Case: 13-14924    Date Filed: 09/26/2014   Page: 1 of 17


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 13-14924
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:12-cv-01601-MSS-TGW

JAMES W. HIMES,

                                                              Plaintiff-Appellant,

                                    versus

COMMISSIONER OF SOCIAL SECURITY,

                                                             Defendant-Appellee.

                         ________________________

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

                             (September 26, 2014)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

     James Himes, proceeding pro se, appeals the district court’s order affirming

the Social Security Administration’s denial of his application for disability

insurance benefits and supplemental security income. On appeal, Himes argues
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that: (1) the administrative law judge (“ALJ”) erred at steps two and three in the

sequential review process; and (2) the ALJ’s residual functional capacity (“RFC”)

assessment is not supported by substantial evidence, so the ALJ also erred at steps

four and five. After thorough review, we vacate and remand. 1

       In reviewing an ALJ decision, we assess whether the ALJ applied proper

legal standards and whether the factual findings are supported by substantial

evidence. 

; see Ingram v. Comm’r of Soc. Sec., 

, 1260 (11th Cir. 2007) (noting that this review is de novo). Substantial

evidence is “more than a scintilla” and is relevant evidence that a reasonable
1
        We reject the Commissioner’s claim that Himes abandoned certain arguments. It is true
that issues not raised on appeal are ordinarily deemed abandoned. Allstate Ins. Co. v. Swann, 

, 1542 (11th Cir. 1994). Nor do we address issues not raised in the district court.
Crawford v. Comm’r of Soc. Sec., 

, 1161 (11th Cir. 2004); see also Kelley v.
Apfel, 

, 1215 (11th Cir. 1999). However, the district court has discretion to accept
an argument first raised in an objection to a magistrate judge’s report and recommendation
(“R&R”). See Stephens v. Tolbert, 

, 1176–77 (11th Cir. 2006). Moreover, even if
a disability benefits claimant fails to object to an R&R, we may still review the magistrate
judge’s legal conclusion as to whether substantial evidence supports the ALJ’s findings. See
Hardin v. Wainwright, 

, 591 (5th Cir. Unit B 1982); see also Stein v. Reynolds Sec.,
Inc., 

, 34 (11th Cir. 1982) (adopting as binding all decisions issued by a Unit B panel
of the former Fifth Circuit); cf. Holley v. Seminole Cnty. Sch. Dist., 

, 1499 n.5
(11th Cir. 1985) (“[T]he substantial evidence inquiry, though a factual review of a sort, is a
question of law for the court which can be made upon a review of the administrative record.”).

         Here, Himes has not abandoned his arguments on appeal regarding the ALJ’s RFC and
credibility determination because he adequately raised them in his initial brief. As for the
Commissioner’s claim that Himes abandoned these claims by failing to comply with the
magistrate judge’s order to fully develop his arguments, this is more properly seen as an
argument that Himes did not raise his claims in the district court. But Himes did not fail to raise
these claims before the district court initially, and, even if he did not provide sufficient argument
in his initial memorandum, he adequately raised these issues in his pro se objections to the
magistrate judge’s R&R. Further, Himes did not waive the arguments he raised for the first time
in an objection to the magistrate judge’s R&R. The district court chose to review these
arguments on their merits, and there is no indication that the district court abused its discretion in
doing so. Accordingly, we will review all of Himes’s contentions on appeal.
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person would accept as adequate to support a conclusion that a claimant is or is not

entitled to benefits.   

.      We will not reweigh the

evidence and decide facts anew, and we defer to the ALJ’s decision if it is

supported by substantial evidence even if the evidence preponderates against it.

See Dyer v. Barnhart, 

, 1210 (11th Cir. 2005). However, we give no

deference to the ALJ’s legal conclusions, which we review with “close scrutiny.”

(quotation omitted). But even if an ALJ made a factual

error or applied an improper legal standard, we may find the errors harmless in

light of the whole case. See Diorio v. Heckler, 

, 728 (11th Cir. 1983).

