USCA11 Case: 21-11066 Date Filed: 01/18/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11066
Non-Argument Calendar
____________________
DAVINA HOWZE,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:19-cv-01944-CLM
____________________
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2 Opinion of the Court 21-11066
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Davina Howze appeals the district court’s order granting
summary judgment in favor of the Commissioner of the Social Se-
curity Administration (the Commissioner). The district court con-
cluded that the administrative law judge (ALJ) properly denied
Howze’s claims for supplemental security income (SSI) and disabil-
ity insurance benefits (DIB). She argues, first, that the Appeals
Council erred in determining that a 2019 physical capacities evalu-
ation form (the July 2019 form) by Dr. Vishala Chindalore submit-
ted after the ALJ’s decision, was not chronologically relevant. Sec-
ond, she argues that, in light of the July 2019 form, substantial evi-
dence did not support the ALJ’s denial of benefits. Lastly, she ar-
gues that the district court’s alternative finding that the July 2019
form was not material was an impermissible post hoc rationaliza-
tion of the Appeals Council’s decision, which did not reach that is-
sue.
I.
Howze filed applications for SSI and DIB in June 2016, alleg-
ing a disability onset date of August 13, 2015. In her two disability
reports, she stated that her conditions of lupus, diabetes, high blood
pressure, and rheumatoid arthritis limited her ability to work. Be-
cause disability examiners denied her applications initially and on
reconsideration, Howze requested a hearing before the ALJ.
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21-11066 Opinion of the Court 3
The medical evidence predating Howze’s applications
shows that, in 2013, Howze began visiting Dr. Chindalore, who di-
agnosed her with lupus. Howze routinely visited Dr. Chindalore
over the next several years, including the period at issue in her dis-
ability applications. Howze often described her symptoms as mod-
erate in severity and Dr. Chindalore reported that her symptoms
were stable and doing well with medication.
The ALJ held a hearing in September 2018, and in Novem-
ber 2018, the ALJ denied Howze’s applications, concluding that she
was not disabled and thus did not qualify for either DIB or SSI.
Howze administratively appealed to the Appeals Council. She ar-
gued, inter alia, that new and material evidence supported her
claim. Howze submitted the July 2019 form 1 from Dr. Chindalore,
which placed several limitations on Howze’s ability to work due to
her impairments. Dr. Chindalore indicated on the July 2019 form
that these limitations existed at least as far back as August 13, 2015.
She did not, however, refer to any past evaluations or findings, nor
did Howze submit further evidence indicating that the July 2019
form was based on Dr. Chindalore’s earlier findings
The Appeals Council denied Howze’s administrative appeal.
It stated that the July 2019 form did not relate to the period at issue,
and therefore did not affect the ALJ’s decision finding that Howze
1Howze also submitted additional evidence besides the July 2019 form to the
Appeals Council, which the Appeals Council did not consider. However, she
does not appeal those determinations.
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4 Opinion of the Court 21-11066
was not disabled from August 13, 2015 through November 14,
2018. Subsequently, Howze appealed to the district court and ar-
gued that the Appeals Council erred by failing to consider the July
2019 form as new, chronologically relevant, and material evidence.
The district court affirmed the denial of benefits. In relevant part,
the district court concluded that the Appeals Council correctly
found the July 2019 form chronologically irrelevant. The district
court also affirmed on an alternative basis that even if the July 2019
form was chronologically relevant, it was not material. Howze
timely appealed.
II.
Turning to Howze’s first issue on appeal, she argues that the
Appeals Council erred because the July 2019 form was chronologi-
cally relevant because it was based on her conditions before the ALJ
hearing and was submitted by Dr. Chindalore, who treated her
during the period for which she sought benefits. Thus, she con-
tends, relying on Washington v. Social Security Administration,
Commissioner, 806 F.3d 1317 (11th Cir. 2015) (per curiam), that
her case is distinguishable from cases in which we have held that
medical records submitted after the ALJ’s decision were not chron-
ologically relevant because the evaluating physician did not review
past records. See, e.g., Hargress v. Soc. Sec. Admin., Comm’r, 883
F.3d 1302, 1310 (11th Cir. 2018) (per curiam). Further, she asserts,
for the first time on appeal, that the Appeals Council erred in ap-
plying a new standard of review enacted as a result of recent rule
changes: whether there was a “reasonable probability” that the
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21-11066 Opinion of the Court 5
new evidence would change the result, instead of the “reasonable
possibility” standard required by the rules in effect at the time
Howze filed her claim.
In a social security case, we review the agency’s legal con-
clusions de novo, and its factual findings to determine whether
they are supported by substantial evidence. Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). However,
as a general principle, we will not address an argument in a social
security appeal that was not raised in the district court. Crawford
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per
curiam).
Generally, a claimant may present evidence at each stage of
the agency’s administrative review process. See Hargress, 883 F.3d
at 1308. “If a claimant presents evidence after the ALJ’s decision,
the Appeals Council must consider it if it is new, material, and
chronologically relevant.” Id. at 1309. Evidence is chronologically
relevant if it relates to the period on or before the ALJ’s hearing
decision. Id. Whether evidence meets the new, material, and
chronologically relevant standard is a question of law subject to de
novo review. Washington, 806 F.3d at 1321. The Appeals Council
commits reversible error when it improperly refuses to consider
evidence. Id. “[M]edical opinions based on treatment occurring
after the date of the ALJ’s decision may be chronologically rele-
vant.” Id. at 1322.
