         Case: 12-16166   Date Filed: 07/09/2013   Page: 1 of 24




                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-16166
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 6:11-cv-01320-KRS



CHARLES MONROE TIMMONS,

                                                          Plaintiff-Appellant,



                                versus



COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant-Appellee.

                     ________________________

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

                             (July 9, 2013)
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Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

      Charles Timmons appeals the magistrate judge’s order affirming the Social

Security Administration’s denial of his applications for disability insurance

benefits, 42 U.S.C. § 405(g), and supplemental security income, 42 U.S.C.

§ 1383(c)(3). After review, we affirm.

                                I. BACKGROUND

A.    Administrative Hearing

      In his applications for benefits, Timmons alleged that he was unable to work

as of April 30, 2006, due to his bipolar disorder, personality disorder, and two disc

protrusions in his back resulting from a car accident. Timmons’s applications were

denied initially and on reconsideration.

      Timmons, his mother, and a vocational expert (“VE”) testified at a hearing

before an Administrative Law Judge (“ALJ”). Timmons also submitted 22 letters

from friends, family members, and former co-workers and employers. The letters

were written between October 2007 and October 2009 and described Timmons’s

history since childhood of mood swings, manic outbursts, and violent behavior,

which has persisted into adulthood. Numerous letter writers stated that Timmons

had trouble interacting with other people, could not control what he said or how he

acted, and spoke loudly and excessively. Former co-workers and employers also


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described Timmons’s inability to stay focused on work tasks and his confrontations

with co-workers, which made it difficult for Timmons to keep a job for long.

B.    ALJ’s Decision

      After the hearing, the ALJ issued a decision denying Timmons benefits.

Following the five-step evaluation process, the ALJ found: (1) Timmons had not

engaged in substantial gainful activity from his alleged disability onset date; (2)

Timmons had the severe impairments of polysubstance abuse, schizoaffective

disorder, thoracic compression fractures, and a disc bulge at L4-5; (3) Timmons’s

impairments, singly or in combination, did not meet or medically equal one of the

listed impairments in the regulations; (4) Timmons could not perform his past

relevant work as an electrician, but had the residual functional capacity (“RFC”) to

perform light work except that he required a sit/stand option and he was limited to

simple one- and two-step tasks and to occasional contact with the public,

coworkers, and supervisors; and (5) given Timmons’s age, education, work

experience, and RFC, there existed jobs in significant numbers in the national

economy that Timmons could perform, including tobacco leaf tier, ampoule sealer,

and electrical parts assembler.

      In concluding that Timmons’s mental impairments did not meet or equal a

listed mental impairment, the ALJ found that Timmons had only mild restrictions

in activities of daily living and social functioning and moderate difficulties with


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concentration, persistence, or pace and had experienced one or two episodes of

decompensation of extended duration. 1 In doing so, the ALJ noted that the letters

Timmons submitted indicated that Timmons had difficulty concentrating and

following instructions, had confrontations with coworkers and supervisors, talked

incessantly, and had volatile moods. However, two consulting psychologists who

had reviewed Timmons’s records had concluded that Timmons could complete

simple and complex tasks within an appropriate time frame and could carry out

instructions and adequately relate to others in a work setting.

       In determining Timmons’s RFC, the ALJ reviewed the various medical

opinions and explained the amount of weight she assigned to each. On appeal,

Timmons takes issue with the ALJ’s handling of only two of these medical

opinions, the opinions of Dr. Alvan Barber and Dr. Najib Kirmani, consultants

who examined Timmons.

       Dr. Barber conducted two separate physical examinations. After a

September 2007 examination, Dr. Barber noted, inter alia, that Timmons: (1) had
       1
         As part of the determination whether a mental impairment meets or equals a listed
impairment, the ALJ uses a “special technique” to evaluate the severity of mental impairments in
four areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or
pace; and (4) episodes of decompensation. 20 C.F.R. pt. 404, subpt. P, app’x 1 § 12.00I; see also
20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). To meet or equal a listed impairment, the
claimant must, among other things, have two of the following: (1) marked limitation of activities
of daily living; (2) marked limitation in maintaining social functioning; (3) marked limitation in
concentration, persistence or pace; and (4) repeated episodes of decompensation of extended
duration, which means either three episodes within one year or an average of one every four
months, each lasting for at least two weeks. 20 C.F.R. pt. 404, subpt. P, app’x 1, § 12.00C. In
Timmons’s case, the ALJ found that Timmons did not meet any of the four criteria and thus did
not have a listed mental impairment.
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5/5 muscle strength in both his upper and lower extremities; (2) had 5/5 grip

