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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16877
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:15-cv-02234-RDP



HEATHER YATES,

                                                            Plaintiff-Appellant,

                                 versus

COMMISSIONER OF SOCIAL SECURITY,

                                                           Defendant-Appellee.

                       ________________________

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

                            (October 24, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Appellant Heather Yates appeals the district court’s order affirming the

Administrative Law Judge’s (“ALJ”) decision denying her applications for

disability insurance benefits and supplemental security income. On appeal, Yates

challenges the weight the ALJ assigned to the opinion of her treating physician.

She also argues that the ALJ posed an improper hypothetical to the vocational

expert. Finally, she argues that the Appeals Council erred by declining to review

the additional evidence she submitted. After careful review, we affirm.

I.     BACKGROUND

       In 2012, Yates filed an application for disability insurance benefits and

supplemental security income with the Social Security Administration. Alleging a

disability onset date of October 9, 2009,1 she represented that she was disabled and

unable to work due to depression, vision loss, cysts, and back pain. The

Commissioner of Social Security (“the Commissioner”) denied her applications.

       At a subsequent hearing before the ALJ, Yates testified that she was 28

years old and had three children ages 2, 4, and 6. She does not drive, though no

doctor had restricted her driving. She had previously worked part-time at

McDonald’s but was fired because she experienced headaches and migraines and

had difficulty remembering things. She had also worked part-time for Manpower

as a material handler but had to stop that job because the headaches got really bad.

1
  Yates initially stated that her onset date was April 1, 2009, but she later amended it to October
9, 2009.
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She gets headaches two or three times per week and they last for four hours at a

time. She testified that she had a disc bulge in her back, which prevented her from

sitting for long periods of time. One of Yates’s neighbors helps her take care of

her two youngest children and assists with cooking and grocery shopping.

However, Yates stated that she gets the four-year-old ready for daycare, feeds her

youngest child, and does some light housework, such as washing the dishes.

      The ALJ also heard testimony from a vocational expert. The ALJ described

an individual with Yates’s age, education, and work experience, and who was

limited to light work but could frequently climb stairs, balance, stoop, and kneel.

The individual was also limited to simple tasks and could not climb ladders and

should avoid concentrated exposure to extreme heat and cold. When asked

whether there were any jobs in the economy that such an individual could perform,

the vocational expert stated that an individual with those limitations could perform

the jobs of a garment sorter, hand finisher, and a cashier.

      Following the hearing, the ALJ issued a decision denying Yates’s

application for disability insurance benefits and supplemental security income.

After reviewing the evidence, the ALJ determined that Yates had the following

severe impairments: mild lumbar disc bulging, a cerebral cyst, headaches, a

depressive disorder with anxiety, and borderline intellectual functioning.

However, Yates did not have an impairment or combination of impairments that


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met or equaled one the listed impairments in the social security regulations. The

ALJ next determined that Yates had the residual functional capacity to perform

light work, except that she was limited to simple tasks and could have frequent

interaction with co-workers. She also had the following additional restrictions:

unable to climb ladders; only occasionally able to climb ramps and stairs; and

required limited exposure to unprotected heights and temperature extremes.

      Based on that finding, and in conjunction with the testimony from the

vocational expert that an individual with Yates’s limitations could perform the jobs

of a garment sorter, hand finisher, and cashier, the ALJ concluded that jobs existed

in the economy in significant numbers that Yates could perform. Accordingly, the

ALJ determined that Yates was not disabled and denied her applications for

disability insurance benefits and supplemental security income.

      Yates thereafter sought review with the Appeals Council. She also

submitted additional evidence, including treatment records from January and

October 2014. The Appeals Council denied her request for review. In doing so,

the Appeals Council stated that the record did not provide a basis for changing the

ALJ’s decision. Although the Appeals Council considered the January 2014

treatment note, it declined to consider the treatment note from October 2014

because it was dated after the ALJ’s May 2014 decision and did not affect the

ALJ’s decision about whether Yates was disabled prior to May 2014.


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      In December 2015, Yates filed a complaint in district court. She argued in

relevant part that (1) the ALJ failed to assign appropriate weight to the opinion of

her treating physician, (2) the ALJ failed to consider her migraine headaches and

include them in the hypothetical to the vocational expert, and (3) the Appeals

Council erred by declining to consider her October 2014 treatment note. The

district court affirmed the ALJ’s denial of disability insurance benefits and

supplemental security income. This appeal followed.

II.   DISCUSSION

      A.     General Principles

      We review the ALJ’s decision for substantial evidence, but its application of

legal principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.

