Nierzwick v. Commissioner of Social Security

7 F. App'x 358
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 19, 2001
DocketNo. 00-1575
StatusPublished
Cited by17 cases

This text of 7 F. App'x 358 (Nierzwick v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nierzwick v. Commissioner of Social Security, 7 F. App'x 358 (6th Cir. 2001).

Opinion

ORDER

Bruce E. Nierzwick appeals pro se from a district court judgment that affirmed the Commissioner’s decision to terminate his social security disability and supplemental security income benefits. His appeal has been referred to a panel of this court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed in this case. See Fed. R.App. P. 34(a). .

An Administrative Law Judge (“ALJ”) found that Nierzwick had previously been found to be disabled as of September 23, 1987, and that he still had a severe impairment consisting of spondylolisthesis at L5. The ALJ found that Nierzwick could not perform his past work, even though his condition was not equivalent to any of the impairments that are listed in Appendix 1 to the regulations. These findings are not in dispute. However, the ALJ also found that Nierzwick’s medical condition had improved since he was awarded benefits in 1990. Thus, the ALJ relied in part on the testimony of a vocational expert (“VE”) and found that Nierzwick was no longer disabled because a limited but significant number of sedentary jobs were available to him despite his impairments. This opinion became the final decision of the Commis[361]*361sioner on March 18, 1999, when the Appeals Council declined further review.

Nierzwick then filed a complaint in federal court. The district court adopted a magistrate judge’s recommendation and awarded summary judgment to the Commissioner on February 29, 2000. Nierzwick argues that the court improperly determined the facts of his case. This argument is unavailing because we conduct an independent review of the administrative record.

Judicial review of the Secretary’s decisions is limited to determining whether the Secretary’s findings are supported by substantial evidence and whether the Secretary employed the proper legal standards. Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This court does not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.
In determining the existence of substantial evidence, this court must examine the administrative record as a whole. If the Secretary’s decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion.

Cutlip v. Secretary of Health and Human Servs., 25 F.3d 284, 286 (6th Cir.1994) (citations omitted). There is no presumption of a continuing disability. Id. at 286-87 & n. 1. Instead, the Commissioner applies the procedures that are outlined in 20 C.F.R. §§ 404.1594 and 416.994, to determine whether a claimant’s disability has ended and that he is now able to work.

The first part of the evaluation process, then, focuses on medical improvement. The implementing regulations define a medical improvement as “any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled.” 20 C.F.R. § 404.1594(b)(1). A determination of medical improvement “must be based on changes (improvement) in the symptoms, signs, and/or laboratory findings associated with your impairment(s).” And a medical improvement is only related to an individual’s ability to work “if there has been a decrease in the severity ... of the impairment(s) present at the time of the most recent favorable medical decision and an increase in your functional capacity to do basic work activities.” 20 C.F.R. § 404.1594(b)(3).
The second part of the evaluation process relates to ability to engage in substantial gainful activity. Here the implementing regulations incorporate many of the standards set forth in the regulations governing initial disability determinations. See 20 C.F.R. § 404.1594(b)(5) and (f)(7). The difference, of course, is that the ultimate burden of proof lies with the Secretary in termination proceedings.

Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir.1991).

Nierzwick argues that he received conflicting notices regarding termination. However, the second notice adequately advised him that his benefits would cease. The regulations place only general limits on the frequency of reviews, and any error was cured by the fact that he pursued all levels of administrative review. See Marshall v. Chater, 75 F.3d 1421, 1427-28 (10th Cir.1996).

Nierzwick alleges that he was denied access to the agency’s medical file when he first sought reconsideration of the decision [362]*362to terminate his benefits. This argument is unpersuasive, because he now concedes that he was subsequently allowed to review his file.

Nierzwick also argues that the ALJ refused to subpoena two consulting physicians and a disability caseworker. However, the ALJ did not abuse his discretion, as Nierzwick did not show that the testimony of these witnesses was reasonably necessary for the full presentation of his case. See Calvin v. Chater, 73 F.3d 87, 90-93 (6th Cir.1996).

Nierzwick argues that the ALJ failed to include reports from several sources to whom he was apparently referred by his treating physician, Dr. Dziuba. This argument is unpersuasive because Nierzwick had the initial responsibility of providing the agency with medical reports regarding his disability and because the disputed reports were created at least three years before benefits were terminated. See 20 C.F.R. §§ 404.1593(b) and 416.993(b). Moreover, Nierzwick failed to submit these reports, even though the record was kept open after his hearing. See Born v. Secretary of Health & Human Servs., 923 F.2d 1168, 1172 (6th Cir.1990).

In 1990, a different ALJ found that Nierzwick was entitled to benefits because he had severe spondylolysis, a hernia, spondylolisthesis, a personality disorder and pain.

In November of 1994, Nierzwick was examined by a consulting internist, Dr.

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