Charles Monroe Timmons v. Commissioner of Social Security

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16166
Non-Argument Calendar
________________________
D.C. Docket No. 6:11-cv-01320-KRS
CHARLES MONROE TIMMONS,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 9, 2013)
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Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Charles Timmons appeals the magistrate judge’s order affirming the Social
Security Administration’s denial of his applications for disability insurance
benefits, 42 U.S.C. § 405(g), and supplemental security income, 42 U.S.C.
§ 1383(c)(3). After review, we affirm.
I. BACKGROUND
A. Administrative Hearing
In his applications for benefits, Timmons alleged that he was unable to work
as of April 30, 2006, due to his bipolar disorder, personality disorder, and two disc
protrusions in his back resulting from a car accident. Timmons’s applications were
denied initially and on reconsideration.
Timmons, his mother, and a vocational expert (“VE”) testified at a hearing
before an Administrative Law Judge (“ALJ”). Timmons also submitted 22 letters
from friends, family members, and former co-workers and employers. The letters
were written between October 2007 and October 2009 and described Timmons’s
history since childhood of mood swings, manic outbursts, and violent behavior,
which has persisted into adulthood. Numerous letter writers stated that Timmons
had trouble interacting with other people, could not control what he said or how he
acted, and spoke loudly and excessively. Former co-workers and employers also
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described Timmons’s inability to stay focused on work tasks and his confrontations
with co-workers, which made it difficult for Timmons to keep a job for long.
B. ALJ’s Decision
After the hearing, the ALJ issued a decision denying Timmons benefits.
Following the five-step evaluation process, the ALJ found: (1) Timmons had not
engaged in substantial gainful activity from his alleged disability onset date; (2)
Timmons had the severe impairments of polysubstance abuse, schizoaffective
disorder, thoracic compression fractures, and a disc bulge at L4-5; (3) Timmons’s
impairments, singly or in combination, did not meet or medically equal one of the
listed impairments in the regulations; (4) Timmons could not perform his past
relevant work as an electrician, but had the residual functional capacity (“RFC”) to
perform light work except that he required a sit/stand option and he was limited to
simple one- and two-step tasks and to occasional contact with the public,
coworkers, and supervisors; and (5) given Timmons’s age, education, work
experience, and RFC, there existed jobs in significant numbers in the national
economy that Timmons could perform, including tobacco leaf tier, ampoule sealer,
and electrical parts assembler.
In concluding that Timmons’s mental impairments did not meet or equal a
listed mental impairment, the ALJ found that Timmons had only mild restrictions
in activities of daily living and social functioning and moderate difficulties with
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concentration, persistence, or pace and had experienced one or two episodes of
decompensation of extended duration. 1 In doing so, the ALJ noted that the letters
Timmons submitted indicated that Timmons had difficulty concentrating and
following instructions, had confrontations with coworkers and supervisors, talked
incessantly, and had volatile moods. However, two consulting psychologists who
had reviewed Timmons’s records had concluded that Timmons could complete
simple and complex tasks within an appropriate time frame and could carry out
instructions and adequately relate to others in a work setting.
In determining Timmons’s RFC, the ALJ reviewed the various medical
opinions and explained the amount of weight she assigned to each. On appeal,
Timmons takes issue with the ALJ’s handling of only two of these medical
opinions, the opinions of Dr. Alvan Barber and Dr. Najib Kirmani, consultants
who examined Timmons.
Dr. Barber conducted two separate physical examinations. After a
September 2007 examination, Dr. Barber noted, inter alia, that Timmons: (1) had
1
As part of the determination whether a mental impairment meets or equals a listed
impairment, the ALJ uses a “special technique” to evaluate the severity of mental impairments in
four areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or
pace; and (4) episodes of decompensation. 20 C.F.R. pt. 404, subpt. P, app’x 1 § 12.00I; see also
20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). To meet or equal a listed impairment, the
claimant must, among other things, have two of the following: (1) marked limitation of activities
of daily living; (2) marked limitation in maintaining social functioning; (3) marked limitation in
concentration, persistence or pace; and (4) repeated episodes of decompensation of extended
duration, which means either three episodes within one year or an average of one every four
months, each lasting for at least two weeks. 20 C.F.R. pt. 404, subpt. P, app’x 1, § 12.00C. In
Timmons’s case, the ALJ found that Timmons did not meet any of the four criteria and thus did
not have a listed mental impairment.
