UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PAUL E. BUBB III, :

Plaintiff : CIVIL ACTION NO. 4:04-2349

v. : (MCCLURE, D.J.)

 (MANNION, M.J.)

JO ANNE B. BARNHART, :

Commissioner of Social 

Security, :

Defendant

:

REPORT AND RECOMMENDATION

The record in this action has been reviewed pursuant to 42 U.S.C. §§

405(g) and 1383(c)(3) to determine whether there is substantial evidence to

support the Commissioner’s decision denying the plaintiff’s claim for

Supplemental Security Income, (“SSI”), under Title XVI of the Social Security

Act, (“Act”). 42 U.S.C. §§ 1381-1383f.

Based upon a review of the record, it is recommended that the plaintiff’s

appeal from the decision of the Commissioner of Social Security, (Doc. No.

1), be DENIED.

I. Procedural Background

The plaintiff filed his application for SSI benefits on June 21, 2002, in

which he alleged disability since June 1, 1987, due to eye problems, anxiety,

autistic tendencies and depression. (TR. 55, 64).

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After his claim was denied (TR. 25-30), the plaintiff’s application

eventually came on for a hearing before an administrative law judge, (“ALJ”),

which took place on July 31, 2003. The plaintiff was represented at the

hearing by the same counsel who is representing him in this appeal. In

addition to the plaintiff’s testimony, the ALJ heard testimony from Helen Bubb,

plaintiff’s grandmother, and Paul Anderson, a vocational expert. (TR. 129-

193). 

On November 24, 2003, the ALJ issued a decision in which he found

that the plaintiff was not disabled. He found that the plaintiff had not engaged

in substantial gainful activity since the alleged onset date of disability, and that

he had no past relevant work (20 C.F.R. § 416.965). The ALJ further

determined that the plaintiff had an impairment, or a combination of

impairments, considered to be “severe” based on the requirements in the

regulations (20 C.F.R. § 416.920(b), but that those medically determinable

impairments did not meet or medically equal one of the listed impairments in

Appendix I, Subpart P, Regulation No. 4. The ALJ found the plaintiff’s

allegations regarding his limitations not totally credible. The ALJ stated that

he carefully considered all of the medical opinions in the record regarding the

severity of the plaintiff’s impairments (20 C.F.R. § 416.927). The ALJ found

the plaintiff retained the residual functional capacity to perform work at all

exertional levels, with certain restrictions. Because of the plaintiff’s mental

impairment, the ALJ found the plaintiff was only capable of performing simple,

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routine, low stress, unskilled work, with not more than occasional contact with

the public and co-workers. The ALJ stated that considering the types of work

that the plaintiff was functionally capable of performing, in combination with

the plaintiff’s age, education and work experience, he could be expected to

make a vocational adjustment to work that exists in significant numbers in the

regional, state and national economies. Examples of such jobs included work

as a laundry worker, packer, sorter, and as a machine tender. As a result, the

ALJ concluded that the plaintiff was not under a “disability,” as defined in the

Social Security Act, at any time through the date of the ALJ’s decision. (TR.

20-21).

The plaintiff filed a request to review the ALJ’s decision with the Appeals

Council, which was denied on August 27, 2004. (TR. 4-7). Thus, the ALJ’s

decision stood as the final decision of the Commissioner. Currently pending

before the Court is the plaintiff’s appeal of the decision of the Commissioner

of Social Security filed on October 26, 2004. (Doc. No. 1).

II. Disability Determination Process

A five step process is required to determine if an applicant is disabled

for purposes of social security disability insurance. The Commissioner must

sequentially determine: (1) whether the applicant is engaged in substantial

gainful activity; (2) whether the applicant has a severe impairment; (3)

whether the applicant's impairment meets or equals a listed impairment; (4)

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whether the applicant's impairment prevents the applicant from doing past

relevant work; and (5) whether the applicant's impairment prevents the

applicant from doing any other work. (20 CFR § 416.920 (2000)).

 The instant action was ultimately decided at the fifth step of the process

when the ALJ determined that the plaintiff retained the residual functional

capacity to perform a wide range of work with certain non-exertional

limitations, and that such work existed in significant numbers in the regional,

state and national economies. (TR. 19). 

