Beauclair v. Barnhart, Civil Action No. 05-3224-CM.
| Decision Date | 20 September 2006 |
| Docket Number | Civil Action No. 05-3224-CM. |
| Parties | Danny E. BEAUCLAIR, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
Danny E. Beauclair, Lansing, KS, pro se.
Jackie A. " Rapstine, Office of United States Attorney, Topeka, KS, for Defendant.
This social security appeal is before the court on the magistrate judge's Report and Recommendation to reverse and remand the Commissioner's denial of benefits. Both plaintiff, who proceeds pro se, and defendant timely objected to the Report and Recommendation (Doc. 24). The facts and law are accurately set forth in the Report and Recommendation, and the court will not repeat them here. In reviewing a magistrate judge's Report and Recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). In its review, the court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation." In re Griego, 64 F.3d 580, 584 (10th Cir.1995). The court has reviewed the record in accordance with this standard, and overrules both plaintiff's and defendant's objections.
Plaintiff makes numerous objections to the magistrate judge's findings, most of which are conclusory. Nevertheless, because plaintiff proceeds pro se, the court construes his pleadings liberally. See Hill v. Oklahoma, 18 Fed.Appx. 768, 769 (10th Cir.2001) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)). The court will address each of plaintiff's objections individually.
Plaintiff argues that new evidence shows that he is disabled. Significantly, plaintiff does not specify how his new evidence supports this conclusion. After reviewing plaintiff's new evidence and reviewing the standards for submission of new evidence, see Heimerman v. Chater, 939 F.Supp. 832, 833-34 (D.Kan.1996) (citations omitted), the court agrees with the magistrate judge's findings that (1) plaintiff's new evidence is not "new" or material, and (2) plaintiff did not show good cause for his failure to obtain and present this evidence prior to this stage in the proceedings. Plaintiff's objection is overruled.1
Plaintiff contends that the severity of his symptoms, taken as a whole, show that he is disabled. Again, plaintiff did not elaborate on this broad argument, or articulate which specific findings he opposes. The court views this as a dual argument: plaintiff opposes findings regarding (1) his impairments and (2) his credibility. The court notes that the magistrate judge found error requiring remand in both of these areas of analysis.
With respect to plaintiff's impairments, the magistrate judge found that the ALJ erred in not discussing plaintiff's diagnosis of irritable bowel syndrome ("IBS") when determining whether plaintiff's impairments are "severe" in step two of the sequential evaluation process. See 20 C.F.R. § 404.1521; Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir.1997). In other words, the magistrate judge ruled in plaintiff's favor on this issue. Plaintiff's objection is therefore moot with respect to IBS. After reviewing the record and the applicable standards, however, the court finds that substantial evidence in the record supports the magistrate judge's findings that plaintiff's other alleged impairments— herniated nucleus pulposus and myofascial pain syndrome—are not "severe." The court overrules plaintiff's objection as to this argument.
With respect to plaintiff's credibility, the magistrate judge found that one reason relied on by the ALJ in finding that plaintiff is not credible—that plaintiff demonstrates an inadequate number of "trigger points"—is not supported by substantial evidence in the record. Therefore, with regard to this finding, plaintiff's objection is moot. But the magistrate judge also found that the ALJ properly supported his finding that plaintiff is not credible with additional findings and evidence, including:
(1) plaintiff's spotty earnings record; (2) plaintiff's activities of daily living before his incarceration are not commensurate with disability; (3) the record shows his depression and anxiety were due in large part to the fact he was facing imprisonment; (4) he was noted as hypochondriacal; . . . (6) his x-rays were generally negative; (7) he was taking no mediation for his medical condition at the time of the hearing; and (8) the objective medical records do not support the extent of symptoms alleged.
Report and Recommendation (Doc. 24), at 33.
