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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13807
Non-Argument Calendar
____________________
ELISHA L. GRESHAM,
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-00601-MRM
____________________
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2 Opinion of the Court 22-13807
Before WILSON, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
Elisha Gresham, proceeding pro se, appeals a magistrate
judge’s order affirming the Social Security Administration (“SSA”)
Commissioner’s decision denying her application for disability
insurance benefits (“DIB”) under
42 U.S.C. § 405(g). 1 She raises
several issues on appeal, but only one of these issues is preserved
for review—whether the administrative law judge (“ALJ”) properly
weighed the medical opinion evidence. 2 After careful review, we
affirm.
1 Gresham consented to the magistrate judge conducting all proceedings in
the district court and issuing the final order.
2 Gresham raises a number of issues for the first time on appeal. Specifically,
she asserts that (1) she cannot do the jobs the ALJ found existed for someone
with her limitations in the national economy; (2) the ALJ ignored that she was
terminated from her last job because she was never medically cleared to return
to work and she routinely missed work for doctor’s appointments; (3) the ALJ
omitted and failed to consider the vocational expert’s written report; (4) the
ALJ created a conflict of interest by asking Dr. Meltzer to review her file; and
(5) the magistrate judge who issued the order was not the same one who
presided over an earlier case conference in the underlying proceedings, which
calls into question the validity of the underlying order. We decline to consider
these issues as she raises them for the first time on appeal. See Access Now, Inc.
v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has
repeatedly held that an issue not raised in the district court and raised for the
first time in an appeal will not be considered by this court.” (quotation
omitted)); Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999) (declining to
consider an issue raised before the district court and presented for the first time
on appeal in a social security case); Kelley v. Apfel,
185 F.3d 1211, 1215 (11th Cir.
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22-13807 Opinion of the Court 3
I. Background
In August 2015, at age 47, Gresham applied for DIB,
asserting that she was unable to work due to disabling conditions,
that started on May 20, 2015, including “spinal bifida, sciatica, [a]
stroke [in the] last year, high blood pressure, depression, work and
medical related stress, obesity, and right knee problems.” An
agency consultant for the state reviewed the medical records
Gresham submitted 3 and opined that she was not disabled. She
sought reconsideration, and a second agency consultant conducted
an independent review and similarly concluded that Gresham was
not disabled. Accordingly, the agency denied her application at the
reconsideration level.
Thereafter, Gresham requested and received a hearing
before an ALJ. Initially, the ALJ denied her application. Thereafter,
the Appeals Council granted Gresham’s request for review and
remanded the case to the ALJ for further development of the
record on certain issues. On remand, the agency’s Office of
1999) (declining to reach appellant’s argument that the ALJ should not have
relied on the vocational expert’s testimony because the appellant failed to raise
the argument “before the administrative agency or the district court”).
3
Gresham submitted records from her primary care physician, Dr. David
Krasner, along with records from several other medical entities where she
received treatment for various conditions. These records are discussed in
detail later in the opinion.
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4 Opinion of the Court 22-13807
Hearing Operations ordered a second hearing, at which Gresham
proceeded pro se. 4
A. The Relevant Medical Evidence
The relevant medical evidence before the ALJ at the time of
the second hearing was as follows. 5 Gresham’s medical records
from her primary care physician, Dr. David Krasner, revealed that
she had a history of high blood pressure, obesity, transient ischemic
attacks (“TIA”), and anxiety, and that she was prediabetic.
In December 2014, Gresham experienced pain in her right
knee for several weeks. Imaging of the knee identified no
abnormalities and that the knee was “normal.” On January 19,
2015, Gresham visited “First State Orthopaedics,” complaining of
continued right knee pain. She described the pain, which was
aggravated by physical activity, as “aching, piercing and sharp.”
She also reported a history of left-side sciatica. Dr. Michael Axe
aspirated her knee, gave her an injection to help with the knee pain,
and ordered physical therapy for both her knee pain and sciatica.
Dr. Axe also completed an “ADA Medical Questionnaire” stating
Gresham had leg pain and required a desk job with the
accommodation of being allowed to get up, stretch, and walk
“every hour or two” to relieve the pain. Dr. Axe identified
4 A different ALJ presided over this second hearing.
5 In addition to the medical records, Gresham submitted three letters from her
family, all dated in September 2019, in which they talked about the pain she
experienced and the difficulty she had completing tasks.
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22-13807 Opinion of the Court 5
Gresham’s limitations as temporary and he expected the duration
to be six months or less.
On February 5, 2015, at a general medical exam with her
primary care physician, Dr. Krasner, Gresham reported that she felt
“well with minor complaints” and had a “good energy level.” She
denied being in any pain. Dr. Krasner’s exam indicated that her
musculoskeletal system had normal strength and tone.
That same day, Gresham began physical therapy, and she
continued therapy throughout the month of February for a total of
nine sessions. Initially, she reported lower back pain that radiated
down her left side and right knee pain. She also reported difficulty
lifting objects, sitting or standing for more than one hour, and
walking. She indicated that she could perform most of her job
duties and home activities, but pain prevented her from doing the
more physically demanding tasks. At her second, third, and fourth
physical therapy sessions, Gresham reported her back was fine with
no pain and significant improvement in her right knee. At her fifth
and sixth visit, however, she indicated some lower back pain from
sitting. On her seventh visit, she reported her back was feeling
better, but she indicated that she continued to have right knee pain.
At her eighth visit, she reported feeling better and that she believed
she was “ready to go to a gym and continue this on [her] own.” At
her ninth and final visit on March 4, 2015, the progress notes
indicated that “Gresham ha[d] gained range of motion and strength
in both of her knees and her complaints of back pain [were]
infrequent.” The progress notes further indicated that she still
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6 Opinion of the Court 22-13807
experienced pain with weightbearing activities. Because her back
pain worsened with increased sitting, the therapist recommended
that Gresham rise hourly and do extension exercises, as well as
continue her strengthening work on her own.