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5/5 muscle strength in both his upper and lower extremities; (2) had 5/5 grip
strength, but he had no deep tendon reflexes; (3) had no point tenderness in his
sacroiliac joints; (4) felt pain when, in a supine position, his leg was raised to 90
degrees, but he had a negative Lasegue’s Test; (5) was able to walk on his heels,
walk on his toes, and squat; and (6) had a negative Romberg sign. Dr. Barber
concluded that Timmons could walk, stand, and sit for a reasonable amount of time
without discomfort. However, according to Dr. Barber, Timmons could be limited
in his ability to lift and carry heavy objects.
At a second, April 2008 examination, Dr. Barber reported that Timmons: (1)
had not received treatment or medication for his back pain since 2006, and he had
incontinence approximately once a week; (2) heard a popping noise in his spine;
and (3) again felt pain when, in a supine position, his leg was raised, but his
Lasegue’s Test was negative. Dr. Barber came to the same conclusion regarding
Timmons’s ability to walk, stand, sit, and lift and carry heavy objects as he had in
2007, but Dr. Barber also noted that Timmons was unable to squat and Timmons’s
symptoms might be exacerbated by his excess weight.
Dr. Kirmani conducted a psychiatric evaluation. Dr. Kirmani’s report noted,
inter alia, that Timmons: (1) was appropriately dressed and groomed and was able
to relate to and cooperate with Dr. Kirmani; (2) was alert, had no speech or
psychomotor abnormalities, and had a normal mood; (3) was fully oriented, had no
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hallucinations, had intact memory and judgment, and adequate insight. Dr.
Kirmani concluded that Timmons did not have a psychotic reaction, had no
deterioration in personal habits, had no impaired ability to relate to Dr. Kirmani,
and had no identified intellectual deterioration. Dr. Kirmani opined that Timmons
had depressive disorder, but that Timmons was able to make personal and social
adjustments and had the ability to understand, remember, and carry out
instructions.
The ALJ gave “great weight” to these two doctors’ medical opinions. The
ALJ explained that she did so because their opinions were “consistent with the
medical evidence of record and are supported by the record as a whole” and
because “the doctors had the opportunity to personally examine the claimant before
forming their opinions.”
C. Appeals Council’s Denial of Review
Timmons filed a request for review with the Appeals Council and submitted
new evidence. To his appeal brief, Timmons attached three additional letters from
people who had witnessed Timmons’s continued problems with social functioning.
Timmons also submitted a mental health evaluation conducted by Carol
Beall, a licensed clinical social worker, on November 23, 2010, several months
after the ALJ issued her decision. As a result of her exam, Beall observed that: (1)
Timmons was well groomed, oriented, and maintained good eye contact; (2) he
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spoke rapidly, but his speech was coherent, relevant, and goal directed, but also
often tangential; (3) his mood was labile, with tearfulness at times and hypomania
at other times; (4) he did not have hallucinations or delusions, but he did have
some religious preoccupation; (5) he had good insight into his mental health and
addiction problems, but his symptoms remained problematic despite his
compliance with treatment; (6) he had marked impairment of his memory at times
and fair concentration, but required some redirection; (7) he had no suicidal or
homicidal ideation. In her clinical findings, Beall stated that Timmons was
cooperative and friendly during the interview and open and honest about his
mental health problems. Timmons’s judgment was impaired at times, which
impaired his ability to function, but he was willing to be “med compliant” and
sober.
Timmons claimed that the letters and Beall’s evaluation showed that
Timmons’s limitations in social functioning were more severe than the limitations
found by the ALJ. Timmons asked the Appeals Council to remand his case to the
ALJ with instructions to reconsider and revise the RFC assessment and to obtain
testimony from the VE regarding jobs he could perform with that revised RFC.
The Appeals Council denied review of the ALJ’s decision. The Appeals
Council noted that it considered and made part of the record Timmons’s new
evidence, which it listed as Timmons’s appeal brief and the treatment evidence
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from Carol Beall. The Appeals Council concluded that “this information [did] not
provide a basis for changing the [ALJ’s] decision.”
