Sean Pinion v. Commissioner of Social Security , 522 F. App'x 580 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10134
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00233-GRJ
SEAN PINION,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 19, 2013)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
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Sean Pinion appeals from the district court’s judgment affirming the
Administrative Law Judge’s (“ALJ”) denial of his application for disability
insurance benefits, 42 U.S.C. § 405(g), and supplemental security income, 42
U.S.C. § 1383(c)(3). On appeal, Pinion argues that: (1) the ALJ’s finding that
Pinion could work was unsupported by substantial evidence because the ALJ failed
to specify Pinion’s limited ability to maintain his concentration, persistence, or
pace in the ALJ’s hypothetical question to the vocational expert (“VE”); and (2)
the ALJ erred by rejecting the VE’s testimony that a hypothetical person with the
limitations set forth in the report of Dr. Benet, a consulting psychologist, would
not be able to work. After careful review, we affirm.
In a Social Security appeal, we must determine whether the ALJ’s decision
is supported by substantial evidence and based upon proper legal standards. See
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
Substantial evidence requires more than a scintilla of evidence, and is such relevant
evidence as a reasonable person would accept as sufficient to support a conclusion.
Id. We do not decide the facts anew, reweigh the evidence, or substitute our own
judgment for that of the ALJ. Id. Rather, so long as it is supported by substantial
evidence, we must defer to the ALJ’s decision even if the evidence may
preponderate against it. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004).
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Eligibility for disability insurance benefits and supplemental security income
requires that the claimant is under a disability. 42 U.S.C. § 423(a)(1)(E); 42
U.S.C. § 1382(a)(1)-(2). In relevant part, a claimant is under a disability if he is
unable to engage in substantial gainful activity by reason of a medically
determinable impairment that can be expected to result in death or which has lasted
or can be expected to last for a continuous period of at least 12 months. 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The claimant bears the burden of
proving his disability. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
In order to determine whether a claimant is disabled, the SSA applies a 5-
step sequential evaluation. 20 C.F.R. §§ 404.1520(a), 416.920(a). This process
includes an analysis of whether the claimant: (1) is unable to engage in substantial
activity; (2) has a severe medically determinable physical or mental impairment;
(3) has such an impairment that meets or equals a Listing and meets the duration
requirements; (4) can perform his past relevant work, in light of his residual
functional capacity (“RFC”); and (5) can make an adjustment to other work, in
light of his RFC, age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4).
A claimant who can perform his past relevant work is not disabled. 20
C.F.R. §§ 404.1560(b)(3), 416.960(b)(3). When determining whether a claimant
can perform his past relevant work, the ALJ first determines the claimant’s RFC.
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See 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant’s RFC is an assessment,
based upon all relevant evidence, of the claimant’s ability to do work despite his
impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
If the claimant meets the burden of proving that she is unable to perform her
past relevant work, the Commissioner bears the burden of determining whether
there is other work available at the fifth step. Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999). The Commissioner may show “that the claimant can perform
other jobs . . . through the testimony of a VE.” Id. at 1229. “In order for a VE’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Id. However, an
ALJ is “not required to include findings in the hypothetical that the ALJ had
properly rejected as unsupported.” Crawford, 363 F.3d at 1161.
Where an ALJ determines at step two of the sequential evaluation process
that the claimant’s mental impairments caused limitations in concentration,
persistence, or pace, the ALJ must include those limitations in the hypothetical
questions posed to the VE. Winschel, 631 F.3d at 1180-81. However, the ALJ
may instead include in the hypothetical questions the limitation that the claimant is
restricted to unskilled work if the medical evidence shows that the claimant can
perform simple, routine tasks or unskilled work despite her limitations in
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concentration, persistence, or pace. Id. (remanding for the ALJ to explicitly
include the claimant’s moderate limitation in maintaining concentration,
persistence, or pace in the hypothetical question because “the ALJ did not indicate
that medical evidence suggested [that the claimant’s] ability to work was
unaffected by this limitation, nor did he otherwise implicitly account for the
limitation in the hypothetical”).
The opinion of a treating physician must be given substantial or considerable
weight unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d
1232, 1240 (11th Cir. 2004). Good cause exists when: (1) the treating physician’s
opinion was not bolstered by the evidence; (2) the evidence supported a contrary
finding; or (3) the treating physician’s opinion was conclusory or inconsistent with
the doctor’s own medical records. Id. at 1241. “When electing to disregard the
opinion of a treating physician, the ALJ must clearly articulate its reasons.” Id.
In this case, the ALJ adequately considered Pinion’s limitations when
assessing his RFC. As the record shows, the ALJ appropriately accounted for
Pinion’s limitations in concentration, persistence, or pace by including in the RFC
and the hypothetical question the finding that Pinion had moderate restrictions in
the ability to understand, remember and carry out detailed instructions, to set
realistic goals, and to make plans independently of others; that he had decreased
focus, especially involving complex, mental demands, but was capable of
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understanding, remembering and carrying out simple instructions and tasks; and
that he required simple instructions and supportive supervision (especially at the
beginning) for well-structured tasks. Accordingly, the VE’s response to the
properly formulated hypothetical question constitutes substantial evidence
supporting the ALJ’s decision.
As for Dr. Benet’s report, the ALJ found that the opinion contained within --
that Pinion would have marked difficulty performing tasks involving sustained
concentration and persistence, social interaction and adaption -- was inconsistent
with the evidence of record. Specifically, the ALJ found that Pinion had very
active daily living activities, and that he was able to care for not only himself, but
also his three-week old child for a substantial part of the day. Pinion also testified
that he had friends, was engaged, and participated in social activities with his
friends and fiancée. These activities were inconsistent with Dr. Benet’s opinion
that Pinion would suffer marked difficulty performing tasks involving sustained
concentration and persistence, social interaction and adaption. See Phillips, 357
F.3d at 1241. Therefore, the ALJ properly disregarded the VE’s testimony based
on Dr. Benet’s opinion, as it was not bolstered by the evidence. Id.
AFFIRMED.
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