Craig Smith v. Social Security Administration, Commissioner

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11407
Non-Argument Calendar
____________________
CRAIG SMITH,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-01114-CLM
____________________
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2 Opinion of the Court 22-11407
Before WILSON, L UCK , and TJOFLAT, Circuit Judges.
PER CURIAM:
Craig Smith appeals the District Court’s order affirming the
Social Security Commissioner’s denial of his claim for disability in-
surance benefits. First, he argues that the Administrative Law
Judge (“ALJ”) erred by failing to give “any weight, deference, or
special consideration” to the August 2019 medical opinion from
Dr. Huma Khusro—Smith’s treating psychiatrist. Second, he con-
tends that the ALJ erred in his evaluation of the “supportability”
and “consistency” of Dr. Khusro’s opinion. Finally, he asserts that
the Appeals Council erred in determining that Dr. Khurso’s De-
cember 2019 email to the Appeals Council was not chronologically
relevant to his appeal. For the reasons stated below, we affirm.
I.
In January 2018, Smith applied for Social Security disability
insurance benefits. He alleged that he became disabled and
stopped working in January 2017 because of a broken clavicle, re-
built kneecap, and mental health issues. Smith’s application was
denied. Smith then requested a hearing before an ALJ, which was
held on October 1, 2019.
On November 4, 2019, the ALJ issued his decision. The ALJ
determined that Smith was not disabled and denied his claim for
disability benefits. To support his decision, the ALJ conducted the
five-step sequential evaluation process under 20 C.F.R.
§ 404.1520(a)(4) and made these findings. First, Smith had not
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22-11407 Opinion of the Court 3
engaged in substantial gainful activity since January 1, 2017. Sec-
ond, Smith had several severe impairments, including: a recurrent
and moderate depressive disorder, generalized anxiety disorder,
and passive dependent personality disorder. Third, Smith did not
have an impairment or combination of impairments that met or
medically equaled any of the listed impairments in 20 C.F.R. § 404,
Subpart P, App. 1. Fourth, Smith had the residual functioning ca-
pacity (“RFC”) to perform light work subject to certain physical
and mental limitations. Last, the ALJ found that although Smith
could not perform any past relevant work, there were jobs that ex-
ist in significant numbers in the national economy that Smith could
perform.
The ALJ also discussed the medical opinions of
(1) Dr. Estock, a state agency medical consultant; (2) Dr. David
Wilson, a psychologist for the Alabama Department of Rehab Ser-
vices; and (3) Dr. Khusro.1 The ALJ explained that he could not
“defer or give any specific evidentiary weight, including controlling
weight, to any prior administrative medical finding(s) or medical
opinion(s), including those from medical sources.”
Dr. Estock reported that Smith “was capable of an unskilled
mental [RFC] with the ability to understand and remember simple
instructions”; carry out short and simple instructions; attend and
1 The ALJ also considered evidence and opinions related to Smith’s physical
impairments. Because Smith’s arguments are limited to the ALJ’s findings on
Smith’s mental impairments, we do not discuss the ALJ’s findings about
Smith’s physical impairments.
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4 Opinion of the Court 22-11407
concentrate for two-hour periods on simple tasks; and that Smith’s
interaction with the public should be casual and nonconfronta-
tional. The ALJ found Dr. Estock’s opinion persuasive and con-
sistent with the objective medical evidence.
The ALJ also considered Dr. Wilson’s opinion. After con-
ducting a cognitive ability test, Dr. Wilson opined that Smith could
work but that Smith’s issues with anxiety and attention, and his
poor social skills and awareness would cause problems in most job
settings. The ALJ found Dr. Wilson’s opinion “generally persua-
sive” as it was consistent with Smith’s mental health history, use of
medications, social difficulties, findings on formal testing, and his
presentation during mental status examinations.
Last, the ALJ considered Dr. Khusro’s August 2019 opinion.
