            Case: 17-15133   Date Filed: 10/04/2018   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15133
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:16-cv-00689-LSC



PEGGY BATTLES,

                                                            Plaintiff-Appellant,

                                     versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

                                                           Defendant-Appellee.

                       ________________________

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

                             (October 4, 2018)

Before ED CARNES, Chief Judge, TJOFLAT, and NEWSOM, Circuit Judges.

PER CURIAM:
                Case: 17-15133    Date Filed: 10/04/2018    Page: 2 of 8


      Peggy Battles appeals the district court’s order affirming the Social Security

Commissioner’s denial of her application for supplemental security income, a

period of disability, and disability insurance benefits.

                                           I.

      Battles filed her application in January of 2013, alleging that she became

disabled in December of 2012. The Social Security Administration denied Battles’

application and her request for reconsideration, so she requested a hearing before

an administrative law judge.

      The ALJ denied Battles’ application on September 19, 2014, after applying

the five-step analysis for determining eligibility for disability insurance benefits.

See 20 C.F.R. § 404.1520(a)(4)(i)–(v). At the first three steps, the ALJ found that

Battles had not engaged in substantial gainful activity since December of 2012,

that many of her claimed impairments were severe but others were not, and that her

impairments did not meet or equal one of the impairments listed in the Code of

Federal Regulations. At the fourth step, the ALJ found that Battles had the

residual functional capacity to perform sedentary work with certain specified

restrictions but that she could not perform any relevant past work. At the fifth and

final step, the ALJ determined that there are jobs that exist in significant numbers

in the national economy that Battles could perform and that, as a result, she was

not disabled.


                                           2
              Case: 17-15133     Date Filed: 10/04/2018    Page: 3 of 8


      The Social Security Appeals Council denied Battles’ request to review the

ALJ’s decision. Having exhausted her administrative remedies, Battles filed a civil

action in the district court. The district court affirmed the ALJ’s decision.

                                          II.

      Where the ALJ denied benefits and the Appeals Council denied review of

that decision, “we review the ALJ’s decision as the Commissioner’s final

decision.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “We review

the Commissioner’s factual findings with deference and the Commissioner’s legal

conclusions with close scrutiny.” Id. That means “[t]he Commissioner’s factual

findings are conclusive if they are supported by substantial evidence, consisting of

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

a conclusion.” Id. (quotation marks omitted). “[W]e review de novo the legal

principles upon which the Commissioner’s decision is based.” Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005).

                                         III.

      Battles challenges the ALJ’s decision on four grounds. First, she contends

that the ALJ failed to give the proper weight to certain medical opinions. Second,

she contends that the ALJ improperly relied on his own observations of Battles

during the hearing. Third, she contends that the Appeals Council erroneously

refused to review additional evidence she submitted to it when it denied her request


                                          3
               Case: 17-15133     Date Filed: 10/04/2018    Page: 4 of 8


to review the ALJ’s decision. And fourth, she contends that when the submissions

to the Appeals Council are considered, the denial of her application was not

supported by substantial evidence.

                                          A.

      Battles first contends that the ALJ erred by giving little weight to the

medical opinions of three doctors: Dr. John Keithan, Battles’ treating physician

from July of 2011 until February of 2013; Dr. Jay Ripka, a physician who

examined Battles only once; and Dr. David Wilson, a psychologist who also

examined Battles only once.

      The ALJ must consider all relevant medical and other evidence to determine

a claimant’s residual functional capacity. Winschel v. Comm’r of Soc. Sec., 631

F.3d 1176, 1178 (11th Cir. 2011). “[T]he ALJ must state with particularity the

weight given to different medical opinions and the reasons therefor.” Id. at 1179.

The ALJ need not “specifically refer to every piece of evidence in his decision, so

long as the ALJ’s decision . . . is not a broad rejection” insufficient for us “to

conclude that the ALJ considered her medical condition as a whole.” Dyer v.

Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quotation marks and alterations

omitted).

      Battles argues that the ALJ did not give enough weight to the opinion of Dr.

Keithan, her treating physician. “Although the testimony of a treating physician is


                                           4
              Case: 17-15133      Date Filed: 10/04/2018   Page: 5 of 8


generally entitled to substantial or considerable weight, the ALJ may discount that

testimony when there is good cause.” Hunter v. Soc. Sec. Admin., Comm’r, 808

F.3d 818, 822–23 (11th Cir. 2015) (quotation marks omitted). “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.” Winschel, 631

F.3d at 1179 (quotation marks omitted). “We will not second guess the ALJ about

the weight the treating physician’s opinion deserves so long as he articulates a

specific justification for it.” Hunter, 808 F.3d at 223.

