. The Court is persuaded that the proper treatment of the new evidence is to evaluate the ALJ's existing reasons in light of this new evidence. See, e.g., Bolden v. Colvin, 2014 WL 63926, at *4 (N.D. Okla. Jan. 8, 2014) (โThe Court may not allow the Commissioner to offer alternate or post hoc justifications based on the new evidence, but the Court must consider only the rationale used by the Commissioner to deny the plaintiff's claim.โ)
As the Court found in Martinez, nothing in the statutes or regulations requires such an analysis. Id., 444 F.3d at 1208; see also Foy v. Barnhart, 139 F. App'x 39, 42 (10th Cir. 2005) (accord); cf Bolden v. Colvin, No. 12CV0503CVEPJC, 2014 WL 63926 at *5 (N.D. Okla. Jan. 8, 2014) (unpublished op.) (addressing the "split of Tenth Circuit authority" and remanding because "it is unclear if the Court is permitted to analyze a possible treating physician opinion in the first instance when the Commissioner has not engaged in a treating physician analysis of new evidence accepted as part of the record by the Appeals Council").When new evidence is accepted by the Appeals Council, it becomes part of the administrative record and must be considered by this Court in making the determination on judicial review as to whether substantial evidence supports the Commissioner's decision.
Several district courts, however, have found that Harper requires that the Appeals Council expressly evaluate a possible treating physician opinion under the required standards. See, e.g., Bolden v. Colvin, 2014 WL 63926, at *5 (N.D. Okla. Jan 8, 2014) (unpublished) (remanding for further review of the new evidence because it is unclear whether the district can analyze a treating physician's opinion in the first instance); Parker v. Colvin, 2014 WL 4908899, at *5-6 (D. Kan. Sept. 30, 2014) (unpublished) (remanding because the Appeals Council failed to conduct a treating physician analysis of the opinion submitted after the ALJ's decision and noting that "the trend by the district courts . . . has been to follow the Harper approach"); Pacheco v. Astrue, 2013 WL 2030964, at *7 (D. Colo. May 14, 2013) (unpublished) (following Harper and remanding with instructions for the Commissioner to conduct a treating physician analysis). While the Tenth Circuit has not settled the issue and the district courts appear to be split on the appropriate approach, I follow Harper out of an abundance of caution and respect for the SSA's determination on these issues.
Several district courts in this circuit have found that Harper requires that the Appeals Council expressly evaluate a possible treating physician opinion under the required standards. See, e.g., Bolden v. Colvin, 2014 WL 63926 *5 (N.D. Okla.); Parker v. Colvin, 2014 WL 4908899 *5-6 (D. Kan.); Pacheco v. Astrue, 2013 WL 2030964 *7 (D. Colo.). The Tenth Circuit itself has noted that the issue of whether the Appeals Council is required to explicitly apply treating physician opinion analysis to a possible opinion submitted as additional evidence "does not appear to be settled in this circuit." Stills v. Astrue, 476 Fed. Appx. 159, 161 (10th Cir. 2012) (unpublished).
The district courts within the Circuit have split on whether to follow the Martinez or Harper approach on how to consider new evidence presented to the Appeals Council. The most recent decisions confronted with this issue have followed Harper in holding that the Appeals Council must apply the treating physician analysis under 20 C.F.R. ยง 404.1527(c) when presented with a new treating physician medical opinion. E.g., Woodrow v. Colvin, No. 12-CV-3356, 2014 WL 335075, at *4 (D. Colo. Jan. 28, 2014); Reel v. Colvin, No. 12-4153, 2014 WL 298055, at *3 (D. Kan. Jan. 28, 2014); Bolden v. Colvin, No. 12-CV-503, 2014 WL 63926, at *5 (N.D. Okla. Jan. 8, 2014); Roland v. Colvin, No. 12-2257, 2013 WL 4401880, at *6 (D. Kan. Aug. 15, 2013). Failure to do so requires remand.