Jeremy Wayne Wills v. Social Security Administration, Commissioner

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10997
Non-Argument Calendar
____________________
JEREMY WAYNE WILLS,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-00872-NAD
____________________
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 1 of 11

-- 1 of 11 --

2 Opinion of the Court 22-10997
Before WILSON, B RANCH, and L UCK , Circuit Judges.
PER CURIAM:
Jeremy Wills appeals the district court’s order affirming the
Social Security Administration (“SSA”) Commissioner’s denial of
his application for disability insurance benefits (“DIB”). Wills
argues that the district court erred in affirming the administrative
law judge’s (“ALJ”) denial of his DIB application, arguing that the
ALJ improperly applied the pain standard. For the following
reasons, we affirm.
I. Background
In July 2017, Wills applied for DIB, alleging that his disability
began on December 15, 2015. His initial application was denied,
but he requested a hearing and appeared before an ALJ in May
2019. The ALJ admitted Wills’s medical records, which included
the following.
In 2008, Wills had back surgery. In late 2015, he began to
have back pain that “started slowly” but, by December 2015,
became “so bad” that he allegedly had difficulty lifting or standing
on his left leg. In December 2015, a doctor found that Wills’s
condition was normal aside from some “lumbar pain.” The doctor
suggested Wills undergo physical therapy and receive an epidural
injection.
Wills continued to have back problems that caused him pain
that he rated ten on a scale from one to ten. He then had another
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 2 of 11

-- 2 of 11 --

22-10997 Opinion of the Court 3
back surgery in May 2016. Following his second surgery, Wills had
several post-operative visits during which he explained that his
symptoms had improved, and he was not experiencing much pain.
However, his back pain eventually returned, and he had a third
back surgery in March 2017. In July 2017, Wills went to the doctor
complaining of migraine headaches and anxiety, as well as chronic
lower back pain.
In August 2017, Wills completed an SSA function report,
which asked “how [his] illnesses, injuries, or conditions limit[ed]
his abilities,” as part of his effort to obtain DIB in which he stated
the following. He was able to cook daily and cut the grass, use
farming equipment, and take out the trash so long as it was not too
heavy. He went out a few times per day, both on foot and by car.
He engaged in hobbies like fishing, hunting, and camping but “not
very often” since his pain began in December 2015. He also
engaged in social activities “daily.”
In June 2019, in connection with a claim that Wills had
submitted to Metropolitan Life Insurance Company (“Metlife”) for
disability benefits based on chronic back pain, Dr. Dope Adewunmi
opined that Wills’s physical condition “supported functional
limitations” and that his activities should be limited but ultimately
concluded that “[r]estricted full time work is supported.” Among
other reasons for coming to this conclusion, Dr. Adewunmi found
that Wills had “no specific limitations for reaching to the front and
side at desk level, fine finger movements, keyboarding, and eye-
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 3 of 11

-- 3 of 11 --

4 Opinion of the Court 22-10997
hand movements” and that Wills “should be able to sit
continuously with the ability to shift positions when seated.”
In January 2019, Wills went to the doctor again for
migraines, neck pain, back pain, and other complaints. He
underwent a spinal tap in February 2019. In April 2019, Wills
reported experiencing headaches, pain in his left arm, neck pain,
and back pain that became “worse over the last 3 months.”
However, an exam indicated that his “gait” and “posture,” as well
as the “strength [of his] upper and lower extremities,” were
“normal.”
In September 2021, an examiner issued the initial Disability
Determination Explanation (“DDE”) for Wills’s claim. The DDE
reported that Wills could perform occasional lifting of up to 20
pounds and frequent lifting of up to 10 pounds; he could “[s]tand
and/or walk” with normal breaks for 4 hours in an 8-hour workday
and sit with normal breaks for 6 hours in an 8-hour workday; and
he could “[o]ccasionally” climb ramps and stairs. However, the
DDE stated that Wills was limited in his ability to “[p]ush and/or
pull” with respect to his left leg; he should “[a]void concentrated
exposure” to humidity, vibration, and extreme cold; and he should
“[a]void all exposure” to “hazards” like “machinery [and] heights.”
Ultimately, the DDE concluded that Wills was not disabled, and
although his ability to perform past relevant work had not been
determined, he could “adjust to other work.”
Wills requested an ALJ hearing for his claim, and it was held
in May 2019. After reminding the ALJ of his history of impairments
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 4 of 11

