           Case: 19-12718   Date Filed: 03/05/2020   Page: 1 of 6



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12718
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 5:18-cv-00267-PRL



JULIA MARIE RAICES,

                                                           Plaintiff-Appellant,

                                  versus

COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant-Appellee.

                      ________________________

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

                             (March 5, 2020)

Before MARTIN, ROSENBAUM, and TJOFLAT, Circuit Judges.

PER CURIAM:
              Case: 19-12718     Date Filed: 03/05/2020    Page: 2 of 6



      Julia Raices applied for a period of disability and Social Security disability

insurance benefits. Her application was denied. Raices then requested a hearing

before an administrative law judge (“ALJ”), who found that she was not disabled.

Next, Raices requested review by the Appeals Council of the ALJ’s decision based

on new evidence from one of her doctors, but the Appeals Council declined to

review the decision. Therefore, the ALJ’s decision became the final decision of

the Commissioner of Social Security, and Raices appealed to the United States

District Court for the Middle District of Florida. The District Court affirmed the

decision.

      Racies appeals, arguing (I) that the Appeals Council erred in declining to

consider her new evidence, and (II) that the ALJ’s finding regarding the extent of

her disability was inadequate, not specific, and not supported by substantial

evidence. We disagree on both claims. Therefore, we affirm.

                                          I.

      We first consider whether the Appeals Council erred in declining to consider

new evidence that had not been submitted to the ALJ. We conclude that the

Appeals Council did not err because, even if it erroneously concluded that the

evidence was temporally irrelevant, the new evidence was not material.

      If a claimant presents evidence not heard by the ALJ to the Appeals Council

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


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(1) new, (2) material, and (3) chronologically relevant. See Ingram v. Comm’r of

Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007). If the Appeals Council

erroneously refuses to consider such evidence, then it commits legal error and

remand is appropriate. See Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d

1317, 1323 (11th Cir. 2015). We review the Appeals Council’s refusal to consider

new evidence and denial of review de novo. Id. at 1321.

      Here, the Appeals Council declined to review the new evidence because it

found the evidence to be chronologically irrelevant. Even if this basis for

declining review was erroneous, we agree with the District Court that the Appeals

Council’s refusal to consider the evidence should be affirmed because the new

evidence was not material.

      New evidence is material if it is “relevant and probative so that there is a

reasonable possibility that it would change the administrative result.” Hyde v.

Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (quoting Milano v. Bowen, 809 F.2d

763, 766 (11th Cir. 1987)). Here, Raices has not shown that there is a reasonable

probability that the questionnaire she submitted from Dr. Martinez-Sanchez would

have changed the ALJ’s decision. First, the questionnaire was not created until

after the ALJ decision, and some of Dr. Martinez-Sanchez’s “opinions” in the

questionnaire conflicted with her medical records regarding Raices’s treatment

from before the ALJ decision. Second, the questionnaire itself was based on


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Raices’s report of her subjective symptoms, which the ALJ discredited, and it

lacked support or explanations for the medical opinions it contained. Therefore,

while the questionnaire might have supported Raices’s claim, she has not shown a

reasonable probability that it would have changed the ALJ’s decision.

Accordingly, the new evidence was not material, and we affirm on this issue.

                                          II.

      We next consider whether the ALJ’s finding regarding the severity of

Raices’s disability was adequately and specifically supported by substantial

evidence. We conclude that it was.

      The individual seeking Social Security disability benefits bears the burden of

proving that she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.

2005). A claimant may establish that she has “a disability through [her] own

testimony of pain or other subjective symptoms.” Dyer v. Barnhart, 395 F.3d

1206, 1210 (11th Cir. 2005).

      In evaluating a claimant’s testimony, the ALJ should consider, among other

things, (1) the claimant’s daily activities, 20 C.F.R. § 404.1529(c)(3)(i), (2) the

“duration, frequency, and intensity” of the claimant’s symptoms, id.

§ 404.1529(c)(3)(ii), (3) the “type, dosage, effectiveness, and side effects of any

medication” taken to alleviate symptoms, id. § 404.1529(c)(3)(iv), and (4)

the treatment or other measures taken by the claimant to alleviate symptoms, id.


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§ 404.1529(c)(3)(v). The ALJ is to consider these factors in light of the other

evidence in the record. Id. § 404.1529(c)(4).

      If the ALJ discredits the claimant’s testimony regarding her subjective

symptoms, the ALJ must clearly “articulate explicit and adequate reasons for doing

so.” Foote v. Chater, 67 F.3d 1553, 1561–62 (11th Cir. 1995). Such “credibility

determinations are the province of the ALJ, and we will not disturb a clearly

articulated credibility finding supported by substantial evidence.” Mitchell v.

Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014) (internal citation

omitted). “Substantial evidence is more than a scintilla, but less than a

preponderance. It is such relevant evidence [that] a reasonable person would

accept as adequate to support a conclusion.” Phillips v. Barnhart, 357 F.3d 1232,

1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983)).

      Here, the ALJ specifically and adequately found that Raices’s testimony

regarding her subjective symptoms was inconsistent with record and medical

evidence. First, Raices testified about the extent that she was limited in her daily

activities, but her treatment notes did not entirely corroborate the severity of her

claimed limitations. Second, the ALJ noted that she was able to work part-time as

an assistant manager during the relevant period, which was inconsistent with the

extent of the disability that she claimed. Third, the ALJ found that, despite


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Raices’s claims, she had only been receiving conservative treatment and had not

been recommended for surgery, which was also inconsistent with the extent of

disability that she claimed.

      Given these inconsistencies, the ALJ’s conclusion that Raices was capable

of performing some work activity was supported by more than a scintilla of

evidence. Accordingly, while the ALJ could have come to a different decision on

this record, the decision he reached was supported by substantial evidence. As

such, we must affirm. See Phillips, 357 F.3d at 1240 n.8 (“We may not decide the

facts anew, reweigh the evidence, or substitute our judgment for that of the

[Commissioner].” (alteration in original) (quoting Bloodsworth, 703 F.2d at

1239)); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (noting that

this Court will not reverse a decision supported by substantial evidence even if,

had we been the finder of fact, we would have reached a contrary result and even if

the evidence preponderates against the Commissioner’s decision).

                                         III.

      For the reasons set forth above, the judgment of the District Court is

affirmed.

      AFFIRMED.




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