           Case: 14-15371   Date Filed: 07/09/2015   Page: 1 of 14


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-15371
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-00067-GRJ



WILBERT JOHNSON,

                                                            Plaintiff-Appellant,

                                     versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                           Defendant-Appellee.

                       ________________________

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

                               (July 9, 2015)

Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Wilbert Johnson appeals from the district court’s order affirming the

Commissioner of Social Security’s final decision (Commissioner) to terminate

Johnson’s period of disability, disability insurance benefits, and supplemental

security income due to medical improvement. See 42 U.S.C. § 405(g) (providing

for judicial review of any final decision of the Commissioner after a hearing);

Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998) (“[When] the Appeals

Council denies review, the decision of the ALJ becomes the final decision of the

[Commissioner].” (internal quotation marks omitted)). After careful review of the

parties’ briefs and the record on appeal, we affirm the district court’s order for the

reasons set forth below.

                                          I.

      In 2006, an Administrative Law Judge (ALJ) deemed Johnson disabled as of

February 8, 2004. Upon review of the record before him, the ALJ determined that

Johnson suffered “severe impairments,” including residuals from a prior left-hip

fracture and intractable seizures, all stemming from a March 2004 car accident.

The ALJ found that Johnson’s seizure disorder met the criteria of section 11.03 of

the Listing of Impairments (Listing) because the seizures continued despite a

medication regimen. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 11.00, 11.03.

The ALJ noted that Johnson was a surgical candidate due to the severity of his

disorder and that Johnson testified that his mother had to help him with daily tasks.


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      In January 2011, following a continuing disability review, the Commissioner

determined that Johnson was no longer disabled as of January 1, 2011, due to

medical improvement. Johnson appealed the Commissioner’s termination of his

benefits, and the appeal was denied. Johnson next filed a timely request for a

hearing before an ALJ. An administrative hearing was held on January 11, 2012,

followed by a supplemental hearing held on July 27, 2012.

      To start the January 2012 hearing, Johnson requested an orthopedic

consultative examination of his left hip. The ALJ granted the request before

continuing on with the hearing, during which both Johnson and a Vocational

Expert (VE) testified. Johnson testified at length regarding residual pain in his left

hip, which he measured as an eight out of ten and which he asserted required him

to use a cane two days a week; his depression for which he sought in- and out-

patient treatment; his continued but irregular suffering from “mild seizures” similar

to migraine headaches; and his typical day, which might include going to his

sister’s house, reading, and visiting the grocery store with his mother.

      The VE testified in response to several hypothetical questions from the ALJ

that took into account Johnson’s impairments (including allegedly necessary use of

a cane to ambulate), his age (then thirty-four years old), and his abilities. The VE

determined that, while Johnson was unable to perform his past work (which

included work as a dishwasher, cook helper, and deliverer), there was work in the


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regional or national economy that a person similarly situated to Johnson could

perform. According to the VE, any work performed by Johnson or any person

similarly situated had to be simple, unskilled, and repetitive. The VE offered

examples of such work, including a packer for electronic components, a

surveillance system monitor, and an order clerk for a food service.

      The July 2012 supplemental hearing was held primarily to address the

consultative orthopedic examination previously ordered by the ALJ. Johnson

objected to the resultant orthopedic report because the orthopedist did not perform

an x-ray of Johnson’s left hip. The ALJ overruled Johnson’s objection, pointing to

the fact that the orthopedist had examined Johnson’s left hip and had decided that

an x-ray was unnecessary.

      Johnson and a second VE testified at the July 2012 hearing, which testimony

focused on Johnson’s past relevant work. The VE, after considering Johnson’s

past work and relevant hypotheticals propounded by the ALJ, concluded that,

while Johnson could not perform his past relevant work, there were jobs that

Johnson could perform, such as ticket taker, cashier, and office helper. The VE

conceded that those jobs would be eliminated if the person could not concentrate

for thirty percent of the day due to seizures or was required to use a cane to stand

or walk; however, the VE testified that there were still sedentary jobs that would

enable such a person to work, including an addresser and a document preparer.


