Terry Jones v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-15783 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 1, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:10-cv-00914-JBT
TERRY JONES,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 1, 2012)
Before MARTIN, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Terry Jones appeals the district court’s decision to affirm the
Commissioner’s denial of his applications for a period of disability and for
disability insurance benefits. On appeal, Jones argues that the administrative law
judge (“ALJ”) did not properly assess his residual functional capacity (“RFC”).
“We review the Commissioner’s decision to determine if it is supported by
substantial evidence and based on proper legal standards.” Crawford v. Comm’r
of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quotation marks omitted).
“Substantial evidence is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Cannon v. Bowen, 858 F.2d 1541,
1544 (11th Cir. 1988) (quotation marks omitted). “It is more than a scintilla, but
less than a preponderance.” Id. (quotation marks omitted). Like the district court,
“[w]e may not decide the facts anew, reweigh the evidence, or substitute our
judgment for that of the Commissioner.” Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004) (quotation marks and alterations omitted).
Under the Social Security Act, a person is disabled if he is unable “to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment.” 42 U.S.C. § 423(d)(1)(A). The Commissioner
uses a familiar, five-step process to determine whether a claimant meets this
definition. See 20 C.F.R. § 404.1520(a)(4). First, the Commissioner considers the
work activity of the claimant. Id. § 404.1520(a)(4)(i). If the claimant is
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performing substantial gainful activity, then he is not disabled. Id. If he is not
performing such activity, then the Commissioner moves to the second step, where
he considers the medical severity of the claimant’s alleged impairments. Id.
§ 404.1520(a)(4)(ii). If the claimant does not have an impairment, or a
combination of impairments, that is severe, then the claimant is not disabled. Id.
At the third step, the Commissioner determines whether the claimant’s
impairment or combination of impairments meets or equals a listed impairment.
Id. § 404.1520(a)(4)(iii). If so, then the claimant is considered disabled. Id. If
not, the Commissioner proceeds to the fourth step of the process, which entails an
assessment of the claimant’s RFC. Id. § 404.1520(a)(4)(iv). The question is
whether the claimant’s RFC renders him capable of performing “past relevant
work.” Id. If so, then the claimant is not disabled. Id. If not, the Commissioner
goes to the last step of the evaluation process, which focuses on whether the
claimant “can make an adjustment to other work,” id. § 404.1520(a)(4)(v)—that is,
whether the claimant can perform “any other work that exists in the national
economy,” id. § 404.1545(a)(5)(ii). If so, then the claimant is not disabled. Id. §
404.1520(g)(1).
On appeal, Jones argues that the ALJ erred at the fourth step of the
evaluation process—the assessment of his RFC. The ALJ found that Jones “is
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capable of performing and carrying out simple and repetitive instructions and tasks
on a sustained basis.” According to Jones, this finding is “insufficient” as a matter
of law because “the ability to do simple [and] repetitive things on a sustained basis
does not make a person capable of competitive employment.” This argument is
not persuasive, however. Indeed, at the fourth step of the process, the claimant’s
RFC is judged in relation to the work that the claimant has done in the past, and
not to an abstract notion of “competitive employment.” See id.
§ 404.1520(a)(4)(iv). Here, Jones has not argued that his past work as a
construction laborer required more than the capacity to “perform simple and
repetitive tasks on a sustained basis.”
Jones also attempts to suggest that substantial evidence does not support the
ALJ’s factual finding that his RFC allows him to do so. He emphasizes that, on
the RFC assessment forms, two of the doctors who evaluated him—Dr. Michael
Zelenka and Dr. Val Bee—checked the box “Moderately Limited” with regard to
his “ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods.” He notes that the third doctor
who evaluated him, Dr. Louis Legum, also indicated that there was a “marked”
limitation as to his ability in that respect.
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This argument is also unavailing because it does not consider “all of the
relevant medical and other evidence” that was before the ALJ. 20 C.F.R. §
404.1545(a)(3) (emphasis added). The Social Security Administration’s Programs
Operations Manual System (POMS) clarifies that the boxes checked by Dr.
Zelenka and Dr. Bee are only part of a worksheet that “does not constitute the
[doctors’ actual] RFC assessment.” POMS DI § 24510.060(B)(2). Checking the
box “Moderately Limited” means only that the claimant’s capacity is impaired; it
does not indicate the degree and extent of the limitation. See id. §
24510.063(B)(2). After checking the boxes as an “aid,” id. § 24510.060(B)(2), a
doctor is then required to detail his actual RFC assessment. See id. §
24510.060(B)(4).
Consistent with these directives, both Dr. Zelenka and Dr. Bee, after
checking the various boxes, elaborated on their opinions regarding Jones’s ability
to concentrate. Dr. Zelenka explained that Jones has “occasional” problems with
his attention span, but that he otherwise “retains adequate mental ability to carry
out simple instr[uctions] and to relate adequately to others in a routine work
setting.” Similarly, Dr. Bee stated that Jones “may” have “occasional lapses in
concentration and efficiency,” but that he otherwise “appears mentally capable of
well structured task activity.” These opinions tend to support the ALJ’s finding.
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Meanwhile, the ALJ gave “little weight” to Dr. Legum’s assessment that
there is a “marked” limitation to Jones’s ability to concentrate. The ALJ noted
that Dr. Legum made that determination almost two years after he first evaluated
Jones. The ALJ also found Dr. Legum’s assessment to be questionable in part
because, earlier, Dr. Legum had found that Jones “tended to amplify his
symptoms.” Cf. Phillips, 357 F.3d at 1240–41 (holding that a doctor’s opinion can
be discounted if it is inconsistent with his own notes). Finally, the ALJ had the
opportunity to observe Jones’s demeanor at the hearing, and he did not detect “any
evidence of a memory or concentration problem.” Cf. Macia v. Bowen, 829 F.2d
1009, 1011 (11th Cir. 1987) (holding that an ALJ may consider the demeanor of
an applicant during a hearing).
At this juncture, it bears repeating that “[w]e may not decide the facts anew,
reweigh the evidence, or substitute our judgment for that of the Commissioner.”
Phillips, 357 F.3d at 1240 n.8 (quotation marks omitted). Rather, the question that
we must answer is whether there is “more than a scintilla” of evidence such that “a
reasonable person would accept [it] as adequate to support [the ALJ’s]
conclusion.” Cannon, 858 F.2d at 1544. Because the answer is yes, the
Commissioner’s decision must be affirmed.
AFFIRMED.
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