          Case: 14-12471   Date Filed: 04/10/2015   Page: 1 of 11


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12471
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 8:12-cv-02536-TBM



DWAYNE NORTON,

                                                           Plaintiff-Appellant,

                                versus

COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant-Appellee.

                      ________________________

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

                             (April 10, 2015)

Before HULL, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Dwayne Keith Norton appeals the affirmance of the Social Security

Administration’s denial of his claim for disability and supplemental security

income benefits. He argues on appeal that the Administrative Law Judge (“ALJ”)

erred by failing to consider his complaint of urinary incontinence when denying his

disability claim and by improperly applying the Medical-Vocational Guidelines

(“Grids”) without hearing testimony from a vocational expert (“VE”), after

evidence demonstrated that he had a non-exertional limitation, namely urinary

incontinence, that prevented him from performing the full range of medium work.

Additionally, he contends that the district court erred by failing to remand the case

for further consideration in light of additional evidence he submitted to the

Appeals Council. We will address each argument in turn.

                      I. Subjective Complaints Before the ALJ

      We review the Commissioner’s decision for substantial evidence. Winschel

v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial

evidence is more than a scintilla and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Id. (quotations

omitted). This Court “may not decide the facts anew, reweigh the evidence, or

substitute [its] judgment for that of the [Commissioner].” Id. The individual

seeking Social Security disability benefits bears the burden of proving that he is

disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).


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      We will review the Commissioner’s legal conclusions de novo. Id. When

the Appeals Council denies review of the ALJ’s decision, we review the ALJ’s

decision as the Commissioner’s final decision. Doughty v. Apfel, 245 F.3d 1274,

1278 (11th Cir. 2001).

      The Commissioner uses

      a five-step, sequential evaluation process . . . to determine whether a
      claimant is disabled: (1) whether the claimant is currently engaged in
      substantial gainful activity; (2) whether the claimant has a severe
      impairment or combination of impairments; (3) whether the
      impairment meets or equals the severity of the specified impairments
      in the Listing of Impairments; (4) based on [the RFC] assessment,
      whether the claimant can perform any of his or her past relevant work
      despite the impairment; and (5) whether there are significant numbers
      of jobs in the national economy that the claimant can perform given
      the claimant’s RFC, age, education, and work experience.

20 C.F.R. § 404.1520(a)(4); Winschel, 631 F.3d at 1178. The RFC is “that which

an individual is still able to do despite the limitations caused by his or her

impairments.” Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). The

ALJ considers all of the evidence in the record in determining the claimant’s RFC.

Id.

      The ALJ must “articulate specific reasons for questioning the claimant’s

credibility” if subjective symptom testimony is “critical” to the claim. Marbury v.

Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). “A clearly articulated credibility

finding with substantial supporting evidence in the record will not be disturbed by

a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995); see also
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Moore, 405 F.3d at 1212 (“We recognize that credibility determinations are the

province of the ALJ.”). “The credibility determination does not need to cite

particular phrases or formulations but it cannot merely be a broad rejection which

is not enough to enable . . . this Court to conclude that the ALJ considered [the]

medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.

2005) (quotations and alterations omitted).

      “It is well-established that the ALJ has a basic duty to develop a full and fair

record.” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Consequently, the

ALJ must “‘scrupulously and conscientiously probe into, inquire of, and explore

for all relevant facts.’” Cowart v. Schwieker, 662 F.2d 731, 735 (11th Cir. 1981)

(quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)). The ALJ must

consider all of the impairment evidence presented at the hearing, stating the weight

accorded to each item and the reasons for accepting or rejecting the evidence.

Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990).

      The ALJ adequately considered the evidence in the record at the time of the

hearing related to Norton’s present claim of urinary incontinence. The record

before the ALJ only included a single reference to urinary issues, wherein Norton

asked Dr. Biggers for an adult diaper prescription and for hydrocortisone ointment

to deal with a rash caused by leaking urine. Importantly, the complaints to




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Petschell and Dr. Fusia did not occur until months after the ALJ decision issued,

and were therefore unavailable for consideration.

