Case: 14-13289 Date Filed: 02/09/2015 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13289
Non-Argument Calendar
________________________
D.C. Docket No. 4:13-cv-01120-CLS
FELICIA BEAVERS,
on behalf of Jasmine Worthy,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
COMMISSIONER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 9, 2015)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Case: 14-13289 Date Filed: 02/09/2015 Page: 2 of 10
Felicia Beavers, on behalf of her minor daughter, Jasmine Worthy
(hereinafter “Worthy”), appeals the district court’s order affirming the Social
Security Administration’s denial of her application for supplemental security
income. On appeal, Worthy argues that the Appeals Council improperly denied
her petition for review based on new evidence because it failed to articulate its
rationale or show an adequate evaluation of her new evidence. 1 After review, we
conclude that the Appeals Council adequately explained its reason for denying
Worthy’s petition for review and affirm.
I. BACKGROUND
Appellant Worthy’s application for benefits alleged that she was disabled
due to seizures, depression, and anxiety. After a hearing, the Administrative Law
Judge (“ALJ”) denied Worthy’s application, applying the three-step sequential
analysis used to determine whether a child is disabled. Specifically, at the third
step, the ALJ concluded that Worthy’s impairments did not functionally equal an
impairment in the Listing of Impairments because Worthy did not have two
“marked” limitations or one “extreme” limitation in the six “domains” used to
evaluate a child’s functional limitations.
The evidence before the ALJ included, among other things, that (1) in early
1
On appeal, Worthy challenges only the Appeals Council’s denial of her petition for
review and not the ALJ’s underlying decision. Thus, Worthy has abandoned any claim of error
with respect to the ALJ’s decision. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir.
1994) (explaining that issues not raised on appeal ordinarily are considered abandoned).
2
Case: 14-13289 Date Filed: 02/09/2015 Page: 3 of 10
2009, after a car accident, Worthy began having seizures and pseudoseizures,
sometimes as often as every other day; (2) occasionally Worthy was taken by
ambulance to the emergency room, and discharged the same day; (3) Worthy
initially was prescribed Depakote, which did not significantly change the
frequency of her seizures; (4) because some of the seizures appeared panic-related,
Worthy also was prescribed Zoloft; (5) Worthy performed satisfactorily in school,
but her grades had declined, and she attended only half day due to afternoon
seizures; (6) after Worthy’s neurologist replaced Depakote with Lamictal in late
2010, the frequency of her seizures decreased significantly; (7) as a result, Worthy
was able to return to school full time and her grades improved, and (8) a
neuropsychological evaluation indicated that Worthy had mild impairments in
higher-level language functions, but her nonverbal intellectual functioning was in
the average range.
Before the Appeals Council, Worthy’s petition for review submitted new
evidence, including a few more medical treatment and billing records relating to
Worthy’s seizures, medications, and ambulance trips to the emergency room; a
seizure log from 2011 and 2012; and a questionnaire completed by one of
Worthy’s middle school teachers. The Appeals Council denied the petition for
review. The Appeals Council stated that it had “considered the reasons [Worthy]
disagree[d] with the decision and the additional evidence” Worthy had submitted.
3
Case: 14-13289 Date Filed: 02/09/2015 Page: 4 of 10
The Appeals Council also “considered whether the Administrative Law Judge’s
action, findings, or conclusion [was] contrary to the weight of evidence of record,”
and “found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.”
II. DISCUSSION
A. Three-Step Evaluation Process
The ALJ uses a three-step, sequential evaluation process to determine
whether a claimant under the age of 18 is disabled. 20 C.F.R. § 416.924(a); see
Wilson v. Apfel, 179 F.3d 1276, 1277 n.1 (11th Cir. 1999). Under this process, the
ALJ evaluates: (1) whether the child is engaged in substantial gainful activity; (2)
whether the child has a severe and medically determinable impairment or
combination of impairments; and (3) whether the child’s impairment or
combination of impairments meets, medically equals, or functionally equals the
severity of an impairment in the Listing of Impairments. 20 C.F.R. §§ 416.924(a)-
(d); 416.926(a). In doing so, the ALJ considers “all relevant information,”
including evidence from medical and nonmedical sources, such as the child’s
parents and teachers. Id. § 416.926a(b)(3), (e)(1).
