John Philip Ross v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13562
Non-Argument Calendar
____________________
JOHN PHILIP ROSS,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:20-cv-00012-RSB-CLR
____________________
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2 Opinion of the Court 21-13562
Before J ILL PRYOR , BRANCH, and BRASHER , Circuit Judges.
PER CURIAM:
John Philip Ross appeals the district court’s decision affirm-
ing the denial of disability insurance benefits. Ross contends that
the district court erred because the administrative law judge’s as-
sessment of his residual functional capacity neither considered his
severe handgrip weakness nor identified an impairment limiting his
ability to handle objects. After careful consideration, we affirm.
I. BACKGROUND
Ross first applied for disability benefits in April 2018, listing
several medical impairments (degenerative disc disease, cervical
impingement, lumbar impingement, osteoarthritis, plantar
fasciitis, depression, paranoia, and anxiety). His application stated
that he had become disabled in November 2015 while serving in
the Army. Ross continued to serve, although performing modified
duties on account of his injuries, until he was discharged in March
2017.
The particular issue on appeal concerns Ross’s grip strength.
During a January 2018 doctor’s visit, Ross was evaluated as having
a normal “5/5” strength rating in his upper extremities, although
the doctor did note decreased sensation in the right extremity. In
September, Ross had a “5/5” strength rating in all muscle groups
except for his left grip, which had a “4+/5” rating. Despite these
problems, Ross explained during a January 2019 psychological
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21-13562 Opinion of the Court 3
evaluation that he could use household appliances and prepare full
meals, make shopping trips to stores, and independently perform
basic hygiene tasks. In February, Ross reported having trouble
opening jars and continued to display a “weak grasp” as evidenced
by a “4+/5” strength rating. He also reported pain and weakness
in his deltoids and triceps as well as continued decreased sensation
in his right extremity. In April, Ross’s neurosurgeon observed that
his problems with lack of sensation had “progressed to complete
numbness in the medial aspects of his forearm[s] and [two] fingers
bilaterally” and that he exhibited “severe hand grip weakness” as
represented by a “4-/5” bilateral grip strength rating. In July, Ross
reported that he had “difficulty [performing] routine tasks with his
hands such as opening jars and [buttoning] shirts.” Ross had spinal
fusion surgery in August 2019. His discharge note explained that he
should not lift more than fifteen to twenty pounds, push or pull
more than ten pounds, or otherwise excessively strain himself. The
note observed a strength rating of at least “4+/5” in all muscle
groups.
At his hearing before a social security administrative law
judge, Ross testified that parts of his arm and hand were so numb
that he mainly performed tasks using only three fingers. This con-
dition, he stated, caused him to have issues grasping and holding
things and to often drop objects that he was holding. Ross claimed
that he was only able to hold objects for fifteen to twenty minutes
at a time, with smooth or heavy objects causing him particular
trouble. He also claimed that before his surgery he was only able
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4 Opinion of the Court 21-13562
to lift up to thirty pounds for short intervals, and that he was unsure
of his ability to do even that after surgery. Despite these problems,
Ross testified that he could move objects around so long as he
planned his movements carefully. And although he could only hold
objects for so long, he did not need to rest before grabbing them
again, instead only needing to concentrate on grabbing them care-
fully and paying better attention. Finally, Ross testified that he
could make trips to the grocery store and prepare microwave meals
for himself, although he relied on friends and family to help with
cooking and cleaning.
A vocational expert also testified at the hearing. In response
to a hypothetical question from the administrative law judge, the
expert stated that a person of Ross’s age, education, and experience
could perform jobs present in the national economy despite limita-
tions on lifting, pushing and pulling, walking or standing, climbing,
balancing, stooping, kneeling, crouching, crawling, overhead
reaching, and using foot controls, so long as the hypothetical per-
son could frequently handle, finger, or feel objects. The vocational
expert came to the same conclusion when asked a second question
about the hypothetical person described above, but subject to
more severe limitations as to lifting, standing, and walking. When
Ross altered the second hypothetical by adding a restriction on
gripping, the vocational expert testified that the new limitation
would preclude employment in all previously identified jobs.
After the hearing, the administrative law judge issued a writ-
ten decision denying Ross’s disability claim on the grounds that,
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21-13562 Opinion of the Court 5
considering his age, education, experience, and residual functional
capacity, Ross was “capable of making a successful adjustment to
other work that exists in significant numbers in the national econ-
omy.” Ross exhausted his administrative remedies and sought ju-
dicial review of the denial in the United States District Court for
the Southern District of Georgia. The district court adopted, over
Ross’s objection, a magistrate judge’s report and recommendation
concluding that the decision to deny Ross disability benefits was
supported by substantial evidence. Ross timely appealed.
II. STANDARD OF REVIEW
We review an administrative law judge’s decision for sub-
stantial evidence, and its application of legal principles
de novo.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “Substan-
tial evidence is less than a preponderance, but [is] rather such rele-
vant evidence as a reasonable person would accept as adequate to
support a conclusion.”
