Angst

concurring.

I agree that the district court’s denial of Angst’s appeal should be affirmed, but I write separately because I believe that neither the district court nor we should consider evidence that was not before the ALJ when the ALJ made his decision. Dr. Rowe’s signed opinion was only presented to the Appeals Council when Angst sought review of the ALJ’s decision. The Appeals Council considered this additional evidence, found that it did not provide a basis for changing the ALJ’s decision, and denied review. 1 Thus, the ALJ’s decision was the Commissioner’s final action. 20 C.F.R. § 416.1481 .

The Social Security Act, 42 U.S.C. § 405 (g), provides federal courts with jurisdiction to review the Commissioner’s final actions. Section 405(g) makes clear that a federal court may affirm, modify, remand, or reverse the ALJ’s decision only on the basis of the pleadings and transcript of the record — or, if “new” evidence is put in play, a court may order the ALJ to consider it if the evidence is material (i.e., there is a reasonable possibility it would change the ALJ’s decision 2 ) and there is good cause for failing to incorporate it into the record before the ALJ. No such…

MEMORANDUM **

Kimberly D. Angst appeals a judgment affirming the Administrative Law Judge’s (“ALJ”) denial of supplemental security disability income under Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 . Our review is de novo, and “[w]e may set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.2009) (citation and internal quotation marks omitted).

Angst’s treating physician did not testify at the hearing before the ALJ. The medical report at issue in this appeal is a March 7, 2006, questionnaire assessment prepared by the treating physician’s nurse practitioner, who saw Angst frequently. A nurse practitioner “acting as an agent” for the treating doctor can be an acceptable medical source. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.1996). Without changing this medical assessment, the treating physician signed it, after it had been rejected by the ALJ, but before it was submitted to the Appeals Council. See 20 C.F.R. § 404.970 (b) (“If new and material evidence is submitted, the Appeals Council shall consider the additional…