Opinion
Civil Action 00-0250-RV-M
January 22, 2001
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 1383 (c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for Supplemental Security Income (SSI) for children. The action was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was heard on January 22, 2001. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant Kenneth S. Apfel and against Plaintiff Shanta Garror, on behalf of Trevaris Garror, on all claims.
The Court will refer to Trevaris Garror as the Plaintiff though this action is brought by his mother, Shanta Garror, on his behalf.
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), quoting Jones v. Schweiker, 551 F. Supp. 205 (D. Md. 1982).
Plaintiff was born February 14, 1995. At the time of the most recent administrative hearing, Garror was twenty-eight months old. Plaintiff alleges disability due to sickle cell disease (Doc. 10).
The Plaintiff filed an application for SSI for children on April 6, 1995 (Tr. 46-49). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although Garror suffered from sickle cell disease, his impairment did not meet or equal requirements for the relevant Listings of disability (Tr. 11-20). Plaintiff requested review of the hearing decision (Tr. 8-10) by the Appeals Council, but it was denied (Tr. 4-5).
Plaintiff claims that the ALJ's opinion is not supported by substantial evidence. Specifically, Garror alleges that the ALJ improperly relied on a non-examining physician's opinion in determining that he was not disabled (Doc. 10).
The Court will begin this discussion by noting that there is not much evidence in this record. What evidence is available demonstrates that Plaintiff has sickle cell disease which he has had from two months of age (Tr. 167). His treating physician, Dr. Felicia M. Little, indicated that Garror has been hospitalized three times, once each for pneumonia, viral meningitis, and a febrile illness of undetermined etiology ( see Tr. 167). Dr. Little, a pediatrician specializing in hematology and oncology, stated that while Plaintiff had to take penicillin twice daily as a preventive measure and had to be checked on a routine basis, he would have only "intermittent periods of physical disability secondary to pain crisis or infection as a result of his sickle cell disease" (Tr. 167). Although Plaintiff was given the opportunity to have Dr. Little farther elaborate on the disabling effects of his impairment, nothing farther was submitted by Plaintiff from Dr. Little (Tr. 176-82).
Four months later, the ALJ contacted Dr. David M. Owen, an internist specializing in medical oncology, and asked him to review the medical evidence and make a determination as to whether Garror was disabled according to the disability listings (Tr. 184). Dr. Owen found that Garror did not meet the criteria, noting that Plaintiff's hospitalizations were unrelated to his impairment, that his recent hematocrits were within normal range, that there was "no history of thrombotic crises or of hemolytic crises," and that there was no evidence of "heart failure or CNS symptoms relating to sickle cell disease" (Tr. 185).
The ALJ cited extensively from Dr. Owen's report before concluding that Plaintiff had not demonstrated disability under the Listings. Garror's objection relates to the fact that Dr. Owen did not personally examine him. Plaintiff correctly points out that the opinion of a nonexamining physician "is entitled to little weight and taken alone does not constitute substantial evidence to support an administrative decision." Swindle v. Sullivan, 914 F.2d 222, 226 n. 3 (11th Cir. 1990) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985).
The Listing considered was the child listing for sickle cell disease. See 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 107.05 (2000).
However, the Court notes that Plaintiff has argued that he meets or equals the requirements for disability for sickle cell disease. Under the regulations, "[w]hen deciding medical equivalence, the Secretary must consider the medical opinion of one or more designated physicians on an advisory basis." Wilkinson on behalf of Wilkinson v. Bowen, 847 F.2d 660, 663 (11th Cir. 1987) (citing 20 C.F.R. § 416.926 (b)). The ALJ sought — and received — an advisory opinion from Dr. Owen. There was nothing untoward in the ALJ's reliance on that opinion.
The Court farther notes that it is Plaintiff's burden to provide specific medical evidence of disability. Wilkinson, 847 F.2d at 662. Garror's own treating physician, Dr. Little, stated that there would be only intermittent periods of disability. The Court finds that Plaintiff has not sustained his burden of proving disability.
Plaintiff has raised only one claim in this action; that claim is without merit. Upon consideration of the entire record, the Magistrate Judge finds "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401. Therefore, it is recommended that the Secretary's decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that this action be dismissed, and that judgment be entered in favor of Defendant Kenneth S. Apfel and against Plaintiff Shanta Garror, on behalf of Trevaris Garror, on all claims.