2005). “Substantial evidence is more than a scintilla and is such relevant evidence

as a reasonable person would accept as adequate to support a conclusion.”

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)

(quotations omitted). We may not reweigh the evidence and decide the facts anew,

and must defer to the ALJ’s decision if it is supported by substantial evidence. See

Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

      To determine whether a claimant is disabled, the ALJ must complete a five-

step sequential evaluation process. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.

1999). The claimant has the burden to prove that (1) she “has not engaged in


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substantial gainful activity,” (2) she “has a severe impairment or combination of

impairments,” and (3) her “impairment or combination of impairments meets or

equals a listed impairment” such that she is entitled to an automatic finding of

disability. Id. If the claimant is not able to meet or equal the criteria for a listed

impairment, she must proceed to the fourth step, which requires showing that she is

unable to do her past relevant work. Id. “At the fifth step, the burden shifts to the

Commissioner to determine if there is other work available in significant numbers

in the national economy that the claimant is able to perform.” Id. If the

Commissioner demonstrates that there are jobs that the claimant can perform, the

claimant must show that she is unable to perform those jobs in order to establish

that she is disabled. Id.

      B.     Weight Assigned to Opinion of Yates’s Treating Physician

      Yates argues that the ALJ assigned improper weight to the opinion of her

treating physician, Dr. Stacy Towles-Moore. When evaluating the medical opinion

evidence, the ALJ must give the opinion of a treating physician “substantial or

considerable weight” unless there is good cause not to do so. Winschel v. Comm’r

of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (quotations omitted); 20 C.F.R.

§ 404.1527(c)(2) (stating that the opinion of a treating physician will be given

controlling weight if it is supported by medically acceptable and laboratory




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diagnostic techniques and is not inconsistent with the other substantial evidence in

the record).

      We have nevertheless concluded that good cause exists for affording less

weight to a treating physician’s opinion when: “(1) [that] opinion was not bolstered

by the evidence; (2) evidence supported a contrary finding; or (3) [the] treating

physician’s opinion was conclusory or inconsistent with the doctor’s own medical

records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). If the ALJ

chooses to assign less weight to a treating physician’s opinion, however, he must

clearly articulate his reasons for doing so. Id.

      In January 2014, Dr. Towles-Moore, a physician at Quality of Life Health,

completed a physical capacities form in which she opined that Yates could sit for

one hour at a time, stand for 30 minutes at a time, and walk for 30 minutes at a

time, but needed to lie down 3 hours per day. Dr. Towles-Moore did not know if

these limitations were present in April 2009—the initial alleged disability onset

date—and further opined that Yates would need to take a break after two hours of

work. Dr. Towles-Moore did not provide any indication as to which impairments

her opinion was based upon. The ALJ assigned minimal weight to Dr. Towles-

Moore’s opinion, concluding that it was inconsistent with the objective medical

evidence and with the other records from Quality of Life Health.




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      We conclude that substantial evidence supports the ALJ’s articulation of

good cause for assigning minimal weight to limitations noted in Dr. Towles-

Moore’s opinion. First, Dr. Towles-Moore’s own treatment notes do not support

the severe limitations set forth in her opinion. Although Yates had received

treatment from Quality of Life Health since 2005, she was not seen by Dr. Towles-

Moore until 2012. In a treatment note from August 2012, Dr. Towles-Moore noted

that Yates was positive for back pain, joint pain, muscle weakness, and recurrent

headaches. However, her review of the musculoskeletal system showed only

moderate pain, a full range of motion, and no joint deformity, heat, swelling, or

erythema. Yates returned to Quality of Life Health for her migraines and a

prescription refill in June 2013, but during that visit Yates reported her pain as a

zero out of ten on the pain scale. Then in September 2013, Yates sought treatment

for her headaches and a prescription refill. Other than noting the reason for

Yates’s visit, Dr. Towles-Moore did not say anything further about her headaches

and a review of Yates’s musculoskeletal system showed that Yates had no pain and

a normal range of motion, muscle strength, and stability. In short, the existence of

extreme limitations, as later opined by Dr. Towles-Moore, are not supported by

these treatment notes.

       The ALJ’s decision to give little weight to Dr. Towles-Moore’s opinion is

also supported by the other evidence in the record. As to Yates’s back pain, a


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November 2009 lumbar spine x-ray showed a disc bulge but no significant

abnormality. A CT scan that same month was “unremarkable” and showed no

evidence of concurrent herniation. A treatment note from the Northeast

Orthopedic Clinic in January 2010 indicated that Yates did not have any disc

rupture and her disc injury had “obviously spontaneously repaired itself.” As to

Yates’s depression, in September 2011, March 2012, and May 2012, treatment

notes show that her depression was improving and/or controlled by medication.

