                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                        FILED
                         ________________________                .U .S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                                                   DECEMBER 22, 2006
                               No. 06-12693
                                                                    THOMAS K. KAHN
                           Non-Argument Calendar                        CLERK
                         ________________________

                     D. C. Docket No. 04-00453-CV-G-NE

DEBORAH M. SNEED,

                                                             Plaintiff-Appellant,

                                    versus

JO ANNE B. BARNHART,
Commissioner of Social Security Administration,

                                                            Defendant-Appellee.



                         ________________________

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

                             (December 22, 2006)



Before BIRCH, BLACK and FAY, Circuit Judges.

PER CURIAM:
      Deborah Sneed appeals the district court’s order affirming the

Commissioner’s denial of her application for disability insurance benefits, 42

U.S.C. § 405(g). On appeal, Sneed argues that (1) the Appeals Council erred in

failing to properly consider new evidence, (2) the administrative law judge (“ALJ”)

failed to fully and fairly develop the record regarding Sneed’s mental condition,

(3) the ALJ failed to properly consider the effects of the combination of Sneed’s

impairments, and (4) the Appeals Council did not give proper weight to the records

and opinions of the treating physician.

      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. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.

1997). We “may not decide the facts anew, reweigh the evidence, or substitute

[its] judgment for that of the Commissioner,” but rather we “must defer to the

Commissioner’s decision if it is supported by substantial evidence.” Miles v.

Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (internal citations omitted). In

addition, we will not consider an argument that a claimant did not raise before the

administrative agency or the district court. Kelley v. Apfel, 185 F.3d 1211, 1215

(11th Cir. 1999).

      To establish disability, a claimant must first show that she became disabled



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during the time for which she was insured by Social Security. 20 C.F.R.

§ 404.131(a); Ware v. Schweiker, 651 F.2d 408, 411 n.3 (5th Cir. Unit A July

1981). The claimant must demonstrate disability on or before the last date for

which she was insured. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

The ALJ must evaluate the following five criteria in deciding whether a claimant is

entitled to social security disability: (1) “[i]s the individual performing gainful

activity”; (2) “[d]oes she have a severe impairment”; (3) “[d]oes she have a severe

impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part

404, Subpart P, Appendix 1; (4) “[c]an she perform her past relevant work”; and

(5) “[b]ased on her age, education, and work experience, can she perform other

work of the sort found in the national economy.” Phillips v. Barnhart, 357 F.3d

1232, 1237 (11th Cir. 2004).

1.     Appeals Council’s Refusal to Consider New Evidence

       On appeal, Sneed argues that the Appeals Council erred in failing to

consider new evidence that she presented and to review or remand her case. She

contends that she had good cause for failing to submit medical records, tests, and

opinions of Dr. Craze and cardiologists Drs. Hartley and Wright1 because they


       1
         Although Sneed complains at this point in the brief about the omission from the record of
the medical records of Dr. Craze and “cardiologists Drs. Woodard and Wright,” which “were not
generated until after the hearing,” it appears that she actually means Drs. Hartley and Wright. In
her Statement of the Facts, Sneed notes that she submitted Dr. Craze’s record, including the October

                                                 3
were not generated until after the hearing. These documents provided

noncumulative evidence supporting her claims of weakness, pain, swelling of the

feet, mental depression, and confusion. Sneed continues by arguing that

Dr. Craze’s report establishes disability.

       The Appeals Council has discretion not to review the ALJ’s denial of

benefits; however, the Appeals Council must consider new and material evidence

in making its decision whether to review an ALJ’s decision. Falge v. Apfel, 150

F.3d 1320, 1324 (11th Cir. 1998). The Appeals Council must evaluate new and

material evidence submitted to it if the evidence relates to the period on or before

the date of the ALJ’s hearing decision. Keeton v. Dep’t of Health & Human

Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing 20 C.F.R. §§ 404.970(b),

416.1470(b)). The Appeals Council must show in its written denial of review that

it has adequately evaluated the new evidence. Epps v. Harris, 624 F.2d 1267, 1273

(5th Cir. 1980).

       Because the Appeals Council’s refusal to consider the submission of new

evidence before denying review amounts to an error of law, that decision is subject

to judicial review. See Keeton, 21 F.3d at 1066. If the Appeals Council has

already issued a final decision denying review, however, its refusal to reopen the


2003 referred consults to cardiologists Drs. Hartley and Wright.    Unlike the reports from
Drs. Hartley and Wright, Dr. Woodard’s report was before the ALJ.

                                             4
case is generally not subject to judicial review under 42 U.S.C. § 405(g). Cash v.

Barnhart, 327 F.3d 1252, 1256-57 (11th Cir. 2003) (recognizing exception when

claimant raises colorable constitutional issue).

      In this case, the Appeals Council found no reason to reopen and change its

January 8, 2004, decision based on the evidence from Dr. Craze that was

submitted. Although Sneed’s attorney claimed that he had sent this evidence

beforehand, that argument goes to the merits of the Appeals Council’s decision to

deny the motion to reopen. The Appeals Council considered the evidence

submitted before its initial denial of review, and we lack jurisdiction to review the

Appeals Council’s refusal to reopen.

2.    ALJ’s Obligation to Develop the Record on Sneed’s Mental Condition

      Sneed complains that, although she testified to behavior seemingly

consistent with depression, the ALJ did not request any consultative exams.

      The ALJ is under no obligation to seek independent, additional expert

medical testimony before concluding that an impairment is not severe. Wilson v.

Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999). When the record is based upon the

opinions of several physicians, there is no need for additional expert testimony. Id.

