[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ .U .S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 22, 2006
No. 06-12693
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00453-CV-G-NE
DEBORAH M. SNEED,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 22, 2006)
Before BIRCH, BLACK and FAY, Circuit Judges.
PER CURIAM:
Deborah Sneed appeals the district court’s order affirming the
Commissioner’s denial of her application for disability insurance benefits, 42
U.S.C. § 405(g). On appeal, Sneed argues that (1) the Appeals Council erred in
failing to properly consider new evidence, (2) the administrative law judge (“ALJ”)
failed to fully and fairly develop the record regarding Sneed’s mental condition,
(3) the ALJ failed to properly consider the effects of the combination of Sneed’s
impairments, and (4) the Appeals Council did not give proper weight to the records
and opinions of the treating physician.
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. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.
1997). We “may not decide the facts anew, reweigh the evidence, or substitute
[its] judgment for that of the Commissioner,” but rather we “must defer to the
Commissioner’s decision if it is supported by substantial evidence.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (internal citations omitted). In
addition, we will not consider an argument that a claimant did not raise before the
administrative agency or the district court. Kelley v. Apfel, 185 F.3d 1211, 1215
(11th Cir. 1999).
To establish disability, a claimant must first show that she became disabled
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during the time for which she was insured by Social Security. 20 C.F.R.
§ 404.131(a); Ware v. Schweiker, 651 F.2d 408, 411 n.3 (5th Cir. Unit A July
1981). The claimant must demonstrate disability on or before the last date for
which she was insured. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
The ALJ must evaluate the following five criteria in deciding whether a claimant is
entitled to social security disability: (1) “[i]s the individual performing gainful
activity”; (2) “[d]oes she have a severe impairment”; (3) “[d]oes she have a severe
impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part
404, Subpart P, Appendix 1; (4) “[c]an she perform her past relevant work”; and
(5) “[b]ased on her age, education, and work experience, can she perform other
work of the sort found in the national economy.” Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004).
1. Appeals Council’s Refusal to Consider New Evidence
On appeal, Sneed argues that the Appeals Council erred in failing to
consider new evidence that she presented and to review or remand her case. She
contends that she had good cause for failing to submit medical records, tests, and
opinions of Dr. Craze and cardiologists Drs. Hartley and Wright1 because they
1
Although Sneed complains at this point in the brief about the omission from the record of
the medical records of Dr. Craze and “cardiologists Drs. Woodard and Wright,” which “were not
generated until after the hearing,” it appears that she actually means Drs. Hartley and Wright. In
her Statement of the Facts, Sneed notes that she submitted Dr. Craze’s record, including the October
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were not generated until after the hearing. These documents provided
noncumulative evidence supporting her claims of weakness, pain, swelling of the
feet, mental depression, and confusion. Sneed continues by arguing that
Dr. Craze’s report establishes disability.
The Appeals Council has discretion not to review the ALJ’s denial of
benefits; however, the Appeals Council must consider new and material evidence
in making its decision whether to review an ALJ’s decision. Falge v. Apfel, 150
F.3d 1320, 1324 (11th Cir. 1998). The Appeals Council must evaluate new and
material evidence submitted to it if the evidence relates to the period on or before
the date of the ALJ’s hearing decision. Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing 20 C.F.R. §§ 404.970(b),
416.1470(b)). The Appeals Council must show in its written denial of review that
it has adequately evaluated the new evidence. Epps v. Harris, 624 F.2d 1267, 1273
(5th Cir. 1980).
Because the Appeals Council’s refusal to consider the submission of new
evidence before denying review amounts to an error of law, that decision is subject
to judicial review. See Keeton, 21 F.3d at 1066. If the Appeals Council has
already issued a final decision denying review, however, its refusal to reopen the
2003 referred consults to cardiologists Drs. Hartley and Wright. Unlike the reports from
Drs. Hartley and Wright, Dr. Woodard’s report was before the ALJ.
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case is generally not subject to judicial review under 42 U.S.C. § 405(g). Cash v.
Barnhart, 327 F.3d 1252, 1256-57 (11th Cir. 2003) (recognizing exception when
claimant raises colorable constitutional issue).
In this case, the Appeals Council found no reason to reopen and change its
January 8, 2004, decision based on the evidence from Dr. Craze that was
submitted. Although Sneed’s attorney claimed that he had sent this evidence
beforehand, that argument goes to the merits of the Appeals Council’s decision to
deny the motion to reopen. The Appeals Council considered the evidence
submitted before its initial denial of review, and we lack jurisdiction to review the
Appeals Council’s refusal to reopen.
2. ALJ’s Obligation to Develop the Record on Sneed’s Mental Condition
Sneed complains that, although she testified to behavior seemingly
consistent with depression, the ALJ did not request any consultative exams.
The ALJ is under no obligation to seek independent, additional expert
medical testimony before concluding that an impairment is not severe. Wilson v.
Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999). When the record is based upon the
opinions of several physicians, there is no need for additional expert testimony. Id.
