Swilling v. Astrue
MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 7/22/11. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
RUBY SWILLING o/b/o L.G.M.W.,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 1:09cv981-CSC
This is a child impairment case. In 2004, Ruby Swilling applied for supplemental
security income benefits (SSI) for L.G.M.W., her child.1 The initial application was denied,
and an ALJ, after holding several hearings, concluded that the child was not disabled. What
happened next is set out in the Commissioner’s brief.
Plaintiff requested that the Appeals Council review the decision (Tr. 323).
Subsequently, Plaintiff filed a second application for benefits and submitted
additional evidence. The Commissioner awarded L.G.M.W. benefits in
September 2006 (see Tr. 387). Then the Appeals Council reviewed the initial
ALJ’s decision, granting Plaintiff’s request for review (Tr. 386-89). In
addition, the Appeals Council reopened the May 2006 decision, consolidated
the second application with the original application, and remanded the matter
for a new decision from the ALJ (Tr. 387-89). The ALJ held three more
hearings (Tr. 640-70)2 and, on June 18, 2009, issued a decision adopting
summary of the evidence from the May 2006 decision and concluding that
Pursuant to the E-Government Act of 2002, as amended on August 2, 2002, and M.D. Ala.
General Order No. 2:04mc3228, the court has redacted the plaintiff’s minor child’s name throughout this
opinion and refers to her only by her initials, L.G.M.W.
L.G.M.W. was not disabled from the date of her application until the date of
the decision (Tr. 20-43). The Appeals Council denied Plaintiff’s request for
review (Tr. 11-13) and directed that payment of benefits pursuant to the
September 2006 decision granting benefits be ceased. (Tr. 350). Thus, the
ALJ’s decision is the final administrative decision.
(Def’s. Br., doc. # 28 at 1-2) (footnotes omitted).
This convoluted history underscores the difficulties presented by this case. However,
after careful consideration of the briefs of the parties and the record of the administrative
proceedings, the court concludes that the decision of the Commissioner should be affirmed.
II. Child Disability
An individual under 18 is considered disabled “if that individual has a medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and 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.” 42 U.S.C. §
1382c(a)(3)(C)(i) (1999). The sequential analysis for determining whether a child claimant
is disabled is as follows:
If the claimant is engaged in substantial gainful activity, she is not
If the claimant is not engaged in substantial gainful activity, the
Commissioner determines whether the claimant has a physical or
mental impairment which, whether individually or in combination with
one or more other impairments, is a severe impairment. If the
claimant’s impairment is not severe, she is not disabled.
If the impairment is severe, the Commissioner determines whether the
impairment meets the durational requirement and meets, medically
equals, or functionally equals in severity an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. If the impairment satisfies this
requirement, the claimant is presumed disabled.
See 20 C.F.R. § 416.924(a)-(d) (1997).
The Commissioner’s regulations provide that if a child’s impairment or impairments
are not medically equal, or functionally equivalent in severity to a listed impairment, the child
is not disabled. See 20 C.F.R. § 416.924(d)(2) (1997). In determining whether a child's
impairment functionally equals a listed impairment, an ALJ must consider the extent to
which the impairment limits the child's ability to function in the following six “domains” of
life: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting
and relating with others; (4) moving about and manipulating objects; (5) caring for oneself;
and (6) health and physical well-being. Shinn ex rel. Shinn v. Comm'r of Soc. Sec., 391 F.3d
1276, 1279 (11th Cir. 2004); 20 C.F.R. § 416.926a(b)(1). A child's impairment functionally
equals a listed impairment, and thus constitutes a disability, if the child's limitations are
“marked” in two of the six life domains, or if the child's limitations are “extreme” in one of
the six domains. Shinn, 391 F.3d at 1279; 20 C.F.R. § 416.926a(d).
In reviewing the Commissioner’s decision, the court asks only whether his findings
concerning the steps are supported by substantial evidence. 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
The court must, however, conduct an “exacting examination of the
[Commissioner's] conclusions of law.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
III. The Issues
As stated by the plaintiff, there are three issues in this case.
