Case: 16-11556   Date Filed: 01/25/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11556
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:14-cv-02051-CEM-TBS



RONNIE LEE BROWN,

                                                           Plaintiff-Appellant,

                                  versus

COMMISSIONER OF SOCIAL SECURITY,

                                                          Defendant-Appellee.

                       ________________________

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

                            (January 25, 2017)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ronnie Lee Brown appeals the district court’s order affirming the

Commissioner of the Social Security Administration’s denial of his applications

for social security income and disability insurance benefits. He contends that the

administrative law judge erred by failing to consider his need for supplemental

oxygen in determining his residual functional capacity, and that the ALJ failed to

develop a full and fair record.

      When an ALJ denies benefits and the Appeals Council denies review of that

decision, we review the ALJ’s decision as the Commissioner’s final decision.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). We review de novo the

Commissioner’s legal conclusions, and we consider the Commissioner’s factual

findings conclusive if supported by substantial evidence. Lewis v. Barnhart, 285
F.3d 1329, 1330 (11th Cir. 2002). “Substantial evidence is more than a scintilla

and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178

(11th Cir. 2011).

      To be eligible for social security income and disability insurance benefits, a

claimant must have a disability. 42 U.S.C. §§ 423(a)(1)(E), 1382(a). An ALJ

must follow the Commissioner’s five-step sequential evaluation to determine

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

During the last two steps of the process, an ALJ considers the claimant’s residual



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functional capacity, see id., which is “the most [a claimant] can still do despite

[his] limitations,” id. § 404.1545(a)(1). The ALJ considers medical evidence and

other relevant evidence in the record in making that assessment. Id.

§ 404.1545(a)(3).

      Brown argues that the ALJ “failed to account” for his need for supplemental

oxygen in determining his residual functional capacity. Based on the record and

the ALJ’s written decision, it is clear that the ALJ considered his need for oxygen

yet concluded that continuous use of supplemental oxygen was not medically

necessary for Brown. She made that determination based on his medical records

and her finding that Brown’s testimony as to his need for continuous oxygen was

not entirely credible. As a result, it appears that Brown actually takes issue with

the ALJ’s determinations as to his credibility and about his need for supplemental

oxygen.

      The record contains adequate evidence to support the ALJ’s conclusion that

Brown did not need to continuously use supplemental oxygen. The ALJ

considered, among other things, his history of noncompliance with recommended

medical care; his treatment records, which indicated stable conditions when he

complied with recommended medical care; the activities he claimed to have

performed while allegedly needing oxygen, such as cutting the grass; and evidence

of his ability to conduct his daily activities that was contrary to what he had



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generally reported. Although Brown was discharged from the hospital on two

occasions with instructions to use home oxygen, those instructions did not indicate

how much home oxygen he needed, and none of his other hospital discharges

included an instruction to use home oxygen. Based on all of the evidence, the ALJ

concluded that there was nothing in the record showing that Brown’s need for

supplemental oxygen was permanent, or showing to what extent he needed

supplemental oxygen. As a result, substantial evidence supports the ALJ’s

determination that he did not require continuous supplemental oxygen. 1

       Brown’s challenge to the ALJ’s finding as to his credibility also fails. The

ALJ provided several reasons for finding Brown’s statements about his need for

continuous oxygen not credible. In particular, she pointed to inconsistencies

between his testimony and evidence in the record. We will not disturb that finding.

Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“A clearly articulated

credibility finding with substantial supporting evidence in the record will not be

disturbed by a reviewing court.”).

       Brown also challenges the ALJ’s determination at step five that he could

perform work in the national or regional economy based on a vocational expert’s

testimony. He argues that the ALJ asked the vocational expert an improper

       1
         In his reply brief, Brown argues that the ALJ failed to consider his need to carry his
supplemental oxygen in assessing his upper extremity limitations. Because he raised that
argument for the first time in his reply brief, we do not address it. See Jackson v. Comm’r of
Soc. Sec., 601 F.3d 1268, 1274 n.4 (11th Cir. 2010).


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hypothetical question because the question was based on his residual functional

capacity, “which failed to account for [his] need to use supplemental oxygen.” But

because the ALJ did not “fail[ ] to account” for Brown’s need for supplemental

oxygen in determining his residual functional capacity, the ALJ did not err in

posing hypothetical questions to the vocational expert that did not describe his

need for supplemental oxygen. The ALJ’s hypothetical questions included all of

the impairments that Brown met his burden to show. As a result, substantial

evidence supports the ALJ’s conclusion that Brown could perform jobs that were

available in significant numbers in the national economy. See Winschel, 631 F.3d

at 1180 (“In order for a vocational expert’s testimony to constitute substantial

evidence, the ALJ must pose a hypothetical question which comprises all of the

claimant’s impairments.”).

      Finally Brown contends that, “[i]f the ALJ believed that the record was

insufficient regarding [his] need for supplemental oxygen, then she should have

further developed the issue.” An ALJ has a basic obligation to develop a full and

fair record, Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1988), and the record

shows that the ALJ fulfilled that obligation in this case. Brown has not identified

what evidence was available to him that the ALJ could have used in developing the

record, and it was his burden to show that that his need for supplemental oxygen

would prevent him from performing the jobs identified by the vocational expert.



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See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (“[The social

security] regulations place a very heavy burden on the claimant to demonstrate

both a qualifying disability and an inability to perform past relevant work.”).

      During the disability hearing, the ALJ elicited testimony from Brown as to

his need for oxygen. She specifically asked Brown about his two oxygen

prescriptions, the dates of those prescriptions, and the extent to which he needed

oxygen. The ALJ noted that Brown “came to the hearing . . . with [portable]

oxygen.” The record also contains other evidence of Brown’s respiratory

condition and medical care, including records of hospital discharges that do not

instruct Brown to use home oxygen. As a result, Brown’s contention that the ALJ

should have “further developed” the record as to his need for oxygen is unfounded.

      AFFIRMED.




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