                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-13911         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        APRIL 11, 2011
                                      ________________________        JOHN LEY
                                                                        CLERK
                            D.C. Docket No. 6:09-cv-00793-GAP-DAB

JUDYLEE C. JARRETT,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                                versus

COMMISSIONER OF SOCIAL SECURITY,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

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

                                           (April 11, 2011)



Before EDMONDSON, PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:
      Judylee C. Jarrett appeals the district court’s order affirming the

administrative law judge’s (“ALJ”) denial of her application for Social Security

Disability Insurance benefits (“DIB”), 42 U.S.C. § 405(g), and Supplemental

Security Income (“SSI”) benefits, 42 U.S.C. § 1383(c)(3). In her application,

Jarrett alleged that she was disabled because of chronic depression, stress-related

anxiety, and bulimia. Jarrett argues (1) that the ALJ’s hypothetical questions to a

vocational expert did not adequately account for her difficulty in maintaining

concentration, persistence, and pace; (2) that good cause did not support the ALJ’s

decision not to give controlling weight to her treating physician’s responses to a

March 2007 questionnaire, and that the ALJ erred by giving great weight to the

opinions of non-examining state consultants; and (3) that the Appeals Council

erred by denying her request to recuse the ALJ on the basis of bias and unfair

treatment, and by failing to investigate her claim adequately as required by SSA

Publication No. 05-10071. After thorough review of the record and the parties’

briefs, we affirm.

                                          I.

      Jarrett first argues that the ALJ’s hypothetical questions to a vocational

expert did not adequately account for her difficulty in maintaining concentration,

persistence, and pace. In Social Security appeals, we review the decision of an

                                          2
ALJ as the Commissioner’s final decision when the ALJ denies benefits and the

Appeals Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d

1274, 1278 (11th Cir. 2001). We review the Commissioner’s legal conclusions de

novo and consider whether the Commissioner’s factual findings are supported by

substantial evidence. Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).

“Substantial evidence is less than a preponderance, but rather such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). We are

precluded from “deciding the facts anew, making credibility determinations, or

re-weighing the evidence.” Id.

      “The social security regulations establish a five-step evaluation process,

which is used to determine disability for both SSI and DIB claims.” Id.

      In order to receive disability benefits, the claimant must prove at step
      one that he is not undertaking substantial gainful activity. At step two,
      the claimant must prove that he is suffering from a severe impairment or
      combination of impairments. At step three, if the claimant proves that
      his impairment meets one of the listed impairments found in Appendix
      1, he will be considered disabled without consideration of age,
      education, and work experience. If the claimant cannot prove the
      existence of a listed impairment, he must prove at step four that his
      impairment prevents him from performing his past relevant work. At the
      fifth step, the regulations direct the Commissioner to consider the
      claimant’s residual functional capacity, age, education, and past work
      experience to determine whether the claimant can perform other work
      besides his past relevant work.

                                         3
Doughty, 245 F.3d at 1278 (citations omitted).

      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

whether the claimant is able to perform other work 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 v. Barnhart, 357 F.3d 1232, 1240

(11th Cir. 2004). “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.” Winschel v. Comm’r of Soc. Sec., No. 10-10620, ---

F.3d ----, 2011 WL 198372, at *3 (11th Cir. Jan. 24, 2011) (quotation marks

omitted).

      In this case, the ALJ’s hypothetical questions adequately accounted for

Jarrett’s impairment in concentration, persistence, and pace. In one of the

hypotheticals, the ALJ asked the VE to assume an individual with Jarrett’s age,

                                          4
education, and work experience who could only “understand, remember, [and]

carry-out simple . . . tasks and concentrate for brief periods of time.” By including

that Jarrett had limitations in her ability to concentrate, this hypothetical question

adequately accounted for the ALJ’s finding that Jarrett had moderate difficulties in

concentration, persistence, and pace. See White v. Comm’r of Soc. Sec., 572 F.3d

272, 288 (6th Cir. 2009) (holding that a hypothetical adequately accounted for

limitations in concentration, persistence, and pace where ALJ expressly referenced

the claimant’s inability to maintain attention and concentration). Jarrett claims

that the ALJ failed to include in the hypothetical a specific time limitation on her

ability to concentrate. The medical evidence in the record, however, did not

support the use of a specific time period for which Jarrett could concentrate

because the physician opinions addressing the issue referred only to “variable

concentration” and Jarrett’s ability to concentrate for only “briefer time periods.”

