Romero v. Social Security Administration

Filing 32

MEMORANDUM OPINION AND ORDER by Magistrate Judge John F. Robbenhaar granting 25 MOTION to Remand to Agency . (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARIO ROMERO,
Plaintiff,
vs.

Civ. No. 20-282 JFR

ANDREW SAUL, Commissioner
of SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER1
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 20) filed August 18, 2020, in support of Plaintiff Mario Romero’s (“Plaintiff”) Complaint
(Doc. 1) seeking review of the decision of Defendant Andrew Saul, Commissioner of the Social
Security Administration (“Defendant” or “Commissioner”) denying Plaintiff’s claim for Title II
disability insurance. On November 18, 2020, Plaintiff filed his Motion to Reverse and/or
Remand. Doc. 25. The Commissioner filed a Response in opposition on January 19, 2021
(Doc. 27), and Plaintiff filed a Reply on March 2, 2021 (Doc. 30). The Court has jurisdiction to
review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having
meticulously reviewed the entire record and the applicable law and being fully advised in the
premises, the Court finds the Motion is well taken and is GRANTED.
I. Background and Procedural History
Plaintiff Mario Romero (“Mr. Romero”) alleges that he became disabled on May 19,
2017, at the age of forty-two, because of multiple sclerosis (“MS”), pain, numbness, depression,

1

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. Doc. 17.

fatigue, headaches, temperature intolerance, limited range of motion, spasticity and vision
problems. Tr. 235, 245. Mr. Romero completed high school in 1992. Tr. 246. Mr. Romero
worked for seventeen years at New Mexico Tech in research and development as a test range
leadman. Tr. 237-38, 247, 276-78. Mr. Romero stopped working due to his physical and mental
impairments and because his employer refused to provide reasonable accommodations for his
heat intolerance related to his MS. Tr. 246, 403.
On August 10, 2017, Mr. Romero filed an application for Social Security Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Tr. 213-19.
On March 15, 2018, Mr. Romero’s application was denied. Tr. 89-106, 107, 131-34. It was
denied again at reconsideration on June 28, 2018. Tr. 108-28, 129, 136-41. Upon Mr. Romero’s
request, Administrative Law Judge (ALJ) Michael Leppala held a hearing on May 14, 2019. Tr.
45-87. Mr. Romero appeared in person at the hearing with attorney representative Preston
Flood.2 Id. On August 6, 2019, ALJ Leppala issued an unfavorable decision. Tr. 24-39.
Subsequent to the ALJ’s determination, Mr. Romero submitted additional treating
physician opinion evidence to the Appeals Council. Tr. 2, 8-10, 11-15. The Appeals Council
declined to consider the evidence, explaining that
You submitted a medical source statement from Ravi Bhasker, M.D., dated
September 24, 2019 (5 pages). We find this evidence does not show a reasonable
probability that it would change the outcome of the decision. We did not exhibit
this evidence.
You also submitted records from Elaine Sue Edmonds, Pan American Neurology,
dated February 4, 2020. The Administrative Law Judge decided your case through
August 6, 2019. This additional evidence does not relate to the period at issue.
Therefore, it does not affect the decision about whether you were disabled
beginning on or before August 6, 2019.

2

Mr. Romero is represented in these proceedings by Attorney Benjamin Decker. Doc. 1.

2

Tr. 2. The Appeals Council did not exhibit any of the new evidence and on March 12, 2020, the
Appeals Council issued its decision denying Mr. Romero’s request for review and upholding the
ALJ’s final decision. Tr. 1-7. On March 30, 2020, Mr. Romero timely filed a Complaint
seeking judicial review of the Commissioner’s final decision. Doc. 1.
II. Applicable Law
A.

Disability Determination Process

An individual is considered disabled if he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance
benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income
disability benefits for adult individuals). The Social Security Commissioner has adopted the
familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria
as follows:
(1)

At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”3 If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his medical condition.

(2)

At step two, the ALJ must determine the severity of the claimed physical or
mental impairment(s). If the claimant does not have an impairment(s) or
combination of impairments that is severe and meets the duration
requirement, he is not disabled.

(3)

At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.

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Substantial work activity is work activity that involves doing significant physical or mental activities.” 20 C.F.R.
§§ 404.1572(a), 416.972(a). “Your work may be substantial even if it is done on a part-time basis or if you do less,
get paid less, or have less responsibility than when you worked before.” Id. “Gainful work activity is work activity
that you do for pay or profit.” 20 C.F.R. §§ 404.1572(b), 416.972(b).

