FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 3, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13022

Non-Argument Calendar

________________________

D. C. Docket No. 06-04659-CV-IPJ

SHERRY SMITH, 

Plaintiff-Appellant, 

versus 

SOCIAL SECURITY ADMINISTRATION, 

Commissioner, Michael J. Astrue, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(April 3, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Sherry Smith appeals the district court’s order affirming the Commissioner’s
2

denial of her application for disability insurance benefits, pursuant to 42 U.S.C.

§ 405(g). On appeal, Smith first argues that the Vocational Expert’s (“VE”)

testimony did not constitute substantial evidence because the Administrative Law

Judge’s (“ALJ”) hypothetical question to the VE assumed that Smith could

perform sedentary work and did not account for any level of pain or her other

limitations. Smith also contends that the ALJ improperly disregarded the opinion

of Dr. Jose Oblena, a consulting physician, who reported that her constant pain

would diminish her capacity to work, and that the ALJ improperly substituted his

own opinion in place of Dr. Oblena’s opinion. Second, Smith maintains that the

Appeals Council (“AC”) failed to consider the new evidence she submitted to it

because, if it had considered the new evidence, it would have granted review

because the evidence would likely change the ALJ’s decision. Third, Smith

argues that the district court erred by requiring her to show good cause to submit

new evidence to the AC. Fourth, Smith argues that, because the new evidence she

submitted showed she was eligible for benefits under certain listings, the district

court erred by failing to consider the new evidence, by not remanding the case to

the AC, and by failing to consider the new evidence in determining whether the

ALJ’s decision was based on substantial evidence. After review, we AFFIRM.
3

I. BACKGROUND

Smith applied for a period of disability and disability insurance benefits,

alleging a disability onset date of 17 July 2001. Her application was denied, and

she requested further administrative review. A hearing was held before an ALJ,

who denied benefits to Smith. Smith filed a request for review with the Appeals

Council (“AC”) and submitted additional evidence. The AC denied Smith’s

request for review. Smith then filed suit in the district court, and the court affirmed

the ALJ’s decision. Smith also filed a motion to remand on 5 September 2007,

which we held in abeyance to allow her to file a Rule 60(b) motion, which was

denied on 14 November 2007. We denied Smith’s motion to remand on 3

December 2007. 

At the hearing before the ALJ, Smith testified that she was 43 years old, had

completed high school, and had received a clerk-typist certificate from a technical

college. She claimed to be unable to work because she could not sit, stand, or lift

things, and she needed to lay in bed during the day. These limitations resulted

from a back injury and back surgery related to that injury. She complained that her

back pain and leg problems did not improve after her surgery, that her range of

motion was limited, and that bending over increased her pain. She also

complained of pain spasms in her back and foot, burning in her left leg, and
4

numbness in her left foot. She stated she had constant pain, and intermittent

stabbing pain, but that a transcutaneous electrical nerve stimulator (“TENS”) unit

helped some. She stated that on a good day her pain would be a four or five out of

ten, and on a bad day, which were about four out of every seven days, her pain

would be nine and a half to ten out of ten. In addition, she described a broken

ankle and knee pain. Smith also testified that she was depressed and that she did

not want to get out of bed, had a fear of facing people, and experienced panic

attacks. She had problems with insomnia and slept an average of four hours a

night, a problem that she attributed to her back pain and depression, but she stated

that Trazodone helped her. She claimed that her pain and depression had worsened

since January 2004.

Regarding her limitations, Smith testified that she could walk up one aisle at

the grocery store before needing to stop and sit down and could only stand for

three minutes before experiencing severe pain. She could only sit for about ten

minutes before having to shift around. She could only lift a can of soda, and lifting

a gallon of milk induced pain. She could wash up to three dishes at a time before

needing to sit down, and she could fold clothes but had to move around after

folding three or four items. She needed to lay down during the day for an average

of 20 minutes of rest, 8 times a day. She was able to drive a little bit. The side-
5

effects of her medications had a significant negative impact on her daily life. Her

typical day involved taking pain medication, doing stretches in bed, doing chores

like folding towels and washing a couple of dishes, sitting down, and watching

some television. 

The medical records before the ALJ showed that Smith injured her back

when lifting oxygen tanks in July 2001. This injury resulted in pain in her left hip

and calf extending into her foot. She was seen by Dr. C. H. McCrimmon of

Anniston Orthopaedic Associates, P.A. for her pain. A July 2001 MRI showed she

had an “[a]symmetric L4-5 left lateral disc protrusion extending into caudal left

L4-5 neural foramen[,]” “[d]esiccation of the L5-S1 disc without evidence of

spondylosis[,]” and “L4-5 and L5-S1 facet osteoarthritic changes.” R2 at 381. Dr.

McCrimmon referred her to a neurosurgeon because of her continued complaints

of pain. 

