* Pursuant to 5th Cir. R. 47.5, the court has determ ined that this opinio n should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED August 30, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 06-30202 Summary Calendar

PEGGY HEBERT, Pl aint iff–Appellant , versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee.
Appeal from the United States District Court fo r the Western District of Louisiana

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. CARL E. STEWART, Circuit Judge: * Pl aint iff- Appellant Peggy Hebert (“Hebert”) appeals the district court’s judgment affirming the administ rative law judge’s (“ALJ”) denial of benefit s because Hebert’s medical conditions were not disabilit ies fo r purposes of the Soci al Security Act. For the follo wing reasons, we affirm the judgment of the district court.2 I. FACTUAL AND PROCEDURAL BACKGROUND The record reflects th at Hebert has a hist ory of assorted medical conditions. In October 2001, Hebert went to University Medical Center com plaining of headaches, dizziness, chronic obstructive pulmonary disease, chronic bronchitis, and asthma. Because tests did not reveal any abnormalities, a doctor told Hebert to continue her medications and quit smo king. In November 2001, a bilateral carotid duplex ult rasound revealed th at she had “mild atherosclerotic disease bilaterally”; medical tests conducted l ater that mo nt h did not indicate abnormalities wit h Hebert’s left shoulder, but did show th at she had degenerative disc dis ease of cervical vertebras 3-7. In April 2002, Hebert was again advised to quit smo king aft er doctors at the hospital emergency room diagnosed her with gastroesophageal reflux disease, tob acco abuse, bronchitis, and arthralgia. An x-ray of her left knee taken at the same time came back normal. On May 4, 2002, Hebert went to Dr. Michael Leddy
com plaining of “glo bal body pain”; Leddy, however, noted th at Hebert’s “pain was ‘out of proportion to her physical exam’” and th at there was no ev idence of spasms or neurological defects. In June 2002, Hebert returned to University Medical Center seeking continued treatment for hypertension, chronic headaches, and hy perlipidem

ia. Doctors again instructed her to take her medication, including non-steroid anti-inflammat ories, and to stop smo king. On October 8, 2002, Hebert
com plained of respiratory problems and doctors diagnosed her wit h asthma. On April 26, 2003, Dr. John Canterbury met wit h Hebert regarding her com plaint s of chronic back pain. Canterbury ult imat ely determ

ined th at Hebert could ambulate, sit , stand, walk, and lift objects up to ten pounds; he also concluded th at Hebert had shortness of breath and pains that had developed within the last3

year in her right knee and elbows. He told her to quit smoking. On October 28, 2003, Hebert had her right knee x-rayed again; the x-ray showed moderate degenerative changes with spurring. As a result of these medical ailment s, Hebert filed an application fo r Ti tle XVI supplemental security inco me benefit s on March 5, 2002, alleging disabilit y since June 1, 1998, due to pain in her back, arm, leg, and hand. Hebert testified t hat she had not worked for five or six months and that she
was term inat ed from her mo st recent jo b because her re spiratory problems prevented her from worki ng. Furtherm

ore, she testified t hat she takes asthma medication, but has not quit smoking. Aft er considering the evidence, the ALJ issued a decision on March 18, 2004, finding that Hebert was not under a disabilit y as defined in the Social Security Act. Specifically, the ALJ found th at Hebert did not sati sfy the definit io n of “disabilit y” because her medical impairment s did not meet
or medically equal one of the list ed impairment s available under the Soci al Security Act and Hebert retained the abilit y to perform light work, as lo ng as she avoide d fumes, chem icals and smoke. Accordingly, the ALJ denied her application. The decision became the final administrative decision of the Unit ed States Com

missio ner of the Soci al Security Administ ration (“Commissioner”) when the appeals council denied Hebert’s request for review on July 2, 2004. On September 8, 2004, Hebert filed a com plaint in the Unit ed States Di strict Court f or the Western District of Loui siana. On December 15, 2005, the district court affirmed the Com missio ner’s final administ rative decision. From th at j udgment , Hebert timely appeals to this court. II. DISCUSSION Hebert asks this court to consider (1) whether the ALJ improperly reje cted a state agency medical consultant’s opinion that she should avoid all exposure to fumes, odors, dusts, gases, poor4

ventilation, etc; and (2) whether the ALJ improperly rejected the opinio n of Dr. Canterbury, as a onetime consultative examiner. We are restricted, however, under 42 U.S.C. § 405(g) to determ ine in this appeal: (1) whether the Com missio ner’s decision is supported by substantial evidence in the record; and (2) whether the dec isio n com ports with relevant legal standards. C arey v. Apfel , 230 F.3d 131, 135 (5th Cir. 2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a concl usion. I d
. We cannot, however, reweigh individual pieces of evidence in the record, as Hebert requests . Johnson v. Bowen , 864 F.2d 340, 343 (5th Cir. 1988). To determ

ine whether Hebert is disabled or capable of performing substantial gainful activit y, the ALJ applied the following test:

1. If a person is engaged in substantial gainful activity, he will not be fo und disabled regardless of the medical findings. 2. A person who does not have a “severe impairment” will not be fo und to be disabled. 3. A person who meets the criteri a in t he list of impairment s in Appen dix 1 of the regulations will be considered disabled without consideration of vocational factors. 4. If a person can still perform his past work, he is not disabled. 5. If a person’s impairment prevents him from performing his past work, other f

actors including age, education, past work experience, and r e sidual functional capacity must be considered to determ ine if other work can be performed. See 20 C.F.R § 404.1520(b)-(f). Ult imat ely, t he ALJ determined that though Hebert suffers from
severe impairment s, including osteoarthriti s, obesity, asthma, chronic obstructive pulmonary disease, and shortness of breath, she is not disabled because the record reveals she retains the residual5

functional capacity to perform a limit ed range of light work. The ALJ stated, for example, that her residual functional capacity, as evidenced on the face of her medical records, would allo w Hebert to return to her past work as a cashier. We agree. We hold th at the district court did not err in affirming the ALJ’s determination regarding Hebert’s medical condition. Furthermore, Hebert’s refusal to follow her doctor’s instructions to stop
smo king and her inability to provide a “good reason” fo r not doing so further renders her ailments non-disabling. S ee Johnson , 864 F.2d at 348 (holding that an impairment th at can be remedied or treated by medication will not be considered a disabilit y) ; see also 20 C.F.R. § 416.930 (explaining th at a patient who does not fo llo w treatm ent prescribed by a physician will not receive benefit s if this treatm ent would allo w the patient to return to work.); 20 C. F .R. § 404.1530(b) (stating th at if a patient fails to provide a good reason fo r not fo llo wing prescribed treatment, that patient will to be deemed disabled and will not receive benefit s.). Therefore, we conclude that the decision denying benefit s to Hebert was supported by substantial evidence in the record, such th at a reasonable mind might accept as adequate to support the conclusion reached in this case. S ee Anthony v. Sullivan , 954 F.2d 289, 295 (5th Cir. 1992). CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.