Nicholas Allen Goble v. Social Security Administration, Commissioner ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10842
Non-Argument Calendar
____________________
NICHOLAS ALLEN GOBLE,
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. 1:21-cv-00149-CLS
____________________
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2 Opinion of the Court 22-10842
Before WILSON, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Nicholas Goble appeals the district court’s order affirming
the Social Security Administration’s (“SSA”) denial of his claim for
Social Security disability benefits. To summarize Goble’s case to
this point: (1) Goble applied for disability insurance benefits,
indicating that his disability began July 11, 2018, (2) the SSA denied
his application, concluding that he did not meet the definition of
disabled under the SSA’s rules, (3) Goble requested a hearing
before an administrative law judge (“ALJ”), (4) the ALJ determined
that Goble was not disabled and entered an unfavorable decision,
(5) Goble sought review of the ALJ’s decision from the SSA’s
Appeals Council and provided new evidence, (6) the Appeals
Council denied Goble’s request for review, 1 (7) Goble appealed to
the United States District Court for the Northern District of
Alabama, and (8) the district court affirmed the decisions below.
On appeal to this Court, Goble argues that (1) the Appeals
Council erred in denying review of the ALJ’s decision on the
ground that the additional evidence he brought forth did not have
a reasonable probability of changing the outcome of the ALJ’s
1 Once the Appeals Council denied review, “the [ALJ’s] decision [became] the
final decision of the Commissioner of Social Security.” See generally Doughty
v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (“When . . . the ALJ denies
benefits and the [Appeals Council] denies review, we review the ALJ’s decision
as the Commissioner’s final decision.”).
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22-10842 Opinion of the Court 3
decision and (2) the Commissioner’s decision was not based on
substantial evidence. After review, we affirm.
I. Background
A. Goble’s Relevant Medical History
In 2018, Goble applied for disability insurance benefits,
asserting that he was 35 years old, had completed high school, and
was unable to work due to ten conditions: “Diabetes 1 & 2,
Arthritis, [Severe] Anxiety, Depression, afib tachycardia, colitis,
peripheral neuropathy, [autonomic] neuropathy, epilepsy, [and]
migraines.” 2 He asserted that he stopped working on July 11, 2018
due to these conditions. 3 He indicated that he had prior work
2 Goble also referenced the following additional impairments in subsequent
filings and proceedings related to his disability claim: carpal tunnel in both
hands, chronic knee pain, congestive heart failure, diabetic neuropathy,
dysautonomia-like syndrome, gastroesophageal reflux disease, gastroparesis,
hypoglycemia, insomnia, a meniscus tear (left knee), a pinched nerve, and
obesity.
3 Goble’s mother, Rebecca Nelson, filled out a function report on Goble’s
behalf. Nelson indicated that Goble took care of three children by doing
“laundry [and] helping them with meals” and took care of a dog by feeding
and “walking [it] outside.” Nelson also indicated that she helped Goble on a
daily basis and his grandparents also helped care for the children in various
ways—by picking them up for school and running any necessary errands.
Finally, Nelson indicated that most physical activities are off-limits for Goble
because they would cause a spike in his heart rate that could cause him to
black out.
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experience as a floor finisher, skilled painter, and paint sales
representative.
Goble provided numerous medical records in support of his
application.4 These records establish that Goble had colitis,
hypothyroidism, hypertensive heart disease, hyperlipidemia,
tachycardia,5 chronic diastolic (congestive) heart failure, type 2
diabetes mellitus, and recurrent episodes of hypoglycemia.
In 2010, Goble had surgeries for (1) carpal tunnel, (2) a left
wrist fracture, 6 and (3) a meniscal tear in his right knee. Despite the
knee surgery, Goble had recurring knee pain and reported
significant difficulties walking in 2014, and he underwent another
knee surgery in April 2014. During a post-surgical follow-up visit,
Goble’s doctor found no swelling in the right knee and reported
Goble had full range of motion. In 2017, Goble suffered a meniscal
tear in his left knee and underwent surgery. In 2019, Goble cut
himself with a knife and injured a nerve in his left hand. An
orthopedist put him in a splint, noting that he did not recommend
4 There are 52 medical records in the record on appeal. We focus only on the
conditions critical to this appeal—taking direction from the medical events
and records that Goble highlights in his brief.
5From 2012 to 2019, Goble had multiple electrocardiograms (“EKGs”) which
were occasionally abnormal.