Dr. Charles Clark of Neurosurgical Associates, P.C., became Smith’s

treating neurologist in October 2001. On 28 November 2001, Dr. Clark performed

a lumbar diskectomy (surgical removal of an intervertebral disk in the part of the

spine between the ribs and pelvis) for a herniated L4-5 lumbar disc. After a

follow-up examination on 20 December 2001, Dr. Clark concluded that she was

doing reasonably well and recommended exercises and a return to light duty in
6

several weeks with a 20-pound weight lifting restriction. On 15 January 2002,

Smith had returned to desk work and was doing extremely well with no complaints

and she was tolerating physical therapy. Dr. Clark found that she had occasional

paresthesias (a sensation of pricking, tingling, or creeping on the skin usually

associated with injury or irritation of a sensory nerve or nerve root) in her left foot,

but that it was improving. He anticipated maximum medical improvement within

four months and indicated that Smith could return to work provided she did not

engage in excessive bending, stooping, or lifting of over 25 pounds.

Smith began physical therapy in January 2002. The progress notes indicate

that she had good and bad days, continued pain, and some difficulty sleeping. An

April 2002, discharge summary indicated that she partially achieved her initial

goals, had a significant increase in strength and range of motion, but continued to

complain of high levels of pain. A 30 April 2002 report from Dr. Clark indicated

that Smith complained of persistent lower back pain extending into her left hip and

leg, which had been present for six weeks. She had good strength in both legs, but

experienced some left hip pain when raising her leg. An MRI in May 2002 showed

“no evidence of disc herniation, central canal or neural foraminal stenosis” at L3-4,

“[d]egenerative changes at L5-S1 with an annular tear in the posterior midline of

the disc space and a mild associated annular bulge” and enhancing scar tissue at
7

L4-5, but no evidence of recurrent or residual disc herniation. Id. at 122. As of 24

June 2002, Dr. Clark stated that Smith could not return to work. On 30 October

2002, Dr. Clark indicated that Smith had not returned to work, that epidural blocks

and physical therapy did not provide lasting relief, and that he could offer her

nothing else from a surgical standpoint. 

Between June and October 2002, Smith received treatment at Quality of Life

Health Services, Inc. (“Quality of Life”) for a variety of problems including

chronic low back pain, hypothyroidism (deficient activity of the thyroid gland),

allergies, lumbar disc disease, and high blood pressure. On her medical history

form, Smith indicated that she could dress herself, make her own meals, and do her

own shopping. Smith had a consultive examination with Dr. Jose Oblena on 3

December 2002. She reported constant hip and leg pain, which was worse on her

left side, and which she rated at a six out of ten on the pain scale. She further

indicated that she could not sit or stand for a long time, but that her medications,

Flexeril and Lortab, had eased her pain a little. She was in no acute distress and

the strength of her major muscle groups was five out of five with no atrophy. Dr.

Oblena commented that Smith “will have difficulty finding and keeping a job due

to her constant pain.” Id. at 242. 

On 9 January 2003, a DDS physician performed a physical residual
8

functional capacity (“RFC”) assessment of Smith. The assessment found that she

could occasionally lift or carry 20 pounds and could frequently lift or carry 10

pounds. The assessment indicated that she could stand, walk, or sit for

approximately six hours in an eight-hour workday, and she could push or pull with

unlimited frequency. The report further indicated that she could balance, stoop,

kneel, crouch, and crawl occasionally. The report provided that Smith reported

severe pain in her back, but concluded that “claimant[’]s symptoms are deemed

partially credible.” Id. at 252.

Dr. Vance Moore and the Oxford Family Practice provided Smith’s primary

care from 1981 to April 2003. Their records primarily contain lab results and x-ray

requests and results. Her listed diagnoses as of April 2003 included pharyngitis

(inflammation of the part of the digestive and respiratory tracts situated between

the cavity of the mouth and the esophagus), history of allergic rhinitis

(inflammation of the mucous membrane of the nose), sinusitis, and arthritis with

arthralgias (pain in one or more joints).

Smith received treatment at the Calhoun-Cleburne Mental Health Board, Inc.

(“Calhoun-Cleburne”), for depressive features and mood disorders relating to her

back injury from April 2003 to September 2003. In April 2003, she reported that

Zoloft afforded her some relief. By May 2003, Smith had made progress in all
9

areas except insomnia. Upon her discharge in September 2003, she had a stable

mood, she had no tearfulness, she took pleasure in various activities, her insomnia

was more related to her pain than her mood, and her overall progress was good. 

On 21 January 2004, Smith was examined by Laura Kezar, M.D., a physical

medicine and rehabilitation specialist. Smith reported that her medication provided

some relief, but she experienced constant low back pain with pain radiating across

her hips and intermittently down her leg. She also reported an ankle fracture for

which she was receiving conservative treatment. Dr. Kezar observed that Smith

appeared uncomfortable, her affect was constricted, and her mood was depressed,

but that she was alert, oriented, cheerful at times, had good eye contact, and was

neatly groomed. Smith had a guarded range of motion and tenderness to deep

palpation in her lower lumbar region, the sacroiliac joints, and throughout her

paravertebral muscles and in the buttock muscles, with scattered trigger points. 

