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,

(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 Pursuant to that Rule, the Court has determined that this opinion should not be published. 1987), that the ALJ erred by failing to utilize the testimony of a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.

.

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.

2 Sullivan,

(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,

(5th Cir. 1990).

Finally Peebles argues the ALJ improperly discredited his

subjective complaints of pain. Peebles relies on Scharlow v.

Schweiker,

(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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