Dr. Khusro opined that Smith had: extreme difficulties in carrying
out complex instructions and making judgment calls on complex
work-related decisions; marked limitations understanding and re-
membering complex instructions, responding appropriately to
mental work situations, and to changes in routine work settings
depending on the nature of his interactions. The ALJ found
Dr. Khusro’s opinion was inconsistent with the conservative treat-
ment he offered. The ALJ noted that Dr. Khusro’s treatment rec-
ords routinely noted that Smith’s depression was overall stable and
despite some bouts of anxiety from family situations, Smith re-
sponded to medication adjustments with good results. Nowhere
did Dr. Khusro state that Smith’s condition was so severe to war-
rant inpatient hospitalization. Other than Smith’s diminished
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22-11407 Opinion of the Court 5
concentration and fair insight and judgment at times, all other as-
pects of Smith’s mental status examinations were normal.
Following the ALJ’s decision, Smith requested review from
the Appeals Council. With his request, he submitted a December
8, 2019 email from Dr. Khusro explaining that Smith’s disability is
a result of multiple diagnoses and that Smith’s symptoms are not
controlled by medication. The Appeals Council declined to review
the ALJ’s decision, making the ALJ’s decision the final decision of
the Commissioner. The Appeals Council noted that it considered
Dr. Khusro’s email and determined that it did not relate to the pe-
riod of Smith’s disability. So the email did not affect the ALJ’s de-
cision about whether Smith was disabled on or before November
4, 2019.
Smith then filed a complaint in the District Court on August
4, 2020. In his brief before the District Court, Smith first argued
that the ALJ failed to accord proper weight to Dr. Khusro’s opin-
ion. He contended that the treating physician rule—which re-
quired ALJ’s to give controlling weight to opinions of treating phy-
sicians—was still in effect in the Eleventh Circuit because the new
regulations did not supersede Eleventh Circuit precedent applying
the rule. In passing, Smith argued that Dr. Khusro’s opinion was
not inconsistent with other substantial evidence and that there was
no basis for the ALJ to reject Dr. Khuro’s opinion. Smith also ar-
gued that the Appeals Council erred in denying review and failing
to remand because Dr. Khusro’s letter was material and chronolog-
ically relevant.
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6 Opinion of the Court 22-11407
The District Court affirmed the Social Security Administra-
tion’s (“SSA”) decision. It reasoned that, per the regulations effec-
tive March 27, 2017, the ALJ was not required to defer or give any
weight to a treating physician’s opinion. The District Court also
rejected Smith’s argument that the regulations did not abolish
Eleventh Circuit precedent on the treating physician rule, based on
our unpublished decision in Matos v. Commissioner of Social Security,
No. 21-11764, 2022 WL 97144 (11th Cir. 2022) (per curiam). The
District Court also found that the ALJ reasonably determined that
Dr. Khusro’s August 2019 opinion lacked supportability and con-
flicted with the record evidence, which supported the ALJ’s finding
that the opinion was not entirely persuasive.
Last, the District Court rejected Smith’s argument that the
Appeals Council erred by failing to consider Dr. Khusro’s Decem-
ber 2019 email. Although the District Court found the letter was
chronologically relevant, it concluded that the letter was not mate-
rial. Quoting 20 C.F.R. § 404.1520b(c), the District Court reasoned
that Dr. Khusro’s statements that Smith could not work were “in-
herently neither valuable nor persuasive.” And it found that Smith
failed to explain why Dr. Khusro’s other statements about Smith’s
impairments were persuasive as there was no reasonable probabil-
ity that these statements would have changed the ALJ’s conclu-
sions. Smith timely appealed.
II.
“We review de novo the ALJ’s application of legal principles,
and we review the ALJ’s resulting decision ‘to determine whether
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22-11407 Opinion of the Court 7
it was supported by substantial evidence.’” Buckwalter v. Acting
Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021) (quoting
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per cu-
riam)). “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. (quoting Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)). “We will
affirm the Commissioner’s decision if it is supported by substantial
evidence, even if the preponderance of the evidence weighs against
it. However, we will not ‘affirm simply because some rationale
might have supported the ALJ’s conclusion.’” Id. (first citing Craw-
ford, 363 F.3d at 1158–59; and then quoting Owens v. Heckler,
748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)). “We may not
decide the facts anew, make credibility determinations, or reweigh
evidence.” Id. And “[w]e review de novo the district court’s deter-
mination as to whether the ALJ’s decision was supported by sub-
stantial evidence.” Id.
