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Ansley v. Commissioner of Social Security

March 17, 2010

JAMES ANSLEY, III, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Robert Holmes Bell

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION

This matter is before the Court on a request by Plaintiff James Ansley, III, for judicial review of a decision by the Commissioner of Social Security to deny his claim for disability benefits. On September 2, 2009, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending that this Court affirm the decision of the Commissioner. (Dkt. No. 16.) Plaintiff filed objections to the R&R on September 11, 2009. (Dkt. No. 17.)

This Court makes a de novo determination of issues in an R&R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. Id.

The administrative law judge ("ALJ") in Plaintiff's case determined that Plaintiff had a combination of impairments, including irritable bowel syndrome, hepatitis C, and an affective disorder, that prevented him from continuing in his past relevant work; however, Plaintiff retained residual capacity sufficient for other work. (See R&R 3-4.) The ALJ determined that Plaintiff's reports as to the intensity, persistence, and limiting effects of his symptoms are not entirely credible. (See id.) The R&R recommends upholding the findings of the ALJ because they are supported by substantial evidence in the record. (R&R 11.)

The ALJ gave the following reasons as the basis for its credibility finding, to which Plaintiff objects: (1) Plaintiff has not received a physician-imposed limitation on functioning; (2) Plaintiff is well-nourished and well-developed, though thin; (3) the evidence does not establish a suitable lack of concentration, memory, adaptive, cognitive, or personal skills; (4) Plaintiff has not been psychiatrically hospitalized; and, (5) Plaintiff is able to perform various activities, including meal preparation, laundry, dishes, mopping the floor, cleaning, shopping, and attending church. (Admin. R. at 23, ALJ op. at 8.)

1. Plaintiff has not received a physician-imposed limitation on functioning. The record does not dispute this finding. Plaintiff refers to the opinion of Dr. Jerome, who indicated that Plaintiff met the requirements for two listed impairments because of marked restrictions in Plaintiff's functioning. (Admin. R. at 256.) However, there is no indication that any physician recommended limits on Plaintiff's functioning. Moreover, as the R&R notes, the ALJ was entitled to discount the opinion of Dr. Jerome. (R&R 8, 13-16.) On de novo review, the Court cannot discern any error in the R&R.

2. Claimant is well-nourished and well-developed, though thin.

Plaintiff objects to this finding because he testified that he is 5'4" and weighs 116 pounds. (Admin. R. at 535.) However, Plaintiff's height and weight, at best, confirm that he is thin. They do not, in themselves, contradict the ALJ's finding that he is well-nourished and well-developed.

3. The evidence does not establish a lack of concentration, etc.

In his objections, Plaintiff refers to the contrary opinion of Dr. Jerome that is noted by the ALJ; however, the ALJ could properly discount this opinion for the reasons stated in the R&R. (R&R 13-16.)

4. Plaintiff has not been psychiatrically hospitalized.

Plaintiff argues that hospitalization is not required to establish a psychological condition; however, the lack of hospitalization is only one factor supporting the ALJ's determination on the whole record; it was not necessarily the determinative factor. The ALJ also noted the consistent observations of clinicians that Plaintiff presented as "alert, fully oriented, friendly, appropriate, and without perceptual disturbances or obvious cognitive deficits," and that there was no evidence of regular mental health treatment. (Admin. R. at 23, ALJ op. at 8.)

5. Plaintiff is able to perform various activities, including meal preparation, etc. Plaintiff contends that information regarding his activities came from his original application for benefits but that his later testimony clarified that he engages in some of these activities once or twice a week, he does not go to movies, does not out to eat or attend church, and his activity level depends on whether he is feeling sick.*fn1 (Admin. R. at 556-59.) However, the ultimate issue before the ALJ was not whether Plaintiff in fact engaged in certain activities on a regular basis, but whether his symptoms limited his functioning. The ALJ was entitled to cite the representations in Plaintiff's application as part of her determination of Plaintiff's credibility in view of the whole record. The representations of Plaintiff and his mother in his application, in which they stated that he engaged in various activities on a daily or weekly basis without difficulty, tends to contradict Plaintiff's testimony that he experienced debilitating flare-ups of his condition several times per week lasting for three days at a time.

Plaintiff also contends that the ALJ's findings regarding a lack of credibility as to the intensity of Plaintiff's symptomatology is inconsistent with the ALJ's finding that Plaintiff's impairments could reasonably be expected to produce Plaintiff's symptoms. However, the issue of whether an impairment exists is separate from the issue of the severity of the symptoms resulting from that impairment. The ALJ could conservatively conclude that an impairment existed and also conclude that Plaintiff's claims as to the limiting effect of his symptoms were not entirely credible where, inter alia, Plaintiff presented to physicians as well-nourished, the results of medical testing was "unremarkable" and failed to uncover any "profound pathology" or "meaningful anomaly" that would hamper Plaintiff's functioning, where Plaintiff's "clinical presentations were consistently benign," where Plaintiff had ...


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