                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                 No. 10-15488                   JULY 12, 2011
                                                                 JOHN LEY
                             Non-Argument Calendar                 CLERK
                           ________________________

                       D.C. Docket No. 5:09-cv-00184-GRJ

NANCY MAFFIA,

                                                                Plaintiff-Appellant,

                                      versus

COMMISSIONER OF SOCIAL SECURITY,

                                                               Defendant-Appellee.

                          ________________________

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

                                  (July 12, 2011)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Nancy Maffia appeals from the district court’s order affirming the

administrative law judge’s (“ALJ”) denial of her applications for disability
insurance benefits, 42 U.S.C. § 405(g), and supplemental security income,

42 U.S.C. § 1383(c)(3), covering the periods from October 26, 2003, through

October 27, 2005, and from November 3, 2007, through February 23, 2009.

On appeal, Maffia argues that the ALJ did not comply with Social Security

Regulation 96-6p when he failed to consider a Mental Residual Functional

Capacity (“RFC”) Assessment prepared by Michael Zelenka, Ph.D., which

indicated that Maffia was moderately limited in her concentration, persistence, and

pace. Maffia also argues that the ALJ failed to pose hypothetical questions to a

vocational expert (“VE”) that included the non-exertional limitations identified by

Dr. Zelenka.

                                          I.

      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 of Soc. Sec.,

363 F.3d 1155, 1158 (11th Cir. 2004) (quotation omitted). “Substantial evidence

is defined as more than a scintilla, i.e., evidence that must do more than create a

suspicion of the existence of the fact to be established, and such relevant evidence

as a reasonable person would accept as adequate to support the conclusion.”

Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citations omitted).




                                          2
      The social security regulations establish a five-step, sequential evaluation

process to determine disability for both disability insurance benefits and

supplemental security income. See 20 C.F.R. §§ 404.1520, 416.920. The ALJ

must evaluate: (1) whether the claimant engaged in substantial gainful

employment; (2) whether the claimant has a severe impairment; (3) whether the

severe impairment meets or equals an impairment in the Listing of Impairments;

(4) whether the claimant has the RFC to perform her past relevant work; and

(5) whether, in light of the claimant’s RFC, age, education, and work experience,

there are other jobs the claimant can perform. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4); see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir.

2004).

      Social Security Ruling 96-6p states that findings of fact by a State agency

psychological consultant must be treated as expert opinion evidence of a

non-examining source. The ALJ cannot ignore this evidence and must explain the

weight it gives to such evidence. S.S.R. 96-6p.

      Maffia’s argument that the ALJ erred by not considering Dr. Zelenka’s

Mental RFC Assessment is without merit. Although the ALJ did not refer to

Dr. Zelenka by name, the ALJ specifically referred to and gave “great weight” to

Exhibit 40F. Dr. Zelenka’s Mental RFC Assessment is stamped as Exhibit 40F,

                                          3
and it is identified as such in the administrative record’s table of contents.

Moreover, the ALJ’s summary of Exhibit 40F confirms that he was, indeed,

referring to Dr. Zelenka’s Mental RFC Assessment. While this assessment

indicates that Maffia has moderate limitations in her ability to maintain attention

and concentration, and in her ability to complete a normal workday or workweek

without interruptions from psychologically-based symptoms or to perform at a

consistent pace without an unreasonable number and length of rest periods,

Dr. Zelenka ultimately concluded that these limitations did not prevent her from

carrying out instructions, relating to others, or accomplishing daily tasks. The

ALJ did not reject this conclusion, but agreed with it and found it consistent with

the record as a whole, including Maffia’s own testimony. Thus, the record shows

that the ALJ did consider, and in fact agreed with and relied upon, Dr. Zelenka’s

findings to formulate Maffia’s RFC. Accordingly, the ALJ complied with

S.S.R. 96-6p.

                                          II.

      Once a claimant proves that she can no longer perform her past relevant

work, “the burden shifts to the Commissioner to show the existence of other jobs

in the national economy which, given the claimant’s impairments, the claimant can

perform.” Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (quotation

                                           4
omitted). The ALJ may rely solely on the testimony of a VE to meet this burden.

Id. at 1230. For the testimony of a VE to constitute substantial evidence, however,

“the ALJ must pose a hypothetical question which comprises all of the claimant’s

impairments.” Id. at 1229.

      After posing a series of hypothetical questions encompassing Maffia’s

physical limitations, the ALJ limited the hypothetical to an individual who could

only perform sedentary work. The VE testified that, although this individual could

not perform Maffia’s past relevant work, the individual could still perform certain

unskilled jobs in the national and Florida economies, such as a charge account

clerk, a call-out operator, and a cutter-and-paster of press clippings. The ALJ then

asked the VE if the individual could still perform those unskilled jobs if she could

only understand, remember, and carry out simple instructions. The VE responded

affirmatively. Thus, by limiting the hypothetical to an individual who could only

perform sedentary, unskilled work with the ability to only understand, remember,

and carry out simple instructions, the ALJ properly incorporated Dr. Zelenka’s

medical opinion as to Maffia’s mental limitations.

      Based on the foregoing, we conclude that the ALJ’s decision to deny

benefits is based upon the proper legal principles and is supported by substantial

evidence. The ALJ’s decision is, therefore,

                                         5
AFFIRMED.1




1
    Maffia’s request for oral argument is denied.

                                     6