III.
Smith admits that his first two arguments were not ad-
vanced in the District Court. He contends that these new argu-
ments are preserved because they are based on the same claim he
advanced in the District Court—the ALJ’s erroneous treatment of
Dr. Khusro’s opinion. Before we can address the merits of Smith’s
first two arguments, we must therefore first decide whether Smith
preserved them.
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8 Opinion of the Court 22-11407
“As a general principle, this court will not address an argu-
ment that has not been raised in the district court.” Ruckh v. Salus
Rehab., LLC, 963 F.3d 1089, 1110 (11th Cir. 2020) (quoting Stewart
v. Dep’t of Health & Hum. Servs., 26 F.3d 115, 115 (11th Cir. 1994).
“Judicial economy is served and prejudice is avoided by binding the
parties to the facts presented and the theories argued below.” Id.
at 1111 (quoting Stewart, 26 F.3d at 115). “Although this court may
hear an issue not raised in the lower court when the proper resolu-
tion is beyond any doubt, issues involving the resolution of factual
questions can never be beyond doubt.” Stewart, 26 F.3d at 115–16.
That said, “there is a difference between raising new issues
and making new arguments on appeal.” In re Home Depot Inc.,
931 F.3d 1065, 1086 (11th Cir. 2019). “If an issue is ‘properly pre-
sented, a party can make any argument in support of that [issue];
parties are not limited to the precise arguments they made below.’”
Id. (alteration in original) (quoting Yee v. City of Escondido, 503 U.S.
519, 534, 112 S. Ct. 1522, 1532 (1992). Nor is a party prohibited
from basing a new argument on a “different line of precedents” or
from presenting a new argument that is “inconsistent with the old
argument.” See id. What matters is whether a party “makes the
same request.” Id.
We have no difficulty concluding that Smith raises new ar-
guments rather than new issues. Before the District Court, Smith
claimed that the ALJ failed to give the proper weight to
Dr. Khusro’s August 2019 opinion and argued that the treat-
ing-physician rule still applied. He now recognizes that this
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22-11407 Opinion of the Court 9
argument is foreclosed by our decision in Harner v. Social Security
Administration, Commissioner, 38 F.4th 892 (11th Cir. 2022). Smith’s
new arguments still focus on the same issue: whether the ALJ failed
to give proper weight to Dr. Khusro’s opinion. Only now he con-
tends that Harner conflicts with 42 U.S.C. § 423(d)(5)(B) of the So-
cial Security Act and that some minimal version of the treat-
ing-physician rule survives. Because Smith raises the same issue,
he is not bound to the precise arguments he made in the District
Court and we will consider his new arguments. See In re Home De-
pot Inc., 931 F.3d at 1086.
IV.
A.
The first of Smith’s new arguments is that the ALJ erred by
not giving Dr. Khusro’s opinion more weight, deference, or special
consideration as his treating physician. Smith admits that the SSA
abrogated the treating-physician rule, but he contends that the new
regulations conflict with the Social Security Act. He also argues
that Harner is not controlling and that “some vestige of the treating
physician rule” survives because Harner did not address whether
the new regulations are limited by the text of the Social Security
Act. We disagree.
Under the Social Security Act, the Commissioner has the
power to “adopt reasonable and proper rules and regulations to
regulate and provide for the nature and extent of the proofs and
evidence and the method of taking and furnishing the same” for
adjudicating disability claims. See 42 U.S.C. § 405(a). The Act
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10 Opinion of the Court 22-11407
instructs ALJs to “make every reasonable effort to obtain from the
individual’s treating physician . . . all medical evidence . . . neces-
sary” to make a proper disability determination. Id. § 423(d)(5)(B).
But the Act is silent on how this evidence is to be weighed.
See Harner, 38 F.4th at 897.
Before 2017, ALJs were required to follow the treating phy-
sician rule. 20 C.F.R. § 404.1527(c)(2) (2015). Under the treating
physician rule, ALJs were required to give a treating physician’s
opinion “substantial or considerable weight unless ‘good cause’
[was] shown to the contrary.” Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)).