In any case where there is evidence that indicates the existence of a mental

impairment, the Commissioner may determine that the claimant is not under a



                                           5
disability, only if the Commissioner has made “every reasonable effort to obtain

the opinion of a qualified psychiatrist or psychologist.” McCall v. Bowen, 846

F.2d 1317, 1320 (11th Cir. 1988) (quoting 42 U.S.C. § 421(h)). McCall interprets

§ 421(h), which requires an ALJ to order a psychological consultation where there

is evidence of a mental impairment. The Third Circuit has held that the normal

requirement to order a psychiatric consult pursuant to § 421(h) does not apply to

cases falling under the limited exception found in § 421(d), or cases heard by an

ALJ. Plummer v. Apfel, 186 F.3d 422, 433 (3rd Cir. 1999) (holding that § 421(h)

consultation requirement applies only to cases falling under § 421(a), (c), (g), (I) at

the initial and reconsideration levels). In such cases, an ALJ has regulatory

flexibility to evaluate mental impairments to determine their severity. Id.; see also

20 C.F.R. § 404.1520a (evaluation of mental impairments).

      As an initial matter, we must determine whether Sneed has properly

preserved this issue for review. Although Sneed did not raise this issue as a

separate issue before the district court, she did argue that the Commissioner did not

consider “the effects of Dr. Craze’s opinions regarding Sneed’s marked restrictions

in ability to respond to customary work pressures, or to maintain attention,

concentration or pace for at least two hours.” She continues that “[t]here is no

evidence that the [Commissioner] considered this impairment in combination with



                                           6
the physical impairments.” Thus, we conclude that Sneed preserved the issue.

      Nevertheless, the only evidence Sneed cites is evidence that was presented to

the Appeals Council after it denied review. Not only was this evidence not before

the ALJ, Dr. Craze did not make this report until December 9, 2003, four months

after the ALJ’s August 8, 2003, decision. It is thus unclear how the ALJ erred in

failing to consider this evidence and to request any consultative examinations

based upon it before determining that Sneed did not suffer from a severe mental

impairment. See 20 C.F.R. § 404.131(a) (“To establish a period of disability, [the

claimant] must have disability insured status in the quarter in which [the claimant]

becomes disabled or in a later quarter in which [the claimant is] disabled.”).

      The references to Sneed’s depression that were before the ALJ are only

sporadic and indicate no severe mental disorders. Specifically, Sneed testified that

she was tearful and that she was on Zoloft, which is an antidepressant. Medical

records indicate that she was also on Xanax, which treats anxiety, and that she had

a “fair prognosis” from her diagnosis of depression. These brief references to

depression, which was apparently being treated with medication, were insufficient

to trigger the ALJ’s duty to obtain a psychological consultative report.

3.    ALJ’s Consideration of Effects of Combination of Sneed’s Impairments

      Sneed next argues that the ALJ failed to evaluate whether the combination of



                                          7
her impairments would be disabling due to her limited ability to engage in the basic

work activities. Specifically, she contends that the ALJ failed to address the

effects of Sneed’s apparent arthritis, her physiological age, the low ejection

fraction initially found following the heart attack, and Sneed’s fatigue and

weakness.

      When a claimant alleges several impairments, the ALJ has a duty to consider

the impairments in combination and to determine whether the combined

impairments render the claimant disabled. Jones v. Dep’t of Health & Human

Servs., 941 F.2d 1529, 1533 (11th Cir. 1991). The ALJ can satisfy this duty by

stating that he considered whether the claimant suffered from any impairment or

combination of impairments. Id.

      The ALJ’s determination in this case evidences consideration of the

combined effect of Sneed’s impairments. The ALJ twice noted Sneed’s arthritis

and depression, as well as her “allegations of disabling pain and other symptoms,”

including her testimony that she tired easily and suffered from swelling in her leg

and back. The ALJ made no finding as to Sneed’s physiological age but did note

her date of birth and found that she was “closely approaching advanced age. The

ALJ did not specifically note Sneed’s low ejection fraction but twice noted that the

record showed “good results” from the bypass surgery. The ALJ concluded that



                                           8
Sneed did not have “an impairment or combination of impairments listed in, or

medically equal to one listed in [20 C.F.R. Pt. 404, Subpt. P, App. 1].”

      Although Sneed complains that the ALJ did not consider her physiological

age, part of the evidence that her health was more consistent with someone 55

years old or older was from Dr. Craze’s report from December 2003. As stated

above, this evidence was not before the ALJ, and we lack jurisdiction to review the

Appeals Council’s decision not to reopen the case to make this evidence part of the

record. Dr. Henderson made the same finding regarding Sneed’s physiological

age. The Appeals Council made Dr. Henderson’s statement part of the record after

the ALJ’s decision was rendered. Dr. Henderson’s letter was dated June 2003,

however, and there was no evidence of Sneed’s physiological age on or before

September 30, 2001, her deadline for onset of disability. We conclude that the

ALJ’s determination evidences consideration of the combined effect of Sneed’s

impairments, in light of all the evidence that was properly before the ALJ.

4.    Weight Given to Records and Opinion of Treating Physician

      Sneed next contends that the Appeals Council erred in dismissing the

opinions of Dr. Craze, Sneed’s treating physician, because Dr. Craze related her

opinions to the period following recuperation from Sneed’s triple bypass.

      As discussed above, Dr. Craze’s records were not properly before the ALJ



                                          9
and were not submitted to the Appeals Council until after it rendered its initial

decision denying review. Under 42 U.S.C. § 405(g), we lack jurisdiction to review

the Appeals Council’s decision not to reopen the case, in light of Dr. Craze’s

opinions and records.

      Upon review of the administrative and district court records and the briefs

on appeal, we affirm.

      AFFIRMED.




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