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                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-12602
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 4:18-cv-01053-CLS

MARK CLOUGH,

                                                         Plaintiff-Appellant,

                                      versus

COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant-Appellee.
                          ________________________

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

                                 (May 11, 2020)

Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Mark Clough appeals the district court’s decision affirming the Social

Security Administration’s (“Commissioner”) denial of his application for

Supplemental Security Income (“SSI”). He also appeals the district court’s denial
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of his motion to correct the administrative record to include a 2017 medical

evaluation, as well as the district court’s denial of his motion to alter or amend the

judgment under Federal Rule of Civil Procedure 59(e). After careful review, we

affirm.

                                          I.

      In January 2015, Clough filed an application for SSI, alleging disability

beginning on January 15, 2015. On July 3, 2017, an ALJ concluded that Clough

was not disabled. The ALJ found that Clough had previously been in a motor

vehicle accident in which he had fractured his right femur, and that he suffered

from degenerative disk disease, degenerative joint disease, seizure disorder,

anxiety, and depression. Notwithstanding these impairments, the ALJ found that

Clough had the residual functional capacity to perform sedentary work as defined

in 20 C.F.R. § 416.967(a).

      On October 20, 2017, Clough submitted a letter to the Appeals Council

requesting review of the ALJ’s decision. As part of his letter, Clough summarized

a September 12, 2017 evaluation conducted by Dr. David Wilson (the “2017

evaluation”). According to Clough’s letter, Dr. Wilson opined that Clough was

unable to maintain a job due to back pain, seizures, depression, panic attacks, and

cognitive deficits. Clough argued that the 2017 evaluation supported a finding of

disability, and thus required reversal of the ALJ’s decision. On May 14, 2018, the



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Appeals Council denied Clough’s request for review. It noted that as part of its

review, it received Clough’s October 20, 2017 letter, but did not mention the 2017

evaluation itself.

      Clough then appealed by filing a complaint in the district court, arguing,

among other things, that the Appeals Council committed legal error by refusing to

review the 2017 evaluation. According to Clough, this required the district court to

remand his application to the Commissioner for consideration of the 2017

evaluation. The Commissioner responded that the Appeals Council did consider

Clough’s October 20, 2017 letter summarizing Wilson’s September 2017

evaluation, but that Clough failed to submit the evaluation itself.

      Clough then moved to correct the record to include the 2017 evaluation. He

argued that he submitted Dr. Wilson’s evaluation to the Appeals Council along

with his October 20, 2017 letter seeking review of the ALJ’s decision. He also

argued that if the Appeals Council did not receive the 2017 evaluation, it should

have said so while Clough was seeking review. The Commissioner responded that

the Appeals Council received only one page from the 2017 evaluation. On that

basis, the Commissioner filed a supplementation to correct to the administrative

record with only the first page of the 2017 evaluation. On April 19, 2019, the

district court ordered Clough to file a reply brief—by May 3, 2019—to address the




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Commissioner’s assertion that only one page from the 2017 evaluation was

submitted to the Appeal Council.

      Clough did not timely file a reply brief, and on May 17, 2019, the district

court affirmed the ALJ’s decision and denied Clough’s motion to correct the

record. One week after the district court entered its order affirming the ALJ’s

decision, Clough filed an out-of-time reply brief in support of his motion to correct

the record. Clough argued that the Appeals Council was equitably estopped from

opposing his motion to correct the record because it did not request the rest of the

2017 evaluation during his administrative proceedings. On the same day, Clough

filed a motion to alter or amend the judgment under Rule 59(e), asking the district

court to reconsider his appeal as if his reply brief had been timely filed. The court

denied Clough’s Rule 59(e) motion.

      Clough raises several arguments on appeal. First, he says substantial

evidence did not support the ALJ’s decision to give little weight to the opinion of

rheumatologist Dr. Daniel Prince. Second, he says the ALJ did not state with

sufficient clarity its reasons for assigning less weight to certain examining

physicians. Third, he argues that the district court erred in refusing to remand to

the Appeals Council for consideration of the 2017 evaluation. Fourth, Clough says

(a) the district court erred in denying his motion to correct the record; and




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(b) abused its discretion by denying his Rule 59(e) motion to alter or amend his

judgment.

                                         II.

      In a social security case, we review the agency’s legal conclusions de novo

and review its factual findings to determine whether they are supported by

substantial evidence. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th

Cir. 2007). “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) (per curiam) (quotation marks omitted). We do not reweigh the evidence or

substitute our own judgment for that of the agency. Miles v. Chater, 84 F.3d 1397,

1400 (11th Cir. 1996) (per curiam). If the agency’s decision is supported by

substantial evidence, we must affirm, even if the evidence preponderates against

the decision. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per

curiam).