But in March 2017, the Commissioner issued a new regula-
tion that “abrogated the ‘treating-physician rule.’” Harner, 38 F.4th
at 894; see 20 C.F.R. § 404.1520c. Under the new regulation, an ALJ
“will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administra-
tive medical finding(s), including those from [the claimant’s] med-
ical sources.” 20 C.F.R. § 404.1520c(a). The new regulation applies
to claims made after March 27, 2017. Id. § 404.1520c.
In Harner, we held that § 404.1520c fell within the scope of
the Commissioner’s rulemaking authority as delegated by Con-
gress under the Social Security Act. 38 F.4th at 897. We explained
that “although the Act instructs [ALJs] to ‘make every reasonable
effort to obtain from the individual’s treating physician . . . all med-
ical evidence . . . necessary” to make a proper disability
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22-11407 Opinion of the Court 11
determination,’ the Act does not specify how this evidence is to be
weighed.’” Id. at 897 (omissions in original) (quoting 42 U.S.C.
§ 423(d)(5)(B)). We concluded that “[b]ecause section 404.1520c
[fell] within [Congress’s delegation of authority] and [was] not
‘manifestly contrary to the statute,’ the regulation did not ‘exceed
the [Commissioner’s] statutory authority.’” Id. (fifth alteration in
original) (first quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984); and then quot-
ing Heckler v. Campbell, 461 U.S. 458, 466, 103 S. Ct. 1952, 1957
(1983)). We also determined that § 404.1520c was not arbitrary and
capricious. Id. at 897–98.
Moreover, we noted that we had “never held that the treat-
ing-physician rule was unambiguously required by the [Social Se-
curity] Act,” id. at 898, and we determined that the new regulation
“abrogate[d] our earlier precedents applying the treating-physician
rule.” Id. at 896. Because the new regulation applied to Harner’s
claim, we concluded that the ALJ did not err by declining to give
more weight to the medical opinions of Harner’s treating physi-
cians. Id. at 898.
The same is true here. Smith filed his claim in January
2018—well after § 404.1520c became effective. Under § 404.1520c,
the ALJ was precluded from deferring or giving any specific eviden-
tiary weight—including controlling weight—to any medical opin-
ion. And our review of the record confirms that the ALJ’s decision
closely tracks the language of § 404.1520c(a), meaning that the ALJ
applied the correct legal standard.
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12 Opinion of the Court 22-11407
Smith’s arguments to the contrary are foreclosed by Harner.
His argument that the text and structure of 42 U.S.C. § 423(d)(5)(B)
creates a clear congressional directive to use the treating-physician
rule is simply an argument that § 404.1520c was manifestly con-
trary to the Social Security Act. We rejected that argument in
Harner. See 38 F.4th at 897. Likewise, Smith’s argument that we
should continue applying the treating-physician rule because it was
in effect since 1984 is just an argument that Harner reached the
wrong conclusion about the effect of § 404.1520c in abrogating our
earlier precedents. Finally, Smith’s argument that the purpose of
the Social Security Act requires some “vestige” of the treating-phy-
sician rule is merely an attempt to circumvent Harner’s central
holding that ALJs may not give any specific evidentiary weight to
a treating-physician’s opinion. To conclude otherwise would vio-
late our prior panel precedent rule.2
2 Under our prior panel precedent rule, “a prior panel’s holding is binding on
all subsequent panels unless and until it is overruled or undermined to the
point of abrogation by the Supreme Court or by this court sitting en banc.”
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). We have explained
that “a prior panel precedent cannot be circumvented or ignored on the basis
of arguments not made to or considered by the prior panel.” Tippitt v. Reliance
Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006). We have rejected
an overlooked reason or argument exception to the prior panel precedent rule.
In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (per curiam); Smith v. GTE
Corp., 236 F.3d 1292, 1301–04 (11th Cir. 2001). The prior panel precedent rule
depends on neither “a subsequent panel’s appraisal of the initial decision’s cor-
rectness” nor “the skill of the attorneys or wisdom of the judges involved with
the prior decision—upon what was argued or considered.” Cohen v. Off. Depot,
Inc., 204 F.3d 1069, 1076 (11th Cir. 2000).