III. Evidence of Record

The plaintiff was born on May 28, 1983, and was 20 years old at the

time of the ALJ’s decision. (TR. 14, 45, 64). The plaintiff alleges that he has

been disabled since June 1, 1987, because of autistic tendencies, anxiety,

and depression. (TR. 45, 55). The ALJ determined that he did not have any

past relevant work. (TR. 18). The plaintiff graduated from high school and has

at least one semester of college studies. (TR. 19, 61, 143).

The medical evidence of record establishes that the plaintiff had one

period of hospitalization in October 1987, when he was 4 years old, because

he exhibited bizarre behaviors and was dysfunctional in the home setting. (TR.

78-79). Following a mental evaluation, E. John Khunley, M.D., stated that the

plaintiff likely had a pervasive developmental disorder with manifestations of

mild mental retardation. (TR. 45, 78-79). At discharge, Dr. Khunley

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documented that the plaintiff did not require psychotropic medication, nor did

he recommend counseling. Dr. Khunley did suggest speech therapy and that

his parents receive counseling which focused on behavior management. (TR.

79). Dr. Khunley also recommended that the plaintiff be placed in a structured

academic setting. (TR. 78-79). There is no evidence of subsequent inpatient

treatments, or ongoing outpatient treatment while growing up. (TR. 58-59, 77-

86, 106-10, 112-19). 

On August 7, 2002, Michael Gillum, M.A., a licensed psychologist,

evaluated the plaintiff, and wrote a report which included a summary of the

plaintiff’s medical history. (TR. 84-85). Mr. Gillum stated that the plaintiff first

sought counseling services on December 14, 2001, and had been seen

periodically since then, to “de-escalate him around specific fears or concerns

in life.” The plaintiff “usually” showed fears of events that had “not actually

happened.” (TR. 84). For example, the plaintiff’s grandmother, Mrs. Bubb,

reported that the plaintiff had “been worried since 9-11 that he might have to

go into the service.” She also stated that the plaintiff had “autistic tendencies,”

and that “his eyesight isn’t the best.” (TR. 75). 

Mr. Gillum reported that the plaintiff consulted with him in December

2001, seeking treatment to reduce his anxiety and enhance his coping and

social skills in order to help him remain in high-school. (TR. 84). The plaintiff

was prescribed the anti-anxiety medication Celexa. (TR. 85, 148). 

Mr. Gillum also reported that the plaintiff presented with a “variety” of

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GAF 51-60 indicates moderate symptoms (e.g. flat affect and

circumstantial speech, occasional panic attacks) or moderate difficulty in

social, occupational, or school functioning (e.g. few friends, conflicts with

peers or co-workers). Diagnostic and Statistical Manual of Mental Disorders,

p. 32. (4th Ed. 1994). 

6

symptoms which were not easily classified. (TR. 84). Mr. Gillum reported that

the plaintiff was “often” unable to be around other people outside of his

immediate family. (TR. 85). Mr. Gillum’s diagnosis was generalized anxiety

disorder, social phobia, a learning disability, and a pervasive developmental

disorder. (TR. 84). Mr. Gillum opined that the plaintiff’s social phobia would

likely prevent him from obtaining “typical” employment, and he therefore

referred the plaintiff for vocational rehabilitation. 

Mr. Gillum further stated that even if the plaintiff worked in a position

where he was the only employee, he would be distracted by his internal

anxiety and fears, and that it would be difficult for him to learn new tasks or

concentrate on the task at-hand. (TR. 85). Mr. Gillum rated the plaintiff’s global

assessment of functioning (GAF) at 60.1

 (TR. 84). 

School records indicate that the plaintiff graduated from high-school in

June of 2002, and ranked 67 out of a class of 211, with a grade point average

of 89.89, which was equivalent to a “B”. He never exhibited behavioral

problems at school. (TR. 61, 86, 141, 143). He was a full-time student, who

took advanced placement courses beginning in the 10th grade. (TR. 86). His

academic workload in high-school included courses in English, U.S. and World

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History, Spanish, Geometry, Pre-Algebra, Chemistry, Biology, and Physics.

