Konkle v. Commissioner of Social Security

Filing 24

OPINION AND ORDER affirming the Commissioner's decision. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 3/21/2017. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
COLEENA M. KONKLE,
Plaintiff,
v.

CASE NO. 6:16-cv-104-Orl-MCR

ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and disability insurance
benefits (“DIB”), alleging disability beginning August 20, 2010. (Tr. 179.) A
hearing was held before the assigned Administrative Law Judge (“ALJ”) on April
22, 2014, at which Plaintiff was represented by counsel. (Tr. 31-54.) The ALJ
found Plaintiff not disabled from August 20, 2010 through March 31, 2014, the
date last insured.2 (Tr. 11-25.)
In reaching the decision, the ALJ found that Plaintiff “had the following
severe impairments: Crohn’s disease, endocervicitis and dysthymic disorder.”
(Tr. 14.) The ALJ also found that Plaintiff had the residual functional capacity
1

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 13, 16.)
2

Plaintiff had to establish disability on or before her date last insured in order to
be entitled to a period of disability and DIB. (Tr. 11.)

(“RFC”) to perform “less than the full exertional range of sedentary work.” (Tr.
16.) After finding that Plaintiff was unable to perform any past relevant work, the
ALJ found that there were jobs existing in significant numbers in the national
economy that Plaintiff could perform. (Tr. 23-24.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from August 20, 2010 through March 31, 2014. Plaintiff has exhausted
her available administrative remedies and the case is properly before the Court.
The Court has reviewed the record, the briefs, and the applicable law. For the
reasons stated herein, the Commissioner’s decision is AFFIRMED.
I.

Standard

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
2

F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991). The district court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.

Discussion
A.

Issues on Appeal

Plaintiff raises two arguments on appeal. Her first argument is that the ALJ
did not provide sufficient rationale based on substantial evidence for according
little weight to the March 28, 2013 opinion of Hassan Borghei, D.O., Plaintiff’s
treating gastroenterologist. Plaintiff asserts that the ALJ’s RFC assessment,
which provides for unscheduled breaks lasting five minutes as often as every two
hours, conflicts with Plaintiff’s testimony and with Dr. Borghei’s opinion that
frequent trips to the bathroom are to be expected due to her Crohn’s disease.3
Plaintiff points out that the ALJ did not state the weight given to Dr. Borghei’s
opinion that frequent trips to the bathroom are to be expected. Further, although

3

Plaintiff testified at the hearing that she must go to the bathroom anywhere
from four to twelve times a day, that the need to go is urgent and without much warning,
that she has had accidents, that she needs f rom two to ten minutes each time, and that
her abdominal cramping is sharp, occurs daily, and comes and goes. (Tr. 39-40.)
Plaintiff asserts that Dr. Borghei’s opinion and the latest research on Crohn’s disease
confirm that the limitations supported by her testimony are reasonable.
3

the ALJ gave some weight to Dr. Borghei’s opinion that Plaintiff may miss
school/work days, Plaintiff argues that the ALJ completely ignored this opinion
because his RFC assessment does not include any anticipated absences from
work due to flare-ups of Crohn’s disease. Plaintiff contends that “Dr. Borghei was
sufficiently specific for this reviewing court to find that the ALJ did not give the
doctor’s opinion sufficient weight.” (Doc. 20 at 12.)
Plaintiff’s second argument is that the ALJ improperly relied on the
testimony of the Vocational Expert (“VE”) because his hypothetical question did
not adequately reflect all of Plaintiff’s limitations. Plaintiff asserts that the ALJ’s
hypothetical question, which included unscheduled breaks lasting five minutes as
often as every two hours, did not describe a true need for unscheduled breaks
and was not consistent with Dr. Borghei’s opinion and Plaintiff’s testimony.
Plaintiff points to the VE’s response that if the need to take five-minute breaks
could be included within the 15- or 30-minute scheduled breaks, then there would
be no issue, which begs the question what if the need to take breaks is truly
unscheduled and cannot be included in the 15- or 30-minute scheduled breaks.
Plaintiff argues that the ALJ’s failure to ask this hypothetical question is not
harmless error. Plaintiff also argues that the ALJ failed to include in the
hypothetical question his own finding that Plaintiff had moderate difficulties in
concentration, persistence or pace because he failed to ask how occasional
difficulties with concentration, attention, and task persistence would affect the job
4

base. Plaintiff urges the Court to remand this case “as it cannot be determined
that the few restrictions listed in the RFC finding fully account for the
acknowledged deficiencies in concentration, persistence, or pace.” (Doc. 20 at
18.)
B.

