Frederic J. Gombash, III v. Commissioner, Social Security Administration ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12654
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-00194-CAS
FREDERIC J. GOMBASH, III,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 19, 2014)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Frederic J. Gombash, III, through counsel, appeals the district court’s order
affirming the Social Security Administration’s (“SSA”) final decision terminating
his disability insurance benefits (“DIB”) and supplemental security income
(“SSI”). Specifically, he argues that substantial evidence did not support the
Administrative Law Judge’s (“ALJ”) determination that he experienced work-
related medical improvement and was no longer disabled as of August 1, 2009. He
concedes that, as of that date, his condition did not meet or equal a listed
impairment; however, he nevertheless maintains the record demonstrated that his
overall impairments—physical and mental—were severe enough to prevent him
from engaging in substantial gainful activity. 1 After careful review, we affirm.
We review the Commissioner’s final decisions to determine if they are
supported by substantial evidence and based on proper legal standards. Crawford
v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004). Substantial evidence consists of
“such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. (quotations omitted). Because we “may not decide the
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Gombash also raises two other arguments, neither of which has been properly presented
on appeal. First, he identifies an alleged error in the ALJ’s hypothetical questions to the
vocational expert, but he provides no supporting argument. See Singh v. U.S. Att’y Gen., 561
F.3d 1275, 1278 (11th Cir. 2009) (“[S]imply stating that an issue exists, without further
argument or discussion, constitutes abandonment of that issue and precludes our considering the
issue on appeal.”). Second, he contends that while his present ailments no longer meet or equal
the original listed impairment, they nevertheless satisfy a different listed impairment. However,
Gombash did not make that argument below. See Crawford v. Comm’r, 363 F.3d 1155, 1161
(11th Cir. 2004) (declining to address appropriateness of hypothetical when claimant did not
raise the issue before the district court at any point).
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facts anew, reweigh the evidence, or substitute our judgment for that of the
[Commissioner],” a decision supported by substantial evidence must be affirmed,
“even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004) (quotations omitted). The burden ultimately rests with
the claimant to prove that he is disabled and entitled to Social Security benefits.
See 20 C.F.R. § 404.1512(a).
A claimant’s continued entitlement to disability benefits must be reviewed
periodically. 20 C.F.R. § 404.1594(a). The Commissioner may terminate a
claimant’s benefits upon finding that there has been medical improvement in the
claimant’s impairment or combination of impairments related to the claimant’s
ability to work and the claimant is now able to engage in substantial gainful
activity. 42 U.S.C. § 423(f)(1). To determine whether disability should be
terminated, the Commissioner conducts a multi-step evaluation process to
determine:
(1) Whether the claimant is engaging in substantial gainful activity;
(2) If not gainfully employed, whether the claimant has an impairment
or combination of impairments which meets or equals a listing;
(3) If impairments do not meet a listing, whether there has been
medical improvement;
(4) If there has been improvement, whether the improvement is
related to the claimant's ability to do work;
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(5) If there is improvement related to claimant's ability to do work,
whether an exception to medical improvement applies;
(6) If medical improvement is related to the claimant’s ability to do
work or if one of the first groups of exceptions to medical
improvement applies, whether the claimant has a severe impairment;
(7) If the claimant has a severe impairment, whether the claimant can
perform past relevant work; and
(8) If the claimant cannot perform past relevant work, whether the
claimant can perform other work.
See 20 C.F.R. § 404.1594(f). Medical improvement is defined as “any decrease in
the medical severity of [the claimant’s] impairment(s) which was present at the
time of the most recent favorable medical decision that [he] w[as] disabled . . . .”
20 C.F.R. § 404.1594(b)(1). To determine if there has been medical improvement,
the Commissioner must compare the medical evidence supporting the most recent
final decision holding that the claimant is disabled with new medical evidence.
McAulay v. Heckler, 749 F.2d 1500, 1500 (11th Cir. 1985); see 20 C.F.R.
§ 404.1594(c)(1). To terminate benefits, the Commissioner may not focus only on
new evidence concerning disability, but must also evaluate the evidence upon
which the claimant was originally found to be disabled. Vaughn v. Heckler, 727
F.2d 1040, 1043 (11th Cir. 1984). Without a comparison of the old and new
evidence, there can be no adequate finding of improvement. Id.4
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A claimant may establish that he has a disability “through his own testimony
of pain or other subjective symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005). In such a case, the claimant must show:
(1) evidence of an underlying medical condition and either
(2) objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.
Id. (quotations omitted). If the Commissioner discredits subjective pain testimony,
he or she must articulate explicit and adequate reasons for doing so. See Brown v.
Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). Substantial evidence must support
the Commissioner’s reasons for discrediting pain testimony. See Hale v. Bowen,
831 F.2d 1007, 1012 (11th Cir. 1987).
Here, substantial evidence supported the ALJ’s determination of medical
improvement, which it properly made by starting with Gombash’s most recent
favorable disability determination—made in August 2004—and then surveying the
new medical evidence. See McAulay, 749 F.2d at 1500. That new evidence was,
as the ALJ noted, almost uniformly aligned in showing that Gombash’s physical
condition had medically improved—indeed, Gombash himself concedes that his
impairment no longer satisfied the listing requirements. To illustrate, in August
2004, Gombash was just one month removed from an automobile accident that
required surgery to repair his displaced, preexisting left leg fracture, a fracture that
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had already required hardware for stabilization and prevented him from ambulating
without assistance. Yet several years later, beginning with his 2008 emergency
room visits, the medical evidence showed that his leg experienced no intervening
dislocations or hardware failures, and that he was able to ambulate without
assistance, albeit with a limp.
To be sure, Gombash’s injuries had deformed his left leg, shortening it by
two inches, but, for instance, upon examination in April 2009, Dr. Adhami
observed that he had normal reflexes and strength in the leg, and apart from his left
ankle, he regained a full range of motion. Dr. Zelaya’s October 2010 observations
were slightly less optimistic, noting that Gombash exhibited a somewhat limited
range of motion in his left leg and experienced significant muscle spasms, but were
largely consistent, as he similarly noted that Gombash walked without assistance
and had left-leg motor strength of 4/5. Finally, in their respective residual
functioning capacity (“RFC”) reports, after examining Gombash’s medical record,
Drs. Zelaya, Brigety, and Bancks each concluded that, while he was limited in
certain work-related activities, such as climbing and standing or walking, he could
nevertheless perform many other such activities such as sitting for long periods of
time, frequently lifting or carrying small weights, and using his hands to
manipulate items such as paper.
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In evaluating whether Gombash suffered from severe impairments
preventing him from working, notwithstanding the medical improvement in his
physical condition, the ALJ also considered evidence of his mental health. And on
that point too, the record contains substantial evidence to support the ALJ’s
determination that Gombash was not disabled.
As countervailing evidence in favor of disability, Gombash offered personal
attestations of pain and limitations. According to Gombash, following his onset
date, he tried to lay down and not do much during the typical day, in order to avoid
causing additional pain. Among other things, he also testified that he experienced
severe pain every day in his left leg, hip, and back. However, in light of the above-
surveyed record, substantial evidence supported the ALJ’s determination that
Gombash’s subjective evidence was not entirely credible. See Hale, 831 F.2d at
1012.
Based on the above, we conclude that substantial evidence supported the
ALJ’s decision that as of August 1, 2009, Gombash was no longer disabled.
AFFIRMED.
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