SHARON LOVELACE BLACKBURN, Senior District Judge.
Plaintiff Marty K. Murphy brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying his applications for a period of disability, disability insurance benefits [DIB], and supplemental security income [SSI]. After review of the record, the parties' submissions, and the relevant law, the court is of the opinion that the Commissioner's decision is due to be affirmed.
Mr. Murphy filed an application for a period of disability and DIB and an application for SSI on November 17, 2010, alleging a disability onset date of October 14, 2010. (See doc. 8-3 at R.21; doc. 8-7 at R.125-33.)
Mr. Murphy requested review of the ALJ's decision by the Appeals Council. (See id. at R.13.) The Appeals Council denied the request for review, stating that it had "found no reason under [its] rules to review the [ALJ's] decision." (Id. at 1.) Therefore, "the [ALJ's] decision is the final decision of the Commissioner of Social Security in [Mr. Murphy's] case." (Id.)
Mr. Murphy filed an appeal in this court on November 5, 2014. (Doc. 1.)
In reviewing claims brought under the Social Security Act, this court's role is a narrow one: "Our review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, and whether the correct legal standards were applied." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court gives deference to factual findings. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983)) (internal quotations and other citation omitted). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). "Substantial evidence" is "more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936 F.2d at 1145. "No . . . presumption of validity attaches to the [Commissioner's] conclusions of law." Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
The regulations require the Commissioner to follow a five-step sequential evaluation to determine whether a claimant is eligible for a period of disability, DIB, and/or SSI. See 20 C.F.R. § 404.1520(a)(1)-(2); 20 C.F.R. § 416.920(a)(1)-(2); see Bowen v. City of New York, 476 U.S. 467, 470 (1986). "[A]n individual shall be considered to be disabled for purposes of [determining eligibility for DIB and SSI benefits] if he 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 twelve months." 42 U.S.C. §1382c(a)(3)(C)(1); see also 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A).
The specific steps in the evaluation process are as follows:
First, the Commissioner must determine whether the claimant is engaged in "substantial gainful activity." Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations define "substantial gainful activity" as "work activity that is both substantial and gainful."
The ALJ found that Mr. Murphy had not engaged in substantial gainful activity since October 14, 2010, the alleged onset date. (Doc. 8-3 at R.23.)
If the claimant is not engaged in substantial gainful activity, the Commissioner must next determine whether the claimant suffers from a severe impairment or combination of impairments that significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R. § 416.920(a)(4)(ii), (c). "[A] `physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D). The regulations provide: "[I]f you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience." 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). "An 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); see also 20 C.F.R. § 404.1521(a); 20 C.F.R. § 416.921(a). A complainant may be found disabled based on a combination of impairments even though none of the individual impairments alone are disabling. Walker v. Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 404.1523; 20 C.F.R. § 416.923. A claimant has the burden to show that he has a severe impairment or combination of impairments. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. Murphy had "the following severe impairment: status post mandibular squamous cell carcinoma." (Doc. 8-3 at R.23.) He also found that Mr. Murphy had a "medically[-]determinable mental impairment of substance abuse — in remission[, which] does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities[,] and is[,] therefore[,] nonsevere." (Id. at R.24.)
If the claimant has a severe impairment, the Commissioner must then determine whether the claimant's impairment meets or is equivalent to any one of the listed impairments, which are impairments that are so severe as to prevent an individual with the described impairment from performing substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e); 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant's impairment meets or equals an impairment listed in the regulations, the Commissioner must find the claimant disabled, regardless of the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d); 20 C.F.R. § 416.920(d). The claimant has the burden of proving that his impairment meets or equals the criteria contained in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. Murphy did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I. (Doc. 8-3 at R.25.)
