                                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         September 6, 2006
                             FO R TH E TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


    M ARY M ILLER,

                Plaintiff-Appellant,

    v.                                                     No. 06-2000
                                                   (D.C. No. CIV-04-1190 W DS)
    JO A NN E B. BA RN HA RT,                                (D . N.M .)
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.




         Plaintiff M ary M iller appeals the district court’s judgment 1 affirming the

Commissioner’s decision to deny her application for social security disability



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
1
      The parties consented to proceed before a magistrate judge, pursuant to
28 U.S.C. § 636(c).
 benefits and supplemental security income. W e take jurisdiction under 28 U.S.C.

 § 1291 and affirm.

                                      Background

      M s. M iller alleges disability since July 2002 due to a seizure disorder and

depression. An administrative law judge (ALJ) held a hearing at which M s. M iller

appeared pro se and testified. Her mother also testified, as did a vocational expert.

The A LJ determined that M s. M iller could not perform her past work, but that there

were other jobs existing in significant numbers in the national economy that she

could perform, including office helper, rental clerk, and postal service sorter.

Accordingly, he denied benefits at step five of the five-part sequential evaluation

process. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005)

(describing five steps).

        M s. M iller then obtained counsel, who informed the Appeals Council that

 he planned to submit additional evidence, but he did not file a written request to

 extend the filing deadline. 2 The A ppeals Council denied review, and the A LJ’s

 ruling became the final decision of the Commissioner. See Jensen v. Barnhart,

 436 F.3d 1163, 1164 (10th Cir. 2005). Six weeks later, M s. M iller submitted an

 additional medical report. The Appeals Council did not act on the new evidence.



 2
         The attorney also requested a copy of the audiotape of the administrative
 hearing, but apparently never received one. M s. M iller does not explain why the
 Appeals Council’s failure to provide the tape is reversible error, if she is arguing
 that it w as error at all.

                                           -2-
M s. M iller filed suit in the district court, which ultimately affirmed the

Commissioner’s decision. M s. M iller appeals.

                                   Legal Framework

      W e review the Commissioner’s decision to ascertain whether it is supported

by substantial evidence in the record and to evaluate whether she applied the

correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005). “Substantial evidence is more than a mere scintilla and is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Id. W e do not reweigh the evidence or retry the case, but we “meticulously

examine the record as a whole, including anything that may undercut or detract

from the ALJ’s findings in order to determine if the substantiality test has been

met.” Id. at 1262.

      In this context, “disability” requires both an “inability to engage in any

substantial gainful activity” and “a physical or mental impairment, which provides

reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002) (internal

quotation marks omitted). The impairment must be a “‘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. . . .’” Fischer-Ross, 431 F.3d at 731 (quoting 42 U.S.C. § 423(d)(1)(A)).




                                            -3-
      On appeal, M s. M iller claims a remand is required because (1) the ALJ failed

to address her mother’s testimony, and (2) the Appeals Council failed to address the

new and material evidence submitted after the administrative hearing. 3

                                        Analysis

      M s. M iller first asserts that the ALJ failed to consider the testimony given by

her mother, M arilyn Duckacki, and also failed to ask her mother any questions about

her depression. She maintains that because the ALJ’s decision did not specifically

discuss the mother’s testimony he did not consider it, and this legal error requires a

remand.

      M s. Duckacki testified that M s. M iller has no warning before a seizure

occurs, the seizures last ten or fifteen minutes, and afterward M s. M iller lies on the

couch for the rest of the day. Aplt. App. Vol. I, at 320. M s. M iller offers no

indication of what her mother would have said about her depression, and we decline

to speculate about it.

      The ALJ’s written decision states and demonstrates that he considered all of

the evidence in the record. “[O]ur general practice, which we see no reason to

depart from here, is to take a lower tribunal at its word when it declares that it has

considered a matter.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).




3
       M s. M iller has abandoned on appeal her claim that the A LJ failed to advise
her of her right to representation.

                                           -4-
      Although he did not mention M s. Duckacki’s description of M s. M iller’s

seizures, the ALJ discussed her seizure disorder at length. M s. M iller does not

claim that the ALJ’s findings conflict w ith M s. Duckacki’s testimony. An ALJ is

not required to discuss every piece of evidence so long as the record demonstrates

that he considered all of the evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10

(10th Cir. 1996); cf. Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996) (declining

to require ALJ to make specific written finding of each witness’s credibility).

Because the ALJ adequately considered the evidence, his failure specifically to

discuss M s. Duckacki’s testimony does not require a remand.

      For her second argument, M s. M iller contends that the Appeals Council erred

in issuing its decision before receiving her additional medical evidence and in

failing to consider or credit it. The applicable regulations require that any

documents a claimant wants the Appeals Council to consider be submitted with a

request for review, to be filed with the Appeals Council within sixty days after

receipt of the ALJ’s decision, unless a written request to extend the time is filed.

20 C.F.R. §§ 404.968, 416.1468. M s. M iller’s attorney did not submit the new

evidence with the request for review. He also did not file a written request for an

extension of time to file the review request, giving the reasons for the late filing and

showing good cause, as required by the regulations. See §§ 404.968(b),

414.1468(b). In fact, he sent the new evidence to the Appeals Council six weeks




                                           -5-
after the Council’s adverse ruling and only days before he filed the complaint with

the federal district court challenging the Commissioner’s decision.

      Although the Appeals Council must consider certain evidence “submitted with

a request for review,” Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004)

(quotation omitted), after the case has progressed to the district court, the court, not

the agency, may take action relative to the new evidence. Specifically, sentence six

of 42 U.S.C. § 405(g) authorizes a district court to remand to the agency when “new

and material evidence comes to light, and there is good cause for failing to

incorporate such evidence in the earlier proceeding.” Nguyen v. Shalala, 43 F.3d

1400, 1403 (10th Cir. 1994).

      Here, the new evidence w as not properly before the A ppeals Council because

the Council had already ruled well before the evidence was submitted. Furthermore,

a remand by the district court was not warranted because no showing was made that

there was good cause for the failure to incorporate the new evidence into the agency

proceeding. Consequently, the Commissioner was not required to consider the new

evidence. 4




4
       The district court denied relief on this issue for different reasons. W e may
affirm the district court’s judgment on any grounds, even those not relied upon by
the district court, so long as the record is sufficient to permit conclusions of law.
B-S Steel of Kan., Inc. v. Texas Indus., Inc., 439 F.3d 653, 666 n.15 (10th Cir.
2006).

                                           -6-
The judgment of the district court is AFFIRM ED.



                                           Entered for the Court



                                           Deanell Reece Tacha
                                           Chief Circuit Judge




                                  -7-