strength, but he had no deep tendon reflexes; (3) had no point tenderness in his

sacroiliac joints; (4) felt pain when, in a supine position, his leg was raised to 90

degrees, but he had a negative Lasegue’s Test; (5) was able to walk on his heels,

walk on his toes, and squat; and (6) had a negative Romberg sign. Dr. Barber

concluded that Timmons could walk, stand, and sit for a reasonable amount of time

without discomfort. However, according to Dr. Barber, Timmons could be limited

in his ability to lift and carry heavy objects.

      At a second, April 2008 examination, Dr. Barber reported that Timmons: (1)

had not received treatment or medication for his back pain since 2006, and he had

incontinence approximately once a week; (2) heard a popping noise in his spine;

and (3) again felt pain when, in a supine position, his leg was raised, but his

Lasegue’s Test was negative. Dr. Barber came to the same conclusion regarding

Timmons’s ability to walk, stand, sit, and lift and carry heavy objects as he had in

2007, but Dr. Barber also noted that Timmons was unable to squat and Timmons’s

symptoms might be exacerbated by his excess weight.

      Dr. Kirmani conducted a psychiatric evaluation. Dr. Kirmani’s report noted,

inter alia, that Timmons: (1) was appropriately dressed and groomed and was able

to relate to and cooperate with Dr. Kirmani; (2) was alert, had no speech or

psychomotor abnormalities, and had a normal mood; (3) was fully oriented, had no


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hallucinations, had intact memory and judgment, and adequate insight. Dr.

Kirmani concluded that Timmons did not have a psychotic reaction, had no

deterioration in personal habits, had no impaired ability to relate to Dr. Kirmani,

and had no identified intellectual deterioration. Dr. Kirmani opined that Timmons

had depressive disorder, but that Timmons was able to make personal and social

adjustments and had the ability to understand, remember, and carry out

instructions.

      The ALJ gave “great weight” to these two doctors’ medical opinions. The

ALJ explained that she did so because their opinions were “consistent with the

medical evidence of record and are supported by the record as a whole” and

because “the doctors had the opportunity to personally examine the claimant before

forming their opinions.”

C.    Appeals Council’s Denial of Review

      Timmons filed a request for review with the Appeals Council and submitted

new evidence. To his appeal brief, Timmons attached three additional letters from

people who had witnessed Timmons’s continued problems with social functioning.

      Timmons also submitted a mental health evaluation conducted by Carol

Beall, a licensed clinical social worker, on November 23, 2010, several months

after the ALJ issued her decision. As a result of her exam, Beall observed that: (1)

Timmons was well groomed, oriented, and maintained good eye contact; (2) he


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spoke rapidly, but his speech was coherent, relevant, and goal directed, but also

often tangential; (3) his mood was labile, with tearfulness at times and hypomania

at other times; (4) he did not have hallucinations or delusions, but he did have

some religious preoccupation; (5) he had good insight into his mental health and

addiction problems, but his symptoms remained problematic despite his

compliance with treatment; (6) he had marked impairment of his memory at times

and fair concentration, but required some redirection; (7) he had no suicidal or

homicidal ideation. In her clinical findings, Beall stated that Timmons was

cooperative and friendly during the interview and open and honest about his

mental health problems. Timmons’s judgment was impaired at times, which

impaired his ability to function, but he was willing to be “med compliant” and

sober.

         Timmons claimed that the letters and Beall’s evaluation showed that

Timmons’s limitations in social functioning were more severe than the limitations

found by the ALJ. Timmons asked the Appeals Council to remand his case to the

ALJ with instructions to reconsider and revise the RFC assessment and to obtain

testimony from the VE regarding jobs he could perform with that revised RFC.

