[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 17, 2008
No. 08-11772 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00014-CV-1-MP-WCS
SHERRIN M. SCHUHARDT,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee,
LINDA S. MCMAHON,
Respondent.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 17, 2008)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Sherrin M. Schuhardt applied for Social Security disability benefits, 42
U.S.C. § 405(g), and supplemental security income, 42 U.S.C. § 1383(a)(3). The
Administrative Law Judge (“ALJ”) determined that Schuhardt was ineligible for
disability benefits. The ALJ found that she was not disabled and could perform her
past relevant work. The district court adopted the magistrate judge’s report and
recommendation and affirmed.
On appeal, Schuhardt argues that substantial evidence does not support the
ALJ’s failure to give considerable weight to her treating physician’s opinion. She
further argues that substantial evidence does not support the ALJ’s finding that her
subjective evidence of pain lacked credibility. We affirm.
I. S TANDARD OF R EVIEW
In reviewing a denial of disability benefits, “[w]e may not decide the facts
anew, reweigh the evidence, or substitute our judgment for that of the
[Commissioner]; rather [w]e must scrutinize the record as a whole to determine if
the decision reached is reasonable and supported by substantial evidence.” Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citation and quotation marks
omitted) (first and third alterations in original). “Substantial evidence . . . is more
than a scintilla, but less than a preponderance: [i]t is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (citation
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and quotation marks omitted) (alteration in original).
II. D ISCUSSION
A. Substantial Evidence Review
As a preliminary matter, the Commissioner argues that because Schuhardt
did not object to the magistrate judge’s report, Schuhardt waived substantial
evidence review. We disagree because the district court reviewed the ALJ’s
factual findings to determine whether they were supported by substantial evidence.
See id. Since neither the magistrate judge nor the district court made any factual
findings to which Schuhardt could have objected, she did not waive substantial
evidence review. We will accordingly review the ALJ’s decision and determine
whether it is supported by substantial evidence.
B. The ALJ’s Decision
In evaluating a claim for disability benefits, the ALJ evaluates the claimant’s
case according to the following five steps:
1. Is the individual performing substantial gainful
activity;
2. Does she have a severe impairment;
3. Does she have a severe impairment that meets or
equals an impairment specifically listed in 20 C.F.R. Part
404, Subpart P, Appendix 1;
4. Can she perform her past relevant work; and
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5. Based on her age, education, and work experience,
can she perform other work of the sort found in the
national economy.
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). At the fourth and fifth
steps, the ALJ determines the claimant’s Residual Functional Capacity (“RFC”)
and ability to perform her past relevant work by considering her ability to sit,
stand, walk, lift, carry, push, pull, reach, handle, stoop, crouch, and other work-
related physical demands. See 20 C.F.R. §§ 404.1520(e) and (f), 404.1545(b).
To support a conclusion that the claimant is able to return to her past
relevant work, “the ALJ must consider all the duties of that work and evaluate her
ability to perform them in spite of her impairments.” Lucas v. Sullivan, 918 F.2d
1567, 1574 n.3 (11th Cir. 1990). The claimant bears the burden of demonstrating
that she cannot return to her past relevant work. Id. at 1571.
Here, the ALJ ended the analysis at the fourth step, concluding that
Schuhardt could perform her past relevant work. The ALJ found that the treating
physician’s opinion was entitled to little weight and that Schuhardt’s subjective
evidence of pain was not credible. We discuss each finding in turn.
1. The Treating Physician’s Opinion
The ALJ considers many factors when weighing medical opinions, including
the examining relationship, the treatment relationship, the amount of objective
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support underlying the opinion, whether an opinion is consistent with the record,
and a doctor’s specialization. 20 C.F.R. § 404.1527(d)(1)-(6). The opinions of
examining physicians are generally given more weight than non-examining
physicians; treating physicians receive more weight than non-treating physicians;
and specialists on issues within their areas of expertise receive more weight than
non-specialists. See § 404.1527(d)(1), (2), (5). When the ALJ does not give
controlling weight to the treating physician’s opinion, the ALJ applies other factors
such as the length of treatment, the frequency of examination, the nature and extent
of the relationship, the opinion’s supportability, the opinion’s consistency with
other evidence, and the physician’s specialization. See § 404.1527(d)(2)-(6).
The treating physician’s opinion “must be given substantial or considerable
weight unless good cause is shown to the contrary.” Phillips, 357 F.3d at 1240
(citation and quotation marks omitted). “[G]ood cause exists when the: (1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Id. at 1241 (citation and quotation marks
omitted). When the ALJ articulates specific reasons for not giving the treating
physician’s opinion controlling weight, and those reasons are supported by
substantial evidence, there is no reversible error. See Moore v. Barnhart, 405 F.3d
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1208, 1212 (11th Cir. 2005) (per curiam).
Here, the treating physician found that Schuhardt could work only 6 to 7
hours a day, 5 days a week if she could sit or stand at will. The physician
reported in February 2004 that Schuhardt could not type or sit in one position for a
prolonged period of time. But the physician reported in October 2005 that
Schuhardt’s Permanent Impairment Rating was 4% of the whole person. He did
not restrict her from typing, and he did not report that she was completely disabled.
He further reported that Schuhardt’s Percocet medication provided 10 to 12 hours
of relief, which was greater than 6 to 7 hours. Because the treating physician’s
medical records contradicted his RFC evaluation, substantial evidence supported
the ALJ’s decision to give limited weight to the treating physician’s opinion.
2. Schuhardt’s Subjective Evidence of Pain
A “pain standard” applies when a claimant attempts to establish disability
through her own testimony of pain or other subjective symptoms. The pain
standard requires “(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.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.
2002) (per curiam). When evaluating a claimant’s subjective symptoms, the ALJ
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must consider the following factors, among others: (1) the claimant’s daily
activities; (2) the nature, location, onset, duration, frequency, radiation, and
intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4)
adverse side 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)(i)-(iv).
“If the ALJ decides not to credit a claimant’s testimony as to her pain, he
must articulate explicit and adequate reasons for doing so. Failure to articulate the
reasons for discrediting subjective pain testimony requires, as a matter of law, that
the testimony be accepted as true.” Foote v. Chater, 67 F.3d 1553, 1561-62 (11th
Cir. 1995) (per curiam). “A clearly articulated credibility finding with substantial
supporting evidence in the record will not be disturbed by a reviewing court.” Id.
at 1562.
Schuhardt told her physician in 2002 that physical therapy was working.
But in 2003 she said that she stopped going because it caused too much pain.
Nevertheless, she did home exercises including stretching and using a stationary
bike. She also confirmed that her Percocet medication provided 10 to 12 hours of
relief. Because Schuhardt made prior statements that were inconsistent with her
testimony that she was constantly in pain, there was substantial evidence for the
ALJ to find that her subjective pain testimony was not credible.
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III. C ONCLUSION
After thoroughly reviewing the record and the parties’ briefs, we find no
reversible error. We find that substantial evidence supports the ALJ’s finding that
Schuhardt was not disabled and could perform her past relevant work.
Accordingly, we affirm.
AFFIRMED.
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