             Case: 15-10939     Date Filed: 12/29/2015   Page: 1 of 22


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-10939
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:14-cv-00213-GKS-TBS



RICHARD WILLIAM DUVAL,

                                                                Plaintiff-Appellant,

                                       versus

COMMISSIONER OF SOCIAL SECURITY,

                                                               Defendant-Appellee.
                           ________________________

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

                               (December 29, 2015)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Richard William Duval appeals from the district court’s decision to affirm

the Commissioner of Social Security’s denial of his applications for disability
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insurance benefits and supplemental security income. On appeal, Mr. Duval

argues that the administrative law judge (“ALJ”) erred in three ways. First, he

contends that the ALJ failed to apply the proper standards when reviewing medical

opinions from treating and non-treating physicians to determine his residual

functional capacity and that substantial evidence does not support the ALJ’s

evaluation of those opinions. Second, he argues that the ALJ failed to apply proper

standards to assess his credibility, and substantial evidence does not support the

ALJ’s conclusion that his testimony was only partially credible. Third, he claims

that the ALJ failed to account for his mental limitations when formulating a

hypothetical question for the vocational expert. After careful consideration, we

affirm the district court’s judgment in favor of the Commissioner.

                                   I.   Background

      Mr. Duval applied for disability insurance benefits and supplemental

security income with the Social Security Administration. After the Commissioner

denied his applications and reconsideration of his applications, Mr. Duval

requested and received a hearing before an ALJ.

                                         A.

      Before the ALJ, Mr. Duval claimed that he was no longer able to work in his

previous jobs or any other jobs because of seizures, headaches, wrist pain, anxiety,

and depression. First, Mr. Duval testified about the severity and frequency of his


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seizures. He explained that he experienced his first seizure in March 2010 and that

his seizures generally lasted two to four minutes. During the seizures, he would

convulse, bite his tongue, and drop to the floor. According to Mr. Duval, after a

seizure it takes him approximately 20 minutes to regain full consciousness, and

then he is exhausted for several hours. He testified that when he first began

experiencing seizures, he would have two or more seizures per month and that in

the two months leading up to the hearing (March and April 2012), he had four

seizures. He offered no testimony about the frequency of his seizures in the period

between these two times.

      Mr. Duval presented evidence from Dr. Ahmed Sadek, a neurologist, and

HenChai Lai, a nurse practitioner who worked with Dr. Sadek. They treated Mr.

Duval for his seizures and saw him once every two to three months. In September

2011, Dr. Sadek completed a Seizure Impairment Questionnaire explaining that

Mr. Duval suffered from average of one to two seizures per month and that his

seizures were moderately controlled but that his prognosis was unpredictable. In

March 2012, Dr. Sadek and Ms. Lai signed a letter reporting that Mr. Duval

continued to experience one to two seizures a month and that medication failed to

control adequately his seizures. But treatment records from Dr. Sadek and Ms. Lai

reflect that Mr. Duval at times throughout 2010 reported having no seizures

between appointments or having less than one seizure per month and that


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medication was controlling his seizures. Moreover, treatment notes from an April

2012 appointment show Mr. Duval reported experiencing no seizures in over a

month.

      Second, Mr. Duval testified about his headaches. He described experiencing

approximately one to two migraine headaches a month and that when he had a

migraine, he needed to stay in a dark room for several hours. Dr. Sadek also

treated Mr. Duval for his headaches, and Mr. Duval again relied on opinions from

Dr. Sadek before the ALJ. In April 2012, Dr. Sadek completed a Headache

Questionnaire in which he stated that Mr. Duval had experienced three to four

migraine headaches a month and four to five tension headaches a week. Dr. Sadek

explained that medication was unable to completely relieve the pain without

unacceptable side effects and that Mr. Duval’s pain and other symptoms frequently

interfered with his attention and concentration. Dr. Sadek further opined that

because of his headaches and other impairments, Mr. Duval was incapable of

performing low stress work, was precluded from performing even basic work

activities, and would be absent from work at least three times a month. Dr. Sadek

expected these symptoms to continue for at least 12 months.

