Opinion
Civil Action No. 03-CV-2397.
August 26, 2004
MEMORANDUM
I. Introduction
Plaintiff, Leroy Reynolds, seeks judicial review of the decision of the Commissioner of the Social Security Administration denying his claim for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381- 1383f. Presently before this Court are the parties' cross-motions for summary judgment. Magistrate Judge Charles B. Smith has issued a Report and Recommendation ("RR") pursuant to 28 U.S.C. § 636(b)(1)(c) which suggests that this Court affirm the Commissioner's decision, deny the Plaintiff's motion for summary judgment, and grant the Defendant's motion for summary judgment.
Upon an independent and thorough consideration of the administrative record and all filings in this Court, this Court concludes that the Magistrate Judge's RR correctly evaluated the decision of the Administrative Law Judge ("ALJ"). Therefore, this Court affirms the decision of the ALJ to uphold the Commisioner's decision to reject Plaintiff's claim for SSI benefits.
II. Procedural Background
Plaintiff filed a protective claim for SSI on June 5, 2000, claiming disability as of June 1, 2000, due to a mental disorder, back problems, and diabetes. (Administrative Record at 74, herein "R. at ___".) Following an initial denial by the Social Security Administration, (R. at 77-80), Plaintiff requested a hearing before an ALJ. (R. at 81-83). Plaintiff filed a motion requesting summary judgment and defendant filed an opposition brief similarly requesting summary judgment. On December 6, 2001, ALJ Richard Pietrowicz heard testimony from both Plaintiff and a vocational expert ("VE") regarding the alleged disability. (R. at 29-73). Upon review of the testimony and the medical evidence, ALJ Pietrowicz issued a decision on February 22, 2002, granting defendant's request for summary judgment and denying benefits. (R. at 15-27). On February 28, 2003, the Appeals Council denied Plaintiff's request for review, making the Commissioner's decision to deny benefits final. (R. at 6-14). Plaintiff subsequently sought judicial review of the Commissioner's decision in this Court, and on February 26, 2004, Magistrate Judge Smith issued an RR recommending that the decision of the Commissioner be upheld. Plaintiff filed objections to the RR on March 11, 2004.
III. Contentions of the Parties
A. Plaintiff's Contentions
Plaintiff raised the following issues in his motion for summary judgment regarding the opinion of the ALJ, which were subsequently addressed in the Magistrate Judge's Report and Recommendation:
(1) That the ALJ who adjudicated Plaintiff's claim at the administrative level erred in finding that Plaintiff was not fully credible.
(2) That the ALJ erred in failing to credit the records and assessment of his treating psychiatrist.
(3) That the ALJ erred in failing to specify why Plaintiff did not meet or equal a Listing of Impairment and in failing to complete and attach a psychiatric review technique form ("PRTF").
Plaintiff has now filed Objections to Magistrate Judge Smith's Report and Recommendation ("Plaintiff's Objections"), contending that:
(1) The ALJ and the Magistrate Judge evaluated Plaintiff's eligibility for SSI benefits using regulations that were no longer in effect at the time of the ALJ decision.
(2) Despite the opinion of Magistrate Judge Smith that the ALJ's decision was supported by substantial evidence: (a) The ALJ's conclusions were not supported by substantial evidence, (b) the ALJ erred in discounting the opinion of Plaintiff's treating psychiatrist, (c) the Magistrate Judge improperly attempted to support conclusions of the ALJ by pointing to evidence in the record not mentioned by the ALJ in reaching those conclusions.
(Plaintiff's Objections at 1-7.)
B. Defendant's Contentions
Defendant contends that there is substantial evidence in the record to support the ALJ's decision that the Plaintiff is "not disabled" within the meaning of the act. As discussed in more detail, below, the ALJ applied a five-step sequential evaluation process used in evaluating each disability claim until a finding of "disabled" or "not disabled" is obtained. 20 C.F.R. § 404.1520(a). Defendant contends that the ALJ properly concluded at the fifth and final step that there were significant numbers of jobs, identified by a vocational expert, of which the Plaintiff was capable of performing. Defendant contends that there was significant evidence supporting the ALJ's finding that Plaintiff was capable of performing the job identified by the vocational expert, as the ALJ had reviewed all the relevant evidence before arriving at his determination. In arriving at his residual functional capacity ("RFC") determination, Defendant contends, that the ALJ properly made determinations of credibility or lack thereof, based on Plaintiff's testimony and the medical evidence presented. RFC is defined as that which an individual is still able to do despite the limitations caused by his impairments. Hartranft v. Apfel, 181 F. 3d 358, 359 (3d Cir. 1999).
