                                                                  [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                        FILED
                                                                U.S. COURT OF APPEALS
                                No. 10-15816                      ELEVENTH CIRCUIT
                            Non-Argument Calendar                     JUNE 22, 2011
                          ________________________                     JOHN LEY
                                                                        CLERK
                      D.C. Docket No. 5:09-cv-00239-MTT

WALBERT LAWTON,

                                  llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                      versus

COMMISSIONER OF SOCIAL SECURITY,

                                 llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.

                          _______________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                        ________________________

                                 (June 22, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:

      Walbert Lawton appeals the district court’s order upon administrative review

affirming the Commissioner’s denial of disability insurance benefits, 42 U.S.C. §
405(g). On appeal, Lawton argues that: (1) substantial evidence does not support the

administrative law judge’s (“ALJ’s”) decision to reject the statement from one of

Lawton’s treating physicians that Lawton should not lift, push, or pull more than ten

pounds; and (2) the ALJ erred when he failed to discuss various medical opinions

from Lawton’s treating physicians. After careful review, we affirm in part, and

reverse and remand in part.

      We conduct a limited review of the ALJ’s decision to determine whether it is

supported by substantial evidence and whether it is based on proper legal standards.

Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004). Under this standard, we

must affirm a decision that is supported by substantial evidence even if the evidence

preponderates against the Commissioner’s findings. Id. at 1158-59. Substantial

evidence is less than a preponderance, and, instead, is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion. Moore v.

Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Moreover, we may not reweigh the

evidence or substitute our judgment for that of the ALJ. Dyer v. Barnhart, 395 F.3d

1206, 1210 (11th Cir. 2005). On the other hand, we will reverse where the ALJ fails

to apply the correct law or to provide us with sufficient reasoning to allow us to

determine that the proper legal analysis has been conducted. Keeton v. Dep’t of

Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

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      An individual claiming Social Security disability benefits must prove that he

is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The Social

Security regulations provide a five-step sequential evaluation process for determining

if a claimant has proven that he is disabled. Id. A claimant must show that (1) he is

not performing substantial gainful activity; (2) he has a severe impairment; (3) the

impairment or combination of impairments meets or equals an impairment listed in

the regulations, or (4) he cannot return to past work; and (5) he cannot perform other

work based on his age, education, and experience. Phillips v. Barnhart, 357 F.3d

1232, 1237 (11th Cir. 2004); 20 C.F.R. § 404.1520.

      The ALJ must determine the claimant’s residual functional capacity at both the

fourth and fifth steps of the sequential evaluation process. 20 C.F.R. § 404.1520(e).

Residual functional capacity is an assessment, based on all of the relevant evidence,

of a claimant’s remaining ability to do work despite his impairments. Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Here, the ALJ found that Lawton

retained the residual functional capacity to perform a significant range of light work.

However, Lawton argues on appeal that, if the ALJ had properly credited the opinions

of his treating physicians, then the ALJ would have concluded that he was limited to

sedentary work only.




                                           3
      As an initial matter, the Commissioner argues that Lawton cannot rely on new

evidence that he submitted to the Appeals Counsel (“AC”) because, on appeal, he has

challenged only the ALJ’s decision to deny benefits and not the AC’s decision to

deny review. If a claimant submits new, noncumulative, and material evidence to the

AC after the ALJ’s decision, the AC shall consider such evidence, but only to the

extent that it relates to the period on or before the date of the ALJ’s hearing decision.

20 C.F.R. § 404.970(b). “Material” evidence is evidence that is “relevant and

probative so that there is a reasonable possibility that it would change the

administrative result.” Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987)

(quotation omitted). When evidence is submitted for the first time to the AC, that

new evidence becomes part of the administrative record. Keeton v. Dep’t of Health

& Human Servs., 21 F.3d 1064, 1067 (11th Cir. 1994). If the claimant challenged

both the ALJ’s decision to deny benefits and the AC’s decision to deny review based

on the new evidence, then we will consider whether the new evidence renders the

denial of benefits erroneous. Ingram v. Comm’r, 496 F.3d 1253, 1262, 1265-66 (11th

Cir. 2007). However, if the claimant challenges only the ALJ’s decision to deny

benefits, then we will not consider evidence submitted to the AC. Falge v. Apfel, 150

F.3d 1320, 1323-24 (11th Cir. 1998).




                                            4
       Here, Lawton’s initial brief on appeal contains at most a passing reference to

the AC’s decision to deny review, and a passing reference is not sufficient to preserve

an argument for review. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir.