      “Here the ALJ did just that.” Id. Dr. Keithan opined that Battles was

incapable of lifting even five pounds and that she could not sit, stand, or walk for

any part of a workday. The ALJ found that opinion inconsistent with the other

evidence — including Dr. Keithan’s own records — and gave it little weight as a

result. “Because the ALJ’s rationale was adequate, we will not disturb the

credibility determination.” Id.

      Nor will we disturb the ALJ’s credibility determinations with respect to

Drs. Ripka and Wilson, who each examined Battles only once. Unlike the

opinions of a treating physician, the opinions of an examiner are not entitled to

substantial or considerable weight. See Gibson v. Heckler, 779 F.2d 619, 623

(11th Cir. 1986). Dr. Ripka opined that Battles could not walk or stand for fifteen


                                           5
              Case: 17-15133     Date Filed: 10/04/2018     Page: 6 of 8


minutes at a time and would need to lie down, sleep, or sit with her leg propped at

least at waist level for the vast majority of a workday. The ALJ gave Dr. Ripka’s

opinion little weight because it was inconsistent with the other evidence —

including Dr. Ripka’s own findings — and because Dr. Ripka did not have access

to Battles’ x-rays or MRIs. Dr. Wilson opined that Battles had serious mental

symptoms, including problems with memory and communication, that would make

it difficult for her to maintain any job. The ALJ found that none of Battles’

examining or treating physicians had observed mental symptoms as severe as those

observed by Dr. Wilson. The ALJ also noted that, based on his observations,

Battles did not exhibit any problems with memory or communication at the

hearing. As a result, the ALJ gave Dr. Wilson’s opinions little weight because they

were inconsistent with other evidence and the ALJ’s observations of Battles.

Those findings are all supported by substantial evidence.

                                          B.

      Battles next contends that the ALJ improperly relied upon his observations

of her at the hearing. Specifically, she argues that he substituted his opinion for

that of Dr. Wilson and engaged in “sit and squirm” jurisprudence. See Freeman v.

Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (“In th[e] [sit and squirm

jurisprudence] approach, an ALJ who is not a medical expert . . . subjectively




                                          6
               Case: 17-15133     Date Filed: 10/04/2018    Page: 7 of 8


arrive[s] at an index of traits which he expects the claimant to manifest at the

hearing. If the claimant falls short of the index, the claim is denied.”).

      “[A]n ALJ is afforded an opportunity to consider a claimant’s demeanor

during h[er] hearing. The ALJ, however, must not reject the objective medical

evidence and claimant’s testimony solely upon his observation during the

hearing . . . .” Norris v. Heckler, 760 F.2d 1154, 1158 (11th Cir. 1985). But “the

ALJ may consider a claimant’s demeanor among other criteria in making

credibility determinations,” id., and that’s what the ALJ did here. “[T]he ALJ

properly considered all the evidence presented,” id., and concluded that Dr.

Wilson’s opinions were inconsistent with other evidence and the ALJ’s

observations at the hearing. So while the ALJ relied on his observations to some

extent, there is no indication that he substituted his judgment for Dr. Wilson’s or

engaged in “sit and squirm” jurisprudence.

                                          C.

      Battles also contends that the Appeals Council erroneously refused to review

the additional evidence she submitted to it when it denied her request to review the

ALJ’s decision. That evidence consisted of records of psychological examinations

conducted in 2015 — after the ALJ’s decision.

      Additional evidence may be provided to the Appeals Council if the evidence

“is new, material, and relates to the period on or before the date of the [ALJ]


                                           7
              Case: 17-15133     Date Filed: 10/04/2018   Page: 8 of 8


hearing decision.” 20 C.F.R. § 404.970(a)(5); accord id. § 416.1470(a)(5). If the

additional evidence “does not relate to the period on or before the date of the [ALJ]

hearing decision,” the Appeals Council will reject it. Id. § 404.970(c); accord id.

§ 416.1470(c). Battles asserts that the Appeals Council did not consider whether

her additional evidence was relevant and instead focused only on the date of the

examinations. But the Appeals Council, while denying review, properly

determined that the additional evidence “does not affect the [ALJ’s] decision”

because it “is about a later time” — meaning it does not relate to the period on or

before the date of the ALJ hearing decision. See id. § 404.970(a)(5),

416.1470(a)(5). The Appeals Council thus rejected the additional evidence in the

course of denying her request to review the ALJ’s decision. No further

explanation was required. See Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d

780, 785 (11th Cir. 2014) (“[T]he Appeals Council is not required to explain its

rationale when denying a request for review.”).

                                         D.

      Finally, Battles contends that, when the evidence she submitted to the

Appeals Council is taken into account, the denial of her application was not

supported by substantial evidence. Because that contention simply rehashes the

arguments discussed above, it fails for reasons we have already discussed.

      AFFIRMED.


                                          8
