Johnston v. Colvin

Filing 23

MEMORANDUM OPINION - Accordingly, for the foregoing reasons the Court finds that the Commissioner's decision should be affirmed. A separate order will be issued in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TIM E. JOHNSTON,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

8:16CV118

MEMORANDUM OPINION

This matter is before the Court on defendant’s motion
to affirm Commissioner’s decision (Filing No. 17), wherein the
Commissioner denied the plaintiff, Tim E. Johnston’s (“plaintiff”
or “Johnston”) request for disability insurance benefits.

After

review of the parties’ briefs, the record, and the applicable
law, the Court finds that the Commissioner’s decision should be
affirmed.
BACKGROUND
On September 21, 2012, plaintiff “filed an application
for disability benefits under the Social Security Disability
Insurance program.”

(Filing No. 1 at 2).

Plaintiff’s

application was denied at the initial and reconsideration levels
by the Commissioner.

(Id.).

Plaintiff sought and was granted a

hearing in front of an Administrative Law Judge (“ALJ”) (Id.).
The ALJ held a hearing on April 18, 2014 (Id.).

On May 23, 2014,

the ALJ denied Johnston’s application for benefits (Id.).
Following the ALJ’s denial, but prior to a final decision by the
Commissioner, plaintiff submitted additional evidence for the
Appeals Council to consider.

See Filing No. 9-2 at 2.

On

January 27, 2016, the Appeals Council denied plaintiff’s request
for review of the ALJ’s decision making the ALJ’s denial “the
final decision of the Commissioner . . . .”

(Id. at 1).

On March 21, 2016, plaintiff filed the instant action
in accordance with 42 U.S.C. § 405(g) (Filing No. 1 at 1).

On

July 29, 2016, plaintiff filed his brief in support of his
complaint (Filing No. 14).

On September 12, 2016, the

Commissioner filed a motion to affirm the Commissioner’s decision
(Filing No. 17) and a brief in support (Filing No. 18).

On

September 26, 2016, plaintiff filed his reply brief (Filing No.
19), as well a motion for oral argument (Filing No. 20).

The

following day, the Commissioner filed a brief in opposition to
oral argument (Filing No. 21).

Then, on September 28, 2016, the

plaintiff filed a reply brief regarding the Commissioner’s
opposition to plaintiff’s motion for oral argument (Filing No.
22).
STANDARD OF REVIEW
The Commissioner’s decision will be affirmed “if the
record contains substantial evidence to support it.”
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Edwards v.

Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).

“Substantial

evidence is less than a preponderance, but enough that a
reasonable mind might accept it as adequate to support a
decision.”

Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)

(internal marks and cite omitted).

“In determining whether

existing evidence is substantial, [a court should] consider
evidence that detracts from the Commissioner’s decision as well
as evidence that supports it.”

Hutsell v. Massanari, 259 F.3d

707, 711 (8th Cir. 2001) (internal citation omitted).

If the

record reveals substantial evidence supporting the Commissioner’s
decision, then that decision should not be reversed merely
because “substantial evidence exists in the record that would
have supported a contrary outcome.”

Hutsell, 259 F.3d at 711.

In other words, “[a court] may not reverse simply because [a
court] would have decided differently or because substantial
evidence supports a contrary outcome.”

Grable v. Colvin, 770

F.3d 1196, 1201 (8th Cir. 2014) (citing Davis v. Apfel, 239 F.3d
962, 966 (8th Cir. 2001)).

Finally, the claimant “bears the

burden of proving disability.”

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

615 (8th Cir. 2011).
DISCUSSION
Plaintiff alleges four errors on the part of the ALJ
require the Court to “reverse the final agency decision and enter
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judgment under 42 U.S.C. § 405(g) . . . [or to] reverse the ALJ’s
decision and remand this matter for further proceedings.”
(Filing No. 14 at 36).

Plaintiff first argues that “[t]he ALJ

failed to fully and fairly develop the record.”

(Id. at 24).

Plaintiff contends the “opinions from two non-examining state
agency medical consultants . . . are inadequate.”

(Id. at 23).

Plaintiff further states that because “[t]he ALJ failed to obtain
work-related limitations from a treating or examining source
. . . [and] [t]here is no other adequate source of medical
opinions . . . [t]he ALJ’s error is not harmless, particularly in
light of the additional evidence submitted to, and rejected by,
the Appeals Council.”

