           Case: 12-12709   Date Filed: 03/25/2013   Page: 1 of 9

                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 12-12709
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:11-cv-00026-WLS


JOHN LEVIE,

                                                         Plaintiff-Appellant,

                                  versus

COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant-Appellee.

                      ________________________

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

                             (March 25, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
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      John Levie appeals from the district court’s judgment affirming the Social

Security Administration’s (“SSA”) denial of his applications for disability

insurance benefits, 42 U.S.C. § 405(g), and supplemental security income, 42

U.S.C. § 1383. On appeal, Levie first argues that substantial evidence does not

support the administrative law judge’s (“ALJ”) finding that he was able to work.

Second, he asserts that substantial evidence does not support the ALJ’s finding that

he could perform his past relevant work. Finally, he argues that the Appeals

Council (“AC”) erred in denying review based on the new evidence that he had

submitted to the AC.

      After thorough review of the record and the parties’ briefs, we affirm.

                                I. Ability to work

      We review the decision of the ALJ as the Commissioner’s final decision

when the ALJ denies benefits and the AC denies review of the ALJ’s decision.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The Commissioner’s

factual findings are reviewed with deference, and the “factual findings are

conclusive if they are supported by substantial evidence, consisting of such

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

conclusion.” Id. (quotation marks omitted). Even if we find that the evidence

preponderates against the Commissioner’s decision, we must affirm if the decision

is supported by substantial evidence. Barnes v. Sullivan, 932 F.2d 1356, 1358


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(11th Cir. 1991). The claimant bears the burden of proving that he is disabled and,

thus, is responsible for producing evidence to support his claim. Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).

      The social security regulations establish a five-step, sequential evaluation

process to determine disability for disability benefits claims. See 20 C.F.R.

§ 404.1520(a)(4). The ALJ must evaluate: (1) whether the claimant engaged in

substantial gainful employment; (2) whether the claimant has a severe impairment;

(3) whether the severe impairment meets or equals an impairment in the Listing of

Impairments; or (4) whether the claimant has the residual functional capacity

(“RFC”) to perform his past relevant work; and (5) whether, in light of the

claimant’s RFC, age, education, and work experience, there are other jobs in the

national economy the claimant can perform. Id. In determining whether a

claimant is disabled, the Commissioner considers all of the claimant’s symptoms

and the extent to which the symptoms can reasonably be accepted as consistent

with the objective medical evidence and other evidence. Id. §§ 404.1529(a),

416.929(a).

      Substantial evidence supports the ALJ’s finding that Levie was not disabled

or unable to work. Contrary to Levie’s assertions, the evidence that he presented

did not demonstrate that he had an inability to work with co-workers or under any

supervision. He was fired from his previous jobs for reasons other than his


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vocational limitations. For example, Levie testified before the ALJ that he was

fired from his job at Automax because someone claimed that he had hit a car with

his trailer. He was fired from his job as a relief worker because the employer

claimed he left too many messes, from his job fixing computers because he was

claimed to have had inappropriate contact with a female, and from a second

computer job because he was claimed to have made a security mistake. Levie

never testified before the ALJ that he was fired from any of these jobs because of

an inability to get along with co-workers nor did he provide any evidence that he

was fired for this reason. Additionally, no treating physician or psychiatrist found

that Levie had the inability to work under supervision.

      Moreover, the ALJ specifically addressed Levie’s vocational limitations in

the RFC determination, as evidenced by the ALJ’s finding that Levie “should

perform simple, 1 to 3-step work, and he should not deal with the general public.”

While Levie stated that he did not like to interact with people, the ALJ credited his

testimony that he regularly attended church, shopped, went out to eat with his

family, visited with his mother’s sitters, and oversaw people performing repairs at

his church.

      Accordingly, substantial evidence supports the ALJ’s finding that Levie was

able to work.

                                 II. Past relevant work


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      To support a finding that the claimant is able to return to his past relevant

work, the ALJ must consider all of the duties of that work and evaluate the

claimant’s ability to perform them in spite of his impairments. See Lucas v.

Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990) (remanding for evaluation of all

of claimant’s impairments and the effect they have on her ability to fulfill the

duties of her past relevant work). The claimant bears the burden of proving that he

cannot return to his past relevant work. Id. at 1571. The claimant must

demonstrate an inability to perform his “past kind of work, not that he merely be

unable to perform a specific job he held in the past.” See Jackson v. Bowen, 801

F.2d 1291, 1293 (11th Cir. 1986) (holding that although claimant had

demonstrated that he could not perform his past job as a link belt operator at the

pipe manufacturing factory, he did not demonstrate that he could not perform such

jobs in general because he did not show that climbing and descending stairs is

generally a requisite of such jobs). Accordingly, where the claimant’s specific

prior job might have involved functional demands and duties significantly in

excess of those generally required for such work by employers in the national

economy, the claimant must still demonstrate that, in addition to being unable to

perform the excessive functional demands actually required by his former job, he

cannot perform the functional demands and job duties of the position as generally




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required by employers throughout the national economy. SSR 82-61, 1982 WL

31387 (1982).

      Here, substantial evidence supports the ALJ’s finding that Levie could return

to his past relevant work as a yard worker. As discussed above, Levie did not

demonstrate that he had the inability to work with co-workers or a supervisor, and

the ALJ found that the work of a yard worker did not require the performance of

work-related activities precluded by Levie’s RFC. While Levie indicated that he

had repaired and maintained equipment and kept records as part of his past work,

he did so because he was also the owner of the business, not because those tasks

generally are required as a yard worker. Although he might not be able to return to

all of the particular job duties he had performed in his prior job, substantial

evidence supports the ALJ’s conclusion that Levie did not meet his burden of

demonstrating that he would be unable to return to the occupation of yard worker

as it is generally performed in the national economy. See Lucas, 918 F.2d at 1571;

Jackson, 801 F.2d at 1293.

                                  III. AC evidence

      Generally, a claimant is allowed to present new evidence at each stage of the

administrative process. See 20 C.F.R. § 404.900(b). The AC must consider new,

material, and chronologically relevant evidence and must then review the case if

the ALJ’s decision is contrary to the weight of the evidence currently of record. Id.


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§§ 404.970(b), 416.1470(b). When a claimant properly presents new evidence to

the AC and it denies review, we essentially consider the claimant’s evidence anew

to determine whether “that new evidence renders the denial of benefits erroneous.”

Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1262 (11th Cir. 2007).

      SSA regulations provide that the medical opinion of a treating source is

entitled to controlling weight if it “is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence” in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

A treating source is defined as the claimant’s own physician or psychologist who

has provided the claimant with medical treatment or evaluation, and who has had

an ongoing relationship with the claimant. Id. § 416.902. A physician or

psychologist is not a treating source if the relationship “is not based on [the

claimant’s] need for treatment or evaluation, but solely on [the claimant’s] need to

obtain a report in support of [the] claim for disability.” Id. Additionally, the

opinion of a treating source may be discounted where the opinion is not supported

by objective medical evidence or is merely conclusory. See Johns v. Bowen, 821

F.2d 551, 555 (11th Cir. 1987).

      Here, the AC properly declined to review the ALJ’s decision in light of the

evidence submitted. The record reflects that the AC considered the evidence Levie

submitted in deciding not to review his case and found that it did not provide a


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basis for changing the ALJ’s decision. The AC specifically stated it “considered

the reasons [Levie] disagree[d] with the decision and the additional evidence listed

on the enclosed Order of Appeals Counsel.” Contrary to Levie’s assertion, nothing

requires the AC to further explain its denial of review, and in any event we must

consider the evidence anew to determine whether the new evidence renders the

denial of benefits erroneous. See Ingram, 496 F.3d at 1262.

      Moreover, the AC did not err in declining to review the ALJ’s decision in

light of the evidence submitted because the evidence was not material. Letters

from two members of Levie’s church showed that Levie had some difficulty

working with members of his church on construction projects. However, Levie

was not removed due to his alleged inability to get along with co-workers or

supervisors; instead, he was removed because he wanted to become a contractor

and the church did not want to give him an unfair advantage over other potential

contractors.

      The information provided by Dr. Todd Smith similarly did not render the

ALJ’s decision contrary to the weight of the evidence in the record. First, Dr.

Smith was not a treating psychologist as his opinion was not based on Levie’s need

for treatment or evaluation. Second, while Levie reported to Dr. Smith that he had

been terminated from every job he had previously held because of his inability to

interact with supervisors and co-workers, this information was directly at odds


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with Levie’s testimony before the ALJ regarding his reasons for being fired.

Finally, Dr. Smith’s evaluation showed that some of Levie’s test results were

suspect.

          Levie’s evidence did not render the ALJ’s decision contrary to the weight of

the evidence in the record, and the AC did not err in denying review.

                                    IV. Conclusion

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




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