      But Dr. Sadek’s treatment records tell a different story about the headaches.

Treatment records from an appointment just three weeks before Dr. Sadek

completed the Headache Questionnaire show that Mr. Duval experienced only two


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headaches in a month and a half and that he had elected not to take his headache

medications because the headaches were not severe enough. The treatment notes

also indicate that Mr. Duval’s tension headaches had resolved.

      Third, Mr. Duval testified about injuries to his wrist. In April 2005, Mr.

Duval fractured his right wrist while working. He had three surgeries on his wrist

with the last one in 2007 or 2008. He testified that he never regained full function

after the surgeries and continued to have problems with his wrist. He explained

that he had difficulty holding objects in his right hand and limited movement in his

right wrist, along with a weak grip. In February 2012, Ms. Lai completed a

Bilateral Manual Dexterity Impairment Questionnaire, indicating that Mr. Duval

had reduced grip strength and tenderness in his right hand. She opined that he

could never lift or carry any weight and was essentially precluded from grasping,

turning, or twisting objects, as well as from using his hands or fingers for fine

manipulations. But treatment notes from Dr. Sadek and Ms. Lai show that Mr.

Duval repeatedly reported normal ranges of motion and strength with no

tenderness in his right upper extremity, which would include his wrist.

      Fourth, Mr. Duval testified about his depression and anxiety. Mr. Duval

explained that he had experienced relatively constant depression for the past two

years, which limited his ability to focus and concentrate, but he failed to identify

any specific instance when the depression limited him physically. He also testified


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that he suffered from anxiety attacks every other day that lasted approximately ten

minutes. He stated that he could sit for only 30 minutes before he began to feel

anxious. He could stand or walk for about 45 minutes before needing to sit down,

and he would need a ten minute break before he could resume walking. He also

reported experiencing panic attacks but failed to identify any triggers for his panic

attacks.

      Mr. Duval submitted medical records showing that Naomi Kitner, a licensed

mental health counselor, diagnosed him in March 2012 with mixed anxiety and

depression. After consulting with Ms. Kitner and a psychiatrist, Mr. Duval began

to take medication for his depression and anxiety, which he reported improved and

stabilized his mood.

      Mr. Duval described to the ALJ how his seizures, headaches, wrist pain,

depression, and anxiety limited him on a day-to-day basis. He stated that because

of his seizures, he had stopped driving and had his license revoked. He lived in a

two-story townhome but stayed on one level of the house to avoid using the stairs

because his seizures occurred without warning. He testified that he was not self-

sufficient and relied on his family for assistance. He admitted that he could dress

and bathe himself and perform housework like vacuuming and laundry, although

the tasks took him longer than normal. He reported seeing friends at his home

about once a month and occasionally leaving his home with family members. He


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testified that he engaged in hobbies at home, like working with model cars, but

reported very limited use of his right arm.

      Besides Mr. Duval’s testimony and treatment records from Dr. Sadek, Ms.

Lai, and Ms. Kitner, the ALJ also reviewed a consultative examination report from

William W. Austin, Psy.D. After examining Mr. Duval in January 2011, Dr.

Austin diagnosed him with generalized anxiety disorder and major depressive

disorder and concluded that Mr. Duval had compromised social functioning and

moderately impaired functional abilities.

      The ALJ also considered reports from medical providers who reviewed Mr.