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(4)

If, however, the claimant’s impairments do not meet or equal in severity
one of the listings described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform her “past relevant
work.” Answering this question involves three phases. Winfrey v. Chater,
92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the
relevant medical and other evidence and determines what is “the most
[claimant] can still do despite [his physical and mental] limitations.” 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3).
Second, the ALJ determines the physical and mental demands of claimant’s
past work. Third, the ALJ determines whether, given claimant’s RFC, the
claimant is capable of meeting those demands. A claimant who is capable
of returning to past relevant work is not disabled.

(5)

If the claimant does not have the RFC to perform his past relevant work, the
Commissioner, at step five, must show that the claimant is able to perform
other work in the national economy, considering the claimant’s RFC, age,
education, and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however, the
Commissioner is able to make the required showing, the claimant is deemed
not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has
the initial burden of establishing a disability in the first four steps of this analysis. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5. The burden shifts to the Commissioner at step five to show that
the claimant is capable of performing work in the national economy. Id. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive and
terminates the analysis. Casias v. Sec’y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir.
1991).
B.

Standard of Review

This Court must affirm the Commissioner’s denial of social security benefits unless
(1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the
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proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
1270, 1272 (10th Cir. 2008). “[W]hatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019). Substantial evidence “is ‘more than a mere scintilla.’” Id. (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It means—and means only—such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation
marks omitted).
A decision “is not based on substantial evidence if it is overwhelmed by other evidence in
the record,” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan,
966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a
sufficient basis to determine that appropriate legal principles have been followed.” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to
discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the
evidence,” and “the [ALJ’s] reasons for finding a claimant not disabled” must be “articulated
with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But
where the reviewing court “can follow the adjudicator’s reasoning” in conducting its review,
“and can determine that correct legal standards have been applied, merely technical omissions in
the ALJ’s reasoning do not dictate reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
(10th Cir. 2012). The court “should, indeed must, exercise common sense.” Id. “The more

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comprehensive the ALJ’s explanation, the easier [the] task; but [the court] cannot insist on
technical perfection.” Id.
III. Analysis
The ALJ made his decision that Mr. Romero was not disabled at step five of the
sequential evaluation. Tr. 37-39. Specifically, the ALJ found that Mr. Romero met the insured
status requirements through December 31, 2022. Tr. 29. The ALJ found that Mr. Romero had
not engaged in substantial gainful activity since his alleged onset date of May 19, 2017. Id. The
ALJ determined that Mr. Romero had severe impairments of multiple sclerosis, degenerative
arthritis, and post-traumatic stress disorder. Id. The ALJ determined that Mr. Romero did not
have an impairment or combination of impairments that met or medically equaled the severity of
a listing. Tr. 30-32. Proceeding to step four, the ALJ, after careful consideration of the record,
found that Mr. Romero had the residual functional capacity to
perform light work as defined by 20 CFR 404.1567(b) with the following additional
limitations: The Claimant is capable of occasionally lifting and/or carrying twenty
pounds, frequently lifting and/or carrying ten pounds, standing and/or walking for
about six hours in an eight-hour workday, and sitting for about six hours in an eighthour workday, all with normal breaks. He is further limited to occasionally
climbing ramps or stairs, never climbing ladders, ropes, or scaffolds, occasionally
balancing, frequently stooping, occasionally kneeling, occasionally crouching, and
occasionally crawling. The Claimant is limited to frequent exposure to extreme
cold, extreme heat, and hazards. He can understand, carry out, and remember
simple instructions and make commensurate work-related decisions, respond
appropriately to supervision, coworkers, and work situations, deal with routine
changes in work setting, maintain concentration[,] persistence, and pace for up to
and including two hours at a time with normal breaks throughout a normal workday.
Tr. 32. The ALJ further concluded at step four that Mr. Romero was not capable of performing
his past relevant work. Tr. 37. At step five, the ALJ found that considering Mr. Romero’s age,
education, work experience, residual functional capacity, and the testimony of a vocational
expert (VE), there are jobs that exist in significant numbers in the national economy that

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Mr. Romero could perform. Tr. 37-39. The ALJ, therefore, determined that Mr. Romero was
not disabled. Id.
In his Motion, Mr. Romero argues that (1) the ALJ’s assessment of Consultative
Psychological Examiner Kenneth C. Kenney, Ph.D., MSW’s opinion is meaningfully flawed due
to selective reading of the evidence and a failure to develop the record; (2) that the ALJ failed to
properly evaluate Consultative Medical Examiner Em Ward, M.D.’s opinion and incorporate his
assessed functional limitations into the RFC; (3) that the Appeals Council erred in failing to
consider the medical opinion evidence from treating neurologist Elaine Sue Edmonds, M.D.; and
(4) that the Appeals Council erred in failing to consider the medical opinion evidence from
primary care physician Ravi Bhasker, M.D.
For the reasons discussed below, the Court finds that the Appeals Council erred in failing
to consider the treating source medical opinion evidence. As such, this case requires remand.
A.