In any case where there is evidence that indicates the existence of a mental
impairment, the Commissioner may determine that the claimant is not under a
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disability, only if the Commissioner has made “every reasonable effort to obtain
the opinion of a qualified psychiatrist or psychologist.” McCall v. Bowen, 846
F.2d 1317, 1320 (11th Cir. 1988) (quoting 42 U.S.C. § 421(h)). McCall interprets
§ 421(h), which requires an ALJ to order a psychological consultation where there
is evidence of a mental impairment. The Third Circuit has held that the normal
requirement to order a psychiatric consult pursuant to § 421(h) does not apply to
cases falling under the limited exception found in § 421(d), or cases heard by an
ALJ. Plummer v. Apfel, 186 F.3d 422, 433 (3rd Cir. 1999) (holding that § 421(h)
consultation requirement applies only to cases falling under § 421(a), (c), (g), (I) at
the initial and reconsideration levels). In such cases, an ALJ has regulatory
flexibility to evaluate mental impairments to determine their severity. Id.; see also
20 C.F.R. § 404.1520a (evaluation of mental impairments).
As an initial matter, we must determine whether Sneed has properly
preserved this issue for review. Although Sneed did not raise this issue as a
separate issue before the district court, she did argue that the Commissioner did not
consider “the effects of Dr. Craze’s opinions regarding Sneed’s marked restrictions
in ability to respond to customary work pressures, or to maintain attention,
concentration or pace for at least two hours.” She continues that “[t]here is no
evidence that the [Commissioner] considered this impairment in combination with
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the physical impairments.” Thus, we conclude that Sneed preserved the issue.
Nevertheless, the only evidence Sneed cites is evidence that was presented to
the Appeals Council after it denied review. Not only was this evidence not before
the ALJ, Dr. Craze did not make this report until December 9, 2003, four months
after the ALJ’s August 8, 2003, decision. It is thus unclear how the ALJ erred in
failing to consider this evidence and to request any consultative examinations
based upon it before determining that Sneed did not suffer from a severe mental
impairment. See 20 C.F.R. § 404.131(a) (“To establish a period of disability, [the
claimant] must have disability insured status in the quarter in which [the claimant]
becomes disabled or in a later quarter in which [the claimant is] disabled.”).
The references to Sneed’s depression that were before the ALJ are only
sporadic and indicate no severe mental disorders. Specifically, Sneed testified that
she was tearful and that she was on Zoloft, which is an antidepressant. Medical
records indicate that she was also on Xanax, which treats anxiety, and that she had
a “fair prognosis” from her diagnosis of depression. These brief references to
depression, which was apparently being treated with medication, were insufficient
to trigger the ALJ’s duty to obtain a psychological consultative report.
3. ALJ’s Consideration of Effects of Combination of Sneed’s Impairments
Sneed next argues that the ALJ failed to evaluate whether the combination of
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her impairments would be disabling due to her limited ability to engage in the basic
work activities. Specifically, she contends that the ALJ failed to address the
effects of Sneed’s apparent arthritis, her physiological age, the low ejection
fraction initially found following the heart attack, and Sneed’s fatigue and
weakness.
When a claimant alleges several impairments, the ALJ has a duty to consider
the impairments in combination and to determine whether the combined
impairments render the claimant disabled. Jones v. Dep’t of Health & Human
Servs., 941 F.2d 1529, 1533 (11th Cir. 1991). The ALJ can satisfy this duty by
stating that he considered whether the claimant suffered from any impairment or
combination of impairments. Id.
The ALJ’s determination in this case evidences consideration of the
combined effect of Sneed’s impairments. The ALJ twice noted Sneed’s arthritis
and depression, as well as her “allegations of disabling pain and other symptoms,”
including her testimony that she tired easily and suffered from swelling in her leg
and back. The ALJ made no finding as to Sneed’s physiological age but did note
her date of birth and found that she was “closely approaching advanced age. The
ALJ did not specifically note Sneed’s low ejection fraction but twice noted that the
record showed “good results” from the bypass surgery. The ALJ concluded that
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Sneed did not have “an impairment or combination of impairments listed in, or
medically equal to one listed in [20 C.F.R. Pt. 404, Subpt. P, App. 1].”
Although Sneed complains that the ALJ did not consider her physiological
age, part of the evidence that her health was more consistent with someone 55
years old or older was from Dr. Craze’s report from December 2003. As stated
above, this evidence was not before the ALJ, and we lack jurisdiction to review the
Appeals Council’s decision not to reopen the case to make this evidence part of the
record. Dr. Henderson made the same finding regarding Sneed’s physiological
age. The Appeals Council made Dr. Henderson’s statement part of the record after
the ALJ’s decision was rendered. Dr. Henderson’s letter was dated June 2003,
however, and there was no evidence of Sneed’s physiological age on or before
September 30, 2001, her deadline for onset of disability. We conclude that the
ALJ’s determination evidences consideration of the combined effect of Sneed’s
impairments, in light of all the evidence that was properly before the ALJ.
4. Weight Given to Records and Opinion of Treating Physician
Sneed next contends that the Appeals Council erred in dismissing the
opinions of Dr. Craze, Sneed’s treating physician, because Dr. Craze related her
opinions to the period following recuperation from Sneed’s triple bypass.
As discussed above, Dr. Craze’s records were not properly before the ALJ
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and were not submitted to the Appeals Council until after it rendered its initial
decision denying review. Under 42 U.S.C. § 405(g), we lack jurisdiction to review
the Appeals Council’s decision not to reopen the case, in light of Dr. Craze’s
opinions and records.
Upon review of the administrative and district court records and the briefs
on appeal, we affirm.
AFFIRMED.
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