Duval’s treatment records but never treated or examined him. Dr. John Rinde, an

internist, completed a physical residual functional capacity assessment in April

2011 and determined that Mr. Duval’s seizure disorder was fairly well controlled

and that he faced no limitations other than to avoid work on ladders, ropes, or

scaffolds or with machinery. Deborah Carter, Ph.D., reviewed Mr. Duval’s

treatment records, including Dr. Austin’s consultative examination, to determine

the limitations that Mr. Duval faced based on his mental health condition. She

concluded that he was moderately limited in his abilities to carry out detailed

instructions, to maintain attention and concentration for extended periods of time,

to complete a normal workday and workweek without interruptions from his




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psychologically based symptoms, and to interact appropriately with the general

public.

      The ALJ heard expert testimony from a vocational expert (“VE”). The ALJ

asked the VE the following hypothetical question:

      [L]et’s assume a hypothetical person of the claimant’s age, education
      and work experience who is able to lift up to 20 pounds occasionally
      and lift and carry up to ten pounds frequently. This person would be
      able to stand and walk for about six hours in an eight hour workday
      and would be able to sit for up to six hours in an eight hour workday.
      This person should never climb ladders or scaffolds. This person
      should avoid exposure to operational control of moving machinery
      and unprotected heights and also to hazardous machinery. This
      person’s work would be limited to simple, routine and repetitive tasks.
      Simple means learned with an on the job demonstration or within 30
      days. Routine means performed the same way or in a similar manner
      each time. And repetitive means performed from start to finish over
      and over throughout a workday . . . Could this individual perform any
      other job in the national or regional economy?

Hearing Tr. (Doc. 14-4 at 110–11).1 The VE answered that this individual could

work as a street cleaner, electronics worker, ticket taker, or produce weigher. The

ALJ then added the limitation that the person could have only occasional

interaction with coworkers and the public. The VE testified that this person could

still perform the electronic worker and street cleaner positions.

      At the close of the hearing, the ALJ left open the record so that Mr. Duval

could submit additional evidence including medical records regarding his treatment

for bipolar disorder. Instead of treatment notes, Mr. Duval provided a Psychiatric

      1
          Citations to “Doc.” refer to docket entries in the district court record in this case.
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Impairment Questionnaire completed by Dr. Ramon Martinez, a psychiatrist who

treated him. Dr. Martinez diagnosed Mr. Duval with bipolar disorder and indicated

that he had marked limitations in areas related to understanding and memory,

sustained concentration and persistence, social interactions, and adaptation. Based

on these limitations, Dr. Martinez opined that Mr. Duval was incapable of even

low stress work.

                                         B.

       The ALJ issued a written decision concluding that Mr. Duval was not

disabled within the meaning of the Social Security Act. The ALJ used the

regulations’ five-step, sequential evaluation process to determine whether Mr.

Duval was disabled. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). First, the

ALJ concluded that Mr. Duval had not engaged in substantial gainful activity since

March 1, 2010. Second, the ALJ found that Mr. Duval suffered from the following

severe impairments: epilepsy seizure disorder, distal radioulnar joint arthrosis

right wrist, and depression. Third, the ALJ determined that Mr. Duval did not have

an impairment or combination of impairments that met or medically equaled the

severity of an impairment listed in 20 C.F.R. Part 404, subpart P, appendix 1.

      Fourth, the ALJ concluded that Mr. Duval could not perform his past

relevant work. In reaching this conclusion, the ALJ considered Mr. Duval’s

residual functional capacity and concluded that he could perform work at the light


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exertional level. The ALJ found that Mr. Duval could lift, carry, push, or pull up

to twenty pounds occasionally and ten pounds frequently and that he could stand

and walk for approximately six hours and sit for approximately six hours in an

eight-hour workday. The ALJ recognized that Mr. Duval should never climb

ladders or scaffolds and should avoid exposure to operational control of moving

machinery, unprotected heights, or hazardous machinery. The ALJ determined

that Mr. Duval’s work needed to be limited to simple, routine, and repetitive tasks

with only occasional interaction with coworkers and the public. The ALJ rejected

Mr. Duval’s statements about the intensity, persistence, and limiting effects of his

symptoms to the extent they were inconsistent with the ALJ’s residual functional

capacity assessment and unsupported by objective medical evidence. Based on

this residual function capacity, the ALJ concluded that Mr. Duval was unable to

perform his past work but could perform a significant number of jobs in the

national economy, such as street cleaner or electronics assembler. Accordingly,

the ALJ concluded that Mr. Duval was not disabled.