      Dr. Towles-Moore’s opinion also conflicted with Yates’s own description of

her daily activities. In an adult function report, Yates indicated that she prepares

meals daily, plays games with her kids, and does some shopping and housework.

Further, in a consultative mental examination with Dr. Jack Bentley, Yates

reported that she attends church, enjoys reading, cares for her children, and

completes activities of daily living without assistance. And although Yates

testified at the administrative hearing that she receives a lot of assistance from her

neighbor, she stated that she helps care for her children, gets her four-year-old

daughter ready for daycare, helps her children write letters and read books, and

assists with the grocery shopping.

      Yates’s argument that Dr. Towles-Moore’s opinion is supported by the

evidence related to her cyst and migraines is unpersuasive. Again, Dr. Towles-

Moore’s opinion did not specify that any limitations she discerned were


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attributable to Yates’s cyst and migraines. Indeed, she did not even indicate which

impairments were responsible for the opined limitations. Dr. Towles-Moore also

could not state whether Yates’s limitations were present in April 2009.2 Further,

although Dr. Towles-Moore treated Yates for her migraines and provided a

prescription refill in June 2013, Yates reported that her pain was a zero out of ten

on that visit.

       Nevertheless, even if Dr. Towles-Moore’s opinion was based on Yates’s

cyst and migraines, the medical evidence did not support the limitations described

by Dr. Towles-Moore. In particular, an MRI in February 2012 revealed an

arachnoid cyst measuring four centimeters but noted that there were no significant

intracranial or focal acute abnormalities and only “minor chronic mass effect

without significant focal edema or acute process.” Though Yates visited the

emergency room several times between May 2011 and June 2012 for her

migraines, she was discharged each time in either stable or improved condition. In

fact, in October 2013 Yates reported that her migraines were improving, even

though she could not always make it to see her neurologist.

       Because good cause existed for discounting Dr. Towles-Moore’s opinion,

substantial evidence supports the ALJ’s decision to assign that opinion less weight.

See Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (2015) (“We will not

2
  The record does contain a CT scan from September 2005, showing a large cyst on the left side
of Yates’s brain.
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second guess the ALJ about the weight assigned the treating physician’s opinion

deserves so long as he articulates a special justification for it.”).

      C.     Vocational Expert Hypothetical

      Yates next argues that the hypothetical the ALJ posed to the vocational

expert did not include any limitations related to her migraines, and therefore the

ALJ’s reliance on the vocational expert’s testimony was improper and could not

constitute substantial evidence.

      Once a claimant demonstrates that she cannot perform her past relevant

work, the burden shifts to the Commissioner to show that there are a significant

number of jobs in the economy that the claimant can perform. See Jones, 190 F.3d

at 1228. Obtaining testimony from a vocational expert is the preferred means for

introducing evidence that there are jobs in the economy that the claimant can

perform. Wilson, 284 F.3d at 1227.

      “In order for the [vocational expert’s] testimony to constitute substantial

evidence, the ALJ must pose a hypothetical question which comprises all of the

claimant’s impairments.” Jones, 190 F.3d at 1229. “The hypothetical need only

include the claimant’s impairments, not each and every symptom of the claimant.”

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007)

(quotations and citation omitted). A “hypothetical question[] adequately




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account[s] for a claimant’s limitations . . . when the question[] otherwise implicitly

account[s] for the[] limitations.” Winschel, 631 F.3d at 1180.

      When questioning the vocational expert about whether jobs existed in the

national economy that a hypothetical individual could perform, the ALJ posed the

following hypothetical:

            Assume a hypothetical individual with the same age, education
      and work experience as [Yates], and that individual is limited to light
      work with frequently climbing ramps and stairs, balancing, stooping,
      kneeling, crouching and crawling.

            The individual should never . . . climb ladders and scaffolds.
      The individual should never work in environments of unprotected
      heights or hazardous moving mechanical parts.

             And should avoid concentrated exposure to extreme cold and
      extreme heat. The individual is limited to simple tasks, and frequent,
      brief interaction with supervisors and coworkers.

The vocational expert stated that such an individual would not be able to perform

any of Yates’s past relevant work except as a fast-food worker, but that such an

individual could work as a garment sorter, hand finisher, or cashier. Based on the

vocational expert’s testimony, the ALJ determined at step five that there were jobs

in the economy that Yates could perform, and thus concluded that Yates was not

disabled.

