[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 3, 2006

N o . 05-15465

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

D . C. Docket No. 04-00146-CV-WCO-2

B L A K E ALLEN,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART,

Commissioner, Social Security Administration,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(April 3, 2006)

B efo re MARCUS, WILSON and PRYOR, Circuit Judges.

P E R CURIAM:

B lak e Allen appeals the order of the district court that affirmed the denial of

A lle n 's application for Social Security disability insurance benefits. Allen argues th at, because the vocational expert was given an incomplete hypothetical question, th e Administrative Law Judge improperly relied on the testimony of the vocational e x p e r t to deny his application. Allen also argues that the district court erred when it did not remand his case for reconsideration in the light of new evidence. We a f f ir m .

We will affirm the decision of the Commissioner that denied Allen's ap p licatio n for benefits if the decision is supported by substantial evidence and b ased upon proper legal standards. Lewis v. Callahan, 125 F.3d 1436, 1439 (11th C ir. 1997). "Substantial evidence is more than a scintilla and is such relevant ev id en ce as a reasonable person would accept as adequate to support a co n clu sio n ." Id. at 1440. "In contrast to the deferential review accorded to the S ecretary's findings of fact, the Secretary's conclusions of law . . . are not p resu m ed valid." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). We w ill reverse if the Commissioner fails to apply the correct legal standards or to p r o v id e us with "sufficient basis for a determination that proper legal principles h av e been followed." Id.

"To establish a disability based on testimony of pain and other symptoms, [A llen ] must satisfy two parts of a three-part test showing." Wilson v. Barnhart, 2 8 4 F.3d 1219, 1225 (11th Cir. 2002). Allen must show that there is "evidence of a n underlying medical condition; and . . . either (a) objective medical evidence c o n f ir m in g the severity of the alleged pain; or (b) that the objectively determined m ed ical condition can reasonably be expected to give rise to the claimed pain." Id.

An Administrative Law Judge must articulate "explicit and adequate reasons" to d iscred it subjective testimony. Id. "Failure to articulate the reasons for d iscred itin g subjective testimony requires, as a matter of law, that the testimony be accep ted as true." Id.

The Administrative Law Judge reviewed multiple medical records and heard testim o n y from Allen, and that evidence established that Allen was not totally d isab led . The Administrative Law Judge found Allen credible as to his ability to p e r fo r m sedentary and light activity, and the Administrative Law Judge concluded th at Allen had the residual functional capacity to perform sedentary exertion g en erally. Based on the testimony of the vocational expert that Allen was capable o f making a vocational adjustment to other work, the Administrative Law Judge fo u n d that Allen was not disabled and denied benefits.

Allen argues that the testimony of the vocational expert was erroneously co n sid ered because the expert responded to an incomplete hypothetical question.

Allen argues that the hypothetical question did not contain the limitations due to h is sleep apnea and chronic pain, which he argues the Administrative Law Judge cred ited . To rely on the testimony of a vocational expert in response to a h y p o th e tic al question, the Administrative Law Judge "must pose a hypothetical q u estio n which comprises all of the claimant's impairments." Jones v. Apfel, 190 F .3 d 1224, 1229 (11th Cir. 1999). The Administrative Law Judge is not required, h o w e v e r, to include limitations in the hypothetical that were properly rejected as u n s u p p o r te d . Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2 0 0 4 ).

The written decision of the Administrative Law Judge does not support A lle n 's assertion that judge found Allen's alleged limitations due to sleep apnea an d chronic pain credible. To the contrary, although the Administrative Law Judge co n clu d ed that Allen had sleep apnea and pain, the Administrative Law Judge d iscred ited Allen's testimony to the extent that Allen testified that those im p a ir m e n ts produced greater limitations than those posed in the hypothetical q u estio n . The conclusion of the Administrative Law Judge is supported by su b stan tial evidence, both documentary and Allen's own testimony regarding his d aily activities.

Allen also argues that the district court erred when it refused to remand his a p p lic atio n for consideration of new evidence that Allen had anxiety and bipolar d iso rd ers and borderline intellectual functioning. We review the denial of remand d e novo. Vega v. Comm'r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001). To b e entitled to remand, Allen must show that "(1) there is new, noncumulative ev id en ce; (2) the evidence is `material,' that is, relevant and probative so there is a r ea so n a b le probability that it would change the administrative result; and (3) there is good cause for the failure to submit the evidence at the administrative level." Id.

( cita tio n and quotation marks omitted). The Commissioner concedes that Allen p resen ted new evidence and that there is good cause for the failure to submit the ev id en ce at the administrative level, but the Commissioner disputes whether the ev id en ce is material.

New evidence is material if a reasonable possibility exists that the new ev id en ce would change the administrative result. Id. The new evidence must relate "to the period on or before the date of the administrative law judge hearing d ecisio n ." 20 C.F.R. § 404.970(b). Allen bears the burden to establish that the n e w evidence is material. Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir. 1 9 8 5 ).

Allen's argument fails. Allen cannot establish that the new evidence of his an x iety and bipolar disorders relates to the period on or before the decision of the A d m in istrativ e Law Judge. In the light of Allen's history of skilled work and the f in d in g of the Administrative Law Judge that Allen retained a residual work cap acity for unskilled sedentary work, there also is not a reasonable probability th at the evidence of Allen's borderline intellectual functioning would change the o u tc o m e .

Because Allen's other arguments regarding evidence of his sleep apnea were n o t presented in the district court, we do not consider them.

The order of the district court is AFFIRMED.