Whitlock v. Commissioner of Social Security
Filing
29
ORDER and OPINION entered by Judge Joe Billy McDade on 8/15/11. Plaintiff's Motion for Summary Judgment 22 is DENIED, Defendant's Motion for Summary Affirmance 25 is GRANTED and Plaintiff's Motion for Affirmance of Movant's Reply 28 is GRANTED to the extent that the Court has considered the arguments contained therein. The Clerk is directed to ENTER JUDGMENT in favor of Defendant and against Plaintiff. IT IS SO ORDERED. CASE TERMINATED. SEE FULL ORDER. (FDT, ilcd)
E-FILED
Tuesday, 16 August, 2011 02:01:27 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DONALD KEITH WHITLOCK,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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Case No. 10-cv-1006
ORDER & OPINION
This matter is before the Court on pro se Plaintiff’s Motion for Summary
Judgment (Doc. 22), Defendant’s Motion for Summary Affirmance (Doc. 25) and
Memorandum in Support (Doc. 26), and Plaintiff’s Motion for Affirmance of
Movant’s Reply (“Plaintiff’s Response”) (Doc. 28).1
For the following reasons,
Defendant’s Motion for Summary Affirmance is GRANTED and Plaintiff’s Motion
for Summary Judgment is DENIED.
PROCEDURAL HISTORY
Plaintiff Donald Whitlock applied for disability insurance benefits and
supplemental security income under the Social Security Act (“the Act”), alleging
that he became disabled on June 15, 2006 as a result of arterial vascular
Plaintiff’s Motion for Affirmance of Movant’s Reply (Doc. 28) is properly
characterized as a Response to Defendant’s Motion for Summary Affirmance, rather
than as a motion. However to the extent Plaintiff’s motion is for the Court to
consider the arguments he makes therein, it is GRANTED. The Court will consider
the arguments in this brief.
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malformation and the removal of a kidney. (Tr. at 115-125; 148). Plaintiff’s claim
was denied at the initial and reconsideration levels, prompting him to request a
hearing before an Administrative Law Judge (“ALJ”). (Doc. 26 at 1). This hearing
took place on March 18, 2009. (Tr. at 20). Plaintiff, who was represented by an
attorney, appeared and testified at this hearing, as did a Vocational Expert, Dennis
Gustafson. (Tr. at 20-65).
Following the hearing, the ALJ rendered a decision denying Plaintiff’s
application. (Tr. at 11-19). The ALJ found that Plaintiff’s impairments do not
prevent him from substantial gainful activity, and that he is not disabled as defined
in the Act because he remains capable of performing his past relevant work. (Tr. at
11-19). Following the ALJ’s decision, Plaintiff filed a request for review with the
Appeals Council, however the Council denied review on November 10, 2009, making
the ALJ’s determination the final decision of the Commissioner of Social Security.
(Tr. at 1-3). On January 5, 2010, Plaintiff filed the instant action in this Court (Doc.
1) seeking review of the Commissioner’s decision pursuant to 42 U.S.C. § 405 (g).
On November 1, 2010, Plaintiff filed his Motion for Summary Judgment (Doc. 22)
and on January 18, 2011, Defendant filed its Motion for Summary Affirmance and
Memorandum in Support (Docs. 25 & 26). On February 10, 2011, Plaintiff filed his
Response to Defendant’s Motion for Summary Affirmance (Doc. 28).
In his Motion for Summary Judgment and Response, Plaintiff appears to
argue that the ALJ erred in 1) limiting his discussion to only the evidence
supporting his ultimate conclusion and not considering evidence from the Idaho
Department of Rehabilitation; 2) viewing the Vocational Expert’s opinion prior to
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the March 18, 2009 hearing; 3) editing the audio hearing to comport with his
decision. (Docs. 25 & 28).2
RELEVANT MEDICAL HISTORY
Medical records indicate that Plaintiff has suffered from congenital arterial
vascular malformation affecting his trunk and extremities, particularly his right
leg, for his entire life. The condition causes recurrent bleeding, ulcerations, and
thrombophlemitis. He was hospitalized for the condition in August 1969, December
1971, December 1973, July 1981, and May 2004. (Tr. at 300-318).
On June 15, 2006, Plaintiff went to the emergency room complaining of sharp
pain to his right flank and rectal bleeding. (Tr. at 258). At the time, he was given a
CT scan, which showed an abnormal appearance in his left kidney. (Tr. at 261-62).
A follow-up CT scan showed that the abnormal mass was consistent with renal cell
carcinoma.
