Flowers v. Comm'r, Soc. Sec. Admin.

97 F.4th 1300

Isaac FLOWERS, Plaintiff-Appellant, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

No. 22-10568

United States Court of Appeals, Eleventh Circuit

Filed: April 4, 2024

Appeal from the United States District Court for the Northern District of Alabama, D.C. Docket No. 4:20-cv-01075-MHH

Jason P. Bailey, Jason P. Bailey, LLC, Tuscaloosa, AL, for Plaintiff-Appellant.

Richard Vincent Blake, SSA-Ogc, Baltimore, MD, Nathaniel Heber, Heber Law Firm LLC, Atlanta, GA, Elizabeth Holt, Michael B. Billingsley, U.S. Attorney Service - Northern District of Alabama, DOJ-USAO, Northern District of Alabama - Birmingham, Birmingham, AL, Mark Weaver, Social Security Administration, Office of the General Counsel, Atlanta, GA, for Defendant-Appellee.

Before Newsom, Branch, and Luck, Circuit Judges.

Branch, Circuit Judge:

This social security case revolves around an unusual but not unheard-of scenario. A person applies for Social Security Disability benefits and the administrative law judge ("ALJ") denies his claim, finding in the process that the applicant can perform jobs involving "sedentary work"—the lightest work capacity in the Social Security regulations. After that proceeding becomes final, the person applies for benefits again. This time, without referencing or distinguishing the prior ALJ's finding that the claimant could only perform "sedentary work," the ALJ denies benefits, finding in the process that the claimant can perform jobs involving "light work"—a work capacity slightly more intensive than "sedentary work." In a line of unpublished cases, we have held that this sort of scenario does not pose a res judicata problem because the ALJs are considering the claimant's capacity in distinct (though close-in-time) periods.

In this case, claimant-appellant Isaac Flowers urges us to view such cases through a different lens. He argues, pointing to decisions of the Fourth and Sixth Circuits, that the problem with ALJs reaching these seemingly inconsistent findings about the level of work that an applicant can perform is not res judicata, but substantial evidence. The argument goes that, if an ALJ finds a claimant is limited to "sedentary work," a subsequent finding that the claimant can do "light work" would lack substantial evidence if the ALJ did not acknowledge and distinguish the previous finding by showing some improvement in the claimant's condition. Because the ALJ below did not do so, Flowers maintains that the decision is not supported by substantial evidence.

After careful review and with the benefit of oral argument, we reject Flowers's position. First, we conclude that Flowers failed to raise this legal issue below, and we decline to consider it for the first time on appeal. Second, even if Flowers had raised the issue below, any error would be harmless because (given the outcome of his last application) Flowers has not shown that he would have a right to disability benefits even if the ALJ had once again found that he was limited to "sedentary work." Finally, and regardless, we reject Flowers's suggestion that the ALJ's decision was not supported by substantial evidence. We therefore affirm.

I. Background

Flowers suffers from back, neck, shoulder, and joint problems and related pain. Flowers is also obese, complains of vision loss in his left eye, and has depression and opioid dependence.

Flowers applied for social security disability benefits in 2014 based on a disability onset date of August 9, 2013, and his claim was denied on April 17, 2017. See Flowers v. Berryhill, No. 4:18-cv-00529-JEO, 2019 WL 2469792, *1 (N.D. Ala. June 13, 2019), aff'd Flowers v. Soc. Sec. Admin., Comm'r, 817 Fed. App'x 942 (11th Cir. 2020). The ALJ found Flowers "had the residual functional capacity ('RFC') to perform sedentary work with postural, reaching, and environmental limitations." Id. The regulations define "sedentary work" as follows:

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. § 404.1567(a). Because Flowers could perform sedentary work and there were jobs in the national economy he could do, the ALJ denied benefits. Flowers, 2019 WL 2469792, *1. The appeals council denied Flowers's request for review. Id. And we affirmed on appeal. Flowers, 817 Fed. App'x at 946.

