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Ervin v. Colvin

United States District Court, Eastern District of Arkansas, Jonesboro Division

December 12, 2014

LARRY ERVIN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

MEMORANDUM OPINION AND ORDER

JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE

Plaintiff, Larry Ervin, appeals the final decision of the Commissioner of the Social Security Administration denying his claims for disability insurance benefits under Title II of the Social Security Act and for supplemental security income benefits under Title XVI of the Act. For reasons set out below, the decision of the Commissioner is AFFIRMED.

I. BACKGROUND

On March 8, 2011, Mr. Ervin protectively filed for benefits due to degenerative back disease, neck problems, hearing problems, mental problems, leg and knee problems, depression, social anxiety, and arthritis. (Tr. 162) His claims were denied initially and upon reconsideration. At Mr. Ervin’s request, an Administrative Law Judge (“ALJ”) held a hearing on September 4, 2012, where Mr. Ervin appeared with his lawyer. At the hearing, the ALJ heard testimony from Mr. Ervin and a vocational expert (“VE”). (Tr. 30-66)

The ALJ issued a decision on February 22, 2013, finding that Mr. Ervin was not disabled under the Act. (Tr. 10-24) The Appeals Council denied Mr. Ervin’s request for review, making the ALJ’s decision the Commissioner’s final decision. (Tr. 1-4)

Mr. Ervin, who was fifty-nine years old at the time of the hearing, has an eighth grade education and past relevant work as a concrete foreman, laborer, and carpenter. (Tr. 36, 46)

II. DECISION OF THE ADMINISTRATIVE LAW JUDGE[1]

The ALJ found that Mr. Ervin had not engaged in substantial gainful activity since December 14, 2009, and he had the following severe impairments: myalgia/myositis and degenerative disc disease. (Tr. 12) However, the ALJ found that Mr. Ervin did not have an impairment or combination of impairments meeting or equaling an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.[2] (Tr. 14)

According to the ALJ, Mr. Ervin has the residual functional capacity (“RFC”) to do medium work. (Tr. 14) Based on his RFC assessment and utilizing the services of a vocational expert, the ALJ concluded Mr. Ervin was capable of performing his past relevant work as a carpenter or construction foreman. (Tr. 23) Accordingly, the ALJ concluded Mr. Ervin was not disabled.

III. ANALYSIS

A. Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.[3] Substantial evidence is “less than a preponderance, but sufficient for reasonable minds to find it adequate to support the decision.”[4]

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed “simply because ...


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