                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-15956                ELEVENTH CIRCUIT
                                                             MAY 21, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

               D. C. Docket No. 08-00604-CV-FTM-99SPC

DREAMA D. CHEREZA,


                                                           Plaintiff-Appellant,

                                  versus

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

                                                          Defendant-Appellee.


                       ________________________

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

                              (May 21, 2010)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      Dreama D. Chereza appeals the district court’s affirmance of the

Commissioner’s denial of disability insurance benefits and supplemental security

income, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Chereza argues that the

Administrative Law Judge’s (“ALJ’s”) decision that her mental health impairments

had “medically approved” as of August 1, 2003, is not supported by substantial

evidence. She also argues that the ALJ erred in finding that her mental health,

cervical spine, and hearing impairments were not “severe.” For the reasons set

forth below, we affirm.

                                          I.

      In October 1998, an ALJ awarded Chereza disability insurance benefits

based on a finding that Chereza was disabled as of June 3, 1996. The ALJ found

that Chereza had the following severe impairments: major depression, a

generalized anxiety disorder, and a personality disorder with dependent and

passive aggressive traits. On September 24, 2004, the Commissioner determined

that Chereza was no longer disabled as of August 1, 2003, and terminated her

benefits. Chereza filed a request for an administrative hearing, and, after the

hearing, the ALJ found that Chereza was no longer disabled. Chereza filed an

appeal with the Appeals Council, which denied review. Chereza then sought

review of the ALJ’s decision in the district court, which upheld the



                                          2
Commissioner’s decision to deny benefits.

      At the administrative hearing, Chereza testified that she regularly went to her

neighbor’s house, played with her neighbor’s dogs, and tried to pay her bills during

the day. She prepared her own meals and sometimes drove herself to doctor

appointments. Chereza listed her impairments as: fibromyalgia, depression,

anxiety, hypoglycemia, compulsive disorder, attention deficit disorder, and bipolar

disorder.

      The medical evidence showed the following. In February 1994, Chereza had

tubes inserted into her ears after complaining of hearing loss. The tubes improved

Chereza’s hearing significantly.

      In April 1997, Chereza met with Ajay Krishnan, a physical therapist, to

address pain in her neck and back. Krishnan noted that Chereza could not tolerate

any range of motion in her cervical spine. Radiology reports from March and

September 1997 showed that Chereza’s cervical spine appeared normal. In May

2002, and January 2003, Chereza was diagnosed with cervical sprains, which

limited her range of motion such that she needed assistance to sit, get out of bed,

and dress herself. From July 2002, through November 2002, Dr. Gilberto Acosta

treated Chereza for neck and back pain. Dr. Acosta prescribed a muscle relaxant

on Chereza’s initial visit and subsequently prescribed water therapy, noting that



                                          3
Chereza’s best treatment options were “extremely conservative.” Dr. Acosta also

prescribed Botox injections and a Lidoderm patch to reduce muscle pain. Chereza

reported significant improvements in her pain and, by November 2002, Dr. Acosta

instructed Chereza to return on an as-needed basis. Chereza received additional

Botox injections on May 14, 2003, October 30, 2003, and April 27, 2004, to treat

muscle spasms. Dr. Stanley Rabinowitz examined Chereza in July 2004, and

determined that her range of motion in her cervical spine was normal.

       Pre-October 1998, medical records showed that, in 1996 and 1997, Chereza

was diagnosed with depression, anxiety, and agoraphobia1 , which Dr. Rudolfo

Vocal described as “difficult to control.” Chereza reported having panic attacks

and Dr. Vocal prescribed medication to control Chereza’s obsessive thoughts. In

February 1998, Chereza was hospitalized for depression and suicidal ideation. She

reported “hearing voices” and was prescribed medication for symptoms of auditory

hallucinations. In April 1998, Chereza’s therapist determined that Chereza was “in

crisis” and needed more intensive services. Chereza subsequently moved into a

group home.