Smith was able to drive short distances and ate a regular diet. The motor

examination showed normal tone and generally normal sensation to light touch

pinprick. Dr. Kezar opined that Smith suffered from (1) chronic low back pain,

left lower extremity radiculopathy (any pathological condition of the nerve roots),

failed back syndrome with nociceptive and neuropathic pain components “which

should be amenable to treatment;” (2) a recent ankle fracture; (3) prolonged sleep
10

disturbance, depressed mood, financial stress, and litigation; (4) hypertension; and

(5) hypercholesterolemia. Dr. Kezar assigned a ten percent impairment to Smith as

a whole. Id. at 396.

Dr. Kezar indicated in her “Plan” that Ultram was reasonable for pain

management, Flexeril had benefitted Smith in the past for acute muscle spasms and

would be restarted, and Desyrel would have a positive impact on Smith’s

perception of pain and potentially could help her sleep. She stated that she

believed Smith had reached Maximum Medical Improvement and that her

condition was static and well-stabilized. With respect to Smith working at a

sedentary level, Dr. Kezar stated “I certainly think this is reasonable. I do not see

that [Dr. Clark] gave her specific work restrictions.” Id. at 397. She advised Smith

to contact Vocational Rehabilitation Services for job retraining or education and

referred Smith to a chronic pain management physician.

Smith saw Dr. David W. Cosgrove, a pain management specialist, beginning

in September 2004. Her legs showed no unusual atrophy, impingement, or

pseudomotor change, and she had good internal and external rotation at the hips

with no crepitus in the knees. Lateral bending of Smith’s back produced localized

back pain but no radicular (involving a nerve root) complaints, and rotational

movement was normal. Dr. Cosgrove assessed Smith as having chronic
11

pain, failed back surgery syndrome, radiculopathy in her lower left leg, mild

treated depression, hypertension, hyperthyroidism, and seasonal rhinitis. He

suggested continuing with the medications given the benefit they provided in the

past.

In a 4 October 2004, follow up note, Dr. Cosgrove reported that Smith was

alert, oriented, pleasant, and appeared to be in no apparent distress. Smith reported

that her pain was a four or five out of ten, she derived significant benefit from her

medications, and she received good benefit from her TENS unit. Dr. Cosgrove

noted that Smith exhibited no excessive pain behaviors. She pointed out a tender

spot on her right foot, but Dr. Cosgrove found no palpable or visible abnormality. 

Dr. Cosgrove recommended continuing Smith’s medications unchanged and a

follow-up in three months. 

At the 7 March 2005 hearing, the ALJ posed a hypothetical to a Vocational

Expert, asking the VE to consider:

a younger individual who has a high school education plus [] at least

15 months of technical college, who has the restrictions of, for

occasional bending, stooping, squatting, climbing, no push-pull

movement involving the left lower extremities, no driving, no

unprotected height. She should work in a temperature controlled

environment and given an option to sit or stand at will. And for

purposes of our scenario, she has a mild to moderate level of pain

and/or depression. 
12

Id. at 770. The VE testified that Smith would not be able to return to her past work

activity. Upon being asked if there were sedentary work opportunities for someone

as described, the VE testified that approximately 1,500 cashier jobs, 3,000 to 4,000

clerical jobs, 2,000 automatic machine tenders, and 1,000 to 1,500 security monitor

jobs existed in the north central Alabama area alone. The ALJ returned to the

original hypothetical and added the limitation of having to lie down four times

during work hours for 30 minutes each time. The VE responded that no work

would be available at either the light or sedentary level. The ALJ then removed the

restriction of needing to lie down and added the restriction of a moderately severe

to severe pain level, and alternatively, moderately severe to severe levels of

depression, and the VE responded that she would not be able to work at all. The

ALJ then changed to hypothetical to include medication side-effects that imposed

moderately severe to severe limitations, and the VE stated that no work could be

done. 

The ALJ denied benefits on 8 December 2005. The ALJ found that Smith

was not currently engaged in substantial gainful activity. He found that she had

severe impairments, which were failed back surgery syndrome, left lower

extremity radiculopathy, mild depression, hypertension, and hypothyroidism. The

ALJ found that none of her impairments met the criteria of the disability listings in
13

20 C.F.R. § 404, appendix 1, subpart P, and specifically did not meet the criteria of

listing § 1.04 (disorders of the spine), because there was no evidence that Smith

had a compromise of a nerve root of the spinal cord with evidence of nerve root

compression. The ALJ then calculated her RFC to determine whether she could

perform her past relevant work, and in so doing, he considered various factors

including Smith’s daily activities, precipitating and aggravating factors, the sideeffects of her medication, other treatments, and Smith’s subjective complaints of

pain. 

Regarding the medical evidence of her pain, the ALJ found that, in early

2002, Dr. Clark found no clear evidence of disk herniation and did not report that

she had disabling pain or limitations due to her back impairment. The ALJ noted

that Dr. Kezar, a rehabilitation specialist, stated, in the January 2004 evaluation,

that it was reasonable for Smith to perform a sedentary level job, and that Dr.

