                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               November 29, 2005
                                 No. 05-12459
                                                               THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                        D. C. Docket No. 04-00410-CV-P-L

LELAND D. GIBBS,

                                                                 Plaintiff-Appellant,

                                       versus

JO ANNE B. BARNHART,

                                                               Defendant-Appellee.

                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Alabama
                          _________________________

                               (November 29, 2005)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Leland D. Gibbs appeals the district court’s order affirming the Social

Security Administration’s (“SSA’s”) denial of his applications for disability
insurance benefits (“DIB”), 42 U.S.C. § 405(g), and supplemental security income

(“SSI”), 1383(c)(3). In his applications, Gibbs claimed that he became disabled on

October 15, 1996, due to poor circulation in his legs, back pain, headaches, and

“bad nerves and depression.” When the denial of his applications initially was

reviewed by the district court, the court remanded to the SSA for further

consideration of Gibbs’s severe mental impairments. At a hearing before the

Administrative Law Judge (“ALJ”), a vocational expert (“VE”) testified that:

(1) Gibbs’s past position as a security guard was classified as semi-skilled work,

requiring “light” exertion; (2) without considering any physical limitations, an

individual with a personality disorder and depression, whose depression could be

controlled with medication, could perform the job of a security guard; and (3) if the

depression was marked and severe, where the person would not have the abilities

to have clear thought and to function, he could not do that job.

      In its final decision issued on November 19, 2003, the ALJ determined that

Gibbs did not have a severe physical impairment during the period in question.

Specifically noting that he had read the testimony and the statements made by the

lay witnesses and had “given them appropriate consideration in the overall

determination of this case,” the ALJ discussed the medical evidence of Gibbs’s

back pain, diabetes, hand tremors, headaches, leg swelling, and obesity. The ALJ



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noted that, although an examining physician, Dr. Gregory Evans, appeared to be

offering an opinion that Gibbs was disabled, he would not assign significant

evidentiary weight to the opinion because: (1) the issue of disability was one for

the SSA; and (2) none of Dr. Evans’s records indicated that Gibbs was limited in

his ability to perform basic work activities.

      Next, the ALJ discussed the evidence pertaining to Gibbs’s mental

impairments and concluded that Gibbs possessed the severe impairments of a

dysthymic disorder and a personality disorder, but found that, even considering his

impairments singly and in combination, they did not meet, or equal, the medical

criteria set forth in Listings 12.04 (affective disorder) or 12.08 (personality

disorder). The ALJ concluded that, “after considering all of the evidence of

record,” Gibbs had the Residual Functional Capacity (“RFC”) to perform work at

all exertional levels and had only mild limitations in his abilities to: (1) maintain

activities of daily living, since he could care for his personal needs without

assistance, do household chores, and drive; (2) function socially, since he attended

church on a regular basis, questioning whether Gibbs’s bizarre behavior was

willful, since he was able to respond appropriately during his group therapy

sessions; and (3) maintain concentration, persistence, or pace, since Gibbs testified

that he reads, watches television for several hours per day, and drives, all of which



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require an elevated level of concentration. The ALJ found that there was no

evidence that Gibbs had suffered any episodes of deterioration or decomposition.

He specifically noted that, in making this determination, he had “assigned the

appropriate evidentiary weight” to the information provided by Gibbs’s physician

and social worker at Mobile Medical Health Center (“MMHC”).

      The ALJ next determined that, based on the VE’s testimony, Gibbs had the

ability to perform his past relevant work as a security guard. The ALJ concluded:

      After carefully considering all of the evidence, including the hearing
      testimony and the effects of [Gibbs’s] impairments, the undersigned
      finds that [Gibbs] is not disabled in that he has been physically and
      mentally capable of performing his past relevant work as a security
      guard . . .

