           Case: 17-11683   Date Filed: 11/06/2017   Page: 1 of 16


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11683
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:16-cv-01079-CLS



JOYCE HARGRESS,

                                                            Plaintiff-Appellant,

                                   versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (November 6, 2017)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:
              Case: 17-11683      Date Filed: 11/06/2017    Page: 2 of 16


      Joyce Hargress appeals the district court’s decision affirming the denial of

her application for disability insurance benefits and supplemental security income.

See 42 U.S.C. §§ 405(g), 1383(c)(3). After careful review, we affirm.

                            I. BACKGROUND FACTS

      In May 2013, Hargress applied for disability benefits and alleged a disability

onset date of January 21, 2013 due to her type II diabetes, excessive tiredness, and

anxiety. After an August 12, 2014 hearing, the Administrative Law Judge (“ALJ”)

determined Hargress was not disabled and denied her applications for benefits.

A.    ALJ’s Decision

      Applying the five-step evaluation process, the ALJ found that: (1) Hargress

was insured through December 31, 2017 and had not engaged in substantial gainful

activity since January 21, 2013; (2) Hargress had the severe impairments of morbid

obesity, diabetes mellitus, hypertension, osteoarthritis of the left hip and left leg,

and diffuse disc bulges of the lumbar spine resulting in mild foraminal narrowing;

(3) Hargress did not have an impairment or combination of impairments that met

or medically equaled the severity of any of the listed impairments; (4) Hargress

had the residual functional capacity (“RFC”) to perform a full range of sedentary,

unskilled work, but was unable to perform her past relevant work as a department

manager of a retail store or battery parts assembler because they are not unskilled

work; and (5) considering Hargress’s age (40), high school education, work


                                            2
                Case: 17-11683   Date Filed: 11/06/2017   Page: 3 of 16


experience, and RFC, the Medical-Vocational Guidelines (“the vocational grids”)

mandated a finding of “not disabled.” Thus, the ALJ denied Hargress’s

applications.

      In assessing Hargress’s RFC, the ALJ determined: (1) that Hargress’s

medically determinable impairments could reasonably be expected to cause her

alleged symptoms; and (2) that her statements concerning the intensity,

persistence, and limiting effects of those symptoms “are not entirely credible for

the reasons explained in this decision.” The ALJ noted, among other things, that:

(1) Hargress had never received emergency care or hospitalization for her diabetes

mellitus or her musculoskeletal impairments; (2) she failed to mention

musculoskeletal impairments in her disability report; (3) she described her pain as

mild in some medical records, and reported that she was capable of lifting, sitting,

standing, going up and down stairs, driving a car, reaching overhead, doing

housework, and dressing herself; (4) based on diagnostic imaging, her degenerative

joint disease and bilateral foraminal narrowing were described as mild and her disc

bulging was described as diffuse; (5) apart from a positive straight left-sided leg

raise test, she had not consistently produced abnormal musculoskeletal or

extremity examinations and had a full range of motion with no evidence of

instability; and (6) the record reflected that, when compliant with medication and

treatment, Hargress’s diabetes mellitus was stable.


                                          3
              Case: 17-11683    Date Filed: 11/06/2017    Page: 4 of 16


      In evaluating the medical source opinions, the ALJ gave little weight to the

opinion of one of Hargress’s treating physician, Dr. Ochuko Odjegba, about

Hargress’s physical capacities. Dr. Odjegba completed a “Physical Capacities

Form,” in which he indicated, inter alia, that Hargress, due to her back ache and

hip pain, could sit for less than 30 minutes, stand for less than 15 minutes, and

walk for less than 15 minutes at one time, that she could perform a task for only 30

minutes before needing a rest or break, and that he expected Hargress would need

to lie down, sleep, or sit with her legs elevated for 6 hours in an 8-hour daytime

period. The ALJ discounted Dr. Odjegba’s opinion on the form because it was

inconsistent with Dr. Odjegba’s other treatment records and inconsistent with the

record as a whole.