The ALJ committed reversible error in failing to accord any weight to
the opinion of L.G.M.W.’s fourth grade teacher, Virginia Nguyen, who
opined that L.G.M.W. had “obvious” or “serious”problems with
attending and completing tasks, interacting and relating to others and
in caring for herself.
The ALJ’s stated reasons for rejecting the opinion of Kelly Turner,
M.S., LPC, L.G.M.W.’s treating therapist – that “no supporting
documentation accompanied [her] letter” is not supported by substantial
The ALJ’s finding that L.G.M.W.’s impairments are not functionally
equivalent to a listed impairment is not based on substantial evidence.
(Pl’s Br., doc. # 23 at 1)
IV. Discussion of the Issues
A. Fourth Grade Teacher’s Opinion. In November 2004, the child’s fourth grade
teacher completed a questionnaire which posed questions about the six domains. In three2
of the six domains, the child’s teacher noted serious or obvious problems. The plaintiff
argues that the teacher’s assessment “directly conflicts with the ALJ’s finding that L.G.M.W.
Attending and Completing Tasks, Interacting and Relating With Others and Caring for Herself.
has a ‘less than marked’ limitation in the domain of attending and completing tasks and
caring for herself. (Tr. 39, 42). As such, the ALJ committed reversible error in failing to
address this opinion in his decision.” (Pl’s Br., doc. # 23 at 9)
While it is correct that the ALJ did not specifically discuss the opinions of the child’s
teacher, the ALJ stated in his opinion that he had considered opinion evidence. (R. at 27)
And, even though the teacher found that in the domain of attending and completing tasks the
child had an obvious problem in six and a serious problem in two of the 13 areas describing
this domain, the plaintiff elides the teacher’s comment that with medication the child is “a
lot more focused with her school work . . . [and] everything she does.” (R. at 112)
With respect to the specific domain of caring for herself, the child’s teacher opined
that the child had a serious problem only in the area of being “patient when necessary.” (R.
at 111) In the nine other areas describing this domain, the teacher opined that the child had
either no problem or only a “slight” problem. This hardly shows that the child has marked
problems in this area.
Even thought the ALJ did not specifically state he considered the teacher’s
questionnaire, his general comment about opinion evidence is sufficient to show that he did
consider all the evidence. Moreover, even if it was error, it is harmless. The opinion of the
ALJ shows that he carefully considered the evidence in this case and was extremely familiar
with it. A remand is not required.
B. The Opinion of Kelly Turner. Turner is a clinician at Southeast Psychiatric
Services in Dothan, Alabama. In a letter Turner wrote the following:
[L.G.M.W.] originally began individual therapy on 5-26-05. She attended
regularly until July 2006 when she was placed in the STARS program by her
Upon her leaving [L.G.M.W.] had gradually decompensated and her behavior
became increasingly uncontrollable. The lack of respect for authority,
academic performance and emotional stability continued to decline while she
was in-patient. [L.G.M.W.] returned to therapy on March 7. 2007 after seven
months. The focus of therapy was to assist with behavioral and emotional
issues that had progressively become unmanageable (even at times with
medication and institutionalization).
[L.G.M.W.'s] overall problems
throughout the next two months appeared to be attributed to anger,
oppositional deviance, sexual boundaries; poor coping skills and
parent-relationship problems coupled with her mood disturbance. [L.G.M.W.]
was last seen on April 24,2007.
Should you have any questions please feel free to contact me.