Consideration of Additional Evidence
1.

Neurologist Elaine Sue Edmonds, M.D.

On February 4, 2020, approximately six months after the ALJ’s determination,
Mr. Romero saw his treating neurologist, Elaine Sue Edmonds, M.D., for follow up for MS.4 Tr.
8-10. Mr. Romero submitted Dr. Edmonds’ February 4, 2020, treatment note to the Appeals
Council for consideration. Dr. Edmonds’ treatment note describes Mr. Romero’s history, current
status, and certain limitations related to his MS as follows:
Patient has had MS for 14 years. He originally had spasms on the left side of his
body associated with aura. He was diagnosed as having PCSZ even though several
EEGs were negative. He was placed on dilantin which caused his LFTs to be
4

The medical evidence record contains treatment notes generated by Dr. Edmonds beginning on August 5, 2010
through February 4, 2020. Tr. 8-10, 351-52, 357-59, 402-07, 485-88, 490-92, 496-513.

7

elevated. He was then placed on Lamictal. An MRI of the brain showed one lesion
which decreased in size on follow-up scans. After 4 years he developed L optic
neuritis. He saw Dr. Reddy who suggested that he has multiple sclerosis. This was
confirmed by lumbar puncture and a follow-up MRI showed 9 lesions. He also had
numbness of his L arm. His recent cervical MRI shows a lesion at C5-C6 which
likely was the cause of his L arm numbness. He still experiences electrical painful
spasms of his left arm and leg which recur but last only seconds. This is likely
paroxysmal hemi-dystonia, a symptom commonly associated with multiple
sclerosis. I suggested a trial of low dose Tegretol. This is usually very effective in
preventing this symptom. He currently has Uthoff’s phenomenon causing
decreased vision in his left eye and numbness of his left arm when he is exposed to
heat. Because of this he is unable to work outside in the summer. He stopped his
job in 2017. He went to vocational rehab who suggested that he apply to be a house
inspector. Unfortunately he fell off a ladder injuring his left side. He has
headaches, anxiety and depression and saw a psychologist who considered him to
be disabled and diagnosed him with depression and PTSD. His SSDI case was
denied. He is working with an attorney and is appealing that decision. He also
asked for a congressional inquiry regarding his disability denial. No response has
been received. Regarding his multiple sclerosis, he has been on Copaxone or
generic equivalent since 2006 when he saw Elida Greinel, NP at UNMH. He was
referred to me in 2006 and has continued to see me since then. His last cervical
MRI was in 2019. It shows lesions at C5-C6 and C7-T1 as well as degenerative
disc disease. His last brain MRI was in 2019. He will schedule a follow-up brain
MRI in next month. He takes vitamin D. I will order labs for him to obtain in one
month if he stays on Tegretol.
He believes that he is unable to work based on his fatigue, balance issues, L
numbness and paroxysmal dystonia. He also has anxiety and depression and has
been diagnosed with PTSD. He cannot sit for long periods due to back pain and
paroxysmal hemidystonia. He likely has degenerative disc disease of his lumbar
spine but no MRI has been performed to my knowledge. He is a very honest and
reasonable person whom I have known for years. Although his exam is relatively
normal he has episodic symptoms and fatigue which are not obvious on a
neurological exam.
Tr. 8 (emphasis added).
2.

Ravi Bhasker, M.D.

