                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 March 21, 2006
                               No. 05-13983                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 03-00365-CV-FTM-DNF

JOSEPH L. OTTO,


                                                               Plaintiff-Appellant,

                                     versus

COMMISSIONER OF SOCIAL SECURITY,

                                                             Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (March 21, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Joseph L. Otto, proceeding pro se, appeals an order that affirmed the denial
of disability benefits by the Commissioner of Social Security. Because substantial

evidence supports the denial of benefits by the Commissioner, we affirm.

BACKGROUND

      In January 1992, Otto applied for disability insurance benefits for a

disability he alleges dated back to November 11, 1991. Otto alleged that he

suffered from lung cancer and high blood pressure. Otto had a lung removed and

recovered well from the surgery with no signs of a return of the cancer. The only

limitation the surgery placed on Otto was that for one month following the surgery

he could not engage in heavy lifting or strenuous activity. There is nothing in the

record that suggests the high blood pressure interfered with Otto’s ability to work.

Otto also complained of shortness of breath (dyspnea) and curvature of the spine

(kyphosis).

      Otto’s request for benefits was denied and he requested a hearing by an ALJ.

On May 12, 1993, the ALJ determined that, based on the record, Otto was not

disabled for a period of twelve consecutive months as required by the Social

Security Act, and the ALJ denied Otto benefits. The Appeals Council denied

Otto’s request for review and Otto appealed to the district court for the Middle

District of Florida, which affirmed. Otto then appealed to this court, which found

that the record was inadequate to evaluate his claims, and remanded the case with



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the suggestion that the Commissioner obtain a consultive examination.

      Dr. Kenneth Berdick performed a consultive examination on April 3, 1998.

Among other tests, Berdick performed a spirometric pulmonary function test and

found that Otto was not suffering from dyspnea sufficient to interfere with his

ability to work. On May 9, a second ALJ, having taken into account Berdick’s

examination, determined that Otto was not disabled as of March 31, 1993, and Otto

was, at that time, capable of performing his previous jobs of apartment manager

and console operator at an alarm service. The ALJ informed Otto that, under

Social Security Administration regulations, “we will never find that you are

disabled based on your symptoms, including pain, unless medical signs or findings

show that there is a medical condition that could be reasonably expected to

produce those symptoms.” The regulation the ALJ quoted does not say “we will

never,” but does state that “statements about your pain or other symptoms will not

alone establish that you are disabled; there must be medical signs and laboratory

findings which show that you have a medical impairment(s) which could

reasonably be expected to produce the pain or other symptoms alleged . . . .” 20

C.F.R. § 404.1529(a). Otto appealed his claim to the AC, the district court, and

this court, and his case was remanded again to provide Otto with the opportunity

for an oral hearing.



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      The oral hearing took place on September 7, 2000, before the same ALJ as

the 1998 hearing, and the ALJ noted that it had not received documents it

requested from the Office of Veteran’s Affairs hospital that had treated Otto in

1999. After the hearing, the ALJ left the record open to allow Otto to provide

those records to the ALJ. After Otto provided the records–the results of a July 7,

1999 pulmonary function test–the ALJ determined that Otto retained the ability to

do work as of March 31, 1993, and was not eligible for benefits. Otto appealed

this decision to the AC, which denied review and informed Otto that he must file a

new complaint in the district court if he desired judicial review. Otto filed a

document captioned “Notice of Appeal” in the district court, which the district

court forwarded to this court. We dismissed that appeal as untimely. Otto filed a

writ of certiorari with the United States Supreme Court, which denied the writ.

      After the Supreme Court denied certiorari, the Commissioner allowed Otto

to file a new complaint in the district court. Otto complained that he had not been

properly tested for dyspnea, the ALJ was biased, and Berdick was not qualified to

diagnose his dyspnea. The parties consented to the jurisdiction of a magistrate

judge, and the magistrate judge affirmed the denial of benefits by the ALJ.

                            STANDARD OF REVIEW

      “We review the [Social Security] Commissioner’s decision to determine if it



                                           4
is supported by substantial evidence and based upon proper legal standards. . . .

