           Case: 14-12769   Date Filed: 02/18/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12769
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:13-cv-00090-MP-CAS



DAVID A. BOYETTE,

                                                            Plaintiff-Appellant,

                                  versus

COMMISSIONER OF SOCIAL SECURITY,
UNITED STATES ATTORNEY,

                                                        Defendants-Appellees.

                      ________________________

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

                            (February 18, 2015)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       David Boyette appeals the judgment of the District Court affirming the

decision of the Acting Commissioner (“Commissioner”) of the Social Security

Administration (“SSA”) denying his application for disability insurance benefits

under Title II of the Social Security Act. The issue he presents is whether the

Administrative Law Judge (“ALJ”) “erred by not giving great weight to the

decision of the Veterans Administration (“VA”) that [he] was . . . entitled to

individual unemployable rating (100% disability rating) . . . as of November 21,

2008.” Appellant’s Br. at 1. We conclude that the ALJ did not err in considering

the VA’s disability finding and that substantial evidence supports the

Commissioner’s decision. We therefore affirm the District Court’s judgment. 1

           In determining whether the Commission’s decision is supported by

substantial evidence, we are mindful that substantial evidence is “more than a

scintilla.” Rather, it is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion that a claimant is or is not entitled to benefits.

       1
           Boyette’s applied for disability insurance benefits in February 2010, alleging that he
became disabled on July 17, 2007, due to physical impairments. He worked after that, from
April to November 2008, and from April to November 2009, as an assistant football coach for an
average of two hours a day. He stopped working on both occasions not because of his disability
but because the football season ended in November. The state agency responsible for disability
determinations at the initial and reconsideration levels of review found Boyette not disabled. On
June 13, 2011, the ALJ held a hearing on Boyette’s application for benefits. Boyette, who was
represented by counsel, and a vocational expert testified at the hearing.
        Boyette testified that several conditions limited his ability to work: (1) degenerative disc
disease; (2) degenerative joint disease/postthrombotic syndrome; (3) postphlebotic syndrome in
his legs; (4) Factor V coagulation defect; (5) hypertension; (6) tinnitus; (7) tension headaches;
(8) sleep apnea; and (9) chronic sinusitis. The ALJ found Boyette not disabled under the Social
Security Act, concluding that he was still capable of performing his past relevant work as an
administrative assistant and hearing officer.
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Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per

curiam). At the end of the day, if we conclude that the ALJ (whose decision

became the Commissioner’s) ruled on the claimant’s application for benefits on the

basis of such evidence, we will defer to the ALJ’s decision even if the evidence

preponderates against it. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(per curiam).

      For Social Security purposes, “disability” is defined as the “inability to

engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of not less than 12

months . . . .” 42 U.S.C. § 423(d)(1)(A). The Commissioner uses a five-step,

sequential evaluation process to determine whether a claimant is disabled.

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

process includes an analysis of whether the claimant: (1) is unable to engage in

substantial gainful activity; (2) has a severe and medically determinable

impairment; (3) has an impairment, or combination thereof, that meets or equals a

Listing, and meets the duration requirement; (4) can perform his past relevant

work, in light of his residual functional capacity (RFC); and (5) can make an

adjustment to other work, in light of his RFC, age, education, and work experience.

Id.; 20 C.F.R. § 416.920(a)(4). The claimant’s RFC is an assessment, based upon


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all the relevant evidence, of the claimant’s ability to do work despite his

impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R.

§ 416.945(a)(1). The claimant bears the “heavy burden” to demonstrate “both a

qualifying disability and an inability to perform past relevant work.” Moore v.

Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).

      The ALJ has a duty to make clear the weight accorded to each item of

evidence and the reasons for those decisions, so as to enable a reviewing court to

determine whether the ultimate decision is based on substantial evidence. Cowart

v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). “[T]here is no rigid requirement

that the ALJ specifically refer to every piece of evidence in [her] decision,” so long

as the ALJ’s decision is not just “a broad rejection” that does not enable the

reviewing court to conclude that the ALJ considered the claimant’s medical

condition as a whole. Dyer, 395 F.3d at 1211. The ALJ may make fact findings

implicitly if the implication is sufficiently clear. See Parker v. Bowen, 793 F.2d

1177, 1178 nn. 1–2 (11th Cir. 1986) (discussing credibility findings).

      Pursuant to 20 C.F.R. § 404.1504, a decision by any other government

agency, such as the VA, regarding a claimant’s disabled status “is based on [that

agency’s] rules and is not [the commissioner’s] decision” as to disability. 20

C.F.R. § 404.1504. Instead, the Commissioner must “make a

disability . . . determination based on social security law.” Id. VA disability


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ratings are thus not binding on the ALJ, but such ratings should be considered and

“given great weight.” Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984)

(quotation omitted). In Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. Unit

A, March 25, 1981) (per curiam) 2, the court stated that “[a] VA rating of 100%

disability should have been more closely scrutinized by the ALJ,” because the ALJ

mentioned the VA rating but “obviously refused to give it much weight.” The

court noted that VA disability ratings are nonbinding but “should be considered”

and are “entitled to great weight.” Id.; see also 20 C.F.R. § 404.1504.

       In the instant case, the ALJ expressly acknowledged the VA’s determination

that Boyette was entitled to total disability on the basis of individual

unemployability (“TDIU”), and she also noted that this determination was not

binding. Although the ALJ did not assign an express level of weight to the VA

disability rating itself, except to say that it was not entitled to controlling weight,

she scrutinized the VA’s decision and explained in detail why it was not entitled to

controlling weight. The ALJ considered and assigned weight to the VA

examiners’ opinions, VA primary care provider opinions, and VA treatment

records. In fact, the ALJ appears to have given great weight to the VA examiners’

opinions that Boyette was capable of light or sedentary employment, which she

concluded were consistent with the medical evidence and record evidence as a

2
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), this court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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whole. However, the ALJ noted that other agencies determined disability under

parameters other than those used by the SSA, and thus, while the clinical findings

reported by the VA medical staff were given “appropriate weight,” the VA’s final

opinion as to degree of disability was not entitled to controlling weight. Cf.

Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004) (stating that the ALJ

must give treating physician testimony substantial or controlling weight unless

there is “good cause” not to do so, and explaining that good cause exists when the

treating physician’s opinion was not bolstered by the evidence, the evidence

supported a contrary finding, or the opinion was conclusory or inconsistent with

the physician’s own medical records). Thus, although the ALJ declined to give

controlling weight to the VA disability determination and did not expressly state

she gave “great” weight to it, there is no indication that she failed to give the VA’s

determination great weight or consideration. See Brady, 724 F.2d at 921; see also

Parker, 793 F.2d at 1178 nn. 1–2.

      Boyette does not present any other objection to the ALJ’s decision.

Although he contends that it is more difficult to obtain a TDIU rating than it is to

obtain SSA disability benefits, even the VA’s TDIU ratings are not binding on the

ALJ and are not determinative as to whether the ALJ’s decision is supported by

substantial evidence. See Brady, 724 F.2d at 921. Here, the ALJ correctly noted

that the VA disability determination is guided by different factors than those for


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SSA disability. Where, as here, the VA treatment notes, examining VA doctors’

opinions, treating doctors’ opinions, and state agency assessments all support the

ALJ’s RFC assessment, the ALJ did not err in her treatment of the VA’s disability

determination. Thus, the ALJ’s finding of no disability is supported by substantial

evidence.

      AFFIRMED.




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