The ALJ’s Decision

The ALJ found that Plaintiff had the RFC “to perform less than the full
exertional range of sedentary work.” (Tr. 16.) Specifically:
The claimant can lift, carry, push and/or pull ten (10) pounds
occasionally. The claimant can stand and/or walk for two (2) hours
in an eight-hour workday with normal breaks. The claimant can sit
for up to six (6) hours in an eight-hour workday with normal breaks.
The claimant can occasionally stoop, kneel, crouch, crawl and climb
stairs. However, she should never climb ladders or scaffolds. The
claimant’s work would be limited to simple, routine and repetitive
tasks. Her work would further be limited to low stress work, meaning
that the claimant could not perform jobs with strict time frames in
which tasks must be completed. The claimant would need
unscheduled breaks during an eight-hour workday as often as five
minutes every two hours.
(Id.) In making this finding, the ALJ considered Plaintiff’s subjective complaints,
her mother’s statements in the Third Party Function Report, Plaintiff’s treatment
records, including the progress notes and opinions of Dr. Borghei, the opinions of
the consultative examiners, and the opinions of the State agency non-examining
consultants. (Tr. 17-23.)
The ALJ addressed Plaintiff’s complaints as follows:
The claimant, a thirty-four year old former photo technician, alleges
disability due to limitations imposed by Crohn’s disease,
5

endocervicitis and dysthymic disorder. The claimant alleges she
needs to use the bathroom four to twelve times [a] day [which]
coupled with cramping, prevents her from working full time. The
claimant disclosed she has had accidents regarding the frequency of
needing to use the bathroom. The claimant stated that she
experiences cramping daily and curtails the pain using heating pads
and bathing in Epsom salts. She described her cramping as sharp
pains in her abdomen that are connected to her bowel movements
(See Exhibits 9E and 17E). The claimant explained she has to
watch her diet and consumes yoghurt protein shakes. When going
out, the claimant stated that she must take anti-diarrhea medicine.
(Tr. 17.) The ALJ found, for the reasons explained in his decision, that although
Plaintiff’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms, Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of these symptoms were not entirely credible.
(Tr. 21.)
With respect to Dr. Borghei’s treatment records and opinions, the ALJ
stated in relevant part:
The medical records indicate the claimant has been treated for
Crohn’s disease with gastroenterologist Hassan Borghei D.O., for a
lengthy duration. On October 12, 2010, Dr. Borghei noted the
claimant stopped taking her prescribed medication and instead
admitted she was only using over the counter Motrin to address her
abdominal pains for weeks. The claimant complained of nausea,
bloody bowel movements and bloating on October 26, 2010,
however, examination of the gastrointestinal system was normal.
The claimant underwent an esophagogastroduodenoscopy on
October 28, 2010, which showed benign duodenal mucosa; mild
chronic gastritis; and no pathologic changes. The August 30, 2012
visit indicated right lower quadrant tenderness in the abdomen but
bowel sounds were normal (Exhibit 1F).
After lab work was performed, including a biopsy, the claimant was
6