Id.
III. DISCUSSION
As an initial matter, Ross’s brief makes several arguments
concerning the social security regulations and the administrative
law judge’s consideration of his spinal impairments for the first
time on appeal. Because he did not present these arguments to the
district court, we do not consider them
. Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004)
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Ross properly preserved his argument regarding handgrip
weakness, but it fares no better. We begin with a brief explanation
of the social security disability process as it relates to this appeal.
To be eligible for disability benefits, a claimant must prove that he
is disabled on or before the last date on which he was insured.
Moore, 405 F.3d at 1211. The Administration uses a five-step eval-
uation method derived from a federal regulation to determine
whether a claimant is disabled, and failure at any step precludes a
finding of disability.
Id.; 20 C.F.R. § 404.1520(a)(4). Here, only the
fifth step, which considers a claimant’s age, education, work expe-
rience, and residual functional capacity, is at issue. 20 C.F.R.
§404.1520(a)(4)(v). A claimant is adjudicated not disabled at step
five if he can make a successful adjustment to other work present
in the national economy despite his limitations.
Id.
The administrative law judge determined that Ross was not
disabled because, considering his age, education, work experience,
and residual functional capacity, he was “capable of making a suc-
cessful adjustment to other work that exists in significant numbers
in the national economy.” Ross argues that this conclusion was
flawed based on its residual functional capacity analysis, which he
claims failed to discuss his “severe handgrip weakness” and assign
him a resulting limitation with respect to “handling” objects, both
before and after undergoing surgery. We disagree.
An administrative law judge’s assessment of a claimant’s re-
sidual functional capacity must consider “all [of the claimant’s] im-
pairments, severe and non-severe” alike, as well as the “claimant's
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21-13562 Opinion of the Court 7
medical condition taken as a whole.”
Schink v. Comm’r of Soc.
Sec., 935 F.3d 1245, 1268 (11th Cir. 2019). Thus, a hypothetical
question to a vocational expert can serve as substantial evidence to
support a denial of disability benefits at step five only so long as it
includes all of a claimant’s impairments.
Wilson v. Barnhart, 284
F.3d 1219, 1228 (11th Cir. 2002). But an administrative law judge
need not include “each and every symptom of the claimant” in the
hypothetical,
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1270
(11th Cir. 2007), or include alleged impairments that are properly
rejected as unsupported by the record,
See Crawford, 363 F.3d at
1160–1161.
Here, the administrative law judge’s written decision found
that Ross maintained a residual functional capacity to perform sed-
entary work with limitations as to lifting and carrying, pushing and
pulling, standing and walking, climbing, balancing, stooping,
kneeling, crouching, and crawling. It further found that Ross could
occasionally reach overhead and use foot controls, and that he
needed to avoid certain hazardous workplace environments, jobs
that would entail many workplace changes, and jobs that would
require extensive interactions with others. The decision expressly
stated that “[i]n making this finding, [the administrative law judge]
considered all [of Ross’s] symptoms and the extent to which th[ose]
symptoms can reasonably be accepted as consistent with the objec-
tive medical evidence and other evidence.” Beyond this general ac-
knowledgment, the decision discussed Ross’s spine problems and
resulting limitations in detail, including his difficulties lifting things,
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8 Opinion of the Court 21-13562
“severe handgrip weakness,” and post-surgery discharge re-
strictions. It also cited the results of Ross’s most recent physical ex-
amination, which reflected a normal strength rating in all muscle
groups apart from his left grip, which had a “4+/5” rating. Finally,
the decision explained that Ross could prepare meals and complete
basic hygiene tasks, perform household chores, and shop in stores.
Ross claims that the administrative law judge never consid-
ered his severe handgrip weakness, either before or after surgery,
when assessing his residual functional capacity. But the decision
specifically discussed Ross’s grip strength and his doctors’ post-sur-
gery discharge instructions; it simply concluded that he did not suf-
fer from an impairment as to handling objects on account of his
stated symptoms. The decision expressly stated that “[t]he nature
of [Ross’s] treatment, the findings made during the course of treat-
ment, and [Ross’s] statements about his daily activities d[id] not
support a more restrictive finding” as to residual functional capac-
ity. That conclusion was supported by Ross’s own testimony that
he could grasp light objects without intervening breaks so long as
he was careful and focused, as well as other record evidence that
he was able to shop, prepare meals, and perform both household
chores and basic hygiene tasks.
The administrative law judge’s decision not to include a
“handling” impairment as part of Ross’s residual functional capac-
ity was explained in a written decision and supported by record ev-
idence. Consequently, the vocational expert’s testimony in re-
sponse to a hypothetical question referencing the remaining
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21-13562 Opinion of the Court 9
unchallenged impairments was sufficient to support a conclusion
that Ross was not disabled.
See Wilson, 284 F.3d at 1228;
Ingram,
496 F.3d at 1270;
Crawford, 363 F.3d at 1160–1161.
IV. CONCLUSION
For the foregoing reasons, the district court’s decision is
AFFIRMED.
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