6 In connection with this surgery, Goble asserts that one of his severe
impairments is status-post ORIF of his left wrist. ORIF stands for open
reduction and internal fixation which refers to the type of surgery that Goble
underwent.
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any surgical intervention, that Goble had “excellent function and
flexor tendons [were] spared,” and that Goble could “go about his
activities as tolerated.”
From August 2016 to January 2019, Goble saw
endocrinologist Dr. Robert Chadband several times for diabetes-
related medical care. Dr. Chadband diagnosed Goble with morbid
obesity, type 2 diabetes mellitus with neuropathy, hypothyroidism,
and hypertension. By February 2017, Goble—by his own
admission—was “doing much better” with his diabetes-related
health issues. In May 2017, Goble returned because he had had a
seizure caused by low blood sugar. Goble “[felt] better with the
[insulin] pump and the sensor” for his diabetes by his October 2017
follow-up appointment. In July 2018, Goble was in a car accident
when he ran off the road due to a low blood sugar reaction, and
Dr. Chadband referred him for an insulin pump sensor. Goble
received a new sensor and, at a follow-up visit in September 2018,
Dr. Chadband reported Goble was “doing well” and “better with
current doctors and plans.” In March 2020, at a follow-up, Dr.
Chadband noted that Goble was “doing well at present” and that
Goble should continue on his medications and follow up with his
doctors as planned.
In March 2017, Goble saw neurologist Dr. Richard Diethelm
because Goble “had a recent seizure and [a] migraine.” Dr.
Diethelm discussed a “migraine treatment plan” with Goble, put
him on a seizure medication, and performed “[b]ilateral trapezius
trigger point injections” to reduce the pain and provide a
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therapeutic effect. Because of Goble’s reported seizure, Dr.
Diethelm ordered electroencephalogram (“EEG”) and magnetic
resonance imaging (“MRI”) exams. Both test results were normal
and did not show any brain abnormalities. 7 At a follow-up
appointment in February 2018, Goble reported “no recurrent
seizures” and a reduction in his migraine frequency, although he
still suffered from migraines. 8 Following Goble’s July 2018 car
accident, Dr. Diethelm increased the dosage of Goble’s seizure
medication. A few weeks later, Dr. Diethelm changed the seizure
medication. In April 2020, during one of Goble’s return visits, Dr.
Diethelm noted that “[Goble] has had no seizure” and Goble “[was]
doing much better.” During that visit, a physical exam showed no
focal motor or sensory deficits and Goble’s “gait [was] steady.” At
that time, Dr. Diethelm instructed Goble to stop taking his anxiety
medication (Klonopin). However, the progress notes indicated
that he restarted the medication in May 2020, because his anxiety
got “worse after stopping” the medication.
Goble visited Dr. Mohammed Shubair (a pulmonologist) in
October 2019, complaining of asthma, chronic bronchitis, and sleep
7 In April and May 2017, Goble visited the hospital twice for syncopal
symptoms. At the first visit, he had collapsed at home, lost consciousness, and
hit his head. At the second visit, his son had come home to find him seizing.
The seizure was attributed to an episode of hypoglycemia.
8 From May to July 2018, Goble visited the hospital multiple times
complaining of headaches, dizziness, and syncopal events. During these visits,
two CT scans were taken of Goble’s head, but neither showed any
abnormalities.
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apnea. Dr. Shubair ordered a pulmonary function test and a sleep
study. The results of the pulmonary function test showed that
Goble had (1) “[n]ormal spirometry, however, there is significant
improvement after bronchodilator therapy,” (2) “lung volumes
with evidence of [mild] obesity related reduction in residual
volume,” and (3) “normal diffusion capacity.” Following the sleep
study, Dr. Shubair diagnosed Goble with sleep apnea and
insomnia.
In May 2020, Goble visited Dr. Shubair so Dr. Shubair could
conduct a continuous positive airway pressure (“CPAP”)
compliance report. Goble had started using a CPAP machine to
sleep and reportedly was having “no problems with CPAP,” “no
problems with sleep maintenance,” and his “sleep related
symptoms ha[d] markedly improved” so that he was “wak[ing] up
rested” without “excessive daytime sleepiness.”
