                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-15925             JULY 6, 2012
                                        Non-Argument Calendar         JOHN LEY
                                      ________________________         CLERK

                             D.C. Docket No. 1:10-cv-00015-MP-GRJ



GEORGE HICKS,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                               versus

COMMISSIONER OF SOCIAL SECURITY,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

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

                                            (July 6, 2012)



Before MARCUS, PRYOR and BLACK, Circuit Judges.
PER CURIAM:



      George Hicks appeals the order that affirmed the termination of his

disability insurance benefits. 42 U.S.C. § 405(g). Hicks argues that the

administrative law judge failed to accord adequate weight to the opinion of his

treating physician, Dr. Oscar DePaz, that Hicks was disabled in 2004. Hicks also

challenges the finding of the administrative law judge that Hicks’s mental

condition had improved and he was ineligible for benefits as of January 1, 2002.

We affirm.

      On June 16, 1995, an administrative law judge ruled that Hicks was disabled

as of March 17, 1986, due to failed back syndrome; his status after four back

surgeries in which he had a bulging disk removed, screws and fusion rods inserted

to stabilize his spine, fusion of his vertebrae at L-3/4 and L4-4/5, and femoral

rings inserted at S-5/5-1; chronic back pain syndrome; and major depression. In

December 2001, the Commissioner conducted a continuing disability review and

determined that, effective January 1, 2002, Hicks was ineligible for benefits

because of his medical improvements. The administrative law judge affirmed the

finding of the Commissioner, but the district court reversed and remanded for the

administrative law judge to “give[] greater weight” to the opinion of Hicks’s “only

                                          2
treating physician of record at this time,” Dr. DePaz, and to elicit testimony from a

vocational expert about the jobs available to Hicks. On remand, the administrative

law judge conducted an evidentiary hearing and again determined that Hicks was

ineligible for benefits. A magistrate judge recommended affirming the decision of

the administrative law judge, and the district court adopted the recommendation.

      We review the decision by the Commissioner to determine if it is “supported

by substantial evidence and based on proper legal standards.” Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotation

marks omitted). Substantial evidence consists of “such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” Id. (internal

quotation marks omitted). Because “[w]e may not decide the facts anew, reweigh

the evidence, or substitute our judgment for that of the Commissioner,” we must

affirm a decision supported by substantial evidence, “even if the proof

preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.

2004) (internal citations and quotation marks omitted).

      Substantial evidence supports the decision of the administrative law judge

to assign less weight to Dr. DePaz’s opinion that Hicks was disabled than to the

opinions of other physicians that Hicks was able to work. In 2004, Dr. DePaz

stated on a clinical pain assessment form that Hicks could not complete a workday

                                          3
because of marked pain caused by his back that required him to take frequent

breaks, but the assessment was inconsistent with Dr. DePaz’s medical notes.

Medical notes from Dr. DePaz’s last evaluation of Hicks in August 2001 recorded

that Hicks’s back pain was “moderate and consistent.” Dr. DePaz’s other medical

notes established that Hicks’s physical condition had improved steadily over time:

in June 1999, Hicks had reported increased pain and stiffness since a car accident

in April 1999; in July 1999, an EMG produced “normal” results and, although an

MRI showed a bulging disc at C4-5 and a mild to moderate narrowing of a spinal

canal, Hicks had reported that his medications had alleviated general pain and that

physical therapy had been somewhat helpful; in January 2000, Hicks had reported

that his pain had diminished by 40% after receiving a facet block in November

1999; in March 2000, Hicks had reported getting worse, but a physical

examination revealed that his symptoms had not changed; in May and August

2000, examinations revealed that Hicks had improved overall and he had reported

that his medications were effective with no side effects; in October 2000, Hicks

had reported that he had been doing “pretty good” other than some pain in his

neck and back and occasional headaches; and in February 2001, Hicks had

reported that a nerve block injection he had received in January 2001 had reduced

significantly pain in his neck and back.

                                           4
      Dr. DePaz’s assessment in 2004 also was inconsistent with the assessments

of other physicians in the last quarter of 2001 and in early 2002. In November

2001, Dr. Lance Chodosh performed a consultative examination and found that

Hicks had a full range of motion except in his neck and shoulders and full strength

in all his extremities; Hicks did not have any spinal impairment other than a

“modest decrease in spinal mobility secondary to fusion”; and Hicks could bend to

a moderate degree, lift and carry up to 25 pounds occasionally, probably squat and

kneel, and handle items of moderate size and weight. In December 2001, Dr.

Nicholas Bancks performed a residual functional capacity assessment and found

that Hicks was capable of lifting and carrying 10 pounds frequently and 20 pounds

occasionally; could stand or walk for 6 hours of an 8-hour workday; could push

and pull without limitation; could climb, kneel, and crawl frequently; and could

balance, stoop, and crouch occasionally. In February 2002, Dr. Tom Peele

performed an advisory physical residual capacity assessment and made findings

virtually identical to those made by Dr. Bancks. Dr. Peele reported that Hicks was

“partially credible” and appeared to “magnify” his gait and pain; Dr. Peele also

mentioned in his assessment a “videotape showing [Hicks] cutting trees and

playing volleyball” and that a “phone call to his [home] produced verbal

confirmation” of those activities. Although Hicks argues that greater weight

                                         5
should have been assigned to Dr. DePaz’s opinion as a treating physician, Hicks

does not challenge the validity of the assessments of other physicians. Those

opinions support the findings of the administrative law judge that Hicks’s

condition had improved to the extent that he was capable of resuming his past

work or performing unskilled light work. See 42 U.S.C. § 423(f); Vaughn v.

Heckler, 727 F.2d 1040, 1043 (11th Cir. 1984) (benefits can be terminated once

“there is substantial evidence of actual improvement to the point of no disability”).

      Substantial evidence also supports the decision of the administrative law

judge that Hicks had improved mentally. Although Hicks qualified for benefits in

1995 because of his visual and auditory hallucinations, severe depression, suicidal

thoughts, and psychosis, Hicks’s condition had improved by December 2001,

when a consultative psychologist, Andres Nazario, and a psychiatrist, Alejandro

Vergara, reported that Hicks suffered from mild depression. Dr. Nazario reported

that Hicks had learned to “cope with his condition,” and Dr. Vergara reported that

Hicks suffered only mild limitations in his daily living, social functioning, and

concentration, persistence, and pace. Also in December 2001, Dr. T. Wayne

Conger, a consulting psychiatrist, reported that Hicks was capable of performing

daily living activities independently and, “[a]lthough he . . . experience[d] some

depression related to his current situation and physical problems, he [was] able to

                                          6
relate in a socially appropriate manner and [did] not demonstrate a severe mental

impairment.” Hicks argues, for the first time, that a second hypothetical question

posed to the vocational expert failed to incorporate comprehensively his

impairments like his mental condition, but Hicks waived this argument by failing

to present it to the district court. See Stewart v. Dep’t of Health & Human Servs.,

26 F.3d 115, 115–16 (11th Cir. 1994).

      We AFFIRM the decision to terminate Hicks’s benefits.




                                         7