The Appeals Council stated that Timmons’s appeal brief was incorporated
into the record. However, the three letters purportedly attached to that brief are not
in the agency’s certified administrative record filed with the district court.
D. District Court Proceedings
On judicial review, Timmons argued, inter alia, that his case should be
remanded to the Appeals Council, under either “sentence four” or “sentence six” of
§ 405(g), for consideration of his new evidence. Timmons submitted copies of the
three letters with his memorandum filed in the district court. The three letters, all
written in June 2010, described Timmons’s difficulties interacting with others.
Jason Amici, Timmons’s neighbor, stated that he had known Timmons for
three years and that Timmons talked excessively and loudly, was known to say
things without respect for people’s feelings, and had numerous run-ins with
neighbors and friends. Amici estimated that Timmons had confrontations with
someone approximately every week and that he had a difficult time communicating
with normal behavior.
Jarod Lebrun, Timmons’s friend for seven years, stated that over the years
he and Timmons had had numerous confrontations due to Timmons’s poor
judgment. Timmons had a loud mouth, said demeaning things, and did not care
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what he said, who he said it to, or who heard it. Timmons’s mood also changed
frequently, and he had trouble interacting appropriately with others.
Paul Walker stated that during the six years he had known Timmons,
Timmons had exhibited many inappropriate behaviors, including saying things
without consideration for people’s feelings and cursing. Timmons had a history of
altercations with friends, family, and neighbors. Walker said that it was an
“everyday occurrence” for Timmons to have strange thoughts and loud and
rambling speech.
A magistrate judge entered an order affirming the Commissioner’s decision. 2
As to Timmons’s remand request, the magistrate judge found that the three
additional letters Timmons tried to submit to the Appeals Council as new evidence,
but that were not found in the administrative record, were cumulative of other
letters already in the administrative record. Therefore, the magistrate judge
concluded that these three letters were not new and material evidence and that a
sentence six remand was not warranted.
Timmons filed a motion for reconsideration, pointing out that the magistrate
judge had not addressed his argument for a sentence four remand. The magistrate
judge denied the motion for reconsideration, stating that Timmons’s request was
2
The parties consented to proceed before the magistrate judge.
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addressed in the portion of the order concerning Timmons’s new evidence.
Timmons filed this appeal.
II. MAGISTRATE JUDGE’S DENIAL OF REQUEST FOR A REMAND
Timmons contends the magistrate judge should have remanded his case to
the Appeals Council under either “sentence four” or “sentence six” of 42
U.S.C. § 405(g) because of the new evidence he submitted. 3 Specifically,
Timmons claims that a remand was necessary because the Appeals Council failed:
(1) to acknowledge receipt of his three additional letters in its decision or to
incorporate the letters into the record; and (2) to remand the case to the ALJ in
light of Timmons’s new evidence.
A social security claimant generally is permitted to present new evidence at
each stage of the administrative process. See 20 C.F.R. §§ 404.900(b),
416.1470(b); see also Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1261 (11th Cir. 2007). The Appeals Council has the discretion not to review the
ALJ’s denial of benefits. 20 C.F.R. §§ 404.967, 416.1467. However, the Appeals
Council must consider “new and material evidence” that “relates to the period on
or before the date of [the ALJ] hearing decision” and must review the case if the
ALJ’s “action, findings, or conclusion is contrary to the weight of the evidence
currently of record.” 20 C.F.R. §§ 404.970(b), 416.1470(b).
3
We review de novo a district court’s determination whether to remand under § 405(g)
based on new evidence. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001).
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There are two methods of remand under § 405(g)—“sentence four remands”
and “sentence six remands.” Ingram, 496 F.3d at 1261.4 A sentence four remand
is appropriate when the claimant submitted new evidence to the Appeals Council,
which the Appeals Council did not adequately consider in denying the claimant’s
request for review. Id. at 1268. To obtain a sentence four remand, the claimant
must show that, in light of the new evidence submitted to the Appeals Council, the
ALJ’s decision to deny benefits is not supported by substantial evidence in the
record as a whole. Id. at 1266-67.
