Case: 13-12384   Date Filed: 01/06/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12384
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 3:11-cv-01030-JRK


CARL EVANS,

                                                            Plaintiff-Appellant,

                                  versus


COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                      ________________________

                            (January 6, 2014)

Before MARTIN, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:
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      Carl Evans appeals a magistrate judge’s order affirming the Commissioner’s

denial of Evans’s applications for disability insurance and Supplemental Security

Income (“SSI”) benefits. Evans suffered a back injury sometime around June 7,

2007, which led to a diagnosis of degenerative disc disease and depressive

disorder.

      Dr. Bienvenido Samera, Evans’s treating physician, conducted numerous

physical examinations in 2009 and 2010. In those examinations, Samera evaluated

the severity of Evans’s mental impairments as being between two to six out of a

possible ten and never assessed his risk level as greater than moderate.

Nevertheless, Samera opined that Evans was not capable of being employed in

light of his physical and mental impairments. In a mental residual functional

capacity (“RFC”) assessment, Samera determined that Evans had eight marked

limitations and two extreme limitations. Evans mental impairments were evaluated

by Dr. Raymond P. Schoenrock, Dr. J. Patrick Peterson, and Dr. Jill Rowan, who

all concluded that his mental impairments were not sufficiently severe to prevent

him from working.

      The Administrative Law Judge (“ALJ”) determined that Evans had a severe

combination of impairments, but that they did not meet or equal a Listing in the

Social Security regulations. The ALJ posed a hypothetical question to a vocational

expert (“VE”) about an individual with the following characteristics: (1) was 49


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years old with Evans’s education and work history; (2) could sit up to 7 out of 8

hours per day with hourly breaks; (3) could stand or walk for up to 2 out of 8 hours

per day in 15-minute increments; (3) could occasionally lift up to 10 pounds, and

frequently lift up to 5 pounds; (4) could occasionally bend, stoop, walk up stairs,

and reach above shoulder level; (5) could not crawl, climb, crouch, kneel, work on

unprotected heights, work on moving or hazardous machinery, drive, or use foot

controls; (6) could only perform simple, unskilled, repetitive work; (7) could only

be exposed to low to moderate stress; and (8) needed to primarily work alone, with

little interaction with others. The VE identified several positions that such an

individual could perform. Evans then proposed a hypothetical that added a marked

limitation in the ability to concentrate, and the VE stated that such a person could

not perform any job. The ALJ subsequently explained that he was discrediting

Samera’s opinion and specifically concluded that Evans only suffered from a

moderate limitation in the ability to concentrate.

      On appeal, Evans argues that the ALJ improperly rejected Samera’s opinion.

He asserts that ALJs are not entitled to discredit medical opinions at their own

discretion because they do not have the proper medical background to evaluate the

evidence. He emphasizes that Samera was his treating physician, and the mental

RFC assessment Samera conducted was consistent with Schoenrock’s evaluation.




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The ALJ’s decision was arbitrary and capricious and violated the rule that the ALJ

should afford great weight to the opinions of treating physicians.

      Evans also argues that the ALJ erred by ignoring the VE’s response to his

hypothetical, which relied on Samera’s RFC analysis, that an individual with his

characteristics could not work. The VE’s conclusion that relied on Samera’s RFC

analysis established that Evans was disabled beginning on June 7, 2007.

                                         I.

      If the Appeals Council grants review of a claim, then the decision that the

Council issues is the Commissioner’s “final decision.” Sims v. Apfel, 

, 106-07, 

, 2083 (2000). We review de novo the magistrate’s

determination of whether substantial evidence supports the Commissioner’s final

decision. Wilson v. Barnhart, 

, 1221 (11th Cir. 2002). We review

the Commissioner’s factual findings with deference and legal conclusions with

close scrutiny. Ingram v. Comm’r of Soc. Sec., 

, 1260 (11th Cir.

2007). “[W]e review de novo the legal principles upon which the Commissioner’s

decision is based.” Moore v. Barnhart, 

, 1211 (11th Cir. 2005).

“[W]e review the resulting decision only to determine whether it is supported by

substantial evidence.” 

is less than a preponderance, but enough that a

reasonable person would accept it as adequate to support the ultimate conclusion.


