Case: 14-13406   Date Filed: 03/13/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13406
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:13-cv-01590-VMC-MAP



LAVERNE C. MCCANTS,
                                                           Plaintiff-Appellant,


                                  versus


COMMISSIONER OF SOCIAL SECURITY,
                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (March 13, 2015)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Laverene McCants appeals a decision that affirmed the denial of his

application for disability insurance benefits for the period between September 1,

2002, and March 31, 2004. See 42 U.S.C. §§ 405(g), 1383(c)(3). McCants

challenges the finding of the administrative law judge that he was not disabled and

argues that the district court should have remanded his case for the Commissioner

to reconsider a mental health report prepared by Dr. William Pettibon. We affirm.

      Two standards of review govern this appeal. First, we review the decision of

the Commissioner “to determine if it is supported by substantial evidence and

based on proper legal standards.” Crawford v. Comm’r of Soc. Sec., 

,

1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 

, 1439 (11th Cir.

1997)). Substantial evidence consists of “such relevant evidence as a reasonable

person would accept as adequate to support a conclusion” that a claimant is not

entitled to benefits. 

review de novo the denial of McCants’s request

to remand his case. Ingram v. Comm’r of Soc. Sec., 

, 1261 (11th Cir.

2007). A remand is warranted under the fourth sentence of section 405(g) only if

the evidence is new and material. Hyde v. Bowen, 

, 459 (11th Cir.

1987). Evidence is material if “there is a reasonable possibility that it would

change the administrative result.” 

supports the finding of the administrative law judge

that McCants was not disabled. The administrative law judge considered


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McCants’s medical records, his accounts of his condition, and opinion evidence

and reasonably determined that his gouty arthritis, osteoarthritis, chronic back pain,

obesity, human immunodeficiency virus (HIV), hyperlipidemia, dental problems,

and hypertension were not severe because they did not “significantly limit[] [his]

ability to perform basic work activities.” See 20 C.F.R. § 404.1520(c). Medical

records reflected that, in October 2002 and February 2003, McCants’s arthritis

tests had results within normal limits and he had two minor flare-ups of his gout; in

October 2002 and August 2003, the crepitus in his knees remained mild; in August

2003, he had no joint inflammation and his breathing, heartrate, and kidneys were

normal; and in December 2003 he had numbness and swelling around his left jaw

that subsided in January 2004. McCants reported that his condition improved over

time: in October 2002, he reported feeling “so-so” and “somewhat better”; in

February 2003, he reported doing fairly well with his arthritis; in August 2003, he

reported feeling fine and without pain; and in January 2004, he reported that his

jaw pain had subsided. And McCants also reported in 2003 that his HIV had not

required treatment since June 2000. McCants testified that he had been disabled by

an injury to his back and by gout that required him to use crutches to ambulate, but

his testimony was inconsistent with the objective medical evidence and his

statements to his physicians about working in 2004 and his overall health. See

Wilson v. Barnhart, 

, 1226 (11th Cir. 2002).


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      The administrative law judge had good cause to discount the opinion of Dr.

Douglas Walsh in determining whether McCants was disabled. In April 2002, Dr.

Walsh treated McCants for back pain, and in July 2010, the doctor wrote a

memorandum on McCants’s behalf opining that his impairments were disabling.

The doctor opined that McCants’s impairments rendered him unable to sit for

prolonged periods; made it difficult for him to stand and walk without severe pain;

interfered with his ability to bend and carry much weight; and required him to rest

at regular intervals and to use crutches to ambulate. The administrative law judge

reasonably discredited Dr. Walsh’s opinion as “conclusory[ because it] provid[ed]

very little explanation of the evidence relied on”; “inconsistent with the medical

record[, which] contained little to no evidence from September 1, 2002 to March

31, 2004, of findings related to [McCants’s] range of motion or gait”; and

contradicted by McCants’s “report[s] [that] he was doing well.” See Phillips v.

Barnhart, 

, 1240–41 (11th Cir. 2004).

      The district court did not err by refusing to remand McCants’s case for the

Commissioner to reconsider a psycho-educational report prepared by Dr. Pettibon

in January 2013. The Appeals Counsel was mistaken in finding that the report did

not “relate[] to the period on or before the date of the administrative law judge

hearing decision,” 20 C.F.R. § 404.970(b); see 

because the

report described McCants’s low cognitive abilities and low IQ, which are


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presumed “to remain fairly constant throughout life,” Hodges v. Barnhart, 

, 1268 (11th Cir. 2001). Even so, a remand is unnecessary because the

report is not material. See 

. Nothing in the report reveals that

“the administrative law judge’s action, findings, or conclusion is contrary to the

weight of the evidence . . . of record.” 20 C.F.R. § 404.970(b). There is no medical

evidence in the record on the subject of Dr. Pettibon’s report. See 

. In April 2009, Dr. Judith Meyers, a state agency psychological consultant,

conducted a psychiatric review and reported that there was insufficient medical

evidence from which she could opine that McCants had any severe mental

impairment on or before March 31, 2004. McCants had testified that he did not

read or write well and submitted transcripts from two high schools reflecting that

he had average to failing grades and underwent a personality test, but neither

McCants’s testimony nor the transcripts suggested that McCants had a cognitive or

learning disorder. Dr. Pettibon’s report does not change the conclusion that the

denial of benefits to McCants was supported by substantial evidence.

      We AFFIRM the denial of McCants’s application for disability benefits.




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