Kezar recommended that Smith see vocational rehabilitation services for job

retraining or education. Based on this, the ALJ found that Dr. Kezar did not

believe that Smith had disabling pain or limitations due to her back problems. 

Next, the ALJ considered that Dr. Cosgrove, as Smith’s pain management

specialist, reported that her pain level in October 2004 was no more than four to

five out of ten, which did not rise to the level of disabling pain. The ALJ noted
14

that Dr. Cosgrove did not indicate that she had disabling pain, and he reported that

she received significant benefits from her medication and her TENS unit and did

not appear to be in distress. The ALJ concluded that of Smith’s treating

physicians, the specialists who treated her back, the physicians at Quality of Life,

and Dr. Moore, no one ever reported that Smith had disabling pain or limitations.

Regarding her subjective complaints of pain, the ALJ found inconsistencies

between her testimony and the medical records. The ALJ noted that Smith testified

at the hearing that her pain was nine to ten out of ten four days a week, which was

inconsistent with Dr. Cosgrove’s October 2004 report that her pain was four to five

out of ten. Dr. Cosgrove further indicated that Smith received significant benefit

from her medications, and he did not indicate that she experienced more severe

pain. The ALJ also found that Smith’s testimony that she had significant problems

with the side-effects of her medications was inconsistent with the treating medical

records because Dr. Cosgrove, as the physician who treated her pain, never

indicated that Smith reported side-effects from her medications. The ALJ then

found that Smith’s testimony regarding her physical limitations were

unsubstantiated by the medical records. The ALJ noted that none of her treating

physicians ever reported physical restrictions as severe as what Smith claimed in

her testimony, and Dr. Kezar stated that Smith could perform sedentary work, even
15

without a fully healed ankle. Furthermore, the ALJ found that three separate

doctors recommended that Smith exercise, indicating that she was not as limited as

she alleged. The ALJ found no evidence of disabling limitations relating to her

hypothyroidism or hypertension, and she had not been diagnosed with arthritis of

the knees. The ALJ specifically addressed Dr. Oblena’s December 2002 report and

concluded that it was based on Smith’s subjective complaints, which were not

supported by the other medical records. The ALJ found that, other than some

decreased range of motion in her lumbar spine, Smith’s examination by Dr. Oblena

was within normal limits. 

The ALJ then concluded that Smith’s testimony regarding her depression

and anxiety was unsupported by the medical records. He noted that she was

diagnosed with depression and anxiety at Quality of Life in February 2003, and

that in May 2003, Quality of Life reported that she had a good response to Zoloft. 

Although Dr. Kezar noted that Smith’s mood was depressed in January 2004, Dr.

Kezar did not diagnose Smith with depression or any other mental impairment. In

September 2004, Dr. Cosgrove noted that Smith had mild depression, which was

treated. The ALJ found that no treating or examining physician ever reported that

Smith had disabling depression or any disabling limitations relating to mental

impairments.
16

The ALJ concluded that Smith had the “residual functional capacity to

perform sedentary work which allows for no more than occasional bending,

stooping, squatting, or climbing; no pushing or pulling movements of the left lower

extremity; no driving; no work at unprotected heights; a temperature controlled

environment and a sit/stand option,” and that “[a]ny testimony or allegations

otherwise are not credible.” Id. at 34. The ALJ then found, based on the VE’s

testimony, that Smith was capable of performing a significant number of sedentary

jobs given her age, education, work experience, and residual functional capacity,

and therefore, she was not disabled.

On 17 April 2006, after the ALJ’s decision, Dr. Daniel Prince performed a

consultive examination of Smith. Dr. Prince concluded that Smith was completely

impaired, and she appeared to be a chronic pain patient with fibromyalgia (a

chronic disorder characterized by widespread pain, tenderness, and stiffness of

muscles and associated connective tissue structures) and multiple problems with

mental and nervous disorders. Also after the ALJ’s decision, on 20 June 2006, Dr.

David Wilson performed a psychological evaluation in which he diagnosed Smith

with, among other things, major, severe depression with possible psychotic

features and a Global Assessment of Functioning (“GAF”) of 45, which indicated

serious mental symptoms or impairments. Dr. Wilson opined that her level of
17

impairment “would prevent her from functioning in any type of work setting.” Id.

at 416. 

Smith appealed to the AC and submitted additional evidence, most of which

duplicated evidence already before the ALJ. A 21 December 2005 report from

Quality of Life, which was prepared after the ALJ’s decision, showed that Smith

reported her back pain was worse, her depression was worse, and her pain scale

score was an eight out of ten. The AC denied Smith’s request for review. The AC

“considered the reasons [Smith] disagree[d] with the decision and the additional

evidence listed on the enclosed Order of Appeals Council,” and found that the

additional evidence did not provide a reason to change the ALJ’s decision. Id. at

7-8. 