Meanwhile, on February 27, 2015, Dr. Axe (from First State
Orthopaedics) completed a Family Medical Leave Act (“FMLA”)
form for Gresham, in which he indicated that she would need to
work on a reduced schedule because of her medical condition. 6
However, he left blank the section for estimating the treatment
schedule and did not specify any reduced set of hours Gresham
should work. He also indicated that if Gresham had a flare-up, it
would prevent her from performing her job functions.
On May 4, 2015, Gresham returned to First State
Orthopaedics for a follow-up concerning her right knee. Dr. Axe
found that Gresham’s “knee [had] resolved nicely with therapy,”
and that she had good reflexes and no gross instability. He
concluded that her current problem was her back—an issue for
which she would see a different doctor—and that he no longer
needed to see her for the knee issue.
That same day, Gresham saw Dr. Krasner for radiating
“back pain [that] has been occurring in an intermittent pattern for
6 In March 2015, Gresham requested Dr. Krasner’s assistance with FMLA
forms “due to stress at work.” At that time, she reported feeling well, sleeping
well, and having good energy levels, but that she also had back and joint pain.
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22-13807 Opinion of the Court 7
years.” She also reported fatigue, neck pain and stiffness, back and
joint pain, and paresthesia (tingling/numbness) in her legs. She
indicated that the back pain was “aggravated by bending, twisting,
lifting, sitting, standing and walking,” and was relieved by bed rest,
elevating her legs, taking Tylenol, applying heat or ice, and physical
therapy. Upon a physical examination, Dr. Krasner noted no leg
weakness but observed tenderness, spasms, and decreased range of
motion in “L/S areas” of the spine and tenderness in Gresham’s left
hip. He diagnosed her with sciatica and prescribed her physical
therapy. He also noted that Gresham “decline[d] injections due to
[a history of] spina bifida.” He instructed her to avoid pushing,
pulling, and lifting anything over 10 pounds for the next six
months. Dr. Krasner gave Gresham a sick note, indicating that she
could return to work on May 6, 2015.
Three days later, on May 7, 2015, Dr. Krasner completed an
FMLA form for Gresham, stating that she had “sciatica [and]
difficulty walking,” which had existed from September 1998 to
present, and that these conditions would require absences from
work during flare-ups, limited activity, and bedrest. He noted that
Gresham could not “lift, push or pull objects over 10 [pounds]” and
“may not be able to perform [her] job comfortably during flare-
ups.” He wrote that Gresham’s condition would worsen with “fast
pace or quick [and] sudden physical movement” and that she
should avoid those type of movements during a flare-up. He also
stated that Gresham should not “over exert” herself and should rest
as much as possible during flare-ups, including lying “flat [with]
leg[s] [and] back elevated.” In terms of leave needed from her job,
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8 Opinion of the Court 22-13807
Dr. Krasner indicated that she would require intermittent leave as
needed.
On May 20, 2015, Gresham returned to Dr. Krasner for a
“recheck” of her back pain. Gresham reported that the pain in her
lower back had increased in frequency and intensity “due to stress
at work.” She maintained that the pain was “aggravated by
bending, twisting, lifting, sitting, standing and walking” and
relieved by bed rest, changing positions, medication, the
application of heat and ice, and both massage and physical therapy.
Dr. Krasner’s examination revealed tenderness, spasm, and
decreased range of motion in the lumbar sacral area. Dr. Krasner
again diagnosed Gresham with sciatica and ordered physical
therapy. He further noted that Gresham indicated that the stress
at work caused her back pain and that she wanted to take “a leave
of absence” until July 8, 2015. Dr. Krasner indicated that she should
“see [him] prior to then.” 7
Gresham returned to physical therapy on May 27, 2015,
reporting back, left leg, and buttock pain. Gresham attended eight
therapy sessions between May 27, 2015 and July 22, 2015, during
which she indicated she made some progress, although still
7 The next day, Dr. Krasner filled out FMLA paperwork stating that Gresham
would need leave from work until July 18, 2015, due to sciatica and “stress”
and would need “good ergonomics and the freedom to move around during
the work day” once she returned. A few weeks later, Dr. Krasner also
completed short term disability paperwork indicating that Gresham was
temporarily unable to work due to sciatica and stress at work with an expected
return to work date of July 8, 2015.
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22-13807 Opinion of the Court 9
experienced some occasional pain, particularly after doing
housework, standing for an extended period of time, and going to
the beach. On her final visit on July 22, 2015, however, Gresham
reported feeling better with no back pain and that her doctor felt
that she was ready to be discharged.
Meanwhile, Gresham saw Dr. Krasner on July 1, 2015, for “a
recheck of [s]tress” stemming from her job. At that time, she did
not report any back pain and denied any joint pain or muscle
cramps. Dr. Krasner’s physical examination revealed “mild
tenderness” in the lumbar region. 8 Dr. Krasner saw Gresham again
on July 21, 2015, for another “recheck of [s]tress.” At that time, his
progress notes indicated that Gresham “stated that ‘she fe[lt]
‘physically’ better, but [she was] still anxious about returning to
work on an emotional level’” and she wanted additional leave until
September 21, 2015.
As noted previously, Gresham applied for DIB benefits on
August 18, 2015. That same day, she saw Dr. Krasner complaining
of back pain. At that time, Gresham self-reported that she had
spina bifida and that she was diagnosed with spina bifida in 1988–
1989 when she was 21 years old. Dr. Krasner’s notes indicated that
the medical files related to that diagnosis had been requested in
8 The next day, Dr. Krasner completed additional FMLA paperwork indicating
that Gresham was temporarily unable to work due to sciatica, stress at work,
and a “sprain/strain” in the lumbar region of her back. He indicated that she
would be incapacitated until August 2, 2015, and that she would require “good
ergonomics” and “the freedom to move around during the work day once she
return[ed]” to work.
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10 Opinion of the Court 22-13807
order to confirm the diagnosis. Dr. Krasner also ordered x-rays of
Gresham’s spine. An x-ray showed Gresham’s spine was of normal
height and alignment. No “vertebral anomal[ies]” were present.