      Substantial evidence also supported the ALJ’s conclusion that Norton did

not suffer from a severe impairment caused by urinary incontinence, which was not

included in his application as a disabling impairment. Norton testified before the

ALJ that he had to urinate once an hour as a result of his pain medication, but he

did not include this complaint among his reasons he believed that he could not

work. However, as the ALJ noted, Norton’s subjective complaints were often not

supported, and were sometimes contradicted, by objective findings in the medical

records. Medical records indicated that he would not give full effort during exams,

that he would claim pain when it did not appear warranted, and that he made

requests for supplies and prescriptions that he did not need. Thus, substantial

evidence also supported the ALJ’s conclusion that Norton was not entirely credible

in his testimony. Foote, 67 F.3d at 1562.

      With no other evidence of urinary problems in the medical records, and his

limited testimony regarding the impairment being not entirely credible, the ALJ

adequately considered the evidence of his complaint, and did not err by concluding

that Norton’s urinary incontinence complaint was not a severe impairment. Lucas,

918 F.2d at 1574. Accordingly, we affirm in this respect.




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                         II. Medical-Vocational Guidelines

      There are two ways in which the ALJ may determine whether a claimant has

the ability to adjust to other work in the national economy: (1) by applying the

Grids; or (2) by the use of a VE, an expert on the kinds of jobs an individual can

perform based on his capacity and impairments. Phillips, 357 F.3d at 1239-40. It

is not proper for the ALJ to rely exclusively on the Grids when the claimant is

unable to perform a full range of work at a given exertional level. Id. at 1242. The

Grids provide an algorithm to determine claimants’ ability to engage in

employment other than their past work based on factors such as a person’s age,

education, previous employment, and maximum physical capabilities. Gibson v.

Heckler, 762 F.2d 1516, 1520 (11th Cir. 1985). Each variable on the appropriate

Grid must “accurately [describe] the claimant’s situation.” Walker v. Bowen, 826

F.2d 996, 1003 (11th Cir. 1987).

      When looking specifically at non-exertional limitations, an ALJ “need only

determine whether [the] non-exertional impairments significantly limit [basic]

work skills,” which include a wide range of work at a given work level. Phillips,

357 F.3d at 1243. If the ALJ determines that non-exertional limitations do not

significantly limit basic work skills at the assigned work level, the ALJ may rely

on the Grids to determine if a claimant is disabled; otherwise, the ALJ must consult

a VE. Id.


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      Here, the ALJ concluded, at step four, that Norton retained the physical RFC

to perform medium work, and that finding is undisputed on appeal. The ALJ

concluded that Norton did not have any non-exertional limitations, and, as noted in

Issue One, supra, substantial evidence supported the ALJ’s decision not to consider

Norton’s urinary incontinence claim as a limitation on his ability to perform

medium exertion work. Norton has not argued that there were any other non-

exertional limitations that the ALJ should have recognized, thereby requiring VE

testimony, and, as such, the ALJ was justified in relying solely on the Grids.

Phillips, 357 F.3d at 1243. The ALJ noted that Norton had changed age categories

under the Grids between the time he filed his application and the time of his

hearing, but, applying the appropriate guideline for either age category, each

criterion of which described Norton, the ALJ correctly concluded that Norton was

not disabled. See 20 C.F.R. pt. 404, subpt. P, app. II, §§ 203.21 and 203.28;

Walker, 826 F.2d at 1003. Accordingly, we affirm in this respect, as well.

                         III. Denial of Motion for Remand

      We review a magistrate’s decision regarding the necessity of a remand to the

Commissioner based on new evidence de novo. Vega v. Comm’r of Soc. Sec., 265

F.3d 1214, 1218 (11th Cir. 2001).

      A claimant is generally permitted to present new evidence at each stage of

the administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,


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1261 (11th Cir. 2007). “The Appeals Council must consider new, material, and

chronologically relevant evidence and must review the case if the [ALJ’s] action,

findings, or conclusion is contrary to the weight of the evidence currently of

record.” Id. (quotation omitted). The Appeals Council must “adequately evaluate”

new evidence. Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980) (remanding so

that a determination of disability could be made on the record as a whole where the

Appeals Council had “perfunctorily adhered to the decision of the hearing

examiner” without sufficiently evaluating the new evidence). The Appeals

Council is not required to provide a detailed explanation of the claimant’s new

evidence when denying a request for review. Mitchell v. Comm’r, Soc. Sec.

