                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                          AUGUST 15, 2005
                            No. 04-16254                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                D. C. Docket No. 04-00105-CV-3-RV-MD


RONALD C. TILLMAN,


                                                        Plaintiff-Appellant,

                                 versus

JO ANNE B. BARNHART,

                                                         Defendant-Appellee.


                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     _________________________


                            (August 15, 2005)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
       This is an appeal from the district court’s affirmance of the Social Security

Commissioner’s (“Commissioner”) denial of disability benefits under the Social

Security Act.

                                    I. BACKGROUND

       In 1993, claimant Ronald C. Tillman, age 44, applied for disability benefits,

alleging that he became disabled in 1992 as a result of a neck injury caused by

lifting a heavy load of laundry while incarcerated in a county jail. The prison

medical staff obtained an X-ray, magnetic resonance image (MRI), and CT of the

cervical spine, which showed a midline or central disc herniation at C6-7 and

moderate foraminal narrowing. As a result of the injury, Tillman experienced

sharp pain radiating from his neck and down his right arm, tingling in his fingers,

and loss of grip strength in his right hand. After being released from jail, Tillman

did not return to work because he claimed that he suffered continuous pain at the

level of twelve on a scale from one to ten. Though he did receive sporadic

treatment from Dr. J. Antonio Aldrete for pain management1 and Dr. M.L.

Woodruff for chiropractic treatment and most recently received treatment from Dr.

William Wilson, a family practitioner, he claims that his treatment has been

hindered by his lack of health insurance.2

       1
        Tillman received epidural blocks and trigger point injections from Dr. Aldrete, which
reduced his pain for up to a few weeks.
       2
        Dr. Richard Lucey, a family practitioner, and Dr. Charles Roth also examined Tillman,
but did not provide treatment.

                                               2
       This case has been reviewed three times by the Appeals Council (AC) and

twice by the district court and has been pending for over twelve years.3 In the most

recent hearing held by the Adminstrative Law Judge in 2002, Tillman again

testified that he had been disabled since 1992 and that he had not obtained any

surgical intervention since the last hearing. He admitted that Dr. Wilson was the

only physician treating him at the time, and that the pain remained at a twelve on a

scale of one to ten, but he explained that he took ibuprofen for the pain. He also

stopped receiving injections from Dr. Aldrete. The ALJ questioned a vocational

expert (VE) by posing a hypothetical in relation to Tillman’s testimony. The VE

admitted that it was “hard to say” how many jobs would be available given the

ALJ’s hypothetical. Additionally, the ALJ considered the deposition testimony of

Dr. Aldrete, who opined that Tillman was disabled and, thus, unable to work.

Despite that testimony, the ALJ again found that Tillman was not disabled and

gave little weight to Dr. Aldrete’s opinion. Tillman requested review from the

appeals council, which denied review, making it a final decision.



       3
         In 1993, Tillman’s application for disability and SSI benefits was denied initially and
upon reconsideration. Tillman requested a hearing before an Administrative Law Judge (ALJ).
Following his first hearing in 1995, the ALJ denied relief and Tillman requested review by the
AC, which remanded the case to the ALJ for further consideration. At the second hearing in
1997, Tillman stated that he remained in constant pain, had tried pain management therapy and
all other courses of treatment and now the only type of treatment left was surgery, but that he did
not have the money or insurance. Based on Tillman’s testimony and that of a vocational expert,
the ALJ denied benefits. Tillman again requested review by the AC, which denied review in
2000. Tillman filed a complaint in federal court, and in 2001, the district court remanded the
case to the AC.

                                                 3
      Tillman then filed his complaint in the district court. A magistrate judge

recommended affirming the Commissioner’s denial of benefits because the

decision was supported by the record. The magistrate judge’s report instructed that

the failure to file objections could limit review of factual findings. Tillman did not

file any objections. The district court adopted the recommendation and affirmed

the Commissioner’s decision. Tillman’s case now comes to us on appeal.

                                  II. DISCUSSION

A. Standard of Review

       In reviewing claims brought under the Social Security Act, we must affirm

the Commissioner’s decision if we determine that: (1) the decision reached is

supported by substantial evidence in the record; and (2) the correct legal standards

were applied. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002);

Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

B. Scope of Review

      The Commissioner argues that Tillman waived his right to appeal the

magistrate judge’s factual findings because Tillman failed to file objections to the

magistrate judge’s report and recommendation. In United States v. Roberts, 858

F.2d 698, 701 (11th Cir. 1988) we held that “[t]he magistrate’s finding on [a]

factual issue, adopted by the district court without objection by either party, is not

subject to attack on appeal ‘except on grounds of plain error or manifest



                                           4
injustice.’” In this case, the magistrate judge’s report concluded with the following

notice to the parties:

