Tracy D. Gray v. Commissioner of the Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11314
Non-Argument Calendar
____________________
TRACY D. GRAY,
Plaintiff-Appellant,
versus
COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
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2 Opinion of the Court 22-11314
D.C. Docket No. 1:20-cv-00196-TQL
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Before R OSENBAUM, JILL PRYOR and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Tracy Gray appeals the district court’s affirmance
of the Social Security Administration’s (“SSA”) denial of his claim
for disability insurance benefits (“DIB”) and supplemental security
income benefits (“SSI”). He argues that, in assessing his residual
functional capacity (“RFC”), the Administrative Law Judge (“ALJ”)
erred by applying the incorrect standard in rejecting his subjective
complaints about the intensity, persistence, and limiting effects of
his symptoms because the ALJ found that his statements were “not
entirely consistent” with other evidence, rather than genuinely in-
consistent. He contends that substantial evidence does not support
the ALJ’s reasons for rejecting his testimony. In his reply brief, he
asserts that the Appeals Council erred in determining that his evi-
dence submitted after the ALJ decision did not relate back to the
period at issue. Having read the parties’ briefs and reviewed the
record, we affirm the district court’s judgment affirming the SSA’s
denial of Gray’s claims.
I.
We review a social security disability case to determine
whether the Commissioner’s decision is supported by substantial
evidence and review
de novo whether the Commissioner applied
the correct legal standards.
Moore v. Barnhart, 405 F.3d 1208, 1211
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22-11314 Opinion of the Court 3
(11th Cir. 2005). “[W]hen the [Appeals Council] has denied review,
we will look only to the evidence actually presented to the ALJ in
determining whether the ALJ’s decision is supported by substantial
evidence.”
Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).
Substantial evidence is any relevant evidence, greater than a
scintilla, that “a reasonable person would accept as adequate to
support a conclusion.”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997). We will not decide the facts anew, make credibility de-
terminations, or reweigh the evidence.
Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Thus, we must af-
firm the ALJ’s decision, even if the evidence may preponderate
against it, so long as it is supported by substantial evidence.
Craw-
ford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004).
A legal claim or argument not addressed in an appellant’s
initial brief is deemed forfeited, and its merits will only be ad-
dressed in extraordinary circumstances.
United States v. Campbell,
26 F.4th 860, 873 (11th Cir. 2022) (
en banc),
petition for cert. de-
nied, No. 21-1468 (U.S. Oct. 3, 2022). We do not consider argu-
ments made for the first time in an appellant’s reply brief.
United
States v. Montenegro, 1 F.4th 940, 944 n.3 (11th Cir. 2021).
II.
To determine whether a claimant is disabled, the ALJ applies
a five-step sequential analysis. 20 C.F.R. § 404.1520(a). This pro-
cess includes an analysis of whether the claimant: (1) is engaged in
substantial gainful activity; (2) has a severe medically determinable
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4 Opinion of the Court 22-11314
impairment or combination of impairments; (3) has such an im-
pairment that meets or equals a listed impairment and meets the
duration requirements; (4) can perform 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.
Id.
§ 404.1520(a)(4)(i)-(v);
Winschel, 631 F.3d at 1178. The claimant’s
RFC is used to determine his capability of performing various des-
ignated levels of work (sedentary, light, medium, heavy, or very
heavy).
See 20 C.F.R. § 416.967. If an ALJ finds a claimant disabled
or not disabled at any given step, the ALJ does not proceed to the
next step.
Id. § 404.1520(a)(4).
The individual seeking social security disability benefits
bears the burden of proving that he is disabled.
Moore, 405 F.3d at
1211. A claimant is disabled if he cannot engage in substantial gain-
ful activity by reason of a medically determinable impairment that
can be expected to result in death, or which has lasted or can be
expected to last for a continuous period of at least 12 months.
42 U.S.C. § 423(d)(1)(A).
To establish a disability based on testimony of pain and
other symptoms, the claimant must show: “(1) evidence of an un-
derlying medical condition; and (2) either (a) objective medical ev-
idence confirming the severity of the alleged [symptoms]; or
(b) that the objectively determined medical condition can reasona-
bly be expected to give rise to the claimed [symptoms].”
Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ must artic-
ulate adequate reasoning for discrediting subjective testimony, and
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22-11314 Opinion of the Court 5
as a matter of law, failure to do so requires that the testimony be
accepted as true.
Id. at 1225. However, we will not disturb a
clearly stated credibility determination that is supported by sub-
stantial evidence.
Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d
780, 782 (11th Cir. 2014).
If the objective medical evidence establishes an impairment
that could be reasonably expected to produce the alleged symp-
toms, the ALJ must evaluate the intensity and persistence of the
claimant’s alleged symptoms. 20 C.F.R. § 404.1529(c)(1). In addi-
tion to “all of the evidence,” ALJs should consider the following
factors when evaluating “the intensity, persistence, and limiting ef-
fects of” a claimant’s symptoms: (1) daily activities; (2) “location,
duration, frequency, and intensity of” symptoms and pain; (3) pre-
cipitating and aggravating factors; (4) “type, dosage, effectiveness,
and side effects of” medications; (5) treatment other than medica-
tion; (6) measures other than treatment to relieve symptoms; and
(7) any other factors concerning his functional limitations.
Id.
§ 404.1529(c)(1), (3)(i)-(vii).
The ALJ must consider whether inconsistencies exist within
the evidence or between the claimant’s statements and the evi-
dence including the claimant’s history, medical signs, and state-
ments by medical sources or other sources about how his symp-
toms affect him.
Id. § 404.1529(c)(4). The ALJ may use symptoms
“to diminish [the claimant’s] capacity for basic work activities to
the extent that [his] alleged functional limitations and restrictions
due to symptoms, such as pain, can reasonably be accepted as
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6 Opinion of the Court 22-11314
consistent with the objective medical evidence and other evi-
dence.”
Id. We have stated that we do not “believe that participa-
tion in everyday activities of short duration, such as housework or
fishing, disqualifies a claimant from disability.”
Lewis, 125 F.3d at
1441.
III.
The record here demonstrates that Gray has forfeited his
challenge to the Appeals Council’s determination that his evidence
submitted after the ALJ decision did not relate back to the period
at issue by raising this issue for the first time in his reply brief. As
such, we need not consider any evidence submitted after February
3, 2020.
The record also demonstrates that the ALJ applied the cor-
rect standard because the ALJ considered Gray’s physical condition
in its entirety, specifically noting his daily activities, medication,
and the objective medical evidence. The ALJ correctly determined
that multiple inconsistencies existed between Gray’s testimony and
other evidence. Further, the ALJ used Gray’s symptoms that were
consistent with the other record evidence to diminish his capacity
through functional limitations and restrictions.
The ALJ also articulated adequate reasons for discrediting
Gray’s subjective testimony. The ALJ provided an overview of
Gray’s representations of his pain before determining that his rep-
resentations of the intensity, persistence, and limiting effects of his
symptoms were “not entirely consistent” with the record. The
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22-11314 Opinion of the Court 7
ALJ provided four explicit reasons for discrediting Gray’s subjective
testimony, including that (1) Gray reported that medication had
been effective in reducing his pain; (2) while he used a cane to aid
in ambulation, Gray had normal strength, sensation, and reflexes;
(3) Gray was independent in matters of personal care, could drive,
and played guitar; and (4) Gray had not required urgent or inpa-
tient care except for short periods following his surgeries.
Wilson,
284 F.3d at 1225. The ALJ’s determination that Gray reported that
medication had been effective in reducing his pain was supported
by Dr. Wolgin’s and Dr. Tsymbalov’s treatment notes that Gray
reported pain relief after steroid injections.
Wilson, 284 F.3d at
1225.
The record indicates that substantial evidence supports the
ALJ’s decision. Accordingly, based on the aforementioned reasons,
we affirm the district court’s judgment affirming the SSA’s denial
of Gray’s social security and disability benefits claims.
AFFIRMED.
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