Richard Stitely v. Carolyn Colvin ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2302
RICHARD E. STITELY,
Plaintiff – Appellant,
v.
CAROLYN W. COLVIN,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Stephanie A. Gallagher, Magistrate
Judge. (1:14-cv-00144-SAG)
Submitted: July 17, 2015 Decided: August 4, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christine P. Benagh, COLLIER-BENAGH LAW, P.L.L.C., Washington,
D.C.; Stephen F. Shea, Silver Spring, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Benjamin B. Prevas,
Special Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard E. Stitely appeals from the magistrate judge’s
order upholding the Administrative Law Judge’s (“ALJ”) denial of
disability insurance benefits. On appeal, Stitely raises
numerous claims. We have considered the briefs, the magistrate
judge’s opinion, and the administrative record, and we find no
reversible error. Accordingly, we affirm substantially for the
reasons stated by the magistrate judge. * Stitely v. Colvin, No.
1:14-cv-00144-SAG (D. Md. Nov. 10, 2014).
In addition, while Stitely avers that his chronic
obstructive pulmonary disease (“COPD”) was more severe than the
ALJ accounted for, he presented no evidence to support the
conclusion that his COPD would prevent him from working a
full-time job. His breathing difficulty and occasional
emergency treatments did not undermine the ALJ’s conclusions
that Stitely’s COPD was improved with treatment and that his
condition did not prevent full-time work. Finally, while the
alleged repetitive black-outs would be a serious hindrance to
full-time work, the ALJ appropriately rejected Stitely’s
testimony as it had absolutely no support in the medical record,
aside from a self-reported symptom at one medical examination.
* The parties consented to the jurisdiction of the
magistrate judge.
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Based on the foregoing, we conclude that the ALJ’s findings were
sufficient in this regard to permit judicial review and were
supported by substantial evidence.
Next, Stitely contends that the ALJ’s credibility
determination was erroneous because the ALJ improperly found
that Stitely’s complaints were inconsistent with his daily
activities. In his written submissions and his testimony before
the ALJ, Stitely reported that he could attend to personal care,
count change, watch television, wash dishes, play video and
board games, prepare simple meals, and shop. In addition,
although he stated at the hearing that he could no longer fish
or ride a motorcycle, he reported performing these activities
after his alleged onset date. We find that the ALJ’s conclusion
that these activities were inconsistent with his complaints of
constant pain and inability to breathe was well within the ALJ’s
discretion.
Next, Stitely contends that the clinical evidence did not
conflict with his subjective complaints, contrary to the ALJ’s
conclusions. Specifically, Stitely claims, without citation,
that COPD can only be diagnosed by spirometry, not imaging.
Further, Stitely asserts that the ALJ omitted evidence adverse
to his decision and failed to consider the consistency of
Stitely’s complaints and the frequency of his pain.
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However, the ALJ cited additional clinical evidence aside
from the unremarkable imaging studies. The ALJ also discussed
the pulmonary function testing, a cardiac stress test showing
average exercise capacity, pulse oxygen levels ranging from 89
to 98, and effective treatment with an inhaler and
bronchodilation. In addition, the ALJ discussed much of the
evidence that Stitely complains was overlooked. The relatively
mild conditions indicated by the clinical evidence did, indeed,
conflict with Stitely’s allegations of totally disabling
symptoms. Further, Stitely points to no “overlooked” evidence,
aside from his own allegations, which the court found not
entirely credible, that would substantially aid his case.
Stitely further contends that the ALJ failed to weigh his
complaints that he could not sustain activities and failed to
order a consultative examination of his hands and arms.
Regarding sustaining activities, the ALJ properly relied upon
the consulting doctors’ conclusions regarding the length of time
Stitely would be able to stand and sit and took into account the
time Stitely would need to be off-task. As for Stitely’s hands
and arms, given Stitely’s reported activities and the reasons he
gave for his limitations, the ALJ did not err in failing to
order further testing of his hand functioning.
Next, Stitely contends that the ALJ erred by rejecting
Stitely’s subjective complaints for lack of objective evidence.
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It is true that “once a medically determinable impairment which
could reasonably be expected to produce the pain alleged by the
claimant is shown by objective evidence, the claimant’s
allegations as to the severity and persistence of [his] pain may
not be dismissed merely because objective evidence of the pain
itself (as opposed to the existence of an impairment that could
produce the pain alleged), . . . are not present to corroborate
the existence of pain.” Craig v. Chater, 76 F.3d 585, 595 (4th
Cir. 1996). Yet while “a claimant’s allegations about [his]
pain may not be discredited solely because they are not
substantiated by objective evidence of the pain itself or its
severity, they need not be accepted to the extent they are
inconsistent with the available evidence, including objective
evidence of the underlying impairment, and the extent to which
that impairment can reasonably be expected to cause the pain the
claimant alleges [he] suffers.” Id.Here, the ALJ did not improperly require objective
corroboration. Instead, the ALJ properly noted that Stitely’s
impairments were treated with limited, conservative treatment
that improved some of Stitely’s conditions. See Smith v.
Colvin, 756 F.3d 621, 626 (8th Cir. 2014) (noting with approval
that the ALJ’s credibility determination was based, in part, on
finding that the plaintiff’s treatment was “essentially routine
and/or conservative in nature”) (internal quotation marks
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omitted); Wall v. Astrue, 561 F.3d 1048, 1068–69 (10th Cir.
2009) (holding that a history of conservative medical treatment
undermines allegations of disabling symptoms). Likewise, the
fact that treatment records did not verify or suggest the
presence of daily coughing-related blackouts was highly relevant
to a credibility finding. See Tommasetti v. Astrue, 533 F.3d
1035, 1039-40 (9th Cir. 2008) (permitting inference that
condition was not “as all-disabling” as reported when claimant
did not seek aggressive treatment and alternatives).
Finally, Stitely contends that the ALJ improperly relied on
his failure to seek treatment when the record showed that he was
unable to afford treatment. However, Stitely’s allegations are
not supported by the record. Instead, the ALJ appropriately
noted the complaints Stitely did or did not make when he sought
medical attention, and the ALJ properly considered the
conservative treatment Stitely received over a prolonged period
of many doctor’s appointments.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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