              Case: 13-10292    Date Filed: 08/05/2013   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10292
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 1:09-cv-00183-MP-MD



BOBBY E. SOLOMON,

                                                                Plaintiff-Appellant,

                                      versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                              Defendant-Appellee.

                          ________________________

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

                                 (August 5, 2013)

Before WILSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Bobby Solomon appeals the district court’s order affirming the Social

Security Administration’s (SSA) final decision to issue him a closed period of
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disability insurance benefits running from July 26, 2004, through August 15, 2005,

pursuant to 42 U.S.C. § 405(g). He contends that the Social Security Appeals

Council (Appeals Council) erred in concluding that he experienced medical

improvement sufficient to remove his qualifying disability. Specifically, he argues

that (1) there was little if any difference in his physical condition from the onset of

his disability through the end of the closed disability period, and (2) the Appeals

Council failed to include the effect of his obesity, a non-listing impairment, in his

Residual Functional Capacity (RFC), as required under Social Security Ruling

(SSR) 02-1P. We now affirm.

                                               I.

      To establish our standard of review, the procedural history of this case is

important to note. Twice has Solomon’s claim been before an Administrative Law

Judge (ALJ). Both times the ALJ found that Solomon was disabled during the

period of July 26, 2004, through August 15, 2005, but found that he experienced

medical improvements as of August 16, 2005, and was therefore no longer

disabled. After the second hearing before the ALJ, the Appeals Council accepted

jurisdiction, and found that the ALJ’s finding of medical improvement was not

supported by specific evidence in the record. As a result, the Appeals Council

conducted a thorough review of the record, and determined—as the ALJ did twice

before—that Solomon was entitled to a closed period of disability but that his


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entitlement to benefits ended as of August 16, 2005, because of medical

improvement.

      Because the Appeals Council granted review of the ALJ’s decision, “the

Appeals Council decision is reviewable as the final decision of the [Commissioner

of Social Security].” Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)

(internal quotation marks omitted). Our review therefore is directed to the Appeals

Council’s decision, and we must determine whether that decision is supported by

substantial evidence. Parker v. Bowen, 788 F.2d 1512, 1517 (11th Cir. 1986)

(holding that “federal courts may only review the [Commissioner’s] ‘final

decision’, and since the [Commissioner] has delegated his authority to make final

decisions to the Appeals Council, federal courts must review the Appeals

Council’s decision to determine if it is supported by substantial evidence”). The

Appeals Council’s decision is entitled to the same deference as the decision of the

ALJ. Id. at 1522.

                                         II.

      On appeal, Solomon first argues that the Appeals Council erred when it

determined that he experienced medical improvement sufficient to remove his

qualifying disability. The Commissioner may terminate a claimant’s benefits upon

finding that there has been (1) a medical improvement in the claimant’s

impairment or a combination of impairments related to the claimant’s ability to


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work, and (2) that the claimant is now able to engage in substantial gainful activity.

42 U.S.C. § 423(f)(1). Medical improvement is defined as:

      any decrease in the medical severity of [the claimant’s] impairment(s)
      which was present at the time of the most recent favorable medical
      decision that [he] w[as] disabled or continued to be disabled. A
      determination that there has been a decrease in medical severity must
      be based on changes (improvement) in the symptoms, signs and/or
      laboratory findings associated with [the claimant’s] impairments.

20 C.F.R. § 404.1594(b)(1). We have “held that a comparison of the original

medical evidence and the new medical evidence is necessary to make a finding of

improvement.” McAulay v. Heckler, 749 F.2d 1500, 1500 (11th Cir. 1985) (per

curiam); see 20 C.F.R. § 404.1594(c)(1). To terminate benefits, the Commissioner

may not focus only on current evidence of disability, but must also “evaluate the

medical evidence upon which [the claimant] was originally found to be disabled.”

Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th Cir. 1984) (per curiam). Without a

comparison of the old and new evidence, there can be no adequate finding of

improvement. Id.

