Mathis v. Astrue

Filing 17

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED, as further set out in order. Signed by Honorable Judge Terry F. Moorer on 7/29/11. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BEVERLY MATHIS, o/b/o T.M.,
Plaintiff,
v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CASE NO.: 2:10-cv-366-TFM
[wo]

MEMORANDUM OPINION AND ORDER
On June 18, 2007, plaintiff Beverly Mathis (“Plaintiff” or “Mathis”) filed an
application for Supplemental Security Income benefits under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1380-1383c, et seq., on behalf of her daughter, T.M.1 After
the initial application was denied, Mathis timely requested a hearing before an
administrative law judge (“ALJ”) which took place on February 26, 2009. In the decision
issued on July 10, 2009, the ALJ denied Mathis’ claim finding T.M. did not have a
“marked” or “extreme” limitation in any domain of functioning. (Tr. 9-15). A request for
review was submitted to the Appeals Council as well as newly acquired evidence that was
presented for the first time to the Appeals Council. The Appeals Council declined
review, hence the decision of the ALJ became the final decision of the Commissioner of
1

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, T.M.
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Social Security (“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.
1986). The parties consent to the undersigned 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 AFFIRMS the Commissioner’s decision denying T.M. supplemental
security income benefits.
I. NATURE OF THE CASE
Mathis seeks judicial review of the Commissioner’s decision denying T.M.’s
application for disability insurance benefits and supplemental security income. United
States district courts may conduct limited review of such decisions to determine whether
they comply with applicable law and are supported by substantial evidence. 42 U.S.C. §
405 (2006). The Court may affirm, reverse and remand with instructions, or reverse and
render a judgment. Id.
II. BACKGROUND
T.M. was born on May 19, 2003. Tr. 15. In August of 2004, T.M. was seen at the
Dothan Pediatric Clinic for a 15-month well baby examination wherein Amy Marshall,
CRNP (“Marshall”) noted that T.M. appeared to have normal activity and no significant
limitations. TR. 258-59. Marshall saw T.M. again in November of 2004 wherein she

2

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 tot he Commissioner of Social Security.

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noted T.M. was walking fast and combining words to make phrases. Tr. 256. In May of
2005 William Barron, Jr., M.D., examined T.M. in relation to a temperature due to a
“[n]ear drowning in bathtub yesterday afternoon.” Tr. 254. Dr. Barron found no
abnormalities in T.M., but prescribed an antibiotic as a preventative measure as well as
scheduling a three week recheck to ensure no further problems. Tr. 254. On the May 19,
2005, follow up visit Dr. Barron noted no abnormalities. Tr. 252-53.
It was not until T.M.’s three-year well child examination on March 6, 2007 that
Marshall was advised by Plaintiff that T.M. had a short attention span, was verbally and
physically aggressive, and had difficulty with learning, speaking, and following
commands. Tr. 249. Marshall provided referrals to a psychologist and speech therapist
after finding no physical abnormalities in T.M. Tr. 250. Shortly thereafter, Alison
Lancaster at Flowers Hospital conducted a speech-language evaluation and found that
T.M. had a mild receptive language delay, and moderate expressive language delay but
that all errors were age-appropriate. Tr. 232-36. T.M. was further evaluated by Randal
Jordan on April, 2007 where he diagnosed T.M. with ADHD, a Global Assessment of
Functioning (GAF) of 65-70, and a “slight or borderline developmental delay.” Tr. 291.
Dr. Jordan stated that “developmentally I don’t think [T.M.] is behind.” Tr. 287.
On June 5, 2007, Ann Jacobs, Ph.D, performed an intellectual evaluation of T.M.
wherein she found that T.M. had borderline intelligence, with a verbal IQ of 78, a
performance IQ of 77, and a Full Scale IQ of 78. Tr. 238-40. Dr. Jacobs stated that

