[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 17, 2005
No. 04-16536
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 03-02677-CV-S-S
SAM JOHNSON,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Commissioner of the Social Security Administration
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 17, 2005)
Before ANDERSON, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Sam Johnson appeals the district court’s order affirming the administrative
law judge’s (ALJ’s) denial of his applications for a period of disability, disability
insurance benefits, and supplemental security income due to his arthritis, 42
U.S.C. §§ 405(g), 1383(c)(3). Johnson argues that (1) the ALJ did not properly
apply the three part pain test and that the ALJ’s finding that Johnson’s pain was
not disabling was not supported by substantial evidence; (2) the ALJ failed to
afford proper weight to Johnson’s treating physician, Dr. Autry; and (3) the ALJ
failed to take reasonable measures to fairly and fully develop the record.
We review a social security case to determine whether the ALJ’s decision is
supported by substantial evidence and whether the correct legal standards were
applied. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). With
respect to the Commissioner’s legal conclusions, our review is de novo. Lewis v.
Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002).
I. Application of Pain Test and Substantial Evidence
First, Johnson argues that the ALJ improperly applied the three part pain
test and erred in finding that Johnson’s pain was not disabling. In Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002), we held:
In order to establish a disability based on testimony of pain and
other symptoms, the claimant must satisfy two parts of a three-part
test showing: (1) evidence of an underlying medical condition; and
(2) either (a) objective medical evidence confirming the severity of
the alleged pain; or (b) that the objectively determined medical
condition can reasonably be expected to give rise to the claimed pain.
If the ALJ discredits subjective testimony, he must articulate explicit
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and adequate reasons for doing so. Failure to articulate the reasons
for discrediting subjective testimony requires, as a matter of law, that
the testimony be accepted as true.
(citations omitted).
A reversal is required if the ALJ’s decision contains no evidence of the
proper application of the three part standard. See Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991). This however, does not require a verbatim recitation
of the pain standard, the ALJ need only make findings that indicate the proper
standard was utilized. Id. If it is found that the ALJ employed the proper
standard, we must determine whether substantial evidence supports the ALJ’s
finding under that standard. See Callahan, 125 F.3d at 1439.
The ALJ followed the pain standard. First, the ALJ found sufficient
evidence of underlying medical conditions. Second, with regard to whether there
existed objective medical evidence that confirms the severity of this pain or
whether the underlying medical condition could give rise to the claimed pain, the
ALJ found:
Although the evidence as a whole establishes underlying medical
conditions capable of producing some limitations, the evidence as a
whole does not confirm disabling limitations arising from those
conditions, nor does it support a conclusion that the objectively
determined medical conditions are of such severity that they could
reasonably be expected to give rise to disabling limitations.
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Additionally, the ALJ’s findings under the pain standard are supported by
substantial evidence. First, the record contains no objective medical reports of
disabling pain. Second, the record supports the ALJ’s finding that Johnson’s
arthritis could not reasonably be expected to give rise to disabling pain. Dr. Autry
found that Johnson’s arthritis limited his ability to stand, stoop, climb, or walk for
prolonged periods of time. Dr. Autry did not place limitations on Johnson’s
ability to sit or work with a sit/stand option. These findings are supported by Dr.
Purdy who also found Johnson could work in jobs that involved: sitting, non-
prolonged standing, short distance walking, light lifting, light carrying, handling
objects, hearing, speaking, and traveling. Thus, we find that the ALJ properly
applied the pain standard; his findings that Johnson’s pain was not disabling were
supported by substantial evidence.
II. Weight of Treating Physician’s Report
Next, Johnson argues that the ALJ failed to afford proper weight to the
reports of Johnson’s treating physician, Dr. Autry. Testimony or an opinion of a
treating physician must be given substantial or considerable weight unless “good
cause” is shown to the contrary. Callahan, 125 F.3d at 1440. We have found
“good cause” to exist where (1) the opinion was not bolstered by the evidence, (2)
the evidence supported a contrary finding, or (3) opinion was conclusory or
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inconsistent with the doctor’s own medical records. Id. The ALJ must clearly
articulate the reasons for giving less weight to the opinion of a treating physician,
and the failure to do so is reversible error. Id.
In February 1998, Dr. Autry reported Johnson could not stand, climb, squat,
or walk for any prolonged period of time. In April of that year, Dr. Autry added
prolonged stooping to the aforementioned activities. But Dr. Autry asserted, at
that time, that Johnson could find gainful employment in a position in which he is
not required to participate in any of the described activities. In July 1999, Dr.
Autry reported that Johnson was trying to find work. The record does not contain
any evidence that Dr. Autry treated Johnson between 1999 and 2002. But, in
2002, Dr. Autry signed a form for the Department of Human Resources Food
Stamp Program that indicated Johnson was unable to work. This conclusion is not
supported by Dr. Autry’s prior reports or the remaining medical evidence from
other sources. Accordingly, the ALJ did not err in reducing the weight he afforded
Dr. Autry’s 2002 conclusion.
III. Measures To Fairly and Fully Develop the Record
Finally, Johnson argues the ALJ failed to take reasonable measures to fully
and fairly develop the record. “Because a hearing before an ALJ is not an
adversary proceeding, the ALJ has a basic obligation to develop a full and fair
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record.” Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Medical sources
should be recontacted when the evidence received from that source is inadequate
to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1512(e);
416.912(e). Social Security Ruling 96-5p provides:
Because treating source evidence (including opinion evidence) is
important, if the evidence does not support a treating sources’s
opinion on any issue reserved to the Commissioner and the
adjudicator cannot ascertain the basis of the opinion from the case
record, the adjudicator must make “every reasonable effort” to
recontact the source for clarification of the reasons for the opinion.
Soc. Sec. Rul. 96-5p. In evaluating whether it is necessary to remand, we are
guided by “whether the record reveals evidentiary gaps which result in unfairness
or clear prejudice.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995).
Dr. Autry last examined Johnson in 1999, three years before completing the
2002 form for the food stamp program. Johnson did not introduce any reports
from Dr. Autry in those intervening years. He has not argued that there are reports
that Dr. Autry could have provided the ALJ for those years. A likelihood of
prejudice may arise if there is an evidentiary gap that “the claimant contends
supports [his] allegations of disability.” Id. at 936 n. 9. However, Johnson points
to no such evidentiary gap. There was nothing more from the record that Dr.
Autry could have provided to aid the ALJ in ascertaining the basis for his opinion
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as the ALJ already possessed all the medical records he could have provided.
Upon careful review of the administrative proceedings, the medical record,
the proceedings in the district court, and the parties’ briefs, we find no reversible
error. Accordingly, we affirm the district court.
AFFIRMED.
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