The opinion
Case: 12-10704 Date Filed: 09/17/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10704
Non-Argument Calendar
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D.C. Docket No. 6:10-cv-01931-GJK
DELAIZARAH ZGRAGGEN ROSARIO,
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
________________________
(September 17, 2012)
Before CARNES, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
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Delaizarah Zgraggen Rosario, through counsel, appeals from the district
court’s order affirming the decision by the Administrative Law Judge (ALJ)
denying a period of disability, disability insurance benefits, and social security
income, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). On appeal, Rosario
argues that the ALJ erred by according little weight to her treating psychiatrist’s
medical opinions. Further, Rosario asserts that the ALJ’s hypothetical question to
the vocational expert failed to account for her moderate limitations in
concentration, persistence, or pace, even though the ALJ found that they existed.
In Social Security appeals, we review the ALJ’s decision as the
Commissioner’s final decision when, as in this case, the ALJ denies benefits and
the Appeals Council denies review. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001). We review to determine “whether the Commissioner’s decision is
supported by substantial evidence and based on proper legal standards.
Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotation marks
omitted). “We may not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the [Commissioner].” Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1996). If substantial evidence supports the decision we
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must affirm, even if the proof preponderates against it. Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996).
In determining whether a claimant is disabled, the ALJ must complete a
five-step sequential evaluation process. See 20 C.F.R. § 416.920. The claimant
must prove first that she “is not undertaking substantial gainful activity” and
second that she has a “severe impairment or combination of impairments.”
Doughty, 245 F.3d at 1278. “At step three, if the claimant proves that [her]
impairment meets one of the listed impairments found in Appendix 1, [s]he will be
considered disabled without consideration of age, education, and work
experience.” Id. Otherwise, the claimant must proceed to step four and prove
that, based on a residual functional capacity assessment, her impairment prevents
her from performing any of her past relevant work. Winschel, 631 F.3d at 1178;
Doughty, 245 F.3d at 1278. At the fifth step, the burden shifts to the
Commissioner and the ALJ must then determine if there is other work available in
significant numbers in the national economy that the claimant can perform.
Doughty, 245 F.3d at 1278 & n.2. In doing so, the ALJ relies on the claimant’s
residual functional capacity, age, education, and work experience. Id. If the
Commissioner demonstrates that there are jobs that the claimant can perform, the
claimant must prove that she is unable to perform those jobs in order to be found
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disabled. See id. at 1278 n.2.
I.
Rosario first argues that the ALJ erred by according little weight to the
opinions of her treating psychiatrist, Dr. Kirmani. Weighing the opinions and
findings of treating, examining, and non-examining physicians is an important part
of steps four and five of the disability determination process. In reaching a
decision the ALJ must specify the weight given to different medical opinions and
the reasons for doing so. See Winschel, 631 F.3d at 1179. Absent good cause, the
ALJ must give substantial or considerable weight to the opinions of treating
physicians. Winschel, 631 F.3d at 1179. A non-examining physician’s opinion is
entitled to little weight if it is contrary to the treating or examining physician’s
findings unless good cause is found. See Lamb v. Bowen, 847 F.2d 698, 703
(11th Cir. 1988); Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985).
“Good cause exists when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Winschel, 631 F.3d at 1179 (quotation marks omitted). We
have found good cause where, among other things, the treating physician made
conclusory statements regarding the claimant’s inability to work without any
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discussion of why the disability made it impossible for the claimant to be gainfully
employed or the nature or permanence of the disability. See Johns v. Bowen, 821
F.2d 551, 555 (11th Cir. 1987). When the ALJ disregards a treating physician’s
opinion with good cause, she must clearly articulate the reasons for doing so.
Winschel, 631 F.3d at 1179.
The ALJ did not err in giving little weight to Dr. Kimani’s opinions that
Rosario was unable to work. The ALJ clearly indicated that she gave little weight
to Dr. Kimani’s opinions because they were inconsistent with Kimani’s own
findings, notes from the treatment plan, and the overall medical evidence. As an
example, the ALJ highlighted a medical report in which Dr. Kimani concluded
that Rosario’s concentration was slightly impaired and that she “may be able to
work in a limited setting.” In the same report Dr. Kimani concluded that Rosario
was incapable of sustaining “work activity for eight hours a day, five days a
week.” Dr. Kimani provided no explanation for these seemingly contradictory
findings, thereby casting “doubt” on Rosario’s inability to work. See Edwards v.
Sullivan, 937 F.2d 580, 583–4 (11th Cir. 1991) (holding that there was good cause
for the ALJ not to rely on a treating physician’s opinions when there were
unexplained, internal inconsistencies). The inconsistency of Dr. Kimani’s
opinions with his own findings and the overall medical evidence qualifies as good
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cause not to give controlling weight to the statements of Rosario’s treating
psychiatrist.
II.
Rosario next argues that the ALJ’s hypothetical questions to the vocational
expert did not adequately account for her limitations in concentration, persistence,
or pace. One way that the ALJ may prove that other jobs exist for the claimant
under step five is by posing hypothetical questions to the vocational expert 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 v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). “In order
for a vocational expert’s testimony to constitute substantial evidence, the ALJ
must pose a hypothetical question which comprises all of the claimant’s
impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002).
Generally, an ALJ does not account for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical posed to the vocational expert
to simple, routine tasks or unskilled work. See Winschel, 631 F.3d at 1180–81.
However, if the “medical evidence demonstrates that [the] claimant can engage in
simple, routine tasks or unskilled work despite limitations in concentration,
persistence, and pace” then “limiting the hypothetical to include only unskilled
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work sufficiently accounts for such limitations.” Id. at 1180.
Here, the ALJ’s hypothetical questions adequately accounted for the
claimant’s limitations in concentration, persistence, and pace. In step four’s
residual functional capacity determination, which reflects the moderate limitations
in concentration, persistence, and pace found during steps two and three of the
analysis, the ALJ found that the medical evidence demonstrated Rosario’s ability,
despite her limitations, to perform simple, routine, and repetitive tasks in an
environment with only brief interactions with co-workers and the public. The ALJ
pointed to the independent assessments of three doctors in support of this
conclusion. Dr. Willens, for example, determined that even though Rosario had
moderate difficulties with concentration, persistence, and pace she retained the
ability to perform simple and routine tasks for six to eight hours per workday on a
sustained basis. The hypothetical the ALJ posed to the vocational expert restricted
Rosario to the same type of tasks and thereby sufficiently accounted for Rosario’s
limitations in concentration, persistence, and pace. Accordingly, substantial
evidence supports the ALJ’s finding that Rosario could perform a significant
number of jobs in the national economy.
AFFIRMED.
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