The district court affirmed the Commissioner’s decision. In making its

decision, the district court considered Smith’s argument that the AC should have

granted review or remanded her case based on the new evidence she submitted. 

The district court cited case law for the proposition that good cause is required

when a claimant fails to submit evidence at the administrative level. The district

court then considered the new evidence that Smith submitted to the AC, and

concluded that “the majority of the evidence so submitted is either duplicative of

records already submitted, or does not relate to the relevant time period.” R1-12 at
18

20-21. The district court noted that while the Dr. Prince record may establish that

Smith was disabled as of 17 April 2006, this was not in the relevant time period. 

The district court found no basis to remand “[b]ecause the medical records which

could establish disability all post-date the ALJ’s decision.” Id. at 21. Therefore,

the district court affirmed the Commissioner’s decision. This appeal followed. 

II. DISCUSSION

1. The ALJ’s Decision Was Based Upon Substantial Evidence

We review a Commissioner’s decision to determine whether it is supported

by substantial evidence and whether the proper legal standards were applied. 

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

curiam). “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. (quotation omitted). “Even if the evidence preponderates against

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

by substantial evidence.” Id. at 1158-59 (quotation omitted). “We may not decide

facts anew, reweigh the evidence, or substitute our judgment for that of the

[Commissioner.]” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per

curiam) (quotation omitted).

A. Subjective Complaints of Pain
19

When a claimant attempts to establish disability through her own testimony

concerning pain or other subjective symptoms, we apply a three-part “pain

standard,” which requires “(1) evidence of an underlying medical condition; and

(2) either (a) objective medical evidence confirming the severity of the alleged pain

stemming from that condition; or (b) that the objectively determined medical

condition can reasonably be expected to give rise to the claimed pain. Wilson v.

Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam). The ALJ must

explicitly and adequately articulate his reasons if he discredits subjective

testimony. Id. “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) (per curiam).

The ALJ found that the medical records did not support Smith’s subjective

claims of pain. The ALJ based his decision upon medical records establishing that

Dr. Clark released Smith to light duty work in early 2002 following her back

surgery in 2001, and that Dr. Clark performed additional tests following her

complaints of pain, but, as of 30 October 2002, the tests did not reveal any

evidence of disk herniation. Further, Dr. Clark never reported that Smith

experienced disabling pain or limitations. Dr. Kezar, a specialist in physical

medicine and rehabilitation, specifically stated in January 2004 that it was
20

reasonable for Smith to return to sedentary level work. Further, Dr. Kezar

recommended that Smith seek vocational rehabilitation services for job retraining

or education, implying that Dr. Kezar did not think Smith was experiencing

disabling pain or limitations relating to her back impairment. Dr. Cosgrove,

Smith’s pain management specialist, reported in October 2004 that Smith was

experiencing moderate, not disabling, pain, as she reported pain at no more than

four or five out of ten. Dr. Cosgrove also indicated that Smith received significant

benefits from her medication, her TENS unit, and she did not appear to be in

distress. Dr. Cosgrove never reported that Smith experienced disabling pain or

limitations relating to her back impairment. 

We conclude that the ALJ properly found that Smith’s testimony was not

supported by the medical evidence and was inconsistent with Dr. Cosgrove’s report

that her pain was only four to five out of ten. In addition, Smith’s treating

physicians, the specialists who treated her back impairment, and the physicians at

Quality of Life, never reported that she had disabling pain or limitations. See

Wilson, 284 F.3d at 1225. The record does not show that Smith had a medical

condition that was so severe that it could reasonably be expected to cause the levels

of pain that Smith alleged. Therefore, substantial evidence supports the ALJ’s

rejection of Smith’s subjective complaints of pain, and the ALJ did not err in
21

concluding that Smith’s pain level was mild to moderate.

B. Physical Assessment

The ALJ concluded that Smith had a residual functional capacity to perform

sedentary work that allowed for “no more than occasional bending, stooping,

squatting, or climbing; no pushing or pulling movements of the left lower

extremity; no driving; no work at unprotected heights; a temperature controlled

environment and a sit/stand option. R2 at. 32.

Sedentary work involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers, and

small tools. Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and standing is often

necessary in carrying out job duties. Jobs are sedentary if walking

and standing are required occasionally and other sedentary criteria are

met.

20 C.F.R. § 404.1567(a); 20 C.F.R. § 416.967(a). Social Security Ruling 83-10

elaborates on the definition of sedentary by providing that “‘[o]ccasionally’ means

occurring from very little up to one-third of the time, and that periods of standing

or walking should generally total no more than about 2 hours of an 8-hour

workday, and sitting should generally total approximately 6 hours of an 8-hour

workday.” Kelley v. Apfel, 185 F.3d 1211, 1213 n.2 (11th Cir. 1999) (per curiam)

(quotation omitted).

Substantial evidence supported the ALJ’s determination of Smith’s physical
22

limitations. As of 29 May 2002, Dr. Clark found no evidence of recurrent or

residual disc herniation. On 3 December 2002, Dr. Oblena found that her major

muscle groups had a graded strength of five out of five with no muscle atrophy. 

