          Case: 13-11466   Date Filed: 03/27/2014   Page: 1 of 11


                                                         [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________


                            No. 13-11466
                      ________________________

                  D.C. Docket No. 4:11-cv-00231-HLM




EDUARDO PATRICIO CACES,

                                                           Plaintiff-Appellant,


                                 versus



COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,                                           Defendant-Appellee.
                  ________________________

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

                           (March 27, 2014)
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Before WILSON, Circuit Judge, and BUCKLEW, * and LAZZARA, ** District
Judges.

PER CURIAM:

       Eduardo Caces appeals from the district court’s judgment affirming the

administrative law judge’s (“ALJ”) denial of his application for disability

insurance benefits, 42 U.S.C. § 405(g). He first argues that the ALJ erred in failing

to call a medical adviser to testify about the onset date of his disability. Second, he

argues that the ALJ erred in making a credibility conclusion without articulating

his reasons, and that he erred in his credibility determination because the medical

evidence supports Caces’s symptoms and because the ALJ gave too much weight

to the opinions of the non-examining medical consultants. Finally, Caces argues

that the Appeals Council erred in failing to make specific findings about newly

submitted evidence and in denying review.

A. ALJ’s Failure to Call A Medical Expert

       Although Social Security Rulings are not binding, we accord the rulings

great respect and deference if the underlying statute is unclear and the legislative

history offers no guidance. B. B. ex rel. A. L. B. v. Schweiker, 643 F.2d 1069, 1071




       *
         Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
       **
          Honorable Richard L. Lazzara, United States District Judge for the Middle District of
Florida, sitting by designation.
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(5th Cir. 1981).1 Social Security Ruling 83-20 prescribes the policy and procedure

by which the Commissioner should determine the onset date of a disability. See

SSR 83-20. It defines the onset date as “the first day an individual is disabled as

defined in the Act and the regulations.” SSR 83-20. “In addition to determining

that an individual is disabled, the decisionmaker must also establish the onset date

of disability,” which may be critical to determinations such as the period for which

the individual will be paid. Id.

       Caces filed for disability benefits on August 3, 2007, alleging that the date of

onset of disability was June 22, 2006, the same day he underwent spinal fusion

surgery. Caces initially enjoyed overall improvement after the surgery.

Approximately three months after the surgery, physical therapy caused increased

back pain for which he received various types of injections. The injections and

other pain medication proved moderately successful with an injection in November

2006 providing immense relief. He did not seek or receive any other treatment or

undergo further surgery until after the date he was last insured, which was

December 31, 2006.

       After a hearing, the ALJ found that his severe impairments relating to his

lumbar and obesity did not individually or in combination meet or equal a listed


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October
1, 1981.
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impairment through the date last insured. The ALJ further determined after careful

consideration of the entire record that Caces had the residual functional capacity to

perform limited light work through the date last insured, and was not under a

disability at any time from June 22, 2006, through December 31, 2006. None of

the medical records presented to the ALJ or the Appeals Council indicate that

Caces suffered a disability at any time before his insured status ended.

       Despite the adequacy of the medical records in this case, Caces argues that

March v. Massanari, No. 00-16577, 265 F.3d 1065 (Table) (11th Cir. Jul. 10,

2001), an unpublished opinion,2 is controlling and therefore remand is appropriate

to determine the date of onset of disability. The ALJ in March found that the

claimant was not disabled before the date last insured, based on the absence of

sufficient medical evidence for the period of insurance from which to ascertain the

date of onset. All of March’s physicians who treated him several years after the

date he was last insured, however, determined that he evidenced signs of bipolar

disorder at least six years before his insured status ended. Thus, the uncertain date

of onset for March would need to be inferred, given the sparse medical record

predating the date last insured and the overwhelming evidence that came to light

after the date last insured from his then treating physicians. The circumstances of


       2
          Unpublished decisions of this Court are not binding precedent. See 11th Cir. R. 36-2.
We nevertheless address March because Caces claims his case is “on all fours” with March and
therefore mandates remand.
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March presented precisely the situation under SSR 83-20 calling for a medical

advisor to assist in determining an inferred onset date.