      Furthermore, an ALJ’s hypothetical restricting the claimant to simple and

routine tasks adequately accounts for restrictions related to concentration,

persistence and pace where the medical evidence demonstrates that the claimant

retains the ability to perform the tasks despite concentration deficiencies. See

Winschel, --- F.3d at ----, 2011 WL 198372, at *3 (“[W]hen medical evidence

demonstrates that a claimant can engage in simple, routine tasks or unskilled work

                                           5
despite limitations in concentration, persistence, and pace, courts have concluded

that limiting the hypothetical to include only unskilled work sufficiently accounts

for such limitations.”). In this case, the ALJ’s first hypothetical stated that the

individual “could follow simple instructions” and “complete simple tasks,” but

“may have difficulty dealing with stress and detailed tasks.” Notably, Dr. Eeltink,

one of the non-examining consultants, concluded that despite a moderate degree of

limitation in maintaining concentration, persistence, and pace, Jarrett was “able to

follow simple instructions, complete simple tasks, make decisions, avoid hazards,

and relate adequately to function in the workplace.” Similarly, Dr. Adams,

another non-examining consultant, found that Jarrett was “able to understand,

remember, and carry out simple tasks,” despite her moderate limitation in her

ability to maintain attention and concentration for an extended period. Thus, the

ALJ’s restriction to simple instructions and simple tasks in the first hypothetical

question sufficiently accounted for Jarrett’s limitations in concentration,

persistence and pace because, despite these limitations, the medical evidence in

the record demonstrated that Jarrett retained the ability to follow simple

instructions and complete simple tasks.

      On these facts, we conclude that the ALJ’s hypothetical questions both

explicitly and implicitly accounted for Jarrett’s impairment in concentration,

                                           6
persistence, and pace.1 Substantial evidence therefore supports the ALJ’s finding

that there were a significant number of jobs that Jarrett could perform in the

national economy.

                                                II.

       Jarrett next argues that good cause did not support the ALJ’s decision not to

give controlling weight to the responses that her treating physician, Dr. Mian,

provided to a March 2007 questionnaire. She further contends that the ALJ erred

by giving great weight to the opinions of non-examining state consultants. In

determining whether a claimant is disabled, “[t]he ALJ must clearly articulate the

reasons for giving less weight to the opinion of a treating physician, and the

failure to do so is reversible error.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th

Cir. 1997); see Winschel, --- F.3d at ----, 2011 WL 198372, at *2. But where the


       1
           Our decisions in Richter v. Comm'r of Soc. Sec., 379 F. App’x 959 (11th Cir. 2010)
(unpublished), and Winschel, --- F.3d at ----, 2011 WL 198372, are not to the contrary. In those
cases, we held that an ALJ’s hypothetical question that restricted the VE’s inquiry to simple,
routine tasks or unskilled work did not adequately account for the claimant’s limitation in
concentration, persistence, and pace. Richter, 379 F. App’x at 959, 961; Winschel, --- F.3d at ---
-, 2011 WL 198372, at *3. But here, unlike in Richter and Winschel, the ALJ stated explicitly in
the hypothetical question that Jarrett had a limitation in her ability to concentrate for more than
brief periods of time. We also recognized in Richter and Winschel that a hypothetical question
could sufficiently account for such an impairment by including a restriction to simple or routine
tasks if the medical evidence demonstrates that the claimant has the ability to perform those tasks
despite a limitation in concentration, persistence, and pace. Richter, 379 F. App’x at 961;
Winschel, --- F.3d at ----, 2011 WL 198372, at *3. We found no such medical evidence in
Richter, 379 F. App’x at 961, and Winschel, --- F.3d at ----, 2011 WL 198372, at *4, but as noted
above, the record here supports such a finding in this case.

