Keno Grimmett v. Social Security Administration, Commissioner

USCA11 Case: 22-10652 Document: 35-1 Date Filed: 03/13/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10652
Non-Argument Calendar
____________________
KENO GRIMMETT,
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. 4:20-cv-01010-RDP
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2 Opinion of the Court 22-10652
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Before WILLIAM PRYOR, Chief Judge, and NEWSOM and GRANT, Cir-
cuit Judges.
PER CURIAM:
Keno Grimmett appeals the denial of his motion for relief
from a judgment affirming the Commissioner’s denial of his appli-
cation for supplemental security income, 42 U.S.C. §§ 405(g),
1383(c)(3), and for a remand to the agency to consider new evi-
dence, id. § 405(g). We affirm.
In June 2018, Grimmett applied for supplemental security
income and alleged a disability onset date of June 19, 2018. Grim-
mett submitted various medical evidence, including statements
from Dr. James McCain and Kristy Phillips. In February 2020, an
administrative law judge denied his claim. Grimmett asked the Ap-
peals Council to consider five additional medical records as new
evidence. The Appeals Council denied Grimmett’s request and
concluded that the new evidence would not have changed the ad-
ministrative law judge’s decision. In August 2021, the district court
affirmed the Commissioner’s decision. Grimmett did not appeal.
Four months later, Grimmett moved for relief from the
judgment, Fed. R. Civ. P. 60(b)(2), (6), and for a “sentence six” re-
mand, 42 U.S.C. § 405(g), because he had received a subsequent fa-
vorable decision finding him disabled with an onset date of Sep-
tember 23, 2020. Grimmett argued that the favorable decision was
new and material evidence. Grimmett also argued that, in contrast
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22-10652 Opinion of the Court 3
with Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818 (11th Cir.
2015), where we held that a subsequent favorable decision alone
was not evidence that could support a “sentence six” remand, he
had submitted new medical evidence to the Appeals Council that
supported the favorable decision.
The district court denied Grimmett’s motion and ruled that
Hunter foreclosed his argument. The district court also ruled that
the additional medical evidence was unpersuasive because the new
decision concerned a different period from the one addressed in the
first decision.
Under sentence six of section 405(g), the district court may
“remand to the Commissioner to consider new evidence presented
for the first time in the district court.” Ingram v. Comm’r of Soc.
Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007). To obtain a re-
mand, the claimant must prove that the evidence is new and mate-
rial and that good cause exists for failing to incorporate the evi-
dence into the record in the earlier proceeding. Id. at 1261. For pur-
poses of section 405(g), a subsequent favorable benefits decision is
not “evidence.” Hunter, 808 F.3d at 822 (“A decision is not evi-
dence any more than evidence is a decision.”). If evidence is sub-
mitted to the Appeals Council and the Appeals Council considers
and incorporates it into the record, the evidence is not “new.” In-
gram, 496 F.3d at 1269.
Grimmett’s subsequent favorable decision was not “evi-
dence.” See Hunter, 808 F.3d at 822. Grimmett disagrees with our
precedent in Hunter, but “[u]nder the prior precedent rule, we are
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4 Opinion of the Court 22-10652
bound to follow a prior binding precedent unless and until it is
overruled by this court en banc or by the Supreme Court,” United
States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010) (quoting
United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)).
Grimmett seeks to distinguish his case from Hunter by pointing to
the five additional treatment records that he presented to the Ap-
peals Council that supported the Commissioner’s subsequent fa-
vorable decision. But this additional medical evidence was not
“new” because the Appeals Council reviewed these treatment rec-
ords and determined that they would not change the administra-
tive law judge’s decision, which concerned a different period from
that covered in the subsequent decision. See Ingram, 496 F.3d at
1269.
Grimmett also challenges the weight that the administrative
law judge gave to Dr. McCain’s and Phillips’s reports. But because
Grimmett did not timely appeal the order of the district court af-
firming the denial of his application for benefits, we dismissed that
portion of his appeal and lack jurisdiction over this challenge. See
Am. Bankers Ins. Co. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338
(11th Cir. 1999).
We AFFIRM the denial of Grimmett’s motion for relief from
the judgment and for remand.