K.N.O. v. Astrue

Filing 15

MEMORANDUM OPINION; The court has carefully and independently reviewed the record and concludes that substantial evidence supports the ALJ's conclusion that K.N.O. is not disabled. Thus, the court concludes that the decision of the Commissioner is supported by substantial evidence and is due to be affirmed. A separate order will be entered. Signed by Honorable Charles S. Coody on 8/2/2010. (jg, )

K . N . O . v. Astrue (CONSENT)

D o c . 15

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K .N .O . by and through parent & g u a rd ia n , Sabrina Patterson, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 2:09cv753-CSC (WO)

M E M O R A N D U M OPINION T h e plaintiff Sabrina Patterson filed this lawsuit on behalf of her daughter, K.N.O.,1 to re v ie w a final judgment by Defendant Michael J. Astrue, Commissioner of Social Security, in which he determined that K.N.O. is not "disabled" and therefore, not entitled to supp lem en ta l security income benefits. Her application was denied at the initial administrative le v e l. The plaintiff then requested and received a hearing before an Administrative Law Judge (" A L J " ). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's decision consequently became the final decision o f the Commissioner.2 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United

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, K.N.O. Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
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S ta te s Magistrate Judge conducting all proceedings in this case and ordering the entry of final ju d g m e n t. The court has jurisdiction over this lawsuit under 42 U.S.C. §§ 405(g) and 1 3 8 3 (c )(3 ).3 For the reasons that follow, the court concludes that the Commissioner's decision d e n yin g K.N.O. supplemental security income benefits is due to be affirmed. I . STANDARD OF REVIEW In 1996, the President signed into law the Personal Responsibility and Work O p p o rtu n ity Reconciliation Act of 1996, which included a new standard for defining child d isab ility under the Social Security Act. See PUB. L. NO. 104-193, 110 Stat. 2105, 2188 (1 9 9 6 ). The revised 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 w h ic h has lasted or can be expected to last for a continuous period of not less than 12 months." 4 2 U.S.C. § 1382c(a)(3)(C)(I) (1999). The sequential analysis for determining whether a c h i ld claimant is disabled is as follows: 1. 2. If the claimant is engaged in substantial gainful activity, he is not d is a b le d . If the claimant is not engaged in substantial gainful activity, the C o m m is s io n e r determines whether the claimant has a physical or mental im p a irm e n t which, whether individually or in combination with one or m o re other impairments, is a severe impairment. If the claimant's im p a irm e n t is not severe, he is not disabled. If the impairment is severe, the Commissioner determines whether the im p a irm e n t meets the durational requirement and meets, medically

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42 U.S.C. §§ 405(g) and 1383(c)(3) allow a plaintiff to appeal a final decision of the Commissioner to the district court in the district in which the plaintiff resides.

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e q u a ls , or functionally equals in severity an impairment listed in 20 C .F .R . Part 404, Subpart P, Appendix 1. If the impairment satisfies this re q u ire m e n t, the claimant is presumed disabled. S e e 20 C.F.R. § 416.924(a)-(d) (1997). T h e Commissioner's regulations provide that if a child's impairment or impairments d o e s not meet, or is not medically equal or functionally equivalent in severity to a listed im p a irm e n t, the child is not disabled. See 20 C.F.R. § 416.924(d) (2003). In reviewing the C o m m issio n er's decision, the court asks only whether his findings concerning the steps are s u p p o rte d by substantial evidence. See Brown v. Callahan, 120 F.3d 1133 (10 th Cir. 1997). I I . PLAINTIFF'S CLAIM A s stated by the plaintiff, the issue for the Court's review is "whether the ALJ erred by f a ilin g to adequately consider if the severe impairment of epilepsy met or equaled the listing a t 20 C.F.R. 404, Supt. P., App. 1 § 111.02B." (Doc. # 12, Pl's Br. at 1 & 4). III. DISCUSSION T h e ALJ, in his opinion, followed the regulations' three steps as listed above when he a n a lyz e d K.N.O.'s claim. Under the first step, the ALJ found that K.N.O. is not engaged in su b stan tial gainful activity. At the second step, the ALJ found that K.N.O. has severe im p a irm e n ts of "psychomotor epilepsy, complex partial seizure disorder, obesity, asthma and a lle rg ic rhinitis." (R. 20). Next, at step three, the ALJ found that K.N.O. did not have "an im p a irm e n t or combination of impairments that meets or medically equals one of the listed im p a irm e n ts in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and

