           Case: 13-12221   Date Filed: 01/15/2014   Page: 1 of 9


                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12221
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 6:11-cv-01665-KRS



DEREK SAUCIER,

                                                           Plaintiff-Appellant,

                                  versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                          Defendant-Appellee.

                       ________________________

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

                            (January 15, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      Derek Saucier seeks review of the Social Security Administration’s denial of

his application for disability insurance benefits, 42 U.S.C. § 405(g), and

supplemental security income, 42 U.S.C. § 1383(c)(3). The administrative law

judge (“ALJ”) determined that Mr. Saucier suffered from several severe

impairments, noting his history of Tourette’s Syndrome, attention deficit-

hyperactivity disorder, obsessive-compulsive disorder, and benzodiazepine

withdrawal syndrome.      The ALJ further acknowledged that Mr. Saucier had

degenerative disc disease of the lumbar spine, depressive disorder, and

somatization disorder. Nonetheless, the ALJ determined that Mr. Saucier was not

disabled because these impairments did not meet or equal one of the listed

impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 et al. The district

court affirmed, and this appeal followed.

      We review “de novo the district court’s decision on whether substantial

evidence supports the ALJ’s decision.” Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002). Thus, “the question is not whether substantial evidence supports

a finding made by the district court but whether substantial evidence supports a

finding made by the [ALJ].” Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir.

1986). “Substantial evidence is more than a scintilla and is such relevant evidence

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




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

quotation marks omitted).

      On appeal, Mr. Saucier, through counsel, argues that the ALJ erred in

discounting Dr. Patrick Gorman’s somatization diagnosis and opinion that

Mr. Saucier had extreme functional limitations in satisfaction of Listing 12.07.

According to Mr. Saucier, had the ALJ properly credited Dr. Gorman’s opinion,

the testimony of Jane Beougher, a vocational expert, would have established that

there was no work that Mr. Saucier could perform in the national economy. After

reviewing the record and the parties’ briefs, we hold that substantial evidence

supports the ALJ’s determination that Mr. Saucier was not entitled to disability

insurance benefits and supplemental security income.

      In order to demonstrate the required level of severity for somatoform

disorders under Listing 12.07, the claimant must satisfy both subparagraphs to the

listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.07. As relevant here,

subparagraph (B) requires the disorder to result in at least two of the following: (1)

marked restriction of activities of daily living; (2) marked difficulties in

maintaining      social   functioning;    (3)       marked   difficulties   in   maintaining

concentration, persistence, or pace; or (4) repeated episodes of decompensation,

each of an extended duration. Id. 1


      1
          A “marked” limitation means “more than moderate but less than extreme.” 20 C.F.R.
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       Mr. Saucier argues that Dr. Gorman’s diagnosis of somatization disorder and

opinions regarding Mr. Saucier’s functional impairments conclusively established

that Mr. Saucier satisfied all the requirements of Listing 12.07. But a claimant

cannot meet the criteria of a listing based solely on a diagnosis. See 20 C.F.R.

§ 404.1525(d). Instead, issues regarding whether the claimant is “disabled” or

“unable to work” are reserved to the Commissioner.                       See 20 C.F.R. §

404.1527(d)(1). Although the Commissioner will “consider opinions from medical

sources on issues such as whether [the claimant’s] impairment(s) meets or equals

the requirements of any impairment(s) in the Listing of Impairments in appendix 1,

. . . the final responsibility for deciding these issues is reserved to the

Commissioner.” Id. § 404.1527(d)(2). Accordingly, the ALJ correctly declined to

“give any special significance” to Dr. Gorman’s opinion on these issues. Id. §

404.1527(d)(3).

       Moreover, contrary to Mr. Saucier’s argument, the ALJ credited

Dr. Gorman’s diagnosis, finding that Mr. Saucier suffered from somatization

disorder. See D.E. 17 at 25.2 The ALJ, however, ultimately determined that Mr.

Saucier failed to demonstrate the required level of severity for somatoform

disorders under Listing 12.07. Id. at 26. In so doing, the ALJ considered, but




Pt. 404, Subpt. P, App. 1, § 12.00(D).
        2
          Unless otherwise noted, all pagination refers to the page number assigned on PACER.
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rejected, Dr. Gorman’s opinion that Mr. Saucier suffered from extreme functional

impairments in satisfaction of the requirements of subparagraph (B) of Listing

12.07.