Mild degenerative changes were noted in the lumbar region, as
well as a “questionable small linear lucency at the midline S1
[vertebrae] possibly from artifact or from spina bifida occulta,
which is typically of no clinical significance.” 9
Gresham returned to Dr. Krasner’s office on September 15,
2015, reporting back, joint, hip, and muscle pain, as well as “all over
body pain.” Dr. Krasner diagnosed her with “stress at work,” and
his progress notes indicated that Gresham expressed a desire not to
return to work. 10 In November and December 2015, Gresham
returned to Dr. Krasner for assistance in completing disability
forms and to further discuss her back pain, hip pain, and leg
9 Shortly thereafter, Dr. Krasner completed updated short-term disability
paperwork stating that Gresham’s restrictions “[were] psychological not
physical.”
10 That same day, Dr. Krasner wrote a letter certifying that Gresham had “been
under [his] care for work-related stress, and it [was his] opinion that she could
not return to work . . . until further notice.” He stated that “[h]er condition
[was] permanent.” Thereafter, in October 2015, Dr. Krasner completed more
short-term disability paperwork stating that Gresham had ongoing sciatica,
that was aggravated by work stressors; that she had been diagnosed with spina
bifida and therefore surgery was not suggested; and that she could not do
extended sitting, walking, or standing. Although Dr. Krasner saw Gresham in
October 2015 for other medical related issues, she did not report any back pain,
other types of pain, or stress at her October visit.
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22-13807 Opinion of the Court 11
weakness. 11 While Dr. Krasner’s treatment notes measured her
vitals, they did not discuss an examination or make any objective
findings. 12
Gresham’s employer, the State of Delaware, terminated her
employment in January 2016. The State also denied her
unemployment benefits, as she did not certify that she was ready
and able to work.
In February 2016, Dr. Krasner opined that Gresham could
return to work part-time with limitations. Specifically, Dr. Krasner
stated that Gresham could work for no more than 25-hours per
week with no lifting, no bending, no squatting, no pulling/pushing
heavy items, no steps, no extended sitting, no extended standing,
no extended driving or traveling, and “flexibility to accommodate
[her] condition as needed.”
That same month, Gresham saw Dr. David Sowa, at First
State Orthopaedics for a mass on her left wrist causing wrist pain,
as well as radiating neck pain. An x-ray of her cervical spine
showed a small bone spur at one vertebra, but “no significant
11 At her December visit, Gresham also complained of headaches and neck
pain.
12 At that time, Dr. Krasner completed updated short-term disability forms for
Gresham. Notably, Dr. Krasner opined that Gresham’s “sciatica [was] not
preventing her from returning to work. It’s the stress.” Gresham also
obtained a note from psychologist, Dr. Mary Kennedy, who had seen Gresham
four times between April and November 2015. She opined that due to
Gresham’s psychological distress and self-reported “continuing medical
problems,” Gresham should not return to work.
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12 Opinion of the Court 22-13807
abnormalities.” She received a referral for physical therapy for the
neck pain. At a follow-up visit in April 2016, following additional
testing, Dr. Sowa noted that Gresham had “persistent
deQuervain’s tenosynovitis of her left wrist” and scheduled out-
patient surgery for the wrist. 13 He referred her to a spine center for
her neck issues.
In March 2016, in connection with her DIB application,
Gresham was examined by SSA’s consultative examiner, Dr. Irwin
Lifrak. At that time, Gresham’s chief complaints were back pain
radiating to both of her hips and legs, hypertension, neck pain
radiating to both of her shoulders and arms, and depression. Dr.
Lifrak found that Gresham was adequately developed and
nourished, was in no acute distress, and walked without an assistive
device “with a minimal degree of limp favoring the left [side].” Her
extremities, including her legs, had full muscle strength and tone,
and intact reflexes and sensation, but she had paravertebral spasms
and reduced range of motion in her lumbar spine and hips. Dr.
Lifrak’s diagnostic impression was that Gresham had
“[d]egenerative joint disease” with possible disc damage,
hypertension that was under control at the time of the
examination, and depression. He determined that within an eight-
hour day with customary breaks and without any assistive device
Gresham could perform activities requiring her to walk, either
13 Following the wrist surgery, Gresham had limited range of motion in her
left wrist and sensitivity at the scar site. Dr. Sowa recommended hand
therapy.
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22-13807 Opinion of the Court 13
indoors or outdoors; climb stairs; sit for a total of six hours out of
an eight-hour day; stand for a total period of six hours out of an
eight-hour day; and lift weights of up to ten pounds with each hand
on a regular basis.
In September 2016, Gresham returned to Dr. Krasner,
complaining of back pain. His notes indicated that Gresham stated
that she was unable to perform her job duties due to the pain and
she requested that Dr. Krasner give her a letter for her work. Dr.
Krasner wrote a formal medical letter, stating that Gresham was
under his care for sciatica, that she should “avoid excessive
bending, squatting, sitting, and standing,” and that she should not
lift, push, or pull more than 20 pounds. Dr. Krasner’s notes were
similar when Gresham returned in February 2017, complaining of
worsening back pain, pain in her neck, left hip, and left wrist, and
requesting Dr. Krasner “certify that she [was] unable to work.” Dr.
Krasner ordered an MRI of Gresham’s lumbar spine, an x-ray of her
cervical spine, and physical therapy. He also completed paperwork
stating that Gresham was expected to be unable to work for 6 to 9
months due to her sciatica, cervical pain, and lumbar pain. The x-
ray of Gresham’s cervical spine revealed some straightening, which
was “nonspecific” and “often associated with muscle spasms.” No
other abnormalities were observed. The MRI of the spine revealed
that the alignment was normal, but there was mild joint
arthropathy in the lumbar region.
In March 2017, Gresham resumed physical therapy,
reporting her back pain level as a 7 out of 10, and a 10 out of 10 on
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14 Opinion of the Court 22-13807
bad days. Although she continued to report some back pain
throughout the course of her six-week treatment, she self-reported
some improvements in her back pain and demonstrated improved
functionality.
