Milliman v. Berryhill

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 22 Motion for Summary Judgment filed by Commissioner of the Social Security Administration, 16 Motion for Summary Judgment filed by Lance Gerald Milliman, 27 Report and Recommendation, (Written Opinion). Signed by Senior Judge David S. Doty on July 28. 2017. (JRC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-2008(DSD/LIB)
Lance Gerald Milliman,
Plaintiff,
v.

ORDER

Nancy A. Berryhill, Acting
Commissioner of Social Security,
Defendant.

This

matter

is

before

the

court

upon

the

objection

by

plaintiff Lance Gerald Milliman to the June 29, 2017, report and
recommendation of United States Magistrate Judge Leo I. Brisbois.
In his report, the magistrate judge recommends that the court deny
the motion for summary judgment by Milliman and grant the motion
for summary judgment by defendant Acting Commissioner of Social
Security Nancy A. Berryhill (Commissioner).

After a de novo

review, and for the following reasons, the court overrules the
objection and adopts the report and recommendation in its entirety.

BACKGROUND
The background of the action is fully set forth in the report
and recommendation, and the court briefly summarizes the history of
the present action. Milliman seeks judicial review of the decision
to deny his application for period of disability, disability
benefits, and for supplemental security income.

The Commissioner

denied the applications initially and again upon reconsideration.

Milliman then requested a hearing before an administrative law
judge (ALJ).
On April 15, 2015, the ALJ affirmed the denial of Milliman’s
applications.
making

the

Commissioner.

The Appeals Council denied a request for review,
ALJ’s

determination

the

final

decision

of

the

On June 20, 2016, Milliman filed this action,

seeking judicial review of the decision denying benefits.
parties moved for summary judgment.

Both

Magistrate Judge Brisbois

recommends granting the Commissioner’s motion.

Milliman objects.

DISCUSSION
I.

Standard of Review
The court reviews the report and recommendation (R&R) of the

magistrate judge de novo, and the findings and decisions of the ALJ
for substantial evidence on the record as a whole.

See 28 U.S.C.

§ 636(b)(1)(C); Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
2001).

“Substantial evidence is less than a preponderance, but

enough that a reasonable mind would find it adequate to support the
[ALJ’s] conclusion.”

Byes v. Astrue, 687 F.3d 913, 915 (8th Cir.

2012). On review, the court considers “both evidence that detracts
from and evidence that supports the Commissioner’s decision.”
Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004).

The

court, however, may not “reverse the Commissioner’s decision simply
because there is evidence supporting a different result.”
2

Hall v.

Chater, 109 F.3d 1255, 1258 (8th Cir. 1997). Moreover, a court may
not substitute its judgment for that of the ALJ.
Barnhart, 324 F.3d 981, 983 (8th Cir. 2003).

Fastner v.

Rather, the court

will disturb the ALJ’s decision to deny benefits only if “the
record contains insufficient evidence to support the outcome.”
Nicola v. Astrue, 480 F.3d 885, 886-87 (8th Cir. 2007).
II.

Propriety of R&R
Milliman

first

argues

that

the

R&R

is

improper

because

Magistrate Judge Brisbois was without authority to hear the matter.
Milliman maintains that he filed a request to have the matter
considered by the district judge.

This argument is without merit.

First, the docket reflects no such request by Milliman.

Second,

the court’s local rules designate magistrate judges to “submit to
the district judge proposed findings and recommendations in the
disposition of ... motions for summary judgment in social security
appeals under 42 U.S.C. § 405.”

Minn. L.R. 72.1(a)(3)(D).

See

also 28 U.S.C. § 636(b)(1)(B) (“[A] judge may ... designate a
magistrate

judge

to

conduct

hearings,

including

evidentiary

hearings, and to submit to a judge of the court proposed findings
of fact and recommendations for the disposition, by a judge of the
court ....”).

Magistrate Judge Brisbois complied with the court’s

rule in issuing an R&R in this case.

Now that Milliman has

objected to the R&R the district judge will review those objections
de novo pursuant to statute. As a result, the court overrules this

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objection.
III. ALJ Bias
Milliman also objects to the ALJ’s decision, arguing that he
was biased against him as evidenced by the fact that he yelled and
screamed at Milliman during the hearing.

The record as a whole,

and in particular the transcript of the hearing, do not support a
finding of ALJ bias.

Although the written page does not disclose

tone, none of the words used or questions asked by the ALJ betray
any bias against Milliman.

As a result, Milliman has failed to

overcome the presumption that the ALJ was unbiased.

Perkins v.

Astrue, 648 F.3d 892, 902-03 (8th Cir. 2011).
IV.

Sufficiency of Evidence
Milliman next argues that the ALJ’s decision was not based on

substantial evidence on the record as a whole.

Milliman maintains

that the ALJ relied on inadmissible evidence and disregarded
evidence favorable to him in reaching a final determination. After
careful consideration of the ALJ’s order and the transcript of the
hearing, and as set forth in detail in the R&R, the court concludes
that there was ample admissible evidence in the record to support
the ALJ’s conclusion that Milliman’s applications should be denied.
Nothing Milliman points to in his objection undermines the ALJ’s
determination.
In sum, after a de novo review, the court finds that the ALJ’s
decision was supported by substantial evidence on the record as a
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whole.

As a result, the court overrules Milliman’s objection to

the report and recommendation.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiff’s objection [ECF No. 31] to the magistrate

judge’s report and recommendation is overruled;
2.

The magistrate judge’s report and recommendation [ECF No.

27] is adopted in its entirety;
3.

Plaintiff’s motion for summary judgment [ECF No. 16] is

denied;
4.

Defendant’s motion for summary judgment [ECF No. 22] is

granted; and
5.

The case is dismissed with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 28, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court

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