Bigham v. Astrue

Filing 22

ORDER entered by Judge Sue E. Myerscough on 3/26/2013. The Report and Recommendation, d/e 21 is ACCEPTED by this Court because Magistrate Judge Byron Cudmore did not clearly err when he determined that none of the Plaintiff's arguments support reversal of the Social Security Commissioner's final decision. Defendant's Motion for Summary Affirmance, d/e 18 is ALLOWED. Plaintiff's Motion for Summary Judgment is denied, d/e 15 . This case is CLOSED. (MAS, ilcd)

E-FILED

Tuesday, 26 March, 2013 04:18:57 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LARRY J. BIGHAM,
Plaintiff,
v.
MICHAEL ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 11-3359

ORDER
SUE E. MYERSCOUGH, U.S. District Judge:
A Report and Recommendation was entered in this case on January
30, 2013 by U.S. Magistrate Judge Byron G. Cudmore. See d/e 21.
Magistrate Judge Cudmore recommends that Defendant Commissioner’s
Motion for Summary Affirmance be allowed (d/e 18) and that Plaintiff
Larry Bigham’s Motion for Summary Judgment be denied (d/e 15). The
time for objections has passed, and no objections have been filed. After
review of Magistrate Judge Cudmore’s Report and Recommendation, the
Court finds that none of the recommendations are clearly erroneous.

Therefore, the Court ACCEPTS Magistrate Judge Cudmore’s Report and
Recommendation.
ANALYSIS
In his Motion for Summary Judgment, Plaintiff challenged the
Commissioner of Social Security’s Final Decision which adopts the
Administrative Law Judge’s findings that deny Plaintiff’s claim for
disability benefits. Specifically, Plaintiff argued that the Administrative
Law Judge erred by (1) finding Plaintiff and Jeanne Bigham’s testimony
regarding Plaintiff’s seizures not credible; (2) determining that Plaintiff’s
type II diabetes does not constitute a severe impairment; and (3) failing
to determine whether Plaintiff’s seizures meet a listed seizure disorder.
See d/e 14, Ex. 1 at 10-21.
Courts must review the Decision of the Commissioner to determine
whether it is supported by substantial evidence. Courts must consider
the evidence before the Administrative Law Judge when making this
review. Wolfe v. Shalala, 997 F.2d 321, 322 n.3 (7th Cir. 1993). Courts
must accept the findings of the Administrative Law Judge if they were
supported by substantial evidence and may not substitute its judgment.
Page 2 of 9

Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as
adequate” to support the decision. Richardson v. Perales, 402 U.S. 389,
401 (1971). Courts will not review the credibility determinations of an
Administrative Law Judge unless those determinations lack any
explanation or support in the record. Elder v. Astrue, 529 F.3d 408, 41315 (7th Cir. 2008). Conclusions of law, however, are not entitled to such
deference. Where the Commissioner commits an error of law, the
reviewing body must reverse the decision regardless of the volume of
evidence supporting the factual findings. Schmidt v. Astrue, 496 F.3d
833, 841 (7th Cir. 2007). Based on this standard of review, Magistrate
Judge Cudmore determined in his Report and Recommendation that
none of Plaintiff’s arguments warrant reversal of the Commissioner’s final
decision.
Magistrate Judge Cudmore’s Report and Recommendation is now
before this Court for review. At this stage, the Court may accept, reject,
or modify, in whole or in part, the findings or recommendations of the
magistrate judge in the report. Fed.R.Civ.P. 72(b). The Court must
Page 3 of 9

review de novo the portions of the report to which objections are made.
The Court has discretion to conduct a new hearing and may consider the
record before the magistrate judge anew or receive any further evidence
deemed necessary. Id. “If no objection or only partial objection is made,
the district court judge reviews those unobjected portions for clear error.”
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). Since
no objections were filed, the Court reviews Magistrate Judge Cudmore’s
Report and Recommendation for clear error.
First, Magistrate Judge Cudmore found support in the record for
the Administrative Law Judge’s finding that Plaintiff and Jeanne
Bigham’s testimony about Plaintiff’s seizures was not credible. Plaintiff
and Jeanne Bigham testified at Plaintiff’s November 17, 2010 hearing
that Plaintiff had “big” seizures every week, even when he was taking
seizure medication. See d/e 21 at 22; see also d/e 12, Ex. 3 at 50, 70.
But in October 2010, Plaintiff had reported to medical personnel at the
Springfield, Missouri Veterans Affairs medical center having had no
“breakthrus” for three to four weeks after running out of medicine. See
d/e 21 at 22; see also d/e 12, Ex. 9 at 112.
Page 4 of 9