B.    Appeals Council’s Decision

      Hargress asked the Appeals Council to review the ALJ’s decision, and

submitted additional medical records, some of which post-dated the ALJ’s hearing

decision of February 24, 2015. The Appeals Council denied her request for

review. The Appeals Council stated that it had “looked at” the new records “from

Jane Teschner, MD, dated March 2, 2015 through October 1, 2015,” “Daniel

Sparks, MD, dated March 2, 2015 through June 15, 2015,” and “Trinity Medical

Center, dated July 28, 2015,” and noted that the ALJ had decided Hargress’s case

“through February 24, 2015.” The Appeals Council found that “[t]his new


                                          4
                Case: 17-11683       Date Filed: 11/06/2017       Page: 5 of 16


information is about a later time” and “[t]herefore, it does not affect the decision

about whether you were disabled beginning on or before February 24, 2015.” The

Appeals Council advised Hargress that if she wanted the agency to consider

whether she was disabled after February 24, 2015, she needed to apply again and

that the new information she had submitted was “available in [her] electronic file

for [her] to use in [her] new claim.” 1

                                     II. DISCUSSION

       On appeal, Hargress argues that: (1) the ALJ improperly assigned little

weight to the opinion of Dr. Odjegba; (2) the ALJ’s finding at the fifth step that

Hargress was not disabled was not supported by substantial evidence; (3) the ALJ

failed to comply with Social Security Ruling 16-3p (“SSR 16-3p”), enacted after

the ALJ’s decision, in evaluating the intensity and persistence of her symptoms;

and (4) the Appeals Council failed to properly consider her new evidence from

Drs. Teschner and Sparks and Trinity Medical Center. We conclude that none of

these arguments has merit. 2


       1
        The Appeals Council considered Hargress’s other “additional evidence” submitted with
her request for review and “found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.” On appeal, Hargress does not challenge this
determination by the Appeals Council.
       2
         This Court reviews the ALJ’s decision “to determine whether it is supported by
substantial evidence,” and the ALJ’s application of legal principles de novo. Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.”
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
                                                5
             Case: 17-11683     Date Filed: 11/06/2017   Page: 6 of 16


A.    Treating Physician’s Opinion

      The ALJ considers many factors when weighing medical evidence,

including whether an opinion is well-supported and consistent with the record. 20

C.F.R. §§ 404.1527(c), 416.927(c). A treating physician’s medical opinion must

be given “substantial or considerable weight” unless “good cause” is shown to give

it less weight. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.

2011) (quotation marks omitted); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

“With good cause, an ALJ may disregard a treating physician’s opinion, but he

must clearly articulate [the] reasons for doing so.” Winschel, 631 F.3d at 1179

(quotation marks omitted) (alteration in original). Good cause exists when

“the (1) treating physician’s opinion was not bolstered by the evidence;

(2) evidence supported a contrary finding; or (3) treating physician’s opinion was

conclusory or inconsistent with the doctor’s own medical records.” Id. (quotation

marks omitted).

      Here, substantial evidence supports the ALJ’s decision to give little weight

to Dr. Odjegba’s opinion about Hargress’s physical capacities. The ALJ’s stated

reason for discounting Dr. Odjegba’s opinion—that it was inconsistent with his

own medical records and the record as a whole—was adequate and amounts to

good cause. See id.




                                         6
              Case: 17-11683     Date Filed: 11/06/2017    Page: 7 of 16


      Moreover, the ALJ’s stated reason is supported by substantial evidence. As

discussed more fully below, Dr. Odjegba and other medical providers indicated in

their treatment notes that Hargress improved with consistent medication and

physical therapy; had only mild abnormalities of her spine and joints, usually

denied fatigue; was able to exercise and do other activities; and had excellent

rehabilitation potential with physical therapy. Additionally, just one month before

completing the “Physical Capacities Form,” Dr. Odjegba saw Hargress in a follow-

up visit and recommended that she walk 30 minutes every other day for weight

loss, which directly contradicted his opinion on the form that Hargress could only

walk for less than 15 minutes at a time.

B.    Hargress’s RFC to Perform Full Range of Unskilled Sedentary Work

      For purposes of steps four and five, the ALJ found that Hargress could

perform a full range of sedentary, unskilled work as defined in 20 C.F.R.

§§ 404.1567(a) and 416.967(a). Sedentary work involves lifting no more than 10

pounds at a time, occasionally lifting and carrying small articles, sitting, and

occasionally walking and standing. 20 C.F.R. §§ 404.1567(a), 416.967(a).

Unskilled work “needs little or no judgment to do simple duties that can be learned

on the job in a short period of time.” 20 C.F.R. §§ 404.1568(a), 416.968(a).

