[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22

- 12416

Non

- Argument Calendar

____________________

KELLIE WALTERS,

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. 4:21

- cv

- 01348

- ACA

____________________ USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 1 of 112 Opinion of the Court 22

- 12416

Before W ILSON

, R OSENBAUM , and J ILL P RYOR , Circuit Judges.

PER CURIAM :

Kellie Walters appeals from the district court’s affirmance of
the Appeals Council , which declin ed to consider her proposed exhibits that were not before the A dministrative L aw J udge (ALJ).

After care ful review of the record and the parties’ brief s
, we affirm.

I.

Walters applied for disability insurance benefits (DIB), disabled widow’s benefits, and supplemental security income (SSI).

Walters alleged an onset date of June 3 0 , 2018 for the following

disabilities : back pain, loss of vision in left eye, pins in right hand,
and depression

. Disability examiners denied Walters’ application
initially and on reconsideration. Walters then requested and received a hearing before an ALJ, who found Walters not disabled.

The ALJ must follow five steps when evaluating a claim for
disability. 1 20 C.F.R. § § 404.1520(a), 416.920(a). First, if a claimant
is engaged in substantial gainful activity, she is not disabled. Id.
§ § 404.1520(b), 416.920(b). Second, if a claimant does not have an
impairment or combination of impairments that significantly limit s her physical or m ental ability to perform basic work activities, she
does not have a severe impairment and is not disabled. Id. §

1 I f the ALJ determines that the claimant is or is not disabled at any step of the sequential analysis, the analysis ends. 20 C.F.R. § § 404.1520 (a)(4)

, 416.920(a)(4). USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 2 of 1122

- 12416 Opinion of the Court 3

404.1520(c), 416.920(c); see also McDaniel v. Bowen , 800 F.2d 1026,

1031 (11th Cir. 1986) ( describing S tep T wo as a threshold inquiry

, allowin g “ only claims based on the most trivial impairments to be
rejected”). Third, if a claimant’s impairments meet or equal an impairment listed in a provided appendix ( the “Listings”), she is disabled. 20 C.F.R. § § 404.1520(d), 416.920(d); 20 C.F.R. pt. 404

, subpt.

P, app. 1. Fourth, if a claimant’s impairments do not meet or equal
an impairment in the Listings, the ALJ must assess the claimant’s
Residual Functional Capacity (RFC). 2 20 C.F.R. § § 404.1520(e),
416.920(e). Fifth, using the claimant’s RFC, t he ALJ will determine
whether the claimant can still perform past relevant work. Id.
§ § 404.1520(f), 416.920(f). If the claimant can do this type of work,

she is not disabled. Id. Finally, if a claimant’s impairments (considering her RFC, age, education, and past work) do not prevent her
from performing other work that exists in the national economy,

she is not disabled. Id. § § 404.1520(g), 416.920(g).

Here , t he ALJ determined Walters had n ot engaged in substantial gainful activity since her alleged onset date. 3 The ALJ

found Walters possesses the following severe impairments: lumbar

disc disease

, stenosis with reported radicular symptoms

, and right

2 A claimant’s RFC is the level of physical and mental work she can consistently perform despite her limitations. Id. §§ 404.1545(a), 416.945(a).

3 The ALJ also found Walters met the insured status requirements of the Social Security Act and the non

- disab ility requirements for widow’s benefits set forth in the Social Security Act. USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 3 of 114 Opinion of the Court 22

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middle and index finger neuropathy. 4 B ut the ALJ found Walters’
impairments or combination of impairments fail to meet or medically equal the severity of an impairment in the Listings. The ALJ

then found Walters has an RFC to perform light work 5 with the
following caveats : Waters can push an d pull up to 20 pounds occasionally and up to 10 pounds frequently ; stand or walk for about 6
hours altogether but not more than 25 minutes continuously; sit

for at least 6 hours out of an 8

- hour work day, but not more than
25 minutes continuously ; perform occasional fine and g ross manipulation with the right dominant hand; fre quently balance, stoop,

kneel, crouch, crawl, and climb

, bu t not on ladders, ropes, or scaffolds ; perform tasks not involving operation of vibrating tools or

4 The ALJ also found that Walters had the following non

- severe impairments: hypertension, history of migraine headaches and syncope, decreased visual acuity, acid reflux disease , thoracic nodules, vitamin deficiency, grief/depressive disorder, anxiety disorder, and overweight/obesity.