      We review de novo a district court’s determination on whether remand to the

Commissioner is necessary based on new evidence. Vega v. Comm’r of Soc. Sec.,

265 F.3d 1214, 1218 (11th Cir. 2001). We review a district court’s denial of a

motion to expand the administrative record for an abuse of discretion. See

Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs,



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87 F.3d 1242, 1246–47 (11th Cir. 1996). Finally, we review the denial of a Rule

59(e) motion for an abuse of discretion. See Lamonica v. Safe Hurricane Shutters,

Inc., 711 F.3d 1299, 1317 (11th Cir. 2013).

                                         III.

      In determining the weight to afford medical opinions, the ALJ should

consider the examining and treatment relationship between claimant and doctor,

the length of the treatment and frequency of the examination, the nature and extent

of the treatment relationship, the supportability and consistency of the evidence,

the opining physician’s specialization, and other factors that tend to support or

contradict the medical opinion. 20 C.F.R. § 404.1527(c). The ALJ must state with

particularity the weight given to medical opinions, and we will reverse if the ALJ

fails to provide “some measure of clarity” for her decision. Winschel v. Comm’r

of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (quotation marks omitted).

Absent “good cause,” the ALJ is required to give the medical opinions of “treating

physicians” substantial or considerable weight. Id. A treating physician is

someone who provides or has previously provided the claimant with medical

treatment, and who has or has previously had an ongoing treatment relationship

with the claimant. 20 C.F.R. § 404.1527(a)(2).

   a. Substantial evidence supported the ALJ’s decision to assign “little weight”
      to Dr. Prince’s opinion.




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      On August 31, 2012, Dr. Prince conducted a consultative medical

assessment of Clough after referral by Clough’s counsel. Dr. Prince reported that

Clough was pleasant, alert, and oriented. He also reported that his straight leg raise

test was positive in his right leg but negative in his left leg; his cervical mobility

was preserved; his right hip mobility was impaired by 40 percent and his left hip

mobility was reduced 10 to 15 percent; and his right leg extension was reduced by

10 degrees. Dr. Prince diagnosed Clough with epilepsy, generalized anxiety

disorder, borderline intellectual functioning, and chronic pain disorder. He

determined that Clough could, at one time, sit for less than 45 minutes, stand for

less than 15 minutes, and walk for less than 6 minutes. He also concluded that

during an eight-hour workday, Clough could sit for two hours, stand for one hour,

and walk for one hour. Based on these limitations, Dr. Prince opined that Clough

had “[c]omplete, permanent, chronic, and total disability secondary to residuals of

multiple fractures, epilepsy, grand mal seizure activity, general anxiety disorder,

and borderline intellectual function.”

      The ALJ reviewed Dr. Prince’s opinion, and concluded, in relevant part, that

      [t]he opinion of Dr. Prince, that the claimant had “complete, permanent,
      chronic, and total disability . . . ” is a determination that is reserved to
      the Commissioner of Social Security. . . . Furthermore, this opinion
      was solicited on behalf of the claimant’s representative, which makes it
      inherently less persuasive. It is remote and is not consistent with the
      claimant’s activities of daily living, work history, or the medical
      evidence of the record.



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On that basis, the ALJ gave Dr. Prince’s opinion “little weight.”

       Clough says it was reversible error for the ALJ to discount the opinion of Dr.

Prince simply because Prince’s assessment was arranged by Clough’s counsel.

Assuming Clough is right that this was an impermissible consideration, 1 he still

would not be entitled to reversal because the ALJ gave several valid reasons for

assigning little weight to Dr. Prince’s evaluation. Clough does not challenge those

other reasons, nor could he. The ALJ correctly concluded, for instance, that Dr.

Prince’s opinion that Clough had “complete, permanent, chronic, and total

disability” was not entitled to any deference, because it was the type of

determination that is the province of the Commissioner. 20 C.F.R. § 416.927(d)(1)

(explaining that the Commissioner is responsible for deciding whether a claimant

meets the statutory definition of “disability”).

       Substantial evidence also supported the ALJ’s conclusion that Dr. Prince’s

findings were remote and inconsistent with more recent evaluations. Dr. Prince

conducted his evaluation in August 2012, over two years before Clough’s alleged

disability onset date. More recent medical evidence was inconsistent with the

severe work-related limitations Dr. Prince found. For instance, Clough underwent



1
 Both the Seventh Circuit and the Ninth Circuit have held that an examining doctor’s findings
are entitled to no less weight when the examination is procured by claimant’s counsel. See
Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995); Moss v. Astrue, 555 F.3d 556, 560–61 (7th
Cir. 2009) (per curiam). This Circuit, however, is yet to hold as much in a published opinion,
and we need not decide the issue here.