diagnosed on November 7, 2012 with granulation tissue with
fibrinopurulent debris identified, consistent with ulceration; portions of
reactive colonic type mucosa showing changes of colitis; and focal
active colitis with focal superficial erosions. On November 26, 2012,
the gastrointestinal system was again normal and Dr. Borghei
instructed the claimant to taper down steroids (Exhibit 4F)[.]
The records further note that on February 6, 2013, the claimant was
referred treatment [sic] for a history of ringworm. The claimant
requested a letter on April 29, 2013 from Dr. Borghei concluding that
she was unable to work for forty hours a week and that she was
applying for financial aid to go to school, working part time only. Dr.
Borghei noted he was unsure why the claimant could not work full
time (Exhibit 9F).
Instead, Dr. Borghei sent correspondence for bathroom privileges
and the claimant’s Pell grant application, dated May 28, 2013,
affirming the claimant has been treated for Crohn’s disease and
frequent trips to the bathroom are to be expected. Dr. Borghei also
noted the claimant may miss school and work days. On January 6,
2014, it was noted the claimant was treated for ringworm and due to
the infection, Dr. Borghei was unable to start Cimzia for the Crohn’s
disease. Despite complaints of abdominal pain and rectal bleeding,
the physical examination indicated a non-tender abdomen with
normal bowel sounds (Exhibit 9F). Dr. Borghei also referred the
claimant to infectious disease specialist Saima Abbas, M.D., to treat
the claimant’s ringworm (Exhibit 12F).
(Tr. 17-18.) The ALJ gave “only some weight” to Dr. Borghei’s opinion that
Plaintiff may miss school and work days. (Tr. 22.) The ALJ explained:
“Although[] the opinion is somewhat consistent with his own progress notes
indicating issues with Crohn’s disease, Dr. Borghei was not specific on how many
actual days the claimant would miss. Furthermore, Dr. Borghei’s opinion did not
appear to take into account the claimant’s part-time work during the time.” (Id.)
As to the RFC assessment, the ALJ explained:
7

In terms of the claimant’s alleged physical impairments, treatment
records, findings on physical examination, and imaging reports are
consistent with the above [RFC] assessment.
The claimant presented symptomatic conditions that allegedly affect
the claimant’s potential to perform work, including frequent use of the
bathroom. However, the medical records, including the results of
diagnostic examinations do not support the allegations.
...
The physical examinations from Brevard Health [A]lliance did not
indicate remarkable issues in with [sic] the abdomen or the overall
gastrointestinal system (Exhibit 14F). Furthermore, the records of
treating gastroenterologist Dr. Borghei documented many normal
examinations, including the most recent examination dated
November 26, 2012 (Exhibit 1F and 4F). The records further
illustrated many times, the claimant was self-sufficient, including the
ability to drive herself. The claimant even testified that she drives to
Lakeland, Florida to see her children regularly.
Lastly, there has been no documentation by any physician indicating
the claimant needed to use the bathroom a certain number of times.
There has also been no documentation that the claimant’s part-time
employment was terminated due to this. In any case, I have taken
this into account with the determined [RFC].
...
It is also curious to me that the claimant requested a letter from Dr.
Borghei concluding that she was unable to work for forty hours a
week and that she was applying for financial aid to go to school,
working part time only (Exhibit 9F). Considering, as discussed
above, the claimant was able to work with her symptoms and is now
applying to school, which implies the claimant’s reported activities of
daily living have been under reported. This does not support the
claimant’s allegations that she is totally disabled. In fact, Dr. Borghei
noted he was unsure why the claimant could not work full time
(Exhibit 9F). This slightly erodes the credibility of the claimant and
simultaneously, suggests the claimant’s symptoms are not as severe
as claimed.
8

(Tr. 19-20.)
The ALJ also observed that Plaintiff was non-compliant with prescribed
treatment. (Tr. 21.) As reflected in an October 12, 2010 progress note from Dr.
Borghei, Plaintiff stopped taking her prescribed medication and only used over
the counter Motrin for abdominal pain. (Id.) Also, despite referral from Dr.
Borghei, Plaintiff failed to show up for her appointment with an infectious disease
physician on January 22, 2013. (Id.) The ALJ stated: “These factors further
imply the claimant’s symptoms are not as severe since it is reasonable to assume
the claimant would follow through on her treating gastroenterologist’s advice.”
(Id.)
C.

Analysis

Plaintiff argues that the ALJ erred in failing to state the weight given to Dr.
Borghei’s opinion that frequent trips to the bathroom are to be expected and in
giving only some weight to Dr. Borghei’s opinion that Plaintiff may miss school
and work days, that the ALJ completely ignored the latter opinion because his
RFC does not include any anticipated absences due to flare-ups of Crohn’s
disease, and that the ALJ’s RFC assessment conflicts with Dr. Borghei’s opinion,
Plaintiff’s testimony, and the latest research on Crohn’s disease, all of which
allegedly support greater limitations than found by the ALJ. The Court finds no
error.
First, the ALJ properly considered and weighed Dr. Borghei’s opinions. On
9

