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Parker v. Colvin

United States District Court, S.D. Alabama, Southern Division

November 24, 2014

ERNEST C. PARKER, Plaintiff,
v.
CAROLYN W. COLVIN, Social Security Commissioner, Defendant.

MEMORANDUM OPINION AND ORDER

BERT W. MILLING, Jr., Magistrate Judge.

In this action under 42 U.S.C. § 405(g), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for disability insurance benefits (Docs. 1, 9). The parties filed written consent and this action has been referred to the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 ( see Doc. 13). Oral argument was heard on November 21, 2014 (Doc. 14). Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED.

This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984).

At the time of the administrative hearing, Parker was sixty-three years old, had completed several years of college education (Tr. 45), and had previous work experience as a pulp and paper machine operator (Tr. 56). Plaintiff alleges disability due to substance abuse disorder, diabetes mellitus, hypertension, depression, transient ischemic attack, hearing loss, and prostate cancer with residuals (Doc. 9 Fact Sheet).

The Plaintiff filed an application for disability insurance benefits on February 2, 2010 (Tr. 191-94; see also Tr. 20). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although Parker could not return to his past relevant work, there were specific medium-exertion jobs which he could perform (Tr. 20-33). Plaintiff requested review of the hearing decision (Tr. 14-16) by the Appeals Council, but it was denied (Tr. 1-5).

Parker claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Plaintiff alleges that: (1) The ALJ improperly determined that some of his impairments were not severe; and (2) the ALJ's residual functional capacity (hereinafter RFC ) evaluation is incorrect (Doc. 9). Defendant has responded to-and denies-these claims (Doc. 10).

Parker first claims that the ALJ improperly found that several of his impairments were not severe. Plaintiff specifically references his prostate cancer and hearing loss (Doc. 9, pp. 2-5).

In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984), the Eleventh Circuit Court of Appeals held that "[a]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf. 20 C.F.R. § 404.1521(a) (2014).[1] The Court of Appeals has gone on to say that "[t]he severity' of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality." McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). It is also noted that, under SSR 96-3p, "evidence about the functionally limiting effects of an individual's impairment(s) must be evaluated in order to assess the effect of the impairment(s) on the individual's ability to do basic work activities."

In her determination, the ALJ held that Parker had severe impairments, finding, though, that his prostate cancer and sensorineural hearing loss were not among them (Tr. 22-24). With regard to the cancer, the ALJ specifically noted that "the record does not show that this condition caused more than minimal functional limitations for a period of at least twelve continuous months, particularly since his treatment was completed within twelve months of his diagnosis" (Tr. 23). The ALJ then pointed to the medical evidence from which she drew her conclusions (Tr. 23; cf. Tr. 281-84, 604, 667-68, 677-69, 695-97, 704-05, 712-13, 736, 757, 773-74). These records show that Parker underwent tissue biopsies on April 5, 2005 and that he had completed radiation therapy by February 8, 2006 (Tr. 604, 773-74). This ten months covers the period during which biopsies were accomplished until therapy was completed.

"The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a) (2014). Parker's prostate cancer falls short of this twelve-month requirement.[2]

Parker has further argued, however, that the Veteran's Administration (hereinafter VA ) awarded him a period of total disability, lasting for nineteen months because of his cancer (Doc. 9, p. 4; Tr. 257-70). The VA later found that Parker was not totally disabled, but, nevertheless, continued a ten percent disability rating for the impairment (Doc. 9, p. 4; Tr. 259-61).

Social Security regulations state as follows:

A decision by any nongovernmental agency or any other governmental agency about whether you are disabled or blind is based on its rules and is not our decision about whether you are disabled or blind. We must make a disability or blindness determination based on social security law. Therefore, a determination made by another agency that you are disabled or blind is not binding on us.

20 C.F.R. § 404.1504 (2014). The Eleventh Circuit Court of Appeals has acknowledged this principle, though finding that another's agency's findings of disability are entitled to great weight. ...


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