In contrast, a sentence six remand is appropriate only when the claimant
submits evidence for the first time to the district court that might have changed the
outcome of the administrative proceeding. Id. at 1267-68. To remand under
sentence six, the claimant must show the evidence is new and material and was not
incorporated into the administrative record for good cause. Id. at 1267. New
evidence is material, and thus warrants a remand, if “there is a reasonable
possibility that the new evidence would change the administrative outcome.”
Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987).
A. Sentence Six Remand
4
The fourth sentence of § 405(g) provides the federal court with the “power to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” The sixth sentence provides that the federal court “may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
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The district court did not err in refusing to remand Timmons’s case under
sentence six. The parties agree that because the Appeals Council failed to refer to
Timmons’s three additional letters in its decision and did not include them in the
certified administrative record, those letters should be considered evidence
submitted for the first time to the district court under sentence six of § 405(g).
Moreover, the government does not dispute that Timmons has shown good cause.
We agree with the magistrate judge, however, that the three letters are not
“new and material” because they are cumulative of numerous other letters already
in the administrative record that described Timmons’s difficulties interacting with
others. Specifically, the three additional letters, like the letters already in the
record, stated that Timmons speaks loudly and excessively, has mood swings, says
things that hurt others’ feelings, and is confrontational. The ALJ considered the
other letters already in the record that described this behavior and concluded that
those letters were not consistent with the medical evidence and the doctors’
opinions as to the severity of Timmons’s limitations in social functioning. Under
the circumstances, Timmons has not shown a reasonable possibility that his three
additional letters describing the same social difficulties would change the
administrative outcome. See Hyde, 823 F.2d at 459.
In addition, we reject Timmons’s contention that the three letters are not
cumulative because they cover a different time period. Although the letters were
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written in June 2010, the letters described in general terms Timmons’s behavior
over a period of years and did not give specific dates.
We also reject Timmons’s claim that the letters are material because they
refute the ALJ’s finding that Timmons stopped experiencing social problems when
he was sober. First, the ALJ never made such a finding. Instead, the ALJ found
that Timmons had the serious mental impairments of polysubstance abuse and
schizoaffective disorder and that these mental impairments resulted in functional
limitations of (1) simple one- and two-step tasks, and (2) only occasional contact
with the public, co-workers, and supervisors. The ALJ further noted that Timmons
had a history of alcohol and drug abuse, Timmons received substance abuse
treatment from September 2006 to March 2007, and Timmons testified that he had
relapsed with drinking and was not attending Alcoholics Anonymous. The ALJ
also noted that one consulting psychologist had observed that Timmons’s
functioning had improved with sobriety. The ALJ ultimately found that Timmons’s
mental impairments were effectively managed with medication and did not prevent
him from performing light work with those two mental limitations.
We note that both the consulting psychologist’s observation (that Timmons’s
functioning improved when he was sober) and the ALJ’s finding (that Timmons’s
mental impairments were effectively managed with medication) are supported by
substantial evidence. Specifically, the record shows that, after Timmons received
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residential substance abuse treatment at Serenity House from September 2006 to
March 2007, he received ongoing medication management from Act Corporation.
Thereafter, his medical records and psychological evaluations from 2008 to 2010
indicate that he was doing well, with the exception of one period in the fall of
2009, when he was not compliant with his medication and admitted drinking.
Specifically, according to Act Corporation’s treatment notes, during a
September 2009 follow-up, Timmons reported increased anxiety and admitted to
drinking two beers in the past week. The importance of Timmons’s sobriety was
discussed with him. Two months later, Timmons reported panic attacks and
admitted decreasing his medication without permission. Timmons was given
Klonopin in the emergency room because he had not been taking his medication.
The treatment notes stated that Timmons needed to attend AA meetings. By
February 2010, Timmons was again taking his medications and reported that they
were helping him. Treatment notes from this visit indicated, inter alia, that there
was no evidence of substance abuse and that Timmons’s attention/concentration,
judgment, and insight were good, his speech, motor behavior, and impulse control
were normal, his affect was in the normal range, and his thought process was
organized. Progress notes stated that Timmons was doing well, was bright and
conversational, and his mood was stable, although he was religiously preoccupied.