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      The ALJ also considered extensive documentary evidence of Johnson’s

medical history, including, among other things, a left temporal lobectomy

performed in July 2007 to alleviate his seizures, management of pain in his right

shoulder between 2009 and 2010, in-patient treatment for depression and alcohol

abuse in December 2010, additional mental health treatment beginning in January

2011, and a few breakthrough seizures that occurred in April and May 2011 when

Johnson tapered off his seizure medication. In July 2010, Johnson’s treating

physician reported that he had been seizure free since April 2009, and Johnson’s

medical records fail to disclose any seizure-related issues after May 2011.

      In the end, the ALJ agreed with the Commissioner, finding that Johnson’s

disability had ceased as of January 1, 2011, due to medical improvement. The ALJ

concluded that Johnson no longer suffered from an impairment or combination of

impairments that met or equaled listed impairments. See 20 C.F.R. Pt. 404, Subpt.

P, App. 1. The ALJ acknowledged that Johnson continued to have physical and

mental impairments, but he found that such impairments had decreased in medical

severity to the point where Johnson could perform certain light work. Johnson’s

request for review of the ALJ’s decision by the Appeals Council was denied, see

Falge, 150 F.3d at 1322, and the instant action followed, see 42 U.S.C. § 405(g).




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                                           II.

      In the case of a final determination as to continuing disability, we review the

decision of the ALJ through the lens of the eight-step analysis required by the

Code of Federal Regulations, see 20 C.F.R. § 404.1594(f), and the general

substantial evidence standard of review.

      In considering a claimant’s continuing disability, the ALJ must determine

whether there has been any medical improvement in the claimant’s impairments

since the claimant was first adjudged disabled and, if so, whether the medical

improvement is related to the claimant’s ability to work. See id. § 404.1594(a).

“Medical improvement” means “any decrease in the medical severity of . . .

impairment(s) . . . present at the time of the most recent favorable medical decision

that [the claimant was] disabled or continued to be disabled.” Id. § 404.1594(b)(1).

“Medical improvement is related to [the claimant’s] ability to work if there has

been a decrease in the severity. . . of the impairment(s) present at the time of the

most recent favorable medical decision and an increase in [the claimant’s]

functional capacity to do basic work activities . . . .” Id. § 404.1594(b)(3).

      Section 404.1594(f) provides an eight-step sequential evaluation process for

determining whether a claimant’s disability continues: (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 that meets or equals a


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listed condition; (3) if impairments do not meet a listing, whether there has been

medical improvement; (4) if there has been medical improvement, whether the

improvement is related to the claimant’s ability to do work; (5) if there is

improvement not related to the claimant’s ability to do work, whether an exception

to medical improvement applies, see id. § 404.1594(d), (e); (6) if medical

improvement is related to the claimant’s ability to do work or if an exception

applies, whether the complainant has a “severe impairment,” see id. § 404.1521;

(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 id. § 404.1594(f)(1)–(8).

      We review an ALJ’s decision as to continuing disability for substantial

evidence, see Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002) (per

curiam), and we review the district court’s judgment that substantial evidence

supports an ALJ’s decision de novo, Falge, 150 F.3d at 1322. “We also review for

substantial evidence the ALJ’s determination that a claimant’s assertions of pain

are not credible.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th

Cir. 2014). Substantial evidence means more than a scintilla “and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Where an




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ALJ’s decision is supported by substantial evidence, we must affirm. See Mitchell,

771 F.3d at 782.

                                              III.

       Johnson challenges the ALJ’s decision to discontinue his disability period

and related benefits on three separate grounds, and we address each in turn.

       First, Johnson contends that the ALJ’s finding of medical improvement is

not supported by substantial evidence. We disagree. Johnson was deemed

disabled because he suffered from epilepsy that met the criteria of Listing 11.03,

but the “totality” of the record on appeal—including medical records maintained

by Johnson’s treating neurologists—demonstrates that Johnson’s condition has

since significantly improved to the point where his impairment no longer meets or

medically equals that listing.1 See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.03.