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22-11407 Opinion of the Court 13
B.
Smith’s second new argument is that the ALJ failed to
properly evaluate and articulate its reasons for discrediting
Dr. Khusro’s opinion. He asserts that the ALJ did not properly ad-
dress consistency or supportability as required by 20 C.F.R.
§ 404.1520c. As to consistency, Smith argues that the ALJ failed to
address this factor. As to supportability, Smith argues that the
ALJ’s findings were not supported by substantial evidence for three
reasons: (1) the ALJ ignored Smith’s psychotherapy sessions and er-
roneously concluded that his treatment consisted only of medica-
tion adjustments; (2) the ALJ’s finding that Dr. Khusro’s opinion
was inconsistent with the conservative treatment she offered was
improper where the ALJ required inpatient hospitalization as a
predicate for disabling symptoms because the lack of inpatient hos-
pitalization does not make the treatment conservative; (3) the ALJ
incorrectly stated that the only symptoms he displayed were dimin-
ished concentration, judgment, and insight, and that all other as-
pects of his mental status examinations were normal.3 We are not
persuaded.
“When, as in this case, the ALJ denies benefits and the [Ap-
peals Council] denies review, we review the ALJ’s decision as the
3 Smith also argues that this case is distinguishable from our unpublished opin-
ion in Horowitz v. Commissioner of Social Security, 688 F. App’x 855 (11th Cir.
2017) (per curiam), in which we upheld an ALJ’s dismissal of a treating physi-
cian’s opinion as inconsistent with conservative medical treatment. Horowitz
does not affect our conclusions. Even if it did, Horowitz supports the ALJ’s
finding. In Horowitz, the claimant’s treatment was limited to fifteen-minute
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14 Opinion of the Court 22-11407
Commissioner’s final decision.” Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). As explained above, our review of the Com-
missioner’s decision is limited to whether substantial evidence sup-
ports the decision and whether the correct legal standards were ap-
plied. See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011).
“An individual claiming Social Security disability benefits
must prove that []he is disabled.” Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam). To determine whether a claim-
ant is disabled, the social security regulations mandate a five-step,
sequential evaluation process. 20 C.F.R. § 404.1520(a)(4); Winschel,
631 F.3d at 1178. The ALJ must determine whether the claimant:
(1) is able to engage in substantial gainful activity; (2) has a severe
physical or mental impairment; (3) has a severe impairment that
meets or equals an impairment specifically listed in 20 C.F.R. Part
404, Subpart P, App. 1; (4) has the RFC to perform her past relevant
work; and (5) can perform other work available in the national
economy given the claimant’s RFC, age, education, and work ex-
perience. 20 C.F.R. § 404.1520(a)(4); Buckwalter, 5 F.4th at 1320.
For claims filed on or after March 27, 2017, an ALJ must con-
sider any submitted medical opinion using five enumerated
medication management appointments—which the ALJ found to be evidence
of conservative treatment. See 688 F. App’x at 857–60. Smith’s treatment was
similar. Although Smith also had psychotherapy sessions, many of those
lasted twenty minutes or less. And, as of May 2019, Smith’s progress notes did
not report a psychotherapy session—which suggests he was no longer receiv-
ing psychotherapy treatment.
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22-11407 Opinion of the Court 15
factors—(1) supportability, (2) consistency, (3) relationship with
the claimant, (4) specialization, and (5) other factors.
20 C.F.R. § 404.1520c(a), (c). Because the “most important” factors
are supportability and consistency, the ALJ must explain how he or
she considered those factors. Id. § 404.1520c(b)(2). As for support-
ability, “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to sup-
port his or her medical opinion(s) or prior administrative medical
finding(s), the more persuasive the medical opinions or prior ad-
ministrative medical finding(s) will be.” Id. § 404.1520c(c)(1). As
for consistency, “[t]he more consistent a medical opinion(s) or
prior administrative medical finding(s) is with the evidence from
other medical sources and nonmedical sources in the claim, the
more persuasive the medical opinion(s) or prior administrative
medical finding(s) will be.” Id. § 404.1520c(c)(2).
Contrary to Smith’s assertions, substantial evidence sup-
ports the ALJ’s evaluation of Dr. Khusro’s August 2019 opinion.
