FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 21, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 05-13487

Non-Argument Calendar

____________________________

D.C. Docket No. 03-00177-CV-1-MP-AK

PIERRE PICHETTE,

 

Plaintiff-Appellant, 

versus

JO ANNE B. BARNHART, Commissioner of 

the Social Security Administration,

 Defendant-Appellee. 

____________________________

Appeal from the United States District Court

for the Northern District of Florida 

_____________________________

(June 21, 2006)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
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Pierre Pichette appeals the district court’s order affirming the denial by the

Commissioner of Social Security of Pichette’s application for disability insurance

benefits, 42 U.S.C. § 405(g), and for supplemental security income, 42 U.S.C.

§ 1383(c)(3). No reversible error has been shown; we affirm.

“We review the Commissioner’s decision to determine if it is supported by

substantial evidence and based on proper legal standards.” Lewis v. Callahan, 125

F.3d 1436, 1439 (11th Cir. 1997). “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. at 1440. “Even if the evidence preponderates against

the [Commissioner]’s findings, we must affirm if the decision reached is supported

by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.

1990).

Pichette first argues that the administrative law judge (ALJ) erred by basing

his decision denying benefits, in part, on the unsigned psychological report of

Linda Abeles, Ph.D. The ALJ may have erred in considering this report, which

showed another person’s handwritten initials beside Dr. Abeles’s name. See 20

C.F.R. §§ 404.1519n(e), 416.919n(e) (requiring that consultative evaluation

reports “be personally reviewed and signed by the medical source who actually

performed the examination”). But this error was harmless. See Diorio v. Heckler,
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721 F.2d 726, 728 (11th Cir. 1983) (stating that remand not necessary where ALJ

commits harmless error in making erroneous statements of fact while applying

proper legal standard).

Our review of the record shows that Dr. Abeles’s report is cumulative to

other psychological evidence presented to the ALJ. Her assessment was that

Pichette’s current psychological condition would not hinder him from obtaining or

maintaining employment, that he appeared competent to manage his own money,

and that his prognosis for future success in the workplace was fair to good. But

the ALJ also relied on the Mental Residual Functional Capacity Assessment

(MRFCA) of Wayne Conger, Ph.D., who concluded that, despite Pichette’s

memory problems caused by his cognitive deficits, he mentally was capable of

performing simple, repetitive tasks on a sustained basis. In addition, the August

2000 report of Leslie Rothman, Ph.D., showed that Pichette adequately and

independently could perform daily living activities. Although Dr. Rothman

opined that Pichette suffered from an anxiety disorder, Dr. Rothman recommended

that cognitive psychotherapy and a reduction in caffeine intake would help

Pichette’s emotional distress. The ALJ, further, discounted Pichette’s own

statements about his impairments and his inability to work in the light of all the

medical evidence; and Pichette does not challenge this determination. Even
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leaving out Dr. Abeles’s report, substantial evidence of Pichette’s mental

condition supports the ALJ’s determination.

Pichette also argues that the Appeals Council erred by “ignoring” alleged

additional, significant evidence of his disability: an MRFCA completed by Dr.

Rothman in July 2002. Dr. Rothman’s July 2002 MRFCA was not provided to the

ALJ, but it was submitted to the Appeals Council. Pichette contends that, after the

exclusion of Dr. Abeles’s report, Dr. Rothman’s MRFCA is the only record

evidence of Pichette’s mental health.

We review de novo the district court’s determination on whether remand to

the Commissioner is necessary based on new evidence. Vega v. Comm’r of Soc.

Sec., 265 F.3d 1214, 1218 (11th Cir. 2001). To succeed on a claim that remand is

appropriate, Pichette would have had to show (1) that “new, noncumulative

evidence exists,” (2) that “the evidence is material such that a reasonable

possibility exists that the new evidence would change the administrative result,”

and (3) that “good cause exists for the applicant’s failure to submit the evidence at

the appropriate administrative level.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th

Cir. 1998).

We doubt that Dr. Rothman’s July 2002 MRFCA is “new evidence” or that

it is “material.” It is based on Dr. Rothman’s one-hour August 2000 examination
 The 2002 MRFCA stated that Pichette was extremely limited in his ability (1) to understand, 1

remember, and carry out detailed instructions; (2) to work a regular schedule due to his frequent need

for long rest periods caused by his psychological condition; and (3) to set realistic goals or make

plans independently of others. 

 Although Pichette’s lawyer’s letter to the Appeals Council about the MRFCA is dated 18 July 2

2001, this date appears to be a typographical error because (1) the letter shows a fax date to the

Appeals Council of 18 July 2003, and (2) the MRFCA was not completed until 2002.

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of Pichette: this examination and its accompanying report were documented in the

proceedings before the ALJ. The July 2002 assessment contained new

conclusions based on evidence that the ALJ had considered. And Dr. Rothman 1

did not explain why he came to these conclusions nearly two years after the

examination. But regardless, Pichette has not attempted to show good cause for

his failure to submit Dr. Rothman’s MRFCA in the proceedings before the ALJ. 

The MRFCA is dated 17 July 2002, but the ALJ did not render his decision until

November 2002. And Pichette’s lawyer did not submit this evidence to the

Appeals Council until 18 July 2003. Pichette gives no reason for the tardiness of

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this submission. The Appeals Council committed no error in refusing to remand

this case to the ALJ for consideration of Dr. Rothman’s July 2002 MRFCA.

AFFIRMED.