      Here, the ALJ did not err by failing to include Yates’s migraines in the

hypothetical question. The ALJ did not find that the medical evidence supported

Yates’s assertions of completely disabling pain related to her migraines and thus to
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any corresponding limitations. See Crawford, 363 F.3d at 1161 (concluding that

the ALJ does not need to include findings in a hypothetical posed to the vocational

expert if the ALJ correctly found those findings to be unsupported by the record

evidence). Because the hypothetical question the ALJ posed to the vocational

expert included the limitations provided in the ALJ’s residual functional capacity

determination, the ALJ’s finding at step five that Yates was not disabled is

supported by substantial evidence. See id.

       D.      Appeals Council Review

       Finally, Yates argues that the Appeals Council erred by refusing to consider

the new evidence she submitted without considering whether it was

chronologically relevant.

       Typically, a claimant may present new evidence at every stage of the

administrative process. Ingram, 496 F.3d at 1261. Although the Appeals Council

may decline to review the ALJ’s denial of benefits, it “must consider new,

material, and chronologically relevant evidence” submitted by the claimant.

Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015)

(quotations omitted); 20 C.F.R. § 404.970(b) (2016). 3 The issue of whether a

claimant’s evidence is new, material, and chronologically relevant is reviewed de
3
  This regulation was recently amended, effective January 17, 2017, to state that the Appeals
Council will review a case if it “receives additional evidence that is new, material, and relates to
the period on or before the date of the hearing decision, and there is a reasonable probability that
the additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5)
(2017).
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novo. Washington, 806 F.3d at 1320–21. “[W]hen the Appeals Council

erroneously refuses to consider evidence, it commits legal error and remand is

appropriate.” Id. at 1321.

      Evidence is chronologically relevant where “it relates to the period on or

before the date of the administrative law judge hearing decision.” 20 C.F.R.

§ 404.970(b) (2016). A medical examination that takes place after issuance of the

ALJ’s decision may be chronologically relevant if it relates back to the date of the

ALJ’s decision. See Washington, 806 F.3d at 1322–23.

      In submitting her request for review to the Appeals Council, Yates submitted

an October 2014 treatment note in which she reported to Dr. Olga Bogdanova that

her headaches were getting worse and that she believed her cyst was growing

because a recent CT scan had shown that it was five centimeters. Dr. Bogdanova

ordered an MRI to determine the size of the cyst. The Appeals Council denied

Yates’s request for review.

      Here, Yates’s argument that the Appeals Council erred by not considering

whether her new evidence from October 2014 was chronologically relevant is

unavailing. The Appeals Council stated that it had looked at the evidence but

determined that it did not affect the ALJ’s decision because it was from a later

date. Although the Appeals Council did not explicitly state that the additional

medical evidence was not chronologically relevant, it implicitly did so and we


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agree with that conclusion. Dr. Bogdanova’s October 2014 treatment note was

dated after the ALJ’s May 2014 decision. Although the treatment note mentioned

that Yates was returning for a follow-up visit from January 2014, Dr. Bogdanova

did not state that her opinion applied to the time period before the ALJ’s decision.

Cf. Washington, 806 F.3d at 1322–23 (concluding that a medical opinion based on

treatment occurring after the ALJ’s decision was chronologically relevant because

it was based in part on a review of the claimant’s medical records from the time

period prior to the ALJ’s decision). Instead, Dr. Bogdanova discussed the

symptoms Yates was currently experiencing, as well as Yates’s belief that her cyst

was growing due to a recent CT scan that showed her cyst was five centimeters.4

Because the new evidence did not relate back to the period before the ALJ’s

decision, the ALJ did not err by determining that the October 2014 treatment note

was not chronologically relevant. See Washington, 806 F.3d at 1322–23.

       But regardless, even if the October 2014 treatment note were

chronologically relevant, it is not material. See id. at 1321 (explaining that

evidence is material if “there is a reasonable possibility that [it] would change the

administrative result” (quotations omitted)). The treatment note merely reiterates

that Yates suffers from a brain cyst and migraines—diagnoses of which the ALJ

was aware—and although Yates reported that she feared her cyst was growing, Dr.

4
 It seems that Yates reported to Dr. Bogdanova that a recent CT scan had shown that her cyst
was five centimeters; this CT scan does not appear to be included in the record.
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Bogdanova did not express any opinion in that regard but instead ordered a new

MRI. Thus, this treatment note does not create a reasonable possibility that it

would change the administrative result. In short, the Appeals Council did not err

by refusing to consider the new evidence Yates submitted because, even if it was

chronologically relevant, it was not material.

III.   CONCLUSION

       For the foregoing reasons, we affirm the district court’s order affirming the

Commissioner’s denial of Yates’s applications for disability insurance benefits and

supplemental security income.

       AFFIRMED.




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