                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          May 9, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
DONALD PADILLA,

             Plaintiff-Appellant,

v.                                                         No. 12-2097
                                              (D.C. No. 1:10-CV-01234-LAM-SMV)
CAROLYN W. COLVIN, Acting                                   (D. N.M.)
Commissioner of the Social Security
Administration,*

             Defendant-Appellee.


                            ORDER AND JUDGMENT**


Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


      Donald Padilla appeals from an order of the district court affirming the

Commissioner’s decision denying his application for supplemental security income


*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(SSI) benefits under the Social Security Act. He specifically challenges whether the

Appeals Council should have considered additional evidence submitted after his

hearing before the administrative law judge (ALJ). We exercise jurisdiction under

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and reverse and remand for further

proceedings.

                                    I.     Background

      Mr. Padilla filed an application for SSI in March 2006 alleging chronic

degenerative joint disease, knee pain, obesity, and chronic pain. He was denied at

both the initial and reconsideration levels. An ALJ held a hearing on Mr. Padilla’s

claims and on March 17, 2008, issued an unfavorable decision. The ALJ found

Mr. Padilla suffered from two severe impairments, right knee osteoarthritis and

obesity. The ALJ concluded, however, that Mr. Padilla was not disabled because he

had the residual functioning capacity (RFC) to perform the full range of sedentary

work, and such work existed in significant numbers in the national economy.

      Mr. Padilla requested the Appeals Council review the ALJ’s decision and

submitted additional evidence to the Appeals Council. Specifically, Mr. Padilla

submitted a psychological evaluation and an audiological evaluation, both of which

took place after the ALJ’s final decision. The psychological evaluation showed

Mr. Padilla had severe depression, anxiety, and significant impairments in reading

and writing. The report also noted “extreme limitation” in concentration, “marked

limitation” in daily living activities, and “moderate limitation” in “maintaining


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social functioning.” Aplt. App. I at 226. The audiological evaluation revealed

moderate-severe hearing loss in the right ear and mild-moderate hearing loss in the

left ear.

       The Appeals Council denied Mr. Padilla’s request for review. The Appeals

Council’s order, however, did not list the additional evidence. Mr. Padilla then

sought review in the district court, which remanded to the Appeals Council to

consider the additional evidence and enter it into the record.

       The Appeals Council again denied review, this time noting that it had

considered the additional evidence and included it in the record. But it also added

that the additional evidence was chronologically irrelevant and thus “[did] not affect”

its decision about whether Mr. Padilla was disabled. Id. at 188. Mr. Padilla filed

another complaint in the district court. The district court affirmed the ALJ’s decision

and found the Appeals Council properly considered the additional evidence.

Mr. Padilla now appeals to this court.

                                      II.    Discussion

       Mr. Padilla focuses on the Appeals Council’s order. He contends that

despite putting the additional evidence into the record, the Appeals Council did not

properly consider the new evidence even though it met the requirements of 20 C.F.R.

§ 416.1470(b) (stating that additional evidence should only be considered if it is new,

material, and related to the period before the date of the ALJ’s decision). The

Commissioner asserts that the Appeals Council did consider the additional evidence, but


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simply determined that it did not provide a basis for challenging the ALJ’s decision. The

language in the Appeals Council’s order is indeed unclear on this point, and the parties

disagree about whether the Appeals Council considered the new evidence or rejected it

because it did not qualify for consideration at all.1 See Krauser v. Astrue, 638 F.3d 1324,

1328 (10th Cir. 2011).