On April 26, 2017, Gresham returned to Dr. Krasner for a
recheck of her back pain and stress. In terms of her back pain,
Gresham indicated that physical therapy helped the pain (which
she rated as a 3 out of 10) and that she was interested in getting a
transcutaneous electrical nerve stimulation (“TENS”) unit, which
is a medical device that sends low-voltage electric currents to
nerves and helps with pain. She reported that her stress, however,
had been increasing. Dr. Krasner again diagnosed her with sciatica
and prescribed additional physical therapy. 14
Gresham returned to physical therapy a few months later in
July 2017, reporting a resting back pain level of 3 out of 10, and a
10 out of 10 with physical activity. During the course of her
treatment between July 27 and October 9, 2017, Gresham gradually
14 Approximately a week later, Gresham went to the emergency room for left
hip and groin pain, but imaging of her pelvis and left hip revealed “no evidence
of acute fracture or dislocation,” and “no evidence of any arthritic changes.”
The emergency room physician noted that Gresham’s pain was “suggestive of
suspect musculoskeletal etiology,” such as a “muscle strain, tendinitis, or
injury” and “less consistent with sciatica or [a] lumbar source.” A few days
after her emergency room visit, Gresham returned to Dr. Krasner for the left
hip pain, rating it as a 5 out of 10. Dr. Krasner’s notes indicated that, at that
time, Gresham indicated that she “want[e]d to hold off on [physical therapy.”
Dr. Krasner referred her to an orthopedic surgeon for the hip pain and
prescribed some medication.
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22-13807 Opinion of the Court 15
reported improvement in her symptoms. Although at times
Gresham indicated she felt worse, particularly after weekend
activities such as “walking in Ocean City” or doing “a lot of”
shopping, cooking, and cleaning. The physical therapist’s
assessments indicated that Gresham showed an improvement in
her range of motion and functional limitations.
On September 6, 2017, Gresham visited Dr. Anne Mack,
M.D., based on a referral from Dr. Krasner for lower back pain and
hip pain, which she rated as an 8 out of 10. 15 On examination, Dr.
Mack noted that Gresham had a reduced range of motion in the
cervical and lumbosacral areas of the spine, and a normal range of
motion in the thoracic area of the spine. Gresham also had full
range of motion and strength in her extremities. Dr. Mack
recommended that Gresham continue with physical therapy.
On September 18, Dr. Krasner completed a document
entitled “Treating Source Statement—Physical Conditions” related
to Gresham’s disability claim in which he opined that Gresham
likely would be off task for more than 25% of a typical workday
and miss more than four days of work per month as a result of her
ailments, which included “sciatica, severe stress, left hip pain, spinal
dysplasia, [and] TIA.” Dr. Krasner further opined that Gresham
could continuously lift or carry items lighter than 10 pounds; could
frequently lift or carry items that were 10 pounds; could never lift
or carry items 20 pounds or heavier; could sit, stand, and walk for
15 Notably, on this same day, Gresham had a physical therapy visit at which
she reported “feeling better” and that he was “starting to feel better overall.”
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16 Opinion of the Court 22-13807
only 1 hour in an 8-hour workday; required the option to sit/stand
at will; and occasionally required the use of a cane or other assistive
device. He indicated that Gresham could occasionally reach
overhead and push/pull; frequently reach in all other directions;
continuously perform handling, fingering, and feeling;
continuously use foot controls; never balance, crawl, or climb
ladders; rarely climb stairs and ramps, stoop, kneel, or crouch; and
could frequently rotate her head and neck. Turning to
environmental limitations, Dr. Krasner stated that Gresham could
never be around unprotected heights, moving mechanical parts,
dust/odors/fumes/pulmonary irritants, and extreme cold;
occasionally be around humidity, wetness, extreme heat, and
vibrations; and could frequently operate a vehicle.
On October 6, 2017, Gresham returned to Dr. Mack,
reporting lower back and hip pain with radiating pain down her
legs. She described the pain as “moderate” and “constant,” rating
it as a 6 out of 10. Upon examination, Gresham again had
decreased range of motion in her cervical and lumbosacral areas of
the spine and a full range of motion in her extremities. She also
exhibited pain in her left ankle with certain movements. Dr. Mack
ordered an x-ray of the ankle, which did not reveal any abnormal
findings. She recommended that Gresham return for a recheck in
approximately 6 weeks.
Three days later, on October 9, 2017, Gresham completed
her last physical therapy visit. During this visit, Gresham reported
that she felt “about 40% better,” and she rated her back pain a 2 out
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22-13807 Opinion of the Court 17
of 10 at rest, and a 7 out of 10 during activity. The physical therapist
reported that Gresham had “shown objective improvement with
lumbar [range of motion] and subjectively report[ed] improvement
with functional activities and independent management of
symptoms. She [also] present[ed] with improvement in gait
mechanics with no noted deficits pre and post session.”
Two days later, Gresham saw Dr. Krasner for a pre-op
evaluation related to a scheduled hysterectomy. 16 Dr. Krasner
noted that Gresham reported “feel[ing] well with minor
complaints” and that she was not currently in pain. As part of the
physical examination, he noted that her gait and posture were
normal and that she was not in any acute distress.
In March 2018, Dr. Mack ordered an MRI of Gresham’s
lumbar spine. The MRI indicated that Gresham had “[l]ower
lumbar degenerative disc disease and facet arthritis” with
“moderate to severe bilateral foraminal stenosis” and a disc bulge
abutting a nerve root in the lower lumbosacral region of the spine.
In April 2018, shortly before her hysterectomy, Gresham
returned to Dr. Krasner’s office seeking help with completing
disability related forms. At that time, she reported “feel[ing] well
16 Gresham needed a hysterectomy to resolve issues related to numerous
fibroids, which doctors also thought could possibly be contributing to her back
pain. The surgery, however, was delayed, and Gresham had a second pre-op
evaluation performed in March 2018, that included nearly identical findings.
The medical records indicate that the hysterectomy was performed
successfully in mid-April 2018.
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18 Opinion of the Court 22-13807
with no complaints,” “sleeping well,” and “ha[ving] [a] good
energy level.” She denied currently being in pain. Gresham
indicated to the nurse practitioner in Dr. Krasner’s office that she
“needed [a] permanent disability form for her back” and that Dr.
Mack told her that the MRI revealed arthritis in her neck. The
nurse practitioner’s physical examination indicated that Gresham
had full range of motion in her neck with some discomfort. She
instructed Gresham to consult with Dr. Mack about the disability
forms.
