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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12471
Non-Argument Calendar
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D.C. Docket No. 8:12-cv-02536-TBM
DWAYNE NORTON,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 10, 2015)
Before HULL, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Dwayne Keith Norton appeals the affirmance of the Social Security
Administration’s denial of his claim for disability and supplemental security
income benefits. He argues on appeal that the Administrative Law Judge (“ALJ”)
erred by failing to consider his complaint of urinary incontinence when denying his
disability claim and by improperly applying the Medical-Vocational Guidelines
(“Grids”) without hearing testimony from a vocational expert (“VE”), after
evidence demonstrated that he had a non-exertional limitation, namely urinary
incontinence, that prevented him from performing the full range of medium work.
Additionally, he contends that the district court erred by failing to remand the case
for further consideration in light of additional evidence he submitted to the
Appeals Council. We will address each argument in turn.
I. Subjective Complaints Before the ALJ
We review the Commissioner’s decision for substantial evidence. Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial
evidence is more than a scintilla and is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. (quotations
omitted). This Court “may not decide the facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner].” Id. The individual
seeking Social Security disability benefits bears the burden of proving that he is
disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
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We will review the Commissioner’s legal conclusions de novo. Id. When
the Appeals Council denies review of the ALJ’s decision, we review the ALJ’s
decision as the Commissioner’s final decision. Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001).
The Commissioner uses
a five-step, sequential evaluation process . . . to determine whether a
claimant is disabled: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified impairments
in the Listing of Impairments; (4) based on [the RFC] assessment,
whether the claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant numbers
of jobs in the national economy that the claimant can perform given
the claimant’s RFC, age, education, and work experience.
20 C.F.R. § 404.1520(a)(4); Winschel, 631 F.3d at 1178. The RFC is “that which
an individual is still able to do despite the limitations caused by his or her
impairments.” Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). The
ALJ considers all of the evidence in the record in determining the claimant’s RFC.
Id.
The ALJ must “articulate specific reasons for questioning the claimant’s
credibility” if subjective symptom testimony is “critical” to the claim. Marbury v.
Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). “A clearly articulated credibility
finding with substantial supporting evidence in the record will not be disturbed by
a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995); see also
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Moore, 405 F.3d at 1212 (“We recognize that credibility determinations are the
province of the ALJ.”). “The credibility determination does not need to cite
particular phrases or formulations but it cannot merely be a broad rejection which
is not enough to enable . . . this Court to conclude that the ALJ considered [the]
medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005) (quotations and alterations omitted).
“It is well-established that the ALJ has a basic duty to develop a full and fair
record.” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Consequently, the
ALJ must “‘scrupulously and conscientiously probe into, inquire of, and explore
for all relevant facts.’” Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981)
(quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)). The ALJ must
consider all of the impairment evidence presented at the hearing, stating the weight
accorded to each item and the reasons for accepting or rejecting the evidence.
Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990).
The ALJ adequately considered the evidence in the record at the time of the
hearing related to Norton’s present claim of urinary incontinence. The record
before the ALJ only included a single reference to urinary issues, wherein Norton
asked Dr. Biggers for an adult diaper prescription and for hydrocortisone ointment
to deal with a rash caused by leaking urine. Importantly, the complaints to
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Petschell and Dr. Fusia did not occur until months after the ALJ decision issued,
and were therefore unavailable for consideration.
Substantial evidence also supported the ALJ’s conclusion that Norton did
not suffer from a severe impairment caused by urinary incontinence, which was not
included in his application as a disabling impairment. Norton testified before the
ALJ that he had to urinate once an hour as a result of his pain medication, but he
did not include this complaint among his reasons he believed that he could not
work. However, as the ALJ noted, Norton’s subjective complaints were often not
supported, and were sometimes contradicted, by objective findings in the medical
records. Medical records indicated that he would not give full effort during exams,
that he would claim pain when it did not appear warranted, and that he made
requests for supplies and prescriptions that he did not need. Thus, substantial
evidence also supported the ALJ’s conclusion that Norton was not entirely credible
in his testimony. Foote, 67 F.3d at 1562.
With no other evidence of urinary problems in the medical records, and his
limited testimony regarding the impairment being not entirely credible, the ALJ
adequately considered the evidence of his complaint, and did not err by concluding
that Norton’s urinary incontinence complaint was not a severe impairment. Lucas,
918 F.2d at 1574. Accordingly, we affirm in this respect.
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II. Medical-Vocational Guidelines
There are two ways in which the ALJ may determine whether a claimant has
the ability to adjust to other work in the national economy: (1) by applying the
Grids; or (2) by the use of a VE, an expert on the kinds of jobs an individual can
perform based on his capacity and impairments. Phillips, 357 F.3d at 1239-40. It
is not proper for the ALJ to rely exclusively on the Grids when the claimant is
unable to perform a full range of work at a given exertional level. Id. at 1242. The
Grids provide an algorithm to determine claimants’ ability to engage in
employment other than their past work based on factors such as a person’s age,
education, previous employment, and maximum physical capabilities. Gibson v.
Heckler, 762 F.2d 1516, 1520 (11th Cir. 1985). Each variable on the appropriate
Grid must “accurately [describe] the claimant’s situation.” Walker v. Bowen, 826
F.2d 996, 1003 (11th Cir. 1987).
When looking specifically at non-exertional limitations, an ALJ “need only
determine whether [the] non-exertional impairments significantly limit [basic]
work skills,” which include a wide range of work at a given work level. Phillips,
357 F.3d at 1243. If the ALJ determines that non-exertional limitations do not
significantly limit basic work skills at the assigned work level, the ALJ may rely
on the Grids to determine if a claimant is disabled; otherwise, the ALJ must consult
a VE. Id.
