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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-31058                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
LESLIE SUN,                                                        July 17, 2015
                                                                  Lyle W. Cayce
             Plaintiff - Appellant                                     Clerk

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
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                                 No. 14-31058
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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                                  No. 14-31058
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 follow-
            up 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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                                    No. 14-31058
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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                                       No. 14-31058
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


       1Part 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.”



        4Although 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 re-
weigh 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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                                        No. 14-31058
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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                                 No. 14-31058
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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                                 No. 14-31058
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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