1998) (explaining that an issue may be deemed abandoned where a party only

mentions it in passing, without providing substantive argument in support).

Moreover, Lawton’s initial brief suggests that he did not intend to challenge the AC’s

denial of review. Finally, to the extent that Lawton seeks to raise a challenge in his

reply brief, arguments raised for the first time in an appellant’s reply brief are too late

and generally will not be considered. Atwater v. Nat’l Football League Players

Ass’n, 626 F.3d 1170, 1177 (11th Cir. 2010). Thus, because Lawton did not

challenge the AC’s denial of review on appeal, we will review only the evidence that

was submitted to the ALJ. See Falge, 150 F.3d at 1323-24.

       Turning to Lawton’s arguments on appeal, we first reject Lawton’s claim that

substantial evidence fails to support the ALJ’s decision to reject Dr. Appavuchetty

Soundappan’s assessment that Lawton should not lift, push, or pull more than ten

pounds because it did not “reflect the longitudinal history of impairment, treatment,

and recovery.” The ALJ should consider the following factors when determining

what weight to give to a medical opinion: (1) whether the source had examined the

claimant; (2) whether the source was a treating physician; (3) the length of the

                                            5
treatment relationship and how often the physician had examined the claimant; (4) the

nature and extent of the treatment relationship; (5) whether the medical evidence

supports the opinion; (6) consistency; (7) specialization; and (8) other relevant

factors. 20 C.F.R. § 404.1527(d). However, the ALJ is not required to explicitly

address each of those factors. Rather, the ALJ must provide “good cause” for

rejecting a treating physician’s medical opinions. See Lewis v. Callahan, 125 F.3d

1436, 1440 (11th Cir. 1997). 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.” Phillips, 357 F.3d at 1241; Lewis, 125 F.3d at 1440.

However, a non-examining physician’s opinion, standing alone, does not constitute

substantial evidence for rejecting a treating physician’s opinion. Lamb v. Bowen, 847

F.2d 698, 703 (11th Cir. 1988).

      Lawton concedes that the ALJ explained his decision to give little weight to

Dr. Soundappan’s medical opinion when the ALJ stated that early treatment records

did not reflect “the longitudinal history of impairment, treatment and recovery.” The

ALJ was permitted to discount Dr. Soundappan’s opinion based on a finding that it

was inconsistent with later medical evidence. See Phillips, 357 F.3d at 1241.

Moreover, the record contains substantial evidence supporting the ALJ’s

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determination that Dr. Soundappan’s March 2006 opinion did not reflect the overall

course of Lawton’s injury. While the record does contain some evidence that is

contrary to the ALJ’s determination, we are not permitted to reweigh the importance

attributed to the medical evidence. See Dyer, 395 F.3d at 1210.

      However, we are persuaded by Lawton’s claim that the ALJ erred when it

failed to consider the following opinion evidence from two of his other treating

physicians: (1) an unsigned statement by Dr. Vance that Lawton could only engage

in sedentary work; (2) Dr. Julian M. Earls’s notation in a long-term disability

certificate that Lawton could never return to work; and (3) Dr. Earls’s notation in the

long-term disability certificate that Lawton would need medication, therapy, and

injections for the remainder of his life. In order for a statement to be characterized

as a “medical opinion,” it must be from an acceptable source and address acceptable

subject matter. 20 C.F.R. § 404.1527(a)(2). First, a medical opinion must be a

statement from a physician, a psychologist, or another “acceptable medical source.”

Id. Other acceptable medical sources do not include nurses, physicians’ assistants,

or therapists. See 20 C.F.R. §§ 404.1502 (defining acceptable medical source as

those enumerated in § 404.1513(a)); 404.1513(d)(1) (listing medical sources that fell

outside of the definition of “acceptable medical source”). Second, the doctor’s

statement must reflect his judgment about the nature and severity of the claimant’s

                                          7
impairments, including his symptoms, diagnosis, and prognosis, what he can still do

despite his impairments, and his physical or mental restrictions. Id. § 404.1527(a)(2).

A doctor’s opinion on dispositive issues reserved to the Commissioner, such as

whether the claimant is disabled or unable to work, is excluded from the definition

of a medical opinion and is not given special weight, even if it is offered by a treating

source, but the ALJ should still consider the opinion. Id. § 404.1527(e).

