Parker v. Colvin
MEMORANDUM OPINION AND ORDER entered. 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, as further set out in order. Signed by Magistrate Judge Bert W. Milling, Jr on 11/24/2014. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ERNEST C. PARKER,
CAROLYN W. COLVIN,
Social Security Commissioner,
CIVIL ACTION 14-0161-M
MEMORANDUM OPINION AND ORDER
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).
argument was heard on November 21, 2014 (Doc. 14).
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).
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).
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 mediumexertion jobs which he could perform (Tr. 20-33).
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).
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.
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
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."
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
It is also
noted that, under SSR 96-3p, “evidence about the functionally
1"An impairment or combination of impairments is not severe if it
does not significantly limit your physical or mental ability to do
basic work activities."
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).
ALJ then pointed to the medical evidence from which she drew her
conclusions (Tr. 23; cf. Tr. 281-84, 604, 667-68, 677-69, 69597, 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,
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.”
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
Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (1983).
In her decision, the ALJ acknowledged the VA’s findings,
but rejected the conclusion that Parker was totally disabled
2The Court notes that Plaintiff cited to VA records, dated
December 15, 2006, stating that Plaintiff had had prostate cancer for
ten months at that time (Tr. 902). The Court does not understand what
timeline the VA is working from since biopsies were first taken in
April 2005 and radiation was considered completed in February 2006,
but, in any event, the VA’s records do not bind the ALJ’s decision, as
will be discussed later in this Opinion.
The Court finds substantial support for that
One reason, the duration of the impairment, has
The second—and more important—reason, though, is that
although Plaintiff has pointed to evidence showing his
diagnosis, treatment, and complaints, he has presented no
evidence demonstrating functional limitation because of the
Nowhere in Parker’s arguments regarding this claim does
he point to medical evidence demonstrating an inability to work
because of his cancer (see Doc. 9, pp. 2-4).
This failure to
demonstrate functional limitations forecloses any argument that
the ALJ improperly determined that Plaintiff’s prostate cancer
was a severe impairment.
Likewise, Plaintiff has faulted the ALJ for not finding his
hearing loss to be a severe impairment (Doc. 9, pp. 4-5).
Court notes that Parker points to no evidence in the record to
support her argument (id.).
In her determination, the ALJ specifically found that
“[t]he functional limitations caused by the claimant’s
sensorineural hearing loss have been minimized by a hearing aid”
The ALJ faithfully summarized the medical history
regarding this impairment (id.).3
Again, the Court finds
3As Parker has pointed to no medical evidence at all, the Court
finds it unnecessary to re-summarize what the ALJ has done.
substantial evidence to support the ALJ’s conclusions with
regard to Parker’s hearing loss.
In summary, Parker claims that the ALJ improperly found his
prostate cancer and hearing loss to be non-severe impairments.
Plaintiff’s claim lacks merit as he has failed to demonstrate
that either impairment met the twelve-month duration requirement
or that the impairments impacted his ability to work.
Plaintiff has also claimed that the ALJ’s RFC evaluation is
incorrect (Doc. 9, pp. 5-8).
Parker argues that there is no
medical evidence to support the determination.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.
20 C.F.R. § 404.1546 (2014).
cannot be based on “sit and squirm” jurisprudence.
Heckler, 734 F.2d 513, 518 (11th Cir. 1984).
However, the Court
also notes that the social security regulations state that
Plaintiff is responsible for providing evidence from which the
ALJ can make an RFC determination.
20 C.F.R. § 404.1545(a)(3).
The Court further notes that Social Security Ruling 96-8p
states the following:
The RFC assessment must first identify
the individual’s functional limitations or
restrictions and assess his or her workrelated abilities on a function-by-function
basis, including the functions in paragraphs
(b), (c), and (d) of 20 C.F.R. §§ 404.1545
and 416.945. Only after that may RFC be
expressed in terms of the exertional levels
of work, sedentary, light, medium, heavy,
and very heavy.
Social Security Ruling 96-8p, Titles II and XVI:
Residual Functional Capacity in Initial Claims, 1996 WL 374184,
*1 at ¶ 4.
The Court notes further instructive language from
that Ruling stating as follows:
RFC is an issue only at steps 4 and 5
of the sequential evaluation process. The
following are issues regarding the RFC
assessment and its use at each of these
RFC and exertional levels of work. The
RFC assessment is a function-by-function
assessment based upon all of the relevant
evidence of an individual’s ability to do
work-related activities. At step 4 of the
sequential evaluation process, the RFC must
not be expressed initially in terms of the
exertional categories of “sedentary,”
“light,” “medium,” “heavy,” and “very heavy”
work because the first consideration at this
step is whether the individual can do past
relevant work as he or she actually
RFC may be expressed in terms of an
exertional category, such as light, if it
becomes necessary to assess whether an
individual is able to do his or her past
relevant work as it is generally performed
in the national economy. However, without
the initial function-by-function assessment
of the individual’s physical and mental
capacities, it may not be possible to
determine whether the individual is able to
do past relevant work as it is generally
performed in the national economy because
particular occupations may not require all
of the exertional and nonexertional demands
necessary to do the full range of work at a
given exertional level.