April 29, 2013, Plaintiff called Dr. Borghei’s office asking for “a letter that she can
not work 40 hours a week, [was] applying for financial aid to go to school, [and
could] do part time but not full time” work. (Tr. 441.) When Dr. Borghei received
this message, he asked, “why can not she wor[k] full time?” (Id.) On May 28,
2013, Dr. Borghei signed a letter, stating in relevant part:
[Plaintiff] has been seen in our office and treated for the following
diagnos[i]s: Crohn’s Disease. Crohn’s Disease is a chronic
[i]nflammatory bowel disease which causes abdominal pain and
diarrhea. Therefore[,] frequent trips to the bathroom are to be
expected and also [a] patient with [C]rohn’s disease will have flare
ups with abdominal pain and may miss school/work days.
(Tr. 440.)
The ALJ addressed this letter in his decision, but ultimately decided to give
Dr. Borghei’s opinion that Plaintiff may miss school/work days “only some
weight.” (Tr. 18, 22.) The ALJ explained: “Although[] the opinion is somewhat
consistent with his own progress notes indicating issues with Crohn’s disease, Dr.
Borghei was not specific on how many actual days the claimant would miss.
Furthermore, Dr. Borghei’s opinion did not appear to take into account the
claimant’s part-time work during the time.” (Tr. 22.) Although the ALJ did not
separately weigh Dr. Borghei’s opinion that frequent trips to the bathroom are to
be expected, the ALJ considered all of Dr. Borghei’s opinions. (See Tr. 17-18,
22.) The ALJ stated that although Plaintiff “presented symptomatic conditions
that allegedly affect [her] potential to perform work, including frequent use of the

10

bathroom . . . , the medical records, including the results of diagnostic
examinations do not support the allegations.” (Tr. 19.) The ALJ then discussed
specific medical records showing unremarkable physical examinations and noted
that Plaintiff’s daily activities have been under-reported given that she was
apparently self-sufficient, was able to work part-time and drive, and was applying
to school. (Id.) The ALJ also noted that although “there has been no
documentation by any physician indicating the claimant needed to use the
bathroom a certain number of times” or that Plaintiff’s “part-time employment was
terminated due to this,”4 he has nevertheless “taken this into account” when
determining the RFC. (Id.)
The Court finds that the ALJ’s reasons for giving only some weight to Dr.
Borghei’s opinions are supported by substantial evidence. (See, e.g., Tr. 349
(noting normal esophagogastroduodenoscopy, status post random biopsies of
duodenum, gastric, and gastroesophageal junction); Tr. 363 (noting normal
gastrointestinal examination); Tr. 36 & 47-48 (testimony by Plaintiff that she lives
by herself and drives to Lakeland to visit her children).) Plaintiff seems to argue
that the ALJ should have given more weight to Dr. Borghei’s opinions given that
they were “somewhat consistent with his own progress notes indicating issues
with Crohn’s disease.” (Tr. 22.) However, the ALJ noted that “the records of
4

Although Plaintiff testified that she was fired from her job due to frequent
bathroom trips (Tr. 38), the record includes reports that she was terminated for
fighting with other employees (Tr. 210, 272, 297).
11

treating gastroenterologist Dr. Borghei documented many normal examinations,
including the most recent examination dated November 26, 2012.” (Tr. 19.) The
ALJ also noted that Dr. Borghei’s October 12, 2010 progress note indicated that
Plaintiff “stopped taking her prescribed medication and instead admitted she was
only using over the counter Motrin to address her abdominal pains for weeks.”
(Tr. 17.)
The ALJ’s findings are supported by substantial evidence. To the extent
Plaintiff invites the Court to re-weigh the evidence or substitute its decision for
that of the ALJ, the Court cannot do so. As long as the ALJ’s findings are based
on correct legal standards and are supported by substantial evidence, the
Commissioner’s decision must be affirmed even if the reviewer would have
reached a different conclusion. Plaintiff contends that the ALJ erred in failing to
include any anticipated absences due to flare-ups of Crohn’s disease in the RFC
assessment. However, the ALJ was not required to include limitations in the RFC
or the hypothetical questions, which the ALJ had properly discounted. Moreover,
the ALJ’s RFC assessment did not need to mirror or match the findings or
opinions of any particular medical source because the responsibility for assessing
the RFC rests with the ALJ. Kopke v. Astrue, 2012 WL 4903470, *5 (M.D. Fla.
Sept. 26, 2012) (report and recommendation adopted by 2012 WL 4867423
(M.D. Fla. Oct. 15, 2012)). Moreover, considering that Dr. Borghei’s opinions are
somewhat vague, Plaintiff does not show what additional limitations would be
12

