KADIRI

v.

COMMISSIONER OF SOCIAL SECURITY

The Plaintiff seeks judicial review of the Commissioner’s denial of her claims for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). For the reasons discussed below, the Commissioner’s decision is affirmed.

I.

The Plaintiff was born in 1978, has a high school education, and has past relevant work experience as a companion and home health aide. (R. 40, 111). In October 2016, the Plaintiff applied for DIB and SSI, alleging disability as of March 2015 due to asthma, depression, migraine headaches, and lower back pain. (R. 111–

(2) had the severe impairments of asthma, obesity, osteoarthritis, hemolytic anemias, sleep related sleeping disorders, and degenerative disc disease in her back; (3) did not, however, have an impairment or combination of impairments that met or medically equaled the severity of any of the listings;² (4) had the residual functional capacity (RFC) to perform a restricted range of light work with some exertional and environmental limitations; and (5) based on the VE’s testimony, could not engage in her past relevant work but was capable of making a successful adjustment to other jobs that exist in significant numbers in the national economy. (R. 29, 32–42). In light of these findings, the ALJ concluded the Plaintiff was not disabled. (R. 41–42).

The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).³ A physical or mental impairment under the Act “results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). To determine whether a claimant is disabled, the Social Security Regulations (Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (per curiam) (citing 20 C.F.R. § 404.1520(a)(4)); see also 20 C.F.R. § 416.920(a)(4).4 Under this process, an ALJ must assess whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment; (3) has a severe impairment that meets or equals one of the listings;

(4) has the RFC to engage in her past relevant work; and (5) can perform other jobs in the national economy given her RFC, age, education, and work experience. Id. (citing

Sec., 966 F. 3d 1277, 1279 (11th Cir. 2020) (quoting Hale v. Bowen, 831 F. 2d 1007, 1011 (11th Cir. 1987)); Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727, 734 (11th Cir. 2017) (per curiam) (citing Jones v. Apfel, 190 F. 3d 1224, 1228 (11th Cir. 1999)). If the Commissioner carries that burden, the claimant must then prove she cannot engage in the work identified by the Commissioner. Goode, 966 F. 3d at 1279. In the end, “the overall burden of demonstrating the existence of a disability . . . rests with the claimant.” Washington v. Comm’r of Soc. Sec., 906 F. 3d 1353, 1359 (11th Cir. 2018) (quoting Doughty v. Apfel, 245 F. 3d 1274, 1280 (11th Cir. 2001)). A claimant who does not prevail at the administrative level may seek judicial review in federal court provided the Commissioner has issued a final decision on the matter after a hearing. 42 U.S.C. § 405(g). Judicial review is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. Id.; Hargress v. Soc. Sec. Admin., Comm’r, 883 F. 3d 1302, 1305 n.2 (11th Cir. 2018) (per curiam) (citation omitted). Substantial evidence is “more than a mere scintilla” and is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. ___, 139 S. Ct. 1148, 1154 (2019) (citations and quotations omitted). In evaluating whether substantial evidence supports the Commissioner’s decision, a court “may not decide the facts anew, make credibility determinations, or re-weigh the evidence.” Carter, 726 F. App’x at 739 (citing Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005)). While a court will defer to the Commissioner’s factual findings, it will extend no such deference to her legal conclusions. Keel-Desensi v. Berryhill, 2019 WL 1417326,

at *2 (M.D. Fla. Mar. 29, 2019) (citing Keeton v. Dep’t of Health & Hum. Servs., 21 F. 3d 1064, 1066 (11th Cir. 1994)).

III.

The Plaintiff’s sole challenge on appeal is that the Appeals Council erred by not providing her with a notice required under Social Security Ruling (SSR) 11-1p when the Council declined to review her case, and that the Court should therefore reverse and remand the case to the Commissioner. (Doc. 33 at 5–6, 11). After a thorough review of the parties’ submissions and the record, the Court finds the Plaintiff’s challenge to be without merit.

