                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 10-12325                 ELEVENTH CIRCUIT
                             Non-Argument Calendar               MARCH 22, 2011
                           ________________________                JOHN LEY
                                                                    CLERK
                      D.C. Docket No. 8:09-cv-00697-TGW

CATHERINE M. MACK,

                                                    Plaintiff-Appellant,

                                      versus

COMMISSIONER OF SOCIAL SECURITY,

                                                    Defendant-Appellee.

                          ________________________

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

                                 (March 22, 2011)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

      Catherine Mack appeals the district court’s order, affirming the

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

(“SSI”) benefits, 42 U.S.C. § 1383(c)(3). Mack alleged that she was disabled due

in part to chronic obstructive pulminary disease (“COPD”), obesity, severe sinus

problems, dyspnea (difficult or labored breathing), and sleep apnea. Relevant to

the instant appeal, the ALJ found that Mack was not disabled within the meaning

of the Social Security Act (“SSA”) at step five of the sequential evaluation

process. The ALJ found that Mack’s statements about the intensity, persistence,

and limiting effects of her symptoms were not entirely credible in part because of

Mack’s noncompliance with prescribed treatment, specifically, the fact that Mack

was smoking five packs of cigarettes on a daily basis, although she complained of

COPD and asthma attacks; and Mack had recently gained five pounds, although

her physician had recommended that she lose weight. Based on the vocational

expert’s (“VE”) testimony that, given Mack’s limitations, there were significant

jobs in the economy that Mack could perform and the Medical-Vocational

Guidelines, the ALJ found that Mack was not disabled. Notably, Mack does not

challenge the ALJ’s assessment of her RFC, her credibility, or the medical

evidence, or the adequacy of the hypothetical question posed to the VE. Mack

does argue, however, that the substantial evidence does not support the ALJ’s

finding that she was not disabled because the ALJ erred in failing to apply

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20 C.F.R. § 416.930 or Social Security Ruling (“SSR”) 82-59 when he found that

Mack was noncompliant with prescribed medical treatment to stop smoking and

lose weight.

      We review “the Commissioner’s factual findings with deference and the

Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel,

245 F.3d 1274, 1278 (11th Cir. 2001). We will not reweigh evidence, make

credibility determinations, or substitute our judgment for that of the ALJ, but

instead review the record to determine if the decision reached is supported by

substantial evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

Substantial evidence “is less than a preponderance, but rather such relevant

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

conclusion.” Id. A “mere scintilla” of evidence, however, will not suffice. Falge

v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998).

      An individual claiming disability and SSI benefits carries the burden of

demonstrating the existence of a disability as defined by the SSA. Moore, 405

F.3d at 1211. A claimant is considered disabled if she is unable “to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of less than 12 months.” Crayton

                                          3
v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997) (quotation omitted). The social

security regulations establish a five-step, sequential evaluation process to

determine disability for both SSI and DI benefits claims. Id. 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. See Phillips v. Barnhart, 357 F.3d

1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the

claimant proves that she cannot perform her past relevant work at the fourth step,

the burden shifts to the Commissioner to show, at the fifth step, that there is other

work available in the economy that the claimant can perform. Jones v. Apfel,

190 F.3d 1224, 1228 (11th Cir. 1999).

      SSR 82-59 sets forward the circumstances in which the Commissioner can

deny benefits on the basis that the claimant has failed to follow prescribed

treatment. SSR 82-59 at 1; see also 20 C.F.R. §§ 404.1530 (stating that a claimant

who fails to follow prescribed treatment, absent a good reason, will not be found

disabled and providing a list of acceptable reasons for noncompliance), 416.930

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(same). While we have not specifically addressed SSR 82-59, the Circuits that

have considered the policy statement have held that the procedures mandated in

SSR 82-59 “only apply to claimants who would otherwise be disabled within the

meaning of the Act.” Roberts v. Shalala, 66 F.3d 179, 183 (9th Cir. 1995); Holley

v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001). This conclusion is consistent

with the language of SSR 82-59, which provides:

      [a]n individual who would otherwise be found to be under a
      disability, but who fails without justifiable cause to follow treatment
      prescribed by a treating source which the [SSA] determines can be
      expected to restore the individual’s ability to work, cannot by virtue
      of such “failure” be found to be under a disability.

SSR 82-59 at 2.

      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 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); see Holt v. Sullivan,

921 F.2d 1221, 1223 (11th Cir. 1991) (stating that this “standard also applies to

complaints of subjective conditions other than pain”). “The claimant’s subjective

                                          5
testimony supported by medical evidence that satisfies the standard is itself

sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.

      When the medical signs and laboratory findings establish that the claimant

has a medically determinable impairment that could reasonably be expected to

produce the claimant’s symptoms, the ALJ must evaluate the intensity and

persistence of a claimant’s symptoms and the extent to which those symptoms

limit the claimant’s capacity for work. 20 C.F.R. §§ 404.1529(c)(1),

416.929(c)(1); Social Security Regulation 96-7p (“SSR 96-7p”) at 2. In doing so,

the ALJ is to consider the objective medical evidence and other evidence provided

by the claimant and her treating and nontreating sources concerning what may

precipitate or aggravate the claimant’s symptoms, what medications, treatment or

methods are used to alleviate the symptoms, and how the symptoms affect the

claimant’s daily living. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 96-7p

at 3. The ALJ’s credibility finding must be grounded in the evidence and contain

specific reasons that are supported by the record evidence. SSR 96-7p at 4.

      Because (1) the ALJ did not significantly base his determination that Mack

was not disabled on her noncompliance with prescribed treatment; and (2) there is

no dispute that substantial evidence supports the ALJ’s credibility finding, the

ALJ’s assessment of both the medical evidence and Mack’s RFC, and the VE’s

                                          6
testimony that, given Mack’s limitations, there are significant jobs in the economy

that Mack can perform, we affirm.

      AFFIRMED.




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