(Id. at 24).

The United States Court of Appeals for the Eighth
Circuit has stated that “[w]ell-settled precedent confirms that
the ALJ bears a responsibility to develop the record fairly and
fully, independent of the claimant’s burden . . . .”
Barnhart, 360 F.3d 834, 838 (8th Cir. 2004).
two problems with plaintiff’s argument.

Snead v.

However, there are

The first is that

plaintiff complains the ALJ failed to fairly and fully develop
the record but submitted additional evidence after the ALJ had
already rendered his decision.

The second is that the Appeals

Council did, in fact, make a determination as to whether the
additional evidence submitted by Johnston ought to be accepted
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and whether it ought to alter the ALJ’s decision.

See Filing No.

9-2 at 2 (stating that the Appeals Council reviewed the
additional material submitted but found it to either be duplicate
evidence or concerning a later time.

The Appeals Council then

determined that the “information does not provide a basis for
changing the . . . decision.”).

Given the problems identified

above, and a review of the record as a whole, the Court is
satisfied that the ALJ fulfilled his responsibility to fairly and
fully develop the record.
Plaintiff next argues new material evidence “should
have been admitted by the Appeals Council . . . [and that]
[r]eviewing the ALJ’s decision in light of all of the relevant
evidence, the ALJ’s decision is not supported by substantial
evidence.”

(Id. at 32).

The Eighth Circuit has explained:

if a claimant files additional
medical evidence with a request for
review prior to the date of the
[Commissioner’s] final decision,
the Appeals Council MUST consider
the additional evidence if the
additional evidence is (a) new, (b)
material, and (c) relates to the
period on or before the date of the
ALJ’s decision.
Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990) (citing
C.F.R. § 404.970 (1989)) (emphasis in original).
In this case, plaintiff submitted additional evidence

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after the ALJ’s decision.

See Filing No. 14 at 24-32.

However,

as stated above, the Appeals Council, in considering the
additional evidence, determined that 122 pages of the new
evidence was “duplicate evidence.”

(Filing No. 9-2 at 2).

The

other evidence included “medical related documents from R.
Michael Gross, M.D., . . . Bloomfield Medical Clinic P.C. . . .
John Boldt CPO, . . . Orthomedics Orthotic and Prostetic (sic)
Services, . . . twenty-seven undated photographs . . . [and] an
undated Curriculum Vitae from . . . Timothy Saulsbury Pt . . . .”
(Id.).

The Appeals Council found this evidence to concern “a

later time . . . .”

(Id.).

The Court’s independent review of

the record supports the Appeals Council’s determination both with
respect to the 122 pages’ duplicate nature and the additional
evidence relating to a later time to be in accordance with Eighth
Circuit precedent.

See Williams, 905 F.2d at 215-16.

Plaintiff’s third argument surrounds the vocational
expert’s opinion and explanation of that opinion.

Plaintiff

claims that “[t]he vocational expert’s explanation is inadequate
[and] [t]he ALJ’s reliance on that testimony is error.”
No. 14 at 34).

(Filing

The Commissioner counters “it is best to rely on

the [Vocational Expert’s] specific examination of the job data
rather than second guess the [Vocational Expert] with the
untrained assumptions of counsel . . . or the ALJ.”
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(Filing No.

18 at 13-14).

The Court agrees.

See Mabry v. Colvin, 815 F.3d

386, 389 (8th Cir. 2016) (“‘[w]e do not reweigh the evidence
presented to the ALJ,’ and we defer to the ALJ’s determinations
regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial
evidence.”) (quoting Johnson v. Colvin, 788 F.3d 870, 872 (8th
Cir. 2015)).
Finally plaintiff contends “[t]he ALJ’s assessment of
Johnston’s subjective allegations is inadequate.”
at 36).

(Filing No. 14

Plaintiff specifically argues “[t]he only reason

identified by the ALJ for discounting Johnston’s subjective
allegations was that Johnston spent 30 to 45 minutes twice a day
performing farm chores, and spent two hours a day working around
the house.”

(Id. at 35).

The Court is satisfied that the ALJ

properly considered the evidence and record as a whole in making
his determination regarding Johnston’s subjective complaints.
Accordingly, for the foregoing reasons the Court finds
that the Commissioner’s decision should be affirmed.

A separate

order will be issued in accordance with this memorandum opinion.
DATED this 1st day of February, 2017.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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