Syed v. Commissioner of Social Security ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEP 22, 2011
JOHN LEY
No. 11-10779 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-02485-TCB
KHALID H. SYED,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 22, 2011)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Khalid Syed appeals the district court’s order affirming the Commissioner’s
denial of his applications for Disabled Adult Child’s (“DAC”) Insurance Benefits,
Disability Benefits, Disability Insurance Benefits (“DIB”), and Supplemental Social
Security Income (“SSI”). On appeal, Syed argues that: (1) the Administrative Law
Judge (“ALJ”) did not apply the appropriate legal standard in assessing his mental
limitations, as she failed to apply the Psychiatric Review Technique Form (“PRTF”);
(2) the district court erred in not finding that the magistrate provided post hoc
rationale for the ALJ’s residual functioning capacity (“RFC”) determination; (3)
substantial medical evidence indicates greater limitations than those found by the
ALJ; and (4) because the hypothetical question posed did not include any limitations
regarding concentration or attention deficits, the testimony of the vocational expert
(“VE”) cannot provide substantial evidence to support a finding that he is not
disabled. After careful review, we affirm.1
We review the Commissioner’s decision for substantial evidence. 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. (quotations omitted).
1
As an initial matter, we review the decision of the ALJ as the Commissioner’s final
decision when the ALJ denies benefits and the Appeals Council denies review of the ALJ’s
decision. See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001); Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (noting that our review in a social security case is the same as that of
the district court). Because we review the decision of the ALJ, we need not consider Syed’s
arguments with respect to the post hoc rationale in the magistrate’s report and recommendation,
or any other errors in the district court’s opinion.
2
The Commissioner uses
a five-step, sequential evaluation process . . . to determine whether a
claimant is disabled: (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 [the 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. We do not re-weigh the evidence, decide facts anew, or make credibility
determinations. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
At Step Two of the evaluation process, the ALJ must use a “special technique”
dictated by the PRTF for evaluating mental impairments. Moore, 405 F.3d at 1213;
20 C.F.R. § 404.1520a-(a). This technique requires separate evaluations on a
four-point scale of how the claimant’s mental impairment impacts four functional
areas: “activities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation.” Moore, 405 F.3d at 1213; see 20 C.F.R. §
404.1520a-(c)(3-4). The ALJ must incorporate the results of this technique into the
findings and conclusions. Moore, 405 F.3d at 1213-14; 20 C.F.R. § 404.1520a-(e)(2).
At Step Four of the evaluation process, the ALJ must determine a claimant’s
RFC by considering all relevant medical and other evidence. See Phillips v.
3
Barhnhart, 357 F.3d 1232, 1238-39 (11th Cir. 2004). RFC is an assessment, based
upon all of the relevant evidence, of a claimant’s ability to do work despite his
impairment. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). 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).
At Step Five of the evaluation process, the burden shifts to the Commissioner
to prove that other jobs exist in the national economy that the claimant can perform.
Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). “The ALJ must articulate
specific jobs that the claimant is able to perform, and this finding must be supported
by substantial evidence, not mere intuition or conjecture.” Wilson v. Barnhart, 284
F.3d 1219, 1227 (11th Cir. 2002). One manner of determining this is for the ALJ to
ask a VE hypothetical questions “to establish whether someone with the limitations
that the ALJ has previously determined that the claimant has will be able to secure
employment in the national economy.” Phillips, 357 F.3d at 1232. In order for a
VE’s testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question that comprises all of the claimant’s impairments. Winschel, 631 F.3d at
1180. However, the ALJ is not required to include findings in the hypothetical that
the ALJ has found to be unsupported. Crawford v. Comm’r of Soc. Sec., 363 F.3d
4
1155, 1161 (11th Cir. 2004). When 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.
Winschel, 631 F.3d at 1180-81.
In this case, the ALJ addressed Syed’s mental limitations in accordance with
the PRTF. Following a discussion of the pertinent medical evidence and Syed’s
school records as they related to Syed’s mental impairments, including discrediting
Syed’s higher Global Assessment Functioning (“GAF”) scores because they were not
generated by a physician or psychologist, the ALJ specifically addressed Syed’s
mental limitations pursuant to 20 C.F.R. § 404.1520a-(c)(3-4). The ALJ found the
following mental limitations as set forth in the mental listings: “mild restriction of
activities of daily living; moderate difficulties in maintaining social functioning;
moderate difficulties in maintaining concentration, persistence or pace, and no
episodes of decompensation.” The ALJ incorporated these findings into the five-step,
sequential evaluation process, during which the ALJ concluded that Syed was not
disabled. Accordingly, the ALJ applied the appropriate legal standard in assessing
Syed’s mental limitations.
5
Moreover, substantial evidence supports the ALJ’s determinations that Syed
had the RFC to perform work at all exertion levels, limited to simple, unskilled work
that was low-stress, requiring only the occasional need to make decisions, use
judgment, or have contact with the general public. As the record shows, numerous
medical reports indicated that Syed possessed adequate social skills, followed rules,
related to co-workers, and that he was only moderately limited in his work
capabilities. The medical evidence also reported that Syed engaged in behavior such
as answering his cell phone during evaluations which could cost him any job.
Contrary to Syed’s contention, the ALJ specifically noted Syed’s difficulty
with maintaining a schedule and keeping track of time. In addition, the ALJ
sufficiently explained that greater weight was given to the vocational evaluation in
arriving at Syed’s RFC because it considered his functional deficits, evaluated his
remaining abilities, and was consistent with the vocational and medical opinions of
record. The ALJ also sufficiently explained that certain evaluating physicians were
given less weight in their consideration because they only examined Syed once or
twice. Thus, there was sufficient evidence to support the ALJ’s RFC determination,
as it properly detailed the severity of Syed’s medically determinable impairments, his
improvements when medicated and employed, as well as the various jobs for which
he was qualified.
6
Finally, although the hypothetical question posed by the ALJ to the VE did not
expressly include Syed’s impairments, it implicitly accounted for them, and thus, was
not improper. See Winschel, 631 F.3d at 1180-81. As the record shows, the
hypothetical included that there were impairments, and that the individual would
require a low-stress work environment. Indeed, the medical evidence demonstrated
that Syed could engage in simple, routine tasks and unskilled work despite any
limitations, as he was not significantly limited in his ability to complete simple
work-like procedures. The medical evidence also showed that Syed understood and
followed specific, multi-step instructions, and was cooperative and responsive. Thus,
Syed was only moderately limited in his work capabilities, could accept instruction
and criticism, and was not significantly limited in his ability to complete simple
work-like procedures. Because simple, unskilled work sufficiently accounted for
limitations in concentration, persistence, and pace, as set forth in Winschel, the
hypothetical posed adequately accounted for Syed’s limitations as they were
implicitly included. Accordingly, we affirm the Commissioner’s decision to deny
Syed’s claims for benefits.2
AFFIRMED.
2
Moreover, Syed cites to no precedent, and we can find none, in support of his contention
that a VE must answer only in a vacuum or that the ALJ must announce her RFC determination
prior to posing the hypothetical question.
7