[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-16091

Non-Argument Calendar

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D.C. Docket No. 8:10-cv-00757-SDM-DNF

MICHAEL A. NYE, 

 Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(July 26, 2013)

Before HULL, JORDAN, and FAY, Circuit Judges.

PER CURIAM: 

Michael A. Nye appeals the district court’s order affirming the Social 

Security Administration’s denial of his applications for disability insurance 

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benefits and supplemental security income. Nye argues that the Administrative 

Law Judge (“ALJ”) improperly concluded that he had the residual functional 

capacity (“RFC”) to perform his past relevant work. Further, he argues that the 

ALJ improperly discredited his testimony and improperly mischaracterized and 

discredited the medical opinion of his treating physician. For the reasons set forth 

below, we affirm the district court’s order.

I.

Nye filed concurrent applications for disability insurance benefits and 

supplemental security income, pursuant to Titles II and XVI of the Social Security 

Act (“SSA”), on May 23, 2007. In his applications, Nye alleged that he was 

disabled due to an unspecified condition with an onset date of March 30, 2007. 

His applications were denied initially and upon reconsideration. Nye was granted 

an administrative hearing before an ALJ. 

At the hearing, Nye testified that he was 53 years’ old and he had studied 

applied music in college, but he did not receive a college degree. Since 

approximately five years prior to the hearing, Nye had lived in an assisted living 

facility for individuals with mental health issues, and the facility was operated by 

the Boley Centers for Behavioral Healthcare (“Boley”). As to his past 

employment, Nye had worked as a server at a restaurant and as a cashier at an 

Albertsons. However, Nye could not retain employment because he “dealt with a 

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lot of confusion,” and he had trouble “working with people and [with] the 

mechanics of the job itself.” Nye also had problems with being absent from work, 

and his performance level was “very low.” As to Nye’s mental health, he has 

severe depression and very poor sleep habits. Further, when Nye is confronted 

with large groups of people, he “freeze[s] up” and has “racing thoughts” that are 

“pretty severe.” Nye also experiences confusion that prevents him from retaining 

information, and he has experienced “bou[]ts of paranoia.” Nye had taken 

psychotropic medicine for his mental health issues and those medicines were 

“somewhat effective.” Nye also had several physical ailments, including a lung 

disorder, hypertension, fatigue, colon cancer, esophagitis, and esophageal varices 

(enlargement of blood vessels). Nye indicated that he can do “very basic” 

household chores, including a limited amount of cooking, and his only hobby is 

sketching. Finally, as to the reason that Nye is unable to work full-time, he stated, 

“I can’t concentrate. I can’t seem to deal with people and do a physical job at the 

same time. . . My thoughts[] run away from me.” Further, Nye testified that his 

condition has not improved with therapy or medicine. 

Nye’s medical records showed that Dr. Randolph Hemsath examined him on 

April 6, 2005, and indicated that he had a history of problems with alcohol, 

depression, bipolar disorder, and possible attention deficit hyperactivity disorder. 

Further, Nye had experienced feelings of “moderate depression,” but he was not 

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suicidal. However, Nye was sleeping “pretty good” and, although he complained 

of ongoing anxiety, he had no recent experiences of severe panic. Additionally, 

Nye had ongoing problems with having a poor attention span and poor 

concentration. As to Nye’s psychiatric history, Dr. Hemsath noted that Nye had a 

history of manic symptoms. However, Nye was “alert and oriented,” and he 

appeared to be cognitively “intact.” Further, Nye’s insight and judgment appeared 

adequate, but he did have some “moderate depression and minimal anxiety as well 

as a mild tremor.” Nye was taking a variety of medications for his conditions. The 

report diagnosed Nye with bipolar disorder and alcohol dependency that had been 

in remission for one month, and it noted that his “[g]lobal assessment of 

functioning” (“GAF”) score was 42. Ultimately, Dr. Hemsath recommended that 

Nye begin taking Lamictal, a mood disorder medication. 

On December 10, 2007, Nancy Dinwoodie, M.D., completed a psychiatric 

review technique for Nye, and she concluded that Nye had mild restrictions in 

activities of daily living and mild difficulties in maintaining concentration, 

persistence, or pace. Further, Dr. Dinwoodie believed that Nye had moderate 

difficulties in maintaining social functioning. As to the functional capacity 

assessment, Dr. Dinwoodie concluded that Nye was capable of: (1) understanding 

and following instructions; (2) sustaining concentration for task completion; and 

(3) completing a full workday and workweek. 

