           Case: 13-10134   Date Filed: 06/19/2013   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10134
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:11-cv-00233-GRJ



SEAN PINION,

                                                         Plaintiff-Appellant,

                                 versus

COMMISSIONER OF SOCIAL SECURITY,

                                                        Defendant-Appellee.

                      ________________________

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

                             (June 19, 2013)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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      Sean Pinion appeals from the district court’s judgment affirming the

Administrative Law Judge’s (“ALJ”) denial of his application for disability

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

U.S.C. § 1383(c)(3). On appeal, Pinion argues that: (1) the ALJ’s finding that

Pinion could work was unsupported by substantial evidence because the ALJ failed

to specify Pinion’s limited ability to maintain his concentration, persistence, or

pace in the ALJ’s hypothetical question to the vocational expert (“VE”); and (2)

the ALJ erred by rejecting the VE’s testimony that a hypothetical person with the

limitations set forth in the report of Dr. Benet, a consulting psychologist, would

not be able to work. After careful review, we affirm.

      In a Social Security appeal, we must determine whether the ALJ’s decision

is supported by substantial evidence and based upon proper legal standards. See

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

Substantial evidence requires more than a scintilla of evidence, and is such relevant

evidence as a reasonable person would accept as sufficient to support a conclusion.

Id. We do not decide the facts anew, reweigh the evidence, or substitute our own

judgment for that of the ALJ. Id. Rather, so long as it is supported by substantial

evidence, we must defer to the ALJ’s decision even if the evidence may

preponderate against it. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004).


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      Eligibility for disability insurance benefits and supplemental security income

requires that the claimant is under a disability. 42 U.S.C. § 423(a)(1)(E); 42

U.S.C. § 1382(a)(1)-(2). In relevant part, a claimant is under a disability 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. 42 U.S.C.

§ 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The claimant bears the burden of

proving his disability. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).

      In order to determine whether a claimant is disabled, the SSA 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

activity; (2) has a severe medically determinable physical or mental impairment;

(3) has such an impairment that meets or equals a Listing and meets the duration

requirements; (4) can perform his past relevant work, in light of his residual

functional capacity (“RFC”); and (5) can make an adjustment to other work, in

light of his RFC, age, education, and work experience.               20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4).

      A claimant who can perform his past relevant work is not disabled. 20

C.F.R. §§ 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 RFC.


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See 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant’s RFC is an assessment,

based upon all relevant evidence, of the claimant’s ability to do work despite his

impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R.

§§ 404.1545(a)(1), 416.945(a)(1).

      If the claimant meets the burden of proving that she is unable to perform her

past relevant work, the Commissioner bears the burden of determining whether

there is other work available at the fifth step. Jones v. Apfel, 190 F.3d 1224, 1228

(11th Cir. 1999). The Commissioner may show “that the claimant can perform

other jobs . . . through the testimony of a VE.” Id. at 1229. “In order for a VE’s

testimony to constitute substantial evidence, the ALJ must pose a hypothetical

question which comprises all of the claimant’s impairments.” Id. However, an

ALJ is “not required to include findings in the hypothetical that the ALJ had

properly rejected as unsupported.” Crawford, 363 F.3d at 1161.

      Where an ALJ determines at step two of the sequential evaluation process

that the claimant’s mental impairments caused limitations in concentration,

persistence, or pace, the ALJ must include those limitations in the hypothetical

questions posed to the VE. Winschel, 631 F.3d at 1180-81. However, the ALJ

may instead include in the hypothetical questions the limitation that the claimant is

restricted to unskilled work if the medical evidence shows that the claimant can

perform simple, routine tasks or unskilled work despite her limitations in


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concentration, persistence, or pace.       Id. (remanding for the ALJ to explicitly

include the claimant’s moderate limitation in maintaining concentration,

persistence, or pace in the hypothetical question because “the ALJ did not indicate

that medical evidence suggested [that the claimant’s] ability to work was

unaffected by this limitation, nor did he otherwise implicitly account for the

limitation in the hypothetical”).

      The opinion of a treating physician must be given substantial or considerable

weight unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d

1232, 1240 (11th Cir. 2004). Good cause exists when: (1) the treating physician’s

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. Id. at 1241. “When electing to disregard the

opinion of a treating physician, the ALJ must clearly articulate its reasons.” Id.

      In this case, the ALJ adequately considered Pinion’s limitations when

assessing his RFC. As the record shows, the ALJ appropriately accounted for

Pinion’s limitations in concentration, persistence, or pace by including in the RFC

and the hypothetical question the finding that Pinion had moderate restrictions in

the ability to understand, remember and carry out detailed instructions, to set

realistic goals, and to make plans independently of others; that he had decreased

focus, especially involving complex, mental demands, but was capable of


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understanding, remembering and carrying out simple instructions and tasks; and

that he required simple instructions and supportive supervision (especially at the

beginning) for well-structured tasks.     Accordingly, the VE’s response to the

properly formulated hypothetical question constitutes substantial evidence

supporting the ALJ’s decision.

      As for Dr. Benet’s report, the ALJ found that the opinion contained within --

that Pinion would have marked difficulty performing tasks involving sustained

concentration and persistence, social interaction and adaption -- was inconsistent

with the evidence of record. Specifically, the ALJ found that Pinion had very

active daily living activities, and that he was able to care for not only himself, but

also his three-week old child for a substantial part of the day. Pinion also testified

that he had friends, was engaged, and participated in social activities with his

friends and fiancée. These activities were inconsistent with Dr. Benet’s opinion

that Pinion would suffer marked difficulty performing tasks involving sustained

concentration and persistence, social interaction and adaption. See Phillips, 357

F.3d at 1241. Therefore, the ALJ properly disregarded the VE’s testimony based

on Dr. Benet’s opinion, as it was not bolstered by the evidence. Id.

      AFFIRMED.




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