On September 24, 2019, seven weeks after the ALJ’s unfavorable decision, treating
physician Ravi Bhasker, M.D., prepared a Medical Source Statement: Physical Limitations on
Mr. Romero’s behalf. Tr. 11-15. Mr. Romero submitted Dr. Bhasker’s Medical Source
Statement to the Appeals Council for its consideration. Dr. Bhasker stated that he had been
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treating Mr. Romero for nine months, that Mr. Romero had an MS diagnosis since 2006, and that
his prognosis was fair. Tr. 11. Dr. Bhasker stated that Mr. Romero had symptoms of fatigue,
dizziness, and constant left-sided body pain and weakness. Id. Dr. Bhasker indicated that
Mr. Romero was not a malingerer, that emotional factors contributed to the severity of his
symptoms and functional limitations, that depression and anxiety were affecting Mr. Romero’s
physical condition, and that Mr. Romero’s impairments were reasonably consistent with the
symptoms and functional limitations Dr. Bhasker described in his evaluation. Tr. 12.
Dr. Bhasker assessed that Mr. Romero’s pain or other symptoms were severe enough to
frequently interfere with the attention and concentration needed to perform even simple work
tasks, and that Mr. Romero’s chronic illness rendered him incapable of performing even “low
stress” jobs. Id. Dr. Bhasker also assessed that Mr. Romero (1) could sit for 20 minutes at one
time before needing to get up; (2) could stand for 10 minutes before needing to sit down or walk
around; (3) could sit and stand/walk for less than 2 hours in an 8-hour working days; (4) would
need a period of walking around every 5 minutes during an 8-hour working day; and (5) would
require unscheduled breaks during an 8-hour workday. Tr. 12-13. Dr. Bhasker assessed that
Mr. Romero could rarely lift and carry 10 lbs.; could rarely twist, stoop, crouch and climb stairs;
and could never climb ladders. Tr. 14. Dr. Bhasker also assessed that Mr. Romero would miss
more than four days per month of work as a result of his impairments or treatment. Id.
Dr. Bhasker explained that limitations from PTSD and fatigue would affect Mr. Romero’s ability
to work at a regular job on a sustained basis. Id. Dr. Bhasker stated that the earliest date the
limitations he assessed could apply would be 2006, the onset date of Mr. Romero’s MS. Tr. 15

9

B.

The Appeals Council Erred in Failing to Consider the Evidence From
Mr. Romero’s Treating Physicians

Mr. Romero argues that the Appeals Council erred in failing to consider the treating
physician evidence he submitted. Doc. 25 at 23-24. Mr. Romero argues that while the ALJ
relies heavily on “generally normal” physical exams to discount Mr. Romero’s alleged
symptoms of fatigue, Dr. Edmonds’ treating note demonstrates that Mr. Romero’s fatigue cannot
be measured by neurologic exam. Id. Mr. Romero also argues that even though Dr. Edmonds’
treating note is dated after the ALJ’s determination, it nonetheless relates to the relevant period
of time because it explains Mr. Romero’s longstanding MS diagnosis and the presence of his
fatigue and pain despite normal neurological exams. Id. As for Dr. Bhasker’s assessed
limitations, Mr. Romero asserts that had the Appeals Council properly considered Dr. Bhasker’s
opinion evidence that Mr. Romero would have been found to be disabled. Id.
The Commissioner contends that because the Appeals Council denied review of the
additional evidence, that the ALJ’s decision becomes the final agency decision and that the Court
should conduct a substantial evidence review of the ALJ’s decision, including the additional
evidence, and that the Court should not review the Appeals Council’s denial of the review.
Doc. 27 at 15-16. To that end, the Commissioner asserts that Dr. Edmonds’ treatment note does
not relate to the relevant period of time and does not qualify as a medical opinion under the
regulations, i.e., Dr. Edmonds did not assess specific functional limitations in her treatment note.
Id. at 16-17. The Commissioner also asserts that Dr. Bhasker’s opinion is inconsistent with the
record as a whole, and that Dr. Bhasker indicated elsewhere in the record that his opinion was
based on nothing more than Mr. Romero’s own statements. Id. For these reasons, the
Commissioner argues that the newly submitted evidence does not undermine the substantial
evidence supporting the ALJ’s determination.
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Under its regulations, the Appeals Council will only review a case if, among other things,
it receives additional evidence “that is new, material, and relates to the period on or before the
date of the hearing decision, and there is a reasonable probability that the additional evidence
would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5).5 Whether evidence
qualifies for consideration by the Appeals Council under this standard is a question of law
subject to de novo review. Krauser v. Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011). The
“general rule of de novo review permits [the Court] to resolve the matter and remand if the
Appeals Council erroneously rejected the evidence.” Id. (citing Chambers v. Barnhart, 389 F.3d
1139, 1142 (10th Cir. 2004)). If the evidence does qualify and the Appeals Council erroneously
rejected it, the case is remanded to an ALJ for a rehearing with the new evidence. Id. “If the
evidence does not qualify, the Appeals Council does not consider it and it plays no role in
judicial review.” Id. The Court will refer to this as the “de novo” standard of review.
The standard of review changes significantly, however, if the Appeals Council did
consider and exhibit the new evidence, but nonetheless determined that substantial evidence
supported the ALJ’s decision. In such a case, without consideration of the three requirements for
qualification, the Court would then perform its own substantial-evidence review of the entire
record, taking into account the new evidence that neither the ALJ nor the Appeals Council ever
analyzed. Padilla v. Colvin, 525 F. App'x 710, 712 n.1 (10th Cir. 2013); Krauser, 638 F.3d at

