Timothy Larry v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13571
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-00102-GRJ
TIMOTHY LARRY,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 7, 2013)
Before TJOFLAT, MARTIN and JORDAN, Circuit Judges.
PER CURIAM:
Timothy Larry appeals from the judgment of the Magistrate Judge affirming
the Commissioner’s denial of his applications for disability insurance benefits, 42
Case: 12-13571 Date Filed: 02/07/2013 Page: 1 of 7

-- 1 of 7 --

2
U.S.C. § 405(g), and supplemental security income, 42 U.S.C. § 1383(c)(3). In
that the Administrative Law Judge (ALJ), contrary to Mr. Larry’s position, fully
developed the record and substantial evidence supports his decision, we affirm the
judgment on appeal.1
This matter began on January 10, 2007, when Mr. Larry applied to the
Social Security Administration for disability insurance benefits and supplemental
security income under Titles II and XVI of the Social Security Act. He alleged
that beginning June 18, 2005, he had a disability due to diabetes, a bad right hand,
arthritis, and asthma. The agency denied his applications initially on June 29,
2007, and upon reconsideration on December 19, 2007. Thereafter, he requested
and was granted a hearing before an ALJ, which was held on October 16, 2009.
The ALJ issued a decision denying his applications on December 9, 2009. Mr.
Larry appealed the ruling to the Appeals Council, and it denied his request for
review on June 7, 2011.
As the Magistrate Judge did, we review the ALJ’s decision as the
Commissioner’s final decision.2 Falge v. Apfel, 150 F.3d 1320, 1322 (11th
1 Mr. Larry’s argument that the Commissioner failed to consider new evidence he
submitted to the Appeals Council lacks merit. Larry did not explicitly challenge the AC’s denial
of review in his opening brief in this appeal; hence, we do not consider this new evidence.
Rather, we consider the evidence that was before the ALJ in determining whether the ALJ’s
decision was supported by substantial evidence.
2 We do this when the ALJ denies benefits and the Appeals Council denies review of the
ALJ’s decision.
Case: 12-13571 Date Filed: 02/07/2013 Page: 2 of 7

-- 2 of 7 --

3
Cir.1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 905 (1999).
We review the Commissioner's factual findings under the substantial evidence test;
they are conclusive if supported by such relevant evidence as a reasonable person
would accept as adequate to support a conclusion. Id. See also 42 U.S.C. §
405(g). And if substantial evidence supports the Commissioner’s decision, we will
affirm it even if we think the evidence actually preponderates against it. Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). We review de novo the
Commissioner’s legal conclusions. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005).
The claimant bears the burden of proving that he is disabled, and, thus, is
responsible for producing evidence to support his claim. Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003). However, “[b]ecause a hearing before an ALJ is
not an adversary proceeding, the ALJ has a basic obligation to develop a full and
fair record.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The ALJ
is required to develop the medical history for the twelve months prior to the date
the application for disability benefits is filed but is not bound to develop the record
after that date. Ellison, 355 F.3d at 1276; 20 C.F.R. § 416.912(d). In determining
whether the ALJ has failed to develop the record fully, as Mr. Larry argues here,
we are guided by whether the record reveals evidentiary gaps that result in
unfairness or clear prejudice. See Brown v. Shalala, 44 F.3d 931, 935 (11th Cir.
Case: 12-13571 Date Filed: 02/07/2013 Page: 3 of 7

-- 3 of 7 --

4
1995) (holding that there must be a showing of prejudice before we will find a
claimant’s rights under due process have been violated by a failure to develop the
record).
I.
Mr. Larry contends that the ALJ disregarded his duty to fully and fairly
develop his medical record. We disagree. At the hearing, his attorney supplied the
ALJ with additional records, and the ALJ stated that he had medical records dating
through 2008. The ALJ then specifically asked Mr. Larry if he had any additional
exhibits, and his attorney replied that the record was complete. Thus, any alleged
error the ALJ may have made in not obtaining more recent medical records was
invited. See Ford ex. rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1293-94 (11th
Cir. 2002).3
Moreover, since Mr. Larry filed his initial applications for disability benefits
on January 10, 2007, the ALJ was bound to develop the medical record for the
twelve-months’ period prior to January 2007, which he did. See Ellison, 355 F.3d
at 1276. Mr. Larry has not argued that the ALJ failed to develop the medical
3 “‘ It is a cardinal rule of appellate review that a party may not challenge as error a ruling or
other trial proceeding invited by that party.’ United States v. Ross, 131 F.3d 970, 988 (11th
Cir.1997) (quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir.1985)).” Ford
ex. rel. Estate of Ford, 289 F.3d at 1283.
Case: 12-13571 Date Filed: 02/07/2013 Page: 4 of 7