Id. at *3.
In her determination, the ALJ found that Parker had the RFC
to perform less than a full range of medium work4 (Tr. 26).
ALJ, specifically, found that Plaintiff
could not climb ladders, scaffolds, or
ropes. He could not work around unprotected
heights and dangerous equipment. He needed
to avoid complex or detailed job tasks or
instructions but could perform short, simple
jobs and follow one- to two-step job
instructions. He could not work in crowds.
He could have no more than occasional
contact with the public and was limited to
minimal changes in work setting and
After announcing this finding, the ALJ summarized the
record evidence, beginning with Parker’s testimony concerning
his impairments (Tr. 27).
The ALJ found that testimony not
credible (Tr. 27), a conclusion not challenged by Plaintiff in
this action (see Doc. 9).
In reviewing the medical evidence, the ALJ found that the
transient ischemic attack that Parker suffered had resulted in
left mild weakness and hemiparesis (Tr. 27).
The ALJ noted only
4“Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds.
If someone can do medium work, we determine that he or she can also do
sedentary and light work.” 20 C.F.R. § 404.1567(c) (2014).
one instance in the evidence of Plaintiff walking with a cane
and that the examinations after that date noted a normal gait
Medical evidence demonstrated that hypertension,
diabetes, and depression were controlled by medication and
resulted in no limitations (Tr. 28, 30).
The ALJ noted Parker’s
non-compliance with his mental health medications, lending
little support for his complaints of limitation (Tr. 28-29); she
further noted Plaintiff’s failure to follow medical advice to
stop imbibing in alcohol and drugs (Tr. 29).
the medical evidence regarding Plaintiff’s physical impairments,
the ALJ noted that there was no evidence “from treating or
examining physicians indicating that the claimant was disabled
or even had limitations greater than those determined in this
To the contrary, the medical opinions in the record
support the conclusion that the claimant’s conditions and
related symptoms did not cause disabling limitations” (Tr. 30).
The ALJ then reviewed the psychological record evidence,
noting Psychologist Davis’s finding that Parker had the ability
to “‘do simple, routine repetitive type tasks’” (Tr. 31; cf. Tr.
The ALJ gave great weight to Psychologist Jackson’s
opinion that Plaintiff could “understand, remember, and carry
out short, simple instruction” and “should be limited to
infrequent contact with the general public and infrequent
changes in the workplace” (Tr. 31).
After summarizing all of the evidence, the ALJ made the
following specific findings:
Based on the claimant’s mild left sided
weakness, I find that during the relevant
period he was limited to lifting and
carrying no more than 25 pounds frequently
and 50 pounds occasionally. Since evidence
of a limp was limited to a singular office
note and the medical record does not reflect
complaints of difficulty walking or
standing, I find that the claimant would
have been able to stand or walk, off and on,
for a total of approximately six hours in an
eight-hour day. Based on his transient
ischemic attack, diabetes mellitus,
hypertension, and substance abuse, I find
the claimant could not climb ladders,
scaffolds, or ropes; work at unprotected
heights; or work around dangerous equipment.
The concentration limitations caused by his
depression and substance abuse as evidenced
by his descriptions of his concentration
precluded him from complex or detailed job
tasks or instructions, but he was able to
perform short, simple jobs and follow oneto two-step job instructions, as reflected
in his daily activities and mental status
examination on April 14, 2005. Due to his
social limitations, he could not work in
crowds; was limited to no more than
occasional contact with the public; and was
limited to minimal changes in work settings
The Court finds that the ALJ’s decision regarding Parker’s
RFC is supported by substantial evidence.
The ALJ acknowledged
that no doctor had expressed an opinion as to Plaintiff’s
abilities or inabilities, but, nevertheless, set out her reasons
for finding that Parker had certain limitations based on
specified impairments (Tr. 31).
Giving credit to the testimony
of a Vocational Expert, the ALJ held that Plaintiff was unable
to perform his past work but could still perform specified
medium-exertion jobs (Tr. 31-33).
Taking into consideration
Parker’s burden of providing evidence from which the ALJ could
make an RFC determination, and the fact that Plaintiff has
failed to cite evidence in this Court that disputes her findings
or conclusions, the Court finds no merit in this claim.
Parker has raised two claims in bringing this action.
are without merit.
Upon consideration of the entire record, the
Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Perales, 402 U.S.
Therefore, it is ORDERED that the Secretary's decision
be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th
Cir. 1980), and that this action be DISMISSED.
entered by separate Order.
Judgment will be
DONE this 24th day of November, 2014.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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