USCA11 Case: 22-10462 Document: 37-1 Date Filed: 04/12/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10462
Non-Argument Calendar
____________________
JEREMIAH WADE MCMULLINS,
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. 4:20-cv-00633-CLM
____________________
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2 Opinion of the Court 22-10462
Before WILSON, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Jeremiah McMullins appeals his denial of disability insurance
benefits and supplemental security income, which was
subsequently affirmed at a Social Security Administration hearing
and in the district court below. We too affirm the denial.
McMullins has waived and forfeited all his arguments on appeal.
Even if he had not, we would hold that the evidence was neither
material nor chronologically relevant, which are each independent
grounds for affirming.
I.
McMullins suffers from several mental health issues relating
to bipolar disorder, agoraphobia, and obsessive-compulsive
disorder. He stated that he has not held a paid position since 2010;
instead, he cleans the house and cares for his children and pets as
he is able. After a long history of trying to treat his conditions, he
applied for both disability insurance benefits and supplemental
security income in 2016, alleging that he became disabled on May
1, 2014. The parties do not dispute that McMullins needs to show
that he was disabled before December 31, 2014 to receive disability
insurance benefits, and after his 2016 application to receive
supplemental security income.
After receiving a denial letter, McMullins requested and
received a hearing before an administrative law judge. He heard
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22-10462 Opinion of the Court 3
testimony from both McMullins and a vocational expert and
consulted copious medical records. He determined in February
2019 that while McMullins’s conditions were severe enough to
disqualify him from any past relevant work, they had never risen
to the level of the listed impairments, and jobs existed that could
accommodate him. Because McMullins did not qualify as disabled,
he was not eligible to receive benefits.
Later, McMullins submitted additional evidence to the
Social Security Administration’s Appeals Council. Relevant here
are two sets of treatment notes. One is from Dr. Feist, who had
seen McMullins on at least nine occasions between December 2014
and the February 2019 hearing. Dr. Feist saw McMullins in April
2019, adjusted his medication plan, and filled out a one-page
preprinted questionnaire stating that several limitations on
McMullins’s ability to work related back to May 1, 2014. The other
set of notes is from Dr. Nichols in late 2019. She reached similar
conclusions to Dr. Feist by filling out a similar form, but she did
not review any medical records from 2010 through 2016. She had
never previously interacted with McMullins.
The Council denied McMullins’s request for appellate
review, holding that this evidence was not chronologically
relevant. McMullins appealed to the district court, which affirmed
the denial of benefits. It noted that McMullins had forfeited any
arguments that the additional evidence was material—and that
even if he had not, the evidence was immaterial.
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4 Opinion of the Court 22-10462
McMullins timely appealed to this court. After filing his
initial brief, McMullins’s counsel passed away. He retained new
counsel to author his reply brief. While the initial brief advanced
four arguments, the reply brief states that “THE ONLY ISSUE IS
WHETHER THE APPEALS COUNCIL FAILED TO CONSIDER
NEW EVIDENCE.”
II.
We have an obligation to review, de novo, whether
evidence first presented to the Appeals Council is “new, material,
and chronologically relevant.” Washington v. Soc. Sec. Admin.,
Comm’r,
806 F.3d 1317, 1321 (11th Cir. 2015) (quotation omitted).
If “the Appeals Council erroneously refuses to consider evidence,
it commits legal error and remand is appropriate.”
Id.
III.
Given the affirmative waivers in the reply brief, we consider
only McMullins’s argument that the Appeals Council failed to
consider his additional evidence. United States v. Campbell,
26
F.4th 860, 871–72 (11th Cir. 2022).
As Washington notes, the evidence must be new (that is, not
cumulative), material, and chronologically relevant for the Appeals
Council to consider it. Id. at 1320, 1321 n.6. But McMullins’s initial
brief makes no arguments that the evidence is material—indeed, it
quotes the district court’s holding that McMullins had forfeited his
materiality arguments there through inaction. While these
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22-10462 Opinion of the Court 5
arguments appear in the reply brief, that is too late according to
our precedents. United States v. Levy,
379 F.3d 1241, 1244 (11th
Cir. 2004). So we conclude that McMullins has forfeited or waived
every issue on appeal, which is a sufficient reason to affirm.