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T.M.’s IQ scores “may be a low estimate of [her] abilities due to her language
difficulties.” Tr. 239. Based on the IQ testing, Dr. Jacobs recommended T.M. receive
“early intervention services” related to her speech/language delay and that “[a]t [T.M.’s]
age, these services would be provided through the local school system.” Tr. 239. T.M.
was also listed as having poor attention, labile affect, fair memory, poor impulse control,
below average judgment, and was agitated, hyperactive and fidgety. Tr. 309.
Southeast Psychiatric Services began monitoring T.M. which continued through
October 2008 for pervasive developmental delay. Tr. 307-09. In August 2007, T.M. was
seen at the Southeast Neurology Services because of staring episodes. Tr. 298-305. T.M.
was evaluated by Tim P. Faulk, Ph.D., in November and December of 2008, and Dr.
Faulk found that T.M. had no unusual mannerisms, gestures, normal articulated speech,
and somewhat excessive motor activity. Tr. 331-33. Dr. Faulk diagnosed T.M. with
ADHD, traumatic brain injury (by history), learning disorder, and borderline intellectual
functioning. Tr. 341. He also found that she was consistently polite and cooperative with
no decline in attention during the interview. Tr. 333.
T.M. received special education services of speech therapy while attending
traditional classes throughout the 2008-09 school year. Tr. 129-38. The record also
indicates T.M. has ongoing difficulties in following simple commands, does not share
toys, and exhibits aggressive behaviors at school. Tr. 147.
On February 26, 2009, Plaintiff testified that T.M. was fine until her drowning

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accident, but that “she wasn’t right after that.” Tr. 38, 41. Plaintiff testified that the most
remedial actions are beyond T.M.’s ability including tying her shoes, brushing her hair,
bathing, buckling her pants, or wiping after using the bathroom. Tr. 41. Many of the
medical reports leading up to the hearing did not support the Plaintiff’s testimony.
Subsequent to the ALJ hearing, Plaintiff submitted additional evidence to the
Appeals Council. The evidence included incidents at school where T.M. dropped a plate
and refused to pick it up on November 14, 2008 (Tr. 185); T.M. did not follow the
teacher’s instructions and “pitched a fit” on December 10, 2008 (Tr. 187); failed a
spelling test on March 4, 2009 (Tr. 188-91); pushed and hit a child on the bus on March
3, 2009 (Tr. 214); a statement from Dr. Jacobs of Dothan South East Psychology and
Counseling Services noting the severity of ADHD, Expressive Language Disorder and
Borderline Intellectual Functioning (Tr. 365-66); a letter from Carol Barr dated August 4,
2009 regarding the lap seat belt concern (Tr. 369-70); a letter dated July 30, 2009 from
Larry A. Beauchamp stating that T.M.’s behavioral and educational problems are
expected to hold her back (Tr. 374-77); as well as a Mental Impairment Questionnaire,
dated January 22, 2010, by Shakir Meghani, M.D. wherein T.M. is listed as having an
extreme limitation in all domains of functioning. Tr. 378-80.
III. STANDARD OF REVIEW
The Court reviews a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and based upon proper legal standards.

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Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The Court “may not decide the
facts anew, reweigh the evidence, or substitute [its] judgment for that of the
Commissioner,” but rather it “must defer to the Commissioner’s decision if it supported
by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Foote v. Chater,
67 F.3d 1553, 1560 (11th Cir. 1995) (stating the court should not re-weigh the evidence).
The Court must find the Commissioner’s decision conclusive “if it is supported by
substantial evidence and the correct legal standards were applied.” Kelly v. Apfel, 185
F.3d 1211, 1213 (11th Cir. 1999) (citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997)).
Substantial evidence is more than a scintilla – i.e., the evidence must do more than
merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing Richardson v. Perales,
402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842, (1971) and MacGregor v.
Bowen, 785 F.2d 1050, 1053 (11th Cir. 1986)); Foote, 67 F.3d at 1560 (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson, 402 U.S. at 401, 91 S.Ct.
at 1427).
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,

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and even if the court finds that the evidence preponderates against the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The district court
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d
129,131 (11th Cir. 1986)).
The district court will reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Serv., 21 F.3d 1064, 1066 (11th Cir. 1994) (internal
citations omitted). There is no presumption that the Secretary’s conclusions of law are
valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
IV. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.3 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below

3

DIB is authorized by Title II of the Social Security Act, and is funded by Social Security
taxes. See Social Security Administration, Social Security Handbook, § 136.1, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html

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the poverty line.4 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language
for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(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.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation

4

SSI benefits are authorized by Title XVI of the Social Security Act and are funded by
general tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2,
2100, available at http://www.ssa.gov/OP_Home/handbook/handbook.html

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process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010).
(1)

Is the person presently unemployed?

(2)

Is the person’s impairment(s) severe?

(3)

Does the person’s impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?5

(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 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).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet 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
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still

5

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

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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 Guidelines6 (“grids”) or hear testimony from 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. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
V. STATEMENT OF THE ISSUES
Plaintiff raises two points of error attacking the ALJ’s decision. Pl. Br. at 1. The
first issue, as stated by the Plaintiff, is “[w]hether new evidence submitted to the Appeals
Council warrants remand.” Id. The second issue presented is “[w]hether the
Commissioner failed to properly evaluate Ms. Mathis’ claim of Pervasive Development
Disorder.” Id.
The issues and arguments Mathis raises turn upon this Court’s ultimate inquiry of
6

See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in
SSI cases).