(Tr. at 269).
On June 29, 2006, Plaintiff underwent a radical
neprhectomy of his left kidney.
(Tr. at 219-220).
The operating surgeon, Dr.
Douglas P. Norman, wrote that Plaintiff tolerated the procedure well and noted that
there were no complications. (Tr. at 220). On July 12, 2006, Dr. Norman wrote that
Plaintiff was “doing well” and had no further prescription at the time. (Tr. at 369).
Local Rule 8.1(D) requires Plaintiff’s Motion for Summary Judgment to “state with
particularity which findings of the Commissioner are contrary to law.” Further, the
Plaintiff is to “identify the statute, regulation or case law under which the
Commissioner allegedly erred” and “cite to the record by page number the factual
evidence which supports plaintiff’s position.” While pro se plaintiffs are entitled to
more lenient standards and the liberal construction of their pleadings, they must
still comply with procedural rules. Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001). When a pro se litigant fails to comply, the Court “cannot fill the void by
crafting arguments and performing the necessary legal research” as this would not
promote the Court’s interest in the uniform administration of justice. Id. Thus,
this Court will not create arguments for Plaintiff, but will do its best to construe the
arguments that Plaintiff appears to have made.
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On August 7, 2006, Dr. Martin Faber examined Plaintiff to provide a physical
assessment for his application for disability benefits. (Tr. at 376). Dr. Faber noted
that Plaintiff’s chief complaints were 1) bleeding in his right arm, leg, and back, due
to congenital arterial vascular malformation, 2) his recent radical nepherectomy,
and 3) depression and alcoholism, which he claimed to be in remission.3 (Tr. at
376).
Dr. Faber noted no functional restrictions, and largely noted Plaintiff’s
normal objective findings.
(Tr. at 363-366).
Dr. Faber did note Plaintiff’s left
radical nephrectomy, providing a prognosis of “guarded” and stating that there was
no metastasis after the removal of the cancerous tissue – that is, the disease was
not spreading. (Tr. at 366).
In September 2006, state agency physician Dr. Richard Bilinsky reviewed
Plaintiff’s medical record. He opined that Plaintiff could occasionally lift 50 pounds,
could frequently lift 25 pounds, could sit, stand, or walk about 6 hours in an 8 hour
day, and could perform unlimited pushing/pulling. (Tr. at 387). He noted no other
restrictions, and commented that there was no evidence of malignancy after
Plaintiff’s kidney was removed, there were no complications from his treatment,
and that he was healing well. (Tr. at 393). Dr. Sandra Bilinsky reviewed and
affirmed these findings in November 2006. (Tr. at 395).
On February 6, 2007, Dr. Faber submitted a letter in support of Plaintiff’s
application for disability benefits.
(Tr. at 398).
Dr. Faber stated that he had
discontinued treating Plaintiff following his surgery due to lack of funds, but went
on to note that he was providing Plaintiff with pro bono medical care. (Tr. at 398).
In August 2005, Plaintiff was brought to the hospital by a co-worker after he had
taken an overdose of Trazadone, and anti-depressant. (Tr. at 235-38).
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Dr. Faber further opined that Plaintiff was unable to obtain gainful employment
because of limitations from a congenital venous malformation in his right leg. (Tr.
at 398). According to Dr. Faber, this condition precluded Plaintiff from sitting for
any extended period of time without leg elevation due to pressure which caused
pain in his leg. (Tr. at 398). Dr. Faber further noted that Plaintiff had previous
hospitalizations due to ruptured veins in his leg ulcerations, and that he had
recurrent phlebitis and blood clots in his right leg, as well as restless leg syndrome.
(Tr. at 399). Dr. Faber concluded that “The patient has known only factory work. It
is my opinion and the opinion of other physicians he has consulted that he would be
unable to sustain the rigors and duration of an eight hour work day in any kind of
factory setting,” and therefore it was his opinion that Plaintiff would be “unable to
obtain gainful employment.” (Tr. at 399).
On February 29, 2009, Plaintiff’s urologist, who had been treating Plaintiff
for symptomatic left hydrocele—that is, an accumulation of fluids along the
spermatic cord—wrote a letter stating that Plaintiff had multiple arterial venous
malformations on his left side during the course of their relationship. (Tr. at 403).
Dr. Levisay concluded that “While I am a urologist and cannot speak directly to his
disability with regard to the AV malformation, in observing the patient and on
physical examination I think it is unlikely that he can perform any kind of manual
labor.” (Tr. at 403).
