[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 29, 2005
No. 05-12459
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00410-CV-P-L
LELAND D. GIBBS,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 29, 2005)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Leland D. Gibbs appeals the district court’s order affirming the Social
Security Administration’s (“SSA’s”) denial of his applications for disability
insurance benefits (“DIB”), 42 U.S.C. § 405(g), and supplemental security income
(“SSI”), 1383(c)(3). In his applications, Gibbs claimed that he became disabled on
October 15, 1996, due to poor circulation in his legs, back pain, headaches, and
“bad nerves and depression.” When the denial of his applications initially was
reviewed by the district court, the court remanded to the SSA for further
consideration of Gibbs’s severe mental impairments. At a hearing before the
Administrative Law Judge (“ALJ”), a vocational expert (“VE”) testified that:
(1) Gibbs’s past position as a security guard was classified as semi-skilled work,
requiring “light” exertion; (2) without considering any physical limitations, an
individual with a personality disorder and depression, whose depression could be
controlled with medication, could perform the job of a security guard; and (3) if the
depression was marked and severe, where the person would not have the abilities
to have clear thought and to function, he could not do that job.
In its final decision issued on November 19, 2003, the ALJ determined that
Gibbs did not have a severe physical impairment during the period in question.
Specifically noting that he had read the testimony and the statements made by the
lay witnesses and had “given them appropriate consideration in the overall
determination of this case,” the ALJ discussed the medical evidence of Gibbs’s
back pain, diabetes, hand tremors, headaches, leg swelling, and obesity. The ALJ
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noted that, although an examining physician, Dr. Gregory Evans, appeared to be
offering an opinion that Gibbs was disabled, he would not assign significant
evidentiary weight to the opinion because: (1) the issue of disability was one for
the SSA; and (2) none of Dr. Evans’s records indicated that Gibbs was limited in
his ability to perform basic work activities.
Next, the ALJ discussed the evidence pertaining to Gibbs’s mental
impairments and concluded that Gibbs possessed the severe impairments of a
dysthymic disorder and a personality disorder, but found that, even considering his
impairments singly and in combination, they did not meet, or equal, the medical
criteria set forth in Listings 12.04 (affective disorder) or 12.08 (personality
disorder). The ALJ concluded that, “after considering all of the evidence of
record,” Gibbs had the Residual Functional Capacity (“RFC”) to perform work at
all exertional levels and had only mild limitations in his abilities to: (1) maintain
activities of daily living, since he could care for his personal needs without
assistance, do household chores, and drive; (2) function socially, since he attended
church on a regular basis, questioning whether Gibbs’s bizarre behavior was
willful, since he was able to respond appropriately during his group therapy
sessions; and (3) maintain concentration, persistence, or pace, since Gibbs testified
that he reads, watches television for several hours per day, and drives, all of which
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require an elevated level of concentration. The ALJ found that there was no
evidence that Gibbs had suffered any episodes of deterioration or decomposition.
He specifically noted that, in making this determination, he had “assigned the
appropriate evidentiary weight” to the information provided by Gibbs’s physician
and social worker at Mobile Medical Health Center (“MMHC”).
The ALJ next determined that, based on the VE’s testimony, Gibbs had the
ability to perform his past relevant work as a security guard. The ALJ concluded:
After carefully considering all of the evidence, including the hearing
testimony and the effects of [Gibbs’s] impairments, the undersigned
finds that [Gibbs] is not disabled in that he has been physically and
mentally capable of performing his past relevant work as a security
guard . . .