      First, we are unpersuaded by Himes’s claim that the ALJ erred at steps two

and three in the sequential review process by, among other things, ignoring certain

medical evidence, not considering all of his impairments, and not recognizing

episodes of decompensation. The steps about which Himes complains are part of a

five-step process the Commissioner uses to determine whether a claimant is

disabled, and include an analysis of whether the claimant: (1) is not engaged in

substantial gainful activity; (2) has a severe and medically determinable

impairment; (3) has an impairment, or combination thereof, that meets or equals a

Listing, and meets the duration requirement; (4) can perform his past relevant

work, in light of his RFC; and (5) can make an adjustment to other work, in light of

his RFC, age, education, and work experience. Winschel v. Comm’r of Soc. Sec.,


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, 1178 (11th Cir. 2011); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

The claimant bears the burden of showing he is disabled. Moore v. Barnhart, 

, 1211 (11th Cir. 2005); 20 C.F.R. §§ 404.1512(a), (c), 416.912(a), (c).

      Step two is a threshold inquiry that “allows only claims based on the most

trivial impairments to be rejected.” McDaniel v. Bowen, 

, 1031

(11th Cir. 1986). It “acts as a filter” to weed out claims that show no substantial

impairments at all. Jamison v. Bowen, 

, 588 (11th Cir. 1987). The

finding of any severe impairment or a severe combination of impairments satisfies

step two because once the ALJ proceeds to step three and assesses the RFC, he is

required to consider all of a claimant’s impairments, severe or not. Id.; Bowen v.

Heckler, 

, 634–35 (11th Cir. 1984); see 42 U.S.C. § 423(d)(2)(B).

      At step three, a claimant is conclusively presumed to be disabled if he meets

or equals the level of severity of a listed impairment, or Listing. Crayton v.

Callahan, 

, 1219 (11th Cir. 1997); 20 C.F.R. §§ 404.1520(a)(4)(iii),

(d), 416.920(a)(4)(iii), (d); 

416.926 (discussing medical

equivalency). To meet a Listing, the claimant must meet all of the specified

medical criteria, and an impairment that fails to do so does not qualify no matter

how severely it meets some of the criteria. Sullivan v. Zebley, 

, 530

(1990). The claimant bears the burden of proving he meets a Listing. Barron v.

Sullivan, 

, 229 (11th Cir. 1991). A claimant must have a diagnosis


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included in the Listings and provide medical reports showing that his conditions

meet the specific criteria of the Listings and the duration requirement. Wilson v.

Barnhart, 

, 1224 (11th Cir. 2002). However, an impairment cannot

meet the criteria of a Listing based only on a diagnosis. Carnes v. Sullivan, 

, 1218 (11th Cir. 1991); 20 C.F.R. §§ 404.1525(d), 416.925(d).

      Medical opinions are “statements from physicians and psychologists or other

acceptable medical sources that reflect judgments about the nature and severity of

[a claimant’s] impairment[s].” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). There

are three tiers of medical opinion sources: (1) treating physicians; (2) nontreating,

examining physicians; and (3) nontreating, nonexamining physicians. See 

416.927(c)(1)–(2).       Nurse practitioners are not acceptable

medical sources, so their opinions are not “medical opinions” and “cannot establish

the existence of an impairment,” although their opinions may be used to show the

severity of an impairment and how it affects a claimant’s ability to work. See

; 20 C.F.R. §§ 404.1513(a), (d)(1), 416.913(a), (d)(1).

      To meet Listing 12.04 for affective disorders, a claimant must meet the

requirements in both paragraphs A and B, or meet the requirements in paragraph C.

