Malisa Ranae Sims v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11154
Non-Argument Calendar
____________________
MALISA RANAE SIMS,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-01082-JHE
____________________
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2 Opinion of the Court 22-11154
Before J ORDAN, L AGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Malisa Ranae Sims appeals the magistrate judge’s order af-
firming the Commissioner of the Social Security Administration’s
denial of disability insurance benefits and supplemental security in-
come. Ms. Sims argues that the administrative law judge (“ALJ”)
erred by failing to include certain non-exertional limitations in its
hypotheticals to the vocational examiner (“VE”). We disagree and
affirm.
In August of 2018, Ms. Sims filed applications for social se-
curity disability benefits and for supplemental security income.
Following the denial of both applications, Ms. Sims requested a
hearing, which the ALJ held on January 13, 2020. The ALJ deter-
mined that Ms. Sims has the severe impairments of major depres-
sive disorder and anxiety. The ALJ also found that Ms. Sims “has
the residual functional capacity to perform a full range of work at
all exertional levels” but with certain non-exertional limitations.
See D.E. 11-3 at 21. For example, according to the ALJ, Ms. Sims
“could tolerate ordinary work pressures, but should avoid exces-
sive workloads, quick decision making, rapid changes, and multiple
demands. She could tolerate occasional interaction with the pub-
lic, co-workers, and supervisors” and “[c]hanges in the work rou-
tine should be simple and occur no more than occasionally.” Id.
“Considering [Ms. Sims’] age, education, work experience, and re-
sidual functional capacity,” the ALJ concluded that “there are jobs
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22-11154 Opinion of the Court 3
that exist in significant numbers in the national economy that [she]
can perform.” Id. at 24.
Ms. Sims sought review of the ALJ’s decision from the SSA’s
Appeals Council, and that request was denied. Ms. Sims then filed
a lawsuit in the Northern District of Alabama, alleging that the Ap-
peals Council’s review of the ALJ’s decision was “purely conclu-
sory” and “epitomizes perfunctory adherence to the ALJ decision.”
D.E. 1 at 2. The magistrate judge—to whom the parties con-
sented—ruled that “substantial evidence support[ed] the ALJ’s de-
termination that [Ms.] Sims failed to demonstrate a disability, and
the ALJ applied the proper standards to reach this conclusion.”
D.E. 20 at 5–6. This is Ms. Sims’ appeal.
“We review de novo the district court’s decision on whether
substantial evidence supports the ALJ’s decision.” Wilson v. Barn-
hart, 284 F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence is
“such relevant evidence as a reasonable person would accept as ad-
equate to support a conclusion.” Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). “We may not decide the facts anew, reweigh
the evidence, or substitute our judgment for that of the [Commis-
sioner].” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011).
The Social Security Regulations provide a “five-step sequen-
tial evaluation process” to be used when deciding whether a claim-
ant is disabled. See 20 C.F.R. § 404.1520(a)(4). These steps are:
(1) whether the claimant is currently engaged in sub-
stantial gainful activity; (2) whether the claimant has
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4 Opinion of the Court 22-11154
a severe impairment or combination of impairments;
(3) whether the impairment meets or equals the se-
verity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capac-
ity (‘RFC’) assessment, whether the claimant can per-
form 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.
Winschel, 631 F.3d at 1178.
Ms. Sims’ challenge on appeal relates to the fifth step—
whether there are a significant number of jobs in the national econ-
omy that she could perform. When making this determination,
the ALJ may “apply[ ] the Medical Vocational Guidelines or . . .
obtain[ ] the testimony of a vocational expert. See Winschel at 1180.
“In order for a vocational expert’s testimony to constitute substan-
tial evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments.” Id.
Ms. Sims argues that “the ALJ’s hypotheticals upon which
the VE relied were incomplete. . . . because [they] failed to include
all of the limitations identified by the ALJ.” Br. for Appellant at 14.
Specifically, she states that the ALJ did not include “limitations re-
lated to time off-task or absenteeism”—the former being “related
to her depression and anxiety that would require her to be off task
during the workday” and the latter being based on her “need for
frequent bathroom breaks related to the removal of her
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22-11154 Opinion of the Court 5
submandibular gla[n]d that requires excessive water consumption
which would require to be off task during the workday[.]” Id. at
14–15.
In response, the Commissioner argues that Ms. Sims waived
this argument because “at the district court level, [she] completely
failed to identify any specific mental work-related limitations that
the ALJ did not include in the hypothetical; instead, she merely as-
serted generally that the hypothetical question did not include or
account for her depression and mental health problems.” Br. for
Appellee at 23. In the alternative, the Commissioner asserts that
substantial evidence supports the ALJ’s finding, and that “[t]he ALJ
was not required to include [Ms. Sims’] unsupported allegations of
limitations in the hypothetical question to the VE or to accept the
VE’s testimony in response to hypothetical questions that included
unsupported allegations.” Id. at 34.
Even assuming Ms. Sims did not waive this argument, we
are unpersuaded that the ALJ presented an improper hypothetical
question to the vocational expert. The written findings show that
the ALJ considered Ms. Sims’ “complain[t] at the hearing that her
antihypertensive medication causes frequent urination and fa-
tigue” but found that “the treatment records show no such com-
plaints.” D.E. 11-3 at 19. And while “medical evidence confirm[ed]
that [Ms. Sims] underwent submandibular gland removal in 2011”
. . . there [was] no indication of any other ongoing work-related
limitations related to this impairment.” Id. The ALJ also evaluated
the medical evidence on Ms. Sims’ anxiety, depression, crying
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6 Opinion of the Court 22-11154
spells, and mental health treatment. The ALJ found that Ms. Sims’
“medically determinable impairments could reasonably be ex-
pected to cause some of the alleged symptoms” but concluded that
Ms. Sims’ “statements concerning the intensity, persistence, and
limiting effects of these symptoms [were] not entirely consistent
with the medical evidence and other evidence in the record.” Id.
at 22-23. Specifically, the ALJ determined that “[t]he treatment rec-
ords and [psychologist,] Dr. [Jack L. Bentley, Jr.’s] examination re-
port do not provide objective support for [Ms. Sims’] allegations
that she is unable to work because of frequent urination and re-
stroom breaks, crying spells, and lack of energy.” Id. at 23.
The ALJ did not include certain limitations that Ms. Sims al-
leged she suffered, but the ALJ found that those limitations were
not supported by the record. We conclude the ALJ did not err in
failing to include these limitations in the hypothetical presented to
the vocational expert. As an initial matter, “the hypothetical need
only include ‘the claimant’s impairments,’ . . . not each and every
symptom of the claimant.” Ingram v. Comm’r of Soc. Sec. Admin., 496
F.3d 1253, 1270 (11th Cir. 2007). And here the particular “charac-
teristics that the [ALJ] omitted are among those that [Ms. Sims] al-
leged to suffer but were . . . not supported by” the medical evidence
in the record. Id. Because “the ALJ was not required to include
findings in the hypothetical that the ALJ had properly rejected as
unsupported” we find the hypothetical presented was proper.
Crawford v. Comm’r Of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
See also Lee v. Comm’r of Soc. Sec., 448 Fed. App’x 952, 953–954 (11th
Cir. 2011).
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22-11154 Opinion of the Court 7
We therefore affirm.
AFFIRMED.
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