Singleton v. Astrue(CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 2/29/2012. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
o/b/o her minor child, M.T.S.,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 2:11cv512-CSC
Plaintiff Tarkesha Singleton filed this lawsuit on behalf of her daughter, M.T.S.,1 to
review a final judgment by defendant Michael J. Astrue, Commissioner of Social Security,
in which he determined that M.T.S. 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
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, M.T.S..
(Commissioner).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The parties
have consented to the undersigned United States 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 M.T.S.
supplemental security income benefits should be affirmed.
II. 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, [s]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, [s]he is not disabled.
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.
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 presented by the plaintiff, the sole issue before the court is whether “[t]he ALJ
erred in finding that the claimant did not “meet” the criteria for presumptive disability under
Listing 112.05D.” (Pl’s Br., doc. # 14, at 2). It is to this issue that the court now turns.
A. Introduction. M.T.S. was born on October 16, 2001. She was eight years old
on the date of the hearing. (R. 43). Her mother alleges an onset date of November 11, 2008,
and asserts that M.T.S. is disabled due to developmental delays, asthma, headaches, and
gastroesophageal reflux disease (GERD). (R. 140). Following the hearing, the ALJ found
that M.T.S. was not engaged in substantial gainful activity, and had severe impairments of
“asthma, developmental delay, speech language delay, gastroesophageal reflux disease,
headaches, and borderline intellectual functioning.” (R. 21). The ALJ found that M.T.S.’s
poor vision was not a severe impairment because M.T.S was wearing glasses at the
administrative hearing. (Id.) The ALJ further concluded that M.T.S. does not have an
impairment or combination of impairments that meet or medically or functionally equal one
of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1., including Listings 103.03,
Asthma, 112.10, Developmental Disorders, and 112.05, Mental Retardation. (R.21).
The ALJ next considered whether M.T.S.’s impairments were “functionally equal”
a level of severity in a Listing. (R. 22-34). In order to functionally equal a listing, M.T.S.’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).
The ALJ concluded that M.T.S. has “a marked limitation” in the domain of acquiring
and using information. (R. 29). Relying on assessments by teachers and standardized test
scores, the ALJ determined that M.T.S. “has significant learning difficulties.”
However, because “the most recent IEP review shows the Claimant is closing the gap
between her intellectual capabilities and the grade level expectations,” the ALJ found that
M.T.S.’s functional limitations were marked and not extreme. (Id.)
The ALJ concluded that M.T.S. has “less than marked limitation” in the domain of
attending and completing tasks, and health and well-being. (R. 29-30, 33). He further
concluded that M.T.S. has no limitation in the domains of interacting and relating to others,
moving about and manipulating objects and self-care. (R. 30-32). The ALJ concluded that
M.T.S. does not have an extreme limitation in one area of functioning, nor does she have a
marked limitation in two areas of functioning. (R. 34). Thus, the ALJ determined that
M.T.S. is not disabled. (Id.).
B. Presumptive Disability under Listing 112.05(D). M.T.S. argues that the ALJ
erred as a matter of law when he failed to find that she was presumptively disabled under
Listing 112.05(D). According to M.T.S., the ALJ concluded that the only reason she did not
meet the Listing was because she did not have “another physical or mental impairment that
imposes significant functional limitations” on her. See Listing 112.05, Mental Retardation,
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 112.05(D).
M.T.S. reads the ALJ’s
determination too narrowly. The ALJ considered all the evidence and concluded that “[t]he
evidence provided indicates that the Claimant does not meet the criteria required” for
Listings 103.03, Asthma, Listing 112.10, Developmental Delays, and Listing 112.05, Mental
Retardation. (R. 21). When considering whether M.T.S. met Listing 112.05 for Mental
Retardation, the ALJ also found that M.T.S. “does not have any impairment in social
functioning caring for herself and other personal functioning, or marked limitations in
maintaining concentration persistence and pace.” (R. 22).
In order to meet the Listing, it is not enough to simply have a physical or mental
impairment. The plaintiff must establish that the physical or mental impairment “impos[es]
an additional and significant limitation of functioning.” See Listing 112.05(D), Mental
Retardation, 20 C.F.R. Pt. 404, Subpt. P, App. 1. Listing 112.05 relates to mental retardation.
112.05 Mental Retardation: Characterized by significantly subaverage
general intellectual functioning with deficits in adaptive behavior.
The required level of severity for this disorder is met when the
requirements in A, B, C, D, E, or F are satisfied. . . .
D. A valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing additional and significant
limitation of function; . . .
20 C.F.R. Pt. 404, Subpt. P App. 1, Listing 112.05(D).
It is undisputed that M.T.S. has a full scale score of 70 on the WISC-IV. (R. 303).
However, an IQ score of 70, without more, does not establish that a claimant meets Listing
112.05(D). “The structure of for mental retardation (112.05) . . . is different from that of the
other mental disorders.” 20 C.F.R. Pt. 220, App. 1, 112.05 MENTAL DISORDERS.