-- 4 of 11 --

22-10997 Opinion of the Court 5
and surgeries, Wills testified that, in the past, he worked as a
groundman, lineman, and foreman for an electric company,
performing tasks like climbing polls and stretching wires. Later, he
worked an industrial cleaning job where he “climbed around in”
and cleaned cooling towers. He also worked as an electrician for a
period of three or four months.
Wills also testified that his back was the most severe pain,
extending down his left leg. He testified that the pain felt like “fire,”
was concentrated mostly in his hip, and occurred every time he
stood up and moved around. While the pain would subside when
he laid down, it would start right away when he started walking.
When he was sitting or lying down, the pain was “not that bad [if
he could] get all the weight off” his left leg. On a scale of zero to
ten, his pain was about a “five or a six” when standing and walking
and a “four or a five” when sitting.
Wills testified that he also suffered from severe headaches,
which had started a year prior and, at one point, occurred every
day before the doctors drained his spinal fluid. Thereafter, they
occurred once a week and sometimes lasted all day. Once every
two weeks, he had a headache that was an eight on a pain scale of
zero to ten and was “so bad that [he could] barely open [his] eyes.”
He also had trouble seeing out of his left eye ever since the
headaches began.
Wills testified that he had experienced tingling in his left arm
every day for a couple of years and had been unable to pick up a
gallon of milk with his left arm for the past six to eight months. His
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 5 of 11

-- 5 of 11 --

6 Opinion of the Court 22-10997
nerve pain was a “six or seven” on the zero to ten scale, but it was
not more severe than his back pain because it was “all tied
together” and was “more of a body pain.” He could lift 20 pounds,
but not 50 pounds, with his right arm, sit for 20 to 30 minutes, and
stand for 20 to 30 minutes without “proppin[g]” himself up. He
could take care of his personal needs, such as showering, getting
dressed, shaving, and feeding himself, without assistance. Wills
testified that his pain medication did not alleviate his back pain.
Before the hearing was closed, a vocational expert testified
that many several “light, unskilled” jobs existed in the national
economy for a person with Wills’s limitations.
In June 2019, the ALJ found that Wills was not disabled. The
ALJ found that Wills had not engaged in substantial gainful activity
since December 15, 2015, the alleged onset date of his disability,
and had “severe impairments [including] cardiomyopathy; obesity;
moderate bilateral carpal tunnel syndrome . . . lumbar foraminal
narrowing; and [a] history of surgeries.” However, the ALJ found
that none of these impairments met “or medically equal[ed] the
severity of one of the listed impairments” found in the Social
Security Regulations. Wills had the residual functional capacity
(“RFC”) “to perform light work” with certain limitations:
[S]tanding and walking limited to four hours total,
sitting up to six hours, no operation of foot controls;
no climbing stairs, ropes, ladders, or scaffolds;
frequently balance and occasional stopping, but no
kneeling, crouching, or crawling; occasionally reach
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 6 of 11

-- 6 of 11 --

22-10997 Opinion of the Court 7
overhead bilaterally; frequent, but not constant, gross
manipulation, no work around excessive vibration,
unexpected heights, or hazardous machinery;
standing and walking no more than 4 hours in an 8-
hour workday and sitting up to 6 hours in an 8-hour
workday; no work in extreme temperatures or
extreme humidity.
In assessing Wills’s RFC, the ALJ stated that, in considering
his symptoms, it must first determine “whether there is an
underlying medically determinable . . . impairment . . . that could
reasonably be expected to produce [Wills’s] pain or other
symptoms.” Next, the ALJ stated that it must then evaluate “the
intensity, persistence, and limiting effects of [Wills’s] symptoms to
determine the extent to which they limit [Wills’s] functional
limitations.” The ALJ noted that Wills had alleged chronic back
pain, daily hip and leg pain, and left arm tingling and that the
evidence showed a history of treatment for these impairments.
Nevertheless, the ALJ found that Wills’s statements concerning the
“intensity, persistence, and limiting effects” of those impairments
were not “consistent with the objective medical evidence.” The
ALJ concluded that, “[w]hile it is reasonable [that Wills] may
experience some symptoms that would cause some exertional and
non-exertional limitations, the objective medical evidence does not
support a complete inability to work.” The ALJ then reviewed the
medical evidence, Wills’s function report, and two doctor’s
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 7 of 11

