* 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. 

FILED

United States Court of Appeals

Tenth Circuit

August 3, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JERRY L. MARTINEZ,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, Commissioner

of the Social Security Administration,

Defendant-Appellee.

No. 09-2246

(D.C. No. 1:08-CV-00819-LFG)

(D. N.M.)

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

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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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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

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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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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

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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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