MALLERNEE v. COLVIN

Filing 17

ENTRY REVIEWING THE COMMISSIONER'S DECISION - Plaintiff David B. Mallernee applied for supplemental security income from the Social Security Administration ("SSA") on January 11, 2012, alleging disability beginning on June 1, 2004. [Filing No. 11-5 at 2.] His claim was denied initially and on reconsideration, and a hearing was held before Administrative Law Ramona Scales (the "ALJ") on November 7, 2013. [Filing No. 11-2 at 22.] The ALJ issued a decision on Novemb er 26, 2013, concluding that Mr. Mallernee was not entitled to the requested benefits. [Filing No. 11-2 at 10-17.] The Appeals Council denied his request for review on January 14, 2015, making the ALJ's decision the Commissioner's " ;final decision" subject to judicial review. [Filing No. 11-2 at 2-4.] Mr. Mallernee filed this civil action pursuant to 42 U.S.C. § 405(g), representing himself pro se and asking this Court to review his denial of benefits. Mr. Mallerne e has presented no legal basis to overturn the Commissioner's decision denying his request for supplemental security income. Therefore, the decision below is AFFIRMED. Final judgment shall issue accordingly. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 10/22/2015.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DAVID B. MALLERNEE,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.

No. 2:15-cv-00050-JMS-WGH

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff David B. Mallernee applied for supplemental security income from the Social
Security Administration (“SSA”) on January 11, 2012, alleging disability beginning on June 1,
2004. [Filing No. 11-5 at 2.] His claim was denied initially and on reconsideration, and a hearing
was held before Administrative Law Ramona Scales (the “ALJ”) on November 7, 2013. [Filing
No. 11-2 at 22.] The ALJ issued a decision on November 26, 2013, concluding that Mr. Mallernee
was not entitled to the requested benefits. [Filing No. 11-2 at 10-17.] The Appeals Council denied
his request for review on January 14, 2015, making the ALJ’s decision the Commissioner’s “final
decision” subject to judicial review. [Filing No. 11-2 at 2-4.] Mr. Mallernee filed this civil action
pursuant to 42 U.S.C. § 405(g), representing himself pro se and asking this Court to review his
denial of benefits.
I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits and
Supplemental Security Income to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212,
214 (2002). “The statutory definition of ‘disability’ has two parts. First, it requires a certain kind
of inability, namely, an inability to engage in any substantial gainful activity. Second it requires

an impairment, namely, a physical or mental impairment, which provides reason for the inability.
The statute adds that the impairment must be one that has lasted or can be expected to last ... not
less than 12 months.” Id. at 217.
When an applicant appeals an adverse benefits decision, this Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ
“is in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d 668,
678 (7th Cir. 2008), this Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong,” Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),
evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals one of
the impairments listed by the [Commissioner]; (4) whether the claimant can
perform [his] past work; and (5) whether the claimant is capable of performing
work in the national economy.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If
a claimant satisfies steps one, two, and three, [he] will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then [he] must satisfy step four. Once step four
is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).

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After Step Three, but before Step Four, the ALJ must determine a claimant’s RFC by
evaluating “all limitations that arise from medically determinable impairments, even those that are
not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ “may not
dismiss a line of evidence contrary to the ruling.” Id. The ALJ uses the RFC at Step Four to
determine whether the claimant can perform his own past relevant work and if not, at Step Five to
determine whether the claimant can perform other work. See 20 C.F.R. § 416.920(e), (g). The
burden of proof is on the claimant for Steps One through Four; only at Step Five does the burden
shift to the Commissioner. Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate only where all factual issues have been resolved and the record
can yield but one supportable conclusion.” Id. (citation omitted).
II.
BACKGROUND
Mr. Mallernee was almost thirty-two years old when he applied for disability benefits,
alleging an onset date of June 1, 2004. [Filing No. 11-5 at 2.] Mr. Mallernee testified at the
hearing that he last worked in 2006 at Great Dane as a general laborer. [Filing No. 11-2 at 26-27.]
Mr. Mallernee contends that he is unable to work because of back pain, knee pain, and “not being
able to stand or walk for any decent period of time.” [Filing No. 11-2 at 29.]
Using the five-step sequential evaluation set forth by the SSA in 20 C.F.R. §
404.1520(a)(4), the ALJ issued a decision on November 26, 2013, concluding that Mr. Mallernee
was not entitled to the requested benefits. [Filing No. 11-2 at 10-17.] The ALJ found as follows:
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At Step One of the analysis, the ALJ found that Mr. Mallernee had not engaged in
substantial gainful activity since January 11, 2012, the application date. [Filing No.
11-2 at 12.]