B. The SSA and ALJ Denied Goble’s Claim
The SSA denied Goble’s claim for Social Security disability
benefits because “[b]ased on a review of [his] health problems” he
did not meet the SSA’s definition of disabled. The doctors that
evaluated Goble’s medical records for the SSA both determined
that Goble had impairments, but those impairments were not
severe enough to render Goble disabled. 9 Dr. Holly Mussell
9Disability for these purposes is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or has lasted
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determined that Goble had the following “medically determinable
impairments”: epilepsy; cardia dysrhythmias; essential
hypertension; diabetes mellitus; dysfunction—major joints;
disorders of autonomic nervous system; migraine[s]; depressive
disorders; anxiety and obsessive-compulsive disorders. The
epilepsy, cardiac dysrhythmias, diabetes, and major joints
dysfunction were all deemed severe medical impairments. The
others were deemed non-severe. She further determined that the
medically determinable impairments could be reasonably expected
to produce some of Goble’s alleged symptoms and functional
limitations but that his allegations about the severity, persistence,
and functionally limiting effects of the symptoms were not
supported by the objective medical evidence. She considered his
allegations about the effects of the symptoms to be only “partially
consistent” with the medical evidence. She opined that he had
certain physical exertional limitations, but was capable of
performing light work.
Similarly, Dr. Robert Estock reviewed Goble’s medical
history and determined that he had certain exertional limitations
(i.e., Goble’s limit for occasional lifting would be 20 pounds and his
limit for standing and/or walking would be “about 6 hours in an 8-
hour workday”) as well as non-severe mental (psychiatric)
impairments.
or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 416(i)(1).
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Goble requested a hearing before an ALJ. The ALJ held a
telephonic hearing on Goble’s claim.10 Goble was represented by
counsel who argued that Goble “suffer[ed] from multiple
impairments” including “diabetes, diabetic neuropathy, anxiety,
chronic knee pain, epilepsy, migraines, gastroparesis, tachycardia,
atrial fibrillation, dysautonomia-like syndrome, [and] insomnia.”
According to counsel, “[t]he combination of these impairments
cause[d] symptoms that affect [Goble’s] ability to maintain
concentration, persistence, and pace to complete an eight-hour
workday and 40-hour work week on a consistent basis.” Goble
stated that he agreed with counsel’s statement, and added that he
had “some issues with [his] legs” including “neuropathy problems”
and blood clots as well as “carpal tunnel in both hands,” “a pinched
nerve,” “issues with [his lungs],” and “hypoglycemia
unawareness.” He also testified that he could only sit for 10
minutes before needing to stand and could only stand for “[a]bout
15 minutes” before needing to sit down. He testified that he could
walk three minutes before needing to sit down, and that he would
need to rest at least ten minutes before resuming walking again.
Finally, he testified that he could lift at most five pounds on a
frequent basis. 11
10 The hearing was conducted by telephone “due to the extraordinary
circumstance presented by the Coronavirus Disease 2019 (COVID-19)
Pandemic.”
11 Goble stated that he was “guesstimating” for this answer.
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The ALJ then examined a vocational expert (“VE”). The VE
testified that Goble completed 12th grade and has held three semi-
skilled jobs in the past (floor finisher, paint sales representative, and
skilled painter). The ALJ gave the VE two hypotheticals to gauge
which types of jobs an individual with specified restrictions would
be able to perform. In the first hypothetical, 12 the individual had
the age, education, and work history that Goble testified to, had
12 The full hypothetical was:
Hypothetical 1, assume this gentleman is of the age, education,
and has the work history as [Goble] has testified. Assume I
should find that the claimant has pain and impairment which
would restrict his abilities, as follows.
...
Physically, that this gentleman does have exertional
limitations. He can occasionally lift and carry 20 pounds,
frequently lift and carry 10 pounds. He can stand and/or walk
six hours; sit six hours; pushing and pulling are unlimited,
unless I indicate differently, as we go. There are no—he does
have postural limitations. He can never climb ladders, ropes
or scaffolding. Occasionally, he can do climbing ramps and
stairs; balancing occasionally, stooping occasionally, kneeling
occasionally, crouching occasionally, crawling occasionally.
He has no manipulative limitations. He has no visual
limitations. He has no communication limitations.
He does have environmental limitations. Those would be as
follows. Unlimited are the following: extreme cold, extreme
heat, wetness, humidity, noise, vibration, fumes, odors, dust,
gas, poor ventilation. As for hazards, machinery and heights,
he should avoid concentrated exposure. No unprotected
heights or bodies of water.
