Smith v. Astrue

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 2/13/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHNNY RANSOM SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 1:12cv1123-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Johnny Ransom Smith, applied for supplemental security income

benefits in December of 2007, as a minor.

His application was denied at the

administrative level by the Administrative Law Judge (“ALJ”), but was later remanded
by Appeals Counsel for further consideration. During this time, Plaintiff filed additional
applications for benefits. The Appeals Counsel vacated an award of benefits on one of
Plaintiff’s applications and remanded and consolidated all of Plaintiff’s applications. The
ALJ held a hearing on the consolidated cases and then issued a decision in which he
found Plaintiff “not disabled.” Plaintiff then sought review from the Appeals Council,
but that request was rejected. The ALJ’s decision consequently became the final decision
of the Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social

F.2d 129, 131 (11th Cir. 1986).
The case is now before the court for review under 42 U.S.C. § 405(g). Pursuant to
28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and
entry of a final judgment by the undersigned United States Magistrate Judge. Pl.’s
Consent to Jurisdiction (Doc. 16); Def.’s Consent to Jurisdiction (Doc. 15). Based on the
court’s review of the record and the briefs of the parties, the court AFFIRMS the decision
of the Commissioner.
II.

STANDARD OF REVIEW
Because Plaintiff filed his initial application before the age of 18 and attained the

age of 18 prior to the date of the ALJ’s decision, the ALJ first evaluated Plaintiff’s claims
under the “adolescent” standard, then applied those findings to the adult standard.
A.

Adolescent Standard

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996
includes the standard for defining child disability under the Social Security Act. See
PUB. L. NO. 104-193, 110 Stat. 2105, 2188 (1996).

The statute provides that an

individual under 18 shall be 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

Security matters were transferred to the Commissioner of Social Security.

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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:
1. If the claimant is engaged in substantial gainful activity, he is not
disabled.
2. 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, he is not disabled.
3. 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).
In determining whether an impairment functionally equals a listed
impairment, the ALJ must consider the child’s ability to function in six
different “domains”: (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 yourself;” and (6) health and
physical well-being. If the child has “marked” limitations in two of these
domains, or an “extreme” limitation in any one domain, then his
impairment functionally equals the listed impairments, and he will be found
to be disabled. A “marked” limitation is one that seriously interferes with
the child’s ability to initiate, sustain, or complete activities. An extreme
limitation is one that “very seriously” interferes with the child’s ability to
initiate, sustain, or complete activities.

3

Coleman ex rel. J.K.C. v. Comm’r of Soc. Sec., 454 F. App’x 751, 752 (11th Cir. 2011)
(internal citations omitted).
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

reviewing the Commissioner’s decision, the court asks only whether the ALJ’s findings
concerning the steps are supported by substantial evidence. “Under this limited standard
of review, [the court] may not make fact-findings, re-weigh the evidence, or substitute
[its] judgment for that of the [ALJ].” Bryant v. Soc. Sec. Admin., 478 F. App’x 644, 645
(11th Cir. 2012) (citing Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)).
“Where substantial evidence supporting the ALJ’s fact findings exists, [the court] cannot
overturn those findings even if other substantial evidence exists that is contrary to the
ALJ’s findings.” Id. (citing Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991)).
B.

Adult Standard

Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when
the person 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 12 months.

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42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
Impairments]?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The
same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited
as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).

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Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (grids) or call a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“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.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

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preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must
view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was a minor at the time he filed his application and reached the age of 18

prior to the ALJ’s decision. Tr. 26. Plaintiff graduated high school, but had no relevant
work experience. Tr. 36. Following the administrative hearing, and employing the threestep adolescent and five-step adult process,5 the ALJ found that Plaintiff “has not
engaged in substantial gainful activity since the date the application was filed.” (Step 1)
Tr. 19. At Step 2, the ALJ found that Plaintiff suffered from the following severe
impairments:

“attention deficit hyperactivity disorder (ADHD), mood disorder,

depression, substance abuse disorder, and hearing loss.” Id. The ALJ also found that
since attaining the age 18, Plaintiff had not developed any new impairments. Tr. 34. At