A claimant may generally tender additional evidence at each stage of the SSA’s administrative process, including when the matter is before the Appeals Council. Norton v. Comm’r of Soc. Sec., 853 F. App’x 519, 520 (11th Cir. 2021) (per curiam) (citing Hargress, 883 F. 3d at 1308). The Appeals Council must consider such evidence “‘if it is new, material, and chronologically relevant.’” Id. (quoting Hargress, 883 F. App’x at 1309). Evidence is considered “new” if it was not previously before the ALJ and if it is not otherwise cumulative of existing record evidence. Hyde v. Bowen, 823 F. 2d 456, 459 (11th Cir. 1987); Caulder v. Bowen, 791 F. 2d 872, 877 (11th Cir. 1986). Evidence is deemed “material” if it “is ‘relevant and probative so that there is a reasonable possibility that it would change the administrative result.’” Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553 (11th Cir. 2016) (per curiam) (quoting Milano v. Bowen, 809 F. 2d 763, 766 (11th Cir. 1987)). And evidence is “chronologically relevant” if it relates to the period on or before the date of the ALJ’s decision, even if it was rendered after the ALJ’s opinion. Washington v. Soc. Sec. Admin., Comm’r, 806 F. 3d 1317, 1322– 23 (11th Cir. 2015). Pertinent to the Plaintiff’s challenge here, if the Appeals Council finds that the supplemental evidence is not chronologically relevant, it is mandated under SSR 11- 1p to return the additional evidence to the claimant. SSR 11-1p, 2011 WL 3962767,

at *3 (S.S.A. July 28, 2011). More importantly, SSR 11-1p directs the Appeals Council to include with the returned evidence a notice informing the claimant that if she chooses to file a new SSI claim within sixty days of the Council’s decision, the SSA “will consider the date [the claimant] filed the request for Appeals Council review as the filing date for [her] new claim.” Id. In this case, the Plaintiff submitted supplemental records to the Appeals Council, which consisted of treatment notes relating to the care the Plaintiff received for her headaches and back pain, among other afflictions. (R. 51–79). A number of these records pre-dated the ALJ’s disability determination. (R. 66–70, 71–75). In a decision issued in May 2020, the Appeals Council determined that the Plaintiff’s additional evidence “d[id] not show a reasonable probability that it would change the outcome of the [ALJ’s] decision” and therefore denied the Plaintiff’s request for review. (R. 2). The Plaintiff now argues that, despite the fact that some of the materials she tendered to the Appeals Council were not chronologically relevant, the Council neglected to provide her with the notice required under SSR 11-1p when it declined to grant her the sought-after relief. (Doc. 33 at 6); (R. 2). The Plaintiff further avers that she filed a new application⁵ in June 2020 shortly after receiving the Appeals Council’s ruling, and that the Council’s purported failure to include this notice deprived her of potential benefits. (Doc. 33 at 6). There are several problems with the Plaintiff’s challenge. To begin, in order for a case to be remanded based on the submission of new evidence to the Appeals Council, a “claimant must show that, in light of th[is] new evidence . . . , the ALJ’s decision to deny benefits is not supported by substantial evidence in the record as a whole.” Timmons v. Comm’r of Soc. Sec., 522 F. App’x 897, 902 (11th Cir. 2013) (per curiam) (citing Ingram v. Comm’r of Soc. Sec. Admin., 496 F. 3d 1253, 1266–67 (11th Cir. 2007)). The Plaintiff does not argue, however, much less demonstrate that the materials she tendered to the Appeals Council undermined the ALJ’s decision. Indeed, as the Commissioner points out, the Plaintiff does not challenge any of the ALJ’s findings or even the ALJ’s ultimate disability determination. (Doc. 33 at 6).

The Plaintiff also does not cite to any authority which buttresses her position. As a result, she does not carry her burden of establishing a basis for remand.

IV.

Based on the foregoing, it is hereby ORDERED: 1. The Commissioner’s decision ts affirmed. 2. The Clerk of Court is directed to enter Judgment in the Defendant’s favor and to close the case. SO ORDERED in Tampa, Florida, this 30th day of March 2022. OSasacoophay ‘PP Xx ake

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge Copies to: Counsel of record

° To the extent the Plaintiff may claim she was deprived of an earlier filing date on her new claim, such an argument would seem to be premature as the new application appears to be pending before the SSA. See McCloud, 2021 WL 4272986, at *5 (finding that a clatmant had not yet exhausted her administrative remedies as to whether she was afforded the correct filing date pursuant to SSR 11-1p because her appeal was still pending at the agency level) (citation omitted).