At step three, to determine whether the child’s impairments “functionally
equal” a listed impairment, the ALJ looks at whether the child has “marked”
limitations in at least two of six “broad areas of functioning” called domains, or an
4
Case: 14-13289 Date Filed: 02/09/2015 Page: 5 of 10
“extreme” limitation in one domain. Id. § 416.926a(a), (b)(1), (d). These six
domains are: (1) acquiring and using information; (2) attending and completing
tasks; (3) interacting and relating with others; (4) moving about and manipulating
objects; (5) caring for oneself; and (6) health and physical well-being. Id.
§ 416.926a(b)(1). The regulations also provide illustrative lists of examples of
limited functioning within each domain. Id. § 416.926a(i)(3)(i)-(vi), (g)-(l). The
regulations explicitly advise that “the examples do not necessarily describe a
‘marked’ or ‘extreme’ limitation,” as defined by the regulations. 20 C.F.R.
§ 416.926a(b)(1), (g)(3), (h)(3), (i)(3), (j)(3), (k)(3), (l)(4).
An “extreme” rating is reserved for “the worst limitations,” ones that
interfere “very seriously” with the child’s ability to independently initiate, sustain,
or complete activities. Id. § 416.926a(e)(3)(i). A child’s limitation is “marked” if
it is “less than extreme,” but “more than moderate” and “interferes seriously with
[the child’s] ability to independently initiate, sustain, or complete activities.” Id.
§ 416.926a(e)(2)(i).
B. Petition for Review Based on New Evidence
Generally, a claimant may present new evidence at each stage of the
administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1261 (11th Cir. 2007); 20 C.F.R. § 404.900(b). If a claimant presents evidence
after the ALJ’s decision, the Appeals Council must consider it if it is new, material,
5
Case: 14-13289 Date Filed: 02/09/2015 Page: 6 of 10
and chronologically relevant. 20 C.F.R. § 404.970(b). New evidence must not be
cumulative of other evidence in the record. See Caulder v. Bowen, 791 F.2d 872,
877 (11th Cir. 1986). The evidence is material if “there is a reasonable possibility
that the new evidence would change the administrative outcome.” Hyde v. Bowen,
823 F.2d 456, 459 (11th Cir. 1987). The Appeals Council must grant the petition
for review if it finds that the ALJ’s “action, findings, or conclusion is contrary to
the weight of the evidence,” including the new evidence. Ingram, 496 F.3d at 1261
(quotation marks omitted).
In Mitchell v. Commissioner, this Court recently concluded that the Appeals
Council is not required to provide a detailed explanation of a claimant’s new
evidence when it denies a petition for review. Mitchell, 771 F.3d 780, 783-85
(11th Cir. 2014). The Appeals Council in Mitchell denied review, stating simply
that it had considered the additional evidence but “the information did not provide
a basis for changing the ALJ’s decision.” Id. at 782. This Court explained that the
Appeals Council’s statement indicated that it had “accepted Mitchell’s new
evidence but denied review because the additional evidence failed to establish error
in the ALJ’s decision.” Id. at 784. This Court determined that the Appeals
Council’s explanation was sufficient, emphasizing that the record did not provide a
“basis for doubting the Appeals Council’s statement that it considered Mitchell’s
additional evidence.” Id. at 783-84 (distinguishing Epps v. Harris, 624 F.2d 1267
6
Case: 14-13289 Date Filed: 02/09/2015 Page: 7 of 10
(5th Cir. 1980), in which the new evidence directly undermined the ALJ’s stated
rationale for its decision and thus “provided us with an affirmative basis for
concluding the Appeals Council failed to evaluate the claimant’s new evidence”).
On appeal, “when a claimant properly presents new evidence to the Appeals
Council [but the Appeals Council denies review], a reviewing court must consider
whether that new evidence renders the denial of benefits erroneous.” Ingram, 496
F.3d at 1262.
C. Appeals Council’s Denial of Worthy’s Petition For Review
Here, the Appeals Council denied Worthy’s petition for review, stating, as it
did in Mitchell, that it had considered Worthy’s reasons for disagreeing with the
ALJ’s decision and her new evidence, but found that the new evidence did not
provide a basis for changing the ALJ’s decision. Under Mitchell, no further
explanation was required of the Appeals Council. Mitchell, 771 F.3d at 784.