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4 1 6 .9 2 6 )." (R. 23). The ALJ also found that K.N.O. "does not have an impairment or c o m b in a tio n of impairments that functionally equals the listings (20 CFR 416.924(d) and 4 1 6 .9 2 6 a )." (Id). The ALJ concluded that K.N.O.'s limitations result in no or less than m a rk e d limitations in five of the six domains of functional limitations, and that she has marked lim ita tio n s only in the health and physical well-being domain of functional limitation. (R. 252 9 ). Consequently, the ALJ concluded that K.N.O. is not disabled. K.N.O. suffers from epilepsy and complex partial seizure disorders, both of which are s e v e re impairments, however, [t]he evidence reflects that although the claimant receives treatment for her s e iz u re s and for asthma and allergies, they are fairly well controlled and her tre a tm e n t/m e d ic a tio n are being monitored. She has had extensive testing and h e r physicians have treated her with medications and have not placed such s e v e re restrictions on the claimant that she would be considered disabled. The ev ide n ce reflects that the claimant is able to participate in the activities that are g e n e ra lly associated with normal daily living, with the seizure precautions. The s c h o o l records do not reflect severe problems with health/medication although th e claimant's mother testified that the claimant had been absent approximately 1 5 days. (R. 25). T h e only issue raised by the plaintiff is whether the ALJ's failed to properly consider w h e th e r K.N.O. meets or equals Listing 111.02B because of the side effects of her medication. The Commissioner's Listings provide, in pertinent part, that a child is disabled due to c o n v u lsiv e epilepsy syndrome if she meets the following criteria: 111.02 Major motor seizure disorder. * * *

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B. Convulsive epilepsy syndrome. In a child with an established diagnosis of e p ilep sy, the occurrence of at least one major motor seizure in the year prior to a p p lic a tio n despite at least three months of prescribed treatment. And one of the f o llo w in g : 1. IQ of 70 or less; or 2. S ig n if ic a n t interference with communication due to speech, h ea rin g , or visual defect; or 3. Significant mental disorder; or 4. W h e re significant adverse effects of medication interfere with m a jo r daily activities. 20 C.F.R. Pt. 404, Subpt. P, App. 1. In 2003, K.N.O. experienced three seizures when she was sick with a high fever. (R. 9 9 ). In 2005, she began experiencing seizures even when she was not sick. (R. 115). She was h o s p ita liz e d in April 2005, and diagnosed with epileptic seizures. (R. 116-124). She was p re sc rib e d Diastal "for any prolonged seizures greater than 5 minutes." (R. 117). She was h o s p ita liz e d again in September 2005 after suffering an epileptic seizure for more than an h o u r. (R. 128). Her EEG report was consistent with "partial-onset epilepsy." (Id.) On November 13, 2005, K.N.O. was hospitalized after suffering multiple seizures. (R. 1 8 7 -1 9 0 ). Dr. Tony McGrath, K.N.O.'s treating physician in Birmingham, prescribed

C a rb itro l to control her seizures. (R. 189). Two days later, K.N.O.'s mother complained to D r. Leatha Barber-Morgan, her family physician in Montgomery, that the Carbitrol was m a k in g K.N.O. dizzy in the morning. (R. 131). On June 7, 2006, K.N.O. was seen by Dr. Lane Rutledge. (R. 204-06). Although

K .N .O .'s mother complained about K.N.O.'s weight gain since being on Carbitrol, K.N.O. was " to le ra tin g the Carbitrol without difficulty and she takes it well." (R. 205). During the