20 C.F.R. pt. 404, subpt. P, app. 1, 12.04. Paragraph A requires “[m]edically

documented persistence, either continuous or intermittent,” of a qualifying

depressive syndrome, manic syndrome, or bipolar syndrome.                See 

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12.04(A)(1)–(3). Paragraph B requires that the medically documented persistent

syndrome result in at least two of the following: (1) marked restriction of activities

of daily living; (2) marked difficulties in maintaining social functioning; (3)

marked difficulties in maintaining concentration, persistence, or pace; or (4)

repeated episodes of decompensation, each of extended duration. 

“Marked” means “more than moderate but less than extreme,” and occurs when the

degree of limitation seriously interferes with a claimant’s ability to function

“independently, appropriately, effectively, and on a sustained basis.”         

see 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4) (describing a

five-point scale used to rate the degree of limitation: none, mild, moderate,

marked, and extreme).       Episodes of decompensation are “exacerbations or

temporary increases in symptoms or signs accompanied by a loss of adaptive

functioning, as manifested by difficulties in performing activities of daily living,

maintaining social relationships, or maintaining concentration, persistence, or

pace.” 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00(C)(4). To have a “repeated”

episode of “extended duration,” a claimant must have three episodes within one

year, or an average of once every four months, each lasting at least two weeks. 

requires a “[m]edically documented history of a chronic

affective disorder of at least 2 years’ duration that has caused more than a minimal

limitation of ability to do basic work activities, with symptoms or signs currently


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attenuated by medication or psychosocial support,” in addition to one of the

following: (1) repeated episodes of decompensation, each of extended duration; (2)

a residual disease process resulting in “such marginal adjustment” that it is

predicted that “even a minimal increase in mental demands or change in the

environment” would cause decompensation; or (3) a current history of at least one

years’ “inability to function outside a highly supportive living arrangement,” and

an indication that this arrangement needs to be continued. 

      Here, the ALJ decided at step two that Himes had the following severe

mental impairments: depression, anxiety, and personality disorder. Even assuming

that the ALJ erred at step two, any error is harmless because the ALJ’s conclusion

that Himes had any “severe” impairments advanced his claim to step three, where

the ALJ had to consider all of Himes’s impairments whether severe or not.

      At step three, the ALJ determined that Himes did not meet or medically

equal a Listing and was thus not conclusively presumed to be disabled. While

Himes notes that the ALJ did not consider the Paragraph A criteria for Listing

12.04, the error, if any, was harmless because Himes had to show he met the

criteria in both Paragraphs A and B, and substantial evidence supports the ALJ’s

decision that Himes did not satisfy Paragraph B. Among other things, the medical

evidence does not show that he had marked limitations in activities of daily living,

maintaining social functioning, or maintaining concentration, persistence, or pace.


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Rather, medical records indicate that Himes can independently care for his hygiene

and grooming, and two medical assessments reveal that Himes had no problems

performing activities of daily living -- which together provide substantial evidence

supporting the ALJ’s decision that Himes had mild restrictions in activities of daily

living and moderate difficulties in social functioning. To the extent Himes relies

on a nurse practitioner’s opinion to establish a diagnosis of bipolar disorder, she is

not a medically acceptable source, and, moreover, even if her opinion did establish

a diagnosis of bipolar condition, a diagnosis alone is insufficient to meet a Listing.

      The ALJ’s decision that Himes had moderate limitations in maintaining

concentration, persistence, or pace is further supported by medical records noting

that Himes had normal or good concentration, was attentive, and displayed a good

memory. But even if this determination was in error, any error was harmless

because Himes had to meet two of the four criteria in Paragraph B, and, substantial

evidence supports the ALJ’s finding that Himes did not have the requisite episodes

of decompensation that were of extended duration. Indeed, Hines cannot rely on

the first of the three alleged episodes -- when he lost custody of his daughter in

2006 -- because it does not help establish that he had “repeated” episodes (meaning

three episodes within one year or on average once every four months). This event

occurred before his alleged onset date of disability and approximately three years

before his next alleged episode of decompensation. Accordingly, Himes has not


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met his burden to show that he suffered from repeated episodes of decompensation.