       Medical evidence from October 1998 through August 1, 2003, showed that


       1
        Agoraphobia is the abnormal fear of being helpless in a situation from which escape
may be difficult or embarrassing. The condition is characterized initially often by panic or
anticipatory anxiety and later by avoidance of open or public spaces. See www.merriam-
webster.com/medlineplus/agoraphobia.

                                               4
Chereza received inpatient treatment for depression and an overeating disorder at

The Willough at Naples (“The Willough”) from May 15 through June 12, 2002,

and from January 21 through February 5, 2003.

      Post-August 1, 2003, medical records showed that Dr. Paul Betancourt

prescribed additional medication after Chereza complained of mood swings and

pressured speech. Dr. Irene Warburton examined Chereza in November 2003, and

found her speech and motor behavior to be normal. In December 2003, Dr. Norma

Henriquez noted that medication controlled Chereza’s mood, depression, and

anxiety. In February 2004, Chereza reported that her mood was under control.

Margaret Black, a licensed social worker, wrote in a May 2004 letter that Chereza

had difficulty concentrating and was easily distracted. She stated that Chereza

responded to psychotherapy, had few stressors in her life, and had improved her

coping skills, although she still had difficulty understanding verbal commands or

written directions. In July 2004, Dr. Rabinowitz found that Chereza’s memory was

intact, her behavior was appropriate, and she appeared capable of handling her own

funds. Chereza reported, in May 2004, that she prepared her own meals, did all of

her own shopping and got along well with others. She noted memory and

concentration difficulties. A May 11, 2004, “Psychiatric Review Technique,”

completed by Dr. Martha Putney indicated that Chereza’s activities of daily living,



                                         5
ability to maintain social functioning, and ability to maintain concentration,

persistence, and pace were mildly limited. A July 28, 2004, Functional Residual

Capacity Assessment determined that Chereza had no postural, manipulative,

visual, communicative, or environmental limitations.

      The ALJ found that, as of August 1, 2003, Chereza’s mental impairments

were no longer severe, because her depression and anxiety were satisfactorily

controlled with medication, and she was not experiencing hallucinations, had not

been psychiatrically hospitalized, and had not required intensive psychiatric care.

The ALJ found, based on opinions of state agency psychological consultants and

the record as a whole, that Chereza had only mild restrictions in activities of daily

living. Accordingly, the ALJ determined that Chereza’s disability ended as of

August 1, 2003.

      Chereza appealed the ALJ’s decision to the Appeals Council and submitted

additional medical evidence. The Appeals Council denied review.

      Chereza then filed a complaint in the district court, arguing that (1) the ALJ

failed to properly consider the medical evidence and applied the wrong legal

standard in reaching his decision, and (2) the ALJ’s decision was unreasonable and

not supported by substantial evidence.

      The district court found that the ALJ properly compared the prior medical



                                           6
evidence to the current medical evidence. It determined that substantial evidence

supported the ALJ’s finding that Chereza’s mental impairments had improved and

were no longer severe. Finally, the court found that the medical record did not

support Chereza’s contention that her cervical spine or hearing impairments were

severe. Accordingly, the district court affirmed the ALJ’s decision to deny benefits

as of August 1, 2003.

                                         II.

      A.     Whether Chereza’s Mental Health Impairments Had Medically
             Improved

      We review a Social Security decision “to determine if it is supported by

substantial evidence and based on proper legal standards.” Crawford v. Comm’r,

363 F.3d 1155, 1158 (11th Cir. 2004). Substantial evidence consists of “such

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

conclusion.” Id. The burden rests with the claimant to prove that she is disabled

and entitled to Social Security benefits. See 20 C.F.R. § 404.1512(a).