PAST RELEVANT WORK
Along with his application for disability benefits, Plaintiff submitted a “Work
History Report.” (Tr. at 171). This report indicates that Plaintiff worked as a
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factory laborer from 1981 until 2000, a telemarketer from December 2000 until
March 2001, a food delivery driver from June 2002 until November 2002, a casino
porter from January 2003 until May 2003, again as a telemarketer from December
2003 until January 2004, a delivery driver from June 2004 until July 2004, a
construction laborer from October 2004 until October 2005, and once again as a
telemarketer from January 2006 until March 2006.
(Tr. at 171).
In his
telemarketing positions with various companies, Plaintiff indicated that he only had
to walk 30 minutes a day, did not need to use machines, tools, or equipment other
than a telephone, and did not have to lift or carry any objects. (Tr. at 173).
HEARING TESTIMONY
A hearing on Plaintiff’s application for disability benefits was held before ALJ
David Thompson on March 18, 2009. (Tr. at 21). Plaintiff, accompanied by an
attorney, was present and testified at the hearing, as did Dennis Gustafson, a
Vocational Expert. (Tr. at 22). At the hearing, Plaintiff testified that he had not
been working since 2006, when he was diagnosed with cancer. (Tr. at 29). The ALJ
questioned Plaintiff as to what tasks he could and could not perform, and Plaintiff
testified that he could take care of his own personal hygiene, do dishes, laundry,
cleaning, shopping, etc. (Tr. at 41). Plaintiff also testified that he could only lift up
to five or seven pounds, had trouble with stairs, could only sit for an hour or two,
had trouble sitting, standing, walking bending, kneeling, and stooping, and could
only do “short things for small period of times [sic]” because of chronic back
problems and his arterial venous malformation. (Tr. at 31-36).
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Plaintiff’s attorney also questioned Plaintiff at the hearing. During attorney
questioning, Plaintiff testified that he could only walk about a block before laying
down due to pain and swelling in his leg. (Tr. at 42). Plaintiff also stated that he
could experience toxic build up in his leg while sitting, and therefore he would have
to get up and walk around to relieve the pressure and then lay down to “get the
blood flowing again.”
(Tr. at 44-45).
He stated that he could sit for about 30
minutes to an hour before his leg would start to hurt. (Tr. at 56). He testified that
if he did not do these things, his leg would swell and cause an ulcer. (Tr. at 47).
Plaintiff’s attorney also asked Plaintiff about his relationship with Dr. Faber.
(Tr. at 59). Plaintiff stated that he had seen Dr. Faber approximately five to six
times in the past year for various medical conditions, and that while at first Dr.
Faber saw him for free, he was now on public aid. (Tr. at 59).
Following questioning by his attorney, the ALJ asked Plaintiff what
happened in 2006 that made his condition worse, such that he could work with the
arterial venous malformation prior to that time, but was now claiming a disability.
(Tr. at 60). Plaintiff responded that he filed for disability at that time because of his
kidney cancer, but that prior to that time he had already been struggling to keep a
job. (Tr. at 60-61)
Upon completion of Plaintiff’s testimony, the Vocational Expert (“VE”) was
examined. (Tr. at 62). The VE stated that he had not previously discussed the
merits of the case with the ALJ, the Plaintiff, or the Plaintiff’s attorney. (Tr. at 6263). He also stated that he had heard the testimony that day, and that based on the
testimony he did not have any questions he would like the ALJ to ask Plaintiff, nor
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did he wish to make any revisions to the report he had previously submitted. (Tr. at
63). The ALJ asked the VE whether an individual with the same age, education,
and experience as Plaintiff, who was limited to medium work and limited postural
activities would be able to engage in Plaintiff’s past relevant work. (Tr. at 63). The
VE stated that it would not affect his position as a telephone solicitor, tractor truck
driver, dump truck driver, or assembly worker. (Tr. at 64). The ALJ also asked
whether this would change if the individual were limited to light work, only
occasional postural activities, and no ropes, ladders, or scaffolds. (Tr. at 64). The
VE stated that assembly work and work as a telephone solicitor would be consistent
with such restrictions. (Tr. at 64). Finally, the ALJ asked whether the individual
was limited to only sedentary work with a sit-stand option, to which the VE
responded that work as a telephone solicitor would be the only option. (Tr. at 64).
The Plaintiff’s attorney then asked the VE whether an individual of
Plaintiff’s age and physical condition, who had to lay down and elevate his leg for an
indeterminate amount of time during the workday would have the ability to work.