      Unlike March, this case does not involve the uncertainty of an onset date of

disability based on the medical records, or lack thereof, generated during the

insured period. The file in this case before the ALJ and the Appeals Council is

replete with medical evidence that supported the finding that Caces was not

disabled at any time between the date of the alleged onset in June 2006 and the

date last insured of December 31, 2006. There was no need for assistance from a

medical advisor to determine the date of onset because the unambiguous medical

evidence shows Caces was not disabled before the date of last insured.

      The plain language of SSR 83-20 indicates that it is applicable only after

there has been a finding of disability and it is then necessary to determine when the

disability began. See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217,

1224-25 (11th Cir. 2001) (noting that in construing a statute, we look to the plain

meaning of the actual language). In this case, the ALJ found that Caces was not

disabled prior to the date last insured based on ample, unambiguous medical

evidence from both before and after the date last insured. Therefore, because the

ALJ did not find that Caces was disabled, and because that finding is supported by

the evidence, the ALJ did not err in failing to call a medical expert to determine an

onset date of such a disability. Accordingly, we affirm with respect to this issue.


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B. ALJ’s Credibility Determination

      In order to be eligible for disability insurance benefits, a claimant must

demonstrate a disability on or before the last date on which he was insured. 42

U.S.C. § 423(a)(1)(A). Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)

(per curiam). Because Caces’s date last insured was December 31, 2006, his

appeal requires a showing of disability on or before that date. See Moore, 405 F.3d

at 1211. In Social Security appeals, we review the decision of an ALJ as the

Commissioner’s final decision when the ALJ denies benefits and the Appeals

Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274,

1278 (11th Cir. 2001). We review the Commissioner’s legal conclusions de novo

and consider whether the Commissioner’s factual findings are supported by

substantial evidence. Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002) (per

curiam). “Substantial evidence is more than a scintilla and is such relevant

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

conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

      When a claimant attempts to establish disability through his own testimony

concerning pain or other subjective symptoms, we apply a three-part test, which

requires “(1) evidence of an underlying medical condition; and (2) either

(a) objective medical evidence confirming the severity of the alleged pain; or (b)

that the objectively determined medical condition can reasonably be expected to


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give rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.

2002) (per curiam).

      If the record shows that the claimant has a medically determinable

impairment that could reasonably be expected to produce his symptoms, the ALJ

must evaluate the intensity and persistence of the symptoms in determining how

they limit the claimant’s capacity for work. 20 C.F.R. § 404.1529(c)(1). In doing

so, the ALJ considers all of the record, including the objective medical evidence,

the claimant’s history, and statements of the claimant and his doctors. Id.

§ 404.1529(c)(1)— (2). The ALJ may consider other factors, such as: (1) the

claimant’s daily activities; (2) the location, duration, frequency, and intensity of

the claimant’s pain or other symptoms; (3) any precipitating and aggravating

factors; (4) the type, dosage, effectiveness, and side effects of the claimant’s

medication; (5) any treatment other than medication; (6) any measures the claimant

used to relieve pain or symptoms; and (7) other factors concerning the claimant’s

functional limitations and restrictions due to pain or symptoms. Id.

§ 404.1529(c)(3). The ALJ then will examine the claimant’s statements regarding

his symptoms in relation to all other evidence, and consider whether there are any

inconsistencies or conflicts between those statements and the record. Id.

§ 404.1529(c)(4).




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        “After considering a claimant’s complaints of pain, the ALJ may reject them

as not creditable, and that determination will be reviewed for substantial evidence.”

Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (per curiam). The ALJ

must explicitly and adequately articulate his reasons if he discredits subjective

testimony. Id. The testimony of a treating physician must be given substantial or

considerable weight unless “good cause” is shown to the contrary. Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Nevertheless, we

upheld in Edwards v. Sullivan the ALJ’s reliance on a non-examining physician’s

report in denying disability benefits when the report did not contradict information

in examining physicians’ reports. 937 F.2d 580, 584-85 (11th Cir. 1991).

