                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               SEPT 10, 2008
                               No. 08-11843                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 07-00001-CV-5-RS-MD

NERA RANDOLPH,


                                                             Plaintiff-Appellant,

                                    versus

MICHAEL J. ASTRUE,


                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                             (September 10, 2008)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Nera Randolph appeals from the district court’s order affirming
the administrative law judge’s (ALJ) denial of his application for disability

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

and 1383(c)(3). Randolph filed a previous application for a period of disability

and/or disability insurance benefits in 2001. The prior ALJ denied his application,

finding that he could perform sedentary work, and as such was not disabled.

Randolph filed the present application in 2004. On appeal, Randolph argues that

the ALJ erred by (1) failing to adopt the prior final determinations on his severity

of impairments and residual functional capacity based on the principle of res

judicata; (2) failing to fully consider the evidence relating to his spinal condition;

and (3) improperly evaluating his subjective complaints of pain and finding him

not entirely credible.

       We review the ALJ’s decision “to determine if it is supported by substantial

evidence and based on proper legal standards.” Crawford v. Comm’r, 363 F.3d

1155, 1158 (11th Cir. 2004) (quotation omitted). “Substantial evidence is more

than a scintilla and is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion . . . . Even if the evidence preponderates

against the Commissioner’s findings, we must affirm if the decision reached is

supported by substantial evidence.” Id. at 1158-59 (quotation omitted). In

conducting this review, we may not reweigh the evidence or substitute our



                                           2
judgment for that of the ALJ. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.

1990). “With respect to the Commissioner’s legal conclusions, however, our

review is de novo.” Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).

                                         I.

      The Social Security Act directs that “[t]he findings and decisions of the

Commissioner . . . after a hearing shall be binding upon all individuals who were

parties to such hearing.” 42 U.S.C. § 405(h). However, the Act also gives the

Commissioner the authority to

      make rules and regulations and to establish procedures . . . which are
      necessary or appropriate to carry out such provisions, and shall adopt
      reasonable and proper rules and regulations to regulate and provide
      for the nature and extent of the proofs and evidence and the method of
      taking and furnishing the same in order to establish the right to
      benefits hereunder.


42 U.S.C. § 405(a). In accordance with the Act, the Commissioner’s regulations

direct that res judicata applies where the Commissioner has made a previous final

decision based on the “same facts and the same issue or issues.” 20 C.F.R.

§§ 404.957(c)(1), 416.1457(c)(1).

      While we have not ruled on the application of res judicata to subsequent

unadjudicated periods or what constitutes the same “issue or issues,” the

Commissioner has issued Acquiescence Rulings in response to such determinations



                                          3
from other circuits. Generally, the Fourth, Sixth, and Ninth Circuits agree that in

order for a claimant “to overcome the presumption of continuing nondisability

arising from the first administrative law judge’s findings of nondisability, [he or

she] must prove ‘changed circumstances’ indicating a greater disability.” Chavez

v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); see also Lively v. Secretary, 820 F.2d

1391, 1392 (4th Cir. 1987); Drummond v. Comm’r., 126 F.3d 837, 842 (6th Cir.

1997). However, the Commissioner disagrees with the presumption of

nondisability and issued Acquiescence Rulings after each of the above opinions

explaining that the Social Security Administration’s (SSA’s) policy is as follows:

      if a determination or decision on a disability claim has become final,
      the Agency may apply administrative res judicata with respect to a
      subsequent disability claim . . . if the same parties, facts and issues are
      involved in both the prior and subsequent claims. However, if the
      subsequent claim involves deciding whether the claimant is disabled
      during a period that was not adjudicated in the final determination or
      decision on the prior claim, SSA considers the issue of disability with
      respect to the unadjudicated period to be a new issue that prevents the
      application of administrative res judicata. Thus, when adjudicating a
      subsequent disability claim involving an unadjudicated period, SSA
      considers the facts and issues de novo in determining disability with
      respect to the unadjudicated period. SSA does not adopt findings from
      the final determination or decision on the prior disability claim in
      determining whether the claimant is disabled with respect to the
      unadjudicated period.



Acquiescence Ruling (AR) 97-4(9); see also AR 94-2(4); AR 98-4(6).



                                           4
      Even if we do not follow SSA policy, we conclude that the ALJ did not err.

Because the facts support a determination that Randolph had improved and should

no longer be limited only to sedentary work, substantial evidence supports the

ALJ’s determination that Randolph’s circumstances changed enough to warrant a

departure from the prior ALJ’s decision.

                                           II.

      The ALJ must “carefully weigh evidence, giving individualized

consideration to each claim that comes before him.” Miles v. Chater, 84 F.3d

1397, 1401 (11th Cir. 1996). The ALJ has a duty to make clear the weight

accorded to each item of evidence and the reasons for his decision in order to

enable a reviewing court to determine whether the decision was based on

substantial evidence. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).

However, “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) (quoting Foote v. Chater, 67 F.3d 1553, 1567 (11th Cir. 1995)). Id.

The ALJ’s decision need not be a broad rejection which does not enable this Court

to conclude that the ALJ considered the claimant’s medical conditions as a whole.”

Id. Moreover, an ALJ can rely on a non-examining physician’s report in denying

disability insurance benefits where the non-examining physician’s report does not


                                           5
contradict information in the examining physician’s reports. Edwards v. Sullivan,

937 F.2d 580, 584-85 (11th Cir. 1991).

      The claimant bears the burden of proving that he has a severe impairment or

combination of impairments. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.

1999). “An impairment or combination of impairments is not severe if it does not

significantly limit [the claimant’s] physical or mental ability to do basic work

activities,” 20 C.F.R. § 404.1521(a), while a severe impairment causes more than

“a minimal limitation on a claimant’s ability to function,” Davis v. Shalala, 985

F.2d 528, 532 (11th Cir. 1993). A claimant’s residual functional capacity (RFC) is

“based upon all 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). “Light work involves lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds” as well as “a

good deal of walking or standing, or . . . sitting most of the time with some pushing

and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).

      The record demonstrates that the ALJ carefully considered Randolph’s

medical condition as a whole, and substantial evidence supports the ALJ’s findings

that Randolph’s back impairment was not severe and that Randolph was capable of

performing light work. The record also indicates that the ALJ did not solely rely


                                           6
on the opinion of the state agency physicians but considered the record in its

entirety. Thus, we conclude that the ALJ did not err in assigning more weight to

the expert opinions of the non-examining state agency physicians.

                                          III.

      In order to establish disability based on testimony of pain, a claimant must

show the following: “(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). Additionally, “credibility determinations are the province of the ALJ.”

Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005). An ALJ must articulate

“explicit and adequate reasons” in order to discredit subjective testimony, and

failure to do so “requires, as a matter of law, that the testimony be accepted as

true.” Wilson, 284 F.3d at 1225. However, we not require the ALJ to “specifically

refer to every piece of evidence in his decision,” so long as the decision is

sufficient to allow us to conclude that the ALJ considered the claimant’s medical

condition as a whole. Dyer v. Barnhart, 395 F.3d at 1211.

      We conclude from the record that the ALJ properly considered Randolph’s

subjective complaints of pain and medical conditions and articulated reasons for

                                           7
discrediting Randolph’s subjective testimony. Substantial evidence on the record

supports the ALJ’s findings that Randolph’s statements concerning the intensity,

duration, and limiting effects of the symptoms were not entirely credible, and thus,

Randolph did not satisfy the three-part test for establishing disability based on

testimony of pain.

      For the above-stated reasons, we affirm the denial of disability and

supplemental security income benefits.

      AFFIRMED.




                                           8