-- 4 of 7 --

5
record regarding this time period. Further, the record does not reveal an
evidentiary gap that clearly prejudiced Mr. Larry. See Brown, 44 F.3d at 935.
II.
A claimant must be under a disability to be eligible for disability insurance
benefits and supplemental security income. See 42 U.S.C. §§ 423(a)(1)(E),
1382(a)(1)-(2). A claimant is disabled if unable to engage in substantial gainful
activity by reason of a medically-determinable impairment that can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C.
§ 1382c(a)(3)(A).
The social security regulations establish a five-step, sequential evaluation
process to determine disability for disability benefits claims. See 20 C.F.R.
§ 404.1520(a)(4). The ALJ must evaluate: (1) whether the claimant has engaged in
substantial gainful employment; (2) whether the claimant has a severe impairment;
(3) whether the severe impairment meets or equals an impairment in the Listing of
Impairments; or (4) whether the claimant has the residual functional capacity
(“RFC”) to perform his past relevant work; and (5) whether, in light of the
claimant’s RFC, age, education and work experience, there are other jobs in the
national economy the claimant can perform. Id.
Case: 12-13571 Date Filed: 02/07/2013 Page: 5 of 7

-- 5 of 7 --

6
A person who does not have a severe impairment, or who can make an
adjustment to other work, is not disabled. 20 C.F.R. § 404.1520(a)(4)(v), (c),
(g)(1); 20 C.F.R. § 416.920(a)(4)(v), (c), (g)(1). A severe impairment is an
impairment or combination thereof that significantly limits the claimant’s physical
or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a) (“An
impairment or combination of impairments is not severe if it does not significantly
limit your physical or mental ability to do basic work activities.”); 20 C.F.R.
§ 416.921(a) (same). Only claims based upon the most trivial impairments may be
rejected, and an impairment is not severe only if the abnormality is so slight and its
effect so minimal that it would clearly not be expected to interfere with the
individual’s ability to work. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.
1986) (regarding the threshold inquiry of Step 2).
Here, substantial evidence supports the ALJ’s finding that Mr. Larry’s
anxiety and depression did not constitute severe mental impairments, at least up to
December 9, 2009. Although the record reveals diagnoses of anxiety and
depression and the use of psychotropic medications, the medical records showed
that Mr. Larry reported improvement with medication and that he had only
minimal treatment for his mental impairments. With regard to his diabetes
neuropathy and numbness in his right leg, the record reveals that he generally had
normal sensation and full strength in all muscles. Moreover, the ALJ fully
Case: 12-13571 Date Filed: 02/07/2013 Page: 6 of 7

-- 6 of 7 --

7
considered his sleep concerns, complaints of fatigue, and possible diagnosis of
obstructive sleep apnea. Medical records reveal that he was diagnosed with sleep
apnea in February 2009. That record was not presented to the ALJ, but, was
submitted as part of the record to the Appeals Council. Thus, we need not consider
this diagnosis. Finally, although the ALJ did not specifically discuss Mr. Larry’s
presumptive diagnosis of sarcoidosis, substantial evidence in the record
demonstrates that the sarcoidosis was not a severe impairment and that the ALJ
considered the medical records dealing with that condition.
In sum, substantial evidence supports the conclusion that Mr. Larry had no
severe impairments and thus was ineligible for disability insurance benefits and
supplemental security income.
AFFIRMED.
Case: 12-13571 Date Filed: 02/07/2013 Page: 7 of 7

-- 7 of 7 --