             Case: 13-11432    Date Filed: 05/14/2014   Page: 1 of 6


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11432
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 4:12-cv-00889-CLS

LISA HOWARD,

                                                              Plaintiff-Appellant,

                                     versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

                                                             Defendant-Appellee.

                         ________________________

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

                                 (May 14, 2014)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:

      Lisa Howard appeals from the district court’s judgment affirming the

Commissioner of the Social Security Administration’s (“Commissioner”) denial of
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her application for a period of disability and disability insurance benefits, pursuant

to 42 U.S.C. § 405(g). On appeal, Howard contends that the Appeals Council

(“AC”) erred when it did not accept all of the additional evidence that Howard

submitted, in the first instance, to the AC. Howard also argues that the AC’s

written denial of review failed to show that it adequately evaluated Howard’s

additional evidence that the AC had accepted. Howard further contends the district

court improperly failed to remand her case to the AC.

      The “final” decision of the Commissioner is subject to judicial review.

42 U.S.C. § 405(g). We review de novo the Commissioner’s conclusions of law.

Ingram v. Comm’r of Soc. Sec., 496 F.3d 1260 (11th Cir. 2007). With a few

exceptions, the claimant is allowed to present new evidence at each stage of the

administrative process. Id. at 1261. The AC must consider new, material, and

chronologically relevant evidence and must review the case if the Administrative

Law Judge’s (“ALJ”) action, findings, or conclusion is contrary to the weight of

the evidence currently of record. Id. When the AC refuses to consider new

evidence submitted to it and denies review, as in the instant case, that decision is

subject to judicial review because it may amount to an error of law. Keeton v.

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

will reverse where the Commissioner fails to apply the correct law or to provide us

with sufficient reasoning to allow us to determine that the proper legal analysis has


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been conducted. Id. at 1066. We have held that if an agency in its proceedings

violates its rules and prejudice results, the proceedings are tainted and any actions

resulting from the proceeding cannot stand. Hall v. Schweiker, 660 F.2d 116, 119

(5th Cir. Unit A Sept. 1981).

      We review the Commissioner’s decision to determine whether it is

supported by substantial evidence. Ingram, 496 F.3d at 1260. We must affirm a

decision that is supported by substantial evidence even if the evidence

preponderates against the ALJ’s findings. Crawford v. Comm’r of Soc. Sec., 363

F.3d 1155, 1158-59 (11th Cir. 2004). “Substantial evidence is more than a scintilla

and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Id. at 1158. 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). “A clearly articulated credibility finding with substantial

supporting evidence in the record will not be disturbed by a reviewing court.”

Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).

      An individual claiming Social Security disability benefits must prove that

she 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 she is disabled. Id. A claimant must

show that (1) she is not performing substantial gainful activity; (2) she has a severe


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impairment; (3) the impairment or combination of impairments meets or equals an

impairment listed in the regulations; or (4) she cannot return to past work; and,

(5) if the Secretary identifies other work, she cannot perform other work based on

her age, education, and experience. 20 C.F.R. § 404.1520; Phillips v. Barnhart,

357 F.3d 1232, 1237 (11th Cir. 2004). The ALJ must assess and make a finding

about the claimant’s residual functional capacity based on all of the relevant

medical and other evidence in the case. Id. at 1238.

      In Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980), the claimant

submitted significant post-hearing evidence of disability. The Epps Court

observed that the AC had merely noted that it had considered additional evidence

that was submitted to it and nonetheless had found the ALJ’s decision to be

“correct.” Based on that observation, the Epps Court determined that the AC

perfunctorily adhered to the decision of the hearing examiner. Such a failure alone

made us unable to hold that the Commissioner’s findings were supported by

substantial evidence and required us to remand the case for a determination based

on the total record. In Epps, we also determined that the ALJ’s decision did not

properly consider the disabling effect of the claimant’s necessary, ongoing

treatment regimen. Id. Nevertheless, when a claimant properly submits additional

evidence to the AC, a reviewing court must consider the entire record, including




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the additional evidence submitted to the AC, to determine whether the denial of

benefits was substantially erroneous. Ingram, 496 F.3d at 1262.

      We review de novo the judgment of the district court. Ingram v. Comm’r of

Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). Section 405(g) permits a district

court to remand an application for benefits to the Commissioner by two methods,

which are commonly denominated Sentence Four remands and Sentence Six

remands, each of which remedies a separate problem. Ingram, 496 F.3d at 1261.

The fourth sentence of § 405(g) provides the federal court power to enter, upon the

pleadings and transcript of the record, a judgment affirming, modifying, or

reversing the decision of the Commissioner, with or without remanding the case

for a rehearing. The sixth sentence of § 405(g) provides a federal court the power

to remand the application for benefits to the Commissioner for the taking of

additional evidence upon a showing that there is new evidence which is material

and that there is good cause for the failure to incorporate such evidence into the

record in a prior proceeding.

      When a case is remanded, the AC may make a decision, or it may remand

the case to an ALJ with instructions to take action and issue a decision or return the

case to the AC with a recommended decision. If the case is remanded by the AC

to the ALJ, the process starts over again. If the case is decided by the AC, then that

decision is subject to judicial review. Id. Remand is appropriate when a district


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court fails to consider the record as a whole, including evidence submitted for the

first time to the AC, in determining whether the Commissioner’s final decision is

supported by substantial evidence. Id. at 1266-67.

      The ALJ’s decision was supported by substantial evidence, and none of

Howard’s additional evidence contradicted the ALJ’s decision. Thus, first, even if

the AC improperly failed to consider some of Howard’s additional evidence, any

error was harmless because we independently reviewed all submitted evidence.

Second, for the same reason, any shortcoming in the AC’s articulation of its

rationale for adopting the ALJ’s decision was, at most, harmless. Third, Howard

has failed to show that the district court erred because Howard’s additional

evidence did not warrant a remand.

      AFFIRMED.




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