                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13221         ELEVENTH CIRCUIT
                                                    FEBRUARY 12, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                     D. C. Docket No. 08-60179-CV-WJZ

ANGELA MORENO,


                                                              Plaintiff-Appellant,

                                     versus

COMMISSIONER MICHAEL J. ASTRUE,
Commissioner of Social Security,

                                                             Defendant-Appellee.


                         ________________________

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

                              (February 12, 2010)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

     Angela Moreno appeals the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of her 2003 application for disability

insurance benefits (“DIB”), 42 U.S.C. § 405(g), due to, inter alia, diabetes and

vision problems.

      Notably, Moreno filed a prior application for a period of disability and DIB

on May 18, 1998. This application was denied on November 21, 2001, after a

hearing before an ALJ. In his 2001 decision, the ALJ found that Moreno had

severe impairments including diabetes mellitus, generalized arthritis, peripheral

vascular disease, varicose veins, and hypertension. He further determined that she

retained a residual functional capacity (“RFC”) (1) to lift and/or carry and push

and/or pull 20 pounds occasionally and 10 pounds frequently; (2) to stand a total of

2 hours, walk a total of 2 hours, and sit a total of 6 hours in an 8-hour work day,

with a sit-stand option at 30 minute intervals; (4) to occasionally climb stairs, bend,

kneel, crouch, and stoop; and (5) that required her to avoid hazardous machinery

and extreme temperatures. The ALJ concluded that Moreno retained the ability to

perform her past relevant work as an office clerk and, thus, was not disabled under

the Social Security Act (“Act”).

      Moreno filed her current application for a period of disability and DIB on

February 13, 2003, and she alleged a disability onset date of November 2, 2001.

On June 8, 2004, after a hearing, the ALJ denied Moreno’s application. In doing



                                           2
so, he found Moreno was not disabled within the meaning of the Act for the period

of November 2, 2001, through December 31, 2001, the date Moreno’s insured

status expired. More specifically, the ALJ found that Moreno had no impairment

or combination of impairments that were severe on or before December 31, 2001,

and, thus, could return to her past relevant work. The Appeals Council vacated the

ALJ’s 2004 order and remanded the case because the period from November 2,

2001, through November 21, 2001, had been adjudicated in the 2001 decision and,

although the 2001 and 2004 hearings concerned essentially the same time period,

the conclusions reached in the hearings lacked conformity. On remand, the

Appeals Council instructed the ALJ to consider the period commencing November

22, 2001, and any pertinent information from the 1998 application. There is no

dispute that the period at issue in Moreno’s 2003 application is November 21,

2001, through December 31, 2001.

      After a supplemental hearing, the ALJ denied Moreno’s 2003 application.

The ALJ found that Moreno’s diabetes mellitus with retinopathy and status post

cataracts were severe impairments, which caused significant vocationally relevant

limitations, but did not preclude her from performing her past relevant work. In

addition, he found that she retained an RFC that differed from the 2001 RFC in

three respects: Moreno (1) had unlimited ability to perform pushing or pulling;



                                         3
(2) could stand or walk for six hours of an eight-hour work day; but (3) required a

sit-stand option at one-hour alternating intervals. The ALJ concluded that,

notwithstanding her limitations, Moreno retained the capacity to perform her past

relevant work and, thus, was not disabled under the Act.

       On appeal, Moreno argues that ALJ erred in failing to apply the doctrine of

administrative res judicata to the first assessment of her RFC. She further argues

that the district court erred in affirming the ALJ’s decision based on reasons

independent of those the ALJ relied on to deny her DIB application and in failing

to describe the purpose of administrative res judicata accurately. Finally, she

argues that substantial evidence does not support the ALJ’s finding that she could

perform her past relevant work. To this end, she challenges the (A) the ALJ’s

evaluation of her subjective complaints of vision impairments caused by her

uncontrolled diabetes mellitus; (B) the ALJ’s finding that her severe impairments

of diabetes mellitus with retinopathy and status post cataracts did not preclude her

from performing her past relevant work as an office clerk; and (C) the sufficiency

of a hypothetical posed to the vocational expert (“VE”).1




       1
          While Moreno also argues that we should apply a more exacting standard of review
with respect to this claim, we decline to consider her argument in this regard because she raises
it for the first time in her reply brief. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004)

                                                 4
                                          I.

      Moreno argues that the ALJ should have given preclusive effect to her 2001

RFC assessment.    We review “de novo the legal principles upon which the

Commissioner’s decision is based.” Moore v. Barnhart, 405 F.3d 1208, 1211

(11th Cir. 2005). The Commissioner’s “failure to apply the correct law or to

provide the reviewing court with sufficient reasoning for determining that the

proper legal analysis has been conducted mandates reversal.” Keeton v. Dep’t of

Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

      The Social Security Act directs that “[t]he findings and decision 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, not
      inconsistent with the provisions of this subchapter, 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 administrative res judicata applies when the agency has made a previous

final decision “about [a claimant’s] rights on the same facts and on the same issue



                                          5
or issues.” 20 C.F.R. § 404.957(c)(1); see also Cash v. Barnhart, 327 F.3d 1252,

1255 (11th Cir. 2003).

      Here, however, Moreno’s instant application concerned an unadjudicated

time period. Thus, the ALJ did not err in declining to give preclusive effect to the

2001 RFC assessment. Accordingly, we affirm as to this issue.

                                           II.

      Moreno next challenges the magistrate’s rationale, adopted by the district

court, for affirming the ALJ’s denial of her 2003 application. In Social Security

appeals, we review only the decision of an ALJ as the Commissioner’s final

decision when the ALJ denies benefits and the Appeals Council denies review of

the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).

