Patricia Ann Hines-Sharp v. Commissioner of Social Security , 511 F. App'x 913 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14042
Non-Argument Calendar
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D.C. Docket No. 3:11-cv-00645-HWM-MCR
PATRICIA ANN HINES-SHARP,
Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 6, 2013)
Before BARKETT, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Patricia Hines-Sharp appeals the district court’s judgment affirming the
denial of her applications for disability insurance benefits and supplemental social
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security income. Because Hines-Sharp has not shown the Administrative Law
Judge (ALJ) erred in posing a hypothetical question to the Vocational Expert (VE)
about what work she could perform, we agree with the district court that
substantial evidence supported the denial of her applications.
Hines-Sharp applied for social security disability benefits in 2006. At a
hearing on June 9, 2009, an ALJ took testimony from Hines-Sharp, reviewed
documents that she had filed, and elicited testimony from a VE. After the hearing,
the ALJ issued a decision denying Hines-Sharp’s application, finding she had the
residual functional capacity (RFC) to perform her past relevant work as a vegetable
harvester. Hines-Sharp petitioned to the district court for review, contending the
ALJ erred by omitting from its hypothetical question to the VE some of her mental
impairments. A magistrate judge issued a report and recommendation (R&R) that
the ALJ’s decision be affirmed, and Hines-Sharp did not object. The district court
adopted the R&R. This is Hines-Sharp’s appeal.
“We review de novo the district court’s decision on whether substantial
evidence supports the ALJ’s decision.” Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). 1 “Substantial evidence is more than a scintilla and is
1
We review only for plain error or manifest injustice a party’s challenge on appeal to factual
findings in an R&R if the party did not file any objections to the R&R. See Resolution Trust
Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993). But we can nonetheless
review the legal conclusion of whether substantial evidence supports the ALJ’s findings despite
Hines-Sharp’s failure to object. See Hardin v. Wainwright, 678 F.2d 589, 591 (5th Cir. Unit B
1982); see also Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982) (adopting as
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such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004) (internal citations and quotation marks omitted). “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.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (internal
citations and quotation marks omitted).
Social security regulations set forth a five-step evaluation process for
disability claims, asking:
(1) whether the claimant is currently 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 the specified impairments in the Listing of
Impairments; (4) based on [an RFC] assessment, whether the claimant
can perform any of his or her past relevant work despite the
impairment; and (5) whether there are significant numbers of jobs in
the national economy that the claimant can perform given the
claimant’s RFC, age, education, and work experience.
Id. at 1178; see 20 C.F.R. §§ 416.912 (supplemental security income), 404.1520
(disability insurance benefits). To evaluate the severity of a claimant’s mental
impairments in steps two and three, the regulations direct the ALJ to use a special
Psychiatric Review Technique (PRT). Moore v. Banhart, 405 F.3d 1208, 1214
binding all decisions issued by a Unit B panel of the former Fifth Circuit); cf. Holley v. Seminole
Cnty. Sch. Dist., 755 F.2d 1492, 1499 n.5 (11th Cir. 1985) (“[T]he substantial evidence inquiry,
though a factual review of a sort, is a question of law for the court which can be made upon a
review of the administrative record.”).
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(11th Cir. 2005); see also Winschel, 631 F.3d at 1180-81. Using this technique, the
ALJ must decide if a claimant’s mental impairments cause limitations in one of
“four broad functional areas,” one of which is the claimant’s ability to maintain
“concentration, persistence, or pace . . . .” 20 C.F.R. § 404.1520a(c)(3). If the ALJ
finds such a limitation, then the ALJ must include it as part of a description of the
claimant’s RFC in any hypothetical question posed to the VE. Winschel, 631 F.3d
at 1180-81. 2 Only if the limitation is included can the VE’s testimony constitute
substantial evidence supporting the ALJ’s decision. Id. If the ALJ determines at
step four that the claimant can perform her past relevant work, that ends the inquiry
and the claimant is not entitled to benefits. 20 C.F.R. § 404.1520(a)(4)(iv), (f);
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004).