The Administrative Law Judge understood this to mean
breakthrough seizures. See d/e 12, Ex. 3 at 25-26. Breakthrough
seizures occur after a patient misses medication or experiences sleep
deprivation. ORIN DEVINSKY, MD, EPILEPSY: PATIENT AND FAMILY GUIDE
(3d ed.). Plaintiff does not contest the Administrative Law Judge’s
conclusion regarding the “breakthroughs” referenced in Plaintiff’s
Veterans Affairs medical records. See d/e 21 at 22; see also d/e 14, Ex. 1;
d/e 20.
Further, Magistrate Judge Cudmore noted that Plaintiff claims he
kept seizure logs from June 18, 2009 until a couple of months before his
November 17, 2010 hearing before the Administrative Law Judge. See
d/e 21 at 22; see also d/e 12, Ex. 3 at 52-53. Yet, Plaintiff did not
produce these records, nor did he provide them to his attorney. See d/e
12, Ex. 3 at 52-53. Additionally, no copies of these logs exist in the
medical records. See d/e 21 at 22. Magistrate Judge Cudmore’s analysis
of the record demonstrates that the Administrative Law Judge’s
credibility finding has support in the record. See Elder, 529 F.3d at 413-

Page 5 of 9

15. Therefore, Magistrate Judge Cudmore’s decision regarding the
Administrative Law Judge’s credibility finding is not clearly erroneous.
Magistrate Judge Cudmore also found that relevant evidence
supports the Administrative Law Judge’s decision that Plaintiff’s type II
diabetes is not a severe impairment. An impairment is severe if it
“significantly limits an individual’s ability to do basic work activities.”
Taylor v. Schweicker, 739 F.2d 1240, 1242-43 (7th Cir. 1984) (citing 20
C.F.R. § 404.1521(a)). This requires a threshold showing that the
impairment has an effect on a person’s functional abilities to work that is
more than minimal. See Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Magistrate Judge Cudmore correctly notes that Plaintiff never
testified that his type II diabetes prevents him from working. See d/e 21
at 25; see also d/e 12, Ex. 3 at 64. Instead, Plaintiff testified that he
could not work because of his breathing problems, injuries from his car
accident, and his seizures. See d/e 21 at 25 (citing d/e 12, Ex. 3 at 49.).
Moreover, Plaintiff testified that he had gained control of his type II
diabetes since visiting the Veterans Affairs medical center and getting
back on his medication. See d/e 21 at 25 (citing d/e 12, Ex. 3 at 64).
Page 6 of 9

The Administrative Law Judge used this relevant evidence regarding
Plaintiff’s type II diabetes to determine that Plaintiff’s type II diabetes
does not constitute a severe impairment. Based on this evidence, a
reasonable mind could accept as adequate the Administrative Law Judge’s
decision. See Richardson, 402 U.S. at 401. Therefore, Magistrate Judge
Cudmore did not clearly err by accepting the Administrative Law Judge’s
decision regarding Plaintiff’s type II diabetes.
Finally, Magistrate Judge Cudmore determined that the
Administrative Law Judge’s failure to determine whether Plaintiff’s
seizures meet a listed seizure disorder constitutes harmless error. See d/e
25. See also Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (finding
remand unnecessary where any error was harmless).
To establish a listed seizure disorder, a claimant must provide
evidence of professional observation or testimony by witnesses other than
the claimant. 20 C.F.R. Part 404, Subpart P, Appendix 1, Rule 11.02/03.
Magistrate Judge Cudmore correctly notes that the record contains no
professional observation of any seizure and that Plaintiff has failed to

Page 7 of 9

produce the seizure log that documents the frequency of his alleged
seizures. See d/e 21 at 26.
Further, Magistrate Judge Cudmore found that Jeanne Bigham’s
testimony is the only other evidence that definitively supports Plaintiff’s
alleged seizure disorder. See d/e 21 at 26. However, the Administrative
Law Judge found Jeanne Bigham’s testimony was not credible.
Magistrate Judge Cudmore found it unnecessary to remand the case to
determine if Plaintiff meets a listed seizure disorder based on Jeanne
Bigham’s testimony. See d/e 21 at 26.
The evidence before Magistrate Judge Cudmore does not support
Plaintiff’s claim that Plaintiff meets a listed seizure disorder. Therefore,
Magistrate Judge Cudmore did not clearly err when he determined that
the Administrative Law Judge committed harmless error by failing to
determine whether Plaintiff’s alleged seizures meet a listed seizure
disorder.
IT IS THEREFORE ORDERED THAT:
(1)

The Report and Recommendation (d/e 21) is ACCEPTED by

this Court because Magistrate Judge Cudmore did not clearly err when he
Page 8 of 9

determined that none of Plaintiff’s arguments support reversal of the
Social Security Commissioner’s final decision; and
(2)

Defendant’s Motion for Summary Affirmance (d/e 18) is

allowed and Plaintiff’s Motion for Summary Judgment is denied (d/e 15).
THIS CASE IS CLOSED.
ENTER: March 26, 2013
FOR THE COURT:

s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 9 of 9