Defendant also contends that the ALJ properly did not give controlling weight to the November 9, 2001 evaluation submitted by Plaintiff's treating physician, Dr. Sowerby. Defendant contends that there was substantial contradictory evidence in the record that supports the ALJ's decision to reject Dr. Sowerby's November 9, 2001 evaluation. This evaluation of the treating physician was inconsistent with the findings of Dr. Sapol, the consultive psychologist, and the findings and conclusions of Dr. Weeks, the state agency psychologist. Furthermore, the evaluation contradicts Plaintiff's self-reported descriptions of his limitations. Dr. Sowerby's evaluations also lacked any written explanation or narrative, without which it was inconsistent with Dr. Sowerby's own May 18, 2000 examination. For these reasons Defendant contends that the ALJ properly refrained from giving controlling weight to Dr. Sowerby's evaluation. The Defendant also contends that the ALJ properly evaluated section 12.03. The ALJ did find that the Plaintiff satisfied the "A" criteria of 12.03, but evaluated the "B" and "C" criteria and found that the Plaintiff was not qualified under "B" or "C". Defendant contends that this determination by the ALJ as to Plaintiff's condition in reference to the listed impairment (12.03) was accurate and supported by substantial evidence in the record.
C. Summary of Magistrate Judge's Report and Recommendation
United States Magistrate Judge Charles B. Smith ("the Magistrate Judge") concluded in his RR that the ALJ was correct in his determination that Plaintiff was "not disabled" for purposes of receiving supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381- 1383f. The Magistrate Judge's conclusion is based upon his determination that the findings of the ALJ were supported by substantial evidence and thorough reasoning. (RR at 30, 36, 42).
The RR concludes, in support of the ALJ, that Plaintiff's own testimony lacks credibility based on inconsistencies in his current statements, previous lies while serving in the military, and his criminal history that resulted from dishonesty. (RR. at 25-30). In addition, the RR concludes in agreement with the ALJ, that the findings and assessment of Plaintiff's treating psychiatrist Dr. Sowerby, in his November 9, 2001 report, were accorded the proper weight, or lack of, in light of the opposing substantial evidence. The Magistrate Judge, along with the ALJ, relied on conflicting information from Dr. Sowerby's previous report on May 18, 2000, Plaintiff's treatment in prison by Dr. Singh, and from both of the other mental health specialists, Dr. Sapol, and the state agency consultant, Dr. Weeks, to reach this conclusion. (RR. at 35-37).
Lastly, the Magistrate Judge concludes in accordance with the ALJ's determination, that pursuant to step three of the sequential analysis Plaintiff did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1, and thus is properly considered "not disabled" for purposes of his claim. The Magistrate Judge acknowledges the ALJ's determination that Plaintiff did not meet listings 12.03, Psychotic Disorders, 12.08 Personality Disorders, or 12.09, Substance Abuse Addiction Disorders. (RR. at 38). In opposition to Plaintiff's argument that the ALJ did not sufficiently specify why Plaintiff did not meet the criteria of the listings — specifically "B" and "C" under 12.03 — the Magistrate Judge states that the ALJ properly reviewed the criteria of the listings and that its findings were supported by substantial evidence. (RR. at 42). The Magistrate Judge makes note of numerous findings by the ALJ that support this conclusion. (RR at 40-42 citing R. at 22-23, 53, 136, 170, 201, 204-205).
IV. Legal Standard
The Court reviews de novo those portions of a Magistrate Judge's Report and Recommendation to which a plaintiff has objected. Beltran v. Barnhart, No. 01-4062, 2002 U.S. Dist. LEXIS 23605, at *5 (E.D. Pa. Nov. 15, 2002) (citing 28 U.S.C. § 636(b)(1)(C)). The standard of review is plenary for all legal issues. Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 421 (3d Cir. 1999). The scope of the review of determinations of fact, however, is limited to determining whether or not substantial evidence exists in the record to support the Commissioner's decision. Id. .