5 “ Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, [the Social Security Administration] determine [s] that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. ” 20 C.F.R. § § 404.1567( b ),
416.967( b ). USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 4 of 1122

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equipment ; and must avoid exposure to workplace hazards such as
unprotected heights and dangerous moving machinery.

Based on these findings, the ALJ determined Walters c ould

not perform her past relevant work as stock clerk or sales clerk

. The ALJ then determined Walters can perform other jobs existing
in significant numbers in the national economy, s pecifically jobs for

furniture rental clerk

, counter clerk

, and usher

. As a result, the ALJ

found Walters not disabled

.

Walters then requested the Appeals Council review the
ALJ’s decision. Walters submitted 23 pages of new evidence to the
Appeals Council. Relevant here, Walters submitted a Physical Capacities Form from Dr. Victoria Masear and a Psychological Evaluation from Dr. June Nichols. The Appeals Council found that the

evidence did not rela te to the period at issue and thus denied Walters’ request for review, making the ALJ’s decision the final decision of the Commissioner

.

Walters appealed to the district court, which affirmed the
Appeals Council’s refusal to consider new evidence and the ALJ’s

denial of Walters’ DI B and SSI. Walters timely appealed.

II.

Walters argues that the Appeals Council erred in finding that

Drs. Masear’s and Nichols’ opinions were not chronologically relevant. Walters also argues that those opinions were material and

should have been considered

, and because the Appeals Council did
not address whether those opinions were material, we should remand to the Appeals Council for first review. USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 5 of 116 Opinion of the Court 22

- 12416

With a few exceptions, a claimant generally may present evidence at every stage of the administrative process. Hargress v. SSA,

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 conside r it if it is new, material, and chronologically

relevant.” Id. at 1309. Evidence is material if there is a reasonable
possibility “that the evidence would change the administrative result,” and it “is chronologically relevant if it relates to the perio d on or before the date of the ALJ’s hearing decision.” Id. (quotation marks omitted, alterations adopted); 20 C.F.R. § 404.970(a)(5)

, 416.1470(a)(5)

.

“ [W]hether evidence meets the new, material, and chronologically relevant standard is a question of law subject to our de novo

review. ” Washington v. Soc. Sec. Admin., Comm ’ r
, 806 F.3d 1317, 1321
(11th Cir. 2015) (per curiam) (quotation marks omitted). And
“when the Appeals Council erroneously refuses to consider evidence, it commits legal error and remand is appropriate.” Id.

First, Walters’ argument that remand is the only appropriate

solution to the materiality question is incorrect. As part of de novo
review, we may consider facts, such as the materiality of the evidence, that the Appeals Council did not address when it refused to

consider the new evidence. See id. at 1321

– 22 (considering both
chronological relevance and materiality even though the Appeals

Council only considered whether the evidence was chronologically

relevant). As a result, we will consider both the chronological USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 6 of 1122

- 12416 Opinion of the Court 7

relevance and materiality of both Drs. Masea r’s and Nichols’ opinion s

.

A. Dr. Masear’s Opinio n

The Appeals Council found that Dr. Masear’s opinion did

not “relate to the period at issue.” Walters argues that the Appeals

Council erred in that determination. We disagree.

Dr. Masear completed a Physical Capacities Form on April

15, 2021, less than a month after the ALJ’s decision. In that form,

Dr. Mase a r noted that Walters could lift up to 5 pounds constantly,
between 6 and 10 pounds frequently , between 11 and 20 pounds

o ccasionally , and never greater than 20 pounds

. With her right

hand, Walters could reach frequently

, handle occasionally , but
could never finger or feel. Walters could sit upright for eight hours

at one time, and she could stand for five hours at one time . During

an 8

- hour day, Walters would need to lie down, sleep, or sit with
her legs propped up for less than 15 minutes. Dr. Masear chec ked

a box indicating that the limitations existed back to June 30, 2018.

Dr. Masear’s opinion was not chronologicall y relevant. Dr.

Masear’s opinion postdated the ALJ’s decision

. Although Dr.

Masear treated Walters during the relevant period

, 6 there is no indication that Dr. Mase a r considered Walters ’ past medical records

when noting Walters’ physical limitations on the Physical Capacities Form

. Further, Dr. Masear did not cite any medical evidence

6 Walters attempts to paint Dr. Masear as a treating physician, but the record

shows that Walters saw Dr. Masear only once during the relevant period

. USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 7 of 118 Opinion of the Court 22

- 12416

to support her conclusion that the limitations existed back to June

30, 2018.