Listing 112.05 (Mental Retardation) contain six sets of criteria. If an
impairment satisfies the diagnostic description in the introductory paragraph
and any one of the six sets of criteria, we will find that the child’s impairment
meets the listing. For listings 112.05(D) and 112.05(F), we will assess the
degree of functional limitation the additional impairment(s) imposes to
determine if it causes more than minimal functional limitations, i.e., is a
“severe” impairment(s), as defined in § 416.924(c). If the additional
impairment(s) does not cause limitations that are “severe” as defined in §
416.924(c), we will not find that the additional impairment(s) imposes an
additional and significant limitation of function.
Id. See also generally, Harris v. Comm’r of Social Sec., 330 Fed. Appx. 813 (11th Cir. 2009)
(No. 08-15457). See also Pettus v. Astrue, 226 Fed. Appx. 946, 948 (11th Cir. 2007);
Humphries v. Barnhart, 183 Fed. Appx. 887, 889 (11th Cir. 2006).
According to the plaintiff, because the ALJ found that she suffers from severe
impairments at step 2 of the sequential analysis, perforce, she has additional, significant
limitations which, coupled with her I.Q. scores, meet the requirements of the listing for
mental retardation. “Implicit in this is the fact that an additional “severe” impairment at step
2 will impose a significant limitation.” (Pl’s Br., doc. # 14, at 6). The plaintiff’s argument
improperly conflates the step two “severe impairment” analysis with the Listing’s
requirement of “additional and significant limitation of function.” A “severe impairment”
for step two purposes does not also mean that the impairment causes “additional and
significant limitation of function.” The plaintiff must demonstrate that M.T.S.’s severe
impairments of asthma and headaches cause additional and significant functional limitations
sufficient to meet Listing 112.05(D). (Pl’s Br., doc. # 14, at 8). This, she has failed to do.
At the administrative hearing, M.T.S. testified that she is able to play outside, ride her
bike and her scooter, and play basketball. (R. 50). M.T.S.’s mother testified that M.T.S. has
not had any asthma attacks because her medications work. (R. 59). Medical records indicate
that M.T.S.’s asthma is controlled by medication, and she rarely uses her Albuterol inhaler.
(R. 414). M.T.S.’s headaches are controlled by over the counter analgesics. (R. 417-19).
She has not been prescribed medication to treat her headaches. M.T.S. was also referred to
an ophthalmologist for her vision (R. 419) and at the hearing, she was wearing glasses. The
court concludes that the plaintiff has failed to demonstrate that M.T.S.’s asthma and
headaches cause additional and significant limitations sufficient to meet the requirements of
Moreover, it is not sufficient to merely demonstrate an IQ score in the appropriate
range and an additional physical or mental impairment.
M.T.S. is also required to
demonstrate that she has deficits in adaptive functioning sufficient to satisfy the diagnostic
description in the introductory paragraph of §112.05. Thus, to meet the Listing, M.T.S. must
demonstrate that she has “significantly subaverage general intellectual functioning with
deficits in adaptive behavior,” as well as the requisite level of severity for section D. Gray
ex rel. Whymss v. Comm’r of Social Sec., 2011 WL 6091196 (11th Cir. Dec. 8, 2011) (No. 1112839); Elliot v. Astrue, 2011 WL 1230542, * 12-13 (M.D. Fla., Mar. 30, 2011) (No. 3:09cv-985-J-JRK).
The plaintiff argues that because her Adaptive Behavior Assessment System - Second
Edition (ABAS-II) score was “within the extremely low range,” she has demonstrated deficits
in adaptive functioning. (Pl’s Br., doc. # 14, at 5). She is entitled to no relief on this basis.
While the regulations expect “ marked” limitations with standardized testing scores at least
two deviations below the mean, the regulations do not mandate a finding of “marked”
limitations based on test results alone. See also 20 C.F.R. § 416.926a(e)(ii)(2). In fact, the
regulations repeatedly reiterate that the Commissioner will consider all the relevant
information” in each case, including test results and descriptions from parents, teachers and
other individuals. 20 C.F.R. § 416.926a. “Deficits in adaptive behavior” relates to the ability
of people to interact and function on a daily basis. The ALJ thoroughly and thoughtfully
considered the extensive record of M.T.S., including her adaptive functioning, in determining
that M.T.S. is not disabled. (R. 28-34). In so doing, the ALJ set forth detailed reasons for
every aspect of his opinion, including the weight given to the testimony of M.T.S., her
mother, and her grandmother. The record supports the ALJ’s determination that M.T.S. does
not meet Listing 112.05(D) for a presumptive finding of disability.
In short, the court has carefully and independently reviewed the record, and concludes
that the ALJ’s conclusion that M.T.S. is not disabled is supported by substantial evidence.
Thus, the decision of the Commissioner should be affirmed.
A separate order will issue.
Done this 29th day of February 2012.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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