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Second, the three letters do not, as Timmons suggests, refute the consulting
psychologist’s observation that Timmons’s functioning improved during sobriety.
Indeed, the letters do not mention Timmons’s substance abuse or his sobriety at all.
Furthermore, the letters do not indicate that additional limitations beyond those
already in the RFC are necessary. For all these reasons, the district court properly
concluded that a remand under sentence six was not warranted.
B. Sentence Four Remand
The district court also did not err with respect to Timmons’s request for a
sentence four remand. A sentence four remand was warranted only if the new
evidence considered by the Appeals Council—Carol Beall’s mental health
evaluation—showed that the ALJ’s decision to deny benefits was not supported by
substantial evidence in the record as a whole. See Ingram, 496 F.3d at 1266-67.
Nothing in Beall’s evaluation suggests that the ALJ’s limiting Timmons to simple
one- and two-step tasks and to only occasional contact with co-workers,
supervisors, and the public was inadequate to address Timmons’s mental
impairments. Even in light of Beall’s evaluation, the ALJ’s RFC assessment and
ultimate decision to deny benefits are supported by substantial evidence.
III. PHYSICIANS’ OPINIONS
Timmons argues that the ALJ did not adequately explain the weight given to
the opinions of two examining physicians, Dr. Barber and Dr. Kirmani. As a
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result, Timmons asserts, the ALJ’s RFC assessment is not supported by substantial
evidence.5
A. Evaluation of Medical Opinions
An ALJ uses a five-step evaluation to determine whether the claimant is
disabled, which includes (1) whether the claimant is 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 specified
impairments in the Listing of Impairments; (4) whether the claimant has the RFC
to perform his past relevant work; and (5) whether, in light of the claimant’s RFC,
age, education, and work experience, there are a significant number of jobs in the
national economy that the claimant can perform. 20 C.F.R. §§ 404.1520(a)(4), (c)-
(f), 416.920(a)(4), (c)-(f); see also Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011).
In determining at steps four and five whether a claimant can perform his past
relevant work or other work in the economy, the ALJ must determine a claimant’s
RFC by considering all relevant medical and other evidence.6 Phillips v. Barnhart,
5
Our review is limited to whether the ALJ’s decision is supported by substantial evidence
and based on proper legal standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
(11th Cir. 2011). “Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (quotation marks
omitted). Under this limited standard of review, we do not make findings of fact, reweigh the
evidence, or substitute our judgment for that of the Commissioner. Id.6
Residual functional capacity is what a claimant can do in a work setting despite any
physical, mental, or environmental limitations caused by the claimant’s impairment and its
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357 F.3d 1232, 1238-39 (11th Cir. 2004); see also 20 C.F.R. §§ 404.1520(e),
416.920(e). In assessing RFC, the ALJ must state with particularity the weight
given different medical opinions and the reasons for doing so. Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987). Without this explanation, a reviewing court
cannot determine whether the decision was supported by substantial evidence.
Winschel, 631 F.3d at 1179. However, the ALJ’s explanation of the decision need
not account for every piece of evidence. Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005).
In evaluating medical opinions, the ALJ considers many factors, including
the examining relationship, the treatment relationship, the doctor’s specialization,
whether the opinion is amply supported, and whether the opinion is consistent with
the record. 20 C.F.R. §§ 404.1527(c), 416.927(c). Generally, the opinions of
examining physicians are given more weight than non-examining physicians, and
the opinions of treating physicians are given more weight than non-treating
physicians. See id. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).
B. Opinions of Drs. Barber and Kirmani
Here, the ALJ adequately explained the weight she gave to the opinions of
Dr. Barber and Dr. Kirmani. The ALJ reviewed each doctor’s examination
related symptoms. See 20 C.F.R. §§ 404.1545(a), 416.945(a). RFC includes physical abilities,
such as standing, sitting, or walking, and mental abilities, such as understanding, carrying out
instructions, or responding appropriately to supervision, co-workers, or work pressure. Id.§§ 404.1545(b)-(c), 416.945(b)-(c).
