                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2148
                                    ___________

Glen J. Lamp,                        *
                                     *
             Appellant,              *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Southern District of Iowa.
Michael J. Astrue, Commissioner      *
of Social Security.                  *
                                ___________

                              Submitted: January 16, 2008
                                 Filed: July 7, 2008
                                  ___________

Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Glen Lamp applied for disability insurance benefits and supplemental security
income benefits. The Administrative Law Judge (ALJ) determined that Lamp was
disabled on November 3, 2002, but his disability ended after December 1, 2003. Lamp
was granted benefits for this closed period, but the ALJ denied him benefits after
December 1, 2003. The Appeals Council refused to review the ALJ's determination,
and the district court upheld the Commissioner's decision. On appeal, Lamp argues
that substantial evidence does not support the denial of benefits. We affirm in part and
reverse in part.
                                  I. Background
       On May 12, 2003, Lamp applied for disability insurance benefits and
supplemental security income benefits, alleging an onset of disability on November
3, 2002, when he was 30 years old. Lamp claimed that he suffered a closed head
injury on November 10, 2001, that caused a lack of concentration, an impairment of
his memory, and outbursts of anger. He testified that after a brief convalescent period,
he returned to work and remained employed until November 2002.

      The ALJ found that Lamp experienced a closed period of disability from
November 3, 2002, when he could no longer maintain a normal job, until December 1,
2003. The Appeals Council affirmed. The ALJ's decision relied primarily on evidence
of improvement in Lamp's condition found in his medical records. Specifically, Dr.
John J. Ciaccio, Lamp's treating physician, considered Lamp's depression to be in
remission and noted that Lamp's anger episodes had ceased.

        Despite the apparent improvement noted in Lamp's records, Dr. Ciaccio
subsequently stated, in a letter submitted to the ALJ by Lamp, that Lamp remained
disabled. Dr. Ciaccio did not appear at the hearing, but after the hearing and before
making a decision, the ALJ attempted to contact Dr. Ciaccio. The ALJ wanted to give
Dr. Ciaccio an opportunity to harmonize his medical records with his apparently
contradictory letter. The ALJ's efforts to contact the doctor were unsuccessful. Given
the apparent contradiction in the evidence submitted by Lamp, the ALJ discredited Dr.
Ciaccio's statement of continued disability and instead relied mainly on the evidence
in the doctor's medical records. In addition to Dr. Ciaccio's medical records, the ALJ
also considered his own observations of Lamp at the hearing and the testimony of a
vocational expert who found that while Lamp was disabled on November 2, 2002, this
disability concluded by December 1, 2003.

      Lamp asked for a reconsideration by the Appeals Council. He provided a
statement from Dr. Ciaccio for the Appeals Council's consideration. In this undated

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letter, Dr. Ciaccio stated that his treatment notes did not evaluate Lamp's ability to
work but rather documented his progress with respect to the prescribed medication.
In addition to the undated letter, Lamp also submitted two other letters from Dr.
Ciaccio, one dated September 23, 2004, and the other dated December 1, 2003—both
discussed Lamp's continued disability. The Appeals Council also noted that it had
received additional evidence and made that evidence a part of the record. This
evidence consisted of a statement from Dr. Ciaccio dated September 23, 2004, and
was marked in the record as Exhibit 10F. After considering all of the evidence, the
Appeals Council declined review and declared that the ALJ's decision was the final
decision of the Commissioner.

      Lamp appealed to the United States District Court for the Southern District of
Iowa. The district court held that the Commissioner's decision was supported by
substantial evidence on the record as a whole and affirmed the decision of the ALJ.

                                    II. Discussion
       Lamp raises two principal arguments on appeal. First, he argues that the ALJ
erred in basing his assessment on the ALJ's own observations at the hearing. Second,
he contends that the ALJ improperly discounted the opinions of Lamp's treating
physician and that the Appeals Council erred in its review of this decision because it
failed to evaluate all of the new and material evidence that Lamp submitted.

      "We review de novo the district court's affirmance of the Commissioner of
Social Security's denial of social security benefits." Wagner v. Astrue, 499 F.3d 842,
848 (8th Cir. 2007) (citing Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir.
2002)). In reviewing the Commissioner's decision, our inquiry is confined to
determining whether there is substantial evidence on the record as a whole—requiring
an examination of the record for both the evidence supporting the Commissioner's
decision and evidence that detracts from that decision. Id. (citing Bowman, 310 F.3d
at 1083).