       We agree with Mr. Padilla that the Appeals Council did not consider the additional

evidence he submitted. It is true the Appeals Council accepted the additional evidence

into the record, and suggested that it considered the evidence by stating under the “What

We Considered” section that the evidence did not provide a basis for changing the ALJ’s

decision. Aplt. App. I at 188. And the Appeals Council need not discuss the reasons

why new evidence failed to provide a basis for changing the ALJ’s decision. See Hackett

v. Barnhart, 395 F.3d 1168, 1172-73 (10th Cir. 2005). Nevertheless, the Appeals

Council’s dismissal of the additional evidence’s import on the grounds that it was not

temporally relevant indicates that it ultimately found the evidence did not qualify for

consideration at all. Under § 416.1470(b), the Appeals Council “shall consider the

additional evidence only where it relates to the period on or before the date of the [ALJ]

hearing decision.” And here, the Appeals Council explicitly stated that the additional


1
       The difference is meaningful. If the Appeals Council did not consider the
additional evidence because it did not qualify for consideration under § 416.1470(b), then
the question on appeal is whether the Appeals Council erred in failing to do so. If the
Appeals Council did accept and consider the new evidence, then the question on appeal is
whether the ALJ’s decision was supported by substantial evidence in light of the new
evidence.


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evidence did not relate to the period on or before the date of the ALJ’s decision when it

found that the “new information is about a later time” and “did not affect” its decision.

Aplt. App. I at 188. Because temporal relevance is one of the predicate requirements

under § 416.1470(b) to warrant consideration, the Appeals Council could not have

considered the additional evidence after it found the new evidence was not temporally

relevant. This case therefore boils down to whether the Appeals Council should have

considered the additional evidence.

       Whether evidence qualifies for consideration is a question of law subject to

de novo review. Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003). As noted

above, additional evidence should only be considered if it is new, material, and

chronologically pertinent. 20 C.F.R. § 416.1470(b). Evidence is new “if it is not

duplicative or cumulative,” and it is material “if there is a reasonable possibility that it

would have changed the outcome.” Threet, 353 F.3d at 1191 (alterations omitted)

(internal quotation marks omitted). Evidence is chronologically pertinent if it relates to

the time period on or before the ALJ’s decision. Id.

       Here, there is no question that the additional evidence is new—there was not a

psychological or audiological evaluation at the time of the ALJ’s decision, and the results

of the evaluations are not cumulative. Mr. Padilla contends that the evidence is material

because it raises questions about whether the ALJ’s decision was supported by substantial

evidence. He argues that the psychological report reveals severe mental impairments that

the ALJ did not address or evaluate, and the audiologist’s report found considerable


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hearing problems. Both of these reports, Mr. Padilla asserts, could cause nonexertional

limitations, but the ALJ’s RFC only included exertional limitations. As a consequence,

Mr. Padilla contends the ALJ’s RFC could reasonably be found to be unsupported by

substantial evidence because it failed to take into account the nonexertional limitations

revealed by the additional evidence. We agree. The psychological report states that

Mr. Padilla suffers from major depressive disorder, anxiety, and a few different learning

impairments, illiteracy among them. Moreover, Mr. Padilla’s low intellectual functioning

suggests he could be presumptively disabled under 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§ 12.05, because he had a full scale IQ score of 67. These are all indicative of

nonexertional limitations that could reasonably have changed the outcome.

       Finally, we agree that the reports are temporally relevant. As Mr. Padilla notes,

the psychological report corroborates an anxiety diagnosis reported by Mr. Padilla’s

treating doctor, Dr. Evans, prior to the hearing, as well as Mr. Padilla’s hearing

testimony. Meanwhile, his intellectual functioning evaluation relates to and augments

Dr. Evans’ earlier report that he could not read or write. As to the audiological report,

Mr. Padilla identifies the fact that he testified about his hearing loss during the hearing

before the ALJ. The additional evidence thus relates to the time period before the

ALJ’s decision. As such, the Appeals Council should have considered the additional

evidence in order to properly determine whether the ALJ’s decision was supported by

substantial evidence.




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      The judgment of the district court is reversed and remanded to the district

court, with instructions to remand to the Appeals Council to consider the additional

evidence.

                                               Entered for the Court


                                               John C. Porfilio
                                               Senior Circuit Judge




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