      Mr. Duval sought review of the ALJ’s decision by the Appeals Council and

submitted additional evidence to the Appeals Council. The Appeals Council

considered some new mental health records that Mr. Duval submitted but refused

to review most of his new evidence, concluding that it concerned a later time




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period. Because the Appeals Council determined there was no reason to review

the ALJ’s decision, it denied his request for review.

                                              C.

       Mr. Duval then filed an action in district court seeking review of the ALJ’s

decision denying benefits.2 A magistrate judge entered a report and

recommendation concluding that the Commissioner’s decision should be reversed

and remanded for further proceedings because the ALJ failed to analyze Mr.

Duval’s credibility properly. Although no objection was filed, the district court

entered a one-page order rejecting the magistrate judge’s report and

recommendation. The district court affirmed the Commissioner’s final decision

based on its summary conclusions that “substantial evidence supports the [ALJ]’s

findings concerning the work that Duval . . . is able to perform” and “the [ALJ]

applied the proper legal analysis.” Order (Doc. 19). This appeal followed.

                                  II. Standard of Review

       In Social Security appeals, we review de novo the legal principles upon

which the Commissioner’s decision is based. Moore v. Barnhart, 405 F.3d 1208,

1211 (11th Cir. 2005). We may not decide facts anew, make credibility decisions,

or reweigh the evidence. Id. Instead, we review the Commissioner’s decision

“only to determine whether it is supported by substantial evidence.” Id.

       2
         Mr. Duval did not challenge the Appeals Council’s refusal to consider some of the
additional materials that he submitted to it.
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“Substantial evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also Richardson v.

Perales, 402 U.S. 389, 401 (1971) (applying substantial evidence standard to

disability determinations under the Social Security Act). When a decision is

supported by substantial evidence, we must affirm, “[e]ven if we find that the

evidence preponderates against the [Commisioner’s] decision.” MacGregor v.

Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). Similarly, we review an ALJ’s

credibility determination concerning a claimant’s complaints of pain and other

subjective symptoms for substantial evidence supporting the determination.

Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992).

           III. The ALJ’s Treatment of Testimony from Medical Providers

       The social security regulations establish a five-step evaluation process to

evaluate disability claims. 3 20 C.F.R. §§ 404.1520, 416.920. Mr. Duval’s appeal



       3
          At step one, the ALJ determines whether the claimant is engaged in “substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4). If not, then the claimant must show at step two that his
impairment is “severe,” meaning it “significantly limits [his] physical or mental ability to do
basic work activities.” Id. § 404.1520(a)(4), (c). If the claimant makes that showing, then at step
three he must show that he has an impairment that meets or equals the criteria contained in the
listings of impairments. Id. § 404.1520(a)(4). If the claimant shows his impairment meets or
equals a listing, then he is determined to be disabled. Id. If he fails to do so, then at step four,
the ALJ considers the claimant’s residual functional capacity to determine whether the claimant
could still perform his past relevant work activity. Id. If the claimant could not do so, then the
ALJ moves to step five and determines whether, in light of the claimant’s residual functional
capacity, age, education, and work experience, he could perform other work. If so, the claimant
is not disabled; if not, the claimant is disabled. Id.; see also id. § 416.920(a)(4).
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focuses on step five in the evaluation process, whether he can perform other work.

He argues that in evaluating his residual functional capacity, the ALJ erred by

rejecting the opinions of his treating medical providers and relying on the opinions

of medical providers who never treated or examined him. We disagree. Because

substantial evidence supported the ALJ’s conclusion that there was good cause for

failing to give substantial or considerable weight to the opinions of Mr. Duval’s

treating providers, there is no error here.