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“pain and impairment” that would restrict his abilities so that he
could only “occasionally lift and carry 20 pounds” and “frequently
lift and carry 10 pounds,” and could “stand and/or walk six hours
[and] sit six hours,” among other restrictions. The VE testified that
such an individual would be able to return to his past work as a
paint sales representative or perform alternate light work as a
parking lot attendant, cashier, or laundry worker. 13 In the second
hypothetical, the individual had the same age and work history as
before but was more limited physically—
[h]e [could not] do an eight-hour day, five days a
week. He [could] stand 15 minutes; he [could] sit ten
minutes. He [could] walk one minute. After he
walk[ed] three minutes, he would have to sit and rest
ten minutes, before he could walk three minutes
again. He could frequently lift five pounds.
The VE testified that such an individual would not be able to do
any work. Goble’s counsel stated that he “believe[d] hypothetical
number 2 accurately describe[d] [his] client,” and he did not have
any additional hypotheticals.
13The VE also testified that each of these jobs were widely available in the
national economy.
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12 Opinion of the Court 22-10842
The ALJ evaluated Goble’s claim according to the SSA’s five-
step sequential evaluation 14 and ultimately determined that Goble
was not disabled.
First, the ALJ determined that Goble had not engaged in
substantial gainful activity since July 11, 2018 (the alleged onset
date of Goble’s disability).
Second, the ALJ concluded that Goble “ha[d] the following
severe impairments: obesity, diabetes mellitus, epilepsy,
congestive heart failure, peripheral neuropathy, tachycardia,
status-post ORIF, [and a] left knee meniscus tear.” Alongside these
“severe” impairments, the ALJ concluded that some of Goble’s
impairments were “non-severe” (migraines, carpal tunnel
syndrome, sleep apnea, and hypertension) because they were being
successfully medically managed or would “not cause more than
minimal limitation” to his ability to work (anxiety and depression).
The ALJ determined that Goble had mild limitations in his abilities
to understand, remember, or apply information; concentrate,
14 The evaluation process involves the following five-step determinations: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether he “has a severe impairment or combination of impairments”; (3) if
so, “whether th[at] impairment [or combination of impairments] meets or
equals the severity of the specified impairments” in the regulations; (4) if not,
“whether the claimant can perform any of his . . . past relevant work” in light
of his residual functional capacity (“RFC”); and (5) if not, “whether there are
significant numbers of jobs in the national economy that the claimant can
perform given the claimant’s RFC, age, education, and work experience.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
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persist or maintain pace; manage himself, and to interact with
others.
Third, the ALJ assessed Goble’s severe impairments and
determined that they did not meet the severity of the specified
impairments listed in the regulations. Specifically, the ALJ
explained that obesity is not a listed impairment, but that the
functional limitations caused by obesity, alone or in combination
with other impairments, could equal a listed impairment—but that
it did not do so in Goble’s case. Diabetes mellitus was evaluated
under listings for a variety of other body systems, but the evidence
did not support a finding that Goble met or equaled the listing
severity for any of the listed impairments. Nevertheless, the ALJ
stated that he considered the limiting effects of the diabetes as part
of his RFC determination. Similarly, Goble’s epilepsy did not meet
a listing because he did not meet the requirements for recurrent
seizures within a particular time frame. Goble’s peripheral
neuropathy, wrist (post-ORIF), and left knee meniscal tear
impairments also did not satisfy a listing because they did not cause
the necessary marked limitations in physical functioning. Finally,
Goble’s heart issues did not meet the frequency and physical
limitations requirements for the applicable listing.
Fourth, the ALJ concluded that Goble had a residual
functional capacity (“RFC”) to perform “light work” with certain
limitations. In sum, the ALJ found that Goble’s “medically
determinable impairments could reasonably be expected to cause
the alleged symptoms,” but “[Goble’s] statements concerning the
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intensity, persistence, and limiting effects of [those] symptoms
[were] not entirely consistent with the medical evidence and other
evidence in the record.” The ALJ noted that Goble’s descriptions
of his symptoms and limitations throughout the record had
“generally been inconsistent” and were not supported by the
objective diagnostic imaging, treatment history, and lab reports.
The ALJ concluded that the objective medical evidence supported
an RFC of light work.
