Mark Anthony Weirback v. Commissioner of Social Security

Case: 13-10940 Date Filed: 09/04/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10940
Non-Argument Calendar
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D.C. Docket No. 6:11-cv-01021-RBD-TBS
MARK ANTHONY WEIRBACK,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 4, 2013)
Before HULL, PRYOR and JORDAN , Circuit Judges.
PER CURIAM:
Case: 13-10940 Date Filed: 09/04/2013 Page: 2 of 3
Mark Anthony Weirback appeals a decision affirming the denial of his
application for disability insurance benefits and supplemental security income. 42
U.S.C. §§ 405(g), 1383(c)(3). We affirm.
Weirback argues that the administrative law judge failed to account for
Weirback’s moderate difficulties in maintaining concentration, persistence, or pace
in a hypothetical question to a vocational expert and in determining Weirback’s
residual functional capacity, but we disagree. Weirback testified that his functional
limitations were impaired by severe diarrhea, fatigue, vomiting, and a lack of
concentration, but the administrative law judge was entitled to discredit
Weirback’s testimony because he had not complained about those symptoms to his
physicians; his medical treatment had remained routine or conservative in treating
his impairments; and a doctor for the Florida Department of Health had examined
Weirback and found that he had an intact memory and adequate concentration.
Further, the doctor who performed the residual functional capacity assessment
accounted for Weirback’s complaints and found that he could perform sedentary
work with occasional stopping and crouching and that he had exaggerated the
severity of his complaints. See Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.
1990); 20 C.F.R. § 404.1529(c)(4) (evaluating symptoms based on “any
inconsistencies in the evidence and the extent to which there are any conflicts
between [the] statements [of the claimant] and the rest of the evidence”). The
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Case: 13-10940 Date Filed: 09/04/2013 Page: 3 of 3
administrative law judge found that Weirback’s moderate difficulties restricted his
ability to work only to the extent that he was limited to simple repetitive tasks with
no work with crowds or the public and no teamwork, and the administrative law
judge included those limitations in the hypothetical question and her assessment of
Weirback’s residual functional capacity. See Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1181 (11th Cir. 2011) (remanding because the hypothetical
question failed to mention that the applicant was limited in concentration,
persistence, and pace or to “otherwise implicitly account for the limitation”). The
answer of the vocational expert provided substantial evidence to support the
finding that Weirback could perform the requirements of a dowel inspector, nut
sorter, and document preparer.
We AFFIRM the denial of Weirback’s application for benefits.
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