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findings and then stated that she had “accorded great weight” to their medical
opinions because they “are consistent with the medical evidence of record and are
supported by the record as a whole” and also because the doctors had “personally
examine[d]” Timmons. The ALJ’s explanation of its treatment of these two
doctors’ opinions is sufficient to allow for meaningful review.
Timmons argues that Dr. Barber’s opinion was too imprecise or tentative to
support the ALJ’s RFC findings as to Timmons’s exertional limitations, such as
Timmons’s ability to walk, sit, lift and carry. However, the ALJ was not limited to
Dr. Barber’s opinion or his clinical findings in making her RFC assessment.
Rather, the ALJ considers all the relevant evidence in making an RFC assessment.
See 20 C.F.R. §§ 404.1520(e), 416.920(e). Other evidence in the record, including
the treatment notes from Timmons’s physical therapy and Timmons’s own
statements and hearing testimony as to his daily activities and physical abilities,
provided additional information about Timmons’s ability to walk, stand, sit, lift,
and carry, and the ALJ was not required to specifically reference each piece of
evidence in the decision. See Dyer, 395 F.3d at 1211.
For example, Timmons testified that he could sit and stand for about an hour
and that he could walk for about a half an hour. In 2007, he reported that he could
walk for about 30 minutes, stand for about 30 minutes, sit for two or three hours
and could lift 15 to 20 pounds. Similarly, during Dr. Barber’s 2008 examination,
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Timmons told Dr. Barber he could walk for 20 minutes, stand for 30 minutes, sit
for two or three hours, and could lift 10 to 20 pounds. The physical therapy
treatment notes stated, inter alia, that Timmons pain was reduced from eight out of
ten to zero out of ten, he was able to conduct his usual activities with no pain, and
he could sit, stand, and walk. Timmons’s physical abilities, expressed in his own
statements and in the treatment notes, are consistent with the ability to perform
light work with a sit/stand option. See 20 C.F.R. §§ 404.1567(b), 416.967(b).
Timmons also claims that the ALJ’s failure to account for Dr. Barber’s
finding that Timmons could not squat is reversible error. Although the IJ noted Dr.
Barber’s finding that Timmons could not squat in her decision and gave Dr.
Barber’s opinion great weight, the IJ did not include a squatting limitation in her
RFC assessment. The problem for Timmons is that squatting (also referred to as
crouching) is not required for any of the jobs the ALJ found Timmons could
perform. See Dictionary of Occupational Titles, 529.687-138, 1991 WL 674769(leaf tier), 559.687-014, 1991 WL 683782 (ampoule sealer), 729.687-010, 1991
WL 679733 (assembler of electrical accessories). Accordingly, the omission of a
squatting restriction from the RFC assessment was harmless error.
Nor did the ALJ err in failing to discuss Dr. Barber’s finding that
Timmons’s obesity might exacerbate his symptoms. As already discussed, the ALJ
considered the medical evidence and Timmons’s own reports of his daily activities
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and physical abilities. This evidence supported a finding that Timmons could
perform light work with a sit/stand option despite any effect his obesity had on his
symptoms.
Finally, Timmons takes issue with the ALJ’s decision to give great weight to
Dr. Kirmani’s opinion that Timmons was able to make personal and social
adjustments and to understand, remember, and carry out instructions. Timmons
contends that Dr. Kirmani’s opinion is inconsistent with other evidence in the
record that Timmons had significant mental problems despite continuing treatment.
Substantial evidence supports the ALJ’s decision to give Dr. Kirmani’s
opinion great weight. Although the record contains evidence of Timmons’s
difficulties with social functioning, Timmons himself reported to Dr. Kirmani that
he got along with family, friends, neighbors, store clerks, and doctors. At the
hearing, Timmons testified that he helped his parents with housework and yard
work, that he mowed several neighbors’ lawns for money, and that he could do a
simple job if he had transportation. The treatment notes from Act Corporation and
from Dr. Barber’s examination indicated that Timmons was cooperative and
communicated well. Another consulting psychologist, Dr. Michael Zelenka,
reviewed the record and opined that Timmons was not significantly limited in his
ability to, inter alia: (1) understand, remember, and follow simple and detailed
instructions; (2) accept instructions and respond appropriately to criticism from
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supervisors; and (3) get along with coworkers or peers without distracting them or
exhibiting behavioral extremes. Dr. Zelenka opined that “given some allowances
for occasional prob[lem]s with [attention] and [concentration] and for occasional
psychol[ogical] problems affecting productivity, and given limited public contact,
[claimant] retains adequate mental ability to carry out instr[uctions] and to relate
adequately to others in a routine work setting.” In other words, as the ALJ
explained, Dr. Kirmani’s opinion that Timmons could make personal and social
adjustments and could understand, remember, and follow instructions is consistent
with other evidence in the record. Thus, substantial evidence supports the ALJ’s
decision to give great weight to Dr. Kirmani’s opinion.
