FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11772

Non-Argument Calendar

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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.

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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. STANDARD OF REVIEW

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. DISCUSSION

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 workrelated 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. CONCLUSION

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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