                                                                             [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE ELEVENTH CIRCUIT
                                   ________________________                         FILED
                                                                           U.S. COURT OF APPEALS
                                           No. 10-14595                      ELEVENTH CIRCUIT
                                       Non-Argument Calendar                     JUNE 13, 2011
                                     ________________________                     JOHN LEY
                                                                                   CLERK
                                D.C. Docket No. 3:09-cv-00520-JRK

ROBERT COPHER,

llllllllllllllllllllllllllllllllllllllll                                 Plaintiff–Appellant,

                                                  versus

COMMISSIONER OF SOCIAL SECURITY,

                                           llllllllllllllllllllllllllllllllllllDefendant–Appellee.

                                     ________________________

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

                                             (June 13, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

         Robert Copher appeals from the district court’s order affirming the Social

Security Commissioner’s decision denying his application for Social Security
disability benefits and supplemental security income. Copher’s appeal raises one

issue: Did the administrative law judge (ALJ) err by not giving controlling weight

to the opinion of his treating physician? Because we conclude that the ALJ

properly discounted the opinion of Copher’s treating physician, we affirm.

                                         I.

      Copher applied for disability insurance benefits and supplemental security

income in December 2003, alleging that he had suffered from neck pain, back

pain, and persistent headaches since December 2002. In 2005, while his first

application was still pending, Copher once again applied for benefits, and his

second application was consolidated with his first. Only Copher’s headaches are

relevant to his appeal.

      Copher was first treated by Dr. Manley Kilgore, a neurologist, in June 1999.

Following an accident in July 2003, Copher returned to Dr. Kilgore, who ordered a

brain MRI. The MRI was normal. Later that year, Copher returned and reported

that his headaches were fairly well controlled when he took his medication. One

month later, Copher returned and complained of severe headaches several times a

week. Early in 2004, Copher saw Dr. Kilgore and reported that his headaches

were still severe. In 2005, Copher was again treated by Dr. Kilgore and he again

complained of headaches. After that last visit, Dr. Kilgore wrote a letter noting

                                         2
that Copher was “totally incapacitated” by headaches 8 to 10 days a month. In that

same letter, Dr. Kilgore wrote that he had diagnosed Copher as suffering from

post-traumatic headaches.

                                         II.

      We review the ALJ’s factual findings with great deference and accept them

as conclusive if they are supported by substantial evidence. Ingram v. Comm’r,

496 F.3d 1253, 160 (11th Cir. 2007). Substantial evidence is that which a

reasonable person would take as sufficient to support a conclusion. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). It is more than a scintilla but need

not be a preponderance. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

      In a disability proceeding, the medical opinion of a claimant’s treating

physician is generally given “controlling weight” in determining the severity of a

claimant’s impairments. 20 C.F.R. § 404.1527(d)(2). But that is only the case if

the treating physician’s opinion is “well-supported by medically acceptable

clinical and laboratory techniques and is not inconsistent with other substantial

evidence” in the record. Id. When the ALJ makes a finding that a treating

physician’s opinion should not be given controlling weight, he must articulate his

reasons for doing so. Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir.

2004).

                                          3
      Here, the ALJ found that Dr. Kilgore’s opinion was not entitled to

controlling weight because it was inconsistent with other substantial evidence in

the record, including Dr. Kilgore’s own records. After reviewing Dr. Kilgore’s

2004 and 2005 opinions about Copher’s orthopedic conditions, the ALJ noted that

Dr. Kilgore never attributed Copher’s inability to work to his orthopedic injuries.

(In any case, Dr. Raul Zelaya, an orthopedic surgeon doctor who examined Copher

advised that he was unable to make physical findings that correlated to Copher’s

subjective complaints. Even Dr. Kilgore’s own examination of Copher noted that

Copher’s motor strength, tone, reflexes, gait, and station were all normal.)

      Instead, Dr. Kilgore attributed Copher’s inability to work to his headaches,

but the ALJ noted that all medical imaging of Copher’s brain and his neurological

examinations had been normal. Furthermore, although Dr. Kilgore’s letter opined

that the plaintiff was totally incapacitated for 8 to 10 days a month, several

evaluations indicated that Copher was capable of work, or were at least

ambiguous. For example, the ALJ noted that on one form evaluating Copher, Dr.

Kilgore checked a box for “No Work,” but wrote that Copher was capable of

“light duty.” On another, Dr. Kilgore marked the box for “No Work,” but also

checked “Part Time.” In addition, the ALJ noted that Dr. Kilgore’s records




                                          4
indicated that Copher’s headaches were responsive to treatment.1 Thus, the ALJ

found that the inconsistencies in Dr. Kilgore’s own records and between his

opinions and the rest of the record meant that Dr. Kilgore’s opinion was not

entitled to controlling weight.

       Because the ALJ clearly articulated his reasons for discounting Dr.

Kilgore’s opinion, and that finding is supported by substantial evidence, we

affirm.

AFFIRMED.




       1
          At his hearing, Copher testified that he stopped taking his medication because he could
not afford it. Although the ALJ addressed this issue in the administrative proceeding, Copher
has not raised this argument on appeal. Therefore, it has been waived. Cunningham v. Dist.
Att’y’s Office for Escambia Cnty., 592 F.3d 1237, 1254 n.9 (11th Cir. 2010).

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