As such, "[t]his Court is bound by the ALJ's findings of fact if they are supported by substantial evidence on the record."Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where "an agency's fact finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings."Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986). "Substantial evidence does not mean a large or considerable amount of evidence but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
V. Discussion
A. Plaintiff's Contention that Incorrect Regulations were Applied
Plaintiff contends that both the ALJ and the Magistrate Judge erred in applying the wrong version of Listing 12.03(C). The Department of Social Security promulgated extensive revisions to the mental health regulations and the listings of impairments, including a revision of 12.03(C), effective as of September 20, 2000. Plaintiff contends that because the ALJ report was issued on February 20, 2002, well after the regulations took effect, the ALJ erred in not applying the updated version of the regulation. Plaintiff argues that if the new version of 12.03(C) was applied he would meet the required listing to be considered disabled in his application for SSI benefits.
This Court finds that the correct version of 12.03(C) was applied by the ALJ and Magistrate Judge. Plaintiff filed for benefits on June 5, 2000, prior to the revisions taking effect. Thus, unless the regulations were intended to apply retroactively to pending cases, the ALJ applied the correct version. As discussed below, this Court finds no intention from the Social Security Administration that the revised Listing 12.03(C), taking effect on September 20, 2000, was to be applied retroactively.
The Supreme Court has emphatically stated its disfavor towards retroactive application of congressional enactments and administrative rules.
Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result. By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms. Even when some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant.Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-209; 109 S. Ct. 468, (1988). Administrative rules should not be construed to be retroactive unless (1) there is an express grant by Congress to the administrative agency to apply rules retroactively and (2) the rule itself contains explicit language requiring it to be applied retroactively. Id. . The Supreme Court in Bowen further described the Congressional relationship to agency rulemaking by stating, "where quasi-legislative action is required, an agency cannot act with retroactive effect without some special congressional authorization." Id. at 224. Judge Green of this court has recently spoken on the issue of retroactivity in a Social Security case, and followed the Supreme Court's conclusion on rulemaking authority, finding that the Commissioner of Social Security does not, as a matter of law, have the authority to apply its rules retroactively. See Rogers v. Barnhart, 2003 U.S. Dist. LEXIS 18152, 2003 WL 22428627 (E.D. Pa. Sept 16, 2003). This Court finds the reasoning adopted byRogers persuasive. The statutory grant of authority to the Commissioner of Social Security, while broad, does not give the Social Security Administration the express power to engage in retroactive rule-making. 42 U.S.C. § 405(a). See Bowen, 488 U.S. at 208; Portlock v. Barnhart, 208 F. Supp. 2d 451, 462 (D.Del 2002). In addition, the requirement that a revised version of an agency rule have explicit language dictating retroactive application is also not met in this case. As discussed above, a new rule must contain explicit language indicating intent for retroactive application in order to be applied retroactively. There is nothing to be found in the revised version of the Act indicating intent that the changes of September 20, 2000 were to be applied retroactively. Absent an express grant of congressional authority to the Commissioner of Social Security to engage in retroactive rulemaking, and explicit retroactive language in the rule itself, this Court concludes that the ALJ and the Magistrate Judge correctly applied the version of the rule in effect at the time Plaintiff filed for benefits.
B. Plaintiff's Contention that the ALJ's Decision was not Supported by Substantial Evidence
In his objections to the RR, Plaintiff contends that the ALJ's decision was not supported by substantial evidence. Reviewing Plaintiff's claim de novo, this Court finds that the ALJ's finding that Plaintiff was "not disabled" for purposes of receiving SSI benefits is supported by substantial evidence. To determine whether an individual is disabled, the regulations proscribe a five-step analysis:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education, and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, a finding of disability will be entered. On the other hand, if the claimant can perform other work, he will be found not to be disabled.20 C.F.R. § 404.1520 (b) — (f) (2000). Reviewing the Commissioner's determination that Plaintiff was "not disabled," the ALJ concluded that Plaintiff met step one and two in that he was not "gainfully employed," and suffered from a "severe impairment." (R. at 19, 22). Considering step three, the ALJ determined that claimant's "severe impairment" did not meet or equal the criteria of any of the listed impairments described in Appendix 1 of the Regulations ( 20 C.F.R., Part 404, Subpart P, Appendix 1). (R. at 23). The ALJ considered Listings 12.03, Psychotic Disorders, 12.08 Personality Disorders, and 12.09, Substance Abuse Addiction. (RR. at 22).