5

These regulations were recently amended. See Ensuring Program Uniformity at the Hearing and Appeals Council
Levels of the Administrative Review Process, 81 Fed. Reg. 90,987, 2016 WL 7242991 (Dec. 16, 2016) (effective
January 17, 2017, with compliance required after May 1, 2017). The amendments added that the Appeals Council will
only consider additional evidence if the claimant shows good cause for not informing the ALJ about the new evidence
and submitting it to him or her. Id. §§ 404.970(a)(5), 416.1470(a)(5). The Commissioner does not argue, however,
that Mr. Romero was required to demonstrate “good cause” for not submitting the evidence earlier. Therefore, the
Court need not consider whether this standard applies to the present case.

11

1328; Vallejo v. Berryhill, 849 F.3d 951, 956 (10th Cir. 2017). The Court will refer to this as the
“substantial-evidence review” standard.
The Commissioner incorrectly advocates for the “substantial-evidence review” standard.
Here, the language of the Appeals Council’s order clearly indicates that it did not “exhibit” the
additional evidence.6 Tr. 2. As a result, the Court finds that the Appeals Council did not accept
the additional evidence into the record. Moreover, even though the Appeals Council determined
that the evidence, as to Dr. Edmonds’ treatment note, “does not relate to the period at issue,” and,
as to Dr. Bhasker’s opinion, “does not show a reasonable probability that it would change the
outcome of the ALJ’s decision,” the Appeals Council determines temporal relevance and
reasonable probability before it decides whether it will “consider” the additional evidence as part
of its substantial-evidence review of the ALJ’s decision. Thus, assessing whether temporal
relevance or reasonable probability exist are “predicate requirements . . . to warrant
consideration” and does not equate to performing the review that the social security regulations
contemplate. Padilla, 525 F. App'x at 712. Therefore, “the Appeals Council’s dismissal of the
additional evidence’s import indicates that it ultimately found the evidence did not qualify for
consideration at all.” Id.
The Appeals Council’s refusal to consider Mr. Romero’s additional evidence has
implications for this Court on review. Because the Appeals Council did not consider the
additional evidence in conjunction with a review of the entire record, the Court may not consider

6

An “exhibit” is “any evidence upon which a finding and decision are based,” whether before an ALJ or the Appeals
Council. HALLEX, I-4-2-20, https://www.ssa.gov/OP_Home/hallex/I-04/I-4-2-20.html. If the Appeals Council had
exhibited the evidence, it would appear in the “Medical Records” section at the end of the Administrative Record.
Because the Appeals Council did not exhibit it, the records were “included in the administrative record” but treated
“as procedural documents, similar to the hearing decision or AC denial notice.” HALLEX, I-4-2-20. Thus, the
additional exhibits are not part of the record of medical evidence before the Court. This indicates that the only question
properly before the Court is whether the additional exhibits should be part of the record.

12

the additional evidence in a review of the denial of benefits “under the deferential substantialevidence standard.” Chambers, 389 F.3d at 1143. Instead, the Court is constrained to determine,
under de novo review, whether the Appeals Council erroneously refused to consider qualifying
additional evidence. See Secatero v. Saul, 2020 WL 419463, at *5 (D.N.M. Jan. 27, 2020) If
so, “the case must be remanded so that the Appeals Council may evaluate the ALJ’s decision in
light of the completed record.” Id. In short, the proper inquiry is the one advanced by
Mr. Romero, i.e., whether the Appeals Council erred in failing to consider the additional
evidence. See Krauser, 638 F.3d at 1328.
1.