(TR. 142). The plaintiff began college in January 2003. He took courses in

English Composition, Philosophy, Religion, and Political Science. In his first

semester of college, the plaintiff earned a 2.9 grade point average. (TR. 143-

44). The plaintiff applied for SSI benefits shortly after graduation from high

school in June 2002. 

In April 2003, Richard Dowell Jr., Ph.D., a clinical neuropsychologist,

evaluated the plaintiff to assist in identifying potential factors which contributed

to his social delay problems, and to help develop an intervention program for

him. (TR. 106-110). Dr. Dowell noted that the plaintiff’s medical history is

“remarkable for satisfactory academic and cognitive development.” (TR. 106).

Dr. Dowell stated that the plaintiff appeared well-kept and in no apparent

distress. He was oriented in all spheres. His speech was normal. He exhibited

a “very well developed” vocabulary and knowledge base. His receptive

language skills were satisfactory and he gave appropriate and accurate

responses in social conversation. His social interaction was generally friendly

and positive, although he did not initiate interaction and made no extended

effort to engage his examiners. His mood was “very stable.” He tended to

display frustration when he received negative feedback or was in a novel

situation, but otherwise he exhibited satisfactory attention, concentration and

motivation to tasks. His responses tended to be organized with features of

forethought and planning. (TR. 108).

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Asperger’s Syndrome is a developmental disorder in which people have

difficulties understanding how to interact socially. People with Asperger's

syndrome have some traits of autism, especially weak social skills and a

preference for sameness and routine. However, unlike those with autism,

children with Asperger's syndrome usually start to talk around 2 years of age

(the age at which speech normally develops). They have normal to abovenormal intelligence. http://my.webmd.com/hw/mental_health/zq1009.asp

3

A GAF score of 61-70 indicates some mild symptoms (e.g. depressed

mood and mild insomnia) or some difficulty in social, occupational, or school

functioning (e.g. occasional truancy, or theft within the household), but

generally functioning pretty well, has some meaningful interpersonal

relationships. Diagnostic and Statistical Manual of Mental Disorders, p. 32. (4th

Ed. 1994).

8

Dr. Dowell administered the Wechsler Intelligence Scale for Children-III

(WISC-III). The results indicated verbal, performance and full scale IQ scores

of 103, 97 and 100, respectively. This placed him in the average range of

intellectual functioning. Overall, Dr. Dowell found that the plaintiff’s deficits

were in higher level executive functions. (TR. 108-09) (Doc. 11, pp. 6-7).

The plaintiff’s Millon Clinical Multiphasic Inventory-II profile was

characterized by anxiety and dysthymia/depression, but his Hamilton Anxiety

and Depression Scales results indicated he was only in “mild” distress. (TR.

109). Dr. Dowell diagnosed Asperger’s Syndrome2

 and a schizoid personality

disorder. Dr. Dowell concluded that the plaintiff generally functioned “well” and

assessed his GAF score at 703

 (TR. 110). Dr. Dowell had no specific

recommendations for additional treatment. (TR. 110).

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Treatment records from Andrew Hausmann, M.D., the plaintiff’s general

practitioner, reveal that the plaintiff’s emotional condition was “stable.” He was

in no emotional distress. (TR. 114,116,139). On November 15, 2002, the

plaintiff was examined by Dr. Hausmann. Dr. Hausmann reported that the

plaintiff had normal hearing, his eyesight was 20/50 in the left eye and 20/40

in the right eye, his “general state of health” was “good” except that he was

overweight, had significant acne on his face, back and shoulders, and had an

ingrown toenail. The plaintiff reported to Dr. Hausmann that he had been

diagnosed with a depression disorder since November 5, 2002, and that he

was prescribed Celexa. (TR. 112-114). 

On August 23, 2002, James Cunningham, Ed.D., a state agency

consultant, completed a Residual Functional Capacity (RFC) assessment

based on the plaintiff’s medical records. (TR. 87-104). Dr. Cunningham opined

that the plaintiff had moderate restrictions in his ability to complete a normal

work week without interruptions from his psychological symptoms. (TR. 89).