      An ALJ may terminate a claimant’s benefits upon finding that there has been

medical improvement in the claimant’s impairment or combination of impairments

related to the claimant’s ability to work and the claimant is now able to engage in

substantial gainful activity. 42 U.S.C. § 423(f)(1). To determine whether

disability should be terminated, the ALJ must conduct a multi-step evaluation

                                          7
process and determine:

         (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 which meets
                or equals a listing;

         (3)    If impairments do not meet a listing, whether there has
                been medical improvement;

         (4)    If there has been improvement, whether the improvement
                is related to the claimant’s ability to do work;

         (5)    If there is improvement related to claimant’s ability to do
                work, whether an exception to medical improvement
                applies;

         (6)    If medical improvement is related to the claimant’s
                ability to do work or if one of the first groups of
                exceptions to medical improvement applies, whether the
                claimant has a severe impairment;

         (7)    If the claimant has a severe impairment, whether the
                claimant can perform past relevant work;

         (8)    If the claimant cannot perform past relevant work,
                whether the claimant can perform other work.

See 20 C.F.R. § 404.1594(f). To determine if there has been medical

improvement, the ALJ must compare the medical evidence supporting the most

recent final decision holding that the claimant is disabled with new medical

evidence. McAulay v. Heckler, 749 F.2d 1500, 1500 (11th Cir. 1985); see 20



                                          8
C.F.R. § 404.1594(c)(1).

      Although evidence presented to the Appeals Council, but not to the ALJ, is

part of the record on appeal, when the Appeals Council has denied review of the

ALJ’s decision, we look only to evidence actually presented to the ALJ to

determine whether the ALJ’s decision is supported by substantial evidence. Falge

v. Apfel, 150 F.3d 1320, 1322-23 (11th Cir. 1998) (noting that we will consider

evidence submitted only to the Appeals Council if the plaintiff requests a remand

for consideration of newly discovered evidence).

      Here, the ALJ properly compared the medical evidence underlying the

October 1998, disability determination to new evidence Chereza had presented.

He accurately summarized the medical evidence available in 1998, as well as

Chereza’s recent medical evidence, and pointed out specific areas of improvement.

Although Chereza argues that the ALJ erred in considering her history of auditory

hallucinations, the medical records, available in 1998, indicated that Chereza

suffered from auditory hallucinations, and the ALJ stated, in his 1998 opinion, that

he had considered the “entire record” in determining that Chereza was disabled.

Accordingly, because evidence of Chereza’s auditory hallucinations was

considered by the ALJ in making the original disability determination, the ALJ did

not err in considering evidence of these hallucinations in determining whether



                                          9
Chereza’s condition had improved. See McAulay, 749 F.2d at 1500.

      Chereza also argues that the ALJ erroneously stated that she had not been

psychiatrically hospitalized, because she was hospitalized at The Willough for an

eating disorder and depression. However, Chereza’s hospitalizations at The

Willough occurred in 2002 and early 2003. Because the ALJ found that Chereza’s

impairments did not improve until August 1, 2003, the hospitalizations occurred at

a time when Chereza was disabled and entitled to disability benefits. Thus, the

ALJ did not err in determining that, since the date of medical improvement,

Chereza had not been psychiatrically hospitalized.

      In determining whether the ALJ’s finding of medical improvement is

supported by substantial evidence, we consider only the evidence actually

presented to the ALJ, because the Appeals Council denied review of the ALJ’s

determination. See Falge, 150 F.3d at 1322-23. The medical evidence available to

the ALJ in 1998 showed that Chereza suffered from a panic disorder, agoraphobia

that was difficult to control, and obsessive thoughts. These impairments were so

severe that Chereza was admitted into a hospital for depression and suicidal

ideations, was subsequently determined to be “in crisis,” and was eventually placed

into a group home. The medical evidence also indicated that Chereza was taking

medication for auditory hallucinations.



                                          10
      The medical evidence after August 1, 2003, showed marked improvements

in these mental impairments, as Chereza and Dr. Henriquez both reported that

Chereza’s depression and anxiety – two impairments upon which the initial

disability determination was based – were generally controlled by medication.