       The record indicates that Johnson was seizure free from April 2009 through

at least July 19, 2010. During that time, Johnson reported doing well and seeing

improvement in his quality of life; he was going to the gym and to class and

engaged in other daily activities. Johnson then experienced a few breakthrough

seizure events in April and May 2011, but the record reflects that those events were

       1
          While the 2006 decision finding Johnson disabled mentioned “residuals from a left hip
fracture,” the ALJ’s finding of disability was based solely on Johnson’s epilepsy. Still, the ALJ
considered Listing 1.00 (Musculoskeletal System) in reviewing Johnson’s disability in 2012.
The record indicates that the medical severity of Johnson’s hip pain, which did not meet or equal
Listing 1.00 in 2006, has also decreased given that he is able to ambulate effectively and to
conduct personal activities both inside and outside of the house—and has been able to do so for
some time. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b).
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related to Johnson’s self-tapering of his prescribed medications. When Johnson’s

medication was restarted, his symptoms improved, and, in December 2011, he

reported no seizure activity. The record indicates that Johnson was seizure free

prior to April 2011 and has remained seizure free since May 2011. Cf. id.

      Because Johnson’s condition has improved to the point where he does not

meet or equal Listing 11.03, the ALJ correctly found that Johnson’s medical

improvement relates to his ability to work. See 20 C.F.R. §§ 404.1594(b)(3),

404.1594(f)(4). The record indicates that Johnson is able to perform light,

unskilled work. Both of the VEs who testified at the hearings concluded that

Johnson could not perform his past work; however, after considering hypotheticals

that accounted for all of Johnson’s impairments and took into account his age and

background, each testified that Johnson could engage in gainful activity. See Jones

v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). The VEs testified that Johnson

could work as a ticket taker, cashier, or office helper or as a document preparer or

addresser, and stated that those jobs existed in significant numbers in the national

economy. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). Johnson did

not show and has not shown that he is unable to perform these jobs. See id.

      We recognize that Johnson continues to suffer from legitimate functional

and mental difficulties that may affect his quality of life. However, we cannot say,

based on the record before us, that the ALJ’s determination that Johnson


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experienced a “decrease in the medical severity” of his epilepsy from the time he

was first adjudged disabled, see 20 C.F.R. § 404.1594(b)(1), (c)(1), was not

supported by substantial evidence. The record also compels us to agree that

Johnson is able to engage in substantial gainful activity. See id. § 404.1594(a).

Thus, the ALJ’s determination that Johnson experienced “medical improvement”

as of January 1, 2011, is due to be affirmed. See Mitchell, 771 F.3d at 782.

      Second, Johnson argues that the ALJ erred in assessing Johnson’s testimony.

Where a claimant attempts to establish a continuing disability through his own

testimony of pain or other subjective symptoms, a three-part “pain standard”

applies. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per curiam);

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam). The “pain

standard” requires: “(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 medical condition can reasonably be expected

to give rise to the claimed pain.” Wilson, 284 F.3d at 1225. “The claimant’s

subjective testimony supported by medical evidence that satisfies the standard is

itself sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.

      The ALJ does not cite or refer to the language of Holt’s three-part test, but

his findings and discussion indicate that the standard was applied. See Wilson, 284

F.3d at 1225–26. First, the ALJ cited to 20 C.F.R. § 404.1529, “which contains the


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same language regarding the subjective pain testimony that this Court interpreted

when initially establishing its three-part pain standard.” Id. at 1226. Second, it is

evident from the ALJ’s extensive analysis that he considered whether there existed

an underlying medically determinable physical or mental impairment and whether

Johnson’s statements about the intensity, persistence, and functionally-limiting

effects of the pain were substantiated by objective medical evidence. See §

404.1529(c)(1)–(4); see also Wilson, 284 F.3d at 1225.

      In accord with the “pain standard,” the ALJ found that Johnson’s subjective

claims were not confirmed by objective medical evidence and could not have

reasonably have been expected to give rise to the pain alleged. Cf. Holt, 921 F.2d

at 1223. He specifically stated “that [Johnson’s] medically determinable

impairments could have reasonably been expected to produce the alleged

symptoms; however, [his] statements concerning the intensity, persistence and

limiting effects of these symptoms [were] not credible to the extent they [were]

inconsistent with the residual function capacity assessment.” See § 404.1529(c)(1).

The ALJ also clearly articulated the bases for his findings, setting forth at length

Johnson’s testimony and the ALJ’s reasons for not believing it to be wholly true.

See id. § 404.1529(c)(1)–(4). Cf. Holt, 921 F.2d at 1223–24.

