Ellis v. Astrue (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 7/27/11. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SYLVIA ELLIS, o/b/o E.D.B.,
Commissioner of Social Security,
CIVIL ACTION NO. 2:10cv95-CSC
Plaintiff Sylvia Ellis filed this lawsuit on behalf of her son, E.D.B.,1 to review a final
judgment by defendant Michael J. Astrue, Commissioner of Social Security, in which he
determined that E.D.B. is not “disabled” and therefore, not entitled to supplemental security
income benefits. Her application was denied at the initial administrative level. The plaintiff
then requested and received a hearing before an Administrative Law Judge (“ALJ”).
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
of the Commissioner of Social Security (Commissioner).2 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The parties have consented to the undersigned United States
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 him only by his initials, E.D.B.
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.
Magistrate Judge rendering a final judgment in this lawsuit pursuant to 28 U.S.C. § 636(c)(1)
and M.D. Ala. LR 73.1. The court has jurisdiction over this lawsuit pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). For the reasons that follow, the court concludes that the
Commissioner’s decision denying E.D.B. supplemental security income benefits should be
I. STANDARD OF REVIEW
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, he 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, he 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.
As stated by the plaintiff, there are two issues in this case.
The Commissioner’s decision should be reversed because, the ALJ’s
functionality findings lack the support of substantial evidence and
contain no rationale or reference to any supporting evidence.
The Commissioner’s decision should be reversed because, the ALJ
failed to evaluate the limitations imposed by the combinations of
E.D.B.’s impairments under the proper legal standard.
(Pl’s Br., doc. # 12 at 6).
The plaintiff raises two issues related to this court’s ultimate inquiry of whether the
Commissioner’s disability decision is supported by the proper legal standards and substantial
evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987). However, the court
pretermits discussion of the plaintiff’s specific arguments because the court concludes the
ALJ’s determination is supported by substantial evidence, and even if the ALJ erred, any
error is harmless.
E.D.B. was born on January 24, 1998. He was eight (8) years old on the date the
application for benefits was filed. (R. 18). The ALJ concluded that E.D.B. is not disabled
and therefore denied his claim for supplemental security income. Under the first step, the
ALJ found that E.D.B. is not engaged in substantial gainful activity. At the second step, the
ALJ found that E.D.B. suffers from severe impairments of “attention deficit hyperactivity
disorder, borderline intellectual functioning and encopresis.”3 (Id.) At step three, the ALJ
found that E.D.B. did not have an impairment or combination of impairments that met or
medically equaled a Listing in Appendix 1 of 20 C.F.R. Part 404, Subpart P. (R. 27). The
ALJ then considered whether E.D.B.’s impairments were “functionally equal” a level of
severity in a Listing. (R. 27-30).
In order to functionally equal a listing, E.D.B.’s impairments must result in “marked”
limitations in two or more of six functional domains or “extreme” limitation in one functional
domain. 20 C.F.R. § 416.926a(a). These six functional domains are set forth in the
applicable regulations: Acquiring and using information; Attending and completing tasks;
Interacting and relating to others; Moving about and manipulating objects; Caring for
yourself; and Health and physical well-being. Id. at 416.926a(b).
Encopresis is a problem that children develop due to constipation and possibly caused by stress.
Boys are six (6) times more likely to develop the condition that girls.
Encopresis is a problem that children can develop due to chronic (long-term) constipation.
With constipation, children have fewer bowel movements than normal, and the bowel
movements they do have can be hard, dry, and difficult to pass. Once a child becomes
constipated, a vicious cycle can develop. The child may avoid using the bathroom to avoid
discomfort. Stool can become impacted (packed into the rectum and large intestine) and
unable to move forward. The rectum and intestine become enlarged due to the hard,
impacted stool. Eventually, the rectum and intestine have problems sensing the presence of
stool, and the anal sphincter (the muscle at the end of the digestive tract that helps hold stool
in) loses its strength. Liquid stool can start to leak around the hard, dry, impacted stool,
soiling a child's clothing
What is Encopresis? available at http://www.allkids.org/body.cfm?xyzpdqabc=0&id=412&action=detail
%20Disorders (last visited on July 22, 2011)
The ALJ concluded that E.D.B. has “less than marked limitation” in the domains of
acquiring and using information, attending and completing tasks, and interacting and relating
to others. (R. 28-30). He further concluded that E.D.B. has no limitation in the domains of
moving about and manipulating objects and health and well-being. (R. 31). However, the
ALJ concluded that E.D.B. has a marked limitation in his ability to care for himself. (R. 31).