(Tr. at 65). The VE responded that there would be no employment opportunities
with such restrictions. (Tr. at 65).
ALJ DECISION
ALJ Thompson issued his decision on July 15, 2009, denying Plaintiff’s claim
for benefits. (Tr. at 12). In doing so, he utilized the five-step sequential evaluation
process common to Social Security benefits determinations. 20 C.F.R. 404.1520(a).
The steps are: (1) whether Plaintiff is engaged in substantial gainful activity, 20
C.F.R. 404.1520(b); (2) whether Plaintiff has a medically determinable impairment
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that is “severe” or a combination of impairments that are “severe,” 20 C.F.R.
404.1520(c); (3) whether Plaintiff’s impairments or combination of impairments
meets or medically equals the criteria of an impairment, 20 C.F.R. 404.1520(d); (4)
whether Plaintiff has the Residual Functional Capacity (RFC) to perform the
requirements of his past relevant work, 20 C.F.R. 404.1520(f); and (5) whether
Plaintiff is able to do any other work considering his: RFC, age, education, and work
experience, 20 C.F.R. 404.1520(g). If it is determined that Plaintiff is or is not
disabled at any step of the evaluation process, the evaluation does not go on to the
next step. (Doc. 4 at 12).
The ALJ first determined that Plaintiff met the insured status requirements
for disability insurance benefits on his alleged onset date of June 15, 2006, and that
he had not engaged in any substantially gainful activity since that date. (Tr. at 17).
The ALJ next found that Plaintiff suffered from one severe impairment: arterial
vascular malformation. (Tr. at 17-18). He did not believe Plaintiff’s kidney cancer
to be a severe impairment because there was no evidence of metastasis or
recurrence since his radical nephrectomy in June 2006, nor had there been any
residual problems related to such impairment. (Tr. at 18).
However, the ALJ found that Plaintiff’s arterial venous malformation did not
meet or medically equal any of the listed impairments because the ulcerations and
bleeding requiring hospitalization had not occurred since May 2004, and there was
no evidence of any problems due to this impairment since his alleged onset date.
(Tr. at 18). Because Plaintiff’s impairment did not meet a listing, the ALJ went on
to consider whether Plaintiff’s RFC allowed him to perform the requirements of his
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past relevant work.
(Tr. at 18).
To do this, the ALJ considered 1) whether
Plaintiff’s underlying physical impairment could reasonably be expected to produce
Plaintiff’s pain or other symptoms, and 2) the extent to which the intensity,
persistence, and limiting effects of Plaintiff’s symptoms limited Plaintiff’s ability to
do work activities. (Tr. at 18). With regards to the second consideration, when
statements about the intensity, persistence, or functionally limiting effects of pain
or other symptoms were not substantiated by objective medical evidence, the ALJ
had to make a finding based upon the credibility of the statements in the context of
the entire record. (Tr. at 18-19).
In this regard, the ALJ found that while Plaintiff’s impairment could
reasonably be expected to cause his pain and other symptoms, his statements
concerning their intensity, persistence, and limiting effects were not credible to the
extent that they were inconsistent with a finding that he could perform a light
range of work.4 The ALJ considered the limitations to which Plaintiff testified, but
found that 1) the record indicated that he had recovered from his kidney cancer
without incident, and 2) there was no evidence of any exacerbation or problems with
his arterial vascular malformation since his alleged onset date, and prior to that
time he had maintained employment. (Tr. at 19).
In making this determination, the ALJ considered the opinions of Dr. Faber
and Dr. Levisay that Plaintiff was not capable of maintaining gainful employment.
Light work is defined as “. . . lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weight up to 10 pounds . . . a job in this
category . . . requires a good deal of walking or standing, or . . . it involves sitting
most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §
404.1567(b).
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(Tr. at 19). With respect to Dr. Faber’s opinion, the ALJ noted that Dr. Faber had
only stated that Plaintiff could not obtain gainful employment, and that he stated
the Plaintiff would be unable to work an eight hour day in a factory setting. The
ALJ found his opinion non-credible because he 1) did not provide a function-byfunction assessment, 2) did not say that Plaintiff would be unable to perform any
type of work, 3) did not provide treatment records showing any recent problems
with ulcerations, which he had noted as a potential risk due to employment, and 4)
his description of Plaintiff’s August 2006 visit was unremarkable. (Tr. at 19). With
regards to Dr. Levisay’s opinion, the ALJ noted that Dr. Levisay was not treating
Plaintiff for his arterial vascular malformation, which was the basis upon which Dr.
