                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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                                                            NOT PRECEDENTIAL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



                                            2
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.




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