Fifth, relying on the VE’s testimony in response to the first
hypothetical, the ALJ determined that, in light of his RFC, Goble
was unable to perform his previous occupations, but found that
Goble could perform other available jobs in the national
economy—namely, parking lot attendant, cashier, and laundry
worker. Accordingly, the ALJ concluded that Goble was not
disabled.
C. The SSA Appeals Council Denied Review
Goble filed a request for discretionary review of the ALJ’s
decision with the SSA’s Appeals Council arguing that the ALJ’s
“decision to deny benefits [was] not based on substantial evidence,
and the Judge failed to apply appropriate legal standards.”
Alongside his request, Goble submitted additional evidence to the
Appeals Council. This evidence included (1) “a Physical Capacities
Form completed by Mohammed Shubair,” (2) “a Physical
Capacities Form completed by Richard Diethelm,” and (3)
“treatment records from Alabama Neurology Associates.”
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In the first physical capacities form, Dr. Diethelm made
several estimates regarding Goble’s work capabilities. Dr.
Diethelm estimated that Goble’s anxiety, epilepsy, and migraines
would limit his abilities such that he (1) could sit upright in a chair
for only one hour at a time, (2) could stand for less than fifteen
minutes at a time, (3) would need to lie down, sleep, or sit with his
legs propped up for six hours out of an eight-hour day, (4) would
be off task ninety percent of the time in an eight-hour day, and (5)
would be expected to miss twenty days out of a thirty-day work
period. Dr. Diethelm indicated that these limitations existed on
July 11, 2018.
In the second physical capacities form, Dr. Shubair answered
the same questions with different answers. Dr. Shubair estimated
that Goble’s asthma, sleep apnea, obesity, and blood clots in his
legs would limit his abilities, such that he (1) could sit upright in a
chair for four to five hours, (2) could stand for two to three hours
at a time, (3) would need to lie down, sleep, or sit with his legs
propped up for five to six hours of an eight-hour day, (4) would be
off task eighty percent of the time in an eight-hour day, and (5)
would miss work twenty-five to twenty-eight days out of a thirty-
day period. Dr. Shubair could not opine as to whether the
limitations existed on July 11, 2018, noting that she saw Goble for
the first time in October 2019.
The Alabama Neurology records were the final piece of
additional evidence. The records were from December 2013 to
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March 2014 and documented Goble’s migraines, seizures, and
peripheral neuropathy attributed to his diabetes mellitus.
The Appeals Council denied Goble’s request for review,
explaining that it “found no reason under our rules to review the
[ALJ’s] decision.” Importantly, the Appeals Council acknowledged
Goble’s additional evidence and stated that such evidence did not
“show a reasonable probability that it would change the outcome
of the decision.”
D. The District Court Affirmed
Goble thereafter filed suit in the Northern District of
Alabama and alleged that “[t]he finding of the [Commissioner] that
[Goble] was not disabled was not based upon substantial evidence
and was not determined by proper legal standards.” He also
alleged that the Appeals Council’s summary denial of his request
for review implied that his new and material evidence was not read
and considered.
Notably, in Goble’s memorandum in support of his
complaint, he alleged that he submitted three physical capacity
forms to the Appeals Council, including one from Dr. Chadband.
However, he also maintained that Dr. Chadband’s form was
omitted from the record which is why he included it as an
attachment to his memorandum.15
15 Dr. Chadband only partially filled out the form. Specifically, he only
responded to one of the questions, indicating that he would expect Goble to
be lying down, sleeping, or sitting with his legs propped up due to his medical
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The district court concluded that “the Commissioner’s
decision [was] supported by substantial evidence” because “[t]he
ALJ exhaustively reviewed the medical evidence of record and,
with the assistance of the [VE], determined that, despite claimant’s
severe impairments, claimant retained the ability to perform light
work” and that there were jobs available that he could perform,
which meant he was not disabled. As to Goble’s argument that the
Appeals Council failed to consider the newly submitted evidence,
the district court noted that the Appeals Council “considered it and
determined that review of the ALJ’s decision was not warranted
because it was unlikely to change the outcome of the ALJ’s
decision.” Furthermore, the district court noted that the Appeals
Council’s determination that the new evidence would not have
changed the outcome was supported because the physical
capacities forms were “unsupported by objective medical findings”
and the Alabama Neurology records “significantly predate[d]” the
alleged onset of Goble’s disability (July 11, 2018). Accordingly, the
district court affirmed the Commissioner’s decision.