In determining whether a claimant meets impairment criteria, the "complaints should then be given `great weight' and may not be disregarded unless there exists contrary medical evidence."Mason v. Shalala, 994 F. 2d 1058, 1067-68 (3d Cir. 1993). The ALJ, however, "has the right, as the factfinder, to reject partially, or even entirely, such subjective complaints if they are not fully credible." Weber v. Massanari, 156 F. Supp. 2d 475, 485 (E.D. Pa. 2001) (citing Baerga v. Richardson, 500 F. 2d 309, 312 (3d Cir. 1974),cert. denied, 420 U.S. 931, 95 S. Ct. 1133 (1975)).
Under 20 C.F.R. §§ 404.1529 (c) and 416.929 (c), the kinds of evidence that the ALJ must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements, include the individual's daily activities, symptoms, medication, treatment, and functional limitations. Id. Moreover, the ALJ should consider the claimant's statements, appearance and demeanor; medical signs and laboratory findings; treatment and response; and physicians' opinions regarding the credibility and severity of the Plaintiff's subjective complaints. Weber, 156 F. Supp. 2d at 485 (citing Social Security Ruling 96-7p, 1996 WL 374186 (1996)). Ultimately, the ALJ's "determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Schwartz v. Halter, 134 F. Supp. 2d 640, 654 (E.D. Pa. 2001) (quoting Social Security Ruling 96-7p; Schaudeck v. Commissioner of Social Security Administration, 181 F. 3d 429, 433 (3d Cir. 1999)).
In the testimony and evidence in this case, Plaintiff admitted dishonesty when enlisting in the military (R. at 36-37). In addition, there is inconsistency between Plaintiff's testimony and that of Dr. Sapol. Plaintiff testified that he had not had a drink since 1996 and Dr. Sapol's report indicated Plaintiff admitted "sneaking" a beer every day. (R. at 24). In evaluating Plaintiff's credibility, the ALJ specifically stated that "using the criteria set forth in 20 C.F.R. 416.929 and Social Security Ruling 96-7p [he] considered the nature, location, onset, duration, frequency, radiation and intensity of pain, precipitating and aggravating factors; type, dosage, effectiveness and adverse side-effects of any pain medication; treatment, other than medication for relief of pain; functional restrictions; and the claimant's daily activities." (R. at 23).
In addition, Plaintiff's complaints of disabling symptoms were inconsistent with the May 2000 treatment note of Dr. Sowerby, the findings of Dr. Sapol and Dr. Weeks, as well as with Plaintiff's own reports of his daily functioning and activity. Plaintiff testified he spent time with his son, attended AA meetings, went to church and was able to manage on his own by cleaning the house, doing laundry, cooking, and shopping. (R. at 40-41, 51-54). He also stated he has a relationship with his girlfriend, gets along well with his mom and gets along with his brothers and sisters "off and on". (R. at 43). Dr. Singh noted that when compliant with his medication, Plaintiff was free of psychotic symptoms. (R. at 136). Also, according to Plaintiff's own testimony, as well as reports during his treatment, he was helped by medication. (R. at 47).
The vocational expert ("VE") testified that Plaintiff has no relevant past work experience, and that if Plaintiff's testimony was accepted as given, he would be unable to engage in any form of competitive work because of his testimony as to the frequency and the distractiveness of the episodes of hearing voices and his inability to complete a task from beginning to end. (R. at 69). However, Dr. Singh testified that when medication-compliant Plaintiff was free of psychotic symptoms. In addition, when questioned by the ALJ about specific types of jobs Plaintiff could perform, the VE testified that Plaintiff could operate a commercial cleaners at night, with about 190,000 jobs available nationally and 3,000 within the region. (R. at 70-72). Thus, the medical testimony, testimony of the VE, and Plaintiff's own testimony, all constitute substantial evidence supporting the reasonable finding that Plaintiff is "not disabled" under step three of the five-step analysis.
Plaintiff specifically argues that the ALJ improperly found that Plaintiff did not meet either the "A" and "B" criteria or the "A" and "C" criteria of Listing 12.03, one of the impairment listings claimed by Plaintiff. To be considered disabled under Listing 12.03, a claimant must meet both the A and B criteria, or alternatively, the C criteria. Id. The ALJ found that Plaintiff met the "A" criteria, and then moved on to consider the "B" criteria which require that a claimant must demonstrate that his schizophrenic disorder has resulted in at least two of the following:
"(1) marked restriction of the activities of daily living; or (2) marked difficulties in maintaining social functioning; or (3) deficiencies of concentration, persistence of pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or (4) repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs of symptoms (which may include deterioration of adaptive behaviors)."20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.03 (2003).