Admin., 771 F.3d 780, 784-85 (11th Cir. 2014).

      Where a claimant seeks review in a federal court of the Commissioner’s

final decision, the district court may remand the case to the Commissioner using

two methods under 42 U.S.C. § 405(g): “sentence four” remands and “sentence

six” remands. Ingram, 496 F.3d at 1261. Sentence four and sentence six remands

serve different purposes. Jackson v. Chater, 99 F.3d 1086, 1095 (11th Cir. 1996).

“[A] sentence-four remand is based upon a determination that the Commissioner

erred in some respect in reaching the decision to deny benefits,” whereas “[a]

sentence-six remand does not result from any error by the Commissioner.” Id.




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      Under the fourth sentence of § 405(g), the district court may affirm, modify,

or reverse the Commissioner’s decision, with or without remanding for rehearing.

Ingram, 496 F.3d at 1261. Sentence four is applicable when the evidence was

properly before the Commissioner, but “the Appeals Council did not adequately

consider the additional evidence.” Id. at 1268 (quotation omitted). A sentence

four remand is warranted only where the Commissioner’s decision was not

supported by substantial evidence or where the Commissioner or ALJ incorrectly

applied the relevant law. Jackson, 99 F.3d at 1092.

      Under the sixth sentence of § 405(g), the district court may remand the case

“to the Commissioner for the taking of additional evidence upon a showing that

there is new evidence which is material and that there is good cause for the failure

to incorporate such evidence into the record in a prior proceeding.” Ingram, 496

F.3d at 1261 (quotation omitted). The evidence must also be noncumulative.

Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). A sentence six remand is

“appropriate when the district court learns of evidence not in existence or available

to the claimant at the time of the administrative proceeding that might have

changed the outcome of that proceeding.” Sullivan v. Finkelstein, 496 U.S. 617,

626, 110 S.Ct. 2658, 2664, 110 L.Ed.2d 563 (1990); Hyde v. Bowen, 823 F.2d 456,

459 (11th Cir. 1987). The district court is not authorized by sentence six “to




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remand for reconsideration of evidence previously considered by the Appeals

Council.” Ingram, 496 F.3d at 1269.

      Here, Norton’s contention that remand was necessary because the Appeals

Council did not adequately evaluate his newly submitted evidence is meritless.

The Appeals Council stated that it had considered the additional evidence, listed

what that specific evidence was, and concluded without elaboration that the

evidence did not provide a basis for changing the ALJ’s decision. The Appeals

Council was not required to provide a thorough explanation of its decision.

Mitchell, 771 F.3d at 784-85. Additionally, although Norton submitted several

pieces of new evidence, the Appeals Council was only required to consider those

that related to the period on or before the August 2011 ALJ hearing decision. See

20 C.F.R. § 416.1470(b). Accordingly, although the Appeals Council did not

acknowledge this fact, the urology records from 2012 were not properly a part of

the administrative record. See id.

      Next, the magistrate judge did not err in refusing to remand Norton’s case.

There was no error under sentence six because, although the evidence was new and

noncumulative, and Norton had good cause for failing to produce the records

before the ALJ, because they did not yet exist, the records were not material

because they would not have changed the outcome of the proceeding. See

Sullivan, 496 U.S. at 626, 110 S.Ct. at 2664; Ingram, 496 F.3d at 1261. Although


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Norton complained of 6 to 12 months of urinary issues when he first sought

treatment from Dr. Fusia, and he was given several prescriptions to resolve his

frequent urination, there were no objective findings that supported his subjective

complaints, and no indication that his frequent urination prevented him from

performing the full range of medium work. Even assuming his complaint was true,

the ALJ was already aware of his urinary issues through the records from Dr.

Biggers and Norton’s hearing testimony, and thus it did not appear probable that

the new evidence would have produced a different result. Hyde, 823 F.2d at 459.

On the above, the magistrate judge did not err in refusing to remand Norton’s case

for consideration of the additional medical records, and thus we affirm the district

court’s denial of Norton’s motion for remand.

      AFFIRMED.




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