Worthy relies upon Epps v. Harris, which required the Appeals Council to
show in its decision that it had adequately evaluated the new evidence. Epps, 624
F.2d at 1273. As we explained in Mitchell, however, Epps involved an Appeals
Council’s affirming the ALJ, and thus Epps does not apply when, as here, the
Appeals Council denies a petition for review. Mitchell, 771 F.3d at 783.
Furthermore, nothing in the administrative record provides a basis for
concluding that the Appeals Council did not in fact consider Worthy’s new
7
Case: 14-13289 Date Filed: 02/09/2015 Page: 8 of 10
evidence as it stated. See id. at 783-84 (distinguishing Epps further because it was
apparent from the record that the Appeals Council had not considered the post-
hearing evidence that contradicted the ALJ’s premise for denying benefits). That
is, none of Worthy’s new evidence directly undermines the ALJ’s stated rationale
for his decision.
The ALJ, in concluding Worthy did not have impairments that functionally
equaled a listed impairment, stressed that the record indicated the right medication
and dosage had greatly reduced Worthy’s symptoms. In fact, the record showed
that once Worthy began taking Lamictal, the frequency of her seizures went from
as many as twenty seizures a month to one seizure a week or less and that Worthy
now is able to attend school for a full day. As to the six domains, the ALJ found
that Worthy had a marked limitation in only one domain (health and physical well-
being), had a less than marked limitations in four domains (acquiring and using
information, attending and completing tasks, interacting and relating with others,
caring for herself), and had no limitation in one domain (moving about and
manipulating objects).
With her petition for review, Worthy submitted additional medical records
and a seizure log. The medical records showed Worthy continued to be treated for
seizures, including taking Lamictal for her seizures and Zoloft for anxiety, and did
not show a worsening of her symptoms. The seizure log indicated that Worthy had
8
Case: 14-13289 Date Filed: 02/09/2015 Page: 9 of 10
four seizures per month from July to October 2011 and three seizures per month
from November 2011 to February 2012. In other words, Worthy’s new evidence is
consistent with the ALJ’s finding that Worthy’s symptoms had improved with
proper medication.
Worthy also submitted a teacher questionnaire, which indicated that Worthy
had “obvious” and “serious” problems with some activities, such as
comprehending math problems, expressing anger, and providing organized oral
explanations. But, these activities only loosely correspond to the examples of
limited functioning in each domain listed in the regulations, which themselves “do
not necessarily describe a ‘marked’ or ‘extreme’ limitation.” See, e.g., 20 C.F.R.
§ 416.926a(g)(3).
Further, the teacher’s overall evaluation of each domain appears to be
consistent with the ALJ’s findings. For example, although the teacher evaluated
Worthy as having an “obvious problem” with four activities within the domain of
“interacting and relating with others,” the teacher indicated that Worthy had “no
problem” or only a “slight problem” with nine other activities. Thus, the teacher’s
evaluation of Worthy’s limitations in this domain does not undermine the ALJ’s
finding that Worthy had a “less than marked” limitation in this domain.
On appeal, Worthy argues that the teacher evaluation shows “the equivalent
to a marked or extreme impairment” in the domain of “acquiring and using
9
Case: 14-13289 Date Filed: 02/09/2015 Page: 10 of 10
information.” To be sure, the teacher’s ratings indicate that Worthy has the most
problems in that domain. Yet, the teacher indicated that Worthy had no or only
slight problems with four activities, obvious problems with four activities, and
serious problems with only two activities. Moreover, the teacher questionnaire
does not explain what distinguishes between slight, obvious, or serious problems or
how these designations might correspond to “less than marked,” “marked,” or
“extreme” ratings as defined in the regulations.
For the same reasons, Worthy’s new evidence submitted to the Appeals
Council does not render the denial of benefits erroneous. The new evidence is
either cumulative of, or consistent with, the evidence that was before the ALJ. The
new evidence also is not “material,” in that there is not a “reasonable possibility”
the ALJ would have made a “marked” finding in one of the other five domains or
made an “extreme” finding in any of the six domains had he seen Worthy’s new
evidence. Accordingly, the Appeals Council did not err in denying Worthy’s
petition for review.
AFFIRMED.
10