Levisay stated Plaintiff could not perform manual labor. (Tr. at 19).
Instead, the ALJ found the opinion of the state agency that Plaintiff could
perform medium work to be more convincing, as it was consistent with evidence in
the record that Plaintiff’s overall medical condition is stable. (Tr. at 20). However,
“giving the [Plaintiff] some benefit of the doubt,” the ALJ found him limited to light
work. (Tr. 20). Consistent with this RFC of light work, the ALJ found that, based
upon the VE’s testimony, Plaintiff could perform his previous jobs as a telephone
solicitor and small parts assembler, and that even if he further limited his RFC to
sedentary work, Plaintiff would be able to perform his past job of telephone solicitor.
(Tr. at 20). Therefore, the ALJ concluded that Plaintiff was not entitled to disability
benefits because he was capable of performing his past relevant work. (Tr. at 20).
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STANDARD OF REVIEW
To be entitled to disability benefits under the Social Security Act, a claimant
must prove that he is unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment.” 42 U.S.C. §
423(d)(1)(A). To determine if the claimant is unable to engage in any substantial
gainful activity, the Commissioner of Social Security engages in a factual
determination. See McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980). That
factual determination is made by using a five-step sequential analysis. 20 C.F.R. §§
404.1520, 416.920; see also Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999).
In the first step, a threshold determination is made to decide whether the
claimant is presently involved in a substantially gainful activity.
20 C.F.R. §§
404.1520(a)(i), 416.920(a)(i). If the claimant is not under such employment, the
Commissioner of Social Security proceeds to the next step. At the second step, the
Commissioner evaluates the severity and duration of the impairment. 20 C.F.R. §§
404.1520(a)(iii), 416.920(a)(iii).
If the claimant has an impairment that
significantly limits his physical or mental ability to do basic work activities, the
Commissioner will proceed to the next step. At the third step, the Commissioner
compares the claimant’s impairments to a list of impairments considered severe
enough to preclude any gainful work; and, if the elements on the list are met or
equaled, he declares the claimant eligible for benefits. 20 C.F.R. §§ 404.1520(a)(iv),
416.920(a)(iv).
If the claimant does not qualify under one of the listed impairments, the
Commissioner proceeds to the fourth and fifth steps.
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At the fourth step, the
claimant’s RFC is evaluated to determine whether the claimant can pursue his past
work. 20 C.F.R. §§ 404.1520(a)(iv), 416.920(a)(iv). If he cannot, then, at step five,
the Commissioner evaluates the claimant’s ability to perform other work available
in the economy. 20 C.F.R. §§ 404.1520(a)(v), 416.920(a)(v). The claimant has the
burden to prove disability through step four of the analysis, i.e., he must
demonstrate an impairment that is of sufficient severity to preclude him from
pursuing his past work. McNeil, 614 F.2d at 145. However, once the claimant
shows an inability to perform his past work, the burden shifts to the Commissioner,
at step five, to show the claimant is able to engage in some other type of substantial
gainful employment. Id.
Once a case reaches a federal district court, the court’s review is governed by
42 U.S.C. § 405(g), which provides, in relevant part, “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” Substantial evidence is “such evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Maggard, 167 F.3d at 379
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In a substantial evidence
determination, the Court will review the entire administrative record, but it will
“not reweigh the evidence, resolve conflicts, decide questions of credibility, or
substitute [its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000). The Court must ensure that the Commissioner
“build[s] an accurate and logical bridge from the evidence to his conclusion,” even
though he need not have addressed every piece of evidence. Id. at 872.
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DISCUSSION
As previously noted, Plaintiff, proceeding pro se, only appears to raise three
arguments as to why the ALJ’s decision was erroneous. These arguments are that
the ALJ erred in 1) limiting his discussion to only the evidence supporting his
ultimate conclusion and not considering evidence from the Idaho Department of
Rehabilitation; 2) viewing the Vocational Expert’s opinion prior to the March 18,
2009 hearing; 3) editing the audio hearing to comport with his decision. The Court
will consider each of these arguments in turn.
1. Discussion Limited to Evidence Supporting Conclusion/Failure to
Consider Evidence from Idaho Department of Rehabilitation
In his Motion for Summary Judgment, Plaintiff cites to Herron v. Shalala, 19
F.3d 329, 333 (7th Cir. 1994), for the proposition that “although the Administrative
Law Judge need not address every piece of evidence, he cannot limit his discussion
to only that evidence that supports his ultimate conclusion.”
