McCall v. Colvin (CONSENT)

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 12/22/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
EDDIE MCCALL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 2:15cv487-CSC
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(WO)
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MEMORANDUM OPINION
The plaintiff applied for supplemental security income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq., and disability insurance benefits pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he was unable to
work because of a disability. His application was denied at the initial administrative level. The
plaintiff then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ concluded that the plaintiff was not under a “disability” as
defined in the Social Security Act, and denied his claim for benefits. The Appeals Council
rejected a subsequent request for review. The ALJ’s decision consequently became the final
decision of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). Pursuant to 28 U.S.C. § 636(c), the parties have consented to
entry of final judgment by the United States Magistrate Judge. The case is now before the court

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Based on the court’s review of the
record in this case and the briefs of the parties, the court concludes that the decision of the
Commissioner should be affirmed.
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
engage in 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 . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.
3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

2

The standard of review of the Commissioner’s decision is a limited one. This court must
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42
U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Substantial evidence
is “more than a scintilla,” but less than a preponderance; it “is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm'r of
Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (quotation marks omitted). The court “may
not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the
[Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration
in original) (quotation marks omitted).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
THE ISSUES
A. Introduction. The plaintiff Eddie McCall (“McCall”) was 49 years old on the
alleged date of onset, January 28, 2012, and has a high school education. (R. 18, 24, 27).
Following the hearing, the ALJ concluded that the plaintiff has severe impairments of
“squamous cell carcinoma of the floor of the mouth, status post adjuvant chemotherapy and
radiation; diabetes mellitus, hypertension; and arthritis of the ankle.” (R. 22). The ALJ
concluded that McCall did not meet or equal any of the listed impairments, specifically finding
that
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[t[he claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926). Listings 1.02-Major dysfunction of a
joint(s); 4.04-Ischemic heart disease; 12.04-Affective disorders; and 12.09Substance addiction disorders were considered.
Although the claimant has severe impairments within the meaning of the statute,
they do not meet the criteria of any listed impairments described in Appendix 1
of the Regulations (20 CFR, Subpart P, Appendix 1). No medical expert has
opined the claimant’s impairments, considered singly and in combination, are
equivalent in severity to the criteria of any listed impairment, nor does the
evidence show medical findings that are the same or equivalent to those of any
listed impairment of the Listings of Impairments.
(R. 23).
The ALJ concluded that the plaintiff could not perform his past relevant work as an
industrial cleaner or stock supervisor, but, using the Medical-Vocational Guidelines, 20 C.F.R.
Pt. 404, Subpt. P., App. 2, as a framework and relying on the testimony of a vocational expert,
also concluded that there were significant number of jobs in the national economy that the
plaintiff could perform, and thus, McCall was not disabled. (R. 27-28).
B. Plaintiff’s Claims. The plaintiff presents two interrelated issues for the Court’s
review. As stated by the plaintiff, the issues are as follows:
I.

Whether the Commissioner committed reversible error in failing to
consider whether the claimant’s impairments meet or equal any of the
carcinoma listings.

II.

Whether the Commissioner committed reversible error in failing to obtain
an opinion from a qualified medical expert regarding whether the
claimant’s impairments are medically equal to a listed impairment.

(Doc. # 14 at 1).

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According to McCall, the ALJ should have considered whether his squamous cell
carcinoma on the anterior floor of his mouth meets or equals Listing 13.11 or 13.12, and her
failure to secure medical expert testimony regarding whether his condition is medically
equivalent to these listings requires remand.
The Commissioner concedes that the ALJ did not explicitly discuss any of the carcinoma
listings, but argues that consideration of the listings can be implied from the ALJ’s discussion
of the medical record. The Commissioner further asserts that it was unnecessary for the ALJ
to consult a medical expert because there are no “evidentiary gaps” in the medical record
regarding McCall’s cancer treatment. Finally, and perhaps most importantly, the Commissioner
argues that the ALJ’s failure to reference Listing 13.11 or 13.12 is harmless error because the
medical evidence does not support a finding that McCall’s squamous cell carcinoma meets or
equals either listing.
DISCUSSION
McCall asserts that the ALJ should have considered whether he was disabled under
Listing 13.11 or 13.12 because he suffered from squamous cell carcinoma of the anterior floor
of his mouth. See 20 C.F.R. pt. 404, Subpart P, App. 1, § 13.00 CANCER (MALIGNANT
NEOPLAST DISEASES).
In this case, the ALJ acknowledged that McCall suffered from squamous cell carcinoma
of the floor of the mouth (R. 20) and considered his medical treatment. (R. 25). After
recounting his medical treatment, the ALJ noted that McCall continued to smoke after his
cancer diagnosis. (R. 25-26). Although the ALJ considered McCall’s cancer of the mouth, she
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did not specifically consider whether McCall met any of the Cancer Listings referenced in
Listing 13.00. However, the court concludes that any error by the ALJ is harmless because
McCall has failed to demonstrate that he meets or equals Listing 13.11 or 13.12. See Diorio
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying harmless error analysis in the Social
Security case context); Howard v. Soc. Sec. Admin., Comm’r., 566 F. App’x 784, 787 (11th
Cir. 2014) (“even if the AC improperly failed to consider some of [the plaintiff’s] additional
evidence, any error was harmless because we have independently reviewed all submitted
evidence.”).
It is undisputed that in October 2012, McCall was diagnosed with squamous cell
carcinoma of the anterior floor of his mouth and he underwent surgery to remove a cancerous
lesion on October 31, 2013. (R. 352). At that time, he was “otherwise asymptomatic,”and he
denied weight loss, shortness of breath, difficulty swallowing or talking. (Id.) He also
continued to smoke. (Id.) On February 1, 2013, McCall’s treating physician noted that McCall
had completed the course of therapy, and there was no evidence of recurrence of the cancer.
(R.403). On April 1, 2013, McCall underwent a PET/CT scan that “show[ed] a solitary area
hypermetabolic activity involving anterior and ride (sic) side of mandible.”

