           Case: 12-11834   Date Filed: 10/26/2012        Page: 1 of 9


                                                              [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-11834
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:11-cv-00052-TBS



PATRICK LAND,

                              llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

                                   versus

COMMISSIONER OF SOCIAL SECURITY,

                             llllllllllllllllllllllllllllllllllllllllDefendant - Appellee.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (October 26, 2012)

Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 12-11834     Date Filed: 10/26/2012   Page: 2 of 9

      Patrick Land appeals the district court’s decision to affirm the

Commissioner’s denial of his application for disability insurance benefits and

supplemental security income. Land argues here that the Commissioner did not

properly assess his residual functional capacity (RFC) and, as a result, did not

properly formulate hypothetical questions for the vocational expert (VE).

      In appeals from the denial of social security benefits, 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 the Commissioner’s decision to

determine if it is supported by substantial evidence and based on proper legal

standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004) (quotation marks omitted). “Substantial evidence is such relevant evidence

as a reasonable person would accept as adequate to support a conclusion.” Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). “It is more than a scintilla, but less

than a preponderance.” Id. (quotation marks omitted). Like the district court,

“[w]e may not decide the facts anew, reweigh the evidence, or substitute our

judgment for that of the Commissioner.” Phillips v. Barnhart, 357 F.3d 1232,

1240 n.8 (11th Cir. 2004) (quotation marks and alterations omitted).

      Under the Social Security Act, a person is disabled if he is unable “to do any

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substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than 12 months.” 20

C.F.R § 404.1505(a). If disabled, a claimant is eligible for payment of disability

insurance and supplemental security income. See 42 U.S.C. §§ 423(a)(1),

1382(a)(1); 20 C.F.R. §§ 404.315(a)(3), 416.202(a)(3).

      The Social Security Regulations outline a five-step, sequential
      evaluation process used 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 a
      [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.

      Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011);

see also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); C.F.R.

§ 404.1520(a)(4). “The burden is primarily on the claimant to prove that he is

disabled, and therefore entitled to receive Social Security disability benefits.”

Doughty, 245 F.3d at 1278.

                                          I.

      Land argues that the Commissioner erred at the fourth step of the evaluation

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process. Again, step four assesses the claimant’s RFC to determine whether the

claimant is capable of performing “past relevant work.” 20 C.F.R.

§ 404.1520(a)(4)(iv). A claimant’s RFC takes into account both physical and

mental limitations.1 See 20 C.F.R. § 404.1545(a)(1). The ALJ found that Land

“has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and

416.967(b), except that he can only occasionally climb, balance, stoop, kneel,

crouch, crawl, and reach overhead using his right upper extremity.” The ALJ

further determined that Land “should . . . avoid concentrated exposure to heavy

machinery.” Finally, the ALJ found that Land “can perform only simple, routine,

repetitive tasks, without traveling, using numbers, driving, or supervising.”

       Land alleges that the ALJ’s RFC assessment, particularly the ALJ’s finding

that Land “can perform . . . simple, routine, repetitive tasks,” is “not supported by

substantial evidence.” He suggests that this is so because each of the doctors that

evaluated Land for mental limitations in advance of the ALJ’s RFC assessment

determined that he suffered from various “mental health impairments.” In

particular, Land emphasizes that on their standard assessment worksheets, two



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          Land focuses his appeal exclusively on the ALJ’s assessment of his mental limitations.
He does not contest the ALJ’s assessment of his physical limitations. That being the case, any
potential arguments regarding the ALJ’s assessment of his physical limitations are waived and
abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).

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doctors—Dr. Michael Zelenka and Dr. Alejandro Vergara—checked the box

“Moderately Limited” with regard to Land’s “ability to complete a normal work-

day and workweek without interruptions from psychologically based symptoms

and to perform at a consistent pace without an unreasonable number and length of

rest periods.”

      We are not persuaded by Land’s argument because it fails to consider “all

the relevant medical and other evidence” that was available to the ALJ. 20 C.F.R.

§ 404.1545(a)(3) (emphasis added). The Social Security Administration’s

Programs Operations Manual System (POMS) clarifies that the boxes checked by

Dr. Zelenka and Dr. Vergara are only part of a worksheet that “does not constitute

the [doctors’ actual] RFC assessment.” POMS DI § 24510.060(B)(2). Checking

the box “Moderately Limited” means only that the claimant’s capacity is impaired;

it does not indicate the degree and extent of the limitation. See id.