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multiple physical examinations at Pain and Wound Care Center (“PWCC”) in

2015, and each time, his reports indicated that he experienced only “moderate”

pain in his lower back, and that his pain medication regimen was effective. These

examinations also indicated that Clough had 4/5 strength in both upper extremities

and the right lower extremity, and 3/5 strength in the left lower extremity. Finally,

the reports indicated that Clough’s range of motion in his lumbar spine was

“moderate.”

      The ALJ therefore gave several, independently valid reasons for assigning

“little weight” to Dr. Prince’s opinion. As a result, even assuming the ALJ erred in

discounting Dr. Prince’s opinion because it was commissioned by Clough’s

counsel, the error was harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th

Cir. 1983) (finding that ALJ’s erroneous statements were harmless because they

did not affect the ultimate outcome of the case).

   b. The ALJ adequately stated its reasons for assigning less weight to the
      opinions of Dr. Wilson, Dr. Bentley, and Dr. Morgan.

      Clough argues the ALJ failed to state its reasons for rejecting the opinions of

Drs. Wilson, Bentley, and Morgan with at least “some measure of clarity.”

Although Clough is correct that the ALJ must state its reasons for rejecting an

opinion with “some measure of clarity,” Winschel, 631 F.3d at 1179 (quotation

marks omitted), he is wrong that the ALJ failed to satisfy its burden. With respect

to Dr. Wilson, the ALJ gave his psychological opinions “little weight” because


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they were “remote” and “not consistent” with more recent psychological evidence.

The ALJ assigned “little weight” to Dr. Bentley’s 2010 opinion because it was

“remote, vague, and [did] not provide any function-by-function assessment of the

claimant’s ability to perform work-related mental activity.” Finally, the ALJ gave

Dr. Morgan’s opinion “no weight” because the restrictions he assessed were

“entirely inconsistent with the relatively benign findings noted on [Clough’s]

physical examination” and were not “consistent with the record as a whole.” 2 The

ALJ thus stated its reasons for giving less weight to these opinions with at least

“some measure of clarity.” Id.

    c. Clough waived any argument that the ALJ gave undue weight to non-
       examining physicians.

       Clough recites the principle that “opinions of nonexamining, reviewing

physicians, . . . when contrary to those of examining physicians are entitled to little

weight in a disability case, and standing alone do not constitute substantial

evidence.” Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). To the extent

Clough claims the ALJ gave undue weight to a non-examining physician, he has

waived any such argument by failing to identify which non-examining physicians


2
  Clough says Dr. Morgan was his “treating physician,” and therefore his opinion was entitled to
a presumption of “substantial weight.” While Clough is correct that we generally give
substantial weight to opinions of treating physicians, Winschel, 631 F.3d at 1179, Clough has not
demonstrated that Dr. Morgan was a treating physician. A treating physician is defined as
someone who has or had an “ongoing treatment relationship” with a claimant. 20 C.F.R.
§ 404.1527(a)(2). The administrative record only shows that Clough met with Dr. Morgan on a
single occasion, for a consultative examination.


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were given undue weight, or specify how the ALJ erred by assigning less weight to

an examining physician. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1330 (11th Cir. 2004) (explaining that “[i]f an argument is not fully briefed

(let alone not presented at all) to the Circuit Court, evaluating its merits would be

improper”).

                                         IV.

      Clough also argues that the district court erred by failing to remand his case

to the Appeals Council for consideration of the 2017 evaluation. He also says the

district court erred in denying his motion to correct the record to include a copy of

the 2017 evaluation. Finally, Clough says the district court abused its discretion by

denying his Rule 59(e) motion to alter or amend the district court’s judgment.

None of these arguments have merit.

   a. The district court did not err by declining to remand for consideration of the
      2017 evaluation.

      In Washington v. Commissioner of Social Security, 806 F.3d 1317 (11th

Cir. 2015) (per curiam), we held that the Appeals Council committed legal error by

“refus[ing]” to consider a report containing new, material, and chronologically

relevant evidence. Id. at 1320. On that basis, we required the district court to

remand the claimant’s application to the Commissioner for consideration of the

new evidence. Id. at 1323. Relying on Washington, Clough says the district court




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was required to remand to the Appeals Council for consideration of the 2017

evaluation.