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whether the Commissioner’s disability decision is supported by the proper legal standards
and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622, 625 (11th Cir. 1987).
VI. DISCUSSION AND ANALYSIS
A.

Whether the new evidence to the Appeals Council warrants remand.
The presentation of new evidence in any social security administration case, at any

point subsequent to the hearing before the ALJ, necessarily creates unique questions that
must be addressed by the Court. In the Eleventh Circuit this has been a recognized source
of confusion. See Ingram v. Astrue, 496 F.3d 1253 (11th Cir. 2007) (wherein the Court
stated “[i]nartful dicta in a few of our recent decisions has confused this issue, because
we mistakenly stated that evidence first presented to the Appeals Council could be
considered by the court only if the applicant had good cause for not presenting it earlier to
the administrative law judge.”).
The confusion in the courts stems from the language found in 42 U.S.C. § 405(g),
which “permits a district court to remand an application for benefits to the Commissioner,
who was denominated ‘the Secretary’ in the original statute, by two methods, which are
commonly denominated ‘sentence four remands’ and ‘sentence six remands,’ each of
which remedies a separate problem.” Id. at 1261. Sentence four of section 405(g)
provides the Court “power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

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Sentence six provides the Court with power to remand the application to the
Commissioner “and may at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and there is good cause for the failure to incorporate such evidence into
the record in a prior proceeding.” Ingram, 496 F.3d at 1261.
Critical to the determination between which of the two sentences applies to any
case is when the new evidence is submitted for consideration after a determination has
been made by the ALJ. While “[a]n application for disability benefits [] follows an
intricate path of administrative process before it can be reviewed by a federal court” it is
generally recognized that “the claimant is allowed to present new evidence at each stage
of this administrative process.” Id. at 1260-61 (citing 20 C.F.R. § 404.900(b)). If
evidence is presented to the Appeals Council, subsequent to the ALJ’s hearing but prior
to the Council’s final determination, “[t]he Appeals Council must consider new, material,
and chronologically relevant evidence and must review the case if ‘the administrative law
judge’s action, findings, or conclusion is contrary to the weight of the evidence currently
of record.’” 20 C.F.R. § 404.970(b) (emphasis added). When new evidence is presented
to the Appeals Council, it is reversible error if the Council declines review without
considering the new evidence. Ingram, 496 F.3d at 1264-65.
However, the fact that the Appeals Council denies review is not, in and of itself,
evidence that the Council did not consider the evidence presented. To the contrary, the

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presumption is that new evidence presented to the Appeals Council is appropriately
considered by the Council pursuant to the Administrations regulations. See Id., at 1262
(wherein the Appeals Council accepted Plaintiff’s new evidence, but denied review
because the Appeals Council found no error in the opinion of the ALJ and recognized the
Council’s requirements under 20 C.F.R. § 404.900(b)). If, after appropriate consideration
of the new evidence presented, the Council then declines to review the case then it is to
be considered a final decision subject to appellate review by this Court. Id. at 1263.7 The
Court will then consider any petition for remand under sentence four of section 405(g)
without the stringent application of sentence six. Id. at 1262.
“Sentence six of section 405(g) provides the sole means for a district court to
remand to the Commissioner to consider new evidence presented for the first time in
district court.” Id. at 1267 (emphasis added). Sentence six of section 405(g) is to be
treated as “an entirely different kind of remand [from the fourth sentence], when evidence
is presented for the first time to the district court that was ‘not in existence or available to

