[DO NOT PUBLISH]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., 

, 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.” 

marks omitted). “Even if the evidence

preponderates against the Commissioner’s findings, we must affirm if the decision

reached is supported by substantial evidence.” 

(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



                                           

, 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, 

, 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. 

Next, he must show that he has a

severe impairment. 

He then must attempt to show that the

impairment meets or equals the criteria contained in one of the Listings of

Impairments. 

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. 

(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. 

Phillips v.

Barnhart, 

, 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)



                                          3
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, 

, 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, 

, 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, 

, 839 (11th Cir. 1992) (per curiam). The ALJ

must explicitly and adequately articulate his reasons if he discredits subjective

testimony. 

articulated credibility finding with substantial

supporting evidence in the record will not be disturbed by a reviewing court.”

; see also Moore v. Barnhart, 

, 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.” 

(internal quotation marks



                                            4
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



                                           5
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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