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e x a m in a tio n , she was "[a]wake and alert with appropriate mental status and language for age." (R . 206). On August 10, 2006, K.N.O. arrived at the emergency room suffering from a seizure. (R . 277-81). On September 12, 2006, K.N.O. presented to the emergency room after suffering a s e iz u re at school. (R. 271-76). Dr. McGrath saw K.N.O. on September 13, 2006 for a followu p visit. (R. 202-03). Because K.N.O. had suffered a seizure the day before, Dr. McGrath in c re a s e d her dosage of Carbitrol. (Id.) Her mother expressed no concerns regarding the m e d ic a tio n . (Id.). On December 5, 2006, K.N.O. experienced an epileptic seizure at school and was taken to the emergency room. (R. 262-71). Dr. Barber-Morgan saw K.N.O. on December 7, 2006 a s a follow-up to the emergency room visit. (R. 210). Dr. Barber-Morgan suggested that K .N .O . be seen by Dr. McGrath. (Id.) K.N.O.'s mother made no complaint about any side e f f e c ts from the Carbitrol. (Id.) On August 12, 2007, K.N.O. experienced a seizure and was taken to the emergency ro o m . (R. 245-53). She was awake and alert upon arrival. (R. 245, 252). On October 13, 2 0 0 7 , K.N.O. was taken to the emergency room after experiencing a seizure. (R. 239-44). T h e admission note indicated that K.N.O. had not taken her seizure medication that day. (R. 2 3 9 ). K.N.O. was see by Dr. McGrath on October 18, 2007 (R. 198-201). Her mother ex p resse d no concern about side effects from the Carbitrol. (Id.). On November 2, 2007,

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K .N .O . presented at the emergency room suffering from a seizure. (R. 233-38). K.N.O. was hospitalized in December 2007 for extensive monitoring and testing of her e p ile p sy. (R. 218-26, 229-232). Her mother reported the following: [ S ]e iz u re s are less intense. (They do not generalize), and less often since the in c re a se of her Carbatrol (sic) last year. . . .She has had some weight gain over th e years. Mom reports that she is always congested. [K.N.O.] does have some d if f ic u lty breathing with exercise, and has a chronic cough and reported asthma. S h e does have some abdominal pain noted, and has had frequent headaches with h isto ry of seizures reported. Mom states that she has had some problems with d e p re s s io n , and endocrine wise, she is over weight. (R. 218-19). The medical record clearly demonstrates that K.N.O. suffers from epileptic seizures, a n d she is treated with the medication Carbitrol. At the administrative hearing, K.N.O.'s

m o th e r testified that the medication "makes her drowsy and it's hard for her to stay awake in c la ss to pay attention to her teacher and keep up with the rest of the kids." (R. 286). She f u rth e r testified as follows. Q: A: Is she drowsy at school? Y e s, because she takes the medication before she goes to school and w h e n she gets home at bedtime. So, in the morning before she leaves h o m e she has to take the medications and it has her sleepy like half the d a y. O k a y, do you think that's affecting her learning I guess is what I u n d e rs ta n d ? Y es, sir. D o e s she seem to do better a little later in the day? I guess if you have tw o different types of medications working on her here but, and I don't k n o w if it's reflected in the school grades for that particular, what I'm tryin g to say is let's just say for the sake of argument that math is taught a t 11:00. R ig h t.

Q: A: Q:

A:

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Q: A: Q: A: Q: A: Q: A: (R . 291-92).

D o e s she seem to be more alert when she's ­ I don't think so. Y o u don't think so? N o , sir. O k a y, well what about at 1:00? I'd say maybe around the time she gets home she may be a little alert but s h e 's still tired, still sleepy. O k a y, so you think it's affecting her whole day at school? Y e s, sir, I really do.

The administrative hearing in this case was held on June 12, 2008. (R. 282). At the co n clus ion of the hearing, the ALJ requested that the plaintiff submit a teacher questionnaire to determine whether the medication was affecting K.N.O.'s ability to learn and pay attention. (R . 299). The ALJ gave the plaintiff's attorney three (3) weeks to submit a teacher

q u e s tio n n a ire specifically addressing K.N.O.'s condition while at school. (R. 300-02). On Ju ly 3, 2008, counsel requested additional time to submit the teacher questionnaire. (R. 97). O n July 18, 2008, counsel again requested time to secure the questionnaire. (R. 96). Finally, o n August 10, 2008, counsel informed the ALJ that "school is now back in session. I hope to h a v e the Teacher Questionnaire soon." (R. 95). Thereafter, counsel did not submit the r e q u e s te d questionnaire from any of K.N.O.'s teachers.4 R e lyin g solely on her mother's testimony, K.N.O. argues that she suffers from sign ifica n t adverse effects of medication, and thus, she meets or equals Listing for 113.02B(4). In concluding that K.N.O. did not meet, equal or functionally equal any of the Listings, the

The plaintiff offers no explanation as to why a teacher questionnaire was not submitted to the ALJ for his consideration.

