           Case: 13-12654   Date Filed: 05/19/2014   Page: 1 of 7


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12654
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cv-00194-CAS



FREDERIC J. GOMBASH, III,

                                                            Plaintiff-Appellant,

                                  versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                          Defendant-Appellee.

                      ________________________

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

                             (May 19, 2014)

Before PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 13-12654        Date Filed: 05/19/2014      Page: 2 of 7


       Frederic J. Gombash, III, through counsel, appeals the district court’s order

affirming the Social Security Administration’s (“SSA”) final decision terminating

his disability insurance benefits (“DIB”) and supplemental security income

(“SSI”). Specifically, he argues that substantial evidence did not support the

Administrative Law Judge’s (“ALJ”) determination that he experienced work-

related medical improvement and was no longer disabled as of August 1, 2009. He

concedes that, as of that date, his condition did not meet or equal a listed

impairment; however, he nevertheless maintains the record demonstrated that his

overall impairments—physical and mental—were severe enough to prevent him

from engaging in substantial gainful activity. 1 After careful review, we affirm.

       We review the Commissioner’s final decisions to determine if they are

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. (quotations omitted). Because we “may not decide the


       1
          Gombash also raises two other arguments, neither of which has been properly presented
on appeal. First, he identifies an alleged error in the ALJ’s hypothetical questions to the
vocational expert, but he provides no supporting argument. See Singh v. U.S. Att’y Gen., 561
F.3d 1275, 1278 (11th Cir. 2009) (“[S]imply stating that an issue exists, without further
argument or discussion, constitutes abandonment of that issue and precludes our considering the
issue on appeal.”). Second, he contends that while his present ailments no longer meet or equal
the original listed impairment, they nevertheless satisfy a different listed impairment. However,
Gombash did not make that argument below. See Crawford v. Comm’r, 363 F.3d 1155, 1161
(11th Cir. 2004) (declining to address appropriateness of hypothetical when claimant did not
raise the issue before the district court at any point).
                                                2
              Case: 13-12654     Date Filed: 05/19/2014    Page: 3 of 7


facts anew, reweigh the evidence, or substitute our judgment for that of the

[Commissioner],” a decision supported by substantial evidence must be affirmed,

“even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,

1240 n.8 (11th Cir. 2004) (quotations omitted). The burden ultimately rests with

the claimant to prove that he is disabled and entitled to Social Security benefits.

See 20 C.F.R. § 404.1512(a).

      A claimant’s continued entitlement to disability benefits must be reviewed

periodically. 20 C.F.R. § 404.1594(a). The Commissioner 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 Commissioner conducts a multi-step evaluation process to

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;



                                          3
              Case: 13-12654     Date Filed: 05/19/2014    Page: 4 of 7


      (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; and

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

See 20 C.F.R. § 404.1594(f). 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 . . . .”

20 C.F.R. § 404.1594(b)(1). To determine if there has been medical improvement,

the Commissioner 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 C.F.R.

§ 404.1594(c)(1). To terminate benefits, the Commissioner may not focus only on

new evidence concerning disability, but must also evaluate the evidence upon

which the claimant was originally found to be disabled. Vaughn v. Heckler, 727

F.2d 1040, 1043 (11th Cir. 1984). Without a comparison of the old and new

evidence, there can be no adequate finding of improvement. Id.




                                          4
               Case: 13-12654     Date Filed: 05/19/2014    Page: 5 of 7


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

Id. (quotations omitted). If the Commissioner discredits subjective pain testimony,

he or she must articulate explicit and adequate reasons for doing so. See Brown v.

Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). Substantial evidence must support

the Commissioner’s reasons for discrediting pain testimony. See Hale v. Bowen,

831 F.2d 1007, 1012 (11th Cir. 1987).

      Here, substantial evidence supported the ALJ’s determination of medical

improvement, which it properly made by starting with Gombash’s most recent

favorable disability determination—made in August 2004—and then surveying the

new medical evidence. See McAulay, 749 F.2d at 1500. That new evidence was,

as the ALJ noted, almost uniformly aligned in showing that Gombash’s physical

condition had medically improved—indeed, Gombash himself concedes that his

impairment no longer satisfied the listing requirements. To illustrate, in August

2004, Gombash was just one month removed from an automobile accident that

required surgery to repair his displaced, preexisting left leg fracture, a fracture that


                                           5
               Case: 13-12654     Date Filed: 05/19/2014   Page: 6 of 7


had already required hardware for stabilization and prevented him from ambulating

without assistance. Yet several years later, beginning with his 2008 emergency

room visits, the medical evidence showed that his leg experienced no intervening

dislocations or hardware failures, and that he was able to ambulate without

assistance, albeit with a limp.

      To be sure, Gombash’s injuries had deformed his left leg, shortening it by

two inches, but, for instance, upon examination in April 2009, Dr. Adhami

observed that he had normal reflexes and strength in the leg, and apart from his left

ankle, he regained a full range of motion. Dr. Zelaya’s October 2010 observations

were slightly less optimistic, noting that Gombash exhibited a somewhat limited

range of motion in his left leg and experienced significant muscle spasms, but were

largely consistent, as he similarly noted that Gombash walked without assistance

and had left-leg motor strength of 4/5. Finally, in their respective residual

functioning capacity (“RFC”) reports, after examining Gombash’s medical record,

Drs. Zelaya, Brigety, and Bancks each concluded that, while he was limited in

certain work-related activities, such as climbing and standing or walking, he could

nevertheless perform many other such activities such as sitting for long periods of

time, frequently lifting or carrying small weights, and using his hands to

manipulate items such as paper.




                                          6
               Case: 13-12654    Date Filed: 05/19/2014   Page: 7 of 7


        In evaluating whether Gombash suffered from severe impairments

preventing him from working, notwithstanding the medical improvement in his

physical condition, the ALJ also considered evidence of his mental health. And on

that point too, the record contains substantial evidence to support the ALJ’s

determination that Gombash was not disabled.

        As countervailing evidence in favor of disability, Gombash offered personal

attestations of pain and limitations. According to Gombash, following his onset

date, he tried to lay down and not do much during the typical day, in order to avoid

causing additional pain. Among other things, he also testified that he experienced

severe pain every day in his left leg, hip, and back. However, in light of the above-

surveyed record, substantial evidence supported the ALJ’s determination that

Gombash’s subjective evidence was not entirely credible. See Hale, 831 F.2d at

1012.

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

ALJ’s decision that as of August 1, 2009, Gombash was no longer disabled.

        AFFIRMED.




                                          7