Finally, the ALJ concluded that E.D.B. does not have an extreme limitation in one area of
functioning, nor does he have marked limitations in two areas of functioning. (R. 31).
Consequently, the ALJ concluded that E.D.B. was not disabled. (Id.)
The crux of this case is the ALJ’s determination of the severity of E.D.B.’s functional
limitations. E.D.B. argues that the ALJ failed to properly evaluate his impairments and did
not properly state the reasons for finding that he was not disabled. The plaintiff complains
that the ALJ failed to state “with sufficient clarity the legal rules being applied and the
weight accorded the evidence considered.” (Pl’s Br., doc. # 12, at 7). The ALJ stated in his
opinion that he had considered all of the claimant’s symptoms and medical evidence. (R. at
27). Even thought the ALJ did not specifically state the weight assigned to each piece of
evidence, the ALJ recited all the applicable law and detailed all the medical evidence. The
ALJ specifically stated that he accepted the testimony of the medical expert, and he rejected
the statements of the claimant’s mother regarding the severity of E.D.B.’s limitations.
At the hearing, Dr. Durham testified that the claimant has a less than marked
limitation in acquiring and using information, a less than marked limitation in
attending and completing tasks, a less than marked limitation in interacting and
relating with others, no limitation in moving about and manipulating objects,
a marked limitation in caring for himself and no limitation in health and
physical well-being. The claimant has functioned at this level since 2006. I
accept the testimony of our medical expert because I find that the testimony is
credible (sic) makes sense and as an independent finder of facts believe the
testimony to be true, accurate and correct.
I find that the testimony and statements of record offered by the claimant’s
mother were sincere in presenting the problems of her child’s situation;
however, the limitations alleged are out of proportion to the objective medical
evidence of record.
(R. 27-28). Thus, the ALJ’s general comments about the evidence are sufficient to show that
he considered 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. In this case, the ALJ concluded that although E.D.B. has deficits in acquiring
and using information, only his ability to care for himself rises to the level of marked. None
of his limitations rise to the level of extreme. (R. 31). Substantial evidence supports the
ALJ’s determination. Although E.D.B.’s mother asserts that he suffers from ADHD, none
of E.D.B.’s physicians who evaluated E.D.B. diagnosed him as suffering from ADHD.4 In
fact, testing demonstrated that he does not suffer from ADHD. (R. 200-01, 210).
On August 31, 2004, E.D.B. underwent a psychological evaluation by Dr. Dorn
Majure, PhD. At that time, E.D.B.’s mother reported that E.D.B. was in special education
classes and his grades were poor. (R. 171). E.D.B.’s school records demonstrate that he is
Dr. Majure, a 2004 consultative psychologist, diagnosed E.D.B. as suffering from ADHD.
However, subsequent testing and evaluations do not support that diagnosis.
not in special education classes, and his grades are above average (B’s). (R. 119-120). Dr.
Majure opined that E.D.B.’s
... developmental status appeared to be within normal limits. He was
cooperative during this evaluation. His speech was at a normal rate. His
stream of thought appeared grossly normal and logical. Psychosis was denied
and not evident. His affect appeared to be appropriate to content of thought
and conversation. His mood appeared to be normal. The relationship between
the examiner and the claimant was appropriate. Symptoms of anxiety were
denied. Symptoms of depression were denied. His appetite was reported to
be good. [E.D.B.] reportedly experiences initial insomnia and is currently
prescribed Clonidine. Suicidal and homicidal ideation was denied. Recent
stressors were denied. His level of consciousness appeared to be alert. He was
oriented to person, place, time, and situation. His recent and remote memory
appeared to be good. His estimated level of intellectual functioning appears
to be in the borderline to low average range. His judgment, insight and
decision-making appeared to be intact.
(R. 171-72). Dr. Majure concluded that E.D.B.
appears to be mildly impaired in his ability to function in an age-appropriate
manner cognitively, communicatively, socially, adaptively, behaviorally, and
in concentration, persistence and pace.