warranted that have not been included in the RFC assessment.5
Plaintiff argues that, in addition to Dr. Borghei’s opinion, Plaintiff’s own
testimony and the latest research on Crohn’s disease support greater limitations
than found by the ALJ. However, as Plaintiff acknowledges, “Crohn’s disease
symptoms range from mild to severe. They may vary over time and from person
to person, depending on what part of the gastrointestinal (GI) tract is inflamed.”
(Doc. 20 at 10 n.1.) As such, there is no “one size fits all” that an ALJ may be
able to glean from the latest research on Crohn’s disease. Instead, what the ALJ
was expected to do was to consider the entire record, taking into account
Plaintiff’s individual symptoms and limitations, in formulating the RFC.
As the ALJ did that here, he found that Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of her symptoms were not entirely
credible. (Tr. 21.) The ALJ provided explicit and adequate reasons for his
credibility determination. For example, the ALJ stated that “the medical records,
including the results of diagnostic examinations[,] do not support [Plaintiff’s]
allegations.” (Tr. 19.) The ALJ noted that on multiple occasions, Plaintiff’s
physical examinations did not reveal abdominal or gastrointestinal issues. (Tr.

5

Plaintiff also appears to argue that the ALJ erred in giving greater weight to the
opinion of a State agency non-examining physician. However, Plaintiff does not identify
this non-examining physician either by name or citation to the record. Assuming that
Plaintiff refers to either Dr. Hernandez or Dr. Meyer, whose opinions the ALJ gave
substantial weight, these non-examining psychological consultants rendered opinions
only with respect to Plaintiff’s mental impairment. Plaintiff does not explain how their
opinions have any bearing on the ALJ’s consideration of Dr. Borghei’s opinions.
13

18-19.) The ALJ also noted that despite complaints of abdominal pain and rectal
bleeding, Plaintiff’s physical examination on January 6, 2014 indicated a nontender abdomen with normal bowel sounds. (Tr. 18.) In addition, the ALJ stated:
It is also curious to me that the claimant requested a letter from Dr.
Borghei concluding that she was unable to work for forty hours a
week and that she was applying for financial aid to go to school,
working part time only (Exhibit 9F). Considering, as discussed
above, the claimant was able to work with her symptoms and is now
applying to school, which implies the claimant’s reported activities of
daily living have been under reported. This does not support the
claimant’s allegations that she is totally disabled. In fact, Dr. Borghei
noted he was unsure why the claimant could not work full time
(Exhibit 9F). This slightly erodes the credibility of the claimant and
simultaneously, suggests the claimant’s symptoms are not as severe
as claimed.
(Tr. 20.) The ALJ added:
There [are] documented instances of non-compliant behavior during
treatment. On October 12, 2010, Dr. Borghei noted the claimant
stopped taking her prescribed medication and instead admitted she
was only using over the counter Motrin to address her abdominal
pains for weeks (Exhibit 1F). Despite referral from Dr. Borghei, it
was also documented the claimant failed to show for her
appointment on January 22, 2013 with an infectious disease
physician (Exhibit 12F/5 and 13). These factors further imply the
claimant’s symptoms are not as severe since it is reasonable to
assume the claimant would follow through on her treating
gastroenterologist’s advice.
(Tr. 21.)
As shown above, the ALJ provided adequate reasons for his credibility
determination. Moreover, these reasons are supported by substantial evidence.
(See, e.g., Tr. 337 (noting that as of October 12, 2010, Plaintiff had no abdominal