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standard, we will not reweigh the evidence, make credibility

determinations, or substitute our judgment for that of the Commissioner. 

the evidence preponderates against the Commissioner’s decision, we must affirm

the decision so long as it is supported by substantial evidence. Crawford v.

Comm’r of Social Security, 

, 1158-59 (11th Cir. 2004).

      The Social Security Disability Insurance program provides for benefits

under Title II of the Social Security Act to persons who have contributed to the

program and who are determined to be “disabled” due to a physical and/or mental

impairment. 42 U.S.C. § 401 et seq. The SSI program extends benefits under Title

XVI of the Social Security Act to indigent disabled persons. 42 U.S.C. § 1381 et

seq. The claimant bears the burden of proving his disability. Ellison v. Barnhart,

, 1276 (11th Cir. 2003).

      In order to determine whether a claimant is disabled, the Social Security

Administration applies a five-step sequential evaluation. 20 C.F.R. § 404.1520(a).

This process includes an analysis of whether the claimant: (1) is unable to engage

in substantial gainful activity; (2) has a severe medically determinable physical or

mental impairment; (3) has such an impairment that meets or equals a Listing and

meets the duration requirements; (4) can perform his past relevant work, in light of

his residual functional capacity; and (5) can make an adjustment to other work, in




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light of his residual functional capacity, age, education, and work experience. 20

C.F.R. § 404.1520(a)(4).

      Absent good cause, an ALJ is to give the medical opinions of treating

physicians substantial or considerable weight. Lewis v. Callahan, 

,

1440 (11th Cir. 1997); see 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2).

Good cause exists when: (1) the opinion was not bolstered by the evidence; (2) the

evidence supported a contrary finding; or (3) the opinion was conclusory or

inconsistent with the doctor's own medical records. 

. An

ALJ may disregard a treating physician's opinion for good cause, but he must

clearly articulate the reasons for doing so. 

ALJ must state with

particularity the weight given to different medical opinions and the reasons

therefor. Sharfarz v. Bowen, 

, 279 (11th Cir. 1987).

      We conclude from the record that substantial evidence supports the ALJ’s

discrediting of Samera’s medical opinion. First, Samera’s opinion that Evans

suffered from multiple marked and extreme mental limitations was not supported

by his own medical findings regarding the severity and risk levels of Evans’s

mental impairments. See 

. Second, Samera’s opinion was

inconsistent with the opinions of three other physicians that concluded that Evans’s

mental impairments were not severe. See 

opinion was

contradicted by Evans’s self-reported daily activities, which included various


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household chores, light yard work, driving, shopping, visiting with friends and

family, and playing chess daily. See 

evidence was inconsistent

with Samera’s opinion, the ALJ clearly and specifically articulated his reasons for

affording less weight to Samera’s opinion and stated that he was affording great

weight to Schoenrock’s opinion. Accordingly, we conclude that substantial

evidence supports the ALJ’s rejection of Samera’s opinion.

                                         II.

      As to the fifth prong of the determination of a disability, the Commissioner

bears the burden of showing that, in light of the claimant’s RFC and other factors,

a significant number of jobs that the claimant can perform exist in the national

economy. Winschel v. Comm’r of Soc. Sec., 

, 1180 (11th Cir. 2011);

20 C.F.R. § 404.1520(a)(4)(v). If such jobs exist, then the claimant is not disabled.

See 20 C.F.R. § 404.1520(a)(4)(v). An ALJ may make this determination by

posing hypothetical questions to a VE. See 

. An ALJ

may rely solely on the testimony of a VE in making this determination. Jones v.

Apfel, 

, 1230 (11th Cir. 1999). For the testimony of a VE to

constitute substantial evidence, “the ALJ must pose a hypothetical question which

comprises all of the claimant’s impairments.” 

      As discussed above, the ALJ had good cause to assign less weight to

Samera’s opinion. Based on his finding that Evans only had a moderate limitation


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in the ability to concentrate, the posed hypothetical adequately comprised all of

Evans’s impairments. See 

was consistent with the medical

evidence and opinions of the majority of the physicians. Thus, the record supports

the hypothetical that the ALJ relied upon, and the Appeals Council did not err in

ignoring the VE’s response to Evans’s proposed hypothetical. Accordingly, we

affirm the magistrate judge’s order affirming the Commissioner’s denial of

Evans’s application for disability insurance and SSI benefits.

      AFFIRMED.




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