The plaintiff also had mild limitations in his activities of daily living, and in his

ability to maintain persistence, concentration and pace. (TR. 102). He also had

moderate difficulties in maintaining social functioning. (TR. 102). 

At the hearing before the ALJ, the plaintiff testified that he lives with his

grandparents, his aunt and his two cousins, ages seven and eight. He stated

that both of his cousins “have a lot of problems” and “several mental

conditions.” (TR. 137).

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With regards to his physical health, the plaintiff complained of pain in his

left knee, however, he has not been prescribed any medication, diagnostic

testing, or therapy for knee pain. Further, there is no mention in the medical

records that the plaintiff ever complained of knee pain. (TR. 138-139). 

The plaintiff testified he has occasional migraine headaches for which he

was prescribed Axert, on an as-needed basis. (TR. 140). The plaintiff testified

that he is six feet one inches tall and weighs two hundred and ninety four

pounds. He does not follow any special diet. (TR. 140-141).

The plaintiff stated that he has never attempted to work, but had once

applied for a job, unfortunately, “they never called [him] back.” (TR. 145).

The plaintiff testified that he was attending college and acknowledged

that once he finished college, he would have to start working. (TR. 146). The

plaintiff stated that he felt he was not ready to hold down a job because he has

difficulty if he tries to do more than one thing at a time. (TR. 146).

The plaintiff reported that he had registered for his next semester in

college, and he selected several classes including, Spanish, introduction to

criminal justice, history of western civilization, and chemistry. (TR. 148). 

The plaintiff testified that his hobbies included watching television,

playing on his computer, and reading. (TR. 148). He spends up to “hours” on

his computer surfing the internet. (TR. 152-153). He watches television

between two and seven hours a day. (TR. 154). He reads three to five hours

a day. His favorite types of novels are action, science fiction, and fantasy. (TR.

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155). He “can’t stand sports” and tends to “avoid the news” because it is just

“one disaster after another.” (TR. 154, 166-167).

The plaintiff sees his mother on Sundays after church. (TR. 158, 160).

He stated that he has a good relationship with his grandmother and aunt but

not with his grandfather. (TR. 162).

The plaintiff stated that at the mall he experiences “mild anxiety around

a bunch of people in a small place.” (TR. 164). He stated that he worries about

“events that might happen” and has a tendency to view things “out of

proportion.” (TR. 166). The plaintiff also reported some difficulty falling sleep

at night. (TR. 170). Some days he does not want to get out of bed because he

feels “completely useless.” (TR. 170). At times he has difficulties remembering

and following verbal instructions. (TR. 170-171). He angers easily and often

raises his voice. (TR. 171).

His household chores consist of taking out the garbage, cleaning the

yard, and mowing the lawn. (TR. 149). He vacuums and cleans on occasion.

(TR. 151). 

Mrs. Bubb, the plaintiff’s grandmother, testified that her grandson gets

along well with other family members but prefers to stay in his bedroom. (TR.

176). He accompanies her on errands but insists that Mrs. Bubb follow a preset schedule. He gets upset when she deviates from what she has planned.

(TR. 177). 

A vocational expert (“VE”) also testified at the hearing. The ALJ asked

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the VE whether work was available for a hypothetical individual who was

plaintiff’s age, had his education, could do heavy work, but was restricted to

unskilled, simple, routine, low-stress work employment with no more than

occasional contact with co-workers and the public. The VE advised that such

an individual could perform a significant number of such jobs, such as work as

a laundry worker (82,000 jobs), packer (986,000 jobs), sorter (161,000 jobs),

and machine tenderer (205,000 jobs). (TR. 188). The VE explained that these

jobs would be performed in a “structured” environment and could be performed

by someone who did not work or interact well with others, or who did not

respond well to change. (TR. 190).