7

The Eleventh Circuit notes that the Third, Sixth, and Seventh Circuits have relied
on 45 Fed.Reg. 52,096 (Aug. 5, 1980) (codified at 20 C.F.R. § 404.955) to conclude that
the decision of the ALJ is the only final decision of the Commissioner subject to judicial
review, but directly rejects that position and instead joins with the Second, Fourth, Fifth,
Eighth, Ninth, and Tenth Circuits holding that a request for review by the Appeals
Council is part of the “final decision” of the Commissioner. Ingram, at 1263 (citing
Higginbotham v. Barnhart, 405 F.3d 332, 335-36 (5th Cir. 2005); Perez v. Chater, 77
F.3d 41, 44-46 (2d Cir. 1996); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994);
Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); Nelson v. Sullivan, 966 F.2d 363,
366 (8th Cir. 1992); Vilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93, 96
(4th Cir. 1991) (en banc)).
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the claimant at the time of the administrative proceeding that might have changed the
outcome of the proceeding.’” Id. (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626, 110
S.Ct. 2658, 2664, 110 L.Ed.2d 563 (1990)); see also Melkonyan v. Sullivan, 501 U.S. 89,
98, 11 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991) (stating that the sixth sentence of section
405(g) allows for “new evidence ... that was not available to the claimant at the time of
the administrative proceeding.”). The determination of the evidence being new and
material, and that good cause existed for the failure of the claimant to not have submitted
the evidence to the ALJ only applies to cases where the evidence is submitted for the first
time to a federal court. Id. at 1268. The court in Ingram discusses Vega v. Commissioner
of Social Security, wherein the court mistakenly applied the standards of a sentence six
review to a case in which the evidence had been appropriately submitted to the Appeals
Council as part of the administrative process and should have applied the sentence four
standard of substantial evidence. Vega, 265 F.3d 1214 (11th Cir. 2001).
In the present case, the sentence four standard of review applies which means this
Court must determine whether the Appeals Council correctly decided that the
administrative law judge’s action, findings or conclusion is not contrary to the weight of
the evidence currently of record. See Id. at 1219. Therefore, the Court will address the
evidence presented to the Appeals Council after the ALJ’s decision and determine
whether there was substantial evidence for the Council’s decision to decline review as
well as support the ALJ’s original decision. The evidence submitted to the Appeals

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Council can generally be broken down into two categories: 1) school reports dealing with
performance, behavior, and educational problems, and 2) medical reports. (Pl. Br. 5-6)
The notes home refer to a few incidents of disciplinary issues of T.M. while at
school. Tr. 185-87. These incidents range from dropping her plate, pushing another
student in line, and walking through a puddle. Id. One incident on the bus was also
submitted. Id. at 214. While this new evidence sheds some light on the daily behavior of
T.M., that it does not rise to the level of rebutting the other evidence presented to the ALJ
which formed the substantial evidentiary basis of his decision. Tr. 20-24.
The medical reports cause the Court more reason to pause to ensure that the
decision is supported by substantial evidence. Specifically, the Mental Impairment
Questionnaire completed by Dr. Shakir Meghani, and the statement from Dr. Jacobs of
Dothan South East Psychology and Counseling Services are the primary medical reports
submitted to the Appeals Council that were not available to the ALJ at the time of the
hearing. (Tr. 365-66, 376-77) Both medical reports were accomplished on pre-formatted
documents which require the physician to check a box or line, circle a category, or make
some other perfunctory mark on the report with virtually no description written or typed
to explain the nature of the assessment.
“Form reports in which a physician’s obligation is only to check a box or fill in a
blank are weak evidence at best.” Mason v. Shalala, 994 F.2d 1058, 1065 (4th Cir.
1993). “[T]hese so-called ‘reports are unaccompanied by thorough written reports, their

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reliability is suspect....’” Id. (citing Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir.
1986); O’Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1983)). Even if this Court
were to assume that the ALJ had these reports at the time of the original decision the
substantial amount of the weight of the evidence goes to support the decision reached by
the ALJ.
The weight of the medical evaluation can also be affected by the length of the
treatment relationship and frequency of examination, as well as the nature and extent of
the treatment relationship with the attending physician. 20 C.F.R. § 416.927(d)(2). The
Commissioner would have us completely ignore the report of Dr. Meghani based on
Gibson v. Heckler, wherein the court held that they did not have to give more weight to a
medical opinion because the opinion in question was from a doctor that had seen the
plaintiff on only one occasion. Gibson, 779 F.2d 619, 623 (11th Cir. 1986). Though
T.M. did see Dr. Meghani on more than one occasion, these visits were sparse over a
period of years. Dr. Meghani should have been able to provide a greater amount of detail
in the report because of the longstanding relationship. Had there been more detail that
addressed the issues of T.M. directly the reliability of the document would not be suspect.
Mason, 994 F.2d at 1065. This report does not overcome the substantial evidence relied
upon by the ALJ at the time of the original decision.
Dr. Jacobs noted in the new evidence provided to the Appeals Council the severity
for ADHD, Expressive Language Disorder, and Borderline Intellectual Functioning was