         The Appeals Council denied review of the ALJ’s decision. The Appeals

Council noted that it considered and made part of the record Timmons’s new

evidence, which it listed as Timmons’s appeal brief and the treatment evidence


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from Carol Beall. The Appeals Council concluded that “this information [did] not

provide a basis for changing the [ALJ’s] decision.”

      The Appeals Council stated that Timmons’s appeal brief was incorporated

into the record. However, the three letters purportedly attached to that brief are not

in the agency’s certified administrative record filed with the district court.

D.    District Court Proceedings

      On judicial review, Timmons argued, inter alia, that his case should be

remanded to the Appeals Council, under either “sentence four” or “sentence six” of

§ 405(g), for consideration of his new evidence. Timmons submitted copies of the

three letters with his memorandum filed in the district court. The three letters, all

written in June 2010, described Timmons’s difficulties interacting with others.

      Jason Amici, Timmons’s neighbor, stated that he had known Timmons for

three years and that Timmons talked excessively and loudly, was known to say

things without respect for people’s feelings, and had numerous run-ins with

neighbors and friends. Amici estimated that Timmons had confrontations with

someone approximately every week and that he had a difficult time communicating

with normal behavior.

      Jarod Lebrun, Timmons’s friend for seven years, stated that over the years

he and Timmons had had numerous confrontations due to Timmons’s poor

judgment. Timmons had a loud mouth, said demeaning things, and did not care


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what he said, who he said it to, or who heard it. Timmons’s mood also changed

frequently, and he had trouble interacting appropriately with others.

      Paul Walker stated that during the six years he had known Timmons,

Timmons had exhibited many inappropriate behaviors, including saying things

without consideration for people’s feelings and cursing. Timmons had a history of

altercations with friends, family, and neighbors. Walker said that it was an

“everyday occurrence” for Timmons to have strange thoughts and loud and

rambling speech.

      A magistrate judge entered an order affirming the Commissioner’s decision. 2

As to Timmons’s remand request, the magistrate judge found that the three

additional letters Timmons tried to submit to the Appeals Council as new evidence,

but that were not found in the administrative record, were cumulative of other

letters already in the administrative record. Therefore, the magistrate judge

concluded that these three letters were not new and material evidence and that a

sentence six remand was not warranted.

      Timmons filed a motion for reconsideration, pointing out that the magistrate

judge had not addressed his argument for a sentence four remand. The magistrate

judge denied the motion for reconsideration, stating that Timmons’s request was




      2
          The parties consented to proceed before the magistrate judge.
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addressed in the portion of the order concerning Timmons’s new evidence.

Timmons filed this appeal.

  II. MAGISTRATE JUDGE’S DENIAL OF REQUEST FOR A REMAND

       Timmons contends the magistrate judge should have remanded his case to

the Appeals Council under either “sentence four” or “sentence six” of 42

U.S.C. § 405(g) because of the new evidence he submitted. 3 Specifically,

Timmons claims that a remand was necessary because the Appeals Council failed:

(1) to acknowledge receipt of his three additional letters in its decision or to

incorporate the letters into the record; and (2) to remand the case to the ALJ in

light of Timmons’s new evidence.

       A social security claimant generally is permitted to present new evidence at

each stage of the administrative process. See 20 C.F.R. §§ 404.900(b),

416.1470(b); see also Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,

1261 (11th Cir. 2007). The Appeals Council has the discretion not to review the

ALJ’s denial of benefits. 20 C.F.R. §§ 404.967, 416.1467. However, the Appeals

Council must consider “new and material evidence” that “relates to the period on

or before the date of [the ALJ] hearing decision” and must review the case if the

ALJ’s “action, findings, or conclusion is contrary to the weight of the evidence

currently of record.” 20 C.F.R. §§ 404.970(b), 416.1470(b).

       3
        We review de novo a district court’s determination whether to remand under § 405(g)
based on new evidence. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001).
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       There are two methods of remand under § 405(g)—“sentence four remands”

and “sentence six remands.” Ingram, 496 F.3d at 1261.4 A sentence four remand

is appropriate when the claimant submitted new evidence to the Appeals Council,

which the Appeals Council did not adequately consider in denying the claimant’s

request for review. Id. at 1268. To obtain a sentence four remand, the claimant

must show that, in light of the new evidence submitted to the Appeals Council, the

ALJ’s decision to deny benefits is not supported by substantial evidence in the

record as a whole. Id. at 1266-67.

