United States District Court, D. Nebraska
TIM E. JOHNSTON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
E. STROM, Senior Judge United States District Court
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
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).
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).
Commissioner's decision will be affirmed “if the
record contains substantial evidence to support it.”
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).
alleges four errors on the part of the ALJ require the Court
to “reverse the final agency decision and enter
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).
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 . . .
.” Snead v. Barnhart, 360 F.3d 834, 838 (8th
Cir. 2004). However, there are two problems with
plaintiff's argument. 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 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.
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
case, plaintiff submitted additional evidence 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 ...