Smith’s 9 January 2003 physical RFC indicated that she could occasionally lift and

carry 20 pounds, and could frequently lift or carry 10 pounds. The assessment

stated that she could stand, walk, or sit about six hours in an eight-hour workday,

and could push or pull with unlimited frequency. The report further indicated that

she could balance, stoop, kneel, crouch, and crawl occasionally. Therefore,

according to the report, Smith was capable of performing sedentary work. See 20

C.F.R. § 404.1567(a); 20 C.F.R. § 416.967(a). In addition, none of Smith’s

treating physicians ever indicated she was as limited as she claimed to be, and no

medical evidence substantiated Smith’s claim that she needed to lie down

periodically throughout the day. In fact, Dr. Kezar reported that she was capable

of sedentary work in January 2004, despite her ankle fracture. Dr. Cosgrove, a

pain management specialist, found that Smith’s legs showed no unusual atrophy,

impingement, or pseudomotor change, and she had good internal and external

rotation at the hips with no crepitus at the knees. 

The record supports the finding that Smith was capable of performing

sedentary work, and none of Smith’s treating physicians ever indicated she was as
23

limited as she claimed to be. Given that a reasonable person could find this

evidence supports the ALJ’s assessment of her physical limitations, the ALJ’s did

not err in determining Smith’s physical limitations, because his assessment is

supported by substantial evidence. See Crawford, 363 F.3d at 1158. 

C. Mental Assessment

The ALJ found that Smith's medical records did not support a finding that

she suffered from disabling depression or anxiety as she testified at the hearing. 

The record shows that she was diagnosed with mood disorder with depressive

features at Calhoun-Cleburne in April 2003, but reported having some relief from

Zoloft. By September 2003, her mood was stable, her insomnia was related more

to her pain than her mood, she had no tearfulness, and she was finding pleasure in

various activities. In January 2004, Dr. Kezar noted that Smith had a depressed

mood, but she diagnosed no other mental impairment. Dr. Cosgrove diagnosed

Smith with mild, treated depression, but found that, as of 4 October 2004, she

received significant benefits from her medications and appeared to be in no

apparent distress. Smith points to no evidence indicating she suffered disabling

depression or anxiety, and no documents before the ALJ indicated that she was

experiencing severe depression. Therefore, substantial evidence supported the

ALJ’s conclusion that Smith suffered no more than mild to moderate depression. 
24

See id.

D. Dr. Oblena’s Report

The opinions of examining or treating physicians generally are given more

weight than non-examining or non-treating physicians unless “good cause” is

shown. See 20 C.F.R. § 404.1527(d)(1), (2), (5); Lewis v. Callahan, 125 F.3d

1436, 1440 (11th Cir. 1997). Good cause exists to discredit a physician’s

testimony when a physician’s opinion is contrary to the evidence contained in the

record. Lewis, 125 F.3d at 1440. Additionally, the Commissioner may reject any

medical opinion if the evidence supports a contrary finding. Sryock v. Heckler,

764 F.2d 834, 835 (11th Cir. 1985) (per curiam). 

Given all the evidence tending to show that Smith was not in disabling pain,

substantial evidence justified the ALJ’s decision not to accord much weight to Dr.

Oblena’s December 2002 report, which stated that Smith would have difficulty

working due to her constant pain. The ALJ found that Dr. Oblena’s opinion was

apparently based on Smith’s subjective complaints, which the ALJ appropriately

found were not substantiated by the record, and that the remaining portions of Dr.

Oblena’s report were essentially within normal limits, because the report indicated

that Smith was in no acute distress, her pain was a six out of ten but was reduced

by her medications, she had no muscle atrophy, and there was no evidence of
 This Court need not address Smith’s allegation that the ALJ previously has been found 1

to have substituted his own opinion for that of medical experts, because, in this case, the ALJ’s

decision is supported by substantial evidence.

25

recurrent or residual disc herniation. Furthermore, Smith reported to both Dr.

Kezar and Dr. Cosgrove that her medication improved her pain, and Dr. Kezar

specifically indicated that it was reasonable for Smith to perform sedentary work as

of January 2004. The ALJ was entitled to weigh the evidence, and his decision to

disregard Dr. Oblena’s conclusion was supported by substantial evidence. 

1

Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986)

E. The ALJ Posed a Proper Hypothetical Posed to the VE

When a claimant cannot perform a full range of work at a given level of

exertion or has non-exertional impairments that significantly limit basic work

skills, the preferred method of demonstrating that a claimant can perform other

jobs is through the testimony of a VE. Jones v. Apfel, 190 F.3d 1224, 1229 (11th

Cir. 1999). “[T]o constitute substantial evidence, the VE’s testimony must be

based on a hypothetical posed by an ALJ which encompasses all of the claimant’s

impairments.” Id. The ALJ is not required to include findings in the hypothetical

that he finds are unsupported. Crawford, 363 F.3d at 1161. The resolution of

conflicting evidence is the function of the ALJ. See Graham, 790 F.2d at 1575. 

