IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jerry R. Clemons, :

Plaintiff : Civil Action 2:10-cv-00892

v. : Judge Graham

Michael J. Astrue, Commissioner 

of Social Security, : Magistrate Judge Abel

Defendant

:

ORDER

This matter is before the Court on plaintiff Jerry R. Clemons' May 4, 2011

objections to Magistrate Judge Abel's April 21, 2011 Report and Recommendation. The

Court, having reviewed the record de novo, determines that there is substantial evidence

supporting the administrative law judge's determination that plaintiff Jerry R. Clemons

is not disabled within the meaning of the Act. The Court further finds for the reasons

set out below that plaintiff's objections to the Report and Recommendation are without

merit.

Plaintiff argues that the Magistrate Judge incorrectly characterized plaintiff's

back impairment. The Magistrate Judge noted that there was no evidence of nerve root

impairment, but he neglected to state that objective testing confirmed that Clemons

suffered from multilevel degenerative changes with disc bulges and osteophytes

resulting in narrowing of the neural foramina and that annular fissures were present at

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L2-3 and L4-5. Plaintiff argues that the Magistrate Judge failed to mention the presence

of the annular fissures, which are known to cause tremendous pain. 

In the Magistrate Judge's summary of the medical evidence, he stated:

A March 3, 2009 MRI of plaintiff’s lumbar spine revealed multilevel

degenerative changes of the lumbar spine with disc bulges and

osteophytes resulting in narrowing of the neural foramina. There were

annular fissures present at L2-3 and L4-5. The disc narrowing was most

severe at L5-S1. (R. 471-72.)

Doc. 20 at 8. The Magistrate Judge concluded that despite x-rays and MRIs result

consistent with an impairment that would cause plaintiff neck and back pain, "they do

not contain findings that would require a finding that the pain is disabling." Id. at 25.

Plaintiff's objection is overruled.

Plaintiff also argues that the Magistrate Judge erred when he concluded that it

was proper for the administrative law judge to consider Clemons' criminal history

when assessing his credibility. Clemons' incarcerations occurred twenty or more years

prior to Clemons' application for disability benefits. The administrative law judge and

the Magistrate Judge also faulted plaintiff for his limited work history. Clemons

testified that no one will hire him because of his record of incarceration and medical

conditions. He attempted to find work through job services, but he was never

interviewed. His past difficulty in finding a job is attributable to his medical conditions,

and he should not be penalized for this. 

As the Magistrate Judge concluded, it was not improper for the administrative

law judge to consider plaintiff's prior criminal history and his limited work history

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prior to his alleged onset date. The administrative law judge properly considered

plaintiff's allegations of pain and the medical evidence related to his condition and

concluded that his allegations were not supported by the clinical findings. The

administrative law judge relied on plaintiff's conservative treatment and his behavior

and demeanor at the hearing in addition to his prior incarcerations and limited work

history. As a result, the administrative law judge's credibility determination is

supported by substantial evidence. 

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B),

the Court ADOPTS the Report and Recommendation. Plaintiff's motion for summary

judgment is DENIED. Defendant's motion for summary judgment is GRANTED. The

decision of the Commissioner is AFFIRMED. The Clerk of Court is DIRECTED to

enter JUDGMENT for defendant. This action is hereby DISMISSED.

It is so ORDERED.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: June 3, 2011

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