       As an initial matter, Clough’s argument fails because he did not establish

that the Appeals Council “refused” to consider any evidence that was properly

before it. The Commissioner says the Appeals Council received only (1) a letter

from Clough requesting review of the ALJ’s decision, in which he summarized the

2017 evaluation; and (2) the first page of the 2017 evaluation. Both documents,

according to the Commissioner, were reviewed by the Appeals Council before it

denied Clough’s request to review the ALJ’s decision. The district court ordered

Clough to file a reply to the Commissioner’s claim, but Clough failed to do so

within the prescribed timeframe. Given Clough’s failure to reply, there was

nothing before the district court to indicate that the Appeals Council received the

full 2017 evaluation. Thus, the district court did not err in declining to remand.

The Appeals Council could not have improperly “refused” to consider evidence it

never received. 3 See Ingram, 496 F.3d at 1267–68.



3
  Under the sixth sentence of 42 U.S.C. § 405(g), a district court may remand an application for
consideration of new, material evidence presented for the first time in the district court. See
Ingram, 496 F.3d at 1261. A “sentence six remand” is only available if the claimant shows
“good cause for the failure to incorporate such evidence into the record in a prior proceeding.”
Id. In the district court’s order requiring Clough to file a reply brief in support of his motion to
correct the administrative record, the court specifically directed Clough to address whether
remand was warranted under sentence six. Clough did not reply within the prescribed time limit,
and when he finally did, he failed to address whether he was entitled to a sentence six remand.
On appeal, Clough has again failed to address whether he is entitled to relief under sentence six


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       Even if Clough had provided the Appeals Council with Dr. Wilson’s full

report, the Appeals Council was not required to review it because it did not

constitute “new evidence.” This court has held that the Appeals Council need only

consider “new, material, and chronologically relevant evidence.” Ingram, 496 F.3d

at 1261. Evidence is not “new” where it is cumulative of evidence that was

already submitted to the ALJ. See Washington, 806 F.3d at 1323 n.9.

       Dr. Wilson submitted two reports in support of Clough’s application: the

2017 report for which Clough seeks remand, and a 2012 evaluation. Dr. Wilson’s

2017 evaluation largely mirrors his 2012 report. For instance, both reports indicate

that Clough suffers from epilepsy and experiences one to two seizures per month.

Both reports also state that Clough experiences occasional panic attacks and

feelings of depression, and that he suffers from mild cognitive limitations.

Because Dr. Wilson’s 2017 evaluation is therefore cumulative of his 2012 report—

which was part of the evidence assessed by the ALJ—the Appeals Council was not

required to consider it. See id.

   b. The district court did not err in denying Clough’s motion to correct the
      record.




of § 405(g), and he has therefore abandoned such any argument. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).



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      Clough claims the district court erred in denying his motion to correct the

record to include Dr. Wilson’s 2017 evaluation. This, according to Clough, was a

violation of the district court’s duty to assess the entire administrative record.

Clough is correct that a district court must “review the entire record” when

determining whether the Commissioner’s decision is supported by substantial

evidence. See Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). But as

noted in the previous section, Clough failed to demonstrate that the full 2017

evaluation was ever made part of the administrative record. Consequently, the

administrative record was complete, and the district court could not have abused its

discretion by denying Clough’s motion to correct a record that did not need

correcting.

   c. Clough has abandoned any challenge to the district court’s denial of his Rule
      59(e) motion.

      Finally, Clough states in a conclusory fashion that the district court

committed a “manifest error of law” in denying his Rule 59(e) motion. He

correctly notes that the two grounds for granting a Rule 59(e) are “newly-

discovered evidence” and “manifest errors of law or fact.” Br. of Appellant at 38

(citing In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). However, he does

not explain how his Rule 59(e) motion satisfies either basis for relief. As a result,

Clough has abandoned this claim. See Sapuppo, 739 F.3d at 680.




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      In any event, Clough could not demonstrate that the district court abused its

discretion in denying his Rule 59(e) motion. A motion to alter or amend under

Rule 59(e) may “not be used to relitigate old matters or to present arguments or

evidence that could have been raised prior to the entry of judgment.” Wilchombe

v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quotation marks

omitted). Clough filed his Rule 59(e) motion along with an out-of-time reply in

support of his motion to correct the record. In his motion, he asked the district

court to reconsider its order denying Clough’s appeal and motion to correct the

record as if he had timely filed his reply brief. He also repeated his arguments

from his memorandum in support of disability, in which he argued that the Appeals

Council improperly refused to consider the 2017 evaluation. Because Clough

merely sought review of arguments or evidence that could have been raised prior to

judgment, the district court did not abuse its discretion in denying his Rule 59(e)

motion.

      AFFIRMED.




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