-- 7 of 11 --

8 Opinion of the Court 22-10997
opinions and determined that Wills was unable to perform past
relevant work but found that he could perform other work.
Wills requested review of the ALJ’s decision, but his request
was denied by the SSA’s Appeals Council. Wills then filed a
complaint in the district court requesting review of the ALJ’s
decision. Wills argued in his memorandum in support of disability
that the ALJ (1) improperly applied the pain standard and (2) failed
to accept Wills’s subjective testimony regarding his pain. The
Commissioner responded, arguing that the ALJ applied the proper
pain standard and that substantial evidence supported the ALJ’s
decision. The magistrate judge affirmed the decision, finding that
it was properly based on the pain standard and that substantial
evidence supported the ALJ’s decision to discredit Wills’s
testimony about his pain.1
Wills timely appealed the decision of the district court.
II. Discussion
On appeal, Wills argues that the ALJ “improperly applied
the Eleventh Circuit[’s] pain standard.”2
1 The parties consented to the magistrate judge’s jurisdiction.
2 In his reply brief, Wills contends, for the first time on appeal, that the ALJ’s
decision was not sufficiently detailed to permit appellate review, and that the
ALJ’s reasons for discrediting his subjective complaints were not supported by
substantial evidence. Because Wills raises these arguments “for the first time
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 8 of 11

-- 8 of 11 --

22-10997 Opinion of the Court 9
“In Social Security appeals, we review
de novo the legal
principles upon which the Commissioner’s decision is based.”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
A disability is defined as an “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 individual seeking DIB bears the burden of
proving that he is disabled.
Moore, 405 F.3d at 1211.
The ALJ 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); 20 C.F.R.
§ 404.1520(a)(4)(i)-(v). At steps four and five, the ALJ must
determine whether the claimant has the RFC to perform his past
relevant work and, if not, any other work. 20 C.F.R.
§ 404.1520(a)(4)(iv)-(v). RFC is an assessment of a claimant’s ability
to do work despite his impairments.
Id. § 404.1545(a)(1). In
formulating an RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, and other requirements of work.”
Id.
§ 404.1545(a)(4). The ALJ examines all relevant medical and other
evidence, including “any statements about what [the claimant] can
still do that have been provided by medical sources” and
in his reply brief, [they are] not properly before us.”
Lovett v. Ray, 327 F.3d
1181, 1183 (11th Cir. 2003).
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 9 of 11

-- 9 of 11 --

10 Opinion of the Court 22-10997
“descriptions and observations” by the claimant and others of his
limitations, including limitations resulting from pain.
Id.
§ 404.1545(a)(3).
A three-part “pain standard” applies when a claimant
attempts to establish disability through his own testimony of pain
or other subjective symptoms.
Wilson v. Barnhart, 284 F.3d 1219,
1225 (11th Cir. 2002). The pain standard requires a claimant to
“satisfy two parts of a three-part test showing: (1) evidence of an
underlying medical condition, and (2) either (a) objective medical
evidence confirming the severity of the alleged pain” arising from
that condition, or (b) a showing “that the objectively determined
medical condition” is of such a severity that it “can be reasonably
expected to give rise to the claimed pain.”
Id.
Here, the ALJ correctly stated the pain standard. The ALJ
stated that it must determine “whether there is an underlying
medically determinable . . . impairment . . . that could reasonably
be expected to produce [Wills’s] pain or other symptoms.” The
ALJ then found that, while it was “reasonable [that Wills] may
experience some symptoms that would cause some exertional and
non-exertional limitations,” the extent of the pain he alleged was
inconsistent with the objective medical evidence. Thus, the ALJ
concluded that “the objectively determined medical condition”
was not of such a severity that it could “reasonably be expected to
give rise to [Wills’s] claimed pain.”
Wilson, 284 F.3d at 1225. Thus,
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 10 of 11

-- 10 of 11 --

22-10997 Opinion of the Court 11
the ALJ cited and properly relied upon this Court’s pain standard
when reaching the conclusion that Wills was not disabled.3
Because the ALJ properly stated and applied this Court’s
pain standard, we affirm.
AFFIRMED.
3 In his initial brief, Wills asserts, in the same section he discusses the ALJ’s
application of the pain standard, that the ALJ “failed to accept [Wills’s]
testimony of pain” and that “[w]hen the Commissioner fails to credit a
claimant’s pain testimony, he must articulate reasons for that decision. . . .
Implicit in this rule is the requirement that such articulation of reasons by the
[Commissioner] be supported by substantial evidence.” However, Wills does
not elaborate and fails to explain why the ALJ’s decision to discredit his
testimony was not supported by substantial evidence. Because Wills makes
“no arguments and cites to no authorities to support [this] conclusory
assertion[]” he has “abandoned in [his] initial brief any argument” he has that
the ALJ’s decision to discredit his testimony was not supported by substantial
evidence.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir.
2014). In any event, even if he had not abandoned this argument, the ALJ
discussed the medical evidence in detail and why it was inconsistent with
Wills’s testimony about his pain.
USCA11 Case: 22-10997 Document: 28-1 Date Filed: 04/06/2023 Page: 11 of 11

-- 11 of 11 --