                                              A.

      An ALJ must give the medical opinions of a treating physician, such as Dr.

Sadek, “substantial or considerable weight unless good cause is shown to the

contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (internal

quotation marks omitted); see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Good

cause exists when: (1) the opinion “was not bolstered by the evidence,” (2) the

“evidence supported a contrary finding,” or (3) the “treating physician’s opinion

was conclusory or inconsistent with the doctor’s own medical records.” Phillips,

357 F.3d at 1240–41. We require an ALJ to articulate clearly the reasons for

giving less weight to the opinion of a treating physician. Id. at 1241. When

substantial evidence supports the ALJ’s articulated reasons for assigning limited

weight to a treating physician’s opinion, there is no reversible error. See Moore,

405 F.3d at 1212.


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       Here, the ALJ applied the correct standard in declining to give substantial or

considerable weight to the opinions of Dr. Sadek, Ms. Lai, and Dr. Martinez

because their opinions were unsupported by progress notes or conclusory. For the

reasons discussed below, we further conclude that substantial evidence supports

the ALJ’s finding of good cause.

                                               1.

       Substantial evidence supports the ALJ’s conclusion that Dr. Sadek’s

opinions were unsupported by his treatment notes. Although Dr. Sadek opined that

Mr. Duval experienced one to two seizures per month and that mediation failed to

adequately control his seizures, his treatment notes reflect that at times Mr.

Duval’s seizures occurred less frequently and were controlled by medication.4 In

fact, the ALJ cited to specific treatment notes showing Mr. Duval reported no

seizures between appointments or seizures that occurred less frequently than once

per month and that medication was controlling the seizures. Given these records,

substantial evidence supports the ALJ’s conclusion that treatment records do not

support Dr. Sadek’s opinions about Mr. Duval’s seizures.

       Substantial evidence also supports the ALJ’s conclusion that Dr. Sadek’s

opinions about the severity and frequency of Mr. Duval’s headaches were not

       4
         Mr. Duval attempts to rewrite Dr. Sadek’s opinions when he argues that the medical
records “confirm Mr. Duval was often having 1 to 2 seizures a month.” Appellant’s Br. at 37.
But he overlooks that in a March 2012 letter Dr. Sadek stated that Mr. Duval experienced one to
two seizures per month, an opinion unsupported by Dr. Sadek’s treatment notes.
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credible. In April 2012, Dr. Sadek completed a Headache Questionnaire indicating

that Mr. Duval experienced four to five tension headaches a week and three to four

migraines a month and that medication only moderately controlled the headaches.

But treatment records show that Mr. Duval’s headaches occurred less frequently

and were less severe than Dr. Sadek noted. Indeed, the treatment notes from Mr.

Duval’s last appointment before the questionnaire show that he reported only two

migraines in a month and a half, which were manageable; his tension headaches

had resolved; and he had stopped taking his headache medication. 5 Because

substantial evidence supports the ALJ’s determination that Dr. Sadek’s opinions

were inconsistent with his treatment records, the ALJ had good cause to afford Dr.

Sadek’s opinions less weight.6




       5
          The ALJ concluded that progress notes throughout the record failed to support Dr.
Sadek’s opinions about the severity of Mr. Duval’s headaches. Mr. Duval argues that we can
consider only the evidence cited by the ALJ, meaning that we cannot look to the April 2012
treatment notes. We disagree because “there is no rigid requirement that the ALJ specifically
refer to every piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005).
       6
          Mr. Duval also argues that the ALJ erred by giving little credit to the opinions of Ms.
Lai. Even assuming the ALJ was required to consider Ms. Lai’s opinions, substantial evidence
supports the ALJ’s conclusion that treatment records fail to support her opinions for the same
reasons discussed above for Dr. Sadek’s opinions. We recognize that Ms. Lai offered an
additional opinion about the severity of Mr. Duval’s wrist injury. But Mr. Duval has failed to
raise a challenge to the ALJ’s determination about the extent of his wrist limitations, meaning he
has abandoned this argument. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004) (deeming abandoned an argument the appellant failed to raise in its initial brief).
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                                          2.