First, Smith’s argument that the ALJ erred by failing to address the
consistency of Dr. Khusro’s opinion is belied by the record. The
ALJ was required to discuss the persuasiveness of Dr. Khusro’s
opinion in terms of how consistent it was with “other medical and
nonmedical sources in the claim.” Id. § 404.1520c(b)(2), (c)(2). The
ALJ did so. The ALJ discussed the persuasiveness of each medical
opinion in the record—including Dr. Khusro’s—compared with
the evidence from the other medical and nonmedical sources. The
ALJ also explicitly mentioned whether he found each opinion con-
sistent. And the ALJ concluded that he found the “third party
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16 Opinion of the Court 22-11407
testimony concerning the intensity, persistence and limiting effects
of [Smith’s] symptoms [was] not entirely consistent with the med-
ical evidence and other evidence in the record.” As such, the ALJ
adequately explained his assessment of the consistency of
Dr. Khusro’s opinion.
Second, the ALJ’s finding on the “supportability” of
Dr. Khusro’s opinion is supported by substantial evidence. As ex-
plained above, the ALJ noted that Dr. Khusro’s opinion docu-
mented Smith’s difficulties and limitations in carrying out complex
instructions and making judgments on complex work-related deci-
sions. But the ALJ explained that Smith’s treatment records
showed that Smith’s depression was overall stable and that Smith
responded to medication adjustments with good results. Other
than Smith’s limitations with concentration, insight, and judgment,
his mental status examinations were normal. More than a scintilla
of evidence supports the ALJ’s conclusion that Dr. Khusro’s opin-
ion was not supported by his own explanations or the objective
medical evidence.
Smith’s arguments do not convince us otherwise. True, the
ALJ did not explicitly discuss Dr. Khusro’s psychotherapy recom-
mendation. Even so, the ALJ did discuss Dr. Khusro’s treatment
records, which contained notes on Smith’s psychotherapy sessions.
Smith has not cited, nor are we aware of, any authority that re-
quires an ALJ to independently discuss every aspect of a physician’s
treatment recommendations. As to the ALJ’s comment that
Dr. Khusro’s treatment was conservative because Dr. Khsuro
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22-11407 Opinion of the Court 17
never felt Smith’s treatment warranted inpatient hospitalization,
this was but one factor the ALJ considered when evaluating
Dr. Khusro’s opinion. Last, the ALJ did not ignore Smith’s border-
line intellectual functioning. In fact, the ALJ discussed this point
when analyzing Dr. Wilson’s cognitive evaluation results.
At bottom, Smith’s arguments invite us to reweigh the evi-
dence and substitute our judgment in place of the ALJ’s. We must
decline Smith’s invitation. See Buckwalter, 5 F.4th at 1320. The rel-
evant inquiry is not whether some evidence might support greater
limitations, but whether substantial evidence supports the ALJ’s
decision. See id. We hold that substantial evidence supports the
ALJ’s decision.
V.
Last, Smith argues that the Appeals Council erred in deter-
mining that Dr. Khusro’s December 2019 email was not chrono-
logically relevant. As an initial matter, Smith argues that de novo
review applies, citing Washington v. Social Security Administration,
Commissioner, 806 F.3d 1317, 1321 (11th Cir. 2015). He then asserts
that Dr. Khusro’s email is chronologically relevant because (1) it re-
flected Dr. Khusro’s entire experience with Smith and related back
to the period before the ALJ’s decision and (2) Dr. Khusro wrote it
expressly to rebut the ALJ’s decision.
In response, the Commissioner argues that substantial evi-
dence review applies because unlike Washington, here the Appeals
Council “considered” Dr. Khusro’s email. The Commissioner then
contends that Dr. Khusro’s email was not chronologically relevant
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18 Opinion of the Court 22-11407
because it only concerned Smith’s current symptoms and limita-
tions. The Commissioner adds that even if the email was chrono-
logically relevant, it was not material because the email did not cre-
ate a reasonable probability of changing the ALJ’s decision.
We first explain why de novo review applies to the Appeals
Council’s decision. We then explain why the Appeals Council did
not commit reversible error by failing to consider Dr. Khusro’s De-
cember 2019 email.
