            Case: 12-10703    Date Filed: 08/15/2012   Page: 1 of 6

                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-10703
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 6:10-cv-01478-GAP-KRS

JASON S. SMITH,



                                                       Plaintiff-Appellant,

                                    versus

COMMISSIONER OF SOCIAL SECURITY,

                                                       Defendant-Appellee.

                        ________________________

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

                              (August 15, 2012)

Before MARCUS, WILSON, and FAY, Circuit Judges.

PER CURIAM:

     Jason Smith appeals the administrative law judge’s (“ALJ”) denial of his
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claims for disability insurance benefits and supplemental security income under

Titles II and XVI of the Social Security Act. The ALJ found that Smith suffered

from the severe impairments of obesity, asthma, and bipolar disorder, and that he

was moderately limited in his ability to maintain his concentration, persistence,

and pace. Nonetheless, the ALJ determined that Smith could perform simple,

routine, and repetitive tasks. Considering Smith’s residual functional capacity, the

ALJ concluded that Smith was not disabled because he could perform his past

relevant work. On appeal, Smith argues that the ALJ failed to specifically account

for his moderate limitations when assessing his residual functional capacity and

ability to work. After a careful review of the administrative record and the parties’

briefs, we affirm the ALJ’s denial of disability insurance benefits and

supplemental security income.

      We review the ALJ’s decision to ensure it is supported by substantial

evidence and that it is based upon the 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. (internal quotation marks omitted). If

the ALJ’s finding is supported by substantial evidence, we must defer to it even if

the evidence preponderates against the finding. Crawford v. Comm’r of Soc. Sec.,

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363 F.3d 1155, 1158–59 (11th Cir. 2004) (per curiam). “We may not decide the

facts anew, reweigh the evidence, or substitute our judgment for that of the

Commissioner.” Winschel, 631 F.3d at 1178 (alterations and internal quotation

marks omitted).

       Eligibility for disability insurance benefits and supplemental security

income requires that the claimant be disabled. 42 U.S.C. § 423(a)(1)(E) (disability

insurance benefits); Id. § 1382(a)(1)–(2) (supplemental security income).* A

claimant shall be considered disabled if he is unable to engage in substantial

gainful activity by reason of a medically determinable impairment that can be

expected to result in death or which has lasted or can be expected to last for a

continuous period of at least 12 months. Id. §§ 423(d)(1)(A), 1382c(a)(3)(A).

The claimant bears the burden of proving his disability. Ellison v. Barnhart, 355

F.3d 1272, 1276 (11th Cir. 2003) (per curiam).

       In order to determine whether a claimant is disabled, the Social Security

Administration applies a 5-step sequential evaluation. 20 C.F.R. §§ 404.1520(a),

416.920(a). This process includes an analysis of whether the claimant: (1) is

unable to engage in substantial gainful activity; (2) has a severe medically


       *
         The definition of disability and the test used to determine whether a person has a
disability is the same for claims seeking disability insurance benefits or supplemental security
income.

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determinable physical or mental impairment that meets the duration requirements;

(3) has an impairment that meets or equals an impairment listed in the regulation

and that meets the duration requirements; (4) can perform his past relevant work,

in light of his residual functional capacity; and (5) can make an adjustment to

other work, in light of his residual functional capacity, age, education, and work

experience. Id. §§ 404.1520(a)(4), 416.920(a)(4).

      A claimant who can perform his past relevant work is not disabled. Id.

§§ 404.1560(b)(3), 416.960(b)(3). When determining whether a claimant can

perform his past relevant work, the ALJ first determines the claimant’s residual

functional capacity. Id. §§ 404.1520(e), 416.920(e). “The residual functional

capacity is an assessment, based upon all of the relevant evidence, of a claimant’s

remaining ability to do work despite his impairments.” Lewis v. Callahan, 125

F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20

C.F.R. § 416.945(a)(1).

      Smith has pulled language from our opinion in Winschel, 631 F.3d at 1176,

to form his argument. Winschel presented a question concerning the analysis at

step five of the sequential evaluation. One way an ALJ can make his

determination of whether a significant number of jobs exist in the national

economy is by consulting a vocational expert. Id. at 1180. But “‘[i]n order for a

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vocational expert’s testimony to constitute substantial evidence, the ALJ must

pose a hypothetical question which comprises all of the claimant’s impairments.’”

Id. (quoting Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per

curiam)). We concluded that the ALJ’s decision in Winschel did not constitute

substantial evidence because the hypothetical posed did not account for the

conclusions made at earlier steps with respect to limitations in concentration,

persistence, and pace. Id. at 1181. Smith reasons that if the Commissioner in

Winschel argued that an ALJ’s hypothetical did not need to account for limitations

found at steps two and three, then the Commissioner here must have also

instructed the ALJ to ignore the same limitations when determining the ability to

perform past relevant work.

      Our characterization of the Commissioner’s argument in Winshel is not

instructive on the question of whether the ALJ here considered Smith’s moderate

limitations in concentration, persistence, or pace. A review of the record indicates

that the ALJ did consider these limitations. When explaining his decision at step

four, the ALJ stated that he did consider the Psychiatric Review Technique, which

recorded Smith’s moderate limitations in concentration, persistence, and pace. But

when Smith’s limitations were considered alongside the rest of the evidence in the

record, the ALJ determined that Smith’s statements concerning the intensity,

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persistence, and limiting effects of his claimed symptoms were not entirely

credible.

      Substantial evidence supports the ALJ’s decision. In particular, Dr. Graham

examined Smith and noted that during the examination Smith did not have

problems with attention, concentration, or recent memory issues. There were no

behavioral indications of anxiety, depression, or of a thought disorder. State

psychological consultants believed Smith was capable of simple, routine, and

repetitive work. The examination conducted by Dr. Barber was essentially

unremarkable and indicated a capacity for work-related activities. Indeed, Smith

frequently volunteered at Habitat for Humanity. The ALJ relied upon a complete

residual functional capacity assessment, and substantial evidence supports the

conclusion that in light of Smith’s residual functional capacity, Smith can perform

his past relevant work. Smith is not entitled to disability insurance benefits or

supplemental security income.

      AFFIRMED.




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