Fernandes v. Commissioner of Social Security , 378 F. App'x 985 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15191 MAY 12, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 09-00318-CV-FTM-99SPC
DAVID FERNANDES,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 12, 2010)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
In this case, an Administrative Law Judge (“ALJ”) denied David
Fernandes’s application for supplemental security income (“SSI”), 42 U.S.C. §
1383(c)(3), the Appeals Council denied Fernandes’s request for review, and the
denial operated as the Commissioner’s final decision. Fernandes thereafter
challenged the Commissioner’s decision in the United States District Court for the
Middle District of Florida. That court affirmed. Fernandes now appeals, arguing
that substantial evidence does not support the ALJ’s finding that he was not
disabled on the ground that he could perform work available in the national
economy. Specifically, Fernandes asserts that the hypothetical question posed by
the ALJ to the vocational expert did not comprise all of Fernandes’s alleged
impairments.
We review the ALJ’s factual findings with deference and the ALJ’s legal
conclusions with close scrutiny. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). We will not reweigh the evidence, make credibility determinations, or
substitute our judgment for that of the ALJ, but instead will review the record to
determine if substantial evidence supports the ALJ’s decision. Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is less than a
preponderance, but rather such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Id.
An individual claiming SSI benefits bears the burden of demonstrating the
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existence of a disability as defined by the Social Security Act (“Act”). Id. A
claimant is considered disabled “if he is unable 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 twelve months.” 42 U.S.C.
§ 1382c(a)(3)(A).
The social security regulations establish a “five-step sequential evaluation
process” to determine whether an SSI claimant is disabled. Crayton v. Callahan,
120 F.3d 1217, 1219 (11th Cir. 1997) (quotation omitted). The ALJ must evaluate:
(1) whether the claimant is engaging in substantial gainful employment;
(2) whether the claimant has a severe impairment; (3) whether the severe
impairment meets or equals an impairment in the listed impairments; (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 is other work that the claimant can perform. See Phillips v.
Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
If the claimant proves that he cannot perform his past relevant work at step
four, the burden shifts to the Commissioner to show, at step five, that there is other
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work available in the national economy that the claimant can perform. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). If the ALJ finds that the claimant is
able to perform other work, the ALJ “must articulate specific jobs that the claimant
is able to perform, and this finding must be supported by substantial evidence, not
mere intuition or conjecture.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002). One way in which the ALJ may determine whether the claimant is able to
perform other work is by posing a hypothetical question to a vocational expert.
See id. “In order for a vocational expert’s testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the
claimant’s impairments.” Id. Nevertheless, the ALJ’s hypothetical question “need
only include the claimant’s impairments,” as opposed to “each and every
symptom” allegedly suffered by the claimant but either not supported by medical
records or alleviated by medication. Ingram v. Comm’r of Soc. Sec., 496 F.3d
1253, 1270 (11th Cir. 2007) (quotation omitted).
In this case, the ALJ’s hypothetical question to the vocational expert was not
deficient in that it omitted some of Fernandes’s alleged impairments. Notably,
Fernandes has failed to show that these alleged impairments had support in the
record such that the ALJ needed to account for them in the hypothetical.
The judgement of the district court affirming the Commissioner’s decision
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is, accordingly,
AFFIRMED.
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