Cullen v. Astrue

• Decision Date: 13 March 2007
• Docket Number: No. 05-4142-JAR.,05-4142-JAR.
• Citation: 480 F.Supp.2d 1258
• Parties: David L. CULLEN, Plaintiff, v. Michael J. ASTRUE,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

480 F.Supp.2d 1258

David L. CULLEN, Plaintiff, v. Michael J. ASTRUE,¹ Commissioner of Social Security, Defendant.

No. 05-4142-JAR.

United States District Court, D. Kansas.

March 13, 2007.

Jean C. Owen, Law Office of Jean C. Owen, Mission, KS, for Plaintiff.

Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER ADOPTING RECOMMENDATION AND REPORT

ROBINSON, District Judge.

The Commissioner of Social Security denied Plaintiff's application for disability insurance benefits under the Social Security Act. Plaintiff sought review of the Administrative Law Judge's ("ALP) decision and the Magistrate Judge, the Honorable John Thomas Reid issued a Recommendation and Report (Doc. 12) on January 30, 2007, which recommended the Commissioner's decision be affirmed. This matter is currently before the Court on Plaintiffs Objections (Doc. 13) to the Recommendation and Report and Defendant's Response (Doc. 14) to Plaintiffs Objections.

The standards the Court must employ when reviewing objections to a recommendation and report are clear.² Only those portions of a recommendation and report identified as objectionable will be reviewed.³ The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation."⁴

Plaintiff objects to those portions of the Recommendation and Report which: (1) found that the ALJ's error in not considering the opinion of Dr. Zimmerman, was harmless error; (2) upheld the ALJ's evaluation that plaintiff's subjective complaints of frequent bowels, dumping syndrome and severe fatigue were not credible; and (3) consequently upheld the ALJ's determination that plaintiff had an RFC for light, non-physically stressful work that allowed ready access to restroom facilities. Defendant responds by urging the Court to adopt the Recommendation and Report, without defendant providing any additional analysis or substantive argument.

The Court has conducted a de novo review, considering the relevant evidence of record, and agrees with Magistrate Judge Reid's finding that the ALJ's credibility and RFC determinations should be affirmed. As Judge Reid explained at length, the ALJ discounted plaintiffs credibility based on numerous reasons evidenced in the record, as set forth in more than two pages of the ALJ's decision. Further, Judge Reid appropriately examined the ALJ's findings in light of the well recognized Luna⁵ factors for evaluating subjective testimony regarding symptoms, as well as the factors for evaluating credibility under the regulations promulgated by the Commissioner. As Judge Reid explained, these regulations largely overlap and expand on the same factors set forth in Luna. Nonetheless, plaintiff fails to identify what factors in the regulations Judge Reid did not apply in his evaluation of his credibility, just as in his submissions to Judge Reid, plaintiff failed to support his allegations that the ALJ had failed to consider the factors under the regulations.

Moreover, this Court agrees with Judge Reid's determination that the ALJ's failure to consider Dr. Zimmerman's report was harmless error. Dr. Zimmerman's opinion was of limited utility. The only medical evidence available to Dr. Zimmerman during the relevant time period of January 1, 1992 through September 30, 1996, were the records of Dr. Kleinholz, whose findings were based solely on plaintiffs subjective complaints. For these reasons, Plaintiff s objections are denied and the Court accepts the January 30, 2007 Recommendation and. Report and adopts it as its own.

IT IS THEREFORE ORDERED that Plaintiffs Objections to the Recommendation and Magistrate Judge Reid (Doc. 13) shall be denied.

IT IS FURTHER ORDERED that the January 30, 2007 Recommendation and Report (Doc. 12) shall be adopted by the Court as its own.

IT IS SO ORDERED.

DAVID L. CULLEN, Plaintiff,

v.

LINDA S. McMAHON,¹ Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

REID, United States Magistrate Judge.