      As noted, absent “good cause” to the contrary, an ALJ is to give the medical

opinions of treating physicians “substantial or considerable weight.” Lewis, 125 F.3d

at 1440; see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). With good

cause, an ALJ may disregard a treating physician’s opinion, but he must clearly

articulate his reasons for doing so. Phillips, 357 F.3d at 1240-41. Moreover, the ALJ

must state with particularity the weight given to different medical opinions and the

reasons therefor. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). A

statement that the ALJ carefully considered all the testimony and exhibits is not

sufficient. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Without an

explanation of the weight accorded by the ALJ, it is impossible for a reviewing court

to determine whether the ultimate decision on the merits of the claim is rational and

supported by substantial evidence. Id. Therefore, when the ALJ fails to state with

at least some measure of clarity the grounds for his decision, we will decline to affirm

                                           8
simply because some rationale might have supported the ALJ’s conclusion. Owens

v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984).

      In this case, the ALJ never referenced either of Dr. Earls’s opinions that

Lawton could never return to work and that he would need medications, therapy, and

injections for the remainder of his life, or the unsigned statement of Dr. Vance with

the opinion/recommendation that Lawton was limited to sedentary work only.

Moreover, both doctors’ opinions are contrary to the ALJ’s residual functional

capacity assessment because both would suggest that Lawton could not engage in a

significant range of light work. Thus, it appears that the ALJ did not give them

controlling weight. While it is possible that the ALJ considered and rejected these

opinions, he provided no explanation for the weight, or lack thereof, that he assigned

to those opinions. The ALJ did state that he had considered the opinions of Lawton’s

treating and examining physicians and incorporated those opinions in his residual

functional capacity assessment. However, a statement that the ALJ has considered

all of the opinion evidence is not sufficient to discharge his burden to explicitly set

forth the weight accorded to that evidence. See Cowart, 662 F.2d at 735. Without

a clear explanation of how the ALJ treated those opinions, we cannot determine

whether the ALJ’s conclusions were rational or supported by substantial evidence.

See id.

                                          9
      The Commissioner argues that the ALJ was free to reject the “sedentary work

only” notation of Dr. Vance because it was unsigned and, thus, not a medical opinion.

However, because the ALJ did not explain why he was rejecting the opinion, this

Court cannot determine whether he rejected it for this reason or for some other,

unsupportable reason. As for the Commissioner’s argument that Dr. Earls’s opinion

that Lawton could never return to work was an opinion on an issue reserved to the

Commissioner and, thus, was not entitled to any special weight, the ALJ never said

that he was rejecting Dr. Earls’s opinion because it was not a medical opinion.

Moreover, while an ALJ is not permitted to give a treating physician’s opinion on an

issue reserved to the Commissioner controlling weight, he is required to consider it.

See 20 C.F.R. § 404.1527(e); see also SSR 96-5p. Although the ALJ is not required

to specifically refer to every piece of evidence in the record, Dyer, 395 F.3d at 1211,

he is required to explain the weight he afforded to “obviously probative exhibits,”

Cowart, 662 F.2d at 735 (quotation omitted).

      Finally, the Commissioner argues that Dr. Earls’s opinion that Lawton would

need medications, therapy, and injections for the rest of his life was not inconsistent

with the ALJ’s discussion and residual functional capacity assessment. But there is

no indication in the ALJ’s decision that he considered that opinion. Thus, we cannot

determine whether the ALJ adequately considered the underlying opinion.

                                          10
      Because the ALJ failed to adequately explain the weight he afforded to the

opinions of some of Lawton’s treating and examining physicians, we will reverse and

remand the case so that the ALJ can explicitly consider, and can explain the weight

accorded to, those opinions. See Winschel v. Comm’r, 631 F.3d 1176, 1179 (11th

Cir. 2011). Lawton argues that, due to the ALJ’s failure to explain the weight he

afforded to the opinions of Lawton’s treating physicians, the proper remedy is an

award of benefits, and not a remand. There is language in MacGregor v. Bowen, 786

F.2d 1050 (11th Cir. 1986), for the proposition that, if an ALJ fails clearly to

articulate reasons for discounting the opinion of a treating physician, that evidence

must be accepted as true as a matter of law. However, our earlier decisions had

remanded cases to the agency when there was a failure to provide an adequate

credibility determination. See, e.g., Owens, 748 F.2d at 1516; Wiggins v. Schweiker,

679 F.2d 1387, 1390 (11th Cir. 1982). Pursuant to the prior precedent rule, we are

bound by the holding of the first panel to address an issue of law, unless and until it

is overruled by this Court sitting en banc or the Supreme Court. United States v.

Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Accordingly, rather than

broadly accept the doctors’ opinions as true, we will remand to the agency so that it

can make a determination in the first instance of the proper weight to be afforded to

those opinions.

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AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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