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A L J considered the testimony of K.N.O.'s mother. The claimant's mother alleged the claimant had epilepsy with seizures and a sth m a . The claimant was in the fourth grade and she was promoted to the fifth g ra d e . Her grades were not good and they started dropping in 2006 and " tre m e n d o u s ly" in 2007/2008 because of drowsiness. . . . The claimant's mother s ta te d she was in special classes in school and got one on one instruction. The m e d ic a tio n s made her sleepy and that affected her learning.... (R . 23). The ALJ did not fully credit K.N.O.'s mother's testimony about the side effects of the m e d ic a tio n . After considering the testimony, school records and medical evidence, the ALJ a c k n o w le d g e d that K.N.O. has impairments that could reasonably be expected to produce the s id e effects and symptoms about which her mother testified, but the ALJ then concluded that "the statements concerning the intensity, persistence and limiting effects of the claimant's s ym p to m s are not credible to the extent they are inconsistent with finding that the claimant d o e s not have an impairment or combination of impairments that functionally equals the lis tin g s for the reasons explained below." (R. 24). The ALJ then detailed K.N.O.'s medical an d school records, interspersing reasons for discounting her mother's testimony. (R. 24-25). W h e re an ALJ decides not to credit a witness's testimony, the ALJ must articulate s p e c if ic and adequate reasons for doing so, or the record must be obvious as to the credibility f in d in g . Foote v. Chater, 67 F.3d 1553, 1561-62 (11 th Cir. 1995); Jones v. Dept. of Health & H u m a n Servs., 941 D.2d 1529, 1532 (11 th Cir. 1991) (articulated reasons must be based on su b sta n tial evidence). If proof of disability is based on subjective evidence and a credibility d e ter m in a tio n is, therefore, critical to the decision, "`the ALJ must either explicitly discredit

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s u c h testimony or the implication must be so clear as to amount to a specific credibility f in d in g .'" Foote, 67 F.3d at 1562, quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11 th Cir 1 9 8 3 ) (although no explicit finding as to credibility is required, the implication must be o b v io u s to the reviewing court). The ALJ has discretion to discredit subjective complaints as lo n g as he provides "explicit and adequate reasons for his decision." Holt v. Sullivan, 921 F .2 d 1221, 1223 (11 th Cir. 1991). Relying on the medical and school records, the ALJ c o n c lu d e d that the K.N.O.'s underlying impairments are capable of giving rise to some of the s id e effects about which her mother testified, however not to the extent described by her m o th e r. After a careful review of the record, the court concludes that although the ALJ's re a so n s for discrediting the K.N.O.'s mother's testimony could have been more clearly a rtic u la te d , his reasons were supported by substantial evidence. The only evidence that K .N .O . suffers from any significant side effects from her medication is her mother's te stim o n y. Her mother offers no explanation as to how she knows that K.N.O. is not alert at s c h o o l. No school records support her testimony. Moreover, the medical records do not s u b s ta n tia te her mother's testimony. For example, since being prescribed Carbitrol in 2005, K .N .O . was seen by Dr. Barber-Morgan on January 30, 2006, May 1, 2006, May 10, 2006, J u n e 5, 2006, July 31, 2006, October 12, 2006 and December 7, 2006. (R. 210-17). Not once d u rin g those visits did K.N.O.'s mother complain about drowsiness, sleepiness or any other s id e effect from the Carbitrol. Her mother complained only once that K.N.O. appeared dizzy

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i n the morning, and then she complained only that the medication was causing weight gain. T h e only evidence that K.N.O. suffers from "significant adverse" side effects is her mother's te stim o n y which is wholly conclusory, inconsistent with the medical records and unsupported b y other objective evidence. Consequently, her mother's testimony, standing alone, cannot c o n stitu te substantial evidence. Thus, the ALJ's conclusion that K.N.O. does not have meet o r equal Listing 113.02 is supported by the record. To the extent that K.N.O. is arguing that the ALJ should have accepted her mother's te stim o n y regarding her side effects from her medication, as the court explained, the ALJ had g o o d cause to discount that testimony. This court must accept the factual findings of the C o m m is s io n e r if they are supported by substantial evidence and based upon the proper legal s ta n d a r d s . Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). C O N C L U SIO N T h e court has carefully and independently reviewed the record and concludes that s u b s ta n tia l evidence supports the ALJ's conclusion that K.N.O. is not disabled. Thus, the c o u rt concludes that the decision of the Commissioner is supported by substantial evidence a n d is due to be affirmed. A separate order will be entered. D o n e this 2 n d day of August, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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