(R.402).

Thereafter, a biopsy of the area showed no “evidence of malignancy.” (R.401). McCall was
doing “quite well with no evidence of local recurrence of tumor.” (Id.) His physician was
“very pleased with [his] progress now 3 months post completion of chemo/radiation.” (Id.).
On June 5, 2013, McCall was diagnosed with ulceration of the mouth floor, and he
underwent an excision. (R. 439). The area was necrotic but not recurrent carcinoma. (Id.) On
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August 29, 2013, McCall presented for a follow-up visit seven months post chemotherapy and
radiation. (R. 453). At that time, he was “in good spirits and admits to stable appetite and
energy level.” (Id.) Although he had “residual ulceration right anterolateral floor of mouth
previously noted on post treatment PET/CT with followup biopsy 4/8/13 showing no evidence
of malignancy.” (Id.) He was referred to “Jackson Wound Care Center for hyperbaric oxygen
therapy to effect healing of oral cavity ulceration.” (R. 454).
Based on his squamous cell carcinoma diagnosis, McCall argues that he meets or equals
Listing 13.11 or 13.12, and the ALJ should have secured expert medical testimony to explore
the applicability of the Listings. Listing 13.11 addresses skeletal system sarcoma and requires
the cancer to be inoperable or unresectable, recurrent, or with distant metastases. See 20 C.F.R.
Subpart P, App. 1, Listing 13.11. Listing 13.12 relates to cancer of the maxilla, orbit, or
temporal fossa. See 20 C.F.R. Subpart P, App. 1, Listing 13.12. Both Listings require
metastases, and it is undisputed that McCall had at least one lymph node that was positive for
metastatic squamous cell carcinoma. (R. 354).
However, in order to meet the Listing, it is not enough to simply have a cancer diagnosis.
Listing 13.00 addresses disability based on malignant cancers. See 20 C.F.R. Subpart P, App.
1, Listing 13.00 CANCER (MALIGNANT NEOPLASTIC DISEASES). In considering whether a
cancer is disabling, the regulations require the Commissioner to consider the origin of the
cancer, extent of involvement, duration, frequency, and response to treatment, and effects of
treatment. Id at 13.00B. The introductory paragraphs are clear that “[t]hese listings are only
examples of cancer that we consider severe enough to prevent you from doing any gainful
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activity.” See 20 C.F.R. Subpart P, Appendix 1, Listing 13.00F1 (emphasis added). “In many
cases, cancers meet listing criteria only if the therapy is not effective, and the cancer persists,
progresses, or recurs.” Id at Listing 13.00G1 (emphasis added). Thus, the plaintiff must
establish that his cancer prevents him from “doing any gainful activity,” that his treatment was
unsuccessful, or that the cancer has recurred. This he has failed to do.
The medical record in this case does not provide the support necessary to establish that
McCall’s squamous cell carcinoma meets the Listings and is disabling.

During the

administrative hearing, McCall testified that he was prevented from working by pain in his
lower back, not from his cancer. (R. 43). When asked about the present effects of the cancer,
McCall testified that his mouth is dry and he can’t taste food. (R. 53). It is undisputed that
McCall’s cancer responded to treatment, and has not recurred.
The plaintiff bears the burden of proving that he is disabled, and is required to produce
evidence to support his claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
In the third step of the sequential evaluation process, the plaintiff must provide specific
evidence that his impairment meets or medically equals a listed impairment. Sullivan v. Zebley,
493 U.S. 521, 530 (1990). “For a claimant to show that his impairment matches a listing, it
must meet all of the specified medical criteria. An impairment that manifests only some of
those criteria, no matter how severely, does not qualify.” Id. “Even though Social Security
courts are inquisitorial, not adversarial, in nature, claimants must establish that they are eligible
for benefits.” Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (citing
Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)). See also Holladay v. Bowen, 848
8

F.2d 1206, 1209 (11th Cir. 1988).
Finally, the plaintiff has failed to point to any specific evidence which supports his
equivalency claim. Consequently, based on its review of the record, the court finds that the
ALJ’s failure to consider whether McCall met Listing 13.11 or 13.12 or secure additional
expert medical testimony constitutes harmless error because the medical record does not
demonstrate that McCall satisfies the requirements of any of the cancer Listings.
CONCLUSION
The court has carefully and independently reviewed the record and concludes that the
decision of the Commissioner is due to be affirmed. Thus, this case will be dismissed with
prejudice.
A separate order will issue.
Done this 22nd day of December, 2016.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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