IV. Discussion

The plaintiff argues that the Commissioner committed two errors at the

administrative level. Specifically, the plaintiff avers that the ALJ erred in

concluding that the plaintiff did not meet or equal a listed impairment, and

erred in concluding that the plaintiff has the residual functional capacity to

perform substantial gainful work activities. He claims that the ALJ’s credibility

determinations are not supported by substantial evidence, and he maintains

that a more balanced review of the record must compel the conclusion that

plaintiff was disabled from any kind of gainful activity as of June 1, 1987, the

alleged onset date of disability. He requests that this court reverse or remand

the ALJ’s decision. (Doc. No. 8). 

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 The Commissioner responds that the sole issue is whether substantial

evidence supports the ALJ’s finding that, despite his mental impairments, the

plaintiff retained the residual functional capacity to perform a wide range of

work, with certain non-exertional restrictions.

After carefully reviewing the record, it appears that the ALJ’s findings are

supported by substantial evidence of record. As a result, the decision should

not be disturbed on appeal.

The plaintiff argues that he meets impairment listings 12.06, 12.08 and

12.10. The plaintiff states:

Plaintiff was found to suffer from anxiety-related disorder

(listing 12.06), a personality disorder (12.08) and Asperger’s

syndrome (12.10)...

...In evaluating the impact of a mental health impairment...the

ALJ must consider the claimant’s ability to function independently,

appropriately, effectively and on a sustained basis. In making this

assessment, the ALJ is to look at the quality and level of overall

functioning, the amount of supervision and/or assistance required,

and the settings in which the claimant is able to function. 20 C.F.R.

§ 416.920a(c)(2). 

(Doc. No. 10, pp. 12-13). Notably, otherwise, the plaintiff does not recite the

precise elements necessary to establish disability under listings 12.06, 12.08,

and 12.10. 

Listing 12.06 states:

12.06 Anxiety Related Disorders: In these disorders anxiety

is either the predominant disturbance or it is experienced if the

individual attempts to master symptoms: for example, confronting

the dreaded object or situation in a phobic disorder or resisting the

obsessions or compulsions in obsessive compulsive disorders.

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The required level of severity for these disorders is met when

the requirements in both A and B are satisfied, or when the

requirements in both A and C are satisfied.

A. Medically documented findings of at least one of the

following signs or symptoms:

1. Generalized persistent anxiety accompanied by three

out of four of the following signs or symptoms:

a. Motor tension; or

b. Autonomic hyperactivity; or

c. Apprehensive expectation; or

d. Vigilance and scanning; or

2. A persistent irrational fear of a specific object, activity,

or situation which results in a compelling desire to

avoid the dreaded object, activity, or situation; or

3. Recurrent severe panic attacks manifested by a

sudden unpredictable onset of intense

apprehension, fear, terror and sense of

impending doom occurring on the average of at

least once a week; or

4. Recurrent obsessions or compulsions which are

a source of marked distress; or

5. Recurrent and intrusive recollections of a

traumatic experience, which are a source of

marked distress;

AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily

living; or

2. Marked difficulties in maintaining social

functioning; or

3. Marked difficulties in maintaining

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concentration, persistence, or pace; or

4. Repeated episodes of decompensation,

each of extended duration.

OR

C. Resulting in complete inability to function

independently outside the area of one’s home.

Listing 12.08 applies to Personality Disorders and states:

....A personality disorder exists when personality traits

are inflexible and maladaptive and cause either

significant impairment in social or occupational

functioning or subjective distress. Characteristic

features are typical of the individual’s long-term

functioning and are not limited to discrete episodes of

illness.

The required level of severity for these disorders is

met when the requirements in both A and B are

satisfied.

A. Deeply ingrained, maladaptive patterns of

behavior associated with one of the following:

1. Seclusiveness or autistic thinking; or

2. P a t h o l o g i c a l l y i n a p p r o p r i a t e

suspiciousness or hostility; or

3. Oddities of thought, perception, speech

and behavior; or

4. Persistent disturbances of mood or affect;

or

5. Pathological dependence, passivity, or

aggressivity; or

6. Intense and unstable interpersonal

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relationships and impulsive and damaging

behavior;

AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration 

 persistence, or pace; or

4. Repeated episodes of decompensation, each of 

extended duration.