      Substantial evidence also supports the ALJ’s conclusion that Himes did not

satisfy any of the three conditions required for Paragraph C, and thus did not meet

or medically equal Listing 12.04. As for the first condition, we’ve already noted

that Himes did not show the required episodes of decompensation. As for the

second condition, medical opinions and evidence indicating that Himes had mild or

moderate limitations in activities of daily living, social functioning, and

maintaining concentration, persistence, or pace support the ALJ’s conclusion that a

minimal increase in mental demands or a change in the environment would not

predictably cause Himes to decompensate. As for the third condition, the record

indicates that Himes was not completely unable to function outside a highly

supportive living arrangement, since he lived on his own with his girlfriend and

daughter and adequately participated in daily living activities. The ALJ’s decision

at step three of the sequential analysis is thus supported by substantial evidence.

      Nevertheless, we agree with Himes the ALJ erred at steps four and five of

the sequential process. After step three, the ALJ must determine a claimant’s RFC,

and whether, in light of his RFC, a claimant (4) can perform his past relevant work;

or if not, (5) can make an adjustment to other work, in light of his RFC, age,

education, and work experience.       

; 20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4). A claimant’s RFC is an assessment, based upon all


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relevant evidence, of the claimant’s ability to do work despite his impairments.

Lewis v. Callahan, 

, 1440 (11th Cir. 1997); 20 C.F.R. §

404.1545(a)(1); 20 C.F.R. § 416.945(a)(1). The ALJ considers all of the evidence

in the record in determining the claimant’s RFC. Phillips v. Barnhart, 

, 1238 (11th Cir. 2004). At step four, the claimant bears the burden of

proving that he is unable to perform his past relevant work in light of his RFC, and

if he meets that burden, the Commissioner bears the burden of determining

whether there is other work available at the fifth step of the sequential evaluation

process. Jones v. Apfel, 

, 1228 (11th Cir. 1999).

      The ALJ has a duty to make clear the weight accorded to each item of

evidence and the reasons for those decisions, so as to enable a reviewing court to

determine whether the ultimate decision is based on substantial evidence. Cowart

v. Schweiker, 

, 735 (11th Cir. 1981). In assessing medical evidence,

the ALJ must “state with particularity the weight he gave the different medical

opinions and the reasons therefor.” Sharfarz v. Bowen, 

, 279 (11th

Cir. 1987). It is insufficient for an ALJ to state that he considered all of the

evidence when he does not indicate what weight was accorded to the evidence

considered. Ryan v. Heckler, 

, 942 (11th Cir. 1985); see 

(“In the absence of such a statement, it is impossible for a reviewing

court to determine whether the ultimate decision on the merits of the claim is


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rational and supported by substantial evidence.”). Even if it is possible that the

ALJ considered and rejected medical opinions, “without clearly articulated

grounds for such a rejection, we cannot determine whether the ALJ’s conclusions

were rational and supported by substantial evidence.” 

.

      A treating physician’s testimony must be given “substantial or considerable

weight” unless good cause is shown to not do so. Phillips v. Barnhart, 

, 1240 (11th Cir. 2004) (quotations omitted); see 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2). An examining physician’s opinion is generally given more weight

than that of a source who has not examined the claimant.              20 C.F.R. §§

404.1527(c)(1), 416.927(c)(1); Oldham v. Schweiker, 

, 1084 (5th

Cir. Unit B Nov. 12, 1981). The weight to be given a nonexamining physician’s

opinion depends, inter alia, on the extent to which it is supported by clinical

findings and consistent with other evidence. See 20 C.F.R. § 404.1527(c)(3)–(4).

The opinions of nonexamining, reviewing physicians are entitled to little weight

and, “taken alone, do not constitute substantial evidence.” Broughton v. Heckler,

, 962 (11th Cir. 1985) (quotation omitted); 

.