Gibbs then submitted, before the Appeals Council (“AC”), a supplemental
affidavit, dated March 4, 2004, from his brother, Adrian Gibbs, stating that: (1) on
February 2, 2004, Gibbs’s mother was placed in a nursing home, leaving Gibbs
living alone; (2) upon visiting Gibbs, on February 28, 2004, Adrian found that the
house was infested with roaches and mice and was in a “generally unhealthy
condition”; (3) when Adrian took Gibbs to Catholic Social Services, Gibbs had
trouble carrying on a conversation, “wet[] himself,” had trouble staying awake, and
was drooling; (4) Gibbs lost his temper when Adrian tried to keep him from eating
candy, although he was still taking medication for his diabetes; (5) Gibbs had
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trouble feeding himself and would choke on and vomit food; (6) Gibbs had
overdrawn his mother’s checking account; and (7) Adrian was trying to convince
Gibbs to move to a group home, since he had concerns about Gibbs’s ability to live
by himself safely. The AC denied review, noting that Adrian’s affidavit indicated
that Gibbs’s condition was deteriorating, but there was no medical documentation,
and suggesting that Gibbs consider filing a new application for SSI benefits.
On June 2, 2004, Gibbs requested, from the AC, an extension of time to
supplement the record, stating that: (1) he had been charged, in the U.S. District
Court for the District of South Carolina, with willful failure to pay child support;
and (2) the case recently had been dismissed. The AC acknowledged the letter, but
noted that, since Gibbs had filed an appeal in the district court, it did not have
jurisdiction over the matter. The district court affirmed the ALJ’s decision.
I. The ALJ’s decision
On appeal, Gibbs argues that substantial evidence does not support the
ALJ’s conclusion that he was not disabled, in light of the ALJ’s failure to consider
the record as a whole. He argues that the record showed that he suffered from
numerous, permanent, mental and physical impairments and contends that the ALJ
erred by not considering his physical and mental impairments in combination. He
points out also that the ALJ: (1) ignored references in the record to Gibbs’s many
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conditions; (2) belittled lay testimony; (3) implied that Gibbs’s back had healed;
(4) ignored a treating physician’s recommendation that Gibbs needed a
neurological examination; (5) failed to discuss evidence that Gibbs’s IQ was 60,
which, under Listing 12.05 (mental retardation), established that Gibbs was
disabled; (6) rejected mental health records prepared by a social worker; (7) failed
to supplement the record with Gibbs’s psychiatric hospitalization records; and (8)
failed to develop evidence of the side effects of Gibbs’s medications. Gibbs
further argues that the ALJ erred by ignoring the VE’s testimony that, if Gibbs
suffered from severe mental impairments, he would be unable to work, essentially
ignoring the district court’s mandate, in remanding the case to the ALJ, that
Gibbs’s mental impairments were to be considered severe. Finally, Gibbs argues
that the government is estopped from arguing that he was not disabled because the
issue was determined in his favor by the U.S. District Court of South Carolina,
when it dismissed his ex-wife’s claim against him for child support, based on his
disability.
We review a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and whether the correct legal
standards were applied. Lewis v. Callahand, 125 F.3d 1436, 1439 (11th Cir.
1997). “Substantial evidence is defined as more than a scintilla, i.e., evidence that
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must do more than create a suspicion of the existence of the fact to be established,
and such relevant evidence as a reasonable person would accept as adequate to
support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
The Social Security Regulations outline a five-step sequential evaluation
process used for determining whether a claimant is disabled. Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999). First, the claimant must prove that he has been
unable to engage in substantial gainful activity. Id. Second, the claimant must
prove that he suffers from a severe impairment or combination of impairments. Id.
In step three, if the claimant can prove that his impairment meets or equals a listed
impairment, he automatically is deemed disabled. Id. If his impairment does not
meet or equal a listed impairment, he must proceed to step four and prove that he is
incapable of performing his past relevant work. Id. Finally, at step five, the
burden shifts to the SSA “to determine if there is other work available in
significant numbers in the national economy that the claimant is able to perform,”
and, if the SSA meets its burden, the claimant then must prove that he cannot
perform those jobs. Id. An impairment or combination of impairments is not
severe if it “does not significantly limit [the claimant’s] physical or mental ability
to do basic work activities,” including: (1) “walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;” (2) “[c]apacities for seeing,
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hearing, and speaking;” (3) “[u]nderstanding, carrying out, and remembering
simple instructions;” (4) “[u]se of judgment;” (5) “[r]esponding appropriately to
supervision, co-workers and usual work situations;” and (6) “[d]ealing with
changes in a routine work setting.” 20 CFR § 404.1521(a), (b).