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On August 17, 2007, Timothy Foster, Ph.D., completed a Mental RFC 

Assessment for the Social Security Administration. Dr. Foster noted that Nye had 

moderate limits in his ability to concentrate due to racing thoughts, as well as 

moderate limits in his ability to work within a schedule and maintain regular 

attendance. Nye also had moderate limits in his “ability to complete a normal 

workday or workweek without interruptions from his psychologically based 

symptoms.” Additionally, Nye appeared to have moderate limits in the ability to 

relate appropriately to others and to adapt to changes in the workplace. However, 

Nye was able to sustain concentrated, task oriented activity. Dr. Foster also 

completed a psychiatric review technique for Nye, and he concluded that Nye had 

mild restrictions in activities of daily living; moderate difficulties in maintaining 

social functioning; and moderate difficulties in maintaining concentration, 

persistence, or pace. Dr. Foster noted that Nye’s treatment records indicated that 

his condition had improved since he started taking Lithium. 

The record also contained extensive notes from Nye’s individual counseling 

and group therapy sessions at Boley from 2007 to 2009. Throughout the sessions, 

Nye occasionally reported symptoms of anxiety, manic behavior, racing thoughts, 

difficulties with concentration, depression, and sleeplessness. However, Nye also 

indicated on several occasions that he could control his symptoms with medication, 

coping skills, and utilizing his support system. 

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Further, the record included notes from Nye’s participation in the Life 

Enhancement Activity Program (“LEAP”), a treatment program at Boley, from 

May 2008 until June 2009. While enrolled in the program, Nye attended group 

therapy sessions multiple days per week from 8:30 a.m. until 2:00 p.m. During the 

sessions, the group discussed various topics, including coping skills and ways to 

manage symptoms of depression, mania, anxiety, and substance abuse. Further, 

the participants rated their recovery process on a scale of one to ten, with one 

indicating extreme risk for relapse and ten indicating stability in their mental health 

or dependency recovery process. On numerous occasions, Nye rated his mental 

health recovery at a level nine. On June 11, 2009, Nye was discharged from the 

program, and his discharge summary indicated that he had made “significant 

changes” during his enrollment in LEAP. Specifically, Nye was stable on his 

medications, and his recovery was progressing well. 

The ALJ found that Nye was not disabled under the SSA. Specifically, Nye 

has the following severe impairments: chronic obstructive pulmonary disease, 

secondary to emphysema; hepatitis C; lumbar scoliosis with resultant low back 

pain; bipolar disorder; and a history of alcohol abuse, in current remission. 

However, Nye’s physical and mental impairments did not meet or equal one of the 

listed impairments in 20 C.F.R. § 404, Subpart P. Moreover, in light of the record 

as a whole, Nye had the RFC to perform a full range of medium work, as defined 

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by the SSA. Nye had no manipulative, visual, communicative, postural, or 

environmental limitations. Further, he could hear, understand, remember, and 

carry out simple, routine, and complex work instructions. Nye had only moderate 

limitations in his ability to interact appropriately with coworkers, supervisors, and 

the general public. In making these findings, the ALJ considered all of Nye’s 

symptoms and the extent to which they could reasonably be accepted as consistent 

with the objective medical evidence as well as opinion evidence. 

The ALJ further noted that Nye had alleged an inability to work due to 

bipolar disorder, which produced symptoms including disturbed sleep, confusion, 

paranoia, hallucinations, reduced ability to tolerate others, fatigue, and lack of 

concentration. He reported some improvement from medications, but he also 

reported side effects from the medication, including nervousness and sleepiness. 

After careful consideration of the evidence, the ALJ found that Nye’s medical 

impairments could reasonably be expected to cause at least some of his alleged 

symptoms, but that Nye’s statements concerning the intensity, persistence, and 

limiting effects of his symptoms were not credible to the extent that they were 

inconsistent with the RFC assessment. Although Nye may experience some degree 

of fatigue, the medical record did not document any condition that would support 

Nye’s allegations regarding the extent of his fatigue. Further, “Nye’s levels of 

activity reported in his medical records, as well as his hearing testimony that he 

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had begun bowling, suggest that he is far more active than he represents.” 

Moreover, Nye had presented only minimal evidence related to the relevant time 

period, none of which establish limitations sufficient to be disabling. 

Further, the ALJ found that Nye’s medical records contradicted his 

testimony that he experienced only marginal improvement from his medications. 

Specifically, the notes from Nye’s counseling sessions frequently referenced the

improvement resulting from his medications, and Nye reported “on multiple 

occasions that his mental status [was] a nine on a ten-point scale.” Nye’s reports, 

as contained in these notes, “wholly refute” his current statements regarding his 

alleged disability. Additionally, Nye had not provided any statements from a 

treating physician indicating that he was unable to work or that he had a condition 

that would limit his activities. These factors weigh against a finding that Nye has a 

disability. In sum, the ALJ concluded that the RFC assessment was supported by 

Nye’s medical records; the report of the state agency’s consultant, as modified by 

Nye’s subjective statements to the extent that they were credible; and the ALJ’s 

review of the record as a whole. The ALJ further found that Nye was capable of 

performing past relevant work as a restaurant server. Specifically, the ALJ noted 

that such work can be generally performed at a medium, unskilled level but, even 

if not, many other unskilled jobs were available at or below the medium exertion 

level. Thus, Nye could not be considered disabled. 