In Washington, the claimant submitted to the Appeals
Council a psychologist’s evaluation and accompanying opinion
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6 Opinion of the Court 21-11066
about the degree of the claimant’s mental limitations, which were
prepared seven months after the ALJ’s decision. Id. at 1319. We
concluded that the psychologist’s materials were chronologically
relevant because: (1) the claimant described his mental symptoms
during the relevant period to the psychologist, (2) the psychologist
had reviewed the claimant’s mental health treatment records from
that period, and (3) there was no evidence of the claimant’s mental
decline since the ALJ’s decision. Id. at 1322–23 (limiting its holding
to “the specific circumstances of this case”).
But we have also held that the Appeals Council correctly de-
clined to consider new medical records because the records were
“about a later time” than the ALJ’s decision, and, therefore, did not
affect the decision about whether the claimant was disabled during
the relevant period. Hargress, 883 F.3d at 1309. In Hargress, we
held that the new records were not chronologically relevant be-
cause nothing in them indicated that the doctor, who did not treat
the claimant during the relevant period, had reviewed the appel-
lant’s medical records, or that the information in the new records
related to the period at issue. Id. at 1309–10.
As an initial matter, Howze has waived her argument that
the Appeals Council applied the wrong standard of review by fail-
ing to raise it before the district court. Crawford, 363 F.3d at 1161.
Accordingly, we decline to consider this argument for the first time
on appeal.
Further, the Appeals Council did not err in determining that
Dr. Chindalore’s July 2019 form was not chronologically relevant.
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21-11066 Opinion of the Court 7
Dr. Chindalore completed the July 2019 form over eight months
after the ALJ’s decision. Like in Hargress, the July 2019 form was
“about a later time” than the ALJ’s decision, and nothing indicated
that Dr. Chindalore relied on Howze’s earlier medical records in
concluding that her findings dated back to August 13, 2015. See
883 F.3d at 1309–10. Howze is correct that, unlike in Hargress, Dr.
Chindalore was her treating physician from the relevant period.
Nevertheless, that decision did not indicate that the identity of the
doctor was dispositive; it was instead one factor we considered in
determining that the post-hearing evidence was not based on med-
ical records from the relevant period. See id. at 1310. Here, even
though Dr. Chindalore was her treating physician, “nothing in the
form or any other documents indicated that [she] evaluated
[Howze’s] past medical records when forming [her] opinion.” Id.
Further, Howze’s case is distinguishable from Washington, which
we expressly limited to its facts and where the physician did review
medical records from the relevant period in forming his opinion.
See 806 F.3d at 1322–23. Accordingly, the new evidence was not
chronologically relevant, and the Appeals Council was not re-
quired to consider it. Hargress, 883 F.3d at 1310. Therefore, we
affirm the Appeals Council’s decision not to consider the July 2019
form.
III.
Next, Howze argues that substantial evidence does not sup-
port the ALJ’s decision when the July 2019 form is considered.
However, this argument hinges on this court finding that the
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8 Opinion of the Court 21-11066
Appeals Council should have considered the July 2019 form in the
first place. As noted above, the Appeals Council properly declined
to consider the July 2019 form because it was not chronologically
relevant. Therefore, Howze’s argument that the ALJ’s decision is
not supported by substantial evidence when considering the July
2019 form fails. 2
IV.
Lastly, Howze argues that the district court erred by affirm-
ing the Appeals Council on a post hoc rationalization. The Su-
preme Court stated the rule for post hoc rationalization of agency
action in SEC v. Chenery Corp., 67 S. Ct. 1575, 1577 (1947)
(Chenery II) “that a reviewing court, in dealing with a determina-
tion or judgment which an administrative agency alone is author-
ized to make, must judge the propriety of such action solely by the
grounds invoked by the agency.” Howze contends that the district
court conducted a post hoc rationalization by supplementing its de-
cision with a finding that the July 2019 form was also not material,
in addition to finding it was not chronologically relevant. Howze
relies on our unpublished decision in Baker v. Commissioner of
2 Howze also suggests that the ALJ decision is not based on substantial evi-
dence because the ALJ did not ask the vocational expert any questions during
the hearing. Because Howze cites to no authority for this argument, she has
abandoned it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (“We have long held that an appellant abandons a claim when
he either makes only passing references to it or raises it in a perfunctory man-
ner without supporting arguments and authority.”).
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21-11066 Opinion of the Court 9
Social Security in further support of this argument. 384 F. App’x
893, 896 (11th Cir. 2010). In Baker, we did refer to the rule articu-
lated above in Chenery II that a reviewing court “may not accept
appellate counsel’s post hoc rationalization for agency actions.” Id.
However, we further noted that, on an appeal of a district court
order in a social security case, our review is limited to the agency’s
decision. Id; see also Crawford, 363 F.3d at 1158 (“We review the
Commissioner’s decision to determine if it is supported by substan-
tial evidence and based on proper legal standards.”). We need not
address the district court’s reasoning as our review in this appeal is
limited to the Appeals Council’s decision. Accordingly, we affirm
the district court’s order upholding the Commissioner’s denial of
benefits.
AFFIRMED.