                                                7
ALJ articulates specific reasons for failing to give the opinion of a treating

physician controlling weight, and those reasons are supported by substantial

evidence, there is no reversible error. Moore, 405 F.3d at 1212.

      The ALJ must give the opinion of a treating physician “substantial or

considerable weight unless good cause is shown to the contrary.” Phillips, 357

F.3d at 1240 (quotation marks omitted); see Winschel, --- F.3d at ----, 2011 WL

198372, at *2. “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, --- F.3d at ----, 2011 WL 198372, at *2 (quoting

Phillips, 357 F.3d at 1240–41). We have held that an ALJ does not need to give a

treating physician’s opinion considerable weight if evidence of the claimant’s

daily activities contradicts the opinion. See Phillips, 357 F.3d at 1241.

      Regulations require that an ALJ consider the opinions of non-examining

physicians, including state agency psychological consultants. 20 C.F.R.

§ 404.1527(f). The weight due to a non-examining physician’s opinion depends,

among other things, on the extent to which it is supported by clinical findings and

is consistent with other evidence. See id. § 404.1527(d)(3)-(4); see also Crawford

v. Comm’r of Soc. Sec., 363 F.3d. 1155, 1158, 1160 (11th Cir. 2004) (holding that

                                          8
the ALJ did not err in relying on a consulting physician’s opinion where it was

consistent with the medical evidence and findings of the examining physician).

Generally, the more consistent a physician’s opinion is with the record as a whole,

the more weight an ALJ should place on that opinion. 20 C.F.R. § 404.1527(d)(4).

The opinion of a non-examining physician is therefore entitled to little weight

when it contradicts the opinion of an examining physician. Lamb v. Bowen, 847

F.2d 698, 703 (11th Cir. 1988). But where a non-examining physician’s

assessment does not contradict the examining physician’s report, the ALJ does not

err in relying on the non-examining physician’s report. See Edwards v. Sullivan,

937 F.2d 580, 584–85 (11th Cir. 1991).

      Here, good cause supported the ALJ’s decision not to give controlling

weight to Dr. Mian’s opinion, as expressed in the March 2007 questionnaire, that

Jarrett had marked difficulties in several mental abilities and was unable to

perform any type of work on a sustained basis. The ALJ articulated specific

reasons for not giving Dr. Mian’s opinion controlling weight, noting that the

opinion was inconsistent with Jarrett’s treatment records and her ability to perform

work between 1999 and 2004. Indeed, Dr. Mian’s treatment records show

numerous instances in which he indicated that Jarrett’s medications were working,

she was satisfied with the medications, her condition had improved, and she was

                                          9
stable. Additionally, Dr. Jacobs reported Jarrett’s global assessment of

functioning (“GAF”) score in the range of 61 to 70, which reflected mild

symptoms with some difficulty in social and occupational functioning. American

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th

ed. 2000) (noting that GAF scores between 61 and 70 reflect mild symptoms, with

some difficulty in social and occupational functioning). Dr. Porcincula also

reported that Jarrett’s GAF was 60 to 65 when she was discharged after being

involuntarily committed and that her concentration and attention were adequate.

      The evidence in the record regarding Jarrett’s daily activities also

contradicts Dr. Mian’s March 2007 opinion. Jarrett worked part time at a number

of jobs since she quit her job as a front desk concierge in 1998, she volunteered

two days a week for four hours at a hospital, and she was able to help care for her

elderly father by performing household chores. See Phillips, 357 F.3d at 1241

(holding that an ALJ does not need to give a treating physician’s opinion

considerable weight if evidence of the claimant’s daily activities contradicts the

opinion). For these reasons, the ALJ had good cause to not give Dr. Mian’s March

2007 opinion substantial or considerable weight.