Plaintiff also argues that the ALJ did not address the fact that while he was self-employed from 1991 through 2000, plaintiff never worked a forty-hour work week. Therefore, plaintiff contends that he cannot "fulfill the requirements for 'engaging in substantial gainful activity for a continuous period of at lest [sic] twelve months.'" Plaintiff is mistaken about the requirements, for disability benefits. Moreover, the fact that plaintiff did not work full-time does not indicate that plaintiff was unable to work full-time.
Also pertinent to the court's credibility determination is plaintiff's argument that the court must have confused plaintiffs income figures for plaintiffs net income (as opposed to gross income) for the years in which plaintiff was self-employed, because, plaintiff contends, his gross income in 1999 was $50,000 and similar in previous years. The court believes that plaintiff is opposing the ALJ's and magistrate judge's "spotty income figures" finding. But this argument further weakens plaintiff's credibility. On April 13, 2000, plaintiff signed his application for disability insurance benefits and affirmed that it was true. See R. at 59-61. Within that application is plaintiff's statement that his "earnings record is correct as posted." Id. at 60. Plaintiff's earnings record, dated March 15, 2003, includes plaintiff's total yearly incomes as follows:
Year Total Yearly Income
1990 $ 6,664.02
1991 $12,004.07
1992 $ 2,006.10
1993 $ 5,291
1994 $ 8,787
1995 $ 4,852
1996 $ 4,052
1997 $ 4,853
1998 $ 942
1999 $17,017
Id. at 66. Plaintiff's allegation that he earned $50,000 gross income in 1999 is either disingenuous, or an admission that his disability application earnings figures are inaccurate.
The court has reviewed each of the reasons the ALJ relied on in finding that plaintiff is not credible, and has also reviewed the applicable standards. In so doing, the court finds that there is substantial evidence in the record to support the ALJ's finding that plaintiff is not credible. Plaintiff's objection on this point is overruled.
Plaintiff contends that the CUNA Medical Group disability documentation demonstrates that plaintiff is disabled and unable to return to work. The magistrate judge, however, found that Report and Recommendation (Doc. 24), at 10-11 (citation omitted). After reviewing the record and the applicable standards, the court agrees. Plaintiff's objection is overruled.
Plaintiff argues the magistrate judge erred when he failed to discuss the actual job duties required of plaintiff's former job as a line-striper. Plaintiff later adds that his work as a line-striper was sedentary work. But the ALJ found, and the magistrate judge did not dispute, that plaintiff is incapable of performing his previous work as a line-striper. Plaintiff's argument is misplaced.
Plaintiff seems to oppose the ALJ's findings regarding plaintiff's fibromyalgia. Plaintiff states that since the ALJ found that plaintiff suffers from fibromyalgia, "then they must take what [fibromyalgia] really is dealing with[:] the [central nervous system] and amplified pain, and its other symptoms that can be severe." Doc. 25, at 3. As an example, plaintiff points to the interaction between his fibromyalgia and his alleged herniated nucleus pulposus. The court's response to this argument is three-fold. First, the pain associated with plaintiff's fibromyalgia is largely subjective, and this court has found that plaintiff's claims of disability are not credible. Second, in support of his argument, plaintiff points only to medical literature; plaintiff does not offer any medical source opinions demonstrating the effect of these conditions on plaintiff. With regard to the large quantity of general medical literature submitted by plaintiff, the magistrate judge held:
the general information proffered is not material to the decision because it does not present a reasonable possibility of changing the decision. That information does not relate to plaintiff's condition individually, and is merely general medical information regarding plaintiff's impairments. The court finds that the evidence proffered with plaintiff's briefs does not meet the criteria to justify remand, and may not be considered by the court in its review of the final decision of the Commissioner.
Report and Recommendation (Doc. 24), at 13. The court agrees, and adopts the magistrate judge's opinion regarding plaintiff's general medical literature. Third, the court agrees with the magistrate judge's finding that plaintiff's alleged herniated nucleus pulposus is not 'an...
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