Flemming v. Comm Social Security

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-30-2004
Flemming v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3286
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"Flemming v. Comm Social Security" (2004). 2004 Decisions. Paper 571.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3286
DONALD FLEMMING,
Appellant
v.
*JO ANNE B. BARNHART,
COMM ISSIONER OF SOCIAL SECURITY
*(Pursuant to Rule 43(c), F.R.A.P.)
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Dist. Court No. 02-cv-06704)
District Judge: Hon. Eduardo C. Robreno
Submitted Under Third Circuit LAR 34.1(a)
June 24, 2003
Before: NYGAARD, MCKEE and CHERTOFF, Circuit Judges
(Filed: June 30, 2004)
OPINION
CHERTOFF, Circuit Judge.
1
Appellant Donald Flemming appeals from the District Court’s judgment affirming
the Administrative Law Judge’s (“ALJ”) determination that Flemming did not meet the
requirements to receive retirement insurance benefits under Section 202(a) of the Social
Security Act, 42 U.S.C. § 402(a). We apply plenary review to the District Court’s grant of
summary judgment. See, e.g., Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). Like
the District Court, we review the ALJ’s decision to determine whether it was based on
substantial evidence. See 42 U.S.C. § 405(g).
In order to qualify for retirement insurance benefits under 42 U.S.C. § 402(a) an
individual must, among other things, be a “fully insured individual” as defined in 42
U.S.C. § 414(a). Essentially, the statute requires that a claimant must have worked and
earned wages over a minimum span of time, the length of which depends on a number of
factors. See 42 U.S.C. § 414(a); 42 U.S.C. § 413(a).
Flemming claims that during the years 1965 to 1972 he assumed the name “John
W. Waters,” obtained an accompanying (false) social security number, and worked at
various companies under that alias. The parties agree that if Flemming were credited with
that employment, he would qualify for retirement insurance benefits.
To support his claim, Flemming testified at the hearing before the ALJ and
produced pay stubs in the name “John Waters” from the years 1965-1972. In addition, an
individual named Richard Ambro testified that he had worked with Flemming from 1969-
1972 and knew him as “Jack Waters.” Despite this evidence, the ALJ found that
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Flemming failed to show that he in fact had worked under the alias John Waters.
As we have frequently reiterated, “[a]lthough the ALJ may weigh the credibility of
the evidence, he must give some indication of the evidence which he rejects and his
reasons(s) for discounting such evidence.” Burnett v. Comm’r of Soc. Sec. Admin., 220
F.3d 112, 121 (3d Cir. 2000). Flemming argues that the ALJ erred because he did not
specifically find that Ambro was not credible and explain why. We disagree.
The ALJ explained that he considered Ambro’s testimony but discounted it
because of the strength of the countervailing evidence, or lack thereof. First, the ALJ
found that there were substantial problems with Flemming’s credibility, particularly
because of inconsistencies and implausibilities in his testimony. With regard to his post-
1972 employment status, for example, Flemming first testified that “I worked all my life,
but not with the Social Security.” App. 21. When it was brought to his attention that any
failure to report income might have been a violation of the law, Flemming testified that he
worked “just once in a blue moon” as a golf caddie. When further pressed, Flemming
testified that he had not worked since 1972 and his mother and a “lady friend” supported
him financially. App. 24-25. Flemming also conspicuously failed to submit documentary
evidence establishing that he was the “John Waters” whose pay stubs he had submitted.
Flemming testified, for example, that he had obtained a driver’s license under the name
John Waters. But he failed to provide it. And even Ambro’s testimony was notable for its
3
lack of detail.
Substantial evidence is “less than a preponderance of the evidence but more than a
mere scintilla.” Jesurem v. Sec’y of the U.S. Dep’t of Health & Human Servs., 48 F.3d
114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “It
means such relevant evidence as a reasonable mind might accept as adequate.” Plummer
v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901
(3d Cir. 1995)). Based on our review of the record, we find that the ALJ’s credibility
determination was supported by substantial evidence, and we therefore will affirm.
4