In assessing criteria "B", the ALJ considered the functional assessment by Dr. Sowerby from November 2001, but found it to be inconsistent with other substantial evidence, and Dr. Sowerby's prior evaluation in May 2000. (R. at 22). Considering category (1), the ALJ mentioned Plaintiff's own testimony as to his daily functions. The ALJ stated that Plaintiff "reported that he can take out the trash, do the laundry, change and make the bed, vacuum, load and unload grocery bags from the car, climb a flight of stairs up to three times daily, and does not need any special help or reminders to take care of personal needs or to take his medication." (R. at 23). Considering category (2), the ALJ noted that Plaintiff testified he no longer required residence in a halfway house, resides with his mother, maintains a personal relationship with his girlfriend, and had recently fathered a child. (R. at 22). In addition, Dr. Sapol's findings that Plaintiff's ability to function socially reveals only "moderate limitations," are consistent with the ALJ's determination. (R. at 204-205, 23).
Considering category (3) and (4), the ALJ found that Plaintiff only had "moderate restriction" in his concentration, persistence, or pace, and only had one or two episodes of decompensation. (RR. at 41). The ALJ made this determination by relying on the testimony of Dr. Sapol, who testified that Plaintiff's attention span and ability to concentrate were "adequate". (R. at 201). Dr. Sapol also found Plaintiff's ability to understand, remember, and carry out simple, but not complex job instructions, was "good", and complex job instructions was "fair". (R. at 204). Dr. Sowerby, in his May 2000 assessment found Plaintiff's attention span and frustration tolerance were "adequate", and he made no explanation for a change in this determination in his November 2001 evaluation which found Plaintiff's attention span and frustration tolerance were "poor/none". (R. at 170). In addition, Plaintiff testified that he was able to watch a movie all the way through if it is interesting and enjoyed watching the Eagles on television. (R. at 53). There is no evidence in the record that indicates that Plaintiff suffered from repeated episodes of decompensation. In fact, when medication compliant the testimony reflects that, the plaintiff was free of psychotic symptoms. (R. at 23, 136). Based on the testimony of Plaintiff and the medical evidence, this Court finds there is substantial evidence supporting the ALJ's conclusion that Plaintiff did not meet the "B" criteria.
The only relevant "C" criterion to Plaintiff would be "documented current history of two or more years of inability to function outside of a highly supportive living situation." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.03 (C) (2) (2003). However, Plaintiff only required a brief stay in a halfway house before moving to his mother's house and none of the treating or reviewing doctors found that Plaintiff satisfied this criteria. Therefore, after a thorough review of Plaintiff's contentions, this Court finds that the evidence in the record, including the medical testimony, vocational expert testimony, and Plaintiff's own testimony, constitutes substantial evidence supporting the reasonable conclusion that Plaintiff is "not disabled" within the meaning of the relevant regulations.
C. Plaintiff's Contention that the ALJ Erred in Discounting the Opinion of Plaintiff's Treating Physician
Plaintiff argues that the ALJ failed to afford the proper weight to the testimony of Plaintiff's treating physician, Dr. Sowerby, and that Dr. Sowerby's opinion is entitled to controlling weight. The applicable regulations and controlling case law state that, "opinions of a claimant's treating physician are entitled to substantial and at times even controlling weight." Fargnoli v. Massanari, 247 F. 3d 34, 43 (3d Cir. 2001) (citing 20 C.F.R. § 404.1527(d)(2)). The treating physician's opinion on the nature and severity of a claimant's impairment will be given controlling weight if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d). The ALJ may reject a treating physician's opinion outright only in the basis of contradictory medical evidence, but can afford it more or less weight depending upon the extent to which supporting explanations are provided. Plummer v. Apfel, 186 F. 3d 422, 429 (3d Cir. 1999). When an ALJ chooses to disregard a treating physician's opinion, he must explain the reasons for doing so.Brewster v. Heckler, 786 F. 2d 581, 584 (3d Cir. 1986). "The opinions of non-examining treating physicians may override a treating source's opinions provided that the former are supported by evidence in the record." Alexander v. Shalala, 927 F. Supp. 785, 795 (D.N.J. 1995), aff'd, 85 F. 3d 611 (3d Cir. 1996) (citing Schisler v. Sullivan, 3 F. 3d 563, 568 (2d Cir. 1993)).