Substantial evidence is more than a scintilla and is such relevant evidence as a

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

Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997). “When, as in this case, the

ALJ denies benefits and the [Appeals Council] denies review, we review the ALJ’s

decision as the Commissioner’s final decision.” Doughty v. Apfel, 245 F.3d 1274,

1278 (11th Cir. 2001).

                                    DISCUSSION

      Otto presents three arguments on appeal. First, Otto argues that the evidence

does not support the determination that he was not disabled prior to March 31,

1993. Second, Otto seeks to present new evidence to support his claim. Third,

Otto appears to argue that the ALJ was biased against him.

      To receive disability benefits, the claimant must establish that he was

disabled during the time for which he was insured by Social Security. 20 C.F.R. §

404.131(a). It is the responsibility of the claimant to provide sufficient evidence to

establish his disability. 20 C.F.R. § 404.1512(a). The claimant must “furnish

medical and other evidence that [the Commissioner] can use to reach conclusions

about [the claimant’s] medical impairment(s) and . . . its effect on [his] ability to

work on a sustained basis.” Id.



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      Otto’s argument that the evidence does not support the determination of the

ALJ fails. Otto had to establish that he was disabled before March 31, 1993, when

his disability insurance coverage ended, but the only medical evidence Otto

produced from the period before March 31, 1993, related to his lung cancer and the

removal of his lung. Other than a one month period immediately following the

surgery during which Otto could not engage in heavy lifting or strenuous activity,

no restrictions were placed on Otto as a result of the surgery. Otto produced no

evidence to establish that he had been diagnosed with either dyspnea or kyphosis

before March 1993.

      Otto erroneously argues that his dyspnea could have been diagnosed except

that the ALJ did not follow the required procedure when it ordered a medical

examination of Otto in 1998. Otto was given a spirometric pulmonary function

test to check for dyspnea, and the test results were negative. Otto argues that a

spirometric test is not sufficient under the regulations, but the regulations

governing pulmonary problems state that “[r]espitory impairments usually can be

evaluated . . . on the basis of a complete medical history, physical examination, a

chest x-ray or other appropriate imaging techniques, and spirometric pulmonary

function tests.” 20 C.F.R. pt. 404, subpt. P, app. 1 § 3.00A (emphasis added). The

regulation lists several conditions for which a spirometric test is insufficient, but



                                            6
none of these exceptions applies to Otto.

      Otto next erroneously attempts to introduce new evidence on appeal to

support his argument that he has was disabled. The new evidence consists of the

results of a pulmonary function test and an echocardiogram performed by a

Department of Veteran Affairs hospital on December 10, 1999, and a photograph

of Otto. New evidence may only be taken if it is “material and . . . there is good

cause for the failure to incorporate such evidence into the record in a prior

proceeding.” 42 U.S.C. § 405(g). Evidence is considered material if “a reasonable

possibility exists that the new evidence would change the administrative result . . .

.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). The test results are

immaterial because they are from 1999 and contain no discussion of what Otto’s

condition might have been as of March 31, 1993. The photograph of Otto also is

immaterial because it is not sufficient evidence of current suffering of kyphosis,

much less his physical condition in March 1993. Furthermore, Otto has advanced

no reason why he was unable to produce this evidence at his hearing in 2000.

      Finally, although the regulations require that the ALJ must not be prejudiced

or partial in any way during the hearing, 20 C. F.R. § 404.940; see also Miles v.

Chater, 84 F.3d 1397, 1400-01 (11th Cir. 1996), Otto’s claims of prejudice are not

supported by the record. The use of the phrase “we will never” by the ALJ was



                                            7
reviewed by the AC, which determined that Otto was taking the statement out of

context and there was no evidence the ALJ was biased. This appeal is from a

review of the 2000 ALJ hearing and the statement about which Otto complains was

made in 1998. The alleged bias by the ALJ in 1998 is nowhere evident in the 2000

hearing. The ALJ gave Otto every opportunity to present all his evidence and

made sure that Otto understood the rules that govern Social Security

determinations, and the final decision of the ALJ does not reveal any bias.

                                  CONCLUSION

      The decision of the ALJ to deny Otto disability insurance benefits is

      AFFIRMED.




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