       In contrast, a sentence six remand is appropriate only when the claimant

submits evidence for the first time to the district court that might have changed the

outcome of the administrative proceeding. Id. at 1267-68. To remand under

sentence six, the claimant must show the evidence is new and material and was not

incorporated into the administrative record for good cause. Id. at 1267. New

evidence is material, and thus warrants a remand, if “there is a reasonable

possibility that the new evidence would change the administrative outcome.”

Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987).

A.     Sentence Six Remand

       4
         The fourth sentence of § 405(g) provides the federal court with the “power to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” The sixth sentence provides that the federal court “may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
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      The district court did not err in refusing to remand Timmons’s case under

sentence six. The parties agree that because the Appeals Council failed to refer to

Timmons’s three additional letters in its decision and did not include them in the

certified administrative record, those letters should be considered evidence

submitted for the first time to the district court under sentence six of § 405(g).

Moreover, the government does not dispute that Timmons has shown good cause.

      We agree with the magistrate judge, however, that the three letters are not

“new and material” because they are cumulative of numerous other letters already

in the administrative record that described Timmons’s difficulties interacting with

others. Specifically, the three additional letters, like the letters already in the

record, stated that Timmons speaks loudly and excessively, has mood swings, says

things that hurt others’ feelings, and is confrontational. The ALJ considered the

other letters already in the record that described this behavior and concluded that

those letters were not consistent with the medical evidence and the doctors’

opinions as to the severity of Timmons’s limitations in social functioning. Under

the circumstances, Timmons has not shown a reasonable possibility that his three

additional letters describing the same social difficulties would change the

administrative outcome. See Hyde, 823 F.2d at 459.

      In addition, we reject Timmons’s contention that the three letters are not

cumulative because they cover a different time period. Although the letters were


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written in June 2010, the letters described in general terms Timmons’s behavior

over a period of years and did not give specific dates.

      We also reject Timmons’s claim that the letters are material because they

refute the ALJ’s finding that Timmons stopped experiencing social problems when

he was sober. First, the ALJ never made such a finding. Instead, the ALJ found

that Timmons had the serious mental impairments of polysubstance abuse and

schizoaffective disorder and that these mental impairments resulted in functional

limitations of (1) simple one- and two-step tasks, and (2) only occasional contact

with the public, co-workers, and supervisors. The ALJ further noted that Timmons

had a history of alcohol and drug abuse, Timmons received substance abuse

treatment from September 2006 to March 2007, and Timmons testified that he had

relapsed with drinking and was not attending Alcoholics Anonymous. The ALJ

also noted that one consulting psychologist had observed that Timmons’s

functioning had improved with sobriety. The ALJ ultimately found that Timmons’s

mental impairments were effectively managed with medication and did not prevent

him from performing light work with those two mental limitations.

      We note that both the consulting psychologist’s observation (that Timmons’s

functioning improved when he was sober) and the ALJ’s finding (that Timmons’s

mental impairments were effectively managed with medication) are supported by

substantial evidence. Specifically, the record shows that, after Timmons received


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residential substance abuse treatment at Serenity House from September 2006 to

March 2007, he received ongoing medication management from Act Corporation.

Thereafter, his medical records and psychological evaluations from 2008 to 2010

indicate that he was doing well, with the exception of one period in the fall of

2009, when he was not compliant with his medication and admitted drinking.

      Specifically, according to Act Corporation’s treatment notes, during a

September 2009 follow-up, Timmons reported increased anxiety and admitted to

drinking two beers in the past week. The importance of Timmons’s sobriety was

discussed with him. Two months later, Timmons reported panic attacks and

admitted decreasing his medication without permission. Timmons was given

Klonopin in the emergency room because he had not been taking his medication.

