Joyce Enix v. Commissioner of Social Security ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10225 FEB 22, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 8:09-cv-02042-TGW
JOYCE ENIX,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 22, 2012)
Before CARNES, HULL and FAY, Circuit Judges.
PER CURIAM:
Joyce Enix appeals the magistrate judge’s order denying her motion to
remand her application for disability insurance and supplemental security income
(“SSI”) benefits in light of new evidence, 42 U.S.C. §§ 405(g) and 1383(c)(3), and
dismissing her complaint. After review, we affirm.
I. BACKGROUND
A. 2008 ALJ Decision
On June 30, 2003, Enix applied for disability and SSI benefits claiming that
she was unable to work as of November 14, 2002 due to, inter alia, her seizure
disorder and fibromyalgia. After hearings on February 2, 2006 and September 30,
2008, an Administrative Law Judge (“ALJ”) denied Enix’s application for benefits
on November 19, 2008. On September 4, 2009, the Appeals Council denied
Enix’s request for review.
B. 2009 Federal Complaint
On October 7, 2009, Enix filed this complaint in the district court alleging
that the ALJ’s decision was not supported by substantial evidence.1 After the
Commissioner filed an answer, the magistrate judge issued a scheduling order
instructing Enix to file within sixty days a memorandum “identify[ing] with
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The parties consented to proceeding before a magistrate judge.
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particularity the discrete grounds upon which the administrative decision is being
challenged.”
Instead, Enix filed a motion for a remand to the Commissioner, pursuant to
42 U.S.C. § 405(g), which permits the court to remand “for further action by the
Commissioner . . . and . . . at any time order additional evidence to be taken before
the Commissioner . . . .” 42 U.S.C. § 405(g). The purported new evidence,
attached to Enix’s motion to remand, consisted of treatment notes from the
epilepsy clinic at Tampa General Hospital dated November 7, 2008, January 9,
2009, May 15, 2009, August 5, 2009 and September 9, 2009. These treatment
notes indicated that Enix continued to report petit mal seizures, that her diagnosis
of medically intractable localization-related epilepsy remained the same, and that
her doctors had discussed brain surgery, but Enix was unwilling to undergo the
procedure.
Despite the magistrate judge’s order, Enix never filed a memorandum
challenging the ALJ’s denial of benefits. Consequently, in May 2010, the
magistrate judge issued a second order giving Enix thirty days to file a
memorandum challenging the ALJ’s decision. The order advised Enix that if she
failed to file a challenge, the court would assume she was proceeding only on her
motion to remand. Despite this warning, Enix still did not file a challenge to the
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ALJ’s denial of benefits.
In November 2010, the magistrate judge issued an order denying Enix’s
motion to remand. The magistrate judge noted that Enix had not filed a challenge
to the ALJ’s decision and, therefore, “only the plaintiff’s contentions in the motion
for remand have been considered.” After denying Enix’s motion to remand, the
magistrate judge ordered “[t]hat, because the plaintiff has not filed a
memorandum challenging the Commissioner’s decision, the complaint is hereby
DISMISSED.” Enix filed this appeal.
II. DISCUSSION
A. Motion to Remand
The sixth sentence of 42 U.S.C. § 405(g) permits a district court to remand
an application for benefits to the Commissioner for consideration of new evidence
that previously was unavailable. 42 U.S.C. § 405(g). “[A] sentence six remand is
available when evidence not presented to the Commissioner at any stage of the
administrative process requires further review.” Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1267 (11th Cir. 2007). To show that a sentence six
remand is needed, “the claimant must establish that: (1) there is new,
noncumulative evidence; (2) the evidence is ‘material,’ that is, relevant and
probative so that there is a reasonable possibility that it would change the
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administrative result and (3) there is good cause for the failure to submit the
evidence at the administrative level.” Caulder v. Bowen, 791 F.2d 872, 877 (11th
Cir. 1986).2
The new evidence must relate to the period on or before the date of the
administrative law judge’s (“ALJ”) decision. See Wilson v. Apfel, 179 F.3d 1276,
1279 (11th Cir. 1999); cf. 20 C.F.R. §§ 404.970(b), 416.1470(b) (requiring
Appeals Council to consider new evidence “only where it relates to the period on
or before the date of the administrative law judge hearing decision”). Evidence of
deterioration of a previously-considered condition may subsequently entitle a
claimant to benefit from a new application, but it is not probative of whether a
person is disabled during the specific period under review. See Wilson, 179 F.3d
at 1279.
