Xiong v. Colvin

• Decision Date: 05 February 2014
• Docket Number: Civil No. 13–396 (DWF/JSM).
• Citation: 995 F.Supp.2d 958
• Parties: GE XIONG, Plaintiff, v. Carolyn W. COLVIN, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Minnesota

995 F.Supp.2d 958

GE XIONG, Plaintiff,

v.Carolyn W. COLVIN, Commissioner of Social Security, Defendant.

Civil No. 13–396 (DWF/JSM).

United States District Court, D. Minnesota.

Feb. 5, 2014.

Ge Xiong, Brooklyn Park, MN, pro se.

Ann M. Bildtsen, United States Attorney's Office, Minneapolis, MN, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

DONOVAN W. FRANK, District Judge.

The above matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Janie S. Mayeron dated January 21, 2014. (Doc. No. 19.) No objections have been filed to that Report and Recommendation in the time period permitted. Defendant filed a “Non-objection Response to Report and Recommendation” (in support of the Report and Recommendation) on February 4, 2014. (Doc. No. 21.) The factual background for the above-entitled matter is clearly and precisely set forth in the Report and Recommendation and is incorporated by reference. Based upon the Report and Recommendation of the Magistrate Judge, and upon all of the files, records, and proceedings herein, the Court now makes and enters the following:

ORDER

1. Magistrate Judge Janie S. Mayeron's Report and Recommendation (Doc. No. [19] ) is ADOPTED.

2. Plaintiff's Motion for Summary Judgment (Doc. No. [9] ) is DENIED.

3. Defendant's Motion for Summary Judgment (Doc. No. [11] ) is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, United States Magistrate Judge.

The above matter is before the undersigned United States Magistrate Judge on plaintiff's Motion for Summary Judgment [Docket No. 9] and defendant's Motion for Summary Judgment [Docket No. 11]. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).

For the reasons discussed below, it is recommended that plaintiff's Motion for Summary Judgment be DENIED and that defendant's Motion for Summary Judgment be GRANTED.

I. PROCEDURAL BACKGROUND

On July 27, 2010, plaintiff GE Xiong filed an application for disability insurance benefits, alleging disability since August 1, 2009, due to seizures and cirrhosis of the liver. See Social Security Administrative Record [Docket No. 8] (“Tr.”), 63, 149–52. Xiong's applications were denied initially and upon reconsideration. Tr. 63–65. At Xiong's request, an administrative hearing was held on April 16, 2012, before AdministrativeLaw Judge Mary Kunz (“ALJ”). Tr. 26, 80. Xiong was represented during the hearing. Tr. 28. Testimony was taken at the hearing from Xiong, medical expert Dr. Andrew Steiner, M.D. (“ME”), and vocational expert Robert Brzezinski (“VE”). Tr. 27. The ALJ issued a decision on April 26, 2012, finding that Xiong was not disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 9–18. Xiong filed a request for review of the ALJ's decision with the Appeals Council, the Appeals Council denied Xiong's request for review and upheld the ALJ's decision denying disability insurance benefits to Xiong (Tr. 1–5), making the ALJ's findings the final decision of defendant. See42 U.S.C. § 405(g).

Xiong has sought review of the ALJ's decision by filing a Complaint with this Court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). [Docket No. 1]. The parties now appear before the Court on cross-motions for summary judgment [Docket Nos. 9 and 11].

II. PROCESS FOR REVIEW

Congress has prescribed the standards by which Social Security disability benefits may be awarded. The Social Security Administration shall find a person disabled if the claimant “is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” 42 U.S.C. § 1382c(a)(3)(A). The claimant's impairments must be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). The impairment must last for a continuous period of at least twelve months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A); see also20 C.F.R. §§ 404.1509, 416.909.

If a claimant's initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. §§ 404.907–09, 416.1407–09. A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. §§ 405(b)(1), 1383(c)(1); 20 C.F.R. §§ 404.929, 416.1429. To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant's work history, impairment, residual functional capacity, past work, age, education and work experience. See20 C.F.R. §§ 404.1520, 416.920; see also Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992); 42 U.S.C. § 1382(a). The Eighth Circuit described this five-step process as follows:

The Commissioner of Social Security must evaluate: (1) whether the claimant is presently engaged in a substantial gainful activity; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.

Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir.2003).

If the claimant is dissatisfied with the ALJ's decision, he or she may request review by the Appeals Council, though review is not automatic. 20 C.F.R. §§ 404.967–404.982, 416.1467–1482. The decision of the Appeals Council (or of the ALJ, if the request for review is denied) is final and binding upon the claimant unless the matter is appealed to Federal District Court within sixty days after notice of the Appeals Council's action. 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481.

Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and to consider:

1. The credibility findings made by the ALJ.

2. The plaintiff's vocational factors.

3. The medical evidence from treating and consulting physicians.

4. The plaintiff's subjective complaints relating to exertional and nonexertional activities and impairments.

5. Any corroboration by third parties of plaintiff's impairments.

6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth plaintiff's impairment.

Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir.1989) (citing Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir.1980)).

The review by this Court is limited to a determination of whether the decision of the ALJ is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir.2008); Johnston v. Apfel, 210 F.3d 870, 874 (8th Cir.2000); Clark v. Chater, 75 F.3d 414, 416 (8th Cir.1996). “We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole.” Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir.2000) (citation omitted).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.1994). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Buckner, 213 F.3d at 1012 (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.2000)); see alsoSlusser v. Astrue, 557 F.3d 923, 925 (8th Cir.2009) (citing Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)) (same); Cox v. Apfel, 160 F.3d 1203, 1206–07 (8th Cir.1998) (same).

In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir.2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson, 30 F.3d at 939. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Buckner, 213 F.3d at 1011; Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir.1994); see also Woolf, 3 F.3d at 1213 (the ALJ's determination must be affirmed, even if substantial evidence would support the opposite finding). Instead, the Court must consider “the weight of the evidence in the record and apply a balancing test to evidence which is contradictory.” Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987); see also Heino v. Astrue, 578 F.3d 873, 878 (8th Cir.2009) (quoting Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir.1989)) (same).

The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Social Security Act. See20 C.F.R. §§ 404.1512(a), 416.912(a); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir.1991). Once the claimant has demonstrated he or she cannot perform prior work due to a disability, the burden of proof then shifts to the Commissioner...