      In order to show a disability based on testimony of pain or other symptoms,

“the claimant must satisfy two parts of a three-part test showing: (1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain; or (b) that the objectively determined


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medical condition can reasonably be expected to give rise” to the claimed

symptoms. 

. Thus, the ALJ must determine: first,

whether there is an underlying medically determinable impairment that could

reasonably be expected to cause the claimant’s pain or other symptoms; and

second, the intensity and persistence of the symptoms and their effect on the

claimant’s work. 20 C.F.R. § 416.929(a), (c).

      In weighing evidence, credibility determinations “are the province of the

ALJ.” Moore v. Barnhart, 

, 1212 (11th Cir. 2005). However, if the

ALJ discredits the claimant’s subjective testimony, the ALJ “must articulate

explicit and adequate reasons for doing so”; failure to do so “requires, as a matter

of law, that the testimony be accepted as true.” 

.

      Here, the ALJ found that Himes had the RFC to perform medium work

“except the claimant has an occasional limitation for interaction with the general

public and coping with work stress; but the claimant is capable of performing

routine, predictable tasks in an air conditioned environment.” The ALJ determined

that Himes’s medically determinable impairments could reasonably be expected to

cause Himes’s alleged symptoms but did not explicitly state what these medically

determinable impairments were, though it appears that the ALJ considered Himes’s

diagnoses of depression, anxiety, and personality disorder. In so doing, the ALJ

erred by not considering all of Himes’s diagnoses: the ALJ did not list Dr. Richard


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Brown’s additional diagnostic impressions of social phobia, panic disorder, post-

traumatic stress disorder (“PTSD”), attention deficit hyperactivity disorder

(“ADHD”) by history, and mild obsessive compulsive disorder (“OCD”), or Dr.

Thomas DiGeronimo’s assessment of OCD, or explain why these conditions were

not, despite being diagnosed by examining physicians, “medically determinable”

impairments. See 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Nevertheless, we

conclude that this particular error is harmless, in the context of the pain standard,

since the ALJ found that Himes’s medically determinable impairments could

reasonably be expected to cause his alleged symptoms.

       Not all of the errors were harmless, however. Our review of the record

reveals no opinions by a treating physician, but includes four other medical

opinions relevant to Himes’s mental health: Dr. Brown’s and Dr. DiGeronimo’s

opinions as examining physicians, and Dr. James Levassur’s and Dr. Keith

Bower’s opinions as reviewing physicians.2 Yet the ALJ failed to state with

particularity the weight he gave to each medical opinion -- he expressly said that

he gave significant weight to the opinion of reviewing physician Dr. Levassur, but

he did not expressly assign weight to the other three opinions. As a result, we are

unable to determine whether the ALJ’s conclusions about the medical opinions are

supported by substantial evidence. See 

; Sharfarz, 825

2
       As we’ve explained, the advanced registered nurse practitioner’s opinion is not a medical
opinion because she is not an acceptable medical source.
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. The ALJ’s statement that he carefully considered the entire record is

not sufficient. See 

; 

.

      Of these omissions, the ALJ’s failure to assign weight to Dr. Brown’s

opinion is most troublesome. The ALJ discussed Dr. Brown’s psychological report

during previous sequential steps but did not assign it any weight, and the sole

mention of Dr. Brown’s opinion at the RFC stage was a reference to Himes’s

statement to Dr. Brown that he could prepare simple meals and perform household

chores. The ALJ did not mention Dr. Brown’s diagnostic impressions of social

phobia, panic disorder, PTSD, ADHD by history, major depression that was

chronic and mild to moderate, mild OCD, and avoidant personality disorder, which

are probative of Himes’s claims about his impairments and symptoms. The ALJ

also did not discuss, inter alia, Dr. Brown’s opinion that Himes seemed volatile

and had physical manifestations of his frustrations when he was not understood, or

Dr. Brown’s opinion that Himes would need assistance managing his finances if he

were granted disability. Without an explanation from the ALJ as to the weight

given to Dr. Brown’s report, it is unclear whether the ALJ’s ultimate decision is

based on substantial evidence, and we must remand. See 

.

