FILED
United States Court of Appeals
Tenth Circuit
August 3, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JERRY L. MARTINEZ,
Plaintiff-Appellant,
v. No. 09-2246
(D.C. No. 1:08-CV-00819-LFG)
MICHAEL J. ASTRUE, Commissioner (D. N.M.)
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Plaintiff Jerry L. Martinez appeals from the district court’s judgment
upholding the Commissioner’s denial of his application for disability insurance
benefits under the Social Security Act. He also asks us to remand this case to the
agency in light of the Commissioner’s decision to award him benefits based on a
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
period of disability commencing after the relevant time period in this case. For
the reasons stated below, we deny the motion to remand and exercise our
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 to affirm.
I. Background
Mr. Martinez is a 56 year-old former marine, national guardsman, army
reservist, and part-time sheriff. In October 2004, he filed an application for
disability insurance benefits claiming that he has been unable to work since
September 10, 2004, due to back problems, diabetes, depression, and
post-traumatic stress disorder (PTSD). 1 His claim was denied initially and on
reconsideration, and Mr. Martinez requested a hearing before an Administrative
Law Judge (ALJ), which took place on November 29, 2006.
After reviewing the evidence and hearing from Mr. Martinez and a
vocational expert (VE), the ALJ found that Mr. Martinez suffered from several
severe impairments, including “mood disorders.” The ALJ nonetheless found that
despite the mood disorder, Mr. Martinez was “capable of understanding,
remembering and carrying out moderately detailed instructions and tasks in
object-focused work that is relatively routine in nature.” App. Vol. II at 21, 25.
Based on her residual functional capacity (RFC) assessment, which included
1
Mr. Martinez’s appeal focuses only on the disability determination relating
to his mental impairments. He touches on his physical problems only as
necessary to explain their part in the cause of his depression. Accordingly, our
review is limited to the Commissioner’s decision that Mr. Martinez’s mental
impairments are not disabling under the Social Security Act.
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functional limitations not at issue here, the ALJ concluded that Mr. Martinez
could perform the job of a supply clerk, which was one of his past occupations in
the military. The ALJ therefore determined at step four of the controlling
five-step sequential evaluation process, see Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988), that Mr. Martinez was not disabled under the Social
Security Act.
A few days after the ALJ’s decision–which for reasons unknown to us, was
issued nearly a year after the hearing, on October 22, 2007–Mr. Martinez’s
attorney sent him to Dr. Robert Krueger for a psychological evaluation. As
explained thoroughly in the district court’s order, Dr. Krueger’s findings differed
substantially from those reached by the other consulting physicians who examined
Mr. Martinez and reviewed his medical records. 2 Relevant here, Dr. Krueger
determined, based on a clinical interview and working memory index testing, that
Mr. Martinez suffered from PTSD and a “moderate impairment with concentration
and working memory skills.” App. Vol. II at 265. Dr. Krueger also concluded,
based on Mr. Martinez’s score on the Beck Depression Inventory test, that he was
“experiencing serious problems with depression.” Id. In sum, Dr. Krueger found
2
As the district court noted, although Mr. Martinez had two therapy sessions
with Ms. Teresa Graber, a licensed social worker, he never sought mental health
treatment from a doctor. Accordingly, as far as Mr. Martinez’s claim based on
mood disorders is concerned, the record lacks evidence from a “treating”
physician, as that term is understood in the social security disability context. See
20 C.F.R. § 404.1502 (identifying treating sources by their on-going treatment
relationship with the claimant).
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Mr. Martinez to be significantly functionally impaired. Specifically, he noted a
“mild to moderate impairment” with Mr. Martinez’s ability to understand,
remember, and follow simple work instructions, and further opined that
Mr. Martinez would likely “have at least moderate impairment with maintaining
pace and persistence in many work environments.” Id. at 267. Mr. Martinez
submitted Dr. Krueger’s report to the Appeals Council in support of his request
for review, as permitted under 20 C.F.R. § 404.970(b).
In a notice dated August 27, 2008, the Appeals Council denied
Mr. Martinez’s request for review, stating that it had considered his arguments
along with the additional evidence that he submitted, including Dr. Krueger’s
report. See App. Vol. II at 7 (Notice of Appeals Council Action) & 10 (Order of
Appeals Council, listing “Report of Psychological Evaluation dated 10/27/07”).
Without further explanation, the Appeals Council, in boiler plate language, stated
that it “found no reason under [its] rules to review the [ALJ’s] decision.” Id.
Mr. Martinez then sought review in the district court, arguing the case must
be reversed and remanded in light of the Appeals Council’s failure to discuss
Dr. Krueger’s report and its impact on the ALJ’s decision. He also argued that in
light of Dr. Krueger’s findings, the ALJ’s decision, specifically her RFC
assessment, was not supported by substantial evidence considering the record as a
whole. The district court rejected these arguments and upheld the ALJ’s decision.
Mr. Martinez then filed his appeal in this court.
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II. Discussion
Mr. Martinez’s appeal includes both procedural and substantive challenges.