The Additional Evidence Is New

Additional evidence is “new” if it is “not duplicative or cumulative.” See Threet v.
Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003). The additional evidence here is not duplicative
or cumulative. It is undisputed that Dr. Edmonds’ most recent treatment note, in which she
noted certain functional limitations related to Mr. Romero’s MS, and Dr. Bhasker’s evaluation
and functional assessment of Mr. Romero’s ability to do work-related physical activities were
not available to the ALJ at the time he made his decision. Moreover, this is treating source
opinion evidence, of which there was none in the record when the ALJ reviewed it and made his
determination. Further, the functional limitations both Dr. Edmonds and Dr. Bhasker assessed
are more restrictive than the nonexamining State agency medical consultants’ assessments that
the ALJ found very persuasive and relied upon in forming his RFC.7 See Robinson v. Barnhart,

7

On February 13, 2018, Em Ward, M.D., L.L.C., performed a consultative exam to assess Mr. Romero’s ability to
perform work-related physical activities. Tr. 450-53. Dr. Ward limited Mr. Romero to “moderate” work in mild
temperatures. Tr. 453. The ALJ found his opinion “not persuasive.” Tr. 36. On March 13, 2018, nonexamining State
agency medical consultant Dennis Pacl, M.D., prepared a Residual Functional Capacity Assessment at the initial level
of consideration of Mr. Romero’s application and assessed that Mr. Romero was capable of less than a full range of
light work. Tr. 100-102. On June 27, 2018, nonexamining State agency medical consultant James Metcalf, M.D.,
prepared a Residual Functional Capacity Assessment at reconsideration and affirmed Dr. Pacl’s assessment. Tr. 12124. The ALJ found the nonexamining State agency opinions to be “very persuasive.” Tr. 35.

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366 F.3d 1078, 1084 (10th Cir. 2004) (finding that the treating physician’s opinion is given
particular weight because of his/her unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations). As such, the evidence is not duplicative or cumulative.
2.

The Additional Evidence Is Chronologically Pertinent

The additional evidence relates to the period at issue. While it is correct that both
Dr. Edmonds’ treatment note and Dr. Bhasker’s evaluation and functional assessment were
generated after the ALJ’s determination, it is equally true that the additional materials made
reference to time period adjudicated. See HALLEX I-3-3-6(B) (noting that there are
circumstances when evidence dated after the ALJ decision relates to the period at issue, such as
when a statement makes a direct reference to the time period adjudicated). Dr. Edmonds noted
that Mr. Romero had L optic neuritis and L arm numbness related to his MS since as early as
2010, and Dr. Edmonds’ treatment notes that pre-date the ALJ’s determination indicate similar
symptoms of fatigue, left-sided numbness, back and leg pain, spasticity and paroxysmal
hemidystonia during the relevant period of time. Tr. 402-06, 485-88, 490-92, 507. Dr. Bhasker
noted in his evaluation that the “earliest date” that his assessed limitations applied was 2006 and
that he began treating Mr. Romero for MS-related symptoms nine months earlier during the
relevant period of time. Tr. 15. Therefore, the Court finds the additional evidence relates to the
period at issue. Additionally, this treating physician medical opinion evidence addresses the
physical impairments that were clearly before the ALJ and accepted by him; i.e., multiple
sclerosis and degenerative arthritis. Tr. 29. The Court, therefore, finds the evidence from
Mr. Romero’s treating physicians to be chronologically pertinent.

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3.

The Additional Evidence Is Material

Finally, the evidence is material because both Dr. Bhasker and Dr. Edmonds are treating
physicians. Here, there was no treating physician opinion evidence in the record the ALJ
considered and the ALJ relied on the nonexamining State agency medical consultants to
determine that Mr. Romero could perform less than a full range of light work.8 See Robinson,
366 F.3d at 1084. Given Dr. Edmonds’ longitudinal perspective of Mr. Romero’s MS and her
assessment of certain limitations, and Dr. Bhasker’s assessed functional limitations of
Mr. Romero’s ability to do work-related physical activities based on his MS and related
symptoms, this material has a reasonable probability of changing the outcome of the case.
For all of the foregoing reasons, the Court finds that the Appeals Council failed to
consider the additional evidence Mr. Romero submitted. See Krauser, 638 F.3d at 1328. This
case, therefore, requires remand.
C.

Remaining Issues

Having determined pursuant to its de novo review that the Appeals Council erroneously
refused to consider qualifying additional evidence, the Court does not address Mr. Romero’s
remaining claims of error.

8

See fn. 7, supra.

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IV. Conclusion
For the reasons stated above, the Court finds Mr. Romero’s Motion to Reverse and/or
Remand (Doc. 25) is well taken and is GRANTED.

_____________________________________
JOHN F. ROBBENHAAR
United States Magistrate Judge
Presiding by Consent

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