The treatment notes stated that Timmons needed to attend AA meetings. By

February 2010, Timmons was again taking his medications and reported that they

were helping him. Treatment notes from this visit indicated, inter alia, that there

was no evidence of substance abuse and that Timmons’s attention/concentration,

judgment, and insight were good, his speech, motor behavior, and impulse control

were normal, his affect was in the normal range, and his thought process was

organized. Progress notes stated that Timmons was doing well, was bright and

conversational, and his mood was stable, although he was religiously preoccupied.




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      Second, the three letters do not, as Timmons suggests, refute the consulting

psychologist’s observation that Timmons’s functioning improved during sobriety.

Indeed, the letters do not mention Timmons’s substance abuse or his sobriety at all.

Furthermore, the letters do not indicate that additional limitations beyond those

already in the RFC are necessary. For all these reasons, the district court properly

concluded that a remand under sentence six was not warranted.

B.    Sentence Four Remand

      The district court also did not err with respect to Timmons’s request for a

sentence four remand. A sentence four remand was warranted only if the new

evidence considered by the Appeals Council—Carol Beall’s mental health

evaluation—showed that the ALJ’s decision to deny benefits was not supported by

substantial evidence in the record as a whole. See Ingram, 496 F.3d at 1266-67.

Nothing in Beall’s evaluation suggests that the ALJ’s limiting Timmons to simple

one- and two-step tasks and to only occasional contact with co-workers,

supervisors, and the public was inadequate to address Timmons’s mental

impairments. Even in light of Beall’s evaluation, the ALJ’s RFC assessment and

ultimate decision to deny benefits are supported by substantial evidence.

                         III. PHYSICIANS’ OPINIONS

      Timmons argues that the ALJ did not adequately explain the weight given to

the opinions of two examining physicians, Dr. Barber and Dr. Kirmani. As a


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result, Timmons asserts, the ALJ’s RFC assessment is not supported by substantial

evidence.5

A.     Evaluation of Medical Opinions

       An ALJ uses a five-step evaluation to determine whether the claimant is

disabled, which includes (1) whether the claimant is 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 specified

impairments in the Listing of Impairments; (4) whether the claimant has the RFC

to perform his past relevant work; and (5) whether, in light of the claimant’s RFC,

age, education, and work experience, there are a significant number of jobs in the

national economy that the claimant can perform. 20 C.F.R. §§ 404.1520(a)(4), (c)-

(f), 416.920(a)(4), (c)-(f); see also Winschel v. Comm’r of Soc. Sec., 631 F.3d

1176, 1178 (11th Cir. 2011).

       In determining at steps four and five whether a claimant can perform his past

relevant work or other work in the economy, the ALJ must determine a claimant’s

RFC by considering all relevant medical and other evidence.6 Phillips v. Barnhart,


       5
         Our review is limited to whether the ALJ’s decision is supported by substantial evidence
and based on proper legal standards. 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). Under this limited standard of review, we do not make findings of fact, reweigh the
evidence, or substitute our judgment for that of the Commissioner. Id.
       6
         Residual functional capacity is what a claimant can do in a work setting despite any
physical, mental, or environmental limitations caused by the claimant’s impairment and its
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357 F.3d 1232, 1238-39 (11th Cir. 2004); see also 20 C.F.R. §§ 404.1520(e),

416.920(e). In assessing RFC, the ALJ must state with particularity the weight

given different medical opinions and the reasons for doing so. Sharfarz v. Bowen,

825 F.2d 278, 279 (11th Cir. 1987). Without this explanation, a reviewing court

cannot determine whether the decision was supported by substantial evidence.

Winschel, 631 F.3d at 1179. However, the ALJ’s explanation of the decision need

not account for every piece of evidence. Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir. 2005).

       In evaluating medical opinions, the ALJ considers many factors, including

the examining relationship, the treatment relationship, the doctor’s specialization,

whether the opinion is amply supported, and whether the opinion is consistent with

the record. 20 C.F.R. §§ 404.1527(c), 416.927(c). Generally, the opinions of

examining physicians are given more weight than non-examining physicians, and

the opinions of treating physicians are given more weight than non-treating

physicians. See id. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).

