrate Judge is adopted and confirmed insofar as it is not inconsistent with the preceding analysis;

2. The decision of the Commissioner is VACATED, and this case is REMANDED to the Commissioner of Social Security for further proceedings not inconsistent with the Report and Recommendation (Doc. 16).

3. The Clerk is directed to enter judgment and close the case.