(R. at 540)
The ALJ gave “little weight” to this document because no supporting documentation
accompanied it. (R. at 35) The plaintiff contends that the ALJ’s conclusion regarding
Turner’s letter is not supported by substantial evidence because the record contains progress
notes of counseling sessions beginning June 2, 2005, and ending November 3, 2005. (R. at
287-305) First, as the Commissioner notes, the behavioral problems addressed in the letter
relate to 2007, not 2005. Secondly, the progress notes do not support the opinions expressed
in Turner’s letter except with respect to the child’s difficulty with peer relationships. For
example, in the November 3, 2005, progress report the counselor states that the child has
been recommended for a magnet school. (R. at 287). In the September 20, 2005, progress
report the counselor notes that the child’s behavior at home and school is significantly
improved. (R. at 291) The session summary states “Everything is great.” Id. The October 11,
2005, progress report notes that while the child has trouble with peers, she continues to do
well in school. (R. at 289)
Additionally, the court notes that the majority of these 2005 progress notes assess the
child’s mental status as normal. On some occasions the child was depressed with blunt affect
but this condition was not lasting; subsequent assessments were normal.
In short, the 2005 progress notes do not support the opinions expressed in the Turner
letter. The ALJ did not err in giving little weight to those opinions.
C. Functional Equivalence.
The plaintiff contends that the ALJ’s finding that
L.G.M.W.’s impairments are not functionally equivalent to a listed impairment is not based
on substantial evidence. The ALJ concluded that the child had a marked impairment only
in the domain of interacting and relating with others. (R. at 39) The plaintiff argues that
substantial evidence supports a finding that the child has extreme limitations in this domain
and, therefore, is disabled. In support of this argument, the plaintiff contends that the ALJ
erred in giving substantial weight to the opinion of a consultative psychological examiner,
Dr. Randal Jordan. Additionally, the plaintiff argues that the records of Dr. Tessema as well
as Ms. Turner and Ms. Nguyen, the child’s fourth grade teacher, demonstrate that the child
has extreme limitations in this domain. (Pl. Br. at 23-24). In relevant part, here is what the
Dr. Jordan assessed the claimant with less than marked limitations in
Acquiring and Using Information, Attending and Completing Tasks, and
Interacting and Relating with Others and with no limitation in the domains of
Moving About and Manipulating Objects, Caring For Herself, and Health and
Physical Well-Being (Exhibit 35F). Substantial weight is assigned to this
assessment; however, based on the claimant's history and legal difficulty, it is
clear that she has marked limitation in the domain of Interacting and Relating
(R. at 36)
The ALJ came to this conclusion after a lengthy and careful analysis of all of the
evidence. There is no question that taken as a whole, the evidence in this case shows a
mercurial child whose behavior and moods are subject to wide swings from placid to violent.
The ALJ noted this. “In an overview of the evidentiary record, I find that it is clear the
claimant exhibits behavioral problems that at first glance, appear to be uncontrollable, even
with medication and counseling.” (R. at 33) Following that observation, the ALJ discusses
at length the contrasting and conflicting evidentiary picture of this child.
The Commissioner’s regulations provide that a child's limitation in a domain is
“marked” where it is “more than moderate,” but “less than extreme.” 20 C.F.R. §
416.926a(e)(2)(I). A marked impairment “seriously” interferes with a child's “ability to
independently initiate, sustain, or complete activities.” Id. An “extreme” limitation is a
limitation that is “more than marked,” and “interferes very seriously with [the child's] ability
to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(I). In
determining whether a child has “marked” or “extreme” limitations in a domain, an ALJ
should consider how the child performs in a supportive setting, as well as the effects of
medication or other treatment. 20 C.F.R. § 416.926a(a).
The ALJ’s discussion of the evidence evinces his compliance with these regulations.
The court will not belabor this discussion further. The ALJ carefully sifted all of the
evidence and concluded that the child did not have an extreme limitation in the domain of
interacting and relating with others. As the court has already noted, it “may not decide the
facts anew, reweigh the evidence, or substitute
. . . [its] judgment for that of the
[Commissioner].” Phillips, 357 F.3d at 1240 n. 8 (11th Cir. 2004). The ALJ’s analysis of the
evidence was thorough and exacting. His conclusion is supported by substantial evidence,
and the court is not permitted to disturb it. The decision of the Commissioner will be
affirmed. The court will enter a final judgment.
Done this 22nd day of July, 2011.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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