As discussed above, Dr. Sowerby performed a medical assessment of Plaintiff's mental ability to perform work-related activities on November 9, 2001. However, as the ALJ mentions, this assessment is afforded less weight due to the fact that it contradicts Dr. Sowerby's initial medical assessment from May 18, 2000, and provides no documentary or specific explanation for the change in Plaintiff's condition. (RR. at 33). Dr. Sowerby's initial evaluation in May 2000 indicated "moderate" symptoms, and the subsequent exam in November, 2001 assessed plaintiff's ability to concentrate at "poor/none". (R. at 172). The new assessment by Dr. Sowerby is not only missing a narrative or explanation, but also contradicts the testimony of Plaintiff that, "ever since I've been going to therapy classes I feel a little better." (R. at 62). During the same time that Dr. Sowerby's evaluations indicate deterioration of Plaintiff's condition, Plaintiff testifies that his condition has improved. In addition, Dr. Sowerby's findings in the November 2001 exam are inconsistent with the records of Plaintiff's treatment in prison, the assessments of Dr. Sapol, and Dr. Weeks, and the Plaintiff's own reports of his daily functioning. (RR. at 35). Plaintiff's psychiatrist, Dr. Singh, testified that "if compliant with medication he is free of psychotic symptoms," (R. at 136) and Dr. Weeks testified that he "found no marked limitations." (R. at 221-223). Thus, Dr. Sowerby's November 2001 evaluation, without explanation, contradicts all of the other medical evidence and Plaintiff's own testimony.
In this case, the ALJ gave Dr. Sowerby's 2001 evaluation less weight than his 2000 evaluation, and the other evidence in this case, explicitly stating that he was doing so because the 2001 evaluation gives no explanation for the discrepancy between that report and the other substantial evidence in the record. Thus, the ALJ provided explicit and valid reasons for not giving Dr. Sowerby's 2001 evaluation controlling weight, and the ALJ's conclusion is supported by substantial evidence.
D. Plaintiff's Contention that the Magistrate Judge Improperly Attempted to Support Conclusions of the ALJ by Pointing to Evidence in the Record, that was Not Mentioned by the ALJ in Reaching those Conclusions.
Finally, Plaintiff contends that the Magistrate Judge, in attempting to "bolster" the ALJ's finding that Plaintiff was not credible, used evidence in the record not mentioned by the ALJ. After thoroughly reviewing the record, the ALJ's decision, and the RR, this Court does not find that the Magistrate Judge relied on evidence not cited by the ALJ. Specifically, in the RR, the Magistrate Judge found that, in making his credibility determination, the ALJ properly relied upon Plaintiff's criminal history, drug and alcohol use history, Plaintiff's testimony that he lied regarding the military, and Plaintiff's inconsistent testimony regarding his alcohol use. In making his credibility determination, the ALJ explicitly relied on Plaintiff's testimony regarding his alcohol use (R. at 24) and military service (R. at 36-7), as well has his criminal history and drug and alcohol addiction. Therefore, all of the items cited by the Magistrate Judge were explicitly cited by the ALJ.
Plaintiff further argues that the ALJ improperly concluded that Plaintiff's alcohol abuse was in remission (R. at 22), but then used Plaintiff's inconsistent testimony regarding his alcohol use to discount Plaintiff's credibility. There is nothing improper or inconsistent about the ALJ's conclusion. It is entirely consistent to find that Plaintiff is no longer abusing alcohol in the way he once was, while also finding that Plaintiff's own inconsistent admission and denial of occasional alcohol use affects Plaintiff's credibility.
VI. Conclusion
After a review of the record, the ALJ's decision, and the Magistrate Judge's RR, this Court finds no basis for reversal or remand. The Court concludes that the ALJ and Magistrate Judge applied the correct version of the regulations when evaluating Plaintiff's claim, that the ALJ supported his conclusions with substantial evidence, and that the Magistrate Judge committed no error in supporting the conclusions of the ALJ. Accordingly, Plaintiff was properly denied SSI benefits. Therefore, the Magistrate Judge's RR will be adopted. Plaintiff's Motion for Summary Judgment will be denied, and Defendant's Motion for Summary Judgment will be granted.
An appropriate order follows.
ORDER
AND NOW THIS day of August, 2004, it is hereby ORDERED that:1. The Report and Recommendation is ADOPTED;
2. The Defendant's motion for summary judgment is GRANTED; and
3. The Plaintiff's motion for summary judgment is DENIED;