      In making his RFC finding, the ALJ took into consideration Hargress’s

symptoms for each of her impairments and the extent to which the symptoms could


                                           7
              Case: 17-11683    Date Filed: 11/06/2017   Page: 8 of 16


reasonably be accepted as consistent with the objective medical evidence and other

evidence. The ALJ limited Hargress to “work at no greater than the sedentary

exertional level” to “accommodate her musculoskeletal pain and restriction as well

as any limitation she experiences secondary to her hypertension, diabetes mellitus,

or obesity.” The ALJ also limited Hargress to unskilled work to lessen her

exposure to people or things that could exacerbate her anxiety, which the ALJ

found was a non-severe impairment.

      The ALJ’s finding that Hargress had the RFC to perform a full range of

sedentary, unskilled work is supported by substantial evidence. Although Hargress

sought treatment for lower back and hip pain, doctors’ treatment notes repeatedly

described Hargress’s lumbar spine and joint problems as “mild,” with full range of

motion and no gait disturbance. Moreover, both her lower back and hip pain and

her diabetes improved with medication. Indeed, Hargress’s diabetes was

effectively controlled by medication and presented a problem only when she was

noncompliant with medication or reported having gone for a period of time without

her medication.

      Hargress was routinely prescribed physical therapy for her back and hip.

Her physical therapist reported that Hargress made mostly good progress, that

Hargress’s pain was made better by heat, that Hargress was able to walk and squat

and to exercise at home, and that Hargress had excellent rehabilitation potential.


                                          8
              Case: 17-11683     Date Filed: 11/06/2017    Page: 9 of 16


Hargress herself reported that her activities included taking care of her son, her

mentally disabled brother, and her cat, working on the computer, watching

television, and talking on the phone, that she had no problems caring for herself,

and that she was able to do household chores, go to church, handle money, and

shop. At doctor’s visits, Hargress frequently denied experiencing fatigue, and

none of her doctors ordered her to rest or elevate her feet for a significant portion

of the day. Apart from Dr. Odjegba’s Physical Capacities Form, no healthcare

provider limited Hargress’s activities or ordered bedrest. In fact, Dr. Odjegba

instructed Hargress to walk in order to lose weight. Accordingly, substantial

evidence supported the ALJ’s residual functional capacity determination that

Hargress could perform a full range of sedentary, unskilled work.

      The ALJ concluded that although Hargress could not perform her past

relevant work, Hargress was “not disabled” because a significant number of

sedentary, unskilled jobs existed in the national economy that she could perform

despite her impairments. Hargress complains that the ALJ reached this finding

without consulting a vocational expert. But, as the ALJ explained, in light of

Hargress’s RFC (full range of sedentary work), age (40), education (high school,

English speaker), and work experience (skills not transferable), the finding of “not

disabled” was directed by the vocational grids. See 20 C.F.R. §§ 404.1569,

416.969, see also 20 C.F.R. pt. 404, subpt. P, app. 2, §§ 200.00(a), 201.00, 201.28.


                                           9
             Case: 17-11683     Date Filed: 11/06/2017    Page: 10 of 16


Given that Hargress was able to perform a full range of sedentary work and did not

have any non-exertional impairments that significantly limited her basic work

skills, the ALJ permissibly relied on the vocational grids to determine Hargress’s

ability to adjust to other work in the national economy. See Phillips v. Barnhart,

357 F.3d 1232, 1239-40, 1242 (11th Cir. 2004) (explaining that an ALJ’s exclusive

reliance on the grids is inappropriate when the claimant cannot perform a full range

of work at a given residual functional level or where the claimant has non-

exertional impairments that limit basic work skills). Thus, the ALJ was not

required to consult a vocational expert to make his fifth-step finding. See id.

C.    SSR 16-3 p

      In evaluating Hargress’s subjective symptoms, the ALJ stated that it was

following the “two-step process” that required him (1) to determine whether there

were medically determinable physical or mental impairments that could reasonably

be expected to produce the claimant’s pain or other symptoms and (2) if so, to

“evaluate the intensity, persistence, and limiting effects of the claimant’s

symptoms to determine the extent to which they limit the claimant’s function.” As

to the second step, the ALJ explained that he “must make a finding on the

credibility of the [claimant’s] statements based on a consideration of the entire case

record.” The ALJ described claimant’s statements of her symptoms, which

included, inter alia, extreme fatigue and chronic pain measuring 10 on a scale of 1


                                          10
             Case: 17-11683     Date Filed: 11/06/2017    Page: 11 of 16


to 10, which, along with numbness, made her unable to sit for more than ten

minutes and required her to alternate between sitting and lying down throughout

the day.