B.     Opinions of Drs. Barber and Kirmani

       Here, the ALJ adequately explained the weight she gave to the opinions of

Dr. Barber and Dr. Kirmani. The ALJ reviewed each doctor’s examination


related symptoms. See 20 C.F.R. §§ 404.1545(a), 416.945(a). RFC includes physical abilities,
such as standing, sitting, or walking, and mental abilities, such as understanding, carrying out
instructions, or responding appropriately to supervision, co-workers, or work pressure. Id.
§§ 404.1545(b)-(c), 416.945(b)-(c).
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findings and then stated that she had “accorded great weight” to their medical

opinions because they “are consistent with the medical evidence of record and are

supported by the record as a whole” and also because the doctors had “personally

examine[d]” Timmons. The ALJ’s explanation of its treatment of these two

doctors’ opinions is sufficient to allow for meaningful review.

      Timmons argues that Dr. Barber’s opinion was too imprecise or tentative to

support the ALJ’s RFC findings as to Timmons’s exertional limitations, such as

Timmons’s ability to walk, sit, lift and carry. However, the ALJ was not limited to

Dr. Barber’s opinion or his clinical findings in making her RFC assessment.

Rather, the ALJ considers all the relevant evidence in making an RFC assessment.

See 20 C.F.R. §§ 404.1520(e), 416.920(e). Other evidence in the record, including

the treatment notes from Timmons’s physical therapy and Timmons’s own

statements and hearing testimony as to his daily activities and physical abilities,

provided additional information about Timmons’s ability to walk, stand, sit, lift,

and carry, and the ALJ was not required to specifically reference each piece of

evidence in the decision. See Dyer, 395 F.3d at 1211.

      For example, Timmons testified that he could sit and stand for about an hour

and that he could walk for about a half an hour. In 2007, he reported that he could

walk for about 30 minutes, stand for about 30 minutes, sit for two or three hours

and could lift 15 to 20 pounds. Similarly, during Dr. Barber’s 2008 examination,


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Timmons told Dr. Barber he could walk for 20 minutes, stand for 30 minutes, sit

for two or three hours, and could lift 10 to 20 pounds. The physical therapy

treatment notes stated, inter alia, that Timmons pain was reduced from eight out of

ten to zero out of ten, he was able to conduct his usual activities with no pain, and

he could sit, stand, and walk. Timmons’s physical abilities, expressed in his own

statements and in the treatment notes, are consistent with the ability to perform

light work with a sit/stand option. See 20 C.F.R. §§ 404.1567(b), 416.967(b).

      Timmons also claims that the ALJ’s failure to account for Dr. Barber’s

finding that Timmons could not squat is reversible error. Although the IJ noted Dr.

Barber’s finding that Timmons could not squat in her decision and gave Dr.

Barber’s opinion great weight, the IJ did not include a squatting limitation in her

RFC assessment. The problem for Timmons is that squatting (also referred to as

crouching) is not required for any of the jobs the ALJ found Timmons could

perform. See Dictionary of Occupational Titles, 529.687-138, 1991 WL 674769

(leaf tier), 559.687-014, 1991 WL 683782 (ampoule sealer), 729.687-010, 1991

WL 679733 (assembler of electrical accessories). Accordingly, the omission of a

squatting restriction from the RFC assessment was harmless error.

      Nor did the ALJ err in failing to discuss Dr. Barber’s finding that

Timmons’s obesity might exacerbate his symptoms. As already discussed, the ALJ

considered the medical evidence and Timmons’s own reports of his daily activities


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and physical abilities. This evidence supported a finding that Timmons could

perform light work with a sit/stand option despite any effect his obesity had on his

symptoms.

      Finally, Timmons takes issue with the ALJ’s decision to give great weight to

Dr. Kirmani’s opinion that Timmons was able to make personal and social

adjustments and to understand, remember, and carry out instructions. Timmons

contends that Dr. Kirmani’s opinion is inconsistent with other evidence in the

record that Timmons had significant mental problems despite continuing treatment.