      Gibbs then submitted, before the Appeals Council (“AC”), a supplemental

affidavit, dated March 4, 2004, from his brother, Adrian Gibbs, stating that: (1) on

February 2, 2004, Gibbs’s mother was placed in a nursing home, leaving Gibbs

living alone; (2) upon visiting Gibbs, on February 28, 2004, Adrian found that the

house was infested with roaches and mice and was in a “generally unhealthy

condition”; (3) when Adrian took Gibbs to Catholic Social Services, Gibbs had

trouble carrying on a conversation, “wet[] himself,” had trouble staying awake, and

was drooling; (4) Gibbs lost his temper when Adrian tried to keep him from eating

candy, although he was still taking medication for his diabetes; (5) Gibbs had



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trouble feeding himself and would choke on and vomit food; (6) Gibbs had

overdrawn his mother’s checking account; and (7) Adrian was trying to convince

Gibbs to move to a group home, since he had concerns about Gibbs’s ability to live

by himself safely. The AC denied review, noting that Adrian’s affidavit indicated

that Gibbs’s condition was deteriorating, but there was no medical documentation,

and suggesting that Gibbs consider filing a new application for SSI benefits.

      On June 2, 2004, Gibbs requested, from the AC, an extension of time to

supplement the record, stating that: (1) he had been charged, in the U.S. District

Court for the District of South Carolina, with willful failure to pay child support;

and (2) the case recently had been dismissed. The AC acknowledged the letter, but

noted that, since Gibbs had filed an appeal in the district court, it did not have

jurisdiction over the matter. The district court affirmed the ALJ’s decision.

                                I. The ALJ’s decision

      On appeal, Gibbs argues that substantial evidence does not support the

ALJ’s conclusion that he was not disabled, in light of the ALJ’s failure to consider

the record as a whole. He argues that the record showed that he suffered from

numerous, permanent, mental and physical impairments and contends that the ALJ

erred by not considering his physical and mental impairments in combination. He

points out also that the ALJ: (1) ignored references in the record to Gibbs’s many



                                           5
conditions; (2) belittled lay testimony; (3) implied that Gibbs’s back had healed;

(4) ignored a treating physician’s recommendation that Gibbs needed a

neurological examination; (5) failed to discuss evidence that Gibbs’s IQ was 60,

which, under Listing 12.05 (mental retardation), established that Gibbs was

disabled; (6) rejected mental health records prepared by a social worker; (7) failed

to supplement the record with Gibbs’s psychiatric hospitalization records; and (8)

failed to develop evidence of the side effects of Gibbs’s medications. Gibbs

further argues that the ALJ erred by ignoring the VE’s testimony that, if Gibbs

suffered from severe mental impairments, he would be unable to work, essentially

ignoring the district court’s mandate, in remanding the case to the ALJ, that

Gibbs’s mental impairments were to be considered severe. Finally, Gibbs argues

that the government is estopped from arguing that he was not disabled because the

issue was determined in his favor by the U.S. District Court of South Carolina,

when it dismissed his ex-wife’s claim against him for child support, based on his

disability.

       We review a social security case to determine whether the Commissioner’s

decision is supported by substantial evidence and whether the correct legal

standards were applied. Lewis v. Callahand, 125 F.3d 1436, 1439 (11th Cir.

1997). “Substantial evidence is defined as more than a scintilla, i.e., evidence that



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must do more than create a suspicion of the existence of the fact to be established,

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

support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).

      The Social Security Regulations outline a five-step sequential evaluation

process used for determining whether a claimant is disabled. Jones v. Apfel, 190

F.3d 1224, 1228 (11th Cir. 1999). First, the claimant must prove that he has been

unable to engage in substantial gainful activity. Id. Second, the claimant must

prove that he suffers from a severe impairment or combination of impairments. Id.

In step three, if the claimant can prove that his impairment meets or equals a listed

impairment, he automatically is deemed disabled. Id. If his impairment does not

meet or equal a listed impairment, he must proceed to step four and prove that he is

incapable of performing his past relevant work. Id. Finally, at step five, the

burden shifts to the SSA “to determine if there is other work available in

significant numbers in the national economy that the claimant is able to perform,”

and, if the SSA meets its burden, the claimant then must prove that he cannot

perform those jobs. Id. An impairment or combination of impairments is not

severe if it “does not significantly limit [the claimant’s] physical or mental ability

to do basic work activities,” including: (1) “walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling;” (2) “[c]apacities for seeing,



                                            7
hearing, and speaking;” (3) “[u]nderstanding, carrying out, and remembering

simple instructions;” (4) “[u]se of judgment;” (5) “[r]esponding appropriately to

supervision, co-workers and usual work situations;” and (6) “[d]ealing with

changes in a routine work setting.” 20 CFR § 404.1521(a), (b).

