Weischman v. Social Security Administration
ORDER approving and adopting 15 Recommended Disposition in its entirety as this Court's findings in all respects. The Court therefore affirms the Commissioner's decision, denies Mr. Weischman's request for relief, and dismisses with prejudice this case. Judgment shall be entered accordingly. Signed by Judge Kristine G. Baker on 02/05/2016. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 4:15-cv-00152-KGB-JTR
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
The Court has reviewed the Recommended Disposition received from Magistrate Judge J.
Thomas Ray (Dkt. No. 15). After careful review of the Recommended Disposition, and the
timely objections received thereto (Dkt. No. 17), as well as a de novo review of the record, the
Court concludes that the Recommended Disposition should be, and hereby is, approved and
adopted in its entirety as this Court’s findings in all respects.
The Court writes separately to address plaintiff Doug Weischman’s objections (Dkt. No.
17). Mr. Weischman objects to the fact that, during his last hearing, there was testimony that he
could not “do gainful and substantial employment.” (Dkt. No. 17,at 1). The Eighth Circuit Court
of Appeals stated in Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) that, “We will uphold the
Commissioner’s decision to deny an applicant benefits if the decision is not based on legal error
and if there is substantial evidence in the record as a whole to support the conclusion that the
claimant was not disabled.” The court in Long further explained that a reviewing court “will
consider evidence that detracts from the Commissioner’s decision as well as evidence that
supports the decision, [but] will not reverse ‘merely because substantial evidence exists for the
opposite decision.’” Id. (quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)). The
Court is unpersuaded by this objection based on the record evidence before it.
Mr. Weischman also makes reference in his objections to the mental health diagnosis and
counseling that he has received (Dkt. No. 2; Dkt. No. 13). As the Recommended Disposition
makes clear, the time period at issue in regard to Mr. Weischman’s current claim is July 30,
2009, through January 22, 2014 (Dkt. No. 14, at 3). This is the time period the Court is
examining. Based upon the evidence Mr. Weischman submits, his mental health diagnosis and
treatment first began on April 14, 2014. This was two months after the Administrative Law
Judge’s decision in this case and after the time period that this Court is tasked with reviewing.
As a result, these documents that Mr. Weischman submitted are not material to this Court’s
current decision because this evidence was not presented to the Administrative Law Judge before
he made his decision and does not relate to Mr. Weischman’s condition during the time period
this Court is examining. See Hepp v. Astrue, 511 F.3d 798, 808 (8th Cir. 2008) (determining
that, to be considered material, new evidence, it must be noncumulative, relevant, and probative
of the claimant’s condition for the time period for which benefits were denied). Further, the
Commissioner contends that a licensed professional counselor is not an acceptable medical
source to establish the existence of a medically determinable impairment.
20 C.F.R. §
416.913(a). These factors were cited in the Recommended Disposition (Dkt. No. 14, at 10 ̶ 11).
As a result, this objection does not alter this Court’s decision to adopt the Recommended
For these reasons, the Court adopts the Recommended Disposition. The Court therefore
affirms the Commissioner’s decision, denies Mr. Weischman’s request for relief, and dismisses
with prejudice this case. Judgment shall be entered accordingly.
SO ORDERED this 5th day of February, 2016.
Kristine G. Baker
United States District Judge
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