Listing 12.10 pertains to autistic and other pervasive development disorders

and states:

...Autistic disorder and other pervasive developmental

disorders: Characterized by qualitative deficits in the development

of reciprocal social interaction, in the development of verbal and

nonverbal communication skills, and in imaginative activity. Often,

there is a markedly restricted repertoire of activities and interests,

which frequently are stereotyped and repetitive.

The required level of severity for these disorders is met when

the requirements in both A and B are satisfied.

B. Medically documented findings of the following:

1. For autistic disorder, all of the following:

a. Qualitative deficits in reciprocal social

interaction; and

b. Qualitative deficits in verbal and nonverbal

communication and in imaginative activity; and

c. Markedly restricted repertoire of activities or interests;

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OR

2. For other pervasive developmental disorders, both of the

following:

a. Qualitative deficits in reciprocal social interaction; and

b. Qualitative deficits in verbal and nonverbal 

communication and in imaginative activity;

AND

B. Resulting in at least two of the following: 

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning;

or

3. Marked difficulties in maintaining concentration, 

persistence, or pace; or

4. Repeated episodes of decompensation, 

each of extended duration. 

(Appendix I, Subpart P, Regulation No. 4.)

The plaintiff maintains that “the ALJ found that Plaintiff satisfied his

burden of proof for Part A of each listing.” (Doc. No. 10, p. 13). The plaintiff

therefore only addressed the Part B criteria of the listings, which are essentially

the same for the three listings, and are directed to the question of whether the

particular mental disorder has a marked effect on the plaintiff’s abilities to

perform activities of daily living.

Upon careful review of the ALJ’s decision, we believe that the plaintiff is

mistaken in his conclusion that the ALJ found that the plaintiff satisfied his

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burden of proof for Part A of each listing. The ALJ stated:

The claimant’s attorney contends the claimant meets the

criteria of Listing 12.06 and 12.08. However, the claimant’s mental

impairments are not accompanied by sufficient functional

limitations so as to meet the “B” criteria of Sections 12.06, 12.08

or 12.10...

(TR. 16)(emphasis added). While it is true that the ALJ did acknowledge that

the plaintiff “suffers from an anxiety disorder, personality disorder and a

pervasive developmental disorder,” he did not state, at any time, that the

plaintiff had “satisfied his burden of proof for Part A of each listing.” 

The ALJ did, however, concentrate his discussion of the claim on the

Part B criteria, which as noted above, requires that the evidence of record

establish that the mental disorder results in marked restriction of either the

activities of daily living; in maintaining social functioning; in maintaining

concentration, persistence, or pace, or in repeated episodes of

decompensation, each of extended duration. The ALJ noted that the record

simply could not support a finding that the plaintiff’s mental impairments

resulted in marked restrictions in any of these areas.

The plaintiff argues that the testimony of both the plaintiff and his

grandmother establishes that his mental impairments do, in fact, result in

marked restrictions in these areas of daily living. The plaintiff asserts that “[h]e

clearly depends on others to ensure that his needs are met, even though he

has the knowledge and physical ability to attend to those needs himself.” (Doc.

No. 10, p. 15). 

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The problem with the plaintiff’s argument is that the ALJ did not find the

plaintiff’s testimony regarding the severity of his limitations to be fully credible.

It is undisputed that the plaintiff has mental impairments, however, his

perceived severe limitations are subjective. Even though the ALJ must give

serious consideration to a claimant’s subjective complaints, he may discredit

those subjective complaints where they are not consistent with other evidence

of record. Jesurum v. Secretary United States Department of Health & Human

Services, 48 F. 3d 114 ( 3d Cir. 1995); Mason v. Shalala, 994 F.2d 1058, 1067

(3d Cir. 1993). Credibility determinations as to a claimant’s testimony regarding

his limitations are for the Administrative Law Judge to make. VanHorn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). “Because he had the opportunity

to observe the demeanor and to determine the credibility of the claimant, the

Administrative Law Judge’s observations concerning these questions are to be

given great weight.” Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984).

The Social Security Regulations provide a framework under which a

claimant’s subjective complaints are to be considered. (20 C.F.R. § 404.1529).