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The Appeals Council denied Nye’s request for review. The magistrate judge 

issued a report and recommendation that the district court affirm the 

Commissioner’s decision. Over Nye’s objections, the district court adopted the 

recommendation and affirmed the decision.

II.

Similarly to the district court, we must review the agency’s decision and 

determine whether its conclusion, as a whole, was supported by substantial 

evidence in the record. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). 

“Substantial evidence is more than a scintilla and is such relevant evidence as a 

reasonable person would accept as adequate to support a conclusion.” Winschel v. 

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted). 

“We may not decide the facts anew, reweigh the evidence, or substitute our

judgment for that of the [Commissioner].” Id. 

The Commissioner uses

a five-step, sequential evaluation process . . . to determine whether a 

claimant is disabled: (1) whether the claimant is currently engaged in 

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

impairment or combination of impairments; (3) whether the 

impairment meets or equals the severity of the specified impairments 

in the Listing of Impairments; (4) based on [the RFC] assessment, 

whether the claimant can perform any of his or her past relevant work 

despite the impairment; and (5) whether there are significant numbers 

of jobs in the national economy that the claimant can perform given 

the claimant’s RFC, age, education, and work experience.

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Id. At step four of the sequential analysis, the claimant bears the burden of 

demonstrating that he cannot return to his past relevant work. Lucas v. Sullivan, 

918 F.2d 1567, 1571 (11th Cir. 1990). If the claimant can return to his past 

relevant work, the ALJ will conclude that the claimant is not disabled. Phillips v. 

Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). The RFC is “that which an 

individual is still able to do despite the limitations caused by his or her 

impairments.” Id. The ALJ considers all of the evidence in the record in 

determining the claimant’s RFC. Id. 

The individual seeking Social Security disability benefits bears the burden of 

proving that he is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 

2005). A claimant may establish that he has “a disability through his own 

testimony of pain or other subjective symptoms.” Dyer, 395 F.3d at 1210. 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. In evaluating a claimant’s testimony, the ALJ should also consider: (1) the 

claimant’s daily activities; (2) the “duration, frequency, and intensity” of the 

claimant’s symptoms; (3) “[p]recipitating and aggravating factors”; (4) the 

effectiveness and side effects of any medications; and (5) treatment or other 

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measures taken by the claimant to alleviate symptoms. 20 C.F.R. 

§§ 404.1529(c)(3), 416.929(c)(3). The ALJ is to consider these factors in light of 

the other evidence in the record. Id. §§ 404.1529(c)(4), 416.929(c)(4). We will 

not disturb a clearly articulated credibility finding that is supported by substantial 

evidence. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). Finally, the 

Commissioner has noted that the GAF scale “does not have a direct correlation to 

the severity requirements in our mental disorders listings.” 65 Fed. Reg. 50746, 

50764-65 (Aug. 21, 2000). 

As an initial matter, Nye concedes that, before the district court, his 

arguments related only to the limitations from his mental impairments. Thus, we

may decline to address any issues regarding Nye’s physical limitations. See 

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) 

(explaining that, as a general principle, when a claimant fails to raise an issue in 

the district court, we may decline to address it). Regardless, in his appeal brief, 

Nye does not specifically discuss any of his physical impairments or argue that any 

such impairment limits his ability to work. Instead, Nye focuses solely on his 

mental limitations and his need for extensive therapy. As such, Nye has waived 

any challenge to the ALJ’s determination regarding his physical abilities. See 

Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318-19 (11th Cir. 

2012) (explaining that a party waives an argument not raised in his appeal brief 

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and that a passing reference to an issue is insufficient to preserve the issue). 

Additionally, to the extent that Nye challenges the district court’s findings, his 

arguments are not relevant because we review only the ALJ’s decision under the 

substantial evidence standard. See Dyer, 395 F.3d at 1210.

Here, the ALJ’s decision is supported by substantial evidence. Nye first 

challenges the ALJ’s finding that he had begun bowling, which suggested that Nye 

was more active than he represented during his hearing testimony. Nye is correct 

that no evidence supports the ALJ’s finding that he had begun bowling. On 

appeal, Nye suggests that the ALJ may have misheard “Boley,” the name of his 

treatment facility, as “bowling,” but the record is unclear regarding whether the 

ALJ misheard any of Nye’s hearing testimony. Moreover, it is also unclear 

whether the ALJ’s finding that Nye had begun bowling related only to his alleged 

physical limitations, which are not at issue in this appeal. Regardless, despite this 

unsupported finding, substantial evidence supports the ALJ’s determination, as a 

whole, that Nye was not disabled because he had the RFC to perform his past 

relevant work. See Dyer, 395 F.3d at 1210. Contrary to Nye’s instant argument, 

the ALJ’s finding that he had begun bowling was not a “prominent” consideration 

in the ALJ’s decision. Instead, the ALJ reviewed the record as a whole in finding 

that Nye had the RFC to perform a full range of medium work under the SSA. 

