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Justin E. Partee v. Michael J. Astrue

April 20, 2011

JUSTIN E. PARTEE, APPELLANT,
v.
MICHAEL J. ASTRUE, SOCIAL SECURITY COMMISSIONER, APPELLEE.



Appeal from the United States District Court for the Western District of Arkansas.

The opinion of the court was delivered by: Riley, Chief Judge.

Submitted: February 14, 2011

Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.

Justin E. Partee appeals the district court's order affirming the Social Security *fn1 Administration's denial of his application for supplemental security income (SSI) under 42 U.S.C. § 405(g). Partee contends the administrative law judge (ALJ) (1) failed to consider properly Partee's obesity, depression, and organic brain syndrome, (2) improperly discredited Partee's subjective statements and certain medical evidence, and was biased against Partee's doctor, and (3) inadequately supported the ALJ's residual functional capacity assessment (RFC). Because the ALJ's decision was supported by substantial evidence and the ALJ acted properly, we affirm.

I. BACKGROUND

In 2001, Partee suffered a "crush injury" to his left ankle and foot when a fifty gallon drum fell on his leg. To repair the damage, Partee underwent several medical procedures between 2002 and 2004. On August 18, 2004, Partee's treating physician, Charles Varela, M.D., described Partee as morbidly obese, and diagnosed Partee with ankylosis in the left ankle, a condition preventing him from "performing many manual labor-type of occupations, particularly those requiring standing, walking, climbing, squatting, lifting and carrying activities." On February 25, 2005, Partee filed for SSI based on disability.

In April 2007, Partee visited a doctor because of abdominal pains. During the visit, Partee reported he was not taking medications, he experienced occasional ankle pain, and his occupation was "bushhogging" for his grandfather. Partee's lawyer *fn2 referred Partee to Vann A. Smith, M.D., who, on July 2, 2007, performed a neuropsychological examination "in conjunction with an ongoing application for Social Security Disability benefits." Dr. Smith found Partee "oriented to gross time, generalized place and person. [Partee's] affect was muted and shallow. [Partee's] mood was mildly dysthymic." Dr. Smith noted Partee's pain resulting from his 2001 *fn3 ankle injury was marginally controlled by medication and Partee reported a pain level of "6-10" on a 0-10 scale. Dr. Smith concluded Partee's mental limitations left him disabled. Dr. Smith gave Partee a current global assessment of functioning (GAF) score of 30-35, indicating major impairment in several areas of functioning.

On October 10, 2007, Nancy A. Bunting, Ph.D., performed an intellectual assessment of Partee. Dr. Bunting found Partee's mental impairments ("borderline range of intelligence") did not interfere with his day-to-day functioning, he was able to act appropriately in public, he communicated in an intelligible and effective manner, and he could do routine structured work. Dr. Bunting opined Partee's mental impairments limited his concentration, which impacted his ability to complete assigned tasks in a timely manner. In assessing Partee's ability to work eight hours a day, five days a week, Dr. Bunting found Partee capable of working except for an inability to understand, remember, or carry out complex instructions, and an inability to make judgments on complex work-related decisions. Dr. Bunting gave Partee a GAF score of 55-65, indicating mild to moderate mental impairment.

On June 27, 2007, the ALJ held an administrative hearing at which Partee testified he normally experienced moderate pain, but experienced severe pain when he stood for too long or walked long distances. Partee explained he worked full-time for six months in 2006 driving a truck cleaning port-a-potties, but was laid off because of a seasonal slowdown. Partee reported his physical condition did not interfere with his ability to work at this job because he was mostly sitting.

On January 24, 2008, the ALJ decided Partee "has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." The ALJ explained Partee can occasionally lift or carry ten pounds, sit for six hours, and walk for two hours. The ALJ found Partee was able to work despite some limitations. The ALJ also found Partee's statements about the extent of Partee's inability to work not entirely credible.

The ALJ further found Dr. Smith's assessment "highly inconsistent with the objective medical evidence and other evidence of record." The ALJ gave Dr. Smith's opinion little weight and found Dr. Bunting's evaluation "more reliable," because Partee was a recent, short-term patient of Dr. Smith's and Dr. Smith evaluated Partee specifically for the SSI appeal.

Partee appealed the ALJ decision and the Appeals Council denied his appeal. Next, Partee sought judicial review. The magistrate judge issued a report and recommended the district court affirm the ALJ's decision and dismiss with prejudice. Partee objected to the report and recommendation. The district court adopted the magistrate judge's report and recommendation affirming the ALJ's decision. Partee appeals.

II. DISCUSSION

A. Standard of ...


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