Plaintiff seeks review of a final decision of the Commissioner of Social Security (hereinafter Commissioner) denying disability insurance benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423(hereinafter the Act). The matter has been referred to this court for a report and recommendation. The court recommends the Commissioner's decision be AFFIRMED.

I. Background

Plaintiff's application for disability insurance benefits was denied initially and upon reconsideration. (R. 26, 38-42). Plaintiff sought and was granted a hearing before an Administrative Law Judge (ALJ) on Oct. 21, 2004. (R. 26, 458-508). Plaintiff was represented by an attorney at the hearing, and plaintiff and a vocational expert testified. (R. 26, 458, 459). On Nov. 9, 2004, the ALJ issued a decision in which he found, at step four of the sequential evaluation process, that during the relevant period plaintiff had the functional capacity to perform his past relevant work as a cable television marketing director or marketing manager, and as a pager company account manager. (R. 26-37). Therefore, the ALJ found plaintiff is not disabled within the meaning of the Act, and denied his application. (R. 36, 37).

Specifically, the ALJ considered whether plaintiff was disabled within the meaning of the Act at any time between plaintiffs alleged onset of disability on Jan. 1, 1992 and the date plaintiff last met the insurance requirements of the Act, Sept. 30, 1996. (R. 26-27). He determined that during the applicable time frame plaintiff had a combination of impairments which was severe within the meaning of the Act, consisting of a history of pancreatic cancer requiring extensive surgery but without recurrence, associated development of adult respiratory distress syndrome, a single episode of acute pancreatitis which resolved, and a history of moderate gastritis. (R. 27). He found that during the applicable time period plaintiff did not have an impairment or combination of impairments which met or medically equaled the severity of an impairment listed in the Listing of Impairments. (R. 27-28).

The ALJ next considered plaintiff's testimony and the record evidence, including medical evidence, and assessed plaintiff s residual functional capacity (RFC) during the applicable time frame. (R. 29-36). He found plaintiffs allegations not credible and assessed plaintiffs RFC for light, non-physically stressful work, not requiring prolonged exposure to extremes of environmental irritants, but allowing ready access to restroom facilities. (R. 36). Based upon the RFC assessed, the vocational expert's testimony, and the record evidence, the ALJ determined that plaintiff was able, during the applicable time frame, to perform all of his past relevant work. Id.

Plaintiff sought Appeals Council review of the ALJ's decision and submitted additional evidence for the Appeals Council's consideration. (R. 13-17, 21-22, 436-57). The Appeals Council issued an order making the additional evidence part of the administrative record (R. 12), but denied plaintiffs request for review of the hearing decision. (R. 8-11). Consequently, the ALJ's decision is the final decision of the Commissioner. (R. 8); Threet v. Barnhart, 353 F.3d 1185, 1187 (10th Cir.2003). Plaintiff now seeks judicial review.

II. Legal Standard

The court's, review is guided by the Act. 42 U.S.C. § 405(g). Section 405(g) provides, "The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court must determine whether the factual findings are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard. White v. Barnhart, 287 F.3d 903, 905 (10th Cir.2001). The court must base its decision only upon the administrative record, but in this case that includes the evidence made a part of the record by order of the Appeals Council. O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994). Substantial evidence is more than a scintilla, but less than a preponderance, it is such evidence as a reasonable mind might accept to support the conclusion. Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.1988). The court may "neither reweigh the evidence nor substitute [it's] judgment for that of the agency." White, 287 F.3d at 905 (quoting Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 800 (10th Cir.1991)). The determination of whether substantial evidence supports the Commissioner's decision, however, is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989).

An individual is under a disability only if that individual can establish that he has a physical or mental impairment which prevents him from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d). The claimant's impairments must be of such severity that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the economy. Id.

The Commissioner has established a five-step sequential process to evaluate whether a claimant is disabled.² 20 C.F.R. § 404.1520 (2004);³ Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.2004); Ray, 865 F.2d at 224. "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).

In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has severe impairments, and whether the severity of his...