      The ALJ also did not err in giving significant weight to the opinions of the

state agency medical consultants, Dr. Adams and Dr. Eeltink, regarding Jarrett’s

                                         10
functional limitations. Dr. Adams’s and Dr. Eeltink’s opinions were consistent

with Dr. Mian’s treatment records showing that Jarrett’s condition was stable and

with the GAF scores as determined by Dr. Jacobs and Dr. Porcincula. See

Crawford, 363 F.3d at 1158, 1160. Notably, the only opinion that Jarrett claims

contradicts Dr. Adams’s and Dr. Eeltink’s assessments is Dr. Mian’s responses in

the March 2007 questionnaire. However, as discussed above, the ALJ

appropriately concluded that Dr. Mian’s March 2007 opinion should be given little

weight because it was contradicted by his and Dr. Jacob’s treatment records.

Because Dr. Adams’s and Dr. Eeltink’s opinions did not otherwise contradict Dr.

Mian’s or any other doctor’s treatment records, the ALJ did not err in relying on

the reports of these non-examining physicians. See Edwards, 937 F.2d at 584–85.

      For all these reasons, we conclude that the ALJ did not err in giving Dr.

Mian’s opinion little weight and instead crediting the opinions of the state agency

consultants, because their opinions were supported by the record.

                                        III.

       Finally, Jarrett contends that the Appeals Council erred by (1) denying her

request to recuse the ALJ on the basis of bias and unfair treatment and (2) failing

to investigate her claim adequately, as required by SSA Publication No. 05-10071.

Jarrett asserts that the ALJ was biased against her because her counsel had filed

                                         11
misconduct complaints against the ALJ in unrelated cases. The Social Security

Act requires that a claimant’s hearing be both full and fair. Miles v. Chater, 84

F.3d 1397, 1400 (11th Cir. 1996) (per curiam). The ALJ plays a “crucial role in

the disability review process” and has a duty to “develop a full and fair record”

and to “carefully weigh the evidence, giving individualized consideration to each

claim.” Id. at 1401. Because the ALJ’s decision will typically be the final word

given our standard of review, the ALJ’s impartiality is “integral to the integrity of

the system.” Id. The ALJ thus must “not conduct a hearing if he or she is

prejudiced or partial with respect to any party or has any interest in the matter

pending for decision.” Id. at 1400 (quoting 20 C.F.R. § 404.940).

      If a claimant fears that a particular ALJ will not provide a fair hearing, she

must notify the ALJ at the “earliest opportunity.” 20 C.F.R. § 404.940. If the ALJ

then declines to recuse herself, the claimant may seek reconsideration by raising

the issue before the Appeals Council. Id. The current version of SSA Publication

No. 05-10071 provides:

      If you think any ALJ treated you unfairly, you should tell us about it
      and ask us to look into it. You can ask even while we are deciding
      your claim for benefits.

      ...




                                          12
      Someone who has not been handling your claim before will look into
      the information you gave us in the complaint. You will be advised
      when the matter is closed.

      If you also appealed the decision on your claim and included
      information about your complaint, the Appeals Council will address
      your complaint when responding to your appeal.

SSA Pub. No. 05-10071 (2010).

      Contrary to Jarrett’s assertion, the Appeals Council correctly followed these

procedures for handling claims of bias on appeal and found that there was no

evidence of bias or unfair treatment by the ALJ. Jarrett presented her claim to the

Appeals Council that she did not receive a full and fair hearing before the ALJ

presiding over the case. 20 C.F.R. § 404.940. The Appeals Council addressed her

complaint of bias in its notice of action. The Appeals Council noted that it had

reviewed Jarrett’s allegations and studied the entire record, including the hearing

decision and hearing testimony. The Appeals Council also informed Jarrett of the

results of its review, stating that it found no evidence that the ALJ was biased or

that the hearing was unfair. See SSA Pub. No. 05-10071 (2010). Furthermore,

Jarrett has failed to allege any specific instances of the ALJ’s bias in her case. We

therefore conclude that Jarrett has failed to show either that her disability hearing

was not full and fair or that the Appeals Council did not follow its procedures in

reviewing her bias claim.

                                          13
                                         IV.

      The ALJ did not commit any legal error in determining that Jarrett was not

disabled, and substantial evidence supports that conclusion. Further, Jarrett has

failed to establish that the Appeals Council erred in reviewing and adjudicating

her bias claim. For all of these reasons, we affirm.

      AFFIRMED.




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