A.
“Generally, a claimant may present evidence at each stage
of the administrative process.” Hargress v. Soc. Sec. Admin., Comm’r,
883 F.3d 1302, 1308 (11th Cir. 2018) (per curiam). “If a claimant
presents evidence after the ALJ’s decision, the Appeals Council
must consider it if it is new, material, and chronologically rele-
vant.” Id. at 1309; see also 20 C.F.R. § 404.970(a)(5). “Evidence is
material if a reasonable probability exists that the evidence would
change the administrative result.” Hargress, 883 F.3d at 1309. New
evidence is chronologically relevant if it “relates to the period on
or before the date of the hearing decision.”
20 C.F.R. § 404.970(a)(5). “[W]hen the Appeals Council errone-
ously refuses to consider evidence, it commits legal error and re-
mand is appropriate.” Washington, 806 F.3d at 1321.
In our view, Washington establishes that de novo review ap-
plies here. In Washington, the claimant submitted new evidence to
the Appeals Council, including a psychologist’s evaluation about
the degree of the claimant’s mental limitations that the
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22-11407 Opinion of the Court 19
psychologist had prepared seven months after the ALJ’s decision.
Id. at 1319. The Appeals Council denied Washington’s review re-
quest, explaining that “it refused to consider the additional evi-
dence from [the psychologist] because [it] concerned a later time
period and [was] immaterial.” Id. at 1320.
On appeal, we noted that “[t]he standard that federal courts
apply when reviewing the Appeals Council’s refusal to consider ad-
ditional evidence submitted by [a] claimant [was] a question of first
impression in [our] circuit.” Id. at 1320–21. Looking to our sister
circuits, we agreed that “under the regulations, whether evidence
meets the new, material, and chronologically relevant standard ‘is
a question of law subject to our de novo review.’” Id. at 1321 (quot-
ing Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003)).
True, we also explained that Washington was “not a case in
which the Appeals Council considered the additional evidence and
then denied review.” Id. at 1321 n.5. And we added that “[w]hen
the Appeals Council accepts additional evidence, considers the ev-
idence, and then denies review, it is not ‘required to provide a de-
tailed rational[e] for denying review.’” Id. (quoting Mitchell v.
Comm’r, Soc. Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014)).
In attempting to distinguish Washington from this case, the
Commissioner places too much emphasis on the word “consid-
ered.” A closer review of the record in Washington reveals why.
The Washington Appeals Council’s notice stated: “In looking at
your case, we considered the reasons you disagree with the deci-
sion and the additional evidence on the enclosed Order of Appeals
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20 Opinion of the Court 22-11407
Council.” Later—under the header “What we considered”—the
Washington Appeals Council explained that the claimant’s new ev-
idence was not chronologically relevant. The notice here is virtu-
ally identical. It too begins with similar language: “You submitted
reasons that you disagree with the [ALJ’s] decision. We considered
the reasons and exhibited them on the enclosed Order of the Ap-
peals Council.” Then, under the header “Additional Evidence,” the
Appeals Council determined that Dr. Khusro’s email was not
chronologically relevant. Given that Washington applied de novo re-
view when faced with a similar notice, we must do the same.4
B.
The Appeals Council erred when it denied review on the ba-
sis that Dr. Khusro’s December 2019 email was not chronologically
relevant.5 Although the Appeals Council refused to consider
4 Although unpublished, we have applied de novo review in similar cases.
See, e.g., Yates v. Comm’r of Soc. Sec., 706 F. App’x 588, 594–95 (11th Cir. 2017)
(per curiam); Green v. Soc. Sec. Admin., Comm’r, 695 F. App’x 516, 519–20 (11th
Cir. 2017) (per curiam); Glasby v. Soc. Sec. Admin., Comm’r, No. 21-12093,
2022 WL 1214015, at *1–2 (11th Cir. Apr. 25, 2022) (per curiam); cf. Goble v.
Soc. Sec. Admin., Comm’r, No. 22-10842, 2023 WL 2823401, at *8 & n.20 (11th
Cir. Apr. 7, 2023) (per curiam) (noting that a more deferential review applied
when the Appeals Council considered additional evidence and determined
that it “did not have a reasonable probability of changing the ALJ’s determina-
tion”).