Specifically, the ALJ relied on Nye’s medical records, the reports of Dr. 

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Dinwoodie and Dr. Foster, and Nye’s subjective statements, to the extent that those 

statements were credible. 

In assessing the RFC and Nye’s credibility, the ALJ acknowledged that 

Nye’s bipolar disorder could reasonably be found to cause at least some of his 

alleged symptoms, including disturbed sleep, confusion, a reduced ability to 

tolerate others, fatigue, and a lack of concentration. The ALJ found, however, that 

Nye’s mental health issues were not sufficiently disabling and that his medical 

records contradicted his testimony that he experienced only marginal 

improvements from medication. These conclusions were supported by sufficient 

evidence. See Winschel, 631 F.3d at 1178. Specifically, the notes from Nye’s 

individual and group counseling sessions at Boley indicated that, on several 

occasions, he reported that he was able to manage his symptoms through 

medication and other coping skills and that his medications were working. 

Further, throughout his participation in LEAP, Nye repeatedly assessed his mental 

health recovery status as a nine on a ten-point scale, with ten indicating a stable 

condition. Additionally, Dr. Foster and Dr. Dinwoodie indicated that Nye had only 

mild or moderate restrictions in activities of daily living, maintaining social 

functioning, and maintaining concentration, persistence, and pace. Dr. Foster 

indicated that Nye’s condition had improved with medication, and Dr. Dinwoodie 

indicated that Nye was capable of understanding and following instructions, 

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sustaining concentration for task completion, and completing a full work week. 

Additionally, in diagnosing Nye with bipolar disorder, Dr. Hemsath, the treating 

physician, indicated that Nye’s insight and judgment appeared to be adequate. 

Further, Dr. Hemsath indicated that, although Nye experienced moderate 

depression and minimal anxiety, he was alert, oriented, and cognitively intact. The 

foregoing evidence supports the ALJ’s finding that Nye had the RFC to perform a 

full range of medium work as defined by the SSA.

Nye testified that he was unable to maintain employment due to his inability 

to concentrate and his difficulties in dealing with other people while working at the 

same time. He also testified that therapy and medicine had not improved his 

symptoms. However, Nye failed to present any objective medical evidence to 

confirm the severity of his alleged subjective symptoms or that his inability to 

concentrate or work with others would preclude his employment. See Dyer, 395 

F.3d at 1210. Further, Nye’s reports during his therapy sessions contradict his 

hearing testimony that medicine and therapy had been ineffective in treating his 

symptoms. In sum, the evidence in the record was sufficient to support the ALJ’s 

findings that Nye had the RFC to perform a full range of medium work, including 

his past relevant work as a restaurant server, and that Nye’s testimony concerning 

the intensity, persistence, and limiting effect of his symptoms, was not entirely 

credible. See Winschel., 631 F.3d at 1178; Foote, 67 F.3d at 1562. 

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Finally, contrary to Nye’s argument on appeal, the ALJ did not 

mischaracterize or discredit Dr. Hemsath’s medical opinion. Nye argues that the 

ALJ failed to recognize Dr. Hemsath’s opinion that Nye’s condition required him 

to attend treatment programs for most of the normal workweek, which indicated 

that Nye’s condition was severe enough to preclude employment. While Dr. 

Hemsath may have approved of Nye’s participation in LEAP, there was no 

evidence that Dr. Hemsath prescribed a particular treatment program or that Dr. 

Hemsath expressed any opinion regarding how many hours per week that Nye 

should attend therapy. In fact, as noted by the ALJ, Nye presented no statements 

from a treating physician indicating that his mental health issues rendered him 

unable to work. In light of Nye’s burden to establish that he was unable to perform 

his past relevant work, such a lack of evidence weighed against a finding that Nye 

was disabled. See Lucas, 918 F.2d at 1571; Phillips, 357 F.3d at 1238. Nye also 

suggests that his GAF score of 42 showed that he suffered from serious 

impairments. However, the Commissioner has noted that the GAF scale “does not 

have a direct correlation to the severity requirements in our mental disorders 

listings.” 65 Fed. Reg. at 50764-65. For these reasons, Nye has not shown that the 

ALJ mischaracterized or discredited Dr. Hemsath’s opinion. 

For the foregoing reasons, we affirm the district court’s order.

AFFIRMED.

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