U.S. Court of Appeals for the Eleventh Circuit, 2023

Kelly Poling v. Commissioner of Social Security

U.S. Court of Appeals for the Eleventh Circuit · Decided May 31, 2023

Opinion

USCA11 Case: 22-12334 Document: 23-1 Date Filed: 05/31/2023 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-12334 Non-Argument Calendar ____________________ KELLY POLING, 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. 8:21-cv-01481-AAS ____________________ USCA11 Case: 22-12334 Document: 23-1 Date Filed: 05/31/2023 Page: 2 of 5

2 Opinion of the Court 22-12334

Before LAGOA, BRASHER, and BLACK, Circuit Judges.

PER CURIAM: Kelly Poling appeals the district court’s order affirming the Social Security Commissioner’s (Commissioner) denial of her claim for a period of disability, disability insurance benefits (DIB), and Supplemental Security Income. She asserts the district court erred by not remanding her case under the sixth sentence of 42 U.S.C. § 405(g) because she submitted new and material evi- dence—a finding by an Administrative Law Judge (ALJ) in a sec- ond, separate claim that she was disabled with an onset date one day after an ALJ found she was not disabled on the claim at issue in this case.

The sixth sentence of 42 U.S.C. § 405(g) permits a district court to remand an application for benefits to the Commissioner for the taking of additional evidence upon a showing “that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior pro- ceeding.” 42 U.S.C. § 405(g); Ingram v. Comm’r of Soc. Sec. Ad- min., 496 F.3d 1253, 1261 (11th Cir. 2007). To obtain a remand under this provision, the claimant must establish: “(1) there is new, noncumulative evidence; (2) the evidence is ‘material,’ that is, rel- evant and probative so that there is a reasonable possibility that it would change the administrative result[;] and (3) there is good cause for the failure to submit the evidence at the administrative USCA11 Case: 22-12334 Document: 23-1 Date Filed: 05/31/2023 Page: 3 of 5

22-12334 Opinion of the Court 3 level.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 821 (11th Cir. 2015) (quotation marks omitted).

In Hunter, we held a later favorable decision is not “new ev- idence” for purposes of § 405(g). Id. at 822. There, Hunter filed two successive applications for DIB, the first in May 2010, alleging a disability onset date of March 3, 2009, which an ALJ denied, find- ing she was not disabled between her alleged onset date and the date of the decision, February 10, 2012. Id. at 820. After the Ap- peals Council denied her request for review, Hunter sought review in the district court. Id. Meanwhile, Hunter filed a second applica- tion for DIB, alleging an onset date of February 11, 2012—the day after the first ALJ denied her previous application. Id. While her appeal of the first decision was still pending in the district court, a different ALJ approved her second application, finding she was dis- abled as of February 11, 2012. Id. Hunter then moved the district court to remand the first ALJ’s unfavorable decision to the Commissioner for further pro- ceedings, arguing the second ALJ’s favorable decision was new and material evidence warranting reconsideration of her first applica- tion. Id. The court denied the motion, and Hunter appealed. Id. at 820-21. On appeal, we noted there was a split on the issue be- tween the Sixth and Ninth Circuits but agreed with the Sixth Cir- cuit and affirmed the district court, holding “a later favorable deci- sion is not evidence for § 405(g) purposes.” Id. at 821-22. We rea- soned that, given the deferential nature of substantial evidence re- view, the decisions of both ALJs could be supported by the record, USCA11 Case: 22-12334 Document: 23-1 Date Filed: 05/31/2023 Page: 4 of 5

4 Opinion of the Court 22-12334 even though they reached opposite conclusions. Id. at 822. Be- cause the only new evidence Hunter cited in support of her request for remand was the later favorable decision, which was not evi- dence for purposes of § 405(g), we concluded she had not estab- lished remand was warranted. Id. Because Poling’s argument that the second ALJ’s favorable decision was new and material evidence warranting reconsidera- tion1 of her first application is identical to the one we rejected in Hunter, it is foreclosed under the prior panel precedent rule. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stat- ing, under our prior panel precedent rule, “a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc”). Poling does not attempt to dis- tinguish her case from Hunter but merely argues it was wrongly decided, which is not grounds for circumventing Hunter under the prior panel precedent rule. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000) (explaining the prior panel 1 Even though Poling submitted new treatment records in support of her re- quest for a sentence six remand, she does not argue on appeal the district court erred in determining those records did not warrant a remand, instead basing her claim solely on the second ALJ’s favorable decision, and thus she has aban- doned the argument that remand was warranted based on the treatment rec- ords. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (stating a party fails to adequately present an issue on appeal when she does not plainly and prominently raise it, for instance by devoting a discrete section of her argument to that claim).

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22-12334 Opinion of the Court 5 precedent rule is dependent upon neither “a subsequent panel’s ap- praisal of the initial decision’s correctness” nor “the skill of the at- torneys or wisdom of the judges involved with the prior decision— upon what was argued or considered”). Moreover, there is no ar- gument the issue raised by Poling was not brought to the attention of the Court in Hunter or ruled upon, as the Court acknowledged the circuit split referenced by Poling and expressly chose the ap- proach of the Sixth Circuit over the Ninth Circuit. See United States v. Jackson, 55 F.4th 846, 853 (11th Cir. 2022) (noting “ques- tions which merely lurk in the record, neither brought to the atten- tion of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents” (quotation marks and brackets omitted)). As Hunter has been neither overruled nor un- dermined to the point of abrogation, we affirm.

AFFIRMED.

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