        The ALJ specifically and adequately articulated his reasons for discrediting

Caces and substantial evidence supported that determination. Having found that

the objective medical findings were consistent with the residual functional capacity

assessment given near the end of the insured period, the ALJ properly determined

the magnitude of the complaints inconsistent to the extent the pain would impair

Caces from performing reduced light work. Throughout the insured period, the

medical findings indicate that the pain was controlled with medication and

injections without incident. During the first three months after the surgery, his

symptoms improved significantly, permitting him to walk normally with greater

ease.


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      In discrediting the subjective complaints, the ALJ correctly gave “little

weight” to the medical evidence presented by Dr. Chappuis because he did not

begin treating Caces until March 2008, long after his date last insured had passed.

The ALJ gave appropriate weight to the two state medical consultants whose

opinions supported a finding that Caces was able to perform limited light work

prior to and through the date last insured. Although the evidence showed a

progressive worsening of Caces’s condition over a time period extending past his

date last insured, the record did not support Caces’s assertions of pain so severe,

persistent, and limiting such that he was rendered disabled before his date last

insured. Accordingly, we affirm as to this issue.

C. Denial of Review by the Appeals Council

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

benefits; however, if the claimant submits new noncumulative and material

evidence to the Appeals Council after the ALJ’s decision, it must consider such

evidence where it relates to the period on or before the date of the ALJ’s hearing

decision. 20 C.F.R. § 404.970(b); see also Keeton v. Dep’t of Health & Human

Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). The Appeals Council must

adequately evaluate the new evidence. Epps v. Harris, 624 F.2d 1267, 1273 (5th

Cir. 1980). Where the Appeals Council does not adequately evaluate new

evidence, but instead perfunctorily adheres to the ALJ’s decision, the


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Commissioner’s findings are not supported by substantial evidence. Bowen v.

Heckler, 748 F.2d 629, 634 (11th Cir. 1984).

       Apart from the Appeals Council’s decision, we review de novo the district

court’s judgment. See Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th

Cir. 2007). When new evidence is submitted to and accepted by the Appeals

Council and it denies review, the district court conducts a new review of the

evidence independently of the Appeals Council. Id. at 1266. The district court

must consider the new evidence submitted to the Appeals Council and determine

whether the Commissioner’s decision is contrary to the weight of the evidence

currently of record. 20 C.F.R. § 404.970(b); Id. “[B]ecause a reviewing court

must evaluate the claimant’s evidence anew, the [Appeals Council] is not required

to provide a thorough explanation when denying review.” Burgin v. Comm’r of

Soc. Sec., 420 F. App’x 901, 903 (11th Cir. 2011) (per curiam) (citing Ingram, 496

F. 3d at 1262).3

       The new evidence submitted by Caces to the Appeals Council consisted of

additional treatment notes from Dr. Kabakibou, a surgeon and pain management

specialist, from 2002 through 2007. Caces argues that Dr. Kabakibou’s repeated

diagnosis of failed back syndrome before December 31, 2006, remained


       3
          See also Mansfield v. Astrue, 395 F. App’x 528, 530 (11th Cir. 2010) (per curiam)
(holding same); Robinson v. Astrue, 365 F. App’x 993, 997 (11th Cir. 2010) (per curiam)
(determining that Appeals Council did not err in failing to make specific findings).
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unchanged, as did the reports of pain, through October 2007, when he told Caces to

apply for disability benefits. This additional evidence, however, does not change

the substantial evidence that the medication and injections moderately controlled

the pain, with the injection given on November 8, 2006, helping “tremendously.”

Even though Dr. Kabakibou diagnosed Caces with failed back syndrome, low back

pain, and other conditions before and after the insured status expired, he never

indicated any functional limitations or work restrictions, nor did he consider Caces

disabled, at any time on or before December 31, 2006.

      The Appeals Council did not err in denying review in light of Caces’s new

evidence. The Appeals Council adequately considered the new evidence and

expressly found that it did not provide a basis for changing the ALJ’s decision.

Caces’s newly submitted evidence would not have changed the ALJ’s conclusion.

Nothing in the record suggests that, with respect to the time period of June 2006

through December 31, 2006, Caces was functionally limited such that he could not

perform at a reduced range of light work. Accordingly, we affirm.

AFFIRMED.




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