Peebles v. Chater ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60400
Summary Calendar
JERRY HAYES PEEBLES,
Plaintiff-Appellant,
VERSUS
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Mississippi
(4:94-CV-110LN)
December 28, 1995
Before REAVLEY, GARWOOD, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jerry Peebles appeals from the district court's order
affirming the Commissioner's denial of his application for social
security disability and supplemental security income benefits. He
argues that the Secretary's finding that he was not disabled
violated the rule in Lovelace v. Bowen, 813 F.2d 55 (5th Cir.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1987), that the ALJ erred by failing to utilize the testimony of a
vocational expert, and that it was error for the ALJ to reject his
subjective complaints of pain.
In Lovelace, this court held that if a claimant has a
disabling condition for which effective treatment exists but he
cannot afford the treatment, he cannot be denied disability
benefits on the basis that his disability is treatable. Id. at 59.
Peebles argues that he does not have money for medical care or
treatment but would take pain medication if he could afford it.
However, the administrative law judge ("ALJ") denied benefits
because he found Peebles was not disabled by his condition, whether
treated or untreated. Therefore, the rule in Lovelace is
inapplicable.
Peebles next argues the ALJ should have consulted a vocational
expert to testify in support of his determination that Peebles
could perform jobs existing in the national economy instead of
relying on the Medical-Vocational Guidelines. Because Peebles
alleged a non-exertional impairment of pain, he claims the ALJ was
not permitted to rely on the guidelines. However, the record
reflects the ALJ gave due consideration to Peebles' testimony, his
prior statements, and evaluations of former physicians in
determining that Peebles' claims of unremitting severe pain were
inconsistent with the record evidence. Although the ALJ agreed
that Peebles was in pain, the conclusion that his pain was not so
intense and persistent as to be disabling was not an abuse of
discretion under the substantial evidence standard. See Carrier v.
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Sullivan, 944 F.2d 243, 247 (5th Cir. 1991). Because there was
substantial evidence that Peebles' pain was not so severe to
constitute a disabling condition, the ALJ was entitled to rely
solely on the guidelines and was not required to call a vocational
expert. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).
Finally Peebles argues the ALJ improperly discredited his
subjective complaints of pain. Peebles relies on Scharlow v.
Schweiker, 655 F.2d 649 (5th Cir. 1981), for the proposition that
all he must do in order to establish his case is to tie his
disability, namely pain, as alleged by him to the medical records,
and asserts there is no dispute he has fulfilled this requirement.
However, Scharlow actually provides that once the claimant has tied
his subjective complaints of pain to some medically determinable
impairment, the ALJ may not ignore those complaints but must
consider them in his determination of disability. Id. at 648.
Here the ALJ did not ignore Peebles complaints of pain but acted
within his discretion by resolving conflicting and testimonial
evidence. Ibid.
We have reviewed the record and the report and recommendation
of the magistrate judge, adopted by the district court, and find no
reversible error. Accordingly, the district court's judgment is
AFFIRMED.
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