Richard Stitely v. Carolyn Colvin

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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