Latashar Reynolds v. Commissioner of Social Security , 457 F. App'x 850 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 8, 2012
No. 11-10260
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:09-cv-00599-KD-B
LATASHAR REYNOLDS,
lllllllllllllll llllllllllllllllllllPlaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllll lllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(February 8, 2012)
Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.
PER CURIAM:
Latashar Reynolds appeals the district court’s order affirming the
Commissioner of the Social Security Administration’s (“the Commissioner”)
denial of disability insurance benefits (“DIB”) and supplemental security income
(“SSI”), 42 U.S.C. §§ 405(g), 1383(c)(3). Reynolds argues on appeal that the
administrative law judge (“ALJ”) applied the wrong severity standard in finding
that her scoliosis and depression were not severe impairments. Liberally
construing her pro se brief, Reynolds also argues that the ALJ erred in failing to
remand her case to the Commissioner under the sixth sentence of 42 U.S.C. §
405(g) based on new evidence first presented to the district court.
I.
We review a Commissioner’s decision to determine whether “it is supported
by substantial evidence and based on the proper legal standards.” Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (internal quotation
marks omitted). “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. (internal quotation marks omitted). “We may not decide facts
anew, reweigh the evidence, or substitute our judgment for that of the
Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (internal
quotation marks and alteration omitted). Even if the evidence preponderates
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against the Commissioner’s factual findings, we must affirm if substantial
evidence supports the decision. Crawford, 363 F.3d at 1158-59. We review the
decision of the ALJ as the Commissioner’s final decision when the ALJ denies
benefits and the Appeals Council denies review of the ALJ’s decision. Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The Social Security Regulations outline a five-step process used to
determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). Under the
first step, the claimant has the burden to show that he is not currently engaged in
substantial gainful activity. Id. § 404.1520(a)(4)(i). Next, the claimant must show
that he has a severe impairment. Id. § 404.1520(a)(4)(ii). He then must attempt to
show that the impairment meets or equals the criteria contained in one of the
Listings of Impairments. Id. § 404.1520(a)(4)(iii). If the claimant cannot meet or
equal the criteria, he must show that he has an impairment which prevents him
from performing his past relevant work. Id. § 404.1520(a)(4)(iii) and (iv). Once a
claimant establishes that he cannot perform his past relevant work due to some
severe impairment, the burden shifts to the Commissioner to show that significant
numbers of jobs exist in the national economy which the claimant can perform. Id.
§ 404.1520(a)(4)(v).
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An impairment is “severe” if it “significantly limits [a] claimant’s physical
or mental ability to do basic work activities.” Crayton v. Callahan, 120 F.3d
1217, 1219 (11th Cir. 1997); 20 C.F.R. § 404.1520(c). “Basic work activities”
include: “[p]hysical functions such as walking, standing, sitting, lifting, pulling,
reaching, carrying or handling; [c]apacities for seeing, hearing and speaking;
[u]nderstanding, carrying out and remembering simple instructions; [u]se of
judgment; [r]esponding appropriately to supervision, coworkers and usual work
situations; and [d]ealing with changes in a routine work setting.” 20 C.F.R.
§ 404.1521(b).
Step two is a threshold inquiry. It allows only claims based on the most
trivial impairments to be rejected. The claimant’s burden at step two is
mild. An impairment is not severe only if the abnormality is so slight
and its effect so minimal that it would clearly not be expected to
interfere with the individual’s ability to work, irrespective of age,
education or work experience.
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
The Social Security regulations require an additional “special technique”
when evaluating the severity of mental impairments, which requires the ALJ to
consider four functional areas: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R.
§ 404.1520a(a)(1), (c)(3)-(4). Under this analysis,
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[i]f we rate the degree of your limitation in the first three functional
areas as “none” or “mild” and “none” in the fourth area, we will
generally conclude that your impairment(s) is not severe, unless the
evidence otherwise indicates that there is more than a minimal limitation
in your ability to do basic work activities.
Id. § 404.1520a(d)(1). Further, in the context of determining a claimant’s RFC
when the claimant alleges mental impairment, we have held that the ALJ must
“complete a [Psychiatric Review Technique Form (“PRTF”) ] and append it to the
decision, or incorporate its mode of analysis into his findings and conclusions.
Failure to do so requires remand.” Moore v. Barnhart, 405 F.3d 1208, 1214 (11th
Cir. 2005); see 20 C.F.R. § 404.1520a(e)(2).
Reynolds presented no medical evidence documenting her diagnosis or
treatment for scoliosis or the functional limitations that the condition caused her.
Thus, she failed to show that her scoliosis could be expected to interfere with her
ability to work. Furthermore, the only medical evidence supporting her claim of
depression was one doctor’s report which diagnosed her with depression that
could be expected to respond favorably to treatment. She provided no testimony
regarding her depression or its functional limitations. We note, too, that the ALJ
properly analyzed the alleged depression using the “special technique” required by
the regulations and circuit caselaw. Because substantial evidence supports the
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ALJ’s finding that Reynolds’s scoliosis and depression were not severe
impairments, we affirm as to this issue.
II.
A district court’s denial of a motion to remand based on new evidence is
reviewed de novo. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir.
2001). The sixth sentence of 42 U.S.C. § 405(g) provides that a reviewing court
may remand a Social Security case to the agency for consideration of new
evidence that previously was unavailable. 42 U.S.C. § 405(g). To demonstrate
that a remand is needed under sentence six, “the claimant must establish that:
(1) there is new, noncumulative evidence; (2) the evidence is ‘material,’ that is,
relevant and probative so that there is a reasonable possibility that it would change
the administrative result; and (3) there is good cause for the failure to submit the
evidence at the administrative level.” Caulder v. Bowen, 791 F.2d 872, 877 (11th
Cir. 1986).
The non-cumulative requirement is satisfied by the production of new
evidence when no similar evidence is contained in the administrative record.
Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir. 1988). For evidence to be new
and noncumulative, it must relate to the time period on or before the date of the
ALJ’s decision. See Wilson v. Apfel, 179 F.3d 1276, 1278–79 (11th Cir. 1999)
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(holding that a doctor’s opinion one year after the ALJ decision was not probative
as to any issue on appeal). By contrast, evidence of a condition that existed prior
to the ALJ hearing, but was not discovered until after the ALJ hearing, is new and
noncumulative. See Vega, 265 F.3d at 1218-19 (holding that remand was
warranted because a doctor discovered and surgically corrected a herniated disk
after the ALJ’s decision); see also Hyde v. Bowen, 823 F.2d 456, 459 & n.4 (11th
Cir. 1987) (holding that the new evidence provided an objective medical
explanation for Hyde’s previously unexplained complaints of pain).
Reynolds’s medical records regarding a pregnancy and miscarriage are not
probative because they do not contain any information relating to her alleged
impairments and do not relate to the time period on or before the ALJ’s decision.
Because Reynolds’s other new evidence was likewise not material, and she did not
show good cause for failing to present it during the administrative proceedings, we
conclude that the evidence did not warrant remand under the sixth sentence of
§ 405(g).
For the above-stated reasons, we affirm the Commissioner’s denial of DIB
and SSI benefits.
AFFIRMED.
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