      Mr. Duval also argues that the ALJ erred in summarily rejecting the opinions

of Dr. Martinez, the psychiatrist who treated Mr. Duval. Although Dr. Martinez

opined that Mr. Duval had marked limitations in almost all areas of mental activity,

we conclude that substantial evidence supports the ALJ’s conclusion that these

opinions are unsupported by Dr. Martinez’s progress notes.

      Dr. Martinez treated Mr. Duval for a short period of time—only one

month—and saw Mr. Duval twice before opining about his mental impairments.

Dr. Martinez’s notes from Mr. Duval’s first visit reflect that he had a cooperative

attitude, intact impulse control, a clear and coherent thought process, age

appropriate cognition, and intact insight and judgment. Given these progress notes

from one of the two treatment sessions, substantial evidence supports the ALJ’s

conclusion that the progress notes did not support Dr. Martinez’s opinions.

Accordingly, the ALJ did not err in giving Dr. Martinez’s opinions less than

considerable or substantial weight.

                                         B.

      Mr. Duval also argues that the ALJ erred in relying on opinions from non-

treating, non-examining medical providers that he had only minor limitations based

on his seizure disorder and psychological conditions. His argument rests on the

premise that it is error for an ALJ to credit opinions from a non-treating, non-


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examining medical provider “when contradicted by the opinions from a treating

specialist whose opinions are consistent with the underlying record.” Appellant’s

Br. at 31. Even assuming Mr. Duval has correctly stated the law, the principle is

inapplicable here because substantial evidence supports the ALJ’s conclusion that

treatment records failed to support the treating medical providers’ opinions. In

other words, there was no error in the weight the ALJ gave to opinions of the non-

treating, non-examining medical providers.

               IV. The ALJ’s Treatment of Mr. Duval’s Testimony

      Mr. Duval also challenges the ALJ’s determination that his testimony about

the intensity, persistence and limiting effects of his symptoms was not credible to

the extent that it was inconsistent with the ALJ’s residual functional capacity

assessment and unsupported by medical evidence. He argues that the ALJ failed to

apply the proper standard and that substantial evidence does not support the

credibility determination. We are unconvinced.

      When a claimant attempts to establish a disability through his own testimony

concerning pain or other subjective symptoms, we require “(1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain, or (b) that the objectively determined

medical condition can reasonably be expected to give rise to the claimed pain.”

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). If the record shows that


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the claimant has a medically determinable impairment that could reasonably be

expected to produce his symptoms, the ALJ must evaluate the intensity and

persistence of the symptoms in determining how they limit the claimant’s capacity

for work. 20 C.F.R. §§ 404.1529(c)(1), 416.927(c)(1). The ALJ is not required to

examine every piece of evidence so long as the decision does not broadly reject the

claimant’s case and is sufficient for a reviewing court to conclude that the ALJ

considered the claimant’s medical condition as a whole. See Mitchell v. Comm’r,

Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). “If proof of disability is

based upon subjective evidence and a credibility determination is, therefore,

critical to the decision, the ALJ must either explicitly discredit such testimony or

the implication must be so clear as to amount to a specific credibility finding.”

Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (internal quotation marks

omitted).

      The ALJ applied the correct legal standard when reviewing Mr. Duval’s

credibility, and substantial evidence supports the ALJ’s credibility determination.

The ALJ applied the three-step framework for evaluating subjective testimony

from a claimant. In evaluating the intensity and persistence of symptoms, the ALJ

concluded there were inconsistencies between Mr. Duval’s testimony and the

objective medical evidence. For example, after finding that the medical records




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contradicted Mr. Duval’s assertion that he had very limited use of his right hand,

the ALJ discounted his testimony.