In October 2018, Gresham again visited Dr. Mack for pain in
her lower back, hip, and left knee. She reported the back pain as
an 8 out of 10. On examination, Dr. Mack noted a reduced range
of motion in Gresham’s cervical and lumbar spine, an antalgic gait,
evidence of swelling in the knee, and a full range of motion in the
ankle (but accompanied by pain), but otherwise no abnormalities,
noting full strength in all muscles. 17 She ordered a CT scan of
Gresham’s lumbar spine, x-rays of her left knee and right foot, and
a straight cane due to knee pain. The CT scan confirmed
“[d]egenerative changes” of Gresham’s lumbar spine at two levels.
In June 2019, Gresham had an operation to treat a hernia. In
August 2019, Dr. Wynn, the surgeon who treated Gresham for the
hernia, opined that Gresham could not return to work until
September 23, 2019, and when she returned she could not push,
17 Subsequent examinations performed by Dr. Mack in November 2018,
August 2019, September 2019, and October 2019 contained substantially
similar results to that of the October 2018 examination.
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22-13807 Opinion of the Court 19
pull, or lift anything over 10 pounds. Dr. Wynn lifted these
restrictions in late September 2019, stating that Gresham was
allowed “to perform normal duties up to her capacity.”
In October 2019, an unnamed individual at Thrive Physical
Therapy completed a one-time “Functional Assessment Report”
for Gresham’s disability application. The report indicated that
Gresham experienced right knee and lower back pain with all of
the physical function tests, but that it was difficult to fully assess
her abilities and strengths or barriers to her ability to work due to
restrictions that she was under from hernia surgery. In terms of
Gresham’s ability to work, the report indicated that the “[o]nly
option that would work per discussion with client is part time light
duty with a flexible schedule that [could] allow for frequent call
outs for doctors visits or if having a bad day with pain or
limitations.” The therapist recommended that Gresham could
perform “[p]art time light duty” work. The report further opined
that Gresham could occasionally stand or walk; could constantly
sit; rarely lift any weight less than 10 pounds; never lift any weight
more than 10 pounds; frequently use her arms and hands; would
never need to recline or elevate feet; could never crouch or climb
a ladder; could rarely bend, walk, kneel or crouch; and occasionally
stand, sit, or work while standing.
Finally, records indicated that in November 2019, Gresham
applied for a handicap parking placard, and Lindsay Kelly, a family
nurse practitioner, completed the necessary forms, certifying that
Gresham could not walk more than 200 feet without stopping for
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20 Opinion of the Court 22-13807
rest and required a cane as an assistive device, and that Gresham
had no prognosis for improvement.
B. Testimony Before the ALJ
At the second hearing on her disability application, Gresham
provided testimony concerning her prior occupations and her
physical ailments and associated pain. Regarding her prior
occupations, she previously worked as a behavioral therapist for
mentally and physically disabled residents in a group home. Next,
she worked as a preschool teacher, which involved writing up
various lesson plans and reports. Then she worked as a customer
service representative in the collections department of a financial
company for a year, which involved mainly “sit down” work.
Finally, she worked as an administrator (and later as the purchasing
services coordinator) in the procurement unit of a state agency in
Delaware, where she was responsible for a wide variety of
administrative tasks and frequently traveled between offices. In
this role, she was responsible for handling phones, transporting
large boxes of documents weighing over 20 pounds, and writing
and editing contracts.
Turning to her impairments, Gresham testified that, in May
2015, she became disabled after she experienced “a stress
breakdown and the pain became intolerant to where [she]
could . . . barely move [her] left leg.” She also suffered “memory
setbacks” around this time. Gresham explained that she had been
using a cane prescribed by Dr. Mack as a mobility assistive device
for the last year. She stated that she lived with her husband and
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22-13807 Opinion of the Court 21
her two daughters, ages 26 and 17, and that they helped her cook
and do things around the house like cleaning and laundry. She
explained that sometimes she gets “the tinglys” in her legs and that
pain medications, her TENS unit, physical therapy, massages and a
heating pad helps. She confirmed that she had never had any
surgery on her back and that she was still recovering from the
hernia repair.
When asked to describe the problems that have prevented
her from working since 2015, Gresham stated it was: her constant
back, right knee, and ankle pain; hip pain for which she went to the
emergency room in 2017; her hysterectomy, during which
cancerous cells were discovered and removed successfully; neck
issues that developed in 2018; shoulder pain; and her hernia. She
explained that, in 2016, she felt capable of at least doing part-time
work, and she completed 200 job applications, but was unable to
find work. She stated that she also suffers from TIA strokes, high
blood pressure, and diabetes.
A vocational expert (“VE”) then testified in response to three
hypotheticals from the ALJ. The ALJ’s first hypothetical involved
an individual of Gresham’s age and skills who could occasionally
lift 20 pounds; frequently lift 10 pounds; stand or walk for six hours
out of an eight-hour workday; sit for six hours out of an eight-hour
workday; frequently climb ramps and stairs; occasionally climb
ladders, ropes, and scaffolds; frequently balance; occasionally
stoop, kneel, crouch, and crawl; and tolerate occasional exposure
to vibration and hazards. The VE testified that a person with these
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22 Opinion of the Court 22-13807
limitations could perform three of Gresham’s prior jobs, namely,
her work as a purchasing agent, secretary, and collection clerk.
Additionally, the VE testified that the hypothetical individual could
work as a file clerk, as a general clerk, or in a wide range of
sedentary positions available in the national economy.
The ALJ next reduced the lift limit to 10 pounds and the time
standing or walking to two hours out of an eight-hour day, keeping
the remainder of the limitations the same. The VE testified that
such an individual could perform two of Gresham’s prior jobs,
namely, that of a collection clerk and secretary. The VE further
testified that such limitations would limit an individual to
sedentary work, identifying a data entry clerk, an information
clerk, and a data clerk as additional positions such a person could
fill.