      In applying the two-step process, the ALJ found that Hargress had medically

determinable impairments that could reasonably be expected to cause the

symptoms Hargress alleged, but that her “statements concerning the intensity,

persistence and limiting effects of these symptoms are not entirely credible for the

reasons explained in this decision.” As discussed above, the ALJ then devoted

several lengthy paragraphs to explaining why the record as a whole did not support

Hargress’s statements about the limiting effects of her symptoms.

      On appeal, Hargress argues that her case should be remanded because the

ALJ failed to evaluate the intensity, persistence, and limiting effects of her

symptoms in accordance with SSR 16-3p. SSR 16-3p rescinded SSR 96-7p, which

provided guidance on how to evaluate the credibility of a claimant’s statements

about subjective symptoms like pain. See SSR 16-3p, 81 Fed. Reg. 14166, 14167

(March 9, 2016); SSR 96-7p, 61 Fed. Reg. 34,483 (June 7, 1996). The new ruling

eliminated the use of the term “credibility” in the sub-regulatory policy and

stressed that when evaluating a claimant’s symptoms the adjudicator will “not

assess an individual’s overall character or truthfulness” but instead “focus on

whether the evidence establishes a medically determinable impairment that could


                                          11
             Case: 17-11683     Date Filed: 11/06/2017    Page: 12 of 16


reasonably be expected to produce the individual’s symptoms and given the

adjudicator’s evaluation of the individual’s symptoms, whether the intensity and

persistence of the symptoms limit the individual’s ability to perform work-related

activities . . . .” SSR 16-3p, 81 Fed. Reg. 14166, 14171. SSR 16-3p further

explains that adjudicators will consider whether the “individual’s statements about

the intensity, persistence, and limiting effects of symptoms are consistent with the

objective medical evidence and other evidence of record.” Id. at 14170.

      Hargress argues that the ALJ violated SSR 16-3p in evaluating her

subjective symptoms and points to the ALJ’s finding that Hargress’s “statements

concerning the intensity, persistence and limiting effects of these symptoms are not

entirely credible for the reasons explained in this decision.” The problem for

Hargress is that SSR 16-3p became effective March 28, 2016, a year after the

ALJ’s hearing decision. See 81 Fed. Reg. 15776 (March 24, 2016) (amending the

effective date of SSR 16-3p from March 16, 2016 to March 28, 2016).

      While Hargress argues that this Court should apply SSR 16-3p retroactively,

she does not cite any binding precedent to support her argument. Moreover, the

U.S. Supreme Court has held that administrative rules generally are not applied

retroactively. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.

Ct. 468, 471 (1988) (“Retroactivity is not favored in the law . . . . and

administrative rules will not be construed to have retroactive effect unless their


                                          12
               Case: 17-11683        Date Filed: 11/06/2017       Page: 13 of 16


language requires this result.”). SSR 16-3p contains no language suggesting, much

less requiring, retroactive application. Indeed, SSR 16-3p explicitly states that it

became effective on March 28, 2016, which “actually points the other way.” See

Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1351 (11th Cir. 2005) (declining

to apply state agency rule retroactively where the rule expressly provided an

effective date, explaining that “[t]here is no point in specifying an effective date if

a provision is to be applied retroactively”). Thus, SSR 16-3p applies only

prospectively and does not provide a basis for remand. 3

D.     Appeals Council’s Refusal to Consider New Evidence

       Generally, a claimant may present evidence at each stage of the

administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,

1261 (11th Cir. 2007); 20 C.F.R. §§ 404.900(b), 416.1400(b). If a claimant

presents evidence after the ALJ’s decision, the Appeals Council must consider it if

it is new, material, and chronologically relevant. 20 C.F.R. §§ 404.970(b),




       3
        In any event, even if SSR 16-3p applied, the ALJ’s use of the words “not entirely
credible” would not warrant a remand. Read in context, the ALJ’s finding did not assess
Hargress’s overall character or truthfulness, but rather the ALJ, consistent with the ruling’s two-
step process for evaluating symptoms, assessed Hargress’s subjective complaints of disabling
pain and fatigue and concluded that they were not consistent with the other evidence in the
record. See SSR 16-3p, 81 Fed. Reg. 14166, 14170 (explaining that the ALJ will consider
whether the claimant’s statements about the intensity, persistence, and limiting effects of
symptoms “are consistent with” the record as a whole). Thus, regardless of which policy applies,
the ALJ’s finding does not amount to reversible error.
                                                13
              Case: 17-11683       Date Filed: 11/06/2017      Page: 14 of 16


