Marcum v. Astrue

Filing 11

ORDER re 1 SOCIAL SECURITY COMPLAINT filed by James Marcum affirming decision of Commissioner and dismissing case. Signed on 9/12/2011 by Magistrate Judge Matt J. Whitworth. (Bode, Kay)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION

JAMES MARCUM,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant.

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No. 10-6116-SSA-CV-SJ-MJW

ORDER
Plaintiff James Marcum seeks judicial review,1 of a final administrative decision denying
plaintiff disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a final decision of
the Commissioner of the Security Administration under Title II. The parties’ briefs are fully
submitted, and an oral argument was held on July 7, 2011. The complete facts and arguments are
presented in the parties’ briefs and will not be repeated here.
Standard of Review
The Eighth Circuit has set forth the standard for the federal courts’ judicial review of
denial of benefits, as follows:
Our role on review is to determine whether the Commissioner’s findings
are supported by substantial evidence on the record as a whole. Substantial
evidence is less than a preponderance, but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion. In determining
whether existing evidence is substantial, we consider evidence that detracts from
the Commissioner’s decision as well as evidence that supports it. As long as
substantial evidence in the record supports the Commissioner’s decision, we may
not reverse it because substantial evidence exists in the record that would have
supported a contrary outcome or because we would have decided the case
differently.

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With the consent of the parties, this case was assigned to the United States Magistrate
Judge, pursuant to the provisions of 28 U.S.C. § 636(c).

Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006).
The claimant has the initial burden of establishing the existence of a disability as defined
by 42 U.S.C. § 423(d)(1). See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the
statutory definition, "the claimant must show (1) that he has a medically determinable physical or
mental impairment which will either last for at least twelve months or result in death, (2) that he
is unable to engage in any substantial gainful activity, and (3) that this inability is the result of his
impairment." McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983).
When reviewing the record to determine if there is substantial evidence to support the
administrative decision, the court considers the educational background, work history and present
age of the claimant; subjective complaints of pain or other impairments; claimant’s description of
physical activities and capabilities; the medical opinions given by treating and examining
physicians; the corroboration by third parties of claimant’s impairments; and the testimony of
vocational experts when based upon proper hypothetical questions that fairly set forth the
claimant’s impairments. McMillian, 697 F.2d at 221.
Discussion
On August 25, 2006, plaintiff James Marcum (hereinafter “Marcum”) filed a Title II
application for a period of disability and disability insurance benefits alleging disability
beginning September 1, 2000. Marcum alleges he lost his job in the Air Force as an air traffic
controller due to his diabetes. Marum was 38 years of age at the time. Since that time, the
Administrative Law Judge (ALJ) determined that Marcum has not engaged in substantial gainful
activity but has worked on a limited basis from August 2005 to September 2008 as a substitute
teacher, and as a pizza delivery driver. Marcum alleges disability due to bipolar disorder and
pain in his feet and legs.
The ALJ found that through Marcum’s date of last insured (December 31, 2006), he has
suffered from the severe impairments of diabetes mellitus and bipolar disorder. The ALJ
determined Marcum to have the residual functional capacity to perform light exertional work
with noted restrictions in areas in which Marcum was believed to have some physical or mental
limitation. The ALJ determined that Marcum was not under disability, as defined in the Social

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Security Act, at any time from September 1, 2000, Marcum’s alleged onset date, through
December 31, 2006, the date last insured.
Marcum alleges that the ALJ erred at Steps 2 and 3 of the evaluation process in not
finding his diabetic neuropathy to be a severe impairment. Marcum also alleges that the RFC
failed to account for limitations caused by his neuropathy, and that the ALJ erred in discounting
his credibility.
Upon review of the record, it is clear that the ALJ’s determination at Step 2 that Marcum
suffered from the severe impairment of diabetes incorporated Marcum’s resulting diabetes
neuropathy. The ALJ’s listing of “diabetes mellitus” as a severe impairment properly addressed
Marcum’s neuropathy at Steps 2 and 3 of the evaluation process. The ALJ also properly
discussed the neuropathy at the RFC stage of the evaluation process. There is substantial
evidence in the record to support that the ALJ properly considered Marcum’s neuropathy at Steps
2 and 3 and at the RFC stage of the evaluation process.
In assessing a claimant’s credibility, an ALJ must consider all the evidence related to the
subjective complaints, the claimant’s daily activities, observations of third parties, and the
reports of treating and examining physicians. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). If an ALJ explicitly discredits a claimant’s testimony and gives good reason for doing so,
the court will normally defer to the ALJ’s credibility determination. Gregg v. Barnhart, 354 F.3d
710, 713-14 (8th Cir. 2003). This is exactly what the ALJ did here. The ALJ specifically
discussed Marcum’s medically determinable impairments of diabetes and bipolar disorder, but
determined, based on the evidence in the record as a whole, that Marcum’s statements
concerning the intensity, persistence and limiting effects of his symptoms were not fully credible.
The ALJ noted that during the pendency of his disability claim proceedings, claimant had been
enrolled in college on a full-time basis and was only a few hours from obtaining his masters
degree in education. The ALJ also noted that Marcum had not been invited for substitute
teaching jobs because he was accused (and he denied) of sexually harassing a female student in
one district and terminated from another for inappropriate use of a computer; and lost his job as a
delivery driver because of too many traffic tickets. The ALJ also noted Marcum’s stated
aspiration of teaching in the junior college setting where less standing and classroom time would
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be required than with his experience in student teaching. Based on the foregoing, this court finds
that the ALJ’s conclusion that Marcum’s self-reported symptoms were not entirely credible is
supported by substantial evidence. “The ALJ may disbelieve subjective complaints if there are
inconsistencies in the evidence as a whole.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). The ALJ did not err by discrediting the severity of Marcum’s symptoms.
Conclusion
After review of the parties’ briefs, the decision of the ALJ, the transcript of the hearing
and the medical and documentary evidence, this Court finds substantial evidence in the record to
support the Commissioner’s decision.
Accordingly, it is ORDERED that the decision of the Commissioner is affirmed and this
case is dismissed.
Dated this 12th day of September, 2011, at Jefferson City, Missouri.

/s/

Matt J. Whitworth

MATT J. WHITWORTH
United States Magistrate Judge

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