His procedural challenges stem from the Appeals Council’s cursory denial of
review without any discussion of Dr. Krueger’s report. Mr. Martinez contends
that the Appeals Council’s “lack of articulation left the district court without a
guide for its review,” Aplt. Op. Br. at 10, and he accuses the district court of
compounding the error by improperly speculating that the report would not have
affected the ALJ’s decision. He also makes a number of substantive challenges to
the Commissioner’s ultimate decision that he was not disabled during the relevant
time period–September 10, 2004, to October 22, 2007.
A. The Treatment of Dr. Krueger’s Report
The procedural challenges lack merit. Contrary to Mr. Martinez’s
argument, we do not assume the Appeals Council failed to properly consider
evidence simply because it chose not to discuss the evidence in its order denying
review. Our case law requires only that the Appeals Council consider properly
submitted evidence that is new, material, and temporally relevant. Threet v.
Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003); see 20 C.F.R. § 404.970(b). “If
the Appeals Council fails to consider qualifying new evidence, the case should be
remanded for further proceedings.” Threet, 353 F.3d at 1191. But if, as
happened here, the Appeals Council explicitly states that it considered the
evidence, there is no error, even if the order denying review includes no further
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discussion. See Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir. 2006)
(noting that analysis of new evidence by the Appeals Council would have been
helpful, but was not required); cf. Threet, 353 F.3d at 1191-92 (reversing and
remanding where Appeals Council gave no indication that it considered qualifying
new evidence). We take the Appeals Council at its word “when it declares that it
has considered a matter.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.
2005). Accordingly, we see no error in the Appeals Council’s action here.
We also see no error in the district court’s discussion of Dr. Krueger’s
report. Despite the fact that this evidence was not before the ALJ, the district
court held that the report would not have altered the ALJ’s determination of
non-disability, explaining that the report was not “conclusive on the issue of a
psychological disability” and failed to outweigh the other medical evidence.
App. Vol. I at 59. The court went on to discuss Dr. Krueger’s report in detail,
emphasizing the ways in which it was contradicted by other evidence, before
concluding that it “[did] not fatally undermine the sufficiency of the evidence
supporting the ALJ’s decision, when the record [was] viewed as a whole.”
Id. at 65.
Mr. Martinez contends that this was an improper post-hoc rationalization
for the Commissioner’s decision. See Grogan v. Barnhart, 399 F.3d 1257, 1263
(10th Cir. 2005) (prohibiting a district court from supplying such post-hoc
rationalizations). We disagree. Our precedent makes clear that in evaluating the
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Commissioner’s denial of benefits under the substantial evidence standard, the
district court must consider qualifying new evidence submitted to the Appeals
Council. See O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994) (holding that
“new evidence becomes part of the administrative record to be considered when
evaluating the Secretary’s decision for substantial evidence”); Chambers v.
Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) (same). Thus, if the ALJ’s
disability determination was supported by substantial evidence, the district court’s
very task is to determine whether the qualifying new evidence upsets that
decision. The district court correctly proceeded under this framework.
B. Was the ALJ’s Decision Supported By Substantial Evidence?
“We review the district court’s decision de novo and independently
determine whether the ALJ’s decision is free from legal error and supported by
substantial evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.
2005). The evidence supporting the denial of benefits need not be overwhelming,
but it must be “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” O’Dell, 44 F.3d at 858 (internal quotation
marks omitted).
Mr. Martinez asserts a host of arguments in an effort to undermine the
Commissioner’s decision. Most of his arguments are based on Dr. Krueger’s
report and are persuasive only if that report is entitled to substantial weight. He
argues, for example, that Dr. Krueger’s report, at a minimum, should have
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convinced the Commissioner to provide benefits based on a later disability on-set
date, and he also claims the report necessitated a remand so as to pose additional
hypotheticals to a vocational expert. Mr. Martinez also makes arguments
unconnected to Dr. Krueger’s report. He claims that the ALJ improperly weighed
the rest of the medical evidence and improperly disregarded the fact that he was
granted “individual unemployability” by the Department of Veterans Affairs.
The district court considered each of these arguments in its thorough
Memorandum Opinion and Order, filed on August 14, 2009, and ultimately
concluded, based on the administrative record as a whole, that the
Commissioner’s decision was supported by substantial evidence. We applaud the
district court for its careful attention to each of Mr. Martinez’s arguments, and we
affirm its decision for substantially the same reasons stated in its order.
C. Appellant’s Motion to Remand
Finally, we conclude that the Commissioner’s decision to grant
Mr. Martinez’s renewed application for benefits, based on a disability on-set date
of August 28, 2008, provides no basis for a remand. That date is ten months after
the relevant time period in this case, and the Commissioner explained in its award
that although Mr. Martinez has suffered from his impairments for some time, he
did not become disabled within the meaning of the Social Security Act until
August 28, 2008.
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III. Conclusion
The judgment of the district court is AFFIRMED and Mr. Martinez’s
Opposed Motion to Remand is DENIED.
Entered for the Court
David M. Ebel
Circuit Judge
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