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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
VAN L. SCHMICK,                                                                        )
)
Plaintiff,                                                                             )
                                                                                       )
v.                                                                                     )   Case No. 1:07CV69 HEA
                                                                                       )
MICHAEL J. ASTRUE,                                                                     )
Commissioner of Social Security                                                        )
)
Defendant,                                                                             )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation, of
Magistrate Judge Lewis M. Blanton, that the decision of the Commissioner be
affirmed.   Plaintiff has filed written objections to the Report and Recommendation.
When a party objects to the magistrate judge's report and recommendation, the
Court must conduct a de novo review of the portions of the report, findings, or
recommendations to which the party objected.   See United States v. Lothridge, 324
F.3d 599, 600 (8th Cir.2003) (citing 28 U.S.C. § 636(b)(1)).   Pursuant to 28 U.S.C.
§ 636, the Court will therefore conduct such a de novo review.
This Court’s review 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); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir .2002).




“Substantial evidence is less than a preponderance, but enough so that
a reasonable mind might find it adequate to support the conclusion.”
Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir.2001).   But “[t]he
substantial evidence test employed in reviewing administrative findings
is more than a mere search of the record for evidence supporting the
[Commissioner's] findings.”   Gavin v. Heckler, 811 F.2d 1195, 1199
(8th Cir.1987).                                                                           “ ‘Substantial evidence on the record as a whole’ ...
requires a more scrutinizing analysis.”   Id.                                             (quoting Smith v. Heckler,
735 F.2d 312, 315 (8th Cir.1984)).   In reviewing the administrative
decision, “[t]he substantiality of evidence must take into account
whatever in the record fairly detracts from its weight.”   Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed.
456 (1951), quoted in Gavin, 811 F.2d at 1199.
In general, the claimant bears the burden of proving his or her
entitlement to disability insurance benefits under the Social Security
Act. 20 C.F.R. § 404.1512(a); Thomas v. Sullivan, 928 F.2d 255, 260
(8th Cir.1991).
Coleman v. Astrue 498 F.3d 767, 770 (8th Cir. 2007).
Plaintiff objects to Judge Blanton’s recommendation that the Commissioner’s
denial of his application for a Period of Disability and Disability Insurance Benefits
under Title II of the Social Security Act be affirmed.   Specifically, Plaintiff makes
the following objections to the Report and Recommendation.
Plaintiff argues that the Report and Recommendation is incorrect in the
finding that a medical expert was not required at the administrative hearing because
the medical evidence was not ambiguous.   Plaintiff urges to the contrary.   In support
of this position, Plaintiff points to a single variation in the Report and
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Recommendation with regard to Plaintiff’s reported lower extremity edema:
“[P]laintiff reported lower extremity edema in September 1996” and “ALJ:  It was
not until 2002,. . .that the claimant complained of increasing dyspnea and lower
extremity swelling.”   Plaintiff argues that this alone creates an ambiguity in the
medical record requiring the use of a medical expert.   The single complaint of lower
extremity edema cannot be analyzed in a vacuum.   Plaintiff’s overall medical
condition must be assessed in their entirety as they relate to Plaintiff’s ability to
maintain employment.   The sole report of lower extremity edema in 1996 does not
overcome the subsequent medical record which is detailed in the ALJ’s decision and
Judge Blanton’s Report and Recommendation, both of  which clearly establish that
Plaintiff’s complaints were, prior to his date of last insured insufficient to establish
disability.   Plaintiff was doing “reasonably well” in 1996; Plaintiff’s medical record
fails to document treatment received from June 1997 through 1998; Plaintiff
received only intermittent treatment through 1999 and 2000.   Treatment notes from
February 13, 2002 reported complaints related only to non-disabling ailments.
While Plaintiff complained of increasing dyspnea and lower extremity swelling, the
medical records establish, inter alia, that as of December 2003, well after Plaintiff’s
date of last insured, there were no significant complaints with respect to weakness,
bone pain, numbness, breathing, increased edema, or abnormalities with the
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extremities.   Plaintiff’s attempt to create an ambiguity from this very detailed and
discussed record is unavailing.   His objection is therefore overruled.
Plaintiff next contends that the ALJ’s findings misstate the medical record
with regard to the August 28, 2002 complaint of increasing dyspnea and lower
extremity swelling.   Plaintiff argues that the medical record actually read “Mr.
Schmick complains of increasing dyspnea, lower extremity swelling over the last
couple of months.”   From this, Plaintiff argues that because the swelling had
occurred over the “last couple of months”1 the swelling falls within Plaintiff’s date
of last insured, June 30, 2002.   The medical record, however, establishes that it was
not until August 28, 2002 that Plaintiff vocalized the complaint to his physician and
such a tenuous onset date of   “over the last couple of months” does not establish
that Plaintiff suffered from disabling ailments within the relevant time period,
particularly in light of all the medical evidence contained in the record before the
ALJ.
Finally, Plaintiff argues that the Report and Recommendation misstates the
law with respect to missing evidence.   He contends that the Report and
Recommendation “takes a secondary position that [Plaintiff] could have submitted
1   Plaintiff urges that “over the last couple of months” equates to 8 weeks which would
include June 30, 2002.
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missing evidence if he thought it was necessary.”   Plaintiff argues that “missing
evidence was necessary, but the ALJ had to submit it.”   He contends that he cannot
be expected to develop a record to anticipate evidentiary errors.   Plaintiff’s
argument is misplaced.   Judge Blanton reported that Plaintiff argued that the ALJ
failed to obtain a treating source statement from Dr. Nagy and failed to obtain a full
medical record from Dr. Braxton.   Judge Blanton correctly states the law: while the
ALJ has a duty to fully develop the record, Driggins v. Harris, 657 F.2d 187, 188
(8th Cir. 1981), the burden of persuasion remains with the claimant to prove
disability.   Coleman, 498 F.3d at 770; Eichelberger v. Barnhart, 390 F.3d 584, 592
(8th Cir. 2004).   The ALJ indeed fully developed the record: the medical record
contains records from both Dr. Nagy and Dr. Brixton; the ALJ discusses in detail all
of the records and Plaintiff’s medical issues.   He analyzes those complaints with
respect to time of occurring and their severity in relation to Plaintiffs date of last
insured.   As Judge Blanton found, there was ample medical evidence in the record
upon which the ALJ could review for making his determination.   The ALJ even held
the record open for Plaintiff to submit additional evidence if he so desired.   The ALJ
fully developed this record and based his determination on the record before him.
This Court’s independent review of the record establishes that there is substantial
evidence in that record to support the ALJ’s decision.   Plaintiff’s objection is
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overruled.
Judge Blanton thoroughly analyzed Plaintiff’s claims.   The Report and
Recommendation details the law and its application to the facts contained in the
administrative record.   The Report and Recommendation is adopted and Plaintiff’s
objections thereto are overruled in their entirety.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commission is
affirmed.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 24th day of September, 2008.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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