Bell v. Astrue (CONSENT)

Filing 26

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 11/20/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MELISSA BELL o/b/o D.B., a minor,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 2:12-cv-509-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Melissa Bell on behalf of her minor son, D.B., applied for supplemental

security income (“SSI”) under Title XVI of the Social Security Act. The application was
denied at the initial administrative level. Plaintiff then requested and received a hearing
before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a
decision in which he found D.B. not disabled since the date the application was filed.
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. The
ALJ’s decision consequently became the final decision of the Commissioner of Social
Security (“Commissioner”).1 See Chester v. Bowen, 792 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

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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
Security matters were transferred to the Commissioner of Social Security.

of a final judgment by the undersigned United States Magistrate Judge. Pl.’s Consent to
Jurisdiction (Doc. 10); Def.’s Consent to Jurisdiction (Doc. 9). Based on the court’s
review of the record and the briefs of the parties, the court REVERSES the decision of
the Commissioner.
II.

STANDARD OF REVIEW
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
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.

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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.
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)).
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“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)).
III.

ADMINISTRATIVE PROCEEDINGS
D.B. was fourteen years old at the time of the hearing. See Tr. 21. Following the

administrative hearing, the ALJ found that D.B. had not engaged in substantial gainful
activity at any time since the application date (Step 1). Id. The ALJ also found that D.B.
had the following severe impairments under Step 2: “history of elevated lead level,
obesity, history of headaches, attention deficit hyperactivity disorder (ADHD), disruptive
behavior disorder, obsessive-compulsive disorder (OCD), and borderline intellectual
functioning (BIF).” Id. Nonetheless, the ALJ concluded that these impairments do not
meet or equal in severity the criteria for any impairment in the Listing of Impairments,
and that the claimant did not have an “extreme” limitation in any areas of functioning or
“marked” limitation in two areas of functioning (Step 3). Tr. 21-30. Consequently, the
ALJ found the claimant was not disabled. Tr. 30.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents three issues for this court’s consideration in review of the ALJ’s

decision: (1) whether “[t]he ALJ committed reversible error by failing to find that D.B.
meets Listing 112.05C and/or 112.05D”; (2) whether “[t]he ALJ committed reversible
error by failing to find a ‘marked’ limitation in the domain of Acquiring and Using
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Information”; and (3) whether “[t]he ALJ committed reversible error by failing to find a
‘marked’ limitation in the domain of Attending and Completing Tasks.” Pl.’s Br. (Doc.
15) at 6-15. Because the court determines the first issue requires remand for further
proceedings, the court declines to address issues two and three at this time.
V.

DISCUSSION
The structure of the listing for mental retardation, 20 C.F.R., pt. 404, subpt. P, app.

1, § 112.05, 2 is different from that of other mental disorders listings. The listing contains
an introductory paragraph which states that an intellectual disability is “[c]haracterized
by significantly subaverage general intellectual functioning with deficits in adaptive
functioning.” 20 C.F.R., pt. 404, subpt. P, app. 1, § 112.05. Further, the introductory
paragraph states that “[t]he required level of severity for this disorder is met when the
requirements in A, B, C, D, E, or F are satisfied.” Id. Thus, if a plaintiff’s impairment
satisfies the diagnostic description in the introductory paragraph (i.e. significantly
subaverage general intellectual functioning and deficits in adaptive functioning), an ALJ
may consider any one of the six paragraphs to determine if the impairment meets the
listing for mental retardation.
The ALJ’s determination here is insufficiently clear to allow the court to conduct
its mandated review for substantial evidence. See, e.g., Gaskin v. Commissioner of Soc.

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The ALJ repeatedly referred to 12.05 as the listing governing mental retardation. However, 12.05
applies only to adults. Adolescent mental retardation is governed by 20 C.F.R., pt. 404, subpt. P, app. 1,
§ 112.05. The ALJ appears to be relying on 112.05, but cites to 12.05.

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Sec., 2013 WL 4081321, *2 (11th Cir. Aug, 14, 2013) (remanding because the court was
“unable to review correctly whether substantial evidence supports the ALJ’s finding”).
On the one hand, the ALJ appears to make a finding that D.B. met the requirements of the
introductory paragraph, when she went on to discuss whether D.B. satisfied the
requirements of paragraphs C and D. On the other hand, after seemingly making a
determination that D.B. met the requirements of paragraph D, the ALJ stated that D.B.
“does not have the required deficits in adaptive functioning.” Tr. 22. The ALJ does not
explain what she means by the “required deficits.” Indeed, on at least four occasions in
the three paragraphs devoted to the listing 112.05 determination, the ALJ references
“required” deficits in adaptive functioning, but fails to actually discuss any specific
findings related to adaptive functioning.
This is troubling because the ALJ appears to have found that, outside of the
“required” deficits in adaptive functioning, D.B. met the listing of paragraph D of 112.05,
stating that “claimant has multiple impairments and received a full scale IQ score of 70.”
Tr. 22.

The ALJ’s decision to move past the introductory paragraph suggests that she

found D.B. met the requirement of deficits in adaptive functioning, something the court
would note appears supported by substantial evidence. But the ALJ’s later determination
regarding adaptive functioning is in conflict with such a suggestion. The record is
unclear due to the ALJ’s failure to discuss the introductory paragraph’s requirement of
deficits in adaptive functioning.
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That there is confusion on this issue is evidenced by the Commissioner’s
arguments in support of the ALJ. The Commissioner attempts to support the ALJ’s
statement that D.B. lacked the “required” deficits in adaptive functioning by introducing
the standards for a diagnosis of mental retardation under the DSM-IV, referring to the
requirement of “significant deficits or impairments in adaptive functioning.” Def.’s Br.
Doc. 18) at 9 (citing to DSM IV at 42). However, there is no such requirement of
“significant deficits” in the introductory paragraph of listing 112.05. Instead, there is
only a requirement of deficits.

That is, because the tests for a diagnosis of mental

retardation under the DSM-IV and the determination of “Intellectual Disability” in listing
112.05 are distinct. The Commissioner’s arguments related to adaptive functioning are
without merit, because the Commissioner attempts to apply a higher standard of
“significant deficits,” rather than the listing requirement of deficits.3

The

Commissioner’s confusion on the matter is understandable, however, due to the ALJ’s
inconsistent and unclear findings.
Accordingly, this court finds that remand is necessary for the ALJ to clarify the
listing 112.05 determination.

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The Commissioner’s confusion on the issue is further evidenced by this statement: “Thus, Dr.
Jordan’s opinion supports the ALJ’s finding that D.B. did not have significant sub-average
general intellectual deficits in adaptive functioning.” Def.’s Br. (Doc. 18) at 9. Again, the
Commissioner incorrectly attempts to apply a “significant standard” to adaptive functioning by
blending the prongs of intellectual deficits and adaptive functioning together.
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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 REVERSED and this
case REMANDED for further proceedings consistent with this opinion.
Done this 20th day of November, 2013.

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

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