§ 24510.063(B)(2). After checking the boxes as an “aid,” id. § 24510.060(B)(2), a

doctor is then required to detail his actual RFC assessment. See id.

§ 24510.060(B)(4).

      Consistent with these directives, both Dr. Zelenka and Dr. Vergara, after

checking the various boxes, elaborated on their opinions regarding Land’s ability

to perform in a work environment. Dr. Zelenka stated: “[G]iven only simple

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instr[uctions] to carry out, limited public contact, the ability to work relatively

independently, with some allowances for occasional psychological prob[lems]

affecting productivity, [Land] retains adequate mental ability to carry out simple

instr[uctions] and to relate adequately to others in a routine work setting[.]”

(emphasis added). Dr. Vergara came to similar conclusions, stating:

      [Land] may experience difficulties trying to carry out detailed
      instructions and if he has to maintain concentration for extended
      periods of time. He may have difficulties too, having to respond
      appropriately to instructions and criticism from supervisors and if he
      attempts to set realistic goals independently.

      However taking in consideration all the information in file,
      longitudinal history, recent CE and recently reported ADL’s,
      indicates that ‘claimant retains the necessary mental capabilities to at
      least do simple, type tasks and assignments.’

(emphasis added). These opinions are consistent with the ALJ’s finding that Land

“can perform only simple, routine, repetitive tasks.”

      We reiterate that “[w]e may not decide the facts anew, reweigh the

evidence, or substitute our judgment for that of the Commissioner.” Phillips, 357

F.3d at 1240 n.8 (quotation marks and alterations omitted). As set out above, “we

must defer to the Commissioner’s decision if it is supported by substantial

evidence. Substantial evidence is more than a scintilla, but less than a

preponderance.” Id. (quotation marks omitted). Because more than a scintilla of


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evidence supported the ALJ’s RFC assessment here, we will not second-guess the

Commissioner’s determination.

                                         II.

      Land also argues that the Commissioner erred at step five of the disability

evaluation process. At step five the claimant has proved that he can no longer

perform his past relevant work and “the burden shifts to the Commissioner to

show the existence of other jobs in the national economy which, given the

claimant’s impairments, the claimant can perform.” Jones v. Apfel, 190 F.3d

1224, 1228 (11th Cir. 1999) (quotation marks omitted). The ALJ may rely solely

on the testimony of a VE to meet this burden. Id. at 1230. For the testimony of a

VE to constitute substantial evidence, however, “the ALJ must pose a hypothetical

question which comprises all of the claimant’s impairments.” Id. at 1229.

      Land alleges that the “ALJ . . . failed to ask hypothetical questions to the

[VE] that included all of . . . Land’s [m]ental [RFC] limitations.” Here, at the

assessment hearing, the ALJ asked the VE whether a hypothetical individual could

perform other work in the national economy if that individual were of Land’s age,

education, and work experience, had the same physical limitations, and was

“capable based upon Exhibit B-13F [the mental RFC assessment completed by Dr.

Vergara] of performing simple, routine, repetitive tasks.” The VE responded in

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the affirmative, and identified other jobs existing in significant numbers that Land

could perform, specifically “that of an office helper . . . [or] a ticket seller.” The

ALJ then asked the VE if that hypothetical individual could still perform those

jobs if “because of stress,” the individual “should do no traveling,” “shouldn’t

have to meet any quotas,” and should not drive or supervise. The VE indicated

that the individual would still be able to perform those jobs.

      We have held that an ALJ’s hypothetical restricting the claimant to simple

and routine tasks adequately accounts for mental limitations where the medical

evidence demonstrates that the claimant retains the ability to perform those tasks

despite deficiencies. See Winschel, 631 F.3d at 1180 (“[W]hen 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.”). As indicated by the mental RFC assessments completed by

Dr. Zelenka and Dr. Vergara, Land retained the mental capacity to perform

“simple” tasks despite his limitations. By limiting the hypothetical to an

individual “capable . . . of performing simple, routine, repetitive tasks” based on

Dr. Vergara’s mental RFC assessment, the ALJ properly incorporated the relevant

medical evidence regarding Land’s mental limitations.

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      For these reasons, we conclude that the Commissioner’s decision to deny

benefits is supported by substantial evidence and is based upon the proper legal

standards. The Commissioner’s decision is, therefore,

      AFFIRMED.




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