“Where a claimant has alleged several impairments, the [Commissioner] has
a duty to consider the impairments in combination and to determine whether the
combined impairments render the claimant disabled.” Jones v. Dept. of Health and
Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991). Indeed, an ALJ is
required to address the “degree of impairment caused by the combination of
physical and mental medical problems.” Strickland v. Harris, 615 F.2d 1103, 1110
(5th Cir. 1980). We have held that the ALJ properly considered the claimant’s
impairments in combination when he stated that, “based upon a thorough
consideration of all evidence, the ALJ concludes that appellant is not suffering
from any impairment, or a combination of impairments of sufficient severity to
prevent him from engaging in any substantial gainful activity for a period of at
least twelve continuous months.” Wheeler v. Heckler, 784 F.2d 1073, 1076 (11th
Cir. 1986).
We find that substantial evidence supports the ALJ’s conclusion that Gibbs’s
physical impairments, even considered in combination, were not severe, because,
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although the record shows that, over time, Gibbs complained of poor circulation in
his legs, headaches, diabetes, insomnia, impotence, hand tremors, and gout, there is
no evidence that these impairments interfered with his ability to do basic work
activities or that he continuously sought treatment for his physical impairments.
Substantial evidence also supports the ALJ’s finding that, although Gibbs’s mental
impairments were severe, he retained the RFC to perform his past relevant work as
a security guard. The ALJ was permitted to rely on the VE’s testimony that a
person with a personality disorder and depression, whose depression did not cause
marked limitations in his ability to think, could perform the job of a security guard,
since the hypothetical was reflective of the medical evidence as to Gibbs’s
impairments. While it is clear that, in determining their severity, the ALJ analyzed
Gibbs’s physical and mental impairments separately, nevertheless, a careful review
of the record shows that, in making his final determination that Gibbs could
perform his past relevant work, the ALJ properly considered Gibbs’s physical and
mental impairments in combination. Moreover, the ALJ properly considered all of
the evidence in this case, and the ALJ’s decision was entirely consistent with the
district court’s order on remand, since he concluded that Gibbs possessed the
severe mental impairments of a dysthymic disorder and a personality disorder.
Finally, even assuming that the South Carolina district court had determined that
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Gibbs was disabled, in the context of a child support claim, such determination
would not be binding in the instant case. See 20 C.F.R. § 404.1504.
II: Supplemental Evidence
Gibbs further contends that the AC erred by finding that his supplemental
affidavit, which had not been before the ALJ, indicated that his condition was
deteriorating, since there was no medical evidence that his condition had
deteriorated. He argues that the affidavit did not show that his condition had
deteriorated, but instead, showed that the severity of his condition had become
apparent only when he stopped receiving care from his mother. He argues that the
AC’s suggestion, that he re-apply for benefits, showed a misunderstanding of the
matter, contending that the affidavit should have been considered.
We review whether remand is necessary de novo. Hyde v. Bowen, 823 F.2d
456, 458-59 (11th Cir. 1987). To be entitled to remand to the SSA for
consideration of newly discovered evidence, the claimant must show that “(1) new,
noncumulative evidence exists, (2) the evidence is material such that a reasonable
probability exists that the new evidence would change the administrative result,
and (3) good cause exists for the [claimant’s] failure to submit the evidence at the
appropriate administrative level.” See Falge, 150 F.3d at 1323. The new evidence
must relate to the time period on or before the date of the ALJ’s decision. See 20
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C.F.R. § 404.970(b). Because evidence submitted to the AC concerned Gibbs’s
condition after the ALJ’s final decision, it was not material to the decision, and
remand is not required.
AFFIRMED.
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