       Mr. Duval claims that the ALJ failed to provide any reason for finding his

subjective testimony about seizures, 7 headaches, and mental impairments to lack

credibility. We disagree. The ALJ explained that Mr. Duval’s testimony was not

credible to the extent it was unsupported by the objective medical evidence and

then discussed at length why similar opinions from Mr. Duval’s treating medical

providers were unsupported by the record. From this discussion, we can clearly

infer what testimony from Mr. Duval the ALJ found lacking in credibility and why

it was discredited. For example, the ALJ discussed the medical evidence showing

that Mr. Duval’s seizures were controlled by medication, the severity of his

headaches was overstated, and he had only mild to moderate limitations based on

his depression and anxiety.

       Mr. Duval also argues that the ALJ used improper boilerplate language that

tied the credibility determination to the ALJ’s residual functional capacity

assessment. But we have previously affirmed credibility determinations using that

formula when they did not broadly reject the claimant’s testimony. See Mitchell,

771 F.3d at 781–82. We conclude that the ALJ committed no legal error when

       7
          We note that Mr. Duval presented limited testimony about the frequency of his seizures
and testified only about the frequency in March 2010, March 2012, and April 2012. It appears
that Mr. Duval made a strategic decision not to testify about the frequency of his seizures in the
intervening period when they occurred less frequently.
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reviewing Mr. Duval’s testimony, and substantial evidence supports the ALJ’s

determination that Mr. Duval’s testimony was only partially credible.

                 V. The ALJ’s Treatment of the VE’s Testimony

      As explained above, the ALJ used the five-step sequential evaluation to

determine whether Mr. Duval was disabled. See 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4) . Mr. Duval contends that the Commissioner failed to carry his

burden at step five to show that significant numbers of jobs exist in the national

economy that he can perform based on his residual functional capacity, age,

education, and work experience. The Commissioner may demonstrate that a

claimant is capable of performing other work through the testimony of a VE. See

Wilson, 284 F.3d at 1227 (referring to VE testimony as the preferred independent

evidence of jobs that are available in the national economy). A VE’s testimony

constitutes substantial evidence if the ALJ poses a hypothetical question that

includes all of a claimant’s impairments. Id. Although the ALJ is required to

include each of the claimant’s impairments in the hypothetical question, there is no

requirement that the question include alleged symptoms without support in the

medical record or that are alleviated by medication. Ingram v. Comm’r of Social

Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007).

      An ALJ must account for a claimant’s limitations in concentration,

persistence, or pace in a hypothetical question to the VE. Winschel v. Comm’r of


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Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). An ALJ may account for these

limitations by limiting the hypothetical to unskilled work “when medical evidence

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

despite limitations in concentration, persistence, and pace.” Id. In Winschel, we

concluded that the ALJ needed to include the claimant’s limitations in

concentration, persistence, or pace in the hypothetical question to the VE because

there was no indication from the medical evidence that the claimant could perform

work despite his limitations. Id. at 1181.

      The ALJ posed a proper hypothetical question that included all of Mr.

Duval’s impairments. As discussed above, the ALJ’s credibility determinations

that influenced the hypothetical question posed to the VE were supported by

substantial evidence. Furthermore, the ALJ accounted for Mr. Duval’s moderate

limitations in concentration, persistence, or pace by limiting him to simple, routine,

and repetitive tasks, which medical evidence showed he could perform. Since the

hypothetical question was proper, and the VE informed the ALJ that Mr. Duval

could perform other jobs in the national economy that exist in significant numbers,

the Commissioner met her burden to show that Mr. Duval was capable of

performing other work.




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      Case: 15-10939     Date Filed: 12/29/2015    Page: 22 of 22


                             VI. Conclusion

For the reasons set forth above, the district court’s judgment is affirmed.

AFFIRMED.




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