         Mr. Saucier says that this was error because it failed to accord Dr. Gorman’s

opinion the substantial weight to which it was entitled “due to the frequency of

[Dr. Gorman’s] contact with Claimant.” Appellant’s Br. at 26. As Mr. Saucier

correctly points out, absent good cause, the ALJ must give the medical opinions of

treating physicians “substantial or considerable weight.” Winschel, 631 F.3d at

1179 (internal quotation marks omitted). Mr. Saucier’s argument, however, fails to

contend with the ALJ’s determination that Dr. Gorman did not qualify as a treating

physician. See D.E. 17 at 32. A treating source is a claimant’s own physician,

psychologist, or other acceptable medical source who provides, or has provided the

claimant with medical treatment or evaluation and who has, or has had, an ongoing

treatment relationship with the claimant. See 20 C.F.R. § 416.902. Mr. Saucier

does not contest that he was referred to Dr. Gorman by his attorney, see D.E. 17-2

at 79, and the Social Security Administration does not “consider an acceptable

medical source to be [a] treating source if [the claimant’s] relationship with the

source is not based on . . . medical need for treatment or evaluation, but solely on

[the] need to obtain a report in support of [the] claim for disability.” 20 C.F.R. §




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404.1502 (“In such a case, we will consider the acceptable medical source to be a

nontreating source.”).

      In any event, even assuming that Dr. Gorman was a treating source, the ALJ

had good cause to not give his opinion considerable weight. Good cause 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.” Phillips v.

Barnhardt, 357 F.3d 1232, 1241 (11th Cir. 2004). Here, Dr. Gorman’s opinions

were not only inconsistent with evidence concerning Mr. Saucier’s activities and

other medical opinions, but also Dr. Gorman’s own observations.

      Substantial evidence supports the ALJ’s finding that Mr. Saucier had only

moderate restrictions in (1) activities of daily living; (2) maintaining social

functioning; and (3) concentration, persistence, or pace. For example, Mr. Saucier

indicated in his functional report that “he has no problems maintaining personal

care, preparing simple meals, doing laundry, using a riding lawn mower, and

managing finances.” D.E. 17 at 27. See also id. at 118-122. Dr. Pamela Green, a

state agency consultant, concluded that Mr. Saucier had mild restrictions in

activities of daily life, maintaining social functioning, and concentration,

persistence, or pace; she found no episodes of decompensation of extended

duration. See D.E. 17-2 at 43. Dr. Ada Ramirez, the consultative examining


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physician, noted that Mr. Saucier’s “verbal and communication skills were

adequate and his eye contact was fair”; although his “speech was soft and slow,” it

was “lucid and goal directed.” D.E. 17-2 at 22. And these observations were

consistent with the ALJ’s own observations of Mr. Saucier’s testimony at the

hearing. D.E. 17 at 27 (“Claimant’s testimony at the hearing was presented in a

very soft voice and was halting, but he responded to questions, answering them

relevantly and adequately.”). Finally, the ALJ properly discounted Dr. Gorman’s

opinion that Mr. Saucier experienced continual episodes of decompensation,

because there was no record evidence of ongoing mental health treatment or

extended periods of decompensation requiring supporting care or mental health

hospitalization. Thus, the ALJ correctly accorded little weight to Dr. Gorman’s

opinion that Mr. Saucier’s functional restrictions were extreme.

      Furthermore, substantial evidence supported the ALJ’s decision to discount

Dr. Gorman’s opinions because they were inconsistent with Dr. Gorman’s own

observations. Following an examination of Mr. Saucier, Dr. Gorman observed that

(1) Mr. Saucier’s “speech was within normal limits for rate, rhythm, and volume”;

(2) his “attention and concentration appeared appropriate”; and (3) he “understood

all task questions and instructions and did not require repetition or clarification.”

D.E. 17-2 at 76. Moreover, Dr. Gorman noted that Mr. Saucier “displayed poor

effort on numerous tasks of response bias that were presented to him during [his


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neuropsychological] evaluation,” performing “worse than patients with severe

dementia who required hospitalization as well as young children.” Id. at 79. For

example, after testing on verbal memory functioning, Dr. Gorman noted that it was

“highly unlikely that [Mr. Saucier] would be able to obtain [his low test] score

without knowing the correct answer and purposely choosing the wrong one.” Id. at

78. “[G]iven [Mr. Saucier’s] poor effort on the tasks presented to him combined

with highly variable performance,” Dr. Gorman concluded that “the results

obtained on measures of intellectual functioning, executive function, attention and

concentration and learning and memory [were] likely an inaccurate underestimate

of [Mr. Saucier’s] current functioning.” Id. at 79. In light of these more detailed

findings, the ALJ properly declined to credit Dr. Gorman’s conclusory opinions

that Mr. Saucier suffered from extreme limitations in daily living, social

functioning, and concentration, persistence or pace. See D.E. 17-2 at 63 (form

evaluation by Dr. Gorman indicating that Mr. Saucier suffered from “extreme”

functional limitation).

      In sum, substantial evidence supports the ALJ’s decision not to adopt

Dr. Gorman’s conclusions regarding the severity of Mr. Saucier’s functional

limitations.   Accordingly, the ALJ properly did not credit the portion of

Ms. Beougher’s testimony that required her to accept as true Dr. Gorman’s

opinions on Mr. Saucier’s limitations.


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      For the above stated reasons, and upon review of the record and

consideration of the parties’ briefs, we affirm.

      AFFIRMED.




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