[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14795 ELEVENTH CIRCUIT
JUNE 16, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00206-CV-OC-GRJ
BENEDICT W. TALBOT, JR.,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 16, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Benedict W. Talbot, Jr., through counsel, appeals the magistrate judge’s
order affirming the Commissioner of Social Security’s (“Commissioner”) denial of
his application for disability insurance benefits, 42 U.S.C. § 405(g). At the
administrative hearing, Talbot testified that his pain averaged a four to six on a
scale of one to ten. In determining that Talbot had not been disabled, the
Administrative Law Judge (“ALJ”) found, inter alia, that Talbot’s subjective
complaints that he experienced constant pain at a level nine on a scale of one to ten
were not fully credible. On appeal, Talbot argues that the ALJ’s finding that his
subjective complaints of pain were not credible was not supported by substantial
evidence and was made in violation of the laws of this Circuit.
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) (per
curiam). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. (internal quotation marks omitted). “Even if the evidence
preponderates against the Commissioner’s findings, we must affirm if the decision
reached is supported by substantial evidence.” Id. at 1158-59 (internal quotation
marks omitted). “We may not decide facts anew, reweigh the evidence, or
substitute our judgment for that of the Commissioner.” Dyer v. Barnhart, 395
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F.3d 1206, 1210 (11th Cir. 2005) (per curiam) (internal quotation marks and
alteration omitted). “Review of the Secretary’s application of legal principles is
plenary.” Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995).
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 he is not currently engaged in
substantial gainful activity. Id. § 404.1520(b). Next, he must show that he has a
severe impairment. Id. § 404.1520(c). He then must attempt to show that the
impairment meets or equals the criteria contained in one of the Listings of
Impairments. Id. § 404.1520(d). If the claimant cannot meet or equal the criteria,
he must show that he has an impairment which prevents him from performing his
past relevant work. Id. § 404.1520(e), (f). Once a claimant establishes that he
cannot perform his past relevant work due to some severe impairment, the
Commissioner will consider whether significant numbers of jobs exist in the
national economy that the claimant can perform. Id. § 404.1520(g); Phillips v.
Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
When a claimant attempts to establish disability through his 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 (2)
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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 of a severity that can reasonably be expected to cause the alleged pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam). “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) (per curiam).
“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) (per curiam). 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, 67 F.3d at 1562; see also Moore v. Barnhart, 405 F.3d 1208, 1212 (11th
Cir. 2005) ( per curiam) (“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 [the]
medical condition as a whole.” Dyer, 395 F.3d at 1210 (internal quotation marks
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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; and (5) treatment or measures taken by the
claimant for relief of symptoms. See 20 C.F.R. § 404.1529(c)(3).
Here, the ALJ based its finding that Talbot’s allegations of pain and
functional limitations were not fully credible on an incorrect reading of his
testimony. The ALJ stated that Talbot alleged that he is in constant pain and the
pain is a nine on a scale of one to ten. At the hearing, Talbot stated that he
experienced constant pain, that the pain was a seven plus in 1999, and that the pain
was in the four to six range at the time of the hearing. The ALJ discredited
Talbot’s allegations of pain and functional limitations in part because the allegation
of pain rating a nine was not supported by objective medical evidence or testimony
regarding Talbot’s daily activities. Had the ALJ compared Talbot’s actual
testimony of pain averaging a four to six with the medical evidence and his daily
activities, he may have found that moderate level of pain consonant with other
evidence and accordingly given more weight to Talbot’s testimony regarding his
pain and functional limitations. In this context, we cannot hold this error harmless
because consideration of a moderate level of pain and the possibility of stricter
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functional limitations could affect the ALJ’s residual functional capacity analysis.1
Accordingly, based on our review of the record and consideration of the parties’
briefs, we vacate and remand to the ALJ for further proceedings.
VACATED AND REMANDED.
1
We note that we express no opinion on the merits of Talbot’s claim for benefits in light
of a proper reading of his testimony. It is for the ALJ to decide in the first instance whether
Talbot’s allegations of moderate pain are credible in light of other objective evidence and if so,
whether that level of pain affects the remainder of the analysis.
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