      “Where a claimant has alleged several impairments, the [Commissioner] has

a duty to consider the impairments in combination and to determine whether the

combined impairments render the claimant disabled.” Jones v. Dept. of Health and

Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991). Indeed, an ALJ is

required to address the “degree of impairment caused by the combination of

physical and mental medical problems.” Strickland v. Harris, 615 F.2d 1103, 1110

(5th Cir. 1980). We have held that the ALJ properly considered the claimant’s

impairments in combination when he stated that, “based upon a thorough

consideration of all evidence, the ALJ concludes that appellant is not suffering

from any impairment, or a combination of impairments of sufficient severity to

prevent him from engaging in any substantial gainful activity for a period of at

least twelve continuous months.” Wheeler v. Heckler, 784 F.2d 1073, 1076 (11th

Cir. 1986).

      We find that substantial evidence supports the ALJ’s conclusion that Gibbs’s

physical impairments, even considered in combination, were not severe, because,



                                          8
although the record shows that, over time, Gibbs complained of poor circulation in

his legs, headaches, diabetes, insomnia, impotence, hand tremors, and gout, there is

no evidence that these impairments interfered with his ability to do basic work

activities or that he continuously sought treatment for his physical impairments.

Substantial evidence also supports the ALJ’s finding that, although Gibbs’s mental

impairments were severe, he retained the RFC to perform his past relevant work as

a security guard. The ALJ was permitted to rely on the VE’s testimony that a

person with a personality disorder and depression, whose depression did not cause

marked limitations in his ability to think, could perform the job of a security guard,

since the hypothetical was reflective of the medical evidence as to Gibbs’s

impairments. While it is clear that, in determining their severity, the ALJ analyzed

Gibbs’s physical and mental impairments separately, nevertheless, a careful review

of the record shows that, in making his final determination that Gibbs could

perform his past relevant work, the ALJ properly considered Gibbs’s physical and

mental impairments in combination. Moreover, the ALJ properly considered all of

the evidence in this case, and the ALJ’s decision was entirely consistent with the

district court’s order on remand, since he concluded that Gibbs possessed the

severe mental impairments of a dysthymic disorder and a personality disorder.

Finally, even assuming that the South Carolina district court had determined that



                                           9
Gibbs was disabled, in the context of a child support claim, such determination

would not be binding in the instant case. See 20 C.F.R. § 404.1504.

                             II: Supplemental Evidence

      Gibbs further contends that the AC erred by finding that his supplemental

affidavit, which had not been before the ALJ, indicated that his condition was

deteriorating, since there was no medical evidence that his condition had

deteriorated. He argues that the affidavit did not show that his condition had

deteriorated, but instead, showed that the severity of his condition had become

apparent only when he stopped receiving care from his mother. He argues that the

AC’s suggestion, that he re-apply for benefits, showed a misunderstanding of the

matter, contending that the affidavit should have been considered.

      We review whether remand is necessary de novo. Hyde v. Bowen, 823 F.2d

456, 458-59 (11th Cir. 1987). To be entitled to remand to the SSA for

consideration of newly discovered evidence, the claimant must show that “(1) new,

noncumulative evidence exists, (2) the evidence is material such that a reasonable

probability exists that the new evidence would change the administrative result,

and (3) good cause exists for the [claimant’s] failure to submit the evidence at the

appropriate administrative level.” See Falge, 150 F.3d at 1323. The new evidence

must relate to the time period on or before the date of the ALJ’s decision. See 20



                                          10
C.F.R. § 404.970(b). Because evidence submitted to the AC concerned Gibbs’s

condition after the ALJ’s final decision, it was not material to the decision, and

remand is not required.

      AFFIRMED.




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