For the third and final hypothetical, the ALJ added to the
limitations that the individual would require a cane to balance and
would be off-task 25 percent of the workday. The VE testified that
such an individual could not perform any of Gresham’s prior
positions or any other position in the workforce. The ALJ then
removed the limitation of being off-task for 25 percent of the
workday, but still required the use of a cane. The VE testified that
such an individual would be able to perform the same positions
identified in the second hypothetical.
Finally, at the request of Gresham, the VE next considered
an individual with the same limitations who needed to miss work
on average four days a month due to an ailment or to see a doctor.
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22-13807 Opinion of the Court 23
The VE testified that such a limitation would be work preclusive,
even if further limited to only missing part of the day once a month
for a doctor’s appointment.
Gresham then explained that “it’s not that [she] can’t do
work,” she just needs flexibility. The ALJ explained that because
Gresham had various ailments, he was going to have an
independent doctor review Gresham’s complete file, look at
everything collectively, and then write up a report. The ALJ would
then review that report along with all the other evidence in the
record and make a determination.
C. Post-Hearing Evidence
In February 2020, at the request of the ALJ, Dr. Seth Meltzer
reviewed Gresham’s file. Dr. Meltzer identified Gresham as
suffering from the following impairments: sciatica, DeQuervian’s
tenosynovitis, stroke, and hypertension. He then explained that
none of these impairments met or equaled any impairment in the
agency’s Listing of Impairments. 18
He next opined that, with her ailments, Gresham could
continuously lift or carry up to 10 pounds; frequently lift or carry
up to 20 pounds; occasionally carry, but never lift between 20 and
50 pounds; sit two hours at a time and up to four hours per
18 In particular, he explained that Gresham’s back issues did not meet the
listing of impairments for disorders of the spine because although the MRI
showed evidence of facet arthritis, degenerative disc disease, and stenosis in
the lumbar region, “there [was] no evidence of neuroanatomic motor loss,
motor weakness, loss of reflex, or positive SLR.”
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24 Opinion of the Court 22-13807
workday; stand and walk for 30 minutes at a time and up to two
hours per workday. Dr. Meltzer further opined that Gresham
could frequently reach, handle, finger, feel, push, and pull;
continuously use foot controls; occasionally climb stairs, ramps,
ladders, and scaffolds; frequently balance; never stoop, kneel,
crouch, or crawl; occasionally be exposed to heights and moving
mechanical parts; and be exposed to very loud noises. Meltzer
cited to specific documents in the record in support of his findings. 19
Following the second hearing, Gresham submitted
additional medical evidence, which included a cardiologist report
from January 2020 that stated that Gresham reported feeling great
with no back or joint pain. Upon examining Gresham, the
cardiologist reported that her extremities, motor strength, and
reflexes were normal. And a February 2020 “medical statement of
ability to do work-related activities” from a nurse practitioner in
Dr. Krasner’s office, indicated that, due to a history of “spinal
dysplasia, TIA[,] [and] arthritis,” Gresham had the following
physical limitations: she could frequently lift or carry up to 10
19 After Dr. Meltzer completed his report, the ALJ requested that the VE
complete an updated interrogatory on Gresham’s ability to work. The
interrogatory asked the VE to consider whether a hypothetical person of
Gresham’s age, education, and skill, could perform any of her prior positions
or other positions in the workplace if they had limitations identical to those
found by Dr. Meltzer. The VE certified that such an individual could perform
two of the Gresham’s prior positions, namely, a purchasing agent and an
administrative assistant. The VE also certified that such an individual could
perform as a general clerk, administrative clerk, purchasing clerk, receptionist,
payroll clerk, router, fingerprint clerk, or microfilm mounter.
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22-13807 Opinion of the Court 25
pounds; occasionally lift or carry up to 20 pounds; sit for one hour
at a time and up to eight hours a day; stand for less than 5 minutes
at a time and up to 1 hour in a day; walk for less than 30 minutes
and up to 1 hour in a day; required a cane to ambulate; could
occasionally reach with her hands; could continuously handle,
finger, feel, and push/pull with each hand; could continuously
operate foot controls; could never climb stairs, ramps, ladders, or
scaffolds; could never balance, stoop, kneel, crouch, or crawl; could
never be exposed to unprotected heights, moving mechanical
parts, humidity/wetness, dust, odors, fumes, pulmonary gases,
extreme cold, extreme heat, or vibrations; could occasionally
operate a motor vehicle; and could be exposed to moderate noise
levels. The nurse practitioner further opined that Gresham’s
impairments met or equaled an impairment on the agency’s Listing
of Impairments, though she did not specify which one or ones were
met and did not specify any evidence that supported this finding.
D. The ALJ’s Decision
Employing the SSA’s five-step sequential evaluation process
for determining whether a claimant is disabled, the ALJ denied
Gresham’s application. 20 The ALJ found that Gresham had not
20
The evaluation process involves the following five determination steps:
(1) whether the claimant is engaged in substantial gainful activity; (2) if not,
whether she “has a severe impairment or combination of impairments”; (3) if
so, whether that impairment, or combination of impairments, meets or equals
the medical listings in the regulations; (4) if not, whether the claimant can
perform her past relevant work in light of her RFC; and (5) if not, whether,
based on her age, education, and work experience, she can perform other
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26 Opinion of the Court 22-13807
engaged in substantial gainful activity since May 20, 2015, and was
severely impaired from “obesity, degenerative disc disease of the
lumbar spine, and left DeQuervain’s tenosynovitis.” At step three,
the ALJ determined that Gresham’s impairments did not meet or
medically equal any listed impairment under the relevant Social
Security regulations. 21 At step four, the ALJ then determined that
Gresham had:
the residual functional capacity to perform light work
as defined in 20 CFR [§] 404.1567(b) except she can lift
and carry 20 pounds frequently and 50 pounds
occasionally, sit for 2 hours at a time for a total of 4
hours out of an 8-hour workday, stand 30 minutes at
a time for a total of 2 hours out of an 8-hour workday,
and walk 30 minutes at a time for a total of 2 hours in
an 8-hour workday. The claimant can frequently
reach in all directions bilaterally with the upper
extremities. She can occasionally climb stairs and
ramps, occasionally climb ladders or scaffolds,
frequently balance, and never stoop, kneel, crouch, or
crawl. The claimant can tolerate occasional exposure
to unprotected heights and moving mechanical parts.