(Doc. 22-1 at 3).
However, Plaintiff does not point to any evidence which the ALJ failed to consider
other than records from the Idaho Department of Rehabilitation.5 With respect to
that evidence, the Court notes that Plaintiff did not submit it to the ALJ until after
he had rendered his decision. (Tr. at 402). Clearly, the ALJ could not consider
evidence which was not before him at the time of his decision, and a consideration of
this evidence is only appropriate if Plaintiff seeks remand pursuant to sentence six
of 42 U.S.C. § 405(g), which he has not done. Accordingly, the ALJ did not err in
The Court notes that the ALJ considered, and rejected, evidence of Plaintiff’s
kidney cancer, depression, as well as the opinions of Dr. Faber and Dr. Levisay in
support of Plaintiff’s application for benefits. The ALJ further gave a reasoned
analysis for why he rejected this evidence. Ray v. Bowen, 843 F.2d 998, 1008 (7th
Cir. 1988).
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not considering evidence which was not before him, and Plaintiff’s initial argument
fails.
2. Viewing of VE Opinion Prior to Hearing
Plaintiff also argues that the ALJ erred by having the VE’s final opinion
commented on prior to the Plaintiff’s representative’s questioning of him, and by
accepting the VE’s report prior to the hearing. (Doc. 22-1 at 3-4). The Court finds
both of these arguments to be without merit. The fact that the VE faxed a copy of
his report to the Agency’s hearing office to be made part of the record prior to the
hearing does not indicate that the ALJ did not make an independent consideration
of the evidence. The ALJ specifically asked the VE at the hearing whether he had
discussed the merits of the case with him prior to the hearing, to which the VE
responded that he had not.
(Tr. at 62).
Further, the ALJ gave the VE the
opportunity, following Plaintiff’s testimony at the hearing, to amend his report,
which indicates that the ALJ had not made his decision regarding the VE report
prior to hearing all of the evidence. (Tr. at 63).
Nor does the fact that the ALJ did not ask the VE if he would like to amend
his report a second time, following the Plaintiff’s attorney’s questioning of him,
indicate that the ALJ “limited his discussion in support of his ultimate conclusion.”
(Doc. 22-1 at 3). The Plaintiff’s attorney did not submit any new evidence to the VE
in his questioning, but merely asked him a hypothetical in an effort to persuade the
ALJ that Plaintiff was not capable of any employment. Accordingly, there was no
need to ask the VE if he wished to amend his report, because no new evidence had
been presented to him. Therefore, the Court does not find that the ALJ erred by
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failing to ask the VE whether he would like to amend his report a second time, or by
accepting his report into the record prior to the hearing.
3. Editing of Audio Hearing to Comport with Decision
Finally, Plaintiff claims that the ALJ erred because he “edited many things
out of the audio hearing . . . to cover up for his incorrect review of this case.” (Doc.
22-1 at 5).
Plaintiff claims that there are many “unusually long gaps in time”
during the audio CD, and that these gaps, in which there is no background noise,
indicate that the CD was edited to comport with the ALJ’s findings. (Doc. 22-1 at
5). Plaintiff also points to page 36 of the hearing transcript at lines 5, 6, 7, and 8,
where there is a dash (“—“) to argue that his testimony was deleted. (Doc. 22-1 at
5).
The Court also finds this argument to be without merit.
The Court has
reviewed both the audio CD and the transcript and does not believe there to be any
evidence of tampering.
While there are pauses on the audio CD, these are
consistent with pauses in questioning, at which point either the ALJ, the Plaintiff,
or the Plaintiff’s attorney may have been gathering their thoughts or writing notes.
Further, dashes on transcripts are not out of the ordinary, and merely indicate
where one speaker interrupts the other. This is not evidence of a deletion, nor is it
evidence that the ALJ was attempting to limit evidence to that which would be
favorable to his decision. Accordingly, the Court does not find that there was any
foul play such that the ALJ’s decision should be reversed.
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CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (Doc.
22) is DENIED, Defendant’s Motion for Summary Affirmance (Doc. 25) is
GRANTED and Plaintiff’s Motion for Affirmance of Movant’s Reply (Doc. 28) is
GRANTED to the extent that the Court has considered the arguments contained
therein. The Clerk is directed to ENTER JUDGMENT in favor of Defendant and
against Plaintiff. IT IS SO ORDERED.
CASE TERMINATED.
Entered this 15th day of August, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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