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                    A. Relevance of ALJ's Observations of Lamp
      Lamp argues that the ALJ erred by considering its own observations when
making an assessment regarding Lamp's disability. We conclude that the ALJ did not
err when it based its decision, in part, on the ALJ's observations of the claimant.

       While the ALJ's observations cannot be the sole basis of his decision, it is not
an error to include his observations as one of several factors. Cf. Jones v. Callahan,
122 F.3d 1148, 1151 (8th Cir. 1997) ("When an individual's subjective complaints of
pain are not fully supported by the medical evidence in the record, the ALJ may not,
based solely on his personal observations, reject the complaints as incredible.")
(emphasis added). Here, to reach his conclusion, the ALJ combined his review of the
record as a whole with his personal observations. Our precedent, including Jones, does
not forbid this.

               B. Evaluation of Lamp's Treating Physician's Opinion
      The ALJ discounted Dr. Ciaccio's December 1, 2003, opinion that stated that
Lamp continued to be disabled. For support, the ALJ cited, in part, an apparently
irreconcilable discrepancy between the December 1, 2003, letter and the doctor's
treatment notes. Dr. Ciaccio failed to provide an explanation to the ALJ, despite
repeated requests. However, Dr. Ciaccio did submit an explanation to the Appeals
Council during its review of the ALJ's denial order. Lamp argues that there is no
evidence in the Appeals Council opinion that this evidence was considered when the
Appeals Council reviewed Lamp's appeal.

      Under agency regulations, the Appeals Council must consider additional
evidence that is new, material, and relates to the period on or before the date of the
ALJ's decision. 20 C.F.R. § 404.970(b). "To be 'new,' evidence must be more than
merely cumulative of other evidence in the record." Bergmann v. Apfel, 207 F.3d
1065, 1069 (8th Cir. 2000). And evidence is material if it is "relevant to claimant's
condition for the time period for which benefits were denied." Id.

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       In identifying the additional evidence on which it relied in denying Lamp's
petition for review, the Appeals Council only references a statement dated September
23, 2004. Although Lamp's attorney failed to mention Dr. Ciaccio's undated letter as
a separate document in his letter to the Appeals Council, the record clearly indicates
that Lamp's attorney submitted this undated letter along with Dr. Ciaccio's September
23 statement.

       Whether the Appeals Council reviewed the undated letter when it considered
Dr. Ciaccio's September 23 statement is not clear from the record. The Appeals
Council noted that it considered new evidence, namely "John J. Ciaccio, MD,
statement dated September 23, 2004, in the record as Exhibit 10F." The record,
however, does not clearly indicate whether Exhibit 10F included both the September
23 statement from Dr. Ciaccio and his later undated explanatory letter.

       In deciding this matter, the ALJ felt that an explanation of the discrepancy
between Dr. Ciaccio's treatment notes and his December 1, 2003, narrative statement
would be helpful in assessing the weight to give to the doctor's opinion regarding the
state of Lamp's health in December 2003. The undated letter is the explanation that
the ALJ requested. Because we are unable to discern whether the Appeals Council
considered this new and material evidence, we remand this case to the district court
with instructions to remand to the ALJ. See Gartman v. Apfel, 220 F.3d 918, 922 (8th
Cir. 2000) (ordering a remand to the ALJ where the record did not clearly indicate
whether the Appeals Council considered new and material evidence that was
submitted after the ALJ's decision). On remand, the ALJ should consider whether the
undated letter from Dr. Ciaccio adequately explains the discrepancy between his
treatment notes and his December 1, 2003, statement.

                                III. Conclusion
     Accordingly, we affirm the ALJ's decision to include his own observations of
Lamp in his decisionmaking process. We reverse the ALJ's decision to discount the

                                         -5-
opinion of Lamp's treating physician and remand for an evaluation of the undated
letter from Lamp's physician. If possible to do so, it may be helpful to obtain further
amplification from Dr. Ciaccio by deposition or otherwise.
                      ______________________________




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