Goble now appeals to us.
II. Standard of Review
conditions for zero minutes in an 8-hour day. Nevertheless, he identified
Goble’s low blood sugar without warning, his need to “eat regular[ly],” check
his blood sugar often, “doctor office visits,” and history of past seizures as the
conditions “causing [Goble’s] limitations.”
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“When, as in this case, the ALJ denies benefits and the
[Appeals Council] denies review, we review the ALJ’s decision as
the Commissioner’s final decision.” Doughty, 245 F.3d at 1278.
“[W]e review de novo the legal principles upon which the
Commissioner’s decision is based,” but “we review the resulting
decision only to determine whether it is supported by substantial
evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
In the Social Security context, the threshold for substantial
evidence is “not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019). It is “more than a mere scintilla” and “means only . . . such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quotations omitted). “Substantial
evidence is less than a preponderance, and thus we must affirm an
ALJ’s decision even in cases where a greater portion of the record
seems to weigh against it.” Simon v. Comm’r, Soc. Sec. Admin., 7
F.4th 1094, 1103 (11th Cir. 2021) (quotations omitted). “We may
not decide the facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner].” Winschel, 631 F.3d at
1178 (alteration in original) (quotations omitted).
III. Discussion
Goble brings two arguments on appeal. First, he argues that
the Appeals Council erred in denying review of the ALJ’s decision
on the ground that the additional evidence submitted by Goble did
not show a reasonable probability of changing the outcome of the
decision. Second, he argues that the Commissioner’s decision to
deny benefits was not based on substantial evidence in light of the
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additional evidence he submitted. We address each argument in
turn.
A. The Appeals Council Properly Denied Review
Goble first argues that the Appeals Council erroneously
denied review on the ground that the physical capacity evaluations
from his three treating physicians (Drs. Chadband, Diethelm, and
Shubair)—did not show a reasonable probability of changing the
outcome reached by the ALJ.16
Before proceeding to the operative law, we address Dr.
Chadband’s opinion. Although Goble states in his brief that he
submitted Dr. Chadband’s physical capacities evaluation to the
Appeals Council, that assertion is not supported by the record. As
stated by the Appeals Council in the “Additional Evidence” section
16 Goble also asserts in passing in his counseled brief that “the opinion of a
treating physician must be given substantial or considerable weight unless
good cause is shown to the contrary.” Goble cites no authority for this
proposition, but it appears that he is referring to an older version of the Social
Security regulations. Under the SSA’s new regulations that apply to
applications filed on or after March 27, 2017—like Goble’s—no special weight
is to be given to the medical opinions of a claimant’s treating physician: “[SSA]
will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) . . . including those from your medical
sources.” 20 C.F.R. § 404.1520c(a). Instead, a specified list of factors are to be
considered when evaluating medical opinions—the most important of which
are (1) “supportability” which is a measure of how well a medical opinion is
supported by objective medical evidence and (2) “consistency” which is a
measure of how consistent a medical opinion is with other objective medical
evidence from other sources. Id. § 404.1520c(b)(2), (c)(1)–(5).
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Goble “submitted a Physical Capacities Form completed by
Mohammed Shubair, dated September 22, 2020 (1 page); a Physical
Capacities Form Completed by Richard Diethelm, dated October
22, 2020 (1 page); and treatment records from Alabama Neurology
Associates . . . .” Further, Goble has already acknowledged that
Dr. Chadband’s form is not in the SSA record. Indeed, this fact is
the very reason that Goble attached the form to a memorandum
he filed in the district court.
Although there is a process for incorporating new evidence
into a claim—through a “sentence six” remand which is the “sole
means for a district court to remand to the Commissioner to
consider new evidence presented for the first time in the district
court” 17—Goble did not argue for such a remand below or as part
of this appeal. Accordingly, Goble has forfeited any argument
concerning the admission of Dr. Chadband’s physical capacity
evaluation form. 18 See Stewart v. Dep’t of Health & Hum. Servs.,
17 As we have explained:
The sixth sentence of [42 U.S.C. § 405(g)] provides a federal
court the power to remand the application . . . to the
Commissioner for the taking of additional evidence upon a
showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)
(quotations omitted).