On June 20, 2006, Dr. Guy Renfro, PhD, conducted another psychological evaluation
of E.D.B. (R. 184-86). At that time, E.D.B.’s mother reported that he was not in any special
education classes. (R. 185). She reported that he was prescribed Adderall but she took him
off the medication because he was not eating, and she did not see much change in his
behavior when he was on the medication. (Id.) Dr. Renfro opined that
[a]lthough his mother complains of hyperactivity, he did not display any
excessive activity level, unusual impulsivity, or excessive distractibility during
this evaluation. His mother did describe episodes of encopresis.
(R. 186). Dr. Renfro diagnosed E.D.B. as suffering from encopresis (without incontinence
or constipation), and borderline intellectual functioning based on prior testing. (Id.)
Finally, on September 8, 2006, Marnie Smith Dillon, a licensed clinical psychologist,
conducted an evaluation and testing on E.D.B. (R. 193-203). During this evaluation,
E.D.B.’s mother denied any “academic concerns.” (R. 194). E.D.B.’s test results were “not
suggestive of the presence of ADHD.” (R. 200-01). A ‘provisional diagnosis of ADHD,
Combined Type is also given based on clinical history.” (R. 201) (emphasis added).
E.D.B. and his mother began therapy at Associate Psychologists in September 2006.
Testing on October 3, 2006 was not suggestive of ADHD. (R. 210). Treatment notes
indicate that E.D.B. and his mother disagree about his “accidents” – E.D.B. denies accidents
at school but his mother insists that his pants are soiled when he comes home. (Id.) After
missing two appointments, E.D.B. and his mother presented for therapy on November 9,
2006. At that time, E.D.B.’s mother complained about his encopresis; she does not have a
medical explanation for his condition. (R. 209). On January 4, 2007, E.D.B. and his mother
appeared for therapy, but his mother was agitated and uncooperative. (R. 208). On March
21, 2007, she reported taking E.D.B. off his medication because it was “not doing any good.”
On January 21, 2008, E.D.B.’s mother complained that he could not “stay focused.”
(R. 207). E.D.B. was not on medication. On February 13, 2008, E.D.B.’s mother reported
that he had two ‘accidents’ in class. (Id.) On March 11, 2008, he was doing much better,
and was not on medication. (Id.) On April 14, 2008, treatment notes indicate that E.D.B.’s
mother ‘may be seeking secondary gain’ from E.D.B.’s condition. On April 24, 2008, E.D.B.
denied that the encopresis was a problem but his mother insisted that it was. (R. 206).
On May 8, 2008, E.D.B.’s mother reported that although E.D.B.’s medication dosages
were increased by their family physician, she was not giving him the medication. (R. 206).
Treatment notes indicate that E.D.B.’s mother had “a litany of complaints” about him. (Id.)
During family therapy on May 28, 2008, E.D.B. was not oppositional to his mother “but
rather resign[ed] . . . to the fact that [his mother] [wa]s going to complain about him no
matter what he does.” (R. 205).
On July 27, 2007, E.D.B. was diagnosed with encopresis based on history provided
by his mother. (R. 221-22).
At the administrative hearing, E.D.B.’s mother described her inability to keep him
focused on his homework, (R. 43), his inability to sit still (R. 45), and his inability to interact
socially. (R. 42). According to his mother, E.D.B. has no friends because they call him
names, he is “constantly” getting into fights, and he has accidents “four days out of a sevenday period.” (Id.) Even if E.D.B.’s mother’s testimony was taken as true, these limitations
are insufficient to support a finding that E.D.B. has extreme or marked limitations of
functioning in any of the six domains sufficient to meet, medically equal, or functionally
equal a Listing. Unquestionably, E.D.B. has some degree of limitation interacting and
relating to others and in his ability to care for himself. However, the evidence does not
support a finding that E.D.B. has an “extreme” limitation in these or any other areas of
functioning, or “marked” limitations in two or more areas of functioning.
In short, the court has carefully and independently reviewed the record, and concludes
that the ALJ’s conclusion that E.D.B. is not disabled is supported by substantial evidence.
Thus, the decision of the Commissioner should be affirmed.
A separate order will issue.
Done this 27th day of July, 2011.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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