      Substantial evidence supports the ALJ’s decision to give Dr. Kirmani’s

opinion great weight. Although the record contains evidence of Timmons’s

difficulties with social functioning, Timmons himself reported to Dr. Kirmani that

he got along with family, friends, neighbors, store clerks, and doctors. At the

hearing, Timmons testified that he helped his parents with housework and yard

work, that he mowed several neighbors’ lawns for money, and that he could do a

simple job if he had transportation. The treatment notes from Act Corporation and

from Dr. Barber’s examination indicated that Timmons was cooperative and

communicated well. Another consulting psychologist, Dr. Michael Zelenka,

reviewed the record and opined that Timmons was not significantly limited in his

ability to, inter alia: (1) understand, remember, and follow simple and detailed

instructions; (2) accept instructions and respond appropriately to criticism from


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supervisors; and (3) get along with coworkers or peers without distracting them or

exhibiting behavioral extremes. Dr. Zelenka opined that “given some allowances

for occasional prob[lem]s with [attention] and [concentration] and for occasional

psychol[ogical] problems affecting productivity, and given limited public contact,

[claimant] retains adequate mental ability to carry out instr[uctions] and to relate

adequately to others in a routine work setting.” In other words, as the ALJ

explained, Dr. Kirmani’s opinion that Timmons could make personal and social

adjustments and could understand, remember, and follow instructions is consistent

with other evidence in the record. Thus, substantial evidence supports the ALJ’s

decision to give great weight to Dr. Kirmani’s opinion.

 IV. LIMITATIONS IN CONCENTRATION, PERSISTENCE, AND PACE

      Timmons contends that the ALJ failed to adequately reflect Timmons’s

limitations in maintaining concentration, persistence, and pace in her RFC

assessment and in the hypothetical question she posed to the vocational expert.

      At the fifth step, the Commissioner bears the burden to show that, in light of

the claimant’s RFC and other factors, there exist in the national economy a

significant number of jobs the claimant can perform. Winschel, 631 F.3d at 1180;

20 C.F.R. §§ 404.1520(a)(4)(V), 416.920(a)(4)(V). If such jobs exist, then the

claimant is not disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). An ALJ may




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make this determination by posing hypothetical questions to the VE. See

Winschel, 631 F.3d at 1180.

      For the VE’s testimony to constitute substantial evidence, the ALJ’s

hypothetical question need not include “each and every symptom of the claimant,”

but must include “all of the claimant’s impairments.” Ingram, 496 F.3d at 1270.

An ALJ’s hypothetical question 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 limitations in concentration, persistence, and pace. 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.”).

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

Timmons’s moderate limitations in concentration, persistence, and pace. The ALJ

asked the VE to assume the individual had the ability to do light work with a

sit/stand option, but that the “job should be simple, one-two step task, there should

be only occasional contact with the public, coworkers, and supervisors.” The VE

identified the three jobs of leaf tier, ampoule sealer, and electronic parts assembler.


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In response to follow-up questions, the VE explained that these three jobs were not

assembly line jobs on a conveyor belt, but instead could be performed at a work

station.

       Notably, both non-examining, consulting psychologists, Dr. Zelenka and Dr.

Lauriann Sandrik, concluded that despite moderate limitations in maintaining

concentration, persistence, and pace, Timmons could: (1) understand, remember

and carry out both short and simple and detailed instructions; (2) perform activities

within a schedule, maintain regular attendance, and be punctual within customary

tolerances; (3) sustain an ordinary routine without special supervision; (4) work in

coordination with or in proximity to others without being distracted by them; and

(5) make simple work-related decisions.

       Dr. Sandrik further stated that Timmons “appears mentally capable of

completing simple and complex tasks within an appropriate time frame.”

Similarly, Dr. Zelenka stated that, with allowances for occasional problems with

concentration and attention and occasional psychological problems affecting

productivity, Timmons had the mental ability to carry out instructions in a routine

work setting. Dr. Kirmani, who examined Timmons, likewise found that Timmons

could understand, remember, and carry out instructions. In light of this supporting

medical evidence, the ALJ’s restriction to simple, one- and two-step instructions in




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her hypothetical question sufficiently accounted for Timmons’s limitations in

concentration, persistence, and pace.

                               V. CONCLUSION

      For all these reasons, we conclude that the Commissioner’s decision denying

Timmons disability and supplemental security benefits is supported by substantial

evidence. We also find no error in the magistrate judge’s denial of Timmons’s

request to remand his case to the Commissioner.

      AFFIRMED.




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