United States District Court, D. New Mexico
REPORT AND RECOMMENDATIONS
matter is before me on Plaintiff's Motion to Reverse
Commissioner's Administrative Decision and Remand Claim.
(Doc. 21). For the reasons discussed below, I recommend that
the Court DENY Plaintiff's Motion.
Motion raises one issue: whether the Appeals Council erred in
rejecting new evidence Plaintiff submitted to the Appeals
Council. Because of the limited scope of Plaintiff's
argument, and because the parties are familiar with the
record, I will briefly discuss the background of this case
only to the extent it is relevant to the issues before me.
early 2014, Plaintiff filed an application for disability
insurance benefits and supplemental security income.
Plaintiff alleged disability, with an onset date of October
11, 2013, due to diabetes, high blood pressure, knee
problems, and high cholesterol. AR 83. Plaintiff's claims
were initially denied on June 20, 2014, and upon
reconsideration on September 10, 2014. AR 30. Plaintiff
thereafter requested a hearing, which an Administrative Law
Judge (ALJ) held on July 15, 2015. AR 30. In his decision
issued on July 5, 2016, the ALJ found that Plaintiff had the
following severe impairments: degenerative disc disease,
osteoarthritis, obesity, depression, and borderline
intellect. AR 83. The ALJ found that Plaintiff had the
residual functional capacity to:
Perform a range of medium work….He is able to lift
and/or carry 50 pounds occasionally and can lift and/or carry
25 pounds frequently. Pushing and pulling is limited only by
his ability to lift and carry. [Plaintiff] is able to stand,
walk and sit for six hours in an eight-hour workday. There
are no postural, manipulative, or environmental limitations.
[Plaintiff] is limited to simple, routine, repetitive,
reasoning level one task; performed in a work environment
free of fast-paced production demands; involving only simple
work-related decisions; with few, if any, changes in the
workplace. [Plaintiff] should have no interaction with the
public and only occasional interaction with co-workers and
AR 37. Based on the RFC, the ALJ found that Plaintiff was
unable to perform any past relevant work. AR 44. The ALJ
found, however, that jobs existed in significant numbers in
the national economy that Plaintiff could perform despite his
RFC. AR 46. As a result, the ALJ denied Plaintiff's
claim. AR 46.
sought review by the Appeals Council and, in connection with
that review, submitted evidence not previously before the
ALJ. For example, Plaintiff submitted a letter from Dr. M.
Basal Aswad which noted diagnoses of “intractable lower
back pain, high alkaline phosphatase, high sedimentation
rate, generalized bony pain, diabetes mellitus type II,
hypertension, peripheral neuropathy, and GERD.” AR 15.
Dr. Aswad stated that “[b]ecause of [Plaintiff's]
multiple medical conditions I would recommend that he be
granted disability status.” AR 15. Plaintiff further
submitted a handicap parking placard application. AR 16.
Finally, Plaintiff submitted a handwritten note dated August
18, 2016, from a psychiatrist with an illegible
name that it was his or her
“considered opinion that [Plaintiff] suffers from
post-traumatic stress disorder. He is permanently disabled by
it. At his age unlikely [sic] to recover ability to function
around others.” AR 14. In its decision declining review
of Plaintiff's claim, the Appeals Council stated that it
looked at this evidence but that “[t]his new
information is about a later time…[and] therefore does
not affect the decision about whether you were disabled
beginning on or before July 5, 2016.” AR 6. Plaintiff
now appeals this determination by the Appeals Council.
Standard of Review
evidence qualifies for consideration by the Appeals Council
is a question of law subject to de novo review. Additional
evidence should be considered only if it is new, material,
and chronologically pertinent. See 20 C.F.R.
§§ 404.970(b), 416.1470(b). Evidence is new
“if it is not duplicative or cumulative, ” and it
is material “if there is a reasonable probability that
it would have changed the outcome.” Threet,
353 F.3d at 1191. Evidence is chronologically pertinent if it
relates to the time period on or before the ALJ's
decision. Id. If the Appeals Council fails to
consider qualifying new evidence, the case should be remanded
so that the Appeals Council may reevaluate the ALJ's
decision in light of the complete evidence. Id.
issue Plaintiff raises for review is whether the Appeals
Council erred in not considering new evidence submitted after
the ALJ's decision. Plaintiff submitted three new pieces
of evidence to the Appeals Council. Doc. 22 at 1. Plaintiff
does not object to any part of the ALJ's decision.
Accordingly, my review is limited to the evidence Plaintiff
submitted to the Appeals Council. Having reviewed this
evidence, I recommend concluding that the Appeals Council did
the Appeals Council's decision stated that it disregarded
the newly submitted evidence on the basis that it was
“about a later time, ” in addition to agreeing
with this finding, it is furthermore clear that both the
psychiatrist's and Dr. Aswad's letters cannot qualify
as “material” evidence. See Clough v. Social
Sec. Admin. Comm'r., 636 Fed.App'x 496, 498
(11th Cir. 2016) (affirming despite finding the evidence was
chronologically relevant where the court separately found
that the newly submitted evidence did not qualify as new);
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.
2004) (stating that a court may apply a harmless error
analysis where based on material considered by the SSA, the
court can confidently say that the matter would not have been
resolved in any other way).
noted above, the standard for materiality is whether there is
a reasonable probability that the evidence would have changed
the outcome. Neither the psychiatrist's opinion nor Dr.
Aswad's letter provides information that would change the
outcome of this case. The sum total of the psychiatrist's
opinion is the diagnosis of PTSD and the statement that
Plaintiff is “permanently disabled by it and unlikely
to recover ability to function around others.” AR 14.
Dr. Aswad's letter included a list of Plaintiff's
diagnoses and stated, “I would recommend that he be
granted disability status.” AR 15. Neither of these
“opinions, ” however, is within the purview of a
physician. See 20 C.F.R. § 404.1527(a) (stating
that “medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and
severity of [the claimant's] impairments”);
Cowen v. Astrue, 552 F.3d 1182, 1189 (10th Cir.
2008) (rejecting physician's statement regarding the
plaintiff's ability to return to work as “not a
true medical opinion” because that is an issue reserved
to the commissioner). In other words, these doctors only
provide an “opinion” on the issue reserved for
the commissioner-whether Plaintiff is disabled.
the doctors' acts of providing a list of diagnoses and
stating that Plaintiff is therefore disabled are insufficient
to call in to question the ALJ's decision. C.f. Moore
v. Colvin, Civ. No. 13-614, 2014 WL 5765665, *3 (N.D.
Okla. Nov. 5, 2014) (“The mere diagnosis of an
impairment or condition is not sufficient to sustain a
finding of disability…An impairment is not severe if
it does not significantly limit a person's physical or
mental ability to do basic work activities” (citing
Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988);
Branum v. Barnhart, 385 F.3d 1268 (10th Cir. 2004)).
To the extent that these doctors diagnosed Plaintiff with new
conditions, neither doctor provided any information on which
he or she based these diagnoses. The doctors' opinions
were merely statements that Plaintiff had the condition and
was disabled as a result. The Court will not discuss at
length the various factors an ALJ would be required to
examine in order to determine what weight to afford a
treating physician's opinion. See e.g.,
Langley v. Barnhart, 373 F.3d 1116, 1120 (10th Cir.
2004) (noting that factors include the length of the treating
relationship, the extent of treatment provided, and the
degree to which the opinion is supported by relevant
evidence). Suffice it to say that it would be entirely