Chereza also reported no auditory hallucinations after August 1, 2003. In

November 2003, Dr. Warburton noted that Chereza’s speech and motor behavior

were normal and, in May 2004, Chereza herself reported that she was able to

prepare meals, shop, and get along well with others. Although Chereza and Black

indicated that Chereza had memory and concentration difficulties, Dr. Rabinowitz

determined that Chereza’s memory was intact and a May 2004, Psychiatric Review

Technique determined that Chereza’s ability to maintain social functioning,

concentration, persistence, and pace were only mildly limited. Furthermore, Black

noted that Chereza had few stressors in her life, responded to psychotherapy, and

had improved coping skills. Thus, a comparison of the post-August 1, 2003,

medical evidence with the pre-October 1998, evidence shows that (1) Chereza’s

mental impairments no longer required hospitalization or intensive inpatient

treatment, (2) medication controlled the majority of Chereza’s symptoms, and (3)

Chereza’s ability to carry on daily activities were only mildly limited. The ALJ

correctly determined that this was a significant improvement from Chereza’s



                                         11
October 1998, mental condition.

      Chereza argues that the district court erred in placing too much weight on

the opinions of non-examining physicians. While it is true that reports of non-

examining physicians do not constitute substantial evidence on which to base the

denial of benefits, Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988), the ALJ

stated that it considered the opinions of non-examining physicians in conjunction

with Chereza’s symptoms, objective medical evidence, and other medical opinions.

Furthermore, the opinions of Dr. Rabinowitz and other non-examining physicians

do not conflict with the post-August 1, 2003, opinions of Chereza’s examining

physicians, who noted that Chereza’s speech and motor behavior were normal and

that her depression and anxiety were controlled. See 20 C.F.R. § 416.927(f)(2)(i)

(providing that an ALJ may consider reports and assessments of state agency

physicians as expert opinions); Edwards v. Sullivan, 937 F.2d 580, 585 (11th Cir.

1991) (providing that an ALJ may rely on a non-examining physician’s report in

denying disability insurance benefits if the non-examining physician’s report did

not contradict information in examining physicians’ reports).

      Finally, Chereza argues that the ALJ erred in rejecting Black’s medical

opinions. Chereza specifically cites a letter from Black, dated August 26, 2006, in

which Black opined that Chereza could not deal with work stresses or complete a



                                         12
normal work day without interruptions from psychologically based symptoms.

However, this letter was submitted only to the Appeals Council, not the ALJ, and,

therefore, the ALJ could not have considered it. Furthermore, we do not consider

this evidence in determining whether the ALJ’s decision was supported by

substantial evidence. See Falge, 150 F.3d at 1322-23. The record examined by the

ALJ did contain a May 7, 2004, letter from Black, in which Black noted that

Chereza was easily distractable and had difficulty understanding written or verbal

directions. However, as noted above, even in light of this letter, the ALJ’s decision

was supported by substantial evidence. Accordingly, the district court did not err

in finding that the ALJ’s determination, that Chereza’s medical improvements had

improved as of August 1, 2003, was supported by substantial evidence.

      B.     Whether The ALJ Erred in Determining That Chereza’s Mental
             Health, Cervical Spine, and Hearing Impairments Were Not “Severe”

      The claimant bears the burden of proving that she has a severe impairment

or combination of impairments. Chester v. Brown, 792 F.2d 129, 131 (11th Cir.

1986). An impairment is not severe if it does not significantly limit the claimant’s

physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a);

Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). “Basic work

activities” include: physical functions such as walking, standing, sitting, lifting,

pulling, reaching, carrying, or handling; seeing, hearing, and speaking;

                                           13
understanding, carrying out, and remembering simple instructions; use of

judgment; responding appropriately to supervision, co-workers, and usual work

situations; and dealing with changes in a routine work setting. 20 C.F.R.

§ 404.1521(b). An impairment is not severe only if the abnormality is so slight and

its effect so minimal that it would clearly not be expected to interfere with the

individual’s ability to work, irrespective of age, education, or work experience.

McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). It is a threshold

inquiry where only the most trivial impairments are rejected. Id.

             i.     Mental Health Impairments

      The ALJ determined that Chereza’s mental health impairments were

“severe” until August 1, 2003. The medical evidence after August 1, 2003,

showed that Chereza complained of mood swings and pressured speech, but

reported that her depression and anxiety were controlled by medications. Dr.

Warburton, a treating physician, described Chereza’s speech and motor behavior as

normal, and Dr. Rabinowitz, an examining physician, stated that Chereza’s

memory was intact, her behavior was appropriate, and she appeared able to handle

funds. Chereza reported that she did all of her shopping, prepared her meals, and

got along well with others. Black reported that Chereza had difficulty

understanding verbal or written directions, but did not indicate how severe this



                                          14
problem was, and Dr. Putney determined that Chereza’s daily activities,

concentration, persistence, and pace were only mildly limited. See Edwards, 937

F.2d at 585 (providing that an ALJ may rely on a non-examining physician’s report

in denying disability insurance benefits if the non-examining physician’s report did

not contradict information in examining physicians’ reports). Based on this

medical evidence, substantial evidence supports the ALJ’s conclusion that, as of

August 1, 2003, Chereza was no longer suffering from a severe mental impairment.

             ii.   Cervical Spine Impairment

      Substantial evidence supports the ALJ’s finding that Chereza’s cervical

spine impairment was not severe. Radiology reports from March and September

1997, showed that Chereza’s cervical spine appeared normal. Although Chereza

complained of stiffness and pain in her cervical spine from May through December

2002, Dr. Acosta noted that injections, water therapy, and a Lidoderm patch

provided pain relief. In fact, by December 2002, Chereza reported “very

significant relief” in pain and stiffness, and Dr. Acosta determined that there was

no need for repeat injections. Although Chereza was diagnosed with a cervical

sprain in January 2003, and received another Botox injection in May 2003, after

August 1, 2003, Chereza received only two Botox injections to treat “muscle

spasms.” Furthermore, any pain or stiffness in Chereza’s cervical spine did not



                                          15
appear to limit her ability to perform work activities. An August 2003 Physical

Residual Functional Capacity Assessment showed that Chereza could frequently

carry 10 pounds, stand or walk for 6 hours in an 8-hour workday, climb stairs, and

balance, stoop, kneel, crouch, and crawl. Moreover, Chereza indicated in May

2004 that she was able to prepare her own meals and do all of her shopping.

Finally, Dr. Rabinowitz determined, in July 2004, that Chereza’s range of motion

in her cervical spine was normal, and a July 2004, Residual Capacity Assessment

indicated that Chereza could occasionally lift 50 pounds, frequently lift 25 pounds,

stand or walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-

hour workday. Accordingly, because Chereza’s problems with her cervical spine

did not have more than a minimal effect on her daily activities, the district court

did not err in determining that Chereza’s cervical spine impairment was not severe.

See 20 C.F.R. § 404.1521(a), (b); McDaniel, 800 F.2d at 1031.

             iii.   Hearing Impairment

      In an October 30, 2003, “Reconsideration Report for Disability Cessation”

and at the hearing before the ALJ, Chereza did not mention her hearing impairment

as an impairment that impacted her daily activities. Although Chereza mentioned

that she was having trouble hearing the ALJ at a prior hearing, another individual

indicated that the problem was with the sound system, not Chereza’s hearing, and



                                          16
Chereza continued to answer the ALJ’s questions. Furthermore, recent evidence

regarding Chereza’s hearing impairment was presented only to the Appeals

Council, so that the ALJ did not have an opportunity to consider it. Because the

claimant bears the burden of producing evidence of her disability, the district court

did not err in failing to consider Chereza’s hearing impairment as a severe

impairment. See Chester, 792 F.2d at 131. Accordingly, we affirm the district

court’s decision upholding the denial of social security benefits as of August 1,

2003.

        AFFIRMED.




                                          17