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moderate to severe. Tr. 365-66. Not only does this conflict with other evidence
considered by the ALJ, notably Dr. Jordon’s finding that T.M.’s mental status was
“unremarkable for major psychiatric events” and that she only had “slight to borderline
developmental delay” Tr. 290-91. This directly conflicts with Dr. Jacobs’ finding of
T.M.’s IQ score showing borderline intelligence “may be a low estimate of her abilities
due to her language difficulties.” Tr. 239. Furthermore, based on the nature of the
relationship, the form filed with the Appeals Council should have contained much more
detail as to the rationale behind Dr. Jacobs’ conclusions which would have caused it to be
given substantially greater weight, rather than the few check marks with no descriptions it
contained. Mason, 994 F.2d at 1065.
Based on the sentence four section of 405(g), the Court need only determine if the
Commissioner’s decision is supported by substantial evidence while taking into
consideration the evidence that was presented only to the Appeals Council and in doing
so, the Court finds that substantial evidence exists to support the conclusions of both the
ALJ and Appeals Council.
B.

Whether the Commissioner failed to properly evaluate Ms. Mathis’ claim of
Pervasive Development Disorder.
The Court recognizes that “[t]here is no rigid requirement that the ALJ specifically

refer to every piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005); see also Mixon v. Astrue, 2011 WL 867213, *6 (M.D. Ala. 2011)
(quoting Dyer ). “[T]hough the ALJ did not specifically reference the reports, his
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statement that his findings were made after consideration of the entire record are
sufficient to support this Court’s finding that he did, in fact, consider the information.”
Mixon, 2011 WL 867213, *6. When the Court, after reviewing the entirety of the record
of proceedings, is able to determine that the ALJ considered T.M.’s medical condition as
a whole it is then considered to be substantially supported and is not the perview of the
Court to simply overrule the ALJ’s decision. Newsom ex rel. Bell. v. Barnhart, 444
F.Supp.2d 1195, 1197-98 (M.D. Ala. 2006) (quoting Dyer, 395 F.3d at 1211). “An ALJ’s
failure to cite specific evidence does not indicate that such evidence was not considered.”
McCray v. Massanari, 175 F.Supp.2d 1329, 1336 (M.D. Ala. 2001) (quoting Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).
The Court takes judicial notice that pervasive developmental delay disorder (PDD)
refers to a group of conditions that involve delays in the development of many basic
skills, most notably the ability to socialize with others, to communicate, and to use
imagination.8 The ALJ notes that T.M. “experienced ADHD, cognitive delay, pervasive
developmental delay disorder, and traumatic brain injury” as part of his review of the

8

See Pervasive Development Disorders (PDDs),
http://www.webmd.com/brain/autism/development-disorder, (last visited June 28, 2011);
Autism and other pervasive developmental disorders,
http://kidshealth.org/parent/medical/learning/pervasive_ develop_disorders.html (last
visited June 29, 2011); and NINDS Pervasive Developmental Disorders Information
Page, http://www.ninds.nih.gov/disorders/pdd/pdd.htm (last visited June 29, 2011,) (All
of which define PDD as a less than normal development in aspects of communication and
socialization).
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evidence considered in his opinion. Tr. 17. However, throughout the opinion, the ALJ
refers to a number of socialization and communication difficulties experienced by T.M.
that are specifically symptomatic of PDD. For example, the ALJ goes into detail
regarding the Natural Environment Survey completed by Amanda McCurley, speech
therapist. Tr. 19. Also, the ALJ addresses Dr. Faulk’s own report, as well as the report of
the teacher, Ms. Hudson, who both discuss the verbal difficulties of T.M., as well as
having very little trouble with T.M. socially. Tr. 22.
Plaintiff cites to the unpublished case of Tejera ex rel. G.J. v. Astrue, Civ. Act. No.
8:07-cv-183-T-TBM, 2008 WL 786324 (M.D. Fla. Mar. 21, 2008) wherein the court
found that there was not enough in the record to allow the court to conclude that the ALJ
fully considered the entire record. That is not the case here. Much of what appears in the
ALJ’s opinion directly relates to socialization and communication issues raised by the
Plaintiff which directly pertains to PDD such that the Court concludes that the ALJ did in
fact properly consider the PDD throughout his opinion and also considered “all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements of 20 C.F.R.
416.929, SSRs 96-4p and 96-7p.” Tr. 17.
V. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion,
the Court concludes that the ALJ’s non-disability determination is supported by
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substantial evidence and proper application of the law. It is, therefore, ORDERED that
the decision of the Commissioner is AFFIRMED.
A separate judgment will be entered.
Done this the 29th day of July, 2010.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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