      In assessing Johnson’s testimony, the ALJ considered, among other things,

Johnson’s daily activities, treatments other than medication, and measures Johnson


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used to alleviate his pain or symptoms. See § 404.1529(c)(3). For example, the

ALJ noted that, among other activities, Johnson was able to shop for groceries,

prepare his own meals, care for his own personal needs, do household chores, and

read occasionally. He also attended church services and used public transportation.

The ALJ found such activities “inconsistent with a complete inability to work.” 2

See id. § 404.1529(c)(1), (3)–(4); see also id. § 404.1594(b)–(c).

       The ALJ also discussed conflicts between Johnson’s subjective pain

testimony and the objective medical record. See id. § 404.1529(c)(4). The ALJ

noted that, while Johnson testified that he continues to suffer from imbalance as a

result of his 2004 hip surgery, has left hip pain four days a week, and uses a cane

and has (but does not appear to presently use) a walker, the record did not reflect

additional treatment for Johnson’s left hip after January 2011. 3 The ALJ also

observed that Johnson testified to “mild seizures that last [two to three] minutes,”

but the record indicated that Johnson had been seizure free prior to April 2011 and

since approximately May 2011 due to a prescribed medication regime.

       On this record, we do not find that the ALJ erred in assessing Johnson’s

testimony or otherwise failed to set out on the record his reasons for finding
       2
         Contrary to Johnson’s contention, we do not read the ALJ’s decision to equate a
“complete inability to work” with the definition of disability. Rather, the ALJ’s statement relates
to the veracity of Johnson’s claims that he is unable to work for any period of time due to a
seizure disorder and hip pain. See 20 C.F.R. § 404.1529(c)(4).
       3
         Indeed, the record indicates that Johnson was referred to physical therapy and given a
prescription for a rolling walker between October 2010 and January 2011 in order to treat his hip
pain, but Johnson did not pursue those prescribed treatments. See § 404.1529(c)(3).
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Johnson’s statements “not credible to the extent that he claims disability.” Johnson

failed to present evidence sufficient to satisfy the elements of the pain standard.

Cf. Holt, 921 F.2d at 1224. While Johnson “has some legitimate functional and

mental difficulties since his alleged onset date,” for which the ALJ accounted “by

restricting him to light work,” greater limitations are simply not supported by the

record. Given that the record evidence is not consistent with Johnson’s alleged

disabling pain, the ALJ reasonably rejected Johnson’s subjective testimony as only

partially credible. See Wilson, 284 F.3d at 1226. In short, we find that the ALJ’s

credibility determination is supported by substantial evidence and resulted from a

correct application of the law. See id.

      Third and finally, Johnson asserts that the ALJ failed to fully and fairly

develop the record because he did not order an x-ray of Johnson’s left hip at the

July 2012 hearing. “[T]he ALJ has a basic obligation to develop a full and fair

record,” Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (per curiam),

which requires him to “order a consultative examination when such an evaluation

is necessary for him to make an informed decision,” Holladay v. Bowen, 848 F.2d

1206, 1209 (11th Cir. 1988) (internal quotation marks omitted). Where the record

contains sufficient evidence to allow an informed decision, however, the duty to

fully and fairly develop the record does not impose the requirement to order a




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consultative examination. See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d

1253, 1269 (11th Cir. 2007).

      The record does not support the conclusion that in order to fairly and fully

develop the record the ALJ was required to order an x-ray of Johnson’s left hip.

The ALJ ordered a consultative examination by an orthopedist at the January 2012

hearing upon Johnson’s request. The orthopedist examined Johnson’s left hip and

diagnosed a condition in that hip; the orthopedist also completed a motion report

form and a medical source statement of ability to do work-related activities. The

ALJ also had available medical records from another doctor who treated Johnson

throughout 2009 and 2010 and evaluated Johnson’s left hip on multiple occasions.

Presented with ample evidence of the nature and extent of Johnson’s hip problems,

the ALJ was more than able to make an informed decision based on the record

before him. See id. An x-ray was not necessary under the circumstances, and the

ALJ did not breach his duty to fully and fairly develop the record by refusing to

order one.

      For the foregoing reasons, the district court’s order affirming the

Commissioner’s final decision terminating Johnson’s period of disability, disability

insurance benefits, and supplemental security income due to medical improvement

is

      AFFIRMED.


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