Theresa M. Dawson v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13465
Non-Argument Calendar
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D.C. Docket No. 6:11-cv-01128-GAP-KRS
THERESA M. DAWSON,
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 3, 2013)
Before BARKETT, MARCUS, Circuit Judges, and HUCK,∗ District Judge.
PER CURIAM:
∗ Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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Theresa Dawson appeals the district court’s order affirming the Social
Security Administration’s denial of her application for supplemental security
income. On appeal, she argues that the Administrative Law Judge (“ALJ”) erred
by failing to expressly include Dawson’s limitations in maintaining concentration,
persistence, or pace in the residual functional capacity (“RFC”) assessment or in
the hypothetical question posed to the vocational expert (“VE”).
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. (quotation marks
omitted). The individual seeking Social Security disability benefits bears the
burden of proving that she is disabled. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005).
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.
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Winschel, 631 F.3d at 1178. The RFC is “that which an individual is still able to
do despite the limitations caused by his or her impairments.” Phillips v. Barnhart,
357 F.3d 1232, 1238 (11th Cir. 2004).
If the claimant successfully proves that she is unable to perform her past
relevant work, the Commissioner bears the burden of determining whether there is
other work available at the fifth step. Jones v. Apfel, 190 F.3d 1224, 1228 (11th
Cir. 1999). The Commissioner may show “that the claimant can perform other
jobs . . . through the testimony of a VE.” Id. at 1229. “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.” Id. However, an
ALJ is “not required to include findings in the hypothetical that the ALJ had
properly rejected as unsupported.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1161 (11th Cir. 2004).
If an ALJ determines at step two of the sequential evaluation process that the
claimant’s mental impairments caused limitations in concentration, persistence, or
pace, the ALJ must include those limitations in the hypothetical questions posed to
the VE. Winschel, 631 F.3d at 1180-81. However, the ALJ may instead include in
the hypothetical questions the limitation that the claimant is restricted to unskilled
work if the medical evidence shows that the claimant can perform simple, routine
tasks or unskilled work despite her limitations in concentration, persistence, or
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pace. Id. at 1181 (remanding for the ALJ to explicitly include the claimant’s
moderate limitation in maintaining concentration, persistence, or pace in the
hypothetical question because “the ALJ did not indicate that medical evidence
suggested [that the claimant’s] ability to work was unaffected by this limitation,
nor did he otherwise implicitly account for the limitation in the hypothetical”).
In this case, unlike in Winschel, the ALJ indicated in the hypothetical that
the medical evidence showed that Dawson’s ability to work was only affected by
her limitations in maintaining concentration, persistence, or pace to the extent that
she was limited to routine, repetitive tasks with up to three-step instructions. See
id. Therefore, the ALJ did not err by not explicitly including limitations in
maintaining concentration, persistence, or pace in the RFC assessment or in the
hypothetical question to the VE, and the VE’s testimony constituted substantial
evidence. Because substantial evidence shows that the ALJ sufficiently accounted
for Dawson’s limitation, we affirm.
AFFIRMED.
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