14

pain, she was taking her medication only once a day after stopping it for two
weeks, and had been taking Motrin for abdominal pain for weeks; Plaintiff was
also prescribed Prednisone, which she did not take, as of August 30, 2012); Tr.
444 (noting a referral for a consult for history of ringworm) & 481 (noting no show
on January 22, 2013); Tr. 183 (earnings of $1,798.56 and $2,612.83 for 2010 and
2011, respectively, indicating part-time employment); Tr. 37-38, 192, & 218
(listing Plaintiff’s employment history).)
Because the Court finds that the ALJ’s credibility determination and RFC
assessment are supported by substantial evidence, Plaintiff’s argument that the
ALJ improperly relied on the testimony of the VE because his hypothetical
question allegedly failed to adequately reflect all of Plaintiff’s limitations, also fails.
The ALJ was not required to include in the hypothetical question any limitations or
opinions that he properly rejected. See Crawford, 363 F.3d at 1161 (stating that
the ALJ is not required to include findings in the hypothetical question that the
ALJ has properly rejected as unsupported by the record). Thus, to the extent
Plaintiff argues that the hypothetical question was inconsistent with Dr. Borghei’s
opinions and Plaintiff’s testimony, the ALJ was not required to include opinions or
statements that he had properly rejected.
Plaintiff also argues that the ALJ erred when he did not ask the VE whether
there could be an issue with Plaintiff’s employment if the need to take breaks is
truly unscheduled and cannot be included in the 15- or 30-minute scheduled
15

breaks. Plaintiff does not explain why her counsel did not seek clarification on
this issue during the administrative hearing or soon after the hearing when the
record remained open. Nevertheless, the VE testified that there is typically a
break every two hours, i.e., a morning break, a lunch break, and an afternoon
break. (Tr. 50.) The ALJ determined that Plaintiff would need a break every two
hours, not every hour as stated in hypothetical question number three. (Tr. 51.)
To the extent Plaintiff argues that she needs more frequent breaks based on Dr.
Borghei’s opinions or her own subjective complaints, the ALJ found that these
opinions and statements are not supported by the record, and his finding is
supported by substantial evidence.
Plaintiff further argues that the ALJ failed to include in the hypothetical
question his own finding that Plaintiff had moderate difficulties in concentration,
persistence, or pace because he failed to ask how occasional difficulties with
concentration, attention, and task persistence would affect the job base. This
argument also lacks merit. In Winschel v. Commissioner of Social Security, 631
F.3d 1176 (11th Cir. 2011), the Eleventh Circuit held that moderate limitations in
concentration, persistence, and pace must be considered in assessing a
claimant’s RFC. Id. at 1180-81. However, the court also held that if the medical
evidence demonstrates that the claimant “can engage in simple, routine tasks or
unskilled work despite limitations in concentration, persistence, and pace,” the
ALJ properly accounts for these limitations if he includes unskilled work in his
16

hypothetical questions and RFC assessment. Id. at 1180.
Here, as part of his evaluation of Plaintiff’s mental impairments, the ALJ
assessed moderate limitations in Plaintiff’s concentration, persistence, or pace
(Tr. 15), and then found that Plaintiff had the RFC to perform a reduced range of
sedentary work, limited to, inter alia, “simple, routine and repetitive tasks” and
“low stress work, meaning that the claimant could not perform jobs with strict time
frames in which tasks must be completed” (Tr. 16).6 There was substantial
medical evidence on which the ALJ relied to support his finding that Plaintiff could
perform “simple, routine and repetitive tasks” and “low stress work,” despite her
moderate limitations in concentration, persistence, or pace. For instance, on
December 3, 2012, consultative psychologist Pasqua Marongiu, Psy.D., P.A.,
observed, inter alia, that Plaintiff’s ability to pay attention and concentrate was
normal. (Tr. 20, 22, 419.) Also, on December 11, 2012, the State agency
psychological consultant Heather J. Hernandez, Ph.D., assessed mild difficulties
in maintaining concentration, persistence, or pace, and referenced other records
showing normal attention and concentration. (Tr. 21, 60.) In addition, a progress
note from Brevard Health Alliance dated April 15, 2013, indicated that Plaintiff

6

The hypothetical questions included a limitation to “simple, routine, and
repetitive tasks and . . . to low-stress work.” (Tr. 49-52.) In response to the questions,
the VE provided a representative sample of unskilled sedentary jobs. (Id.)
17

was alert, with normal attention span and concentration. (Tr. 20, 509.)7
Therefore, the ALJ’s finding that Plaintiff could perform simple, routine, and
repetitive tasks and low stress work is supported by substantial evidence. Based
on the foregoing, the Commissioner’s decision is due to be affirmed.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
DONE AND ORDERED at Jacksonville, Florida, on March 21, 2017.

Copies to:
Counsel of Record

7

Although Plaintiff testified at the hearing that it was hard for her to concentrate
due to her medication (Tr. 39), at other times she denied concentration issues (Tr. 72,
75).
18