United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY JUDGE
matter comes before the Court on Plaintiff Gregory John
Victor's (“Victor”) appeal of the Social
Security Administration's (“SSA”) Decision
(ECF No. 3 at 45-63) dated January 31, 2017. Victor filed his
Brief (ECF No. 13) on January 26, 2018. Defendant Nancy A.
Berryhill, Acting Commissioner of the SSA (the
“Commissioner”) filed her Memorandum in Support
of Commissioner's Decision (ECF No. 18) on May 4, 2018.
Victor filed his Reply Brief (ECF No. 19) on May 8, 2018.
This matter is now ripe for determination.
filed his application for Social Security disability benefits
on November 3, 2011. The application was denied on December
8, 2011. Victor then filed his Request for Reconsideration on
January 12, 2012, which was denied on February 6, 2012. A
Request for Hearing by Administrative Law Judge
(“ALJ”) was filed on March 30, 2012. The ALJ
entered his decision on March 22, 2013, finding that Victor
was not disabled.
filed a Request for Review of Hearing Decision/Order on May
23, 2013. That Request was denied by the Appeals Council on
July 23, 2014. Victor then filed his first Complaint for
judicial review on September 9, 2014. On January 14, 2016,
this Court entered an Order remanding the case for further
proceedings. As a result, the Appeals Council vacated the
ALJ's decision on February 2, 2016, and remanded the case
to the ALJ for further proceedings.
January 31, 2017, a different ALJ entered the Decision
finding again that Victor was not disabled. A Request for
Review of Hearing Order/Decision was filed on February 3,
2017. On May 25, 2017, the Appeals Council declined to accept
jurisdiction over the Request. This constituted the
Commissioner's final decision. Victor filed his second
Complaint with this Court on July 13, 2017.
Standard of Review
decision of the ALJ is the final decision of the Commissioner
when the Appeals Council denies a request for review.
Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir.
2009). The Social Security Act establishes that the
Commissioner's findings as to any fact are conclusive if
supported by substantial evidence. See Diaz v.
Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus, the
Court will affirm the Commissioner's finding of fact and
denial of disability benefits if substantial evidence
supports them. Craft v. Astrue, 539 F.3d 668, 673
(7th Cir. 2009). Substantial evidence is defined as
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)); Henderson v. Apfel, 179 F.3d 507, 512
(7th Cir. 1999).
the duty of the ALJ to weigh the evidence, resolve material
conflicts, make independent findings of fact, and dispose of
the case accordingly. Richardson, 402 U.S. at 399-
400. The reviewing court examines the entire record; however,
it does not substitute its judgment for that of the
Commissioner by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of
credibility. See Diaz, 55 F.3d at 305-06. The Court
will “conduct a critical review of the evidence,
” considering both the evidence that supports, as well
as the evidence that detracts from, the Commissioner's
decision, and “the decision cannot stand if it lacks
evidentiary support or an adequate discussion of the
issues.” Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003) (internal quotations omitted).
ALJ recommends the denial of benefits, the ALJ must first
“provide a logical bridge between the evidence and [the
ALJ's] conclusions.” Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009) (internal quotation marks and
citation omitted). Though the ALJ is not required to address
every piece of evidence or testimony presented, “as
with any well-reasoned decision, the ALJ must rest its denial
of benefits on adequate evidence contained in the record and
must explain why contrary evidence does not persuade.”
Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
However, if substantial evidence supports the ALJ's
determination, the decision must be affirmed even if
“reasonable minds could differ concerning whether [the
claimant] is disabled.” Elder v. Astrue, 529
F.3d 408, 413 (7th Cir. 2008).
than attack the findings of the ALJ regarding his claimed
disability, Victor raises two technical issues on appeal.
First, Victor asserts that this matter must be remanded
because certain parts of the typed transcript of the August
10, 2016, hearing reflect the fact that the Court reporter
could not hear and/or understand the testimony that was
offered. In support of this argument, Victor directs the
Court to its decision in Borowski v. Heckler, 581
F.Supp. 549 (N.D. Ind. 1984), which included an excerpt from
a House of Representatives Conference Report stating that
remand may be appropriate where “the tape recording of
plaintiff's oral hearing is lost or inaudible.”
Id. at 553.
Court has reviewed the transcript of the hearing, as well as
the cases cited by Victor, and concludes that the identified
issues with the transcript do not require remand. Victor
identifies twenty-two instances of inaudible testimony over
the course of an eighty-eight-page transcript. (ECF No. 13 at
17). This number, in and of itself, does not indicate a
transcript that is so deficient as to hinder a fair review.
See, e.g., Ward v. Heckler, 786
F.2d 844, 848 (8th Cir. 1986) (one to two instances of
inaudible testimony per page did not interfere with
comprehension of the testimony). Nor does the Court find that
the occasional and brief inaudible excerpts materially affect
the ability of the Court to discern the scope of the
proceedings. See Borowski, supra (no transcript
required remand); Bianchi v. Sec. of Health and ...