18Even if we were to ignore that Goble (1) did not ask for a sentence six
remand below, (2) does not ask for a sentence six remand in this appeal, and
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22-10842 Opinion of the Court 21
26 F.3d 115, 115 (11th Cir. 1994) (“As a general principle, this court
will not address an argument that has not been raised in the district
court.”); United States v. Campbell, 26 F.4th 860, 873 (11th Cir.
2022) (en banc), cert. denied 143 S. Ct. 95 (Oct. 3, 2022) (explaining
that an issue not raised in an appellant’s initial brief is forfeited and
only considered in “extraordinary circumstances” that are not
present in this case).
Goble’s overarching argument remains, however, and we
must consider whether the Appeals Council incorrectly
determined that the physical capacity evaluations by Drs. Diethelm
(3) does not lay out the standard for a sentence six remand, he would not be
able to meet the three-part framework required for a sentence six remand.
One element is that the evidence be “material,” but Dr. Chadband responded
“?” to four of the nine questions (i.e., he did not answer them at all), provided
known medical conditions that are explained elsewhere in the record as the
conditions causing Goble’s limitations (i.e., low blood sugar and passing out
at times), and offered only a single novel estimation (and that answer was that
Goble would need to lie down, sleep, or sit with his legs propped up for zero
minutes a day—which cuts against Goble’s claim that he cannot even perform
light work). See Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987) (“In order
to demonstrate that a [sentence six] remand is necessary the claimant must
establish that . . . the evidence is material, that is, relevant and probative so
that there is a reasonable possibility that it would change the administrative
result . . . .” (quotations omitted & emphasis added)). Simply put, there is no
reasonable probability that Dr. Chadband’s responses would “change the
administrative result.” Id.USCA11 Case: 22-10842 Document: 29-1 Date Filed: 04/07/2023 Page: 22 of 26
22 Opinion of the Court 22-10842
and Shubair did not have a reasonably probability of changing the
ALJ’s determination. 19
“[C]laimants are permitted to present new evidence at each
stage of [the] administrative process, including before the Appeals
Council.” Pupo v. Comm’r, Soc. Sec. Admin., 17 F.4th 1054, (11th
Cir, 2021). The Appeals Council will review a case if it “receives
additional evidence that is new, material, and relates to the period
on or before the date of the hearing decision, and there is a
reasonable probability that the additional evidence would change
the outcome of the decision.” Id. (quoting 20 C.F.R.
§ 416.1470(a)(5)). “When the Appeals Council accepts additional
evidence, considers the evidence, and then denies review, it is not
‘required to provide a detailed rational[e] for denying review.’”
Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1321 n.5
(2015) (quoting Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d
780, 784 (11th Cir. 2014)).
19 The additional evidence that Goble submitted to the Appeals Council
included “treatment records from Alabama Neurology Associates dated
December 18, 2023 through March 26, 2014.” However, we limit our
consideration to his other submissions (the physical capacity examinations) for
two reasons. First, the neurology records were largely duplicative (i.e., the
ALJ already had the majority of this information from other sources so the
additional neurology records would not have changed the ALJ’s analysis).
Second, we agree with the district court’s assessment that: “[T]he treatment
records from Alabama Neurology Associates significantly predate claimant’s
alleged onset date of disability of July 12, 2018. Thus, the determination of the
Appeals Council that those records would not have changed the outcome of
the ALJ’s decision has support.”
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22-10842 Opinion of the Court 23
The Appeals Council did not fail to consider the additional
evidence submitted by Goble. Rather, it considered the evidence—
specifically the medical opinions of Drs. Diethelm and Shubair—
and determined that the evidence did not have a reasonable
probability of changing the ALJ’s determination. The opinions of
Drs. Diethelm and Shubair were unlikely to change the outcome
of the ALJ’s decision—that Goble was not disabled and able to
perform light work—because they were not supported by or
consistent with the other medical evidence in this case. 20 C.F.R.
§ 404.1520c(c)(1)–(5). 20
Much of the medical evidence in the record pointed to the
fact that Goble’s conditions had improved alongside proper
medical care and attention to his medication and treatments. This
evidence contradicts the evaluations by Drs. Diethelm and Shubair
which paint a bleak depiction of Goble’s ability to work (i.e., Dr.