      A claimant may establish that he has “a disability through his own testimony

of pain or other subjective symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210

(11th Cir. 2005) (per curiam). In such a case, the claimant must show:

      (1) evidence of an underlying medical condition and either
      (2) objective medical evidence that confirms the severity of the
      alleged pain arising from that condition or (3) that the
      objectively determined medical condition is of such a severity


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      that it can be reasonably expected to give rise to the alleged
      pain.

Id. If the Commissioner discredits subjective pain testimony, he must then

articulate explicit and adequate reasons for doing so. See Brown v. Sullivan, 921

F.2d 1233, 1236 (11th Cir. 1991). Failure to articulate the reasons for discrediting

subjective testimony requires, as a matter of law, that the pain testimony be

accepted as true. Id. Substantial evidence must support the Commissioner’s

reasons for discrediting pain testimony. See Hale v. Bowen, 831 F.2d 1007, 1012

(11th Cir. 1987).

      In this case, substantial evidence supported the Appeals Council’s

determination that Solomon was disabled for the closed period of July 26, 2004,

through August 15, 2005. Solomon was awarded disability insurance benefits

beginning July 26, 2004, because, as the Appeals Council explained, there was

enough evidence in the record to conclude that, as of the date of his knee injury—

July 26, 2004—Solomon experienced sufficient pain to prevent him from

performing even sedentary work over the course of an eight-hour work day.

      There was also evidence, however, that as of August 16, 2005, Solomon’s

condition improved. On that date, Dr. Eftim Adhemi examined Solomon and

detected no significant limitation in his injured right knee. Moreover,

approximately two months later, Dr. Reuben Brigety examined Solomon’s medical

records and concluded that, based on his history and conditions, he could stand
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and/or walk up to four hours per day, engage in limited pushing and pulling with

his lower extremities, and could even occasionally climb, balance, and stoop.

Also, vocational expert Richard Hickey testified that a hypothetical individual with

characteristics resembling those of Solomon—morbid obesity and ambulation with

the aid of a cane—could work as a warehouse newspaper cutter or surveillance

system monitor.

      Although Solomon continued to complain of constant, severe knee pain

along with shortness of breath, substantial evidence supported the Appeals

Council’s decision to discount this subjective evidence as of August 16, 2005. See

Brown, 921 F.2d at 1236. There was no evidence that Solomon sought knee

treatment after March 2005, and as of August 2005, he was not taking prescription

pain medication. Moreover, Solomon testified that he was still able to take his

boat out on several occasions. These facts further undermine Solomon’s subjective

complaints of pain. See 20 C.F.R. § 404.1529(c)(3) (explaining that the

Commissioner may consider a claimant’s daily activities when evaluating his

complaints of pain).

      Based on the above, we conclude that substantial evidence supports the

Appeal Council’s decision that as of August 16, 2005, Solomon was no longer

disabled.

                                        III.


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      Solomon also argues that the Appeals Council failed to include the effect of

his obesity, a non-listing impairment, in his RFC. The SSA has acknowledged that

“[o]besity can cause limitation of function . . . in any of the exertional functions

such as sitting, standing, walking, lifting, carrying, pushing, and pulling.” 67 Fed.

Reg. 57859 (Sept. 12, 2002). Accordingly, under SSR 02-1P, an RFC assessment

should take account “of the effect obesity has upon the individual’s ability to

perform routine movement and necessary physical activity within the work

environment.” Id.

      Contrary to Solomon’s argument, his obesity was properly considered in his

RFC. To be precise, his obesity was considered by the above-noted individuals in

their assessments, which the Appeals Council evaluated, and it was also considered

independently by the Appeals Council, which concluded that his obesity was

“severe” but not symptomatic enough to qualify him for disability.

      It is clear that substantial evidence supported the Appeals Council’s

determination that as of August 16, 2005, Solomon’s physical impairments had

decreased in severity to the point that he was no longer disabled. It is also clear

that Solomon’s obesity was properly considered.

      AFFIRMED.




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