Burke v. Astrue

Filing 35

MEMORANDUM OPINION -The Court has reviewed the evidence related to this case, the opinion of the ALJ, and defendants brief defending such opinion, and is satisfied the ALJs opinion is supported by substantial evidence on the record as a whole. Thu s, the Court finds no reason to reverse the final decision of the defendant Commissioner and will defer to the findings and conclusions of the Social Security Administration. The Commissioners denial of Mr. Burkes disability benefits and supplemental social security income benefits claim will be affirmed. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e- mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
JOSEPH K. BURKE,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

8:10CV445

MEMORANDUM OPINION

This matter is before the Court for judicial review of
a final decision of the defendant Commissioner of the Social
Security Administration (“Commissioner”) pursuant to 42 U.S.C.
§§ 405(g), 1382(c)(3) of the Social Security Act and upon
plaintiff Joseph K. Burke’s (“Mr. Burke”) motion to file new
evidence (Filing No. 10).

The Commissioner denied Mr. Burke’s

application for disability benefits and supplemental social
security income benefits, finding he was not under a disability
from September 9, 2004, the alleged onset date, through September
22, 2008, the date of the Administrative Law Judge’s (“ALJ”)
final opinion.

Upon review, the Court finds the Commissioner’s

decision is supported by substantial evidence on the record as a
whole.
Mr. Burke also filed a request for criminal charges to
be brought against the defense counsel and defendant (Filing No.

34).

This matter is not properly before the Court, and the

request will be denied without prejudice.
I. BACKGROUND
Mr. Burke filed for benefits on January 24, 2006 (Tr.
13).1

Mr. Burke claimed he became disabled on September 9, 2004,

due to headaches, chest and back pain, numbness, and other
problems related to anxiety, depression, and personality disorder
(Tr. 15, 86, 138, 363-64, 367).

In the years before Mr. Burke’s

alleged disability began, he worked as a telemarketer and
realtor, among other jobs (Tr. 360-61, 389-90).

His applications

were denied initially on April 7, 2006, and upon reconsideration
on June 20, 2006 (Tr. 13).
Mr. Burke filed a timely written request for a hearing
on August 18, 2006 (Tr. 13).

An ALJ held an administrative

hearing on September 8, 2008 (Tr. 354-401).

At the hearing, Mr.

Burke stood at 5'11" tall, weighing 196 pounds, and was forty-six
years old (Tr. 24, 35, 260).

He testified that he had worked

since the alleged onset date and continues to work collecting
cans and metal, but per his testimony does not earn enough to
constitute substantial gainful activity (Tr. 15).

In a decision

dated September 22, 2008, the ALJ found Mr. Burke was not

1

Mr. Burke filed a prior application for benefits
October 26, 2004, which was denied at the initial level
appealed (Tr. 13). As Mr. Burke alleged the same onset
both the 2004 and 2006 applications, the ALJ considered
that pertained to both applications (Tr. 13).
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on
and not
date in
evidence

disabled (Tr. 13-24).

The Appeals Council denied Mr. Burke’s

request for review of the ALJ’s decision on September 23, 2010
(Tr. 6).
Mr. Burke filed a pro-se complaint with this Court on
November 29, 2010, for judicial review of the Commissioner’s
final decision (Filing No. 1).

On January 24, 2011, he filed a

motion to file new evidence (Filing No. 10).

Mr. Burke amended

his complaint on March 16, 2010 (Filing No. 18).

This Court

ordered Mr. Burke to file a brief in support of his amended
complaint within 30 days of April 22, 2011, and for defendant to
file a brief in response 30 days thereafter (Filing No. 24).

Mr.

Burke failed to file a brief by the date ordered.
On June 29, 2011, this Court ordered Mr. Burke to show
cause in writing, not later than July 20, 2011, as to why this
action should not be dismissed for failure to prosecute (Filing
No. 25).

On July 21, 2011, Mr. Burke filed a motion to extend

time to respond (Filing No. 26).

The Court granted Mr. Burke’s

motion, allowing him until August 26, 2011, to respond to the
Court’s order (Filing No. 27).

On August 29, 2011, Mr. Burke

filed a motion to extend time to seek counsel to show cause
(Filing No. 28).

The Court granted his motion, allowing Mr.

Burke until October 3, 2011, to obtain counsel or file a brief in
support of his complaint (Filing No. 29).

The Court informed Mr.

Burke that no further extensions would be granted, and the case

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would be deemed submitted if he fails to comply with the Court’s
order (Filing No. 29).

Mr. Burke filed a brief in support of his

complaint on October 5, 2011, two days after the deadline set by
the Court (Filing No. 30).

Defendant filed a brief in response

(Filing No. 33).
II. DISCUSSION
“The Social Security Act generally precludes
consideration on review of evidence outside the record before the
Secretary,” Delrosa v. Sullivan, 922 F.2d 480, 483 (1991)
(citations omitted).

Mr. Burke has filed a motion asking the

Court to consider “appointments” which allegedly took place on
November 24, 2010, December 23, 2010, and January 12, 2011, over
two years after the ALJ’s opinion.

See Filing No. 10.

Mr. Burke

claims he learned at these appointments he may have “C.O.P.D.”
(chronic obstructive pulmonary disease), and he now requires
further testing to know if he is disabled.

See Filing No. 10.

Mr. Burke did not mention these appointments in his subsequently
filed amended complaint or supporting brief.

Thus, the new

evidence provided in Mr. Burke’s motion to file new evidence,
which was acquired over two years after the proceedings below,
will not be considered by this Court.
84.

Delorosa, 922 F2d. at 483-

Mr. Burke’s motion to file new evidence will be denied.
When reviewing an ALJ’s decision, the Court must

determine whether the ALJ’s decision complies with the relevant

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law and is supported by substantial evidence in the record as a
whole.

Martise v. Astrue, 641 F.3d 909, 920 (8th Cir. 2011).

Substantial evidence is:
relevant evidence that a reasonable
mind might accept as adequate to
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
detracts from its weight. Thus,
the court must also take into
consideration the weight of the
evidence in the record and apply a
balancing test to evidence which is
contradictory.
Id. at 920-21 (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).

“‘If, after reviewing the record, the court

finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’”

Partee v.

Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).

The Court may not

reverse the ALJ’s decision merely because the Court would have
come to a different conclusion.
614 (8th Cir. 2011).
disability.

Teague v. Astrue, 638 F.3d 611,

Plaintiff bears the burden of proving

Id. at 615.

The Eighth Circuit has further noted

that a court should “defer heavily to the findings and

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conclusions of the SSA.”

Howard v. Massanari, 225 F.3d 577, 581

(8th Cir. 2001).
Mr. Burke failed to address any issues relevant to his
appeal in his supporting brief.

See filing No. 30.

Thus,

defendant’s response brief provides the Court with a “general
defense” of the ALJ’s decision.

See filing No. 33.

The Court has reviewed the evidence related to this
case, the opinion of the ALJ, and defendant’s brief defending
such opinion, and is satisfied the ALJ’s opinion is supported by
substantial evidence on the record as a whole.

It is Mr. Burke’s

burden to prove his disability, and he has failed to provide this
Court with any issues pertinent to the appeal of this issue.
Teague, 638 F.3d at 615.

Thus, the Court finds no reason to

reverse the final decision of the defendant Commissioner and will
defer to the findings and conclusions of the Social Security
Administration.

The Commissioner’s denial of Mr. Burke’s

disability benefits and supplemental social security income
benefits claim will be affirmed.

A separate order will be

entered in accordance with this memorandum opinion
DATED this 3rd day of February, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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