The hypothetical posed to the VE was consistent with the medical evidence
26

and other evidence on the record that the ALJ found to be credible. Given that

substantial evidence supported the ALJ’s finding that Smith experienced no more

than mild to moderate levels of pain and depression, as described above, the

hypothetical properly included these limitations. Substantial evidence supported

that ALJ’s conclusion that Smith’s testimony concerning (1) her need to lie down

throughout the day, (2) her moderately severe to severe pain or depression, and

(3) the disabling side-effects from her medication, was not credible in light of the

medical records. Consequently, the hypothetical relied on by the ALJ properly did

not include these limitations. Crawford, 363 F.3d at 1161; see also Ingram v.

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

that the ALJ properly omitted a claimant’s alleged fatigue, insomnia, anxiety, and

depression because they were either not supported by the medical records or were

alleviated by medication). Accordingly, the hypothetical posed to the VE was

proper because it included all of Smith’s impairments. Since the ALJ posed a

proper hypothetical, the VE’s testimony constitutes substantial evidence that

supports the denial of benefits. See Jones, 190 F.3d at 1229. 

2. The AC’s Decision Not to Review

Smith argues that the AC failed to consider the new evidence that she

submitted to it because, if it had considered the new evidence, it would have
27

granted review because the evidence would likely change the ALJ’s decision and

demonstrates that she is physically and mentally disabled. Smith emphasizes that

the reports of Dr. Wilson and Dr. Prince show that she is eligible for benefits under

listing § 12.04 (depression). Specifically, she notes that (1) Dr. Wilson evaluated

her and concluded that she had major depression-recurrent and a GAF of 45, which

would qualify her under listing § 12.04, and (2) Dr. Prince, based on his evaluation

on April 17, 2006, concluded that Smith was disabled and completely impaired. 

The Commissioner responds that the AC properly denied review because it

considered her new evidence and properly concluded that the evidence did not

establish a basis on which to overturn the ALJ’s decision. 

If a claimant submits new noncumulative and material evidence to the AC

after the ALJ’s decision, the AC shall consider such evidence, but only where it

relates to the period on or before the date of the ALJ’s hearing decision. 20 C.F.R.

§ 404.970(b). “Material” evidence is evidence that is “relevant and probative so

that there is a reasonable possibility that it would change the administrative result.” 

Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987) (quotation omitted). When

evidence is submitted for the first time to the AC, that new evidence becomes part

of the administrative record. Keeton v. Dep’t of Health and Human Servs., 21 F.3d

1064, 1067 (11th Cir. 1994). The AC considers the entire record, including the
28

new, material, and chronologically relevant evidence, and will review the ALJ’s

decision if the ALJ’s “action, findings, or conclusion is contrary to the weight of

the evidence currently of record.” 20 C.F.R. § 404.970(b). We review “whether

the new evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at

1262. “When the Appeals Council refuses to consider new evidence submitted to

it and denies review, that decision is also subject to judicial review because it

amounts to an error of law.” Keeton, 21 F.3d at 1066.

In this case, the AC considered Smith’s newly submitted evidence but found

no basis to review the ALJ’s decision. The AC specifically stated that it

“considered the reasons [Smith] disagree[d] with the decision and the additional

evidence listed on the enclosed Order of Appeals Council,” thus it did not err by

failing to consider the new evidence. R2 at 7; see Keeton, 21 F.3d at 1066. In

addition, the AC properly declined to review the ALJ’s decision in light of the

evidence submitted because the evidence was either not new or material. With

respect to her physical condition, the evidence shows that Smith fractured her left

ankle, and that she was doing “fairly well” with “residual aching pain and

swelling.” R2 at 538-72, 653-54. Records from 9 October 2003 to 6 January

2005, show that Smith was being treated for sinus and ear pressure,

hypothyroidism, reflux, a broken ankle, back pain, and foot pain. The physical
29

therapy documents show that, by 10 March 2004, Smith was able to walk at least

15 minutes before experiencing pain, she was able to stand for more than 10

minutes in one sitting, her ankle strength had improved, her gait pattern was

significantly better, and her function was progressing well. Treatment notes from

April 2005 show that Smith indicated that all of her medications were helping, she

was exercising, and she felt her strength had increased. She exhibited no excessive

pain behaviors, and, although she had a slightly antalgic gait, she had good

mobility overall. She also had been walking around the block three times a day

using ankle weights to build her leg strength, and her lower extremities were

normal for power and tone. In September 2005, Smith reported “good benefit”

from her medications, and she was still walking around the block about three times

a day and doing stretches. Id. at 433, 588. Other records dating from 15 March

2005 to 21 December 2005, id. at 424-29, 580-86, show that she was doing well at

a follow-up in April 2005, when she reported a pain level of five out of ten, and, in

July 2005, she denied pain and was exercising every day. None of these reports

indicated that Smith was experiencing severe or disabling pain or physical

limitations, and they appear to show that her medications were helping and she was

improving. Thus, these records are not material, as they do not create a

“reasonable possibility” of a different result. See Milano, 809 F.2d at 766. 
30

With respect to Smith’s mental condition, a mental status exam from

Calhoun-Cleburne dated 5 August 2004, indicated a tentative diagnosis of

depression. In June 2005, Dr. Cosgrove reported that Smith had some insomnia

and depression but indicated that Trazodone was helping her, and in September

2005 he diagnosed her with treated mild depression. None of these reports

indicated that she was suffering from severe or disabling depression, and therefore,

do not conflict with the ALJ’s decision. 