       Any objections to these proposed findings and recommendations must be
       filed within ten days after being served a copy hereof. A copy of any
       objections shall be served upon any other parties. Failure to object may
       limit the scope of appellate review of factual findings. See 28 U.S.C. § 636;
       United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

The magistrate judge’s report gave clear warning that objections would be waived

if not made within ten days after receipt of the report. Thus, because of the clear

warning, and because Tillman did not make any timely objections to the report, we

cannot now review the factual findings made below. See Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988) (finding that a “[f]ailure to object to the magistrate’s

factual findings after notice precludes a later attack on these findings.”); Fillingim

v. Boone, 835 F.2d 1389, 1402 (11th Cir. 1988) (finding waiver of factual

findings). Therefore, we will only review the magistrate judge’s legal conclusions.

C. The Weight Given to Dr. Aldrete’s Opinion

       In order to obtain disability benefits, the claimant “bears a heavy burden in

establishing the existence of a disability.” Hale v. Bowen, 831 F.2d 1007, 1011

(11th Cir. 1987). The Social Security regulations, under 20 C.F.R. § 404.1520, set

forth a five-step evaluation process to determine whether a person is disabled and,

thus, in need of benefits.4 The ALJ found that Tillman was not engaged in


       4
        At the first step, claimant will be denied benefits if it is determined that he is engaged in
“substantial gainful activity.” See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140,

                                                  5
substantial gainful activity, had a severe impairment and could not return to his

previous work as a truck driver or heavy equipment operator. The burden thus,

shifted to the Commissioner to show that there is other work available in the

economy that Tillman could perform. 20 C.F.R. § 404.1520(a)(4)(v). The ALJ

found that Tillman could perform a full range of light work. In so finding, the ALJ

concluded that Dr. Aldrete’s disability opinion was not entitled to great weight.

       Tillman argues on appeal that the ALJ gave improper weight to the opinion

of Dr. Aldrete. The opinion of a treating physician “must be given substantial or

considerable weight unless ‘good cause’ is shown to the contrary.” Phillips v.

Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (internal citations omitted).

Good 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.

       The ALJ gave limited weight to Dr. Aldrete’s opinion that Tillman was not



107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987). If the claimant is not engaged in such activity,
then the second inquiry is whether the claimant has a “medically severe” impairment or
combination of impairments. Id. at 140-41, 107 S.Ct. at 2291. If the impairment is determined
severe, the inquiry proceeds to the third step, whether the claimant will be found automatically
disabled and awarded benefits if his impairment or combination of impairments meets or equals
a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant could not prove that his
impairments met or equaled a listed impairment at the third step, the burden remains on him to
prove, in step four, that he is unable to perform his past relevant work. Id. at
404.1520(a)(4)(iv). If the claimant is able to show that he cannot return to his previous
employment, the fifth step entails an inquiry into whether he can perform other types of work.
Id. at 404.1520(a)(4)(v).

                                                6
able to carry out any meaningful work activities because it found that Dr. Aldrete’s

opinion was in conflict with other parts of his testimony and in conflict with

Tillman’s own testimony. We conclude that the ALJ properly took into account

Tillman’s own testimony, which revealed that Tillman did not take medications

every day, and when he did, he only took medications prescribed for moderate to

severe pain.5 In determining that there was good cause to reject Dr. Aldrete’s

opinion, the ALJ also properly considered Tillman’s testimony that he sought little

to no treatment for many years and that he was able to engage in daily activities

such as dressing and bathing himself. Phillip, 357 F.3d at 1240-41. Thus, we

conclude that substantial evidence supports the ALJ’s decision to afford limited

weight to Dr. Aldrete’s testimony.

D. The ALJ’s Hypothetical Proposed to the VE

      Tillman argues that the Commissioner failed to carry her burden of proof in

establishing Tillman’s ability to perform other work because the hypothetical

posed to the VE did not consider all of his limitations. Tillman further contends

that when the additional limitations were posed to the VE, the VE testified that it

would be “hard to say” how many jobs would be available given Tillman’s

sit/stand requirements and his grip limitations. Tillman did not raise this issue in

the district court, however, and therefore, he has abandoned it. See Crawford v.



      5
          This type of medication is inconsistent with a pain level of twelve.

                                                  7
Barnhart, 363 F.3d 1155, 1161 (11th Cir. 2004) (declining to address

appropriateness of hypothetical when claimant did not raise the issue before the

district court).

                                III. CONCLUSION

       Given the limited weight assigned to Dr. Aldrete’s opinion, and the

inconsistencies in Tillman’s testimony, substantial evidence supports the decision

to deny benefits. Furthermore, Tillman has waived his arguments on appeal

concerning the factual findings made by the magistrate judge. Thus, we AFFIRM

the district court’s affirmance of the Commissioner’s denial of disability benefits.




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