However, even assuming Dr. Mase a r’s opinion was chronologically relevant, remand is not required, as th at opinion is not

material. For evidence to be material, there must be “ a reasonable
possibility

. . . that the evidence would change the administrative

result.” Hargress

, 883 F.3d at 1309. Dr. Masear’s opinion is substantially similar to her August 2020 treatment notes that the ALJ considered when making his decision. Furt her, Dr. Masear’s treatment

notes contained more details about the physical findings of Walters’ right hand. In looking at Walters’ RFC, several of Dr. Masear’s
physical limitations are reflected

. Thus, there is not a reasonable
probability that Dr. Masear’s opinion would have changed Walters’ RFC

. Accordingly

, the Appeals Council did not err in declining to

review Dr. Masear’s opinion postdating the ALJ ’ s decision.

B. Dr. Nichols’ Opinion

The Appeals Council found that Dr. Nichol s ’ opinion did not

“relate to the period at issue.” Walters argues that the Appeals

Council erred in that determination. We agree with Walters that

Dr. Nichols’ opinion is chronologically relevant, but the Appeals

Council did not err in declining to review Dr. Nichol’s opinion because it i s not material.

Dr. Nichols conducted a Psychological Evaluation of Walters on June 8, 2021, three months after the ALJ’s decision. In the
Psychological Evaluation, Dr. Nichols found that Walters could USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 8 of 1122

- 12416 Opinion of the Court 9

not maintain attention, concentration, and/or pace for periods of

at least two hours ; she could not perform activities within a schedule and be punctual ; she could not adjust to routine and infrequent
changes ; and she could not int eract with supervisors or coworkers.

Dr. Nichols also found that Walters would be off task for 25 to 30%

of an 8

- hour workday, and she would fail to report to work about

10 to 12 days out of a 30

- day period due to her psychological symptoms. Dr. Nichols found that Walters’ limitations dated back to

June 30, 2018.

Our decision in Washington is worth discussing as it helps
highlight why Dr. Nichols’ opinion is chronologically relevant but

not material. I n Washington

, we found that the evidence submitted
to the Appeals Council was chronologically relevant because the
claimant described his symptoms during the relevant period , the
physician reviewed the treatment records from the relevant period

, and the physician’s opinion “relate[d] back” to the relevant period.

806 F.3d at 1322. Like in Washington

, it is clear from Dr. Nichols’
opinion that she reviewed Walters’ prior medical records and relied on Walters’ history of symptoms during the relevant period

. Thus, the Appeals Council erred in determining Dr. Nichols ’ opinion was not chronologically relevant.

But that is where the similarities to Washington end. In
Washington

, we explained that to determine materiality of new evidence before the A ppeals C ouncil , we must consider wheth er the
new evidence was “wholly inconsistent” with the evidence that
was considered before the ALJ. Id. USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 9 of 1110 Opinion of the Court 22

- 12416

Here, Dr. Nichols’ opinion is inconsistent with the rest of

the medical evidence. Dr. Nichols explained that as a result of Walters’ depression and anxiety

, Walters would miss a significant

amount of work each month and be off task one

- third of each
workday . While t he medical records indicate that Walters suffered
from depression an d anxiety a fter her husband’s sudden passing in

Februa ry 2020

, the medical records indicated improvement and a
mild treatment plan. For example, in June 2020, Walters’ doctors
noted gradual improvement with medication

. A nd in December
2020, although Walters reported depression, she reported no other

sympto ms such as anxiety, suicidal thoughts, or fatigue

, and the
doctor report ed no abnormalities in Walters’ distress level. As

such , Dr. Nichols’ opinion regarding Walters’ depression and anxiety is “wholly inconsistent” with the evidence in the record, therefore the opinion was not material

.

B ecause Dr. Nichols’ opinion was not material, there was no
reasonable possibility that the new evidence would change the administrative result . Thus, the Appeals Council did not err in declining to review Dr. Nichols’ opinion postdating the ALJ ’ s decision.

III.

Because Dr. Masear’s opinion was not chronologically relevant or material, the Appeals Council did not err in declining to

review that evidence. Although Dr. Nichols’ opinion was chronologically relevant, it was not material and would not have changed

the result. Thus, the Appeals Council did not err in declining to

review that evidence. Accordingly, we affi rm. USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 10 of 1122

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AFFIRMED. USCA11 Case: 22-12416 Document: 33-1 Date Filed: 05/30/2023 Page: 11 of 11