      We also note that the ALJ mentioned Dr. DiGeronimo’s neurological

evaluation, but did not mention Dr. DiGeronimo’s diagnoses of anxiety,

depression, and OCD, and also did not explicitly assign his opinion any weight,


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despite his status as an examining physician. Moreover, the ALJ’s error in only

assigning weight to Dr. Levassur’s opinion is compounded because he was a

nonexamining physician, as opposed to Dr. Brown and Dr. DiGeronimo, who were

examining physicians. See 

. Thus, Dr. Levassur’s

opinion, taken alone, did not constitute substantial evidence in support of the

ALJ’s RFC assessment. See 

.

      The ALJ further erred in making the credibility determination that Himes

was not credible to the extent that his statements about the intensity, persistency,

and limiting effect of his symptoms were inconsistent with the RFC assessment.

The ALJ gave the following reasons for his credibility determination: (1) Himes

received unemployment benefits, and thus had represented that he was able to

work; (2) there was no evidence that any of Himes’s physical diagnoses caused any

functional limitations; (3) despite diagnoses of depression, anxiety, and personality

disorder, there was no evidence that these impairments prevented him from

engaging in some type of work activity; and (4) the evidence showed that Himes

had “more of a temper problem.” But the ALJ’s fourth reason for finding Himes

not fully credible is not supported by the record and is otherwise insufficient.

Himes consistently stated, to his medical care providers, to the Social Security

Administration, and to the ALJ at his hearing, that his daughter was taken from

him due to supposed neglect, but that in reality his daughter suffered from a


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chromosomal defect that caused developmental delays. The ALJ’s statement that

Himes lost custody of his daughter due to his temper, and then “had no problem

controlling his temper” in order to regain custody of his daughter, appears to be the

first mention of this scenario. But beyond this unsupported statement of fact, the

ALJ’s conclusion that Himes really has “more of a temper problem” does not

engage the physicians’ opinions diagnosing Himes with mental impairments.

Himes’s temper is not evidence about the limiting effects of his diagnosed mental

impairments and does not indicate one way or the other whether his diagnoses and

symptoms render him unable to work or are not limiting beyond the RFC

assessment. See, e.g., 

(explaining that the RFC is an

assessment of the claimant’s ability to work despite his impairments). Instead, the

ALJ’s stated reason for finding Himes less than fully credible is based on the

ALJ’s conjecture that Himes’s problems are based on temper as opposed to mental

issues. This conclusion is thus not supported by substantial evidence in the record.

See 

.

      Additionally, as we’ve explained, the ALJ omitted discussion of Himes’s

diagnosed mental illnesses besides depression, anxiety, and personality disorder,

and did not determine whether these additional impairments such as social phobia,

ADHD, and PTSD bore out Himes’s alleged symptoms. This error is not harmless

in the context of Himes’s credibility because, without considering all of Himes’s


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diagnosed impairments, the ALJ’s conclusion that Himes’s statements about his

subjective symptoms are not credible to the extent they conflict with the RFC is

not supported by substantial evidence. See id.; 

(focusing

on the claimant’s ability to work despite his impairments).

         Finally, the ALJ’s RFC assessment is not supported by substantial evidence

because, considering the ALJ’s errors in failing to specify the weight given to

medical opinions and in failing to make an adequately supported credibility

determination, a reasonable person would not conclude that there is enough

relevant evidence to support the conclusion that Himes is not entitled to benefits.

Specifically, the ALJ’s errors affected which diagnosed impairments were

considered and the extent to which associated symptoms prevented Himes from

working. Thus, the ALJ’s conclusions at steps four and five in the sequential

analysis are also not supported by substantial evidence.

         Accordingly, we vacate and remand the district court’s decision. 3

         VACATED AND REMANDED.




3
    We also GRANT Himes’s motion to file a reply brief out of time.
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