She can tolerate very loud noise.
work found in the national economy. Winschel v. Comm’r of Soc. Sec.,
631 F.3d
1176, 1178 (11th Cir. 2011).
21
A claimant bears the burden of showing her impairments meet or equal a
listing. Barron v. Sullivan,
924 F.2d 227, 229 (11th Cir. 1991).
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22-13807 Opinion of the Court 27
In reaching this conclusion, the ALJ found that Gresham’s
medically determinable impairments could reasonably be expected
to cause the alleged symptoms, but that Gresham’s “statements
concerning the intensity, persistence and limiting effects of [her]
symptoms [were] not entirely consistent with the medical evidence
and other evidence in the record.” For instance, the ALJ noted that
the objective evidence in the record indicated that Gresham’s back
issues improved with physical therapy and she frequently reported
feeling better, such that Gresham’s “allegations of disabling
symptoms and limitations are inconsistent with and unsupported
by the evidence.”
As for the medical opinion evidence, the ALJ gave little to
no weight to the opinions provided by Dr. Krasner, Dr. Wynn, Dr.
Lifrak, and the Thrive Physical Therapy Functional Assessment
Report. The ALJ explained that Dr. Krasner’s opinions as to
Gresham’s limitations and her inability to work were not
supported by the objective medical evidence or constituted
findings on an issue reserved to the Commissioner. Similarly, “the
evidence as a whole, including the physical examination findings,
[did] not support such restrictive limitations” as those indicated in
Dr. Wynn’s medical opinion. The ALJ explained that he gave little
weight to the agency examiner Dr. Lifrak’s 2016 consultative
examination because “the weight of the evidence, including the
mostly normal strength findings, do not support limiting lifting and
carrying to 10 pounds bilaterally.” The ALJ also explained that it
gave little weight to the Functional Assessment Report completed
by Thrive “because the examiner was unable to fully assess
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28 Opinion of the Court 22-13807
[Gresham’s] ability” due to restrictions that Gresham was still
under after her hernia surgery. On the other hand, the ALJ gave
great weight to Dr. Meltzer’s opinion, because he had the
opportunity to review Gresham’s entire file and the RFC he
provided (which the ALJ adopted) was supported by the record.
In light of Gresham’s RFC, the ALJ determined that
Gresham could perform past relevant work as a purchasing agent
and an administrative assistant. Alternatively, the ALJ proceeded
to step five and determined that Gresham could perform other jobs
in the national economy such as a router, fingerprint clerk, and
microfilm mounter. Consequently, the ALJ found that Gresham
was not disabled.
Gresham requested discretionary review of the ALJ’s
decision by the SSA Appeals Council, and her request was denied.
Gresham then obtained counsel and filed a complaint in the district
court, raising two issues: (1) whether the ALJ failed to properly
evaluate and weigh the medical opinion evidence—in particular
the opinions of Dr. Krasner, Dr. Wynn, and Dr. Lifrak, and the
Thrive Physical Therapy Functional Assessment—as required
under “SSA policy and Eleventh Circuit precedent”; and
(2) whether the ALJ and Appeals Council judges were properly
appointed, and, if not, whether remand was necessary. A
magistrate judge, acting on behalf of the district court, affirmed the
ALJ’s decision and rejected Gresham’s appointments challenge.
Gresham, proceeding pro se, appealed the decision.
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22-13807 Opinion of the Court 29
II. Standard of Review
“When, as in this case, the ALJ denies benefits and the
[Appeals Council] denies review, we review the ALJ’s decision as
the Commissioner’s final decision.” Doughty v. Apfel,
245 F.3d 1274,
1278 (11th Cir. 2001). “[W]e review de novo the legal principles
upon which the Commissioner’s decision is based,” and “we
review the resulting decision only to determine whether it is
supported by substantial evidence.” Moore v. Barnhart,
405 F.3d
1208, 1211 (11th Cir. 2005); see also Simon v. Comm’r, Soc. Sec.
Admin.,
7 F.4th 1094, 1103 (11th Cir. 2021) (“Substantial evidence is
less than a preponderance, and thus we must affirm an ALJ’s
decision even in cases where a greater portion of the record seems
to weigh against it.” (quotation omitted)). “We may not decide the
facts anew, reweigh the evidence, or substitute our judgment for
that of the [Commissioner].” Winschel v. Comm’r of Soc. Sec.,
631
F.3d 1176, 1178 (11th Cir. 2011) (alteration in original) (quotation
omitted). “Even if the evidence preponderates against the
Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158–59 (11th Cir. 2004) (quotation omitted).
III. Discussion
Gresham challenges the ALJ’s weighing of medical opinions,
asserting that the ALJ erred in giving more weight to Dr. Meltzer’s
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30 Opinion of the Court 22-13807
opinion than the “independent medical professional experts who
actually worked with [her].” 22
To obtain social security disability benefits, the applicant
must prove she is disabled. See Barnhart v. Thomas,
540 U.S. 20, 21
(2003). “Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.”
42 U.S.C.
§ 423(d)(1)(A). The impairment must be “of such severity that [the
person] is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy.”
Id. § 423(d)(2)(A).
When making the disability assessment, the ALJ must give
special attention to the medical opinions, particularly those of the
treating physician. SSA regulations in force at the time Gresham
filed her application required an ALJ to give “controlling weight”
to a treating physician’s opinion if it was “well-supported by
medically acceptable clinical and laboratory diagnostic techniques”
and “not inconsistent with the other substantial evidence in [the]
22 Gresham does not state to which of the treating “independent medical
professional experts” she is referring. Nevertheless, we assume for purposes
of this opinion that she is referring to the same treating physician opinions that
she took issue with in the district court, namely, those of Dr. Krasner, Dr.
Wynn, and Dr. Lifrak, and the Thrive Physical Therapy Functional
Assessment. Therefore, we focus on those opinions.
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22-13807 Opinion of the Court 31
case record.”
20 C.F.R. § 404.1527(c)(2). 23 Good cause to discount
a treating physician’s opinion exists “when the: (1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion
was conclusory or inconsistent with the doctor’s own medical
records.” Winschel,
631 F.3d at 1179 (quotation omitted).
“[T]he ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor.”