416.1470(b) (2016);4 see also Washington v. Soc. Sec. Admin., 806 F.3d 1317,

1320 (11th Cir. 2015). Evidence is material if a reasonable possibility exists that

the evidence would change the administrative result. Washington, 806 F.3d at

1321. New evidence is chronologically relevant if it “relates to the period on or

before the date of the [ALJ’s] hearing decision.” 20 C.F.R. § 404.970(b),

416.1470(b) (2016). The Appeals Council must grant the petition for review if the

ALJ’s “action, findings, or conclusion is contrary to the weight of the evidence,”

including the new evidence. Ingram, 496 F.3d at 1261 (quotation marks omitted). 5

       Here, the record does not support Hargress’s claim that the Appeals Council

refused to consider her new evidence—the medical records from Drs. Teschner

and Sparks and from Trinity Medical Center dated after the ALJ’s hearing

decision—without considering whether it was chronologically relevant. The

Appeals Council stated that the new records were “about a later time” than the

ALJ’s February 24, 2015 hearing decision and “[t]herefore” the new records did

“not affect the decision about whether [Hargress was] disabled beginning on or

before February 24, 2015.” In short, the Appeals Council declined to consider

these new medical records because they were not chronologically relevant. The


       4
        Effective January 17, 2017, 20 C.F.R. §§ 404.970 and 416.1470 were amended, but
Hargress does not contend these amendments apply to, or affect the outcome of, her appeal. See
81 Fed. Reg. 90987, 90994, 90996 (Dec. 16, 2016).
       5
       We review the Appeals Council’s refusal to consider new evidence de novo.
Washington, 806 F.3d at 1321.
                                              14
             Case: 17-11683    Date Filed: 11/06/2017   Page: 15 of 16


Appeals Council was not required to give a more detailed explanation or to address

each piece of new evidence individually. See Mitchell v. Comm’r, Soc. Sec.

Admin., 771 F.3d 780, 784 (11th Cir. 2014).

      Further, we agree that the new medical records were not chronologically

relevant. These medical records primarily consisted of these medical providers’

progress notes for Hargress’s treatment for her low back pain and diabetes between

March and October 2015, including regular glucose blood tests, referrals for

physical therapy, and diagnostic imaging of her lumbar spine (CT scan and MRI).

Accordingly, they do not relate to the period before the ALJ’s February 24, 2015

decision.

      Hargress points to Washington v. Social Security Administration, in which

this Court “recognized that medical opinions based on treatment occurring after the

date of the ALJ’s decision may be chronologically relevant.” 806 F.3d at 1322. In

Washington, the claimant submitted to the Appeals Council a psychologist’s

evaluation and accompanying opinion about the degree of the claimant’s mental

limitations, which were prepared seven months after the ALJ’s decision. Id. at

1319-20. This Court 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


                                        15
             Case: 17-11683     Date Filed: 11/06/2017   Page: 16 of 16


no evidence of the claimant’s mental decline since the ALJ’s decision. Id. at 1319,

1322-23 (limiting its holding to “the specific circumstances of this case”).

      Here, however, nothing in these new medical records indicates the doctors

considered Hargress’s past medical records or that the information in them relates

to the period at issue, which materially distinguishes this case from Washington.

Accordingly, the Appeals Council did not err in concluding that the new medical

records from Drs. Teschner and Sparks and Trinity Medical Center were not

chronologically relevant. Because the new evidence was not chronologically

relevant, the Appeals Council was not required to consider it. Accordingly, we do

not address Hargress’s argument that the denial of benefits was erroneous when

this new evidence is considered.

                               III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s order affirming the

denial of Hargress’s applications for disability insurance benefits and supplemental

security income.

      AFFIRMED.




                                         16