IV. LIMITATIONS IN CONCENTRATION, PERSISTENCE, AND PACE
Timmons contends that the ALJ failed to adequately reflect Timmons’s
limitations in maintaining concentration, persistence, and pace in her RFC
assessment and in the hypothetical question she posed to the vocational expert.
At the fifth step, the Commissioner bears the burden to show that, in light of
the claimant’s RFC and other factors, there exist in the national economy a
significant number of jobs the claimant can perform. Winschel, 631 F.3d at 1180;
20 C.F.R. §§ 404.1520(a)(4)(V), 416.920(a)(4)(V). If such jobs exist, then the
claimant is not disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). An ALJ may
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make this determination by posing hypothetical questions to the VE. See
Winschel, 631 F.3d at 1180.
For the VE’s testimony to constitute substantial evidence, the ALJ’s
hypothetical question need not include “each and every symptom of the claimant,”
but must include “all of the claimant’s impairments.” Ingram, 496 F.3d at 1270.
An ALJ’s hypothetical question restricting the claimant to simple and routine tasks
adequately accounts for restrictions related to concentration, persistence, and pace
where the medical evidence demonstrates that the claimant retains the ability to
perform the tasks despite limitations in concentration, persistence, and pace. See
Winschel, 631 F.3d at 1180 (“[W]hen medical evidence demonstrates that a
claimant can engage in simple, routine tasks or unskilled work despite limitations
in concentration, persistence, and pace, courts have concluded that limiting the
hypothetical to include only unskilled work sufficiently accounts for such
limitations.”).
In this case, the ALJ’s hypothetical question adequately accounted for
Timmons’s moderate limitations in concentration, persistence, and pace. The ALJ
asked the VE to assume the individual had the ability to do light work with a
sit/stand option, but that the “job should be simple, one-two step task, there should
be only occasional contact with the public, coworkers, and supervisors.” The VE
identified the three jobs of leaf tier, ampoule sealer, and electronic parts assembler.
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In response to follow-up questions, the VE explained that these three jobs were not
assembly line jobs on a conveyor belt, but instead could be performed at a work
station.
Notably, both non-examining, consulting psychologists, Dr. Zelenka and Dr.
Lauriann Sandrik, concluded that despite moderate limitations in maintaining
concentration, persistence, and pace, Timmons could: (1) understand, remember
and carry out both short and simple and detailed instructions; (2) perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances; (3) sustain an ordinary routine without special supervision; (4) work in
coordination with or in proximity to others without being distracted by them; and
(5) make simple work-related decisions.
Dr. Sandrik further stated that Timmons “appears mentally capable of
completing simple and complex tasks within an appropriate time frame.”
Similarly, Dr. Zelenka stated that, with allowances for occasional problems with
concentration and attention and occasional psychological problems affecting
productivity, Timmons had the mental ability to carry out instructions in a routine
work setting. Dr. Kirmani, who examined Timmons, likewise found that Timmons
could understand, remember, and carry out instructions. In light of this supporting
medical evidence, the ALJ’s restriction to simple, one- and two-step instructions in
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her hypothetical question sufficiently accounted for Timmons’s limitations in
concentration, persistence, and pace.
V. CONCLUSION
For all these reasons, we conclude that the Commissioner’s decision denying
Timmons disability and supplemental security benefits is supported by substantial
evidence. We also find no error in the magistrate judge’s denial of Timmons’s
request to remand his case to the Commissioner.
AFFIRMED.
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