5

As detailed above, the first three steps of the adolescent process are the same as the first three
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Step 3, the ALJ found that prior to, and since attaining the age 18, Plaintiff’s
impairments, impairment or combination of impairments did not meet or medically equal
any listed impairment. Tr. 25-35. Next, the ALJ found that Plaintiff retained the RFC to
perform work at all evectional levels, but with several nonexertional limitations. Tr. 12.
At Step 5, the ALJ found that, “[s]ince attaining the age 18 and [c]onsidering the
claimant’s age, education, work experience, and residual functional capacity,” and after
consulting with the VE, “that jobs have existed in significant numbers in the national
economy that the claimant has been able to perform.” Tr. 36. The ALJ identified the
following occupations as examples:

“golf range attendant,” “poultry boner,” and

“cleaner.” Tr. 37. Accordingly, the ALJ determined that Plaintiff had not been disabled
prior to or since attaining the age of 18. Tr. 37-38.
IV.

PLAINTIFF’S CLAIM
Plaintiff requests the court reverse the ALJ’s decision because “The ALJ erred

when he failed to find that Plaintiff is medically equivalent to Commissioner’s Listing
12.04 and 112.04 prior to age 18.” Pl.’s Br. (Doc. 10) at 5.
V.

DISCUSSION
Plaintiff alleges that the ALJ erred in making the Step 3 determination—whether

Plaintiff’s impairments meet or equal a Listing. It is important to note that the burden at
Step 3 remains with Plaintiff and that to meet a listing, Plaintiff “must present medical

steps of the adult process.
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findings equal in severity to all the criteria for the one most similar listed impairment.”
Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original).
In support of his claim, Plaintiff merely relists listing 12.04, and then asserts that
“Dr. Stephen Brandt, J. Walter Jacobs, psychiatrist, Eyob Tessema, M.D., psychiatrist,
Jerlyn C. McLeod, therapist Kim Jaggars, M. S., L.P.C., and State Agency medical
examiner Eugene E. Fleece, Ph.D. all agreed that the Plaintiff had severe mental illness
and document various parts of Listing §12.04.” Pl.’s Br. (Doc. 10) at 7. There are many
problems with this argument. First, this is simply inadequate. Plaintiff appears to expect
the court to find which records from which doctors match which elements of the listings,
and from that, piece together a finding that Plaintiff has met all criteria of the Listing. As
stated above, the burden remains with Plaintiff at this point. Moreover, Listing 12.04 is
an adult listing and most of the records from the aforementioned doctors relate to
Plaintiff’s adolescent time period.
Second, Plaintiff appears to argue that the ALJ rejected the opinions of the
aforementioned doctors, and instead relied on non-examining Dr. Davis, who opined that
Plaintiff did not meet the Listings. That is not the case. The ALJ did reject the opinion
of Dr. Fleece, a non-examining physician, and instead, relied on the opinion of Dr. Davis.
However, none of the other doctors, including the treating physicians, opined that
Plaintiff met any of the Listings. While those doctors certainly opined as to limitations
Plaintiff may suffer, nothing in the record indicates that Plaintiff met all of the criteria of
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a Listing. This must be why Plaintiff fails to point the court to any evidence in support of
his claim, and why he hedges his arguments in support by stating that the “numerous
medical sources appeared to be in agreement.” Pl.’s Br. (Doc. 10) at 5 (emphasis added).
There is not an appearance of agreement when those other physicians did not opine as to
the Listings. Thus, the ALJ did not reject the opinions of those other doctors. Instead, he
relied on them in formulating the RFC, and there was no error.
The court will not suppose any further arguments on Plaintiff’s behalf, especially
here, where the burden squarely lies with Plaintiff to show that he met all elements
required of a Listing. Despite the deficiencies of Plaintiff’s arguments, the court has
undertaken an review of the ALJ’s decision and all of the evidence of record, and finds
that the ALJ’s decision is supported by substantial evidence. Accordingly the court will
not disturb it.
VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 13th day of February, 2014.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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A