5 We conclude, and the Commissioner does not challenge, that Dr. Khusro’s
December 2019 email constitutes new, noncumulative evidence. See Caulder
v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986) (recognizing that cumulative evi-
dence is not new). Moreover, although Dr. Khusro’s prior records reflect that
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22-11407 Opinion of the Court 21
Dr. Khusro’s email on that basis, the Commissioner now argues
that the email was also immaterial. We agree.
To begin, Dr. Khusro’s email was chronologically relevant.
Although the email was sent a month after the ALJ’s decision,
Dr. Khusro made clear that she sent the email in response to the
ALJ’s decision. Dr. Khusro’s email explains that Smith has “been
unable to work for the last 2 years” and describes Smith’s diagnoses
reflected in his medical records during the relevant period. Accord-
ing to Dr. Khusro’s email, Smith’s symptoms are “not a single di-
agnosis but the combination of his multiple diagnos[e]s that cause
his disability” and Smith’s “symptoms are not controlled” despite
being on medication. Nothing in the email—much less the rec-
ord—indicates that Dr. Khsuro treated Smith between the ALJ’s
decision and when she sent the email. And there is no evidence
that Smith’s symptoms referenced in the email arose after that
time. See Washington, 806 F.3d at 1322–23; cf. Hargress, 883 F.3d at
1309. Dr. Khusro’s additional evidence about the combined effects
of Smith’s symptoms was necessarily based on Smith’s treatment
records before the ALJ’s decision. Accordingly, the Appeals Council
erred as a matter of law in finding that the extra evidence was not
chronologically relevant.
That leaves one final issue: whether the Appeals Council’s
error is reversible. The District Court decided it was not and up-
held the Appeals Council’s decision based not on chronological
Smith had good results with medication, no other evidence states that Smith’s
symptoms were not controlled by his medication.
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22 Opinion of the Court 22-11407
relevance but on materiality—the same argument the Commis-
sioner advances before us. Although the Appeals Council never
addressed whether Dr. Khusro’s email was material, on de novo re-
view we agree with the District Court that it was not. See Hargress,
883 F.3d at 1310 (concluding that the evidence submitted to the
Appeals Council was also not material despite the Appeals Council
only finding that the evidence was not chronologically relevant);
Washington, 806 F.3d at 1321.
Even though Dr. Khusro’s email was chronologically rele-
vant, it was not material because there is no reasonable probability
that it would have changed the outcome of the decision.
See 20 C.F.R. § 404.970(a)(5); Washington, 806 F.3d at 1320–21.
Statements that a claimant is disabled or unable to work are “inher-
ently neither valuable nor persuasive.” 20 C.F.R. § 404.1520b(c),
(c)(i). So the Appeals Council would not have to analyze
Dr. Khusro’s statements that: (1) “Smith has been unable to work
for the last 2 years”; (2) Smith’s “anxiety and depression make it
very hard for him to function in a vocation”; and (3) Smith is clearly
unable to work.
The remainder of Dr. Khusro’s email provides more context
to his August 2019 opinion, but it is still inconsistent with Smith’s
medical records and the opinions from Dr. Estock and Dr. Wil-
son—both of whom the ALJ found more credible. Where evidence
submitted to the Appeals Council contradicts other records that the
ALJ found more credible, the new evidence is not material and the
Appeals Council does not need to consider it. See Hargress, 883 F.3d
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at 1310. Moreover, Dr. Khusro’s statement that Smith’s symptoms
“are not controlled” with medication contradicts Dr. Khusro’s own
progress notes that show Smith’s medication was effective and ap-
peared to stabilize his symptoms with good results.
Though the Appeals Council erred in concluding that
Dr. Khusro’s December 2019 email was not chronologically rele-
vant, it did not commit reversible error by failing to consider the
email. Because Dr. Khusro’s email was not material, the Appeals
Council was not required to consider it.
VI.
Accordingly, we affirm the District Court’s judgment affirm-
ing the SSA’s denial of Smith’s application for disability insurance
benefits.
AFFIRMED.
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