In contrast, evidence of a condition that existed prior to the ALJ’s hearing,
but was not discovered until afterward, is new and non-cumulative. See, e.g.,
Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218-19 (11th Cir. 2001)
(concluding remand was warranted based on evidence that after the ALJ hearing a
doctor discovered and surgically corrected a herniated disk); Hyde v. Bowen, 823
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We review de novo a district court’s denial of a motion to remand. Caulder v. Bowen,
791 F.2d 872, 875 (11th Cir. 1986)
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F.2d 456, 459 & n.4 (11th Cir. 1987) (concluding remand was warranted based on
new evidence that claimant’s prosthetic device was loose, which, “if accepted”
provides “an objective medical explanation” for claimant’s previously unexplained
complaints of pain in his hip and leg).
With regard to Enix’s treatment records dated November 7, 2008, January 9,
2009, May 15, 2009, August 5, 2009, Enix did not show good cause for failing to
present this evidence to the Commissioner. Enix’s only proffered reason for not
doing so was that the medical records did not exist at the time of the ALJ’s
September 30, 2008 hearing. However, this does not explain why Enix did not
submit these documents to the agency, specifically the Appeals Council, while her
administrative appeal was pending. Cf. Caulder, 791 F.2d at 878 (“Nonexistence
of the evidence at the time of the administrative proceedings may constitute good
cause.”). The Appeals Council did not deny Enix’s request for review until
September 4, 2009. Thus, all but one of these medical records (the September 9,
2009 notes) existed and could have been submitted while Enix’s administrative
proceedings were ongoing. Accordingly, Enix did not show good cause with
regard to the documents that predate the Appeals Council’s decision.
Additionally, with the exception of the November 7, 2008 treatment notes,
Enix’s new evidence addressed her condition after the ALJ’s November 19, 2008
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decision. Contrary to Enix’s contention, these treatment notes do not provide any
new insight into whether her seizures were under control during the time period
reviewed by the ALJ. At most, these documents showed that Enix’s condition was
subsequently deteriorating, which is not sufficient to warrant a sentence six
remand. For these reasons, the district court did not err in denying Enix’s motion
to remand.
B. Denial of Benefits
For the first time on appeal, Enix challenges the ALJ’s denial of benefits.
Specifically, Enix argues that the ALJ erred by failing to address a treating
physician’s opinion that she was disabled due to her fibromyalgia. “As a general
principle, this court will not address an argument that has not been raised in the
district court.” Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115
(11th Cir. 1994) (declining to consider claimant’s argument that substantial
evidence did not support Secretary’s denial of disability and SSI benefits where
claimant failed to file a brief in the district court); see also LeBlanc v. Unifund
CCR Partners, 601 F.3d 1185, 1199 (11th Cir. 2010); Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).3
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To the extent Enix argues we have discretion to consider new issues, we expressly
decline to do so here given that the magistrate judge twice ordered Enix to file her challenges,
but she did not do so.
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As recounted above, the magistrate judge issued orders twice instructing
Enix to file a memorandum setting out her challenges to the ALJ’s decision. In
fact the magistrate judge’s second order advised Enix that if she failed to file a
challenge, the court would assume she was proceeding only on her motion to
remand. Despite these orders, Enix did not file a challenge to the ALJ’s decision
denying benefits.
In November 2010, the magistrate judge denied Enix’s motion to remand
and dismissed her complaint for failure to file a memorandum challenging the
ALJ’s decision. On appeal, Enix does not offer a reason why she failed to
challenge the Commissioner’s decision as instructed in the district court. Enix
also does not argue that the magistrate judge’s dismissal of her complaint,
essentially for failure to prosecute, was error. Given that: (1) Enix was given
ample opportunity to challenge the ALJ’s decision in the district court and did not
do so, (2) the magistrate judge dismissed Enix’s complaint without reaching the
merits of the ALJ’s decision, and (3) Enix does not argue that the magistrate
judge’s dismissal for failure to prosecute was error, we decline to address the
merits of the ALJ’s decision on appeal.
AFFIRMED.
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