In this appeal, Hines-Sharp’s only claim is that the hypothetical question the
ALJ posed to the VE did not adequately encompass her mental impairments, and,
therefore, that the ALJ’s decision at step four that she could perform her past
2
The Commissioner correctly notes that Winschel dealt with whether the VE’s testimony
constituted substantial evidence supporting a decision at step five, whereas the ALJ’s decision in
this case was made at step four. 631 F.3d at 1181. This matters, the Commissioner asserts,
because the claimant bears the burden of proof at step four to show her inability to perform her
past relevant work, while the Commissioner bears the burden at step five to prove the existence
of significant numbers of jobs in the national economy that the claimant could perform. See
Doughty v. Apfel, 245 F.3d 1274, 1278-79 & n.2 (11th Cir. 2001). But we have no occasion to
decide in this case if that different placement of the burden makes a difference in the
applicability of Winschel’s reasoning because, even if we assume Winschel applies as Hines-
Sharp argues, the VE’s testimony constituted substantial evidence supporting the ALJ’s
determination.
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relevant work is not supported by substantial evidence. 3 At the PRT stage of the
analysis, the ALJ found Hines-Sharp had marked difficulties in concentration,
persistence, and pace. To do so, it relied exclusively upon a psychological
examination by Dr. Sherry Risch. In posing a hypothetical to the VE, however, the
ALJ did not say Hines-Sharp had limitations in concentration, persistence, and
pace. That, Hines-Sharp claims, contravened our decision in Winschel.
In Winschel, we explained “that an ALJ does not account for a claimant’s
limitations in concentration, persistence, and pace by restricting the hypothetical
question to simple, routine tasks or unskilled work.” 631 F.3d at 1180. Instead,
the hypothetical question must “include or otherwise implicitly account for all of [a
claimant’s] impairments” – including those in concentration, persistence, or pace –
for the answer to it to constitute substantial evidence. Id. at 1181. Winschel does
not, however, stand for the proposition that an ALJ must intone the magic words
concentration, persistence, and pace if the ALJ finds based on the PRT that a
claimant has limitations in that broad functional area. Indeed, we noted that an
ALJ may account implicitly for those limitations in other ways when crafting a
hypothetical. Id. Moreover, we recognized that the Commissioner’s policy
requires ALJs to be more detailed in evaluating a claimant’s RFC at step four than
3
Because Hines-Sharp raises only this issue in her appellate brief, she has abandoned any other
challenge to the district court’s order affirming the ALJ’s decision denying her benefits.
Rehberg v. Paulk, 611 F.3d 828, 846 n.14 (11th Cir. 2010).
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in assessing the severity of mental impairments at steps two and three. Id. at 1180
(quoting Ramirez v. Barnhart, 372 F.3d 546, 554 (3d. Cir. 2004)); see SSR 96-8p,
1996 WL 374184 (July 2, 1996) (“The mental RFC assessment used at step[] 4 . . .
requires a more detailed assessment by itemizing various functions contained in the
broad categories . . . and summarized on the PRT[ form].”).
That is precisely what the ALJ did in this case. The ALJ did not simply
restrict the hypothetical to unskilled work, as happened in Winschel. Dr. Risch’s
opinion stated that Hines-Sharp had “marked limitations in understanding and
remembering complex instructions,” carrying out those instructions, and “making
judgments on complex work-related decisions,” along with “moderate limitations
in responding appropriately to usual work situations and to changes in a routine
work setting . . . .” The ALJ’s PRT finding was expressly and exclusively based
upon these more specific findings. Hines-Sharp does not challenge that decision.
At the hearing, rather than including in the hypothetical posed to the VE the
generalized PRT description “marked limitations in concentration, persistence, and
pace,” the ALJ instead quoted the more specific findings about Hines-Sharp’s
mental impairments from Dr. Risch’s report – nearly verbatim. Hines-Sharp does
not explain how the ALJ’s inclusion of these more detailed descriptions of her
limitations on which the PRT finding was based in the hypothetical question failed
to reflect the limitations from the PRT. She has, therefore, failed to carry her
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burden of showing substantial evidence did not support the ALJ’s determination
that she could perform her past relevant work and was, thus, not disabled.
AFFIRMED.
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