Diethelm opined that due to Goble’s anxiety, epilepsy, and
migraines he would be off task 90 percent of the day and miss work
twenty days a month, but in a Return Patient Note in April 2020,
Dr. Diethelm (1) noted that Goble was “doing much better”
regarding his seizures, (2) wrote that Goble reported success with
20To be clear, cases like the instant case are reviewed differently than cases in
which the Appeals Council refused to consider a claimant’s additional
evidence at all. See Washington., 806 F.3d at 1321 n.5 (explaining that a more
deferential review standard is applied when the Appeals Council considers a
claimant’s additional evidence as opposed to cases where the Appeals Council
outright refuses to consider additional evidence that has been submitted).
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24 Opinion of the Court 22-10842
medication for his headaches, and in May 2020, he (3) prescribed
medication for anxiety because Goble’s anxiety worsened after he
stopped taking the medication). Additionally, despite conducting
a physical exam and noting that Goble’s “[g]ait [was] steady” and
that he had no focal motor or sensory deficiencies, Dr. Diethelm
indicated on the physical capacities form that Goble would not be
able to stand for even 15 minutes.
Additionally, Dr. Shubair indicated on the physical
capacities form that Goble’s asthma, sleep apnea, and morbid
obesity would severely limit his ability to work, but Dr. Shubair
also noted in October 2019 that Goble’s use of a CPAP machine
had “markedly improved” his sleep apnea and that Goble reported
“wak[ing] up rested” and had “no excessive daytime sleepiness
[and] no headache” alongside other pulmonological improvements
after “bronchodilator therapy.”
These inconsistences call into question the supportability
and consistency of Goble’s additional evidence. As such, the
Appeals Council’s determination that the additional records did not
have a reasonable probability of changing the ALJ’s thorough and
well-reasoned decision below is supported by the record. And to
the extent that Goble takes exception with the Appeals Council’s
lack of extensive explanation as to why the additional evidence
would not have changed the outcome, that is also a losing
argument. Washington, 806 F.3d at 1321 n.5 (“When the Appeals
Council accepts additional evidence, considers the evidence, and
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22-10842 Opinion of the Court 25
then denies review, it is not required to provide a detailed
rational[e] for denying review.” (quotations omitted)).
B. The Commissioner’s Determinations Were Based on
Substantial Evidence
Goble argues that the Commissioner’s decision was not
based on substantial evidence for several reasons. Goble argues (1)
“[t]he Appeals Council wrongly held the three physical evaluations
would not change the outcome,” (2) “[t]he [ALJ’s] Unfavorable
Decision was not based on substantial evidence,” and (3) “[t]he
ALJ . . . relied on [VE] testimony that was not based on a correct or
full statement of claimant’s limitations and impairments.” We
already addressed Goble’s argument that the Appeals Council
erred in determining that there was not a reasonable probability
that the new evidence would have changed the outcome, but we
address the other two arguments below.
We start with Goble’s argument that the ALJ’s reliance on
the VE’s testimony was misplaced. Goble’s argument is
completely conclusory: he puts forth his argument and provides a
short overview of the operative legal framework—but that is it.
Goble argues that the ALJ did not account for all of the claimant’s
limitations but does not say which limitations went unaccounted
for or the effect that those apparent mistakes would have had on
the VE’s assessment. Goble’s argument is devoid of substance and,
therefore, he has abandoned his argument. Singh v. U.S. Att’y
Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n appellant’s simply
stating that an issue exists, without further argument or discussion,
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26 Opinion of the Court 22-10842
constitutes abandonment of that issue and precludes our
considering the issue on appeal.”).
Finally, we disagree with Goble’s argument that the ALJ’s
determination was not supported by substantial evidence. Given
the medical records that indicated Goble’s various impairments
were improving or could be addressed with proper medical care,
there was sufficient evidence to find that he could still perform light
work. See Winschel, 631 F.3d at 1178 (“We may not decide the
facts anew, reweigh the evidence, or substitute our judgment for
that of the [Commissioner].” (quotations omitted)); Simon, 7 F.4th
at 1103 (“Substantial evidence is less than a preponderance, and
thus we must affirm an ALJ’s decision even in cases where a greater
portion of the record seems to weight against it.” (quotations
omitted)). In addition, while Goble’s medical records were
extensive, many of the visits led to various scans (CT scans, x-rays,
or EKGs, etc.) that showed either no abnormalities or returned as
“unremarkable.” Moreover, the ALJ’s RFC finding is consistent
with the opinions of the state agency consultants. Simply put,
substantial evidence supports the ALJ’s determination that Goble
has impairments, but they are not so debilitating that he is unable
to perform light work.
AFFIRMED.