After the appeals council denied review of the first claim, Flowers applied again, this time claiming a disability as of April 18, 2017—the day after his first application was denied. Flowers argued that he "just [did] not have the physical residual functional capacity to perform full-time employment."

But this time, the ALJ found that Flowers "has the residual functional capacity to perform light work" with minor modifications.¹ As defined by the regulations,

[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [one] must have the ability to do substantially all of these activities.

20 C.F.R. § 404.1567(b); id. § 416.967(b) (same); Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983) (further defining light work).

To reach this determination, the ALJ reviewed the medical evidence, including Flowers's statements regarding his functional limitations and restrictions in daily activities.² The ALJ concluded that Flowers's "medically determinable impairments could reasonably be expected to cause" pain and limitations, but his "statements concerning the intensity, persistence[,] and limiting effects of these symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record[.]" Further, the ALJ said, "imaging studies do not support a finding of disability and treatment notes do not document any significant physical examination findings." The ALJ noted that, "[o]verall, while the medical evidence demonstrate[d] a history of degenerative disc disease of the cervical and lumbar spine and obesity, it . . . d[id] not support [Flowers's] allegations" about its severity and his limitations "given the effectiveness of conservative treatment." As for medical opinions given in the case, the ALJ credited the functional assessments of the Agency's consultative examiner and the State Agency medical consultant (including on necessary modifications to the usual light work standards) because those opinions "[were] consistent with and supported by the objective evidence[.]" On the other hand, the ALJ found that Flowers's medical experts were "not persuasive" because their work "predate[d] the alleged onset date and cover[ed] a period already adjudicated by a prior ALJ denial decision" and "[was] not supported by the subsequently received medical evidence[.]" The ALJ did not explicitly note or reference any improvement in Flowers's condition.

"In sum," the ALJ found, a modified light work RFC was "supported by the medical evidence of record." The ALJ concluded that, "[a]lthough the evidence establishe[d] underlying medical conditions capable of producing some pain or other limitations, the substantial evidence of record [did] not confirm disabling pain or other limitations" or "support a conclusion" that Flowers had "disabling pain or other limitations."

Applying that RFC, the ALJ found that there were "jobs that exist[ed] in significant numbers in the national economy that [Flowers could] perform," and, therefore, that Flowers was not disabled. The appeals council again denied review.

Flowers sought judicial review. He argued that his condition had only worsened since the earlier benefits denial for his first claim and therefore that the denial of his new claim was not based on substantial evidence. The district court affirmed the ALJ's decision, and Flowers appealed.

II. Standard of Review

When, as here, "an ALJ denies benefits and the Appeals Council denies review, we review the ALJ's decision as the Commissioner's final decision." Samuels v. Acting Comm'r of Soc. Sec., 959 F.3d 1042, 1045 (11th Cir. 2020) (quotation omitted). The factual findings of the Commissioner are "conclusive" if "substantial evidence" supports them. 42 U.S.C. § 405(g). "We review de novo both the Commissioner's legal conclusions and the district court's decision about whether the Commissioner's decision is supported by substantial evidence." Walker v. Soc. Sec. Admin., Comm'r, 987 F.3d 1333, 1338 (11th Cir. 2021) (internal citations omitted).

III. Discussion

On appeal, Flowers argues that the ALJ erred because it did not consider or distinguish the previous RFC determination that he could perform only "sedentary work," and instead found that Flowers could perform "light work" even though there was no substantial evidence that his condition had improved. In other words, Flowers's position is that the RFC determination from a prior application should be a factor considered by the ALJ and, while not necessarily binding, should not be disturbed absent substantial evidence of a change in his condition. We disagree. We reject Flowers's legal argument because Flowers did not raise the issue below—and we do not usually consider issues raised for the first time on appeal. But even if Flowers had preserved the issue, his argument would still fail because he has not shown that the difference between "sedentary work" and "light work" would make any difference to his disability status. And,...