If the impairment or combination of impairments does not meet or equal the criteria of a Listing, the claimant must prove that his impairment or combination of impairments prevents him from performing his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv), (f); 20 C.F. R. § 416.920(a)(4)(iv), (f). At step four, the Commissioner "will first compare [her] assessment of [the claimant's] residual functional capacity [RFC] with the physical and mental demands of [the claimant's] past relevant work. 20 C.F.R. § 404.1560(b); 20 C.F.R. § 416.960(b). "Past relevant work is work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [him] to learn to do it. 20 C.F.R. § 404.1560(b)(1); 20 C.F.R. § 416.960(b)(1). If the claimant is capable of performing his past relevant work, the Commissioner will find he is not disabled. 20 C.F.R. § 404.1560(e); 20 C.F.R. § 416.920(e). The claimant bears the burden of establishing that the impairment or combination or impairments prevents him from performing past work. Reynolds-Buckley, 457 Fed. Appx. at 863.
Based on his "consideration of the entire record," the ALJ found that Mr. Murphy could perform a limited range of light work; he found:
(Doc. 8-3 at R.25 [footnote added].) Based on the RFC, the ALJ found that Mr. Murphy could not perform his past relevant work as a tree surgeon helper, a construction laborer, a groundskeeper, or a moving van helper. (Id. at R.30.)
If the claimant establishes that he is unable to perform his past relevant work, the Commissioner must show that the claimant — in light of his RFC, age, education, and work experience — is capable of performing other work that exists in substantial numbers in the national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. § 404.1520(c)(1); 20 C.F.R. § 416.920(c)(1). The regulations provide:
20 C.F.R. § 404.1560(c)(1); 20 C.F. R. § 416.960(c)(1). If the claimant is not capable of performing such other work, the Commissioner must find the claimant is disabled. 20 C.F.R. § 404.1520(f); 20 C.F.R. § 416.920(f). If, however, the Commissioner finds that the claimant can perform other work, the claimant has the burden to prove he is not capable of performing such other work.
The ALJ found that Mr. Murphy, who was born in 1970, was a "younger individual" on the alleged onset date and that he had a limited education and could communicate in English. (Doc. 8-3 at R.30.) The ALJ consulted a vocational expert [VE]; the VE testified that an individual with Mr. Murphy's RFC and vocational factors could perform "jobs that exist in significant numbers in the national economy," including linen supply worker, shipping and receiving clerk, and watch and clock assembly inspector. (Id. at R.30-31, R.57-58.) Based on this testimony, the ALJ found Mr. Murphy could make as successful adjustment to perform other work. (Id. at R.31.)
Therefore, the ALJ found that Mr. Murphy had not been under a disability at any time from November 17, 2010, the date the applications were filed, through November 29, 2012, the date of the ALJ's decision. (Id. at R.32.)
Mr. Murphy raises two issues on appeal: (1) "the ALJ erred in failing to find a period of disability of at least twelve months," (doc. 11 at 5), and (2) "the ALJ failed to develop the record," (id. at 8). For the reasons set forth below, the court finds that the Commissioner's decision is due to be affirmed.
Mr. Murphy contends, "The medical evidence of record reasonably supports a finding that a threshold period of disability in excess of twelve months was established." (Id. at 5.) He argues that he became disabled on October 14, 2010, "with the diagnosis of bone cancer in the left jaw," and "[e]ven if claimant had arguably improved sufficiently to restore the ability to work by April 2012, there would still have been at least a twelve month period from October 2010 to at least October 2011 when claimant was still taking narcotic pain medication and not capable of sustained work." (Id. at 4-5, 8.)
McClurkin v. Soc. Sec. Admin., 625 Fed. Appx. 960, 962 (11th Cir. 2015)(quoting 42 U.S.C. § 423(d)). "A claimant may request benefits for a finite period of disability, even if [he] is later able to work. In such `closed period' cases, `the decision maker determines that a new applicant for disability benefits was disabled for a finite period of time which started and stopped prior to the date of his decision.'" Mitchell v. Comm'r of Soc. Sec., 393 Fed. Appx. 651, 652 (11th Cir. 2010)(quoting Pickett v. Bowen, 833 F.2d 288, 289 n.1 (11th Cir.1987)).