Among the other new evidence Smith submitted was (1) a 20 June 2006

report from Dr. Wilson concluding that her impairments would prevent her from

working; (2) a 17 April 2006 report from Dr. Prince concluding that she was

completely impaired; and (3) a 21 December 2005 Quality of Life report, which

indicated that Smith reported her back pain was worse, her depression was worse,

and her pain scale score was an eight out of ten. While these three reports would

strengthen Smith’s contention that the new evidence showed she was disabled,

these reports came after the ALJ’s decision and, therefore, the AC does not

consider them in determining whether to review the ALJ’s decision. See 20 C.F.R.

§ 404.970(b). 

Therefore, because none of the reports in the relevant time period indicated

that Smith was experiencing severe or disabling pain or depression, and the reports
31

concluding that she was experiencing severe pain and depression took place after

the ALJ’s decision, the evidence did not establish a likelihood that the ALJ would

have reached a different result, and the AC did not err by concluding that the

weight of the evidence was not contrary to the ALJ’s decision. 

3. The District Court’s Decision Not to Remand Was Correct

We review de novo a district court’s determination of whether newly

submitted evidence necessitates a remand to the Commissioner. Vega v. Comm’r

of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001). When a claimant submits new

evidence to the AC, the district court must consider the entire record, including the

evidence submitted to the AC, to determine whether the denial of benefits was

erroneous. Ingram, 496 F.3d at 1262. Remand is appropriate when a district court

fails to consider the record as a whole, including evidence submitted for the first

time to the AC, in determining whether the Commissioner’s final decision is

supported by substantial evidence. Id. at 1266-67. The new evidence must relate

back to the time period on or before the date of the ALJ’s decision. 20 C.F.R.

§ 404.970(b).

“Section 405(g) [of the Social Security Act] permits a district court to

remand an application for benefits to the Commissioner . . . by two methods, which

are commonly denominated ‘sentence four remands’ and ‘sentence six remands.’”
32

Ingram, 496 F.3d at 1261. A sentence four remand, as opposed to a sentence six

remand, is appropriate when “evidence properly presented to the Appeals Council

has been considered by the Commissioner and is part of the administrative record.” 

Ingram, 496 F.3d at 1269. Under a sentence four remand, when a claimant has

submitted evidence for the first time to the AC, the claimant is not required to

show good cause. See Melkonyan v. Sullivan, 501 U.S. 89, 99-100, 111 S.Ct.

2157, 2164 (1991) (recognizing “Congress’ explicit delineation in § 405(g)”

between sentence four and sentence six remands and noting that a court may

remand under sentence six “only if the claimant shows good cause for failing to

present the evidence earlier”); see also Ingram, 496 F.3d at 1258 (recognizing that

we have previously “mistakenly stated that evidence first presented to the Appeals

Council could be considered by the court only if the applicant had good cause for

not presenting it earlier to the administrative law judge.”).

Because Smith submitted new evidence for the first time to the AC, which

the AC considered, it became part of the administrative record and the only basis

for remanding her case would be a sentence four remand, not a sentence six

remand. Because this is a sentence four remand situation, Smith was not required

to show good cause. Here, the district court did not require Smith to show good

cause and did in fact consider the additional evidence Smith submitted to the AC,
33

as Ingram requires. Because the district court considered the evidence Smith

submitted for the first time to the AC, a remand for failing to consider the evidence

under Ingram is unnecessary. See Ingram, 496 F.3d at 1266-67. Additionally, the

evidence that Smith submitted after the ALJ’s decision, which the district court

properly considered, was either cumulative or immaterial, and therefore, the

district court did not err in finding that the evidence did not establish a basis for

remanding the case.

III. CONCLUSION

Sherry Smith appeals the district court’s order affirming the Commissioner’s

denial of her application for disability insurance benefits, pursuant to 42 U.S.C.

§ 405(g). Upon review of the administrative and district court records and the

parties’ briefs, we find no error. The ALJ posed a proper hypothetical posed to the

Vocational Expert, the Appeals Council properly declined to review the additional

evidence Smith submitted to it on appeal of the ALJ’s adverse decision, and the

district court correctly found that the ALJ’s decision is supported by substantial

evidence and followed the proper legal standards. Accordingly, the district court’s

order is AFFIRMED.