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Here, the ALJ concluded, at step four, that Norton retained the physical RFC
to perform medium work, and that finding is undisputed on appeal. The ALJ
concluded that Norton did not have any non-exertional limitations, and, as noted in
Issue One, supra, substantial evidence supported the ALJ’s decision not to consider
Norton’s urinary incontinence claim as a limitation on his ability to perform
medium exertion work. Norton has not argued that there were any other non-
exertional limitations that the ALJ should have recognized, thereby requiring VE
testimony, and, as such, the ALJ was justified in relying solely on the Grids.
Phillips, 357 F.3d at 1243. The ALJ noted that Norton had changed age categories
under the Grids between the time he filed his application and the time of his
hearing, but, applying the appropriate guideline for either age category, each
criterion of which described Norton, the ALJ correctly concluded that Norton was
not disabled. See 20 C.F.R. pt. 404, subpt. P, app. II, §§ 203.21 and 203.28;
Walker, 826 F.2d at 1003. Accordingly, we affirm in this respect, as well.
III. Denial of Motion for Remand
We review a magistrate’s decision regarding the necessity of a remand to the
Commissioner based on new evidence de novo. Vega v. Comm’r of Soc. Sec., 265
F.3d 1214, 1218 (11th Cir. 2001).
A claimant is generally permitted to present new evidence at each stage of
the administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
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1261 (11th Cir. 2007). “The Appeals Council must consider new, material, and
chronologically relevant evidence and must review the case if the [ALJ’s] action,
findings, or conclusion is contrary to the weight of the evidence currently of
record.” Id. (quotation omitted). The Appeals Council must “adequately evaluate”
new evidence. Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980) (remanding so
that a determination of disability could be made on the record as a whole where the
Appeals Council had “perfunctorily adhered to the decision of the hearing
examiner” without sufficiently evaluating the new evidence). The Appeals
Council is not required to provide a detailed explanation of the claimant’s new
evidence when denying a request for review. Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 784-85 (11th Cir. 2014).
Where a claimant seeks review in a federal court of the Commissioner’s
final decision, the district court may remand the case to the Commissioner using
two methods under 42 U.S.C. § 405(g): “sentence four” remands and “sentence
six” remands. Ingram, 496 F.3d at 1261. Sentence four and sentence six remands
serve different purposes. Jackson v. Chater, 99 F.3d 1086, 1095 (11th Cir. 1996).
“[A] sentence-four remand is based upon a determination that the Commissioner
erred in some respect in reaching the decision to deny benefits,” whereas “[a]
sentence-six remand does not result from any error by the Commissioner.” Id.
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Under the fourth sentence of § 405(g), the district court may affirm, modify,
or reverse the Commissioner’s decision, with or without remanding for rehearing.
Ingram, 496 F.3d at 1261. Sentence four is applicable when the evidence was
properly before the Commissioner, but “the Appeals Council did not adequately
consider the additional evidence.” Id. at 1268 (quotation omitted). A sentence
four remand is warranted only where the Commissioner’s decision was not
supported by substantial evidence or where the Commissioner or ALJ incorrectly
applied the relevant law. Jackson, 99 F.3d at 1092.
Under the sixth sentence of § 405(g), the district court may remand the case
“to the Commissioner for the taking of additional evidence upon a showing that
there is new evidence which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding.” Ingram, 496
F.3d at 1261 (quotation omitted). The evidence must also be noncumulative.
Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). A sentence six remand is
“appropriate when the district court learns of evidence not in existence or available
to the claimant at the time of the administrative proceeding that might have
changed the outcome of that proceeding.” Sullivan v. Finkelstein, 496 U.S. 617,
626, 110 S.Ct. 2658, 2664, 110 L.Ed.2d 563 (1990); Hyde v. Bowen, 823 F.2d 456,
459 (11th Cir. 1987). The district court is not authorized by sentence six “to
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remand for reconsideration of evidence previously considered by the Appeals
Council.” Ingram, 496 F.3d at 1269.
Here, Norton’s contention that remand was necessary because the Appeals
Council did not adequately evaluate his newly submitted evidence is meritless.
The Appeals Council stated that it had considered the additional evidence, listed
what that specific evidence was, and concluded without elaboration that the
evidence did not provide a basis for changing the ALJ’s decision. The Appeals
Council was not required to provide a thorough explanation of its decision.
Mitchell, 771 F.3d at 784-85. Additionally, although Norton submitted several
pieces of new evidence, the Appeals Council was only required to consider those
that related to the period on or before the August 2011 ALJ hearing decision. See
20 C.F.R. § 416.1470(b). Accordingly, although the Appeals Council did not
acknowledge this fact, the urology records from 2012 were not properly a part of
the administrative record. See id.
Next, the magistrate judge did not err in refusing to remand Norton’s case.
There was no error under sentence six because, although the evidence was new and
noncumulative, and Norton had good cause for failing to produce the records
before the ALJ, because they did not yet exist, the records were not material
because they would not have changed the outcome of the proceeding. See
Sullivan, 496 U.S. at 626, 110 S.Ct. at 2664; Ingram, 496 F.3d at 1261. Although
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Norton complained of 6 to 12 months of urinary issues when he first sought
treatment from Dr. Fusia, and he was given several prescriptions to resolve his
frequent urination, there were no objective findings that supported his subjective
complaints, and no indication that his frequent urination prevented him from
performing the full range of medium work. Even assuming his complaint was true,
the ALJ was already aware of his urinary issues through the records from Dr.
Biggers and Norton’s hearing testimony, and thus it did not appear probable that
the new evidence would have produced a different result. Hyde, 823 F.2d at 459.
On the above, the magistrate judge did not err in refusing to remand Norton’s case
for consideration of the additional medical records, and thus we affirm the district
court’s denial of Norton’s motion for remand.
AFFIRMED.
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