First, symptoms will only be considered to affect a claimant’s ability to perform

work activities if such symptoms result from an underlying physical or mental

impairment that has been demonstrated to exist by medical signs or laboratory

findings. (20 C.F.R. § 404.1529(b)). Once a medically determinable impairment

which results in such symptoms is found to exist, the Commissioner must

evaluate the intensity and persistence of such symptoms to determine their

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impact on the claimant’s ability to work. 20 C.F.R. §404.1529(b). In so doing,

the medical evidence of record is considered along with the claimant’s

statements. 20 C.F.R. § 404.1529(b). Social Security Ruling 96-7p gives the

following instructions in evaluating the credibility of the claimant’s statements

regarding his or her symptoms:

[I]n general, the extent to which an individual's

statements about symptoms can be relied upon as

probative evidence in determining whether the

individual is disabled depends on the credibility of the

statements. In basic terms, the credibility of an

individual's statements about pain or other symptoms

and their functional effects is the degree to which the

statements can be believed and accepted as true.

When evaluating the credibility of an individual's

statements, the adjudicator must consider the entire

case record and give specific reasons for the weight

given to the individual's statements.

SSR 96-7p.

Applying these standards, the ALJ made specific findings as to the

intensity and persistence of the plaintiff’s symptoms, based on the record as

a whole. He gave precise reasons for the weight he gave to the plaintiff’s

testimony. Those reasons appear to be valid. 

The ALJ stated:

The undersigned notes that the claimant is not socially

engaging. He waits to be approached by others, and does not

initiate friendships or initiate contact with the friends he does have.

However, he does socialize with a few friends, one in particular.

He goes to the movie theatre and to the store with his family

members. He attends religious services, but feels more

comfortable sitting in the back of the church. The claimant also

uses the computer a lot playing games, sending e-mail, and

watching DVD movies. He spends 3-5 hours a day reading

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materials such as action, adventure, science fiction and fantasy.

Accordingly, the undersigned finds the claimant retains the

residual functional capacity to perform work at all exertional levels.

However, because of the claimant’s mental impairment, the

undersigned finds the claimant is capable of performing simple,

routine, low stress, unskilled work, with not more than occasional

contact with the public and co-workers.” (TR. 18).

The ALJ also noted that Dr. Gillum stated that the plaintiff has improved

with outpatient psychotherapy and psychomedication, and is able to function

much better at times. The ALJ noted further that Dr. Dowell reported that the

plaintiff’s social interactions were generally friendly and positive; and that he

demonstrated satisfactory attention and concentration and motivation to tasks.

(TR. 15, 16). 

We note that the plaintiff himself testified that he expected to work after

graduation from college. He stated, “I can’t very well stay unemployed after

that.” Furthermore, the plaintiff stated that the reason he was not presently

employed was because he was focusing on his education, and that “handling

two important things at once, it’s never one of my better qualities...” (TR. 146).

Finally, no treating or examining physician rendered an opinion that the

plaintiff is completely disabled from any or all employment as a result of his

mental impairments. In fact, although Dr. Gillum did render an opinion on

August 7, 2002, that gainful employment “at this time would not appear to be

an option” for the plaintiff, he also referred the plaintiff for vocational

rehabilitation services, and stated that employment was a possibility, “maybe

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in the future if outpatient psychotherapy and medication regimens become

more intensive.” (TR. 85).

To receive disability benefits a claimant must demonstrate that he is

unable “to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous period

of not less than 12 months.” (42 U.S.C. A. 423 (d)(1)(A)(1991)). The ALJ

concluded that although the plaintiff does suffer from a combination of mental

impairments, he has only recently begun appropriate treatment and that “there

is no indication [in the record] that symptoms will not be ameliorated over

time.” (TR. 18). The record supports this conclusion. As a result, the plaintiff

has not meet his burden.

V. Recommendation.

On the basis of the foregoing, IT IS HEREBY RECOMMENDED THAT

the plaintiff’s appeal from the decision of the Commissioner of Social Security,

(Doc. No. 1), be DENIED.

S/ Malachy E. Mannion 

MALACHY E. MANNION

United States Magistrate Judge

Dated: December 2, 2005

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