Id. There are
no magic words to state with particularity the weight given to the
medical opinions. Rather, the ALJ must “state with at least some
measure of clarity the grounds for his decision.”
Id. (quotation
omitted). “We will not second guess the ALJ about the weight the
treating physician’s opinion deserves so long as [the ALJ] articulates
a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm’r,
808
F.3d 818, 823 (11th Cir. 2015).
State agency medical consultants, like Dr. Lifrak and Dr.
Meltzer, are considered experts in social security disability
evaluations, and the ALJ must consider and assign weight to their
opinions in the same manner as other medical sources. See
20
C.F.R. §§ 404.1527(e), 404.1513a(b). The weight to be given to a
non-examining physician’s opinion depends on, among other
considerations, the extent to which it is consistent with other
23
In 2017, the SSA amended its regulations and removed the “controlling
weight” requirement for all applications filed after March 27, 2017. See
20
C.F.R. §§ 404.1527, 404.1520c. Because Gresham filed her DIB application in
2015, the former regulations apply.
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32 Opinion of the Court 22-13807
evidence. See
id. § 404.1527(c)(4). When reviewing the report of a
consultative examiner, the ALJ considers whether the report
“provides evidence [that] serves as an adequate basis for
decision-making,” “is internally consistent,” and “is consistent with
the other information available.” Id. § 404.1519p(a)(1)-(3).
In this case, the ALJ provided good cause for not giving
controlling weight to the opinions of Dr. Krasner, Dr. Wynn, Dr.
Lifrak, and the functional assessment prepared by Thrive Physical
Therapy. For instance, the ALJ explained that he gave little to no
weight to Dr. Krasner’s numerous opinions between 2015 and 2020
because Dr. Krasner’s opinions as to Gresham’s limitations and her
inability to work were not supported by the objective medical
evidence. The ALJ’s conclusion is reinforced by the record. Dr.
Krasner’s opinions were not supported by many of the objective
medical findings, including the physical therapy progress reports.
Furthermore, although Dr. Krasner opined in 2020 that Gresham
had impairments that met the agency’s Listing of Impairments and
was therefore disabled, a medical source’s opinion that a claimant
is “disabled” or “unable to work” is not dispositive of a disability
claim because that determination is reserved to the agency.
20
C.F.R. § 404.1527(d)(1); Walker v. Soc. Sec. Admin., Comm’r,
987 F.3d
1333, 1339 (11th Cir. 2021).
Turning to the opinions of Dr. Wynn, the surgeon who
treated Gresham for her hernia, the ALJ explained that he gave
limited weight to Dr. Wynn’s opinion—namely, that Gresham was
unable to work between August and September 2019 and that
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22-13807 Opinion of the Court 33
Gresham should be restricted from pushing, pulling, prolonged
sitting, standing, or walking, and lifting more than 10 pounds—
because the evidence as a whole did not support these restrictive
limitations. Similarly, the ALJ explained that he gave no weight to
Dr. Wynn’s opinion that, as of September 23, 2019, Gresham could
perform her normal duties “up to her capacity” because the
opinion provided no specific functional limitations. Where, as
here, the ALJ provides a specific justification for affording lesser
weight or otherwise discounting a treating physician’s opinion, we
will not second guess the ALJ’s decision. See Hunter,
808 F.3d at
823.
Next, the ALJ provided good cause for giving only limited
weight to the opinion of the consulting doctor, Dr. Lifrak, who
opined in 2016 that Gresham could lift or carry weights of up to 10
pounds and could perform activities requiring her to walk, either
indoors or outdoors; climb stairs; sit for a total of six hours out of
an eight-hour day; stand for a total period of six hours out of an
eight-hour day. 24 Specifically, the ALJ found that the lift and carry
capacity proposed by Lifrak was unsupported by the mostly
normal strength findings in the medical records. The ALJ’s
statement is supported by the collective medical evidence and
24 Notably, aside from the lift/carry restriction, Dr. Lifrak’s restrictions were
less restrictive than those found by the ALJ. Thus, even if the ALJ had given
Dr. Lifrak’s opinion controlling weight, it would not have changed the
outcome.
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34 Opinion of the Court 22-13807
provides good cause for giving only limited weight to Dr. Lifrak’s
opinion.
Likewise, the ALJ explained that he gave limited weight to
the Thrive Physical Therapy Functional Assessment Report which
limited Gresham to part-time light duty work with a flexible
schedule because the unidentified examiner indicated that he or
she was unable to fully assess Gresham’s abilities and limitations
due to restrictions that Gresham was still under from her hernia
surgery. The ALJ’s statement provides good cause for giving the
assessment limited weight, and is consistent with the examiner’s
statement in the report. See Winschel,
631 F.3d at 1179.
Furthermore, the assessment was prepared for purposes of
Gresham’s disability application, and, therefore, it was not a
“treating source” and not entitled to controlling weight. See
20
C.F.R. § 404.1527(a)(2) (“We will not consider an acceptable
medical source to be your treating source if your relationship with
the source is not based on your medical need for treatment or
evaluation, but solely on your need to obtain a report in support of
your claim for disability.”).
Finally, the ALJ explained that he gave great weight to Dr.
Meltzer’s opinion because Dr. Meltzer “had the opportunity to
review [Gresham’s] entire file” and he provided an RFC supported
by the objective medical evidence in the record. The ALJ’s
statement is supported by substantial evidence in the record.
Accordingly, the ALJ provided specific justifications for
giving less than controlling weight to Gresham’s the challenged
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22-13807 Opinion of the Court 35
opinions and for giving greater weight to Dr. Meltzer’s opinion.
Thus, the ALJ satisfied the good cause standard, and we will not
second guess the ALJ’s decision. See Hunter,
808 F.3d at 823; see also
Crawford,
363 F.3d at 1158–59 (“Even if the evidence preponderates
against the Commissioner’s findings, we must affirm if the decision
reached is supported by substantial evidence.” (quotation
omitted)). Consequently, we affirm.
AFFIRMED.