The court notes that Mr. Murphy contends his period of disability begins on the date he was diagnosed with cancer. The court disagrees. "A diagnosis alone is an insufficient basis for a finding that an impairment is severe. The severity of a medically ascertained impairment 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." Sellers v. Barnhart, 246 F.Supp.2d 1201, 1211 (M.D. Ala. 2002)(citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986)). Nevertheless, Mr. Murphy testified that he quit work when he learned he had cancer. (Doc. 8-3 at R.44-45, R.48.) He also testified that he was unable to work due to pain in his jaw and both legs and balance problems and nerve problems in the leg from which the bone was removed to reconstruct his jaw. (Id. at 51.) Nothing in the record indicates that these alleged limitations predated his surgery on February 1, 2011.
Regarding Mr. Murphy's medical records, the ALJ found:
(Doc. 8-3 at R.26-28.) Based on his consideration of the medical records, as well as Mr. Murphy's testimony, the ALJ found:
(Doc. 8-3 at R.28-29.)
These findings are supported by substantial evidence, which shows that Mr. Murphy's condition improved following surgery. Although he continued to complain of pain and other limitations in the months following his surgery, he has not pointed to evidence that these issues resulted in disabling limitations for a continuous period of 12 months or more.
Therefore, the court finds that the ALJ did not err in failing to find a closed period of disability.
Mr. Murphy contends that the ALJ failed to properly develop the record. (Doc. 11 at 8.) Specifically, he contends that the ALJ had a duty to develop the record by seeking updated medical records from Mr. Murphy for the period of time between the hearing, on May 14, 2012, and the date of the decision, November 29, 2012. (See id. ["The ALJ otherwise failed to explain the delay of more than six months in issuing a decision in November 2012 (R.18) following the hearing in May 2012 (R.21), creating a large evidentiary gap at the time of the decision."].) He also contends:
(Id. at 9 [footnote added].)
The court notes that Mr. Murphy, who is represented by counsel, has not filed any additional medical records with the court nor did he submit such records to the Appeals Council. Moreover, he does not argue how additional medical records or an additional medical source opinion or consultative examination would have changed the outcome of his case.
Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015). To show unfairness or clear prejudice sufficient to obtain a remand, the claimant must show "at least . . . that the ALJ did not have all of the relevant evidence before him in the record (which would include relevant testimony from claimant), or that the ALJ did not consider all of the evidence in the record in reaching his decision." Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)(citing Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir. 1982)).
Based on the court's review of the entire record in this case, the court finds Mr. Murphy has not demonstrated any unfairness or prejudice arising from the ALJ's failure to obtain additional medical records from May 2012 until November 2012 and/or to obtain an additional medical source opinion. Indeed, the medical records before the ALJ demonstrate that Mr. Murphy's surgery had removed the cancer from his jaw, that the cancer had not spread, that his jaw was successfully reconstructed with a bone from his tibia, and that both surgical sites were healing and had healed properly. The record shows that Mr. Murphy had some pain following the surgery, but the record does not support a finding that the ALJ erred in finding this pain was not so severe as to be disabling. Mr. Murphy has not shown that additional medical evidence would have refuted the record evidence or the ALJ's finding. Therefore, the court finds Mr. Murphy has not shown unfairness and/or prejudice based on his allegation that the ALJ failed to properly develop the record.
The decision of the ALJ will be affirmed.
Based on the reasons set forth above, the decision of the Commissioner, denying plaintiff's claim for a period of disability, DIB, and SSI will be affirmed. An Order affirming the decision of the Commissioner will be entered contemporaneously with this Memorandum Opinion.
20 C.F.R. § 404.1572; 20 C.F.R. § 416.972.
20 C.F.R. § 404.1567(b); 20 C.F.R. § 416.967(b).
(Id.) However, as the record shows, Mr. Murphy's tumor was resectable and there was no evidence that the cancer had spread.