Even if McMullins’s initial brief had not forfeited this issue,
we would still conclude that the additional evidence is immaterial.
Washington, which McMullins relies heavily on, likewise involved
two doctors’ post-hearing statements. One of them was excluded
as the “portion of his questionnaire listing Mr. Washington’s
symptoms and medications is cumulative because this evidence
was already in the record.” Washington,
806 F.3d at 1323 n.9. The
“only noncumulative information in the questionnaire is his
opinion that Mr. Washington is disabled,” but “we are concerned
with the doctors’ evaluations of the claimant’s condition and the
medical consequences thereof, not their opinions of the legal
consequences of his condition.”
Id. (quotation omitted and
alteration adopted).
So too here. Another doctor at Dr. Feist’s clinic had already
submitted an opinion questionnaire stating that McMullins was
disabled, which the administrative law judge considered—and
discarded—at the hearing given the weight of other medical
evidence. As for Dr. Nichols, McMullins concedes that she did not
consider records between 2010 and 2014 (when McMullins stopped
working to when his insurance eligibility terminated), meaning her
opinion is irrelevant to his disability insurance benefits claim. She
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6 Opinion of the Court 22-10462
did consider medical evidence within the timeframe for his
supplemental security income claim. But McMullins also concedes
that she is an examining physician. Statements from examining
physicians are afforded less weight than the treating physician
evidence that the administrative law judge considered at the
hearing.
Id. at 1322 n.7. And an administrative law judge is “free
to reject the opinion of any physician when the evidence supports
a contrary conclusion”—particularly if they only offer
impermissibly conclusory statements. Sryock v. Heckler,
764 F.2d
834, 835 (11th Cir. 1985); see also Schink v. Comm’r of Soc. Sec.,
935 F.3d 1245, 1260 (11th Cir. 2019).
To be material, there must be a “reasonable probability”
that evidence “would change the administrative results.”
Washington,
806 F.3d at 1322. In Washington, one examining
doctor’s word against another’s about whether an impairment was
enough to automatically result in a disability created a material
dispute.
Id. at 1322. We simply do not have that situation here:
the vocational expert’s testimony, alongside treating physician
evidence (including past statements from Dr. Feist) each suggest
that there were jobs in the national economy that McMullins could
perform.
And even if the evidence was material, it was not
chronologically relevant. We have found chronological relevance
when, for example, a petitioner presented post-hearing evidence of
a pre-hearing surgery that was not previously considered. Pupo v.
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22-10462 Opinion of the Court 7
Comm’r, Soc. Sec. Admin.,
17 F.4th 1054, 1063 (11th Cir. 2021).
And in Washington, we said that doctors who examined patients
after the hearing could prepare chronologically relevant notes.
806
F.3d at 1322–23. But we later limited “its holding to the specific
circumstances” of that case—to wit, there must be “no evidence of
the claimant’s mental decline since the ALJ’s decision.” Hargress
v. Soc. Sec. Admin., Comm’r,
883 F.3d 1302, 1309 (11th Cir. 2018)
(quotation omitted).
Here, there is evidence that McMullins’s condition had
declined by the time of Dr. Feist’s consultation with him (which
preceded Dr. Nichols’s). For example, before the hearing
McMullins expressly and repeatedly ruled out suicidal thoughts,
but he reported them after the hearing. Because these post-hearing
opinions are colored by the doctors’ post-hearing consideration of
McMullins’s post-hearing mental health, they are not
chronologically relevant. An opinion “one year later may be
relevant to whether a deterioration in” a patient’s condition
subsequently entitled him to benefits, but “it is simply not
probative of any issue in this case.” Wilson v. Apfel,
179 F.3d 1276,
1279 (11th Cir. 1999).
* * *
We AFFIRM the district court’s decision to affirm the Social
Security Administration’s denial of benefits to McMullins.