Thus, we find no merit to this argument.

                                           III.

      Moreno argues that substantial evidence does not support the ALJ’s finding

that her severe impairments did not preclude her from performing her past relevant

work . To this end, Moreno argues that (A) the ALJ erred in failing to apply this

Circuit’s pain standard to her subjective assessment of the limiting effects of her

impairments; (B) substantial evidence demonstrates her entitlement to DIB; and

(C) the ALJ erred in relying on the VE’s response to a hypothetical question that



                                            6
did not include her subjective complaints.

      We review a Commissioner’s decision to determine whether it is supported

by substantial evidence and whether the proper legal standards were applied.

Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004); 42 U.S.C.

§ 405(g). “Substantial evidence is less than a preponderance, but rather such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Moore, 405 F.3d at 1211. We are precluded from “deciding the facts

anew, making credibility determinations, or re-weighing the evidence.” Id.

      A.     Subjective Complaints of Limitations

      When a claimant attempts to establish disability through her own testimony

concerning pain or other subjective symptoms, we apply a three-part “pain

standard,” which requires (1) evidence of an underlying medical condition, and

either (A) objective medical evidence that confirms the severity of the alleged pain

stemming from that condition, or (B) that the objectively determined medical

condition is so severe that it can reasonably be expected to cause the alleged pain.

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). “The claimant’s

subjective testimony supported by medical evidence that satisfies the standard is

itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d 1221,

1223 (11th Cir. 1991).



                                           7
      “After considering a claimant’s complaints of pain, the ALJ may reject them

as not creditable, and that determination will be reviewed for substantial evidence.”

Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). The ALJ must explicitly

and adequately articulate his reasons if he discredits subjective testimony. Id. “A

clearly articulated credibility finding with substantial supporting evidence in the

record will not be disturbed by a reviewing court.” Foote v. Charter, 67 F.3d

1553, 1562 (11th Cir. 1995); see also Moore, 405 F.3d at 1212 (noting that we

“recognize that credibility determinations are the province of the ALJ”). “The

credibility determination does not need to cite particular phrases or formulations

but it cannot merely be a broad rejection which is not enough to enable . . . this

Court to conclude that the ALJ considered her medical condition as a whole.”

Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotations and alterations

omitted). When evaluating a claimant’s subjective symptoms, the ALJ must

consider such things as: (1) the claimant’s daily activities; (2) the nature and

intensity of pain and other symptoms; (3) precipitating and aggravating factors;

(4) effects of medications; (5) treatment or measures taken by the claimant for

relief of symptoms; and other factors concerning functional limitations. See 20

C.F.R. § 404.1529(c)(3).

      Because the ALJ made a clearly articulated finding that Moreno’s subjective



                                           8
complaints were not credible to the degree that she would have been precluded

from all work-related activity during the relevant period and this finding is

supported by substantial evidence, we affirm as to this issue.

      B.     Ability to Perform Past Relevant Work

      The Social Security Regulations outline a five-step process used to

determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). Under the

first step, the claimant has the burden to show that she is not currently engaged in

substantial gainful activity. Id. § 404.1520(a)(4)(i). Next, the claimant must show

that she has a severe impairment. Id. § 404.1520(a)(4)(ii). She then must attempt

to show that the impairment meets or equals the criteria contained in one of the

Listings of Impairments. Id. § 404.1520(a)(4)(iii). If the claimant cannot meet or

equal the criteria, she must show that she has an impairment which prevents her

from performing her past relevant work. Id. § 404.1520(a)(4)(iv). Once a claimant

establishes that she cannot perform her past relevant work due to some severe

impairment, the burden shifts to the Commissioner to show that significant

numbers of jobs exist in the national economy which the claimant can perform. Id.

§ 404.1520(a)(4)(v); Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).

      The present inquiry concerns the fourth step of the sequential evaluation

process – whether the substantial evidence supports the ALJ’s finding that Moreno



                                           9
could perform her past relevant work. At step four of the sequential evaluation

process, the ALJ assesses the claimant’s RFC and a claimant’s ability to do past

relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is an assessment

based upon all of the relevant evidence of a claimant’s remaining ability to do

work despite her impairments. Lewis, 125 F.3d at 1440 (11th Cir. 1997) (citing 20

C.F.R. § 404.1545(a)). In determining whether a claimant can work, the ALJ

considers the claimant’s RFC, age, education, and work experience. Further, “the

testimony of a treating physician must be given substantial or considerable weight

unless good cause is shown to the contrary.” Id. (quotation omitted). 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); 20 C.F.R.

§ 416.920(c) (stating a severe impairment “significantly limits [one’s] physical or

mental ability to do basic work activities”). If the evidence is inconsistent, the ALJ

weighs the evidence to reach his decision. 20 C.F.R. § 404.1527(c).



      Because substantial evidence supports the ALJ’s finding that Moreno’s

severe impairments of diabetes mellitus with retinopathy and status post cataracts

did not preclude her from performing her past relevant work during the relevant

time period, we affirm as to this issue.



                                           10
      C.     Hypothetical to VE

      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. Vega v. Comm’r of Social Security, 265 F.3d 1214, 1220 (11th Cir.

2001). However, the ALJ is not required to include findings in the hypothetical

that the ALJ has found to be unsupported. Crawford, 363 F.3d. at 1161.

      The ALJ did not err by failing to include Moreno’s subjective symptoms in

his hypothetical to the VE because the ALJ was not required to include limitations

that it found to be unsupported. Accordingly, we affirm in this regard.

                                    Conclusion

      Upon review of the record and the parties’ briefs, we find no error.

      AFFIRMED.




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