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At Step Two of the analysis, the ALJ found that Mr. Mallernee “has the following
medically determinable impairments: scoliosis/thoracic kyphosis, thyromboctyopenia
/ idiopathic thrombocytopenia purpura, and irritable bowel syndrome. [Filing No. 112 at 12.] The ALJ concluded, however, that Mr. Mallernee “does not have an
impairment or combination of impairments that has significantly limited (or is expected
to significantly limit) the ability to perform basic work-related activities for 12
consecutive months; therefore, [Mr. Mallernee] does not have a severe impairment or
combination of impairments.” [Filing No. 11-2 at 12.]

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Because the ALJ concluded that Mr. Mallernee did not have a severe impairment at
Step Two, as was required for him to be entitled to the requested disability benefits, the
ALJ did not proceed to the remaining steps of the sequential analysis. [Filing No. 112 at 12-17.]

Mr. Mallernee requested that the Appeals Council review the ALJ’s decision, but that
request was denied on January 14, 2015, making the ALJ’s decision the Commissioner’s “final
decision” subject to judicial review. [Filing No. 11-2 at 2-4.] Mr. Mallernee now seeks relief from
this Court. [Filing No. 1.]

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III.
DISCUSSION
In its entirety, Mr. Mallernee’s brief provides as follows:

[Filing No. 13.]
In response, the Commissioner summarizes the relevant evidence and argues that
substantial evidence supports the ALJ’s evaluation of the medical opinion evidence. [Filing No.
16.] The Commissioner contends that to the extent Mr. Mallernee is arguing that the ALJ
improperly gave little weight to his treating physician’s opinion, the ALJ sufficiently explained
her reasons for doing so. [Filing No. 16 at 9-10.]
Mr. Mallernee did not file a reply brief.
The Court is mindful of the fact that Mr. Mallernee is representing himself pro se in this
matter. That does not, however, alter the fact that this Court’s role is limited to reviewing the
ALJ’s decision, and making sure that the evidence that was before the ALJ supports that decision.
A claimant representing himself still “must present arguments supported by legal authority and
citations to the record.” Cadenhead v. Astrue, 410 F. App’x 982, 984 (7th Cir. 2011) (citing
Correa v. White, 518 F.3d 516, 517 (7th Cir. 2008)). “A generalized assertion of error is not
sufficient to challenge an adverse ruling, and undeveloped or unsupported contentions are
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waived.” Cadenhead, 410 F. App’x at 984 (citing Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001)).
Mr. Mallernee makes a generalized assertion of legal error and does not develop any
arguments regarding how the ALJ’s decision is allegedly erroneous. [Filing No. 13.] Instead, Mr.
Mallernee lists each of the five steps and then cites the same two exhibits as support for disability
at each step. [Filing No. 13 (citing Filing No. 11-7 at 2-5 (Exhibit 1F) and Filing No. 11-10 at 4647 (Exhibit 18F)).] This general challenge is insufficient, and the Court concludes that Mr.
Mallernee has waived any argument of error regarding the ALJ’s opinion finding him not to be
disabled as defined by the Social Security Act.
The Court did review the two exhibits that Mr. Mallernee cites in his brief—Exhibit 1F
and Exhibit 18F. [Filing No. 13.] Both are reports containing opinions from Mr. Mallernee’s
treating physician, Dr. Nedu Gopala, concluding that Mr. Mallernee is not capable of full-time
work. [Filing No. 11-7 at 3; Filing No. 11-10 at 47.] In his decision denying Mr. Mallernee’s
benefits request, the ALJ gave “little weight” to Dr. Gopala’s opinions for the following reasons:

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[Filing No. 11-2 at 16-17.]
It is possible that Mr. Mallernee cited Dr. Gopala’s reports because Mr. Mallernee believes
that the ALJ violated the well-known “treating physician rule,” which “directs the [ALJ] to give
controlling weight to the medical opinion of a treating physician if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the
other substantial evidence.” Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). If that was Mr.
Mallernee’s intention, however, the Court must reject such a challenge because he does not
acknowledge the ALJ’s detailed reasons for giving Dr. Gopala’s opinions little weight or argue
why the stated reasons were insufficient. “[A] claimant is not entitled to disability benefits simply
because [his] physician states that [he] is disabled or unable to work.” Dixon v. Massanari, 270
F.3d 1171, 1177 (7th Cir. 2001).
Because Mr. Mallernee has not developed any arguments regarding why the ALJ’s decision
was erroneous, any such challenges are waived, and the Court must affirm the decision below.
Final judgment shall enter accordingly.
IV.
CONCLUSION
Mr. Mallernee has presented no legal basis to overturn the Commissioner’s decision
denying his request for supplemental security income.
AFFIRMED. Final judgment shall issue accordingly.
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Therefore, the decision below is

Date: October 22, 2015

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via US Mail:
DAVID B. MALLERNEE
2820 S. 13th 1/2th Street
Terre Haute, IN 47802
Electronic Distribution via CM/ECF:
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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