Christian Concepcion v. Commissioner of Social Security

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11365
Non-Argument Calendar
____________________
CHRISTIAN M. CONCEPCION,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:21-cv-00448-TJC-MCR
____________________
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2 Opinion of the Court 23-11365
Before R OSENBAUM , GRANT, and B RASHER , Circuit Judges.
PER CURIAM:
Several years ago, Christian Concepcion sought disability in-
surance benefits from the Social Security Administration. An ad-
ministrative law judge concluded that he was not disabled. On ap-
peal, he argues that the judge erred by failing to credit the determi-
nation of the Department of Veterans Affairs that he was one hun-
dred percent disabled. But Concepcion is mistaken about the law.
A new regulation promulgated before his application for benefits
requires that the administrative law judge consider only the sup-
porting evidence underlying the VA’s decision, not the decision it-
self. Concepcion forfeited any argument that the new regulation
exceeded the Commissioner’s authority or was arbitrary and capri-
cious. And he similarly forfeited any argument that the administra-
tive law judge failed to consider the supporting evidence. So we
affirm.
I.
Concepcion alleges that he suffers from post-traumatic
stress disorder, lumbar problems, body pain, arthritis, nerve dam-
age, asthma and respiratory problems, digestive issues, and mi-
graines. The VA rated his ailments as one hundred percent disa-
bling.
Arguing that he could not work, he sought disability insur-
ance benefits from the Social Security Administration in 2019. An
administrative law judge considered the testimony of several
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23-11365 Opinion of the Court 3
doctors, a vocational expert, and Concepcion himself, amongst
other evidence. The judge also considered Concepcion’s medical
records underlying the VA’s disability rating, though she gave little
weight to the rating itself. She concluded that he was not disabled
and denied his application for benefits. Concepcion requested that
the Appeals Council review the administrative law judge’s denial
of benefits, which it declined to do. So the judge’s denial became
the final decision of the Commissioner of the Social Security Ad-
ministration.
Then, Concepcion sued in district court seeking judicial re-
view of the Commissioner’s final decision. Concepcion argued
there that the administrative law judge was required to seriously
consider the VA’s disability rating, give it great weight, and explain
why it deviated from it. The Commissioner said that Concepcion’s
arguments were based on precedents that had been abrogated by a
change in the applicable regulation in 2017. The district court
agreed and affirmed the Commissioner’s denial of benefits. This
appeal followed.
II.
“We review de novo the ALJ’s application of legal principles,
and we review the ALJ’s resulting decision to determine whether
it is supported by substantial evidence.” Buckwalter v. Acting Comm'r
of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021) (cleaned up).
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4 Opinion of the Court 23-11365
III.
When the Commissioner promulgates a revised rule, he ab-
rogates our earlier precedents applying the old rule, so long as the
regulation was within his statutory authority and not arbitrary and
capricious. See Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 896
(11th Cir. 2022). We previously held that the Social Security Ad-
ministration’s administrative law judges must discuss another
agency’s decision that a claimant was disabled. Noble v. Comm’r of
Soc. Sec., 963 F.3d 1317, 1330 (11th Cir. 2020). But for disability
claims filed after March 27, 2017, the Commissioner (and his ad-
ministrative law judges) need not analyze a decision from another
governmental agency, like the VA, so long as they consider the sup-
porting evidence underlying the other agency’s decision. 20 C.F.R.
§ 404.1504. Indeed, we recognized as much in Noble, explaining that
the new regulation did not apply there because the claimant ap-
plied before the regulation was promulgated. 963 F.3d at 1324.
Concepcion argues that the administrative law judge erred
in not giving great weight to the VA’s rating decision and explain-
ing why she disregarded it. But he applied for benefits in 2019. By
then, the new regulation required only that she consider the sup-
porting evidence underlying the VA’s decision, which she did.
That’s the extent of Concepcion’s argument. He does not
argue that the change in regulation exceeded the Commissioner’s
statutory authority. He does not argue that the new rule is arbitrary
or capricious. And he does not argue that the judge failed to con-
sider the supporting evidence underlying the VA’s rating decision.
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23-11365 Opinion of the Court 5
Consequently, he forfeited these issues. See United States v. Camp-
bell, 26 F.4th 860, 871–75 (11th Cir. 2022). Because no extraordinary
circumstance exists suggesting we should resurrect these issues, we
need not address them. Id. at 872–73.
IV.
For the above reasons, the district court is AFFIRMED.
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