Brooks v. Colvin(CONSENT)
MEMORANDUM OPINION: 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 matter is REMANDED back to the Commissioner. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr on 10/26/2016. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
o/b/o D.M.W.B., a minor,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO. 3:15-cv-00851WC
Plaintiff Jessica Brooks, on behalf of her minor son D.M.W.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.M.W.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
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
proceedings and entry of a final judgment by the undersigned United States Magistrate
Judge. Pl.’s Consent to Jurisdiction (Doc. 8); Def.’s Consent to Jurisdiction (Doc. 7).
Based on the court’s review of the record and the briefs of the parties, the court
AFFIRMS the decision of the Commissioner.
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 age eighteen (“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
1. If the claimant is engaged in substantial gainful activity, she is not
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, she is not disabled.
Social Security matters were transferred to the Commissioner of Social Security.
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, and Appendix 1. If the impairment satisfies this
requirement, the claimant is presumed disabled.
See 20 C.F.R. § 416.924(a)-(d) (1997); see also Shinn ex rel. Shinn v. Comm’r of Soc.
Sec., 391 F.3d 1276, 1278 (11th Cir. 2004).
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 to, or functionally equivalent in severity to, a listed
impairment, the child is not disabled.
See 20 C.F.R. § 416.924(d)(2) (1997).
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)).
“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)); see
also McMillian, o/b/o A.T.F. v. Comm’r of Soc. Sec., 521 F. App’x 801, 802 (11th Cir.
2013) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)) (“‘Even if the
evidence preponderates against the [Commissioner’s] factual findings, we must affirm if
the decision reached is supported by substantial evidence.’”).
D.M.W.B. was six years old at the time of the administrative hearing before the
ALJ. See Tr. 13, 43 (noting D.M.W.B.’s birthday to be November 2, 2007, and the date
of the administrative hearing before the ALJ to be March 14, 2014). Following the
hearing, the ALJ found at Step One that D.M.W.B. had not engaged in substantial gainful
activity at any time since March 29, 2013. Id. The ALJ found at Step Two that
D.M.W.B. has the severe impairments of “attention deficit hyperactivity disorder,
oppositional defiant disorder[,] and asthma.” Id. Next, the ALJ concluded under Step
Three that these impairments do not meet or medically equal in severity the criteria for
any impairment in the Listing of Impairments.
The ALJ further found that
D.M.W.B.’s impairments do not functionally equal in severity any such listings because
D.M.W.B. has either less than marked limitations or no limitations in each of the six
domains of function. Id. at 13-24. Consequently, the ALJ found that D.M.B.W. was not
disabled. Tr. 24.
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s
decision: (1) whether “[t]he Commissioner’s decision should be reversed, because the
teacher questionnaire completed by Ms. Hamlet–evidence the ALJ fails to address in any
meaningful way–contains abundant evidence that cuts against the ALJ’s conclusion”; and
(2) whether “the ALJ erred by failing to provide meaningful rationale to support his
meets, medically equals and functionality equals determination.” Pl.’s Br. (Doc. 12) at 3.
Whether the ALJ’s consideration and discussion of Ms. Hamlet’s
questionnaire was proper.
Plaintiff first argues that the Commissioner’s decision should be reversed because
the ALJ failed to meaningfully consider the evidence submitted by D.M.W.B.’s teacher,
Ms. Amy Hamlet (“Ms. Hamlet”), through a teacher questionnaire she completed in
March 2014. Id. at 3-8. Specifically, Plaintiff argues that the ALJ erred by ignoring the
evidence in the report that is patently inconsistent with the ALJ’s ultimate functionality
findings. Id. at 8. To support this assertion, Plaintiff points the court to Wilson ex rel.
T.M.W. v. Colvin for the premise that an ALJ “cannot ‘pick and choose’ evidence from [a
teacher] questionnaire that supports [his] conclusion and ignore evidence that does not.”
Id. at 8 (citing Wilson ex rel. T.M.W. v. Colvin, No. CA 2:12-307-C, 2013 WL 788075, at
*8 (S.D. Ala. March 1, 2013)). Plaintiff also references Green v. Commissioner of Social
Security, which provides that an ALJ’s decision must sufficiently enable a court to
conclude that the ALJ fully considered a claimant’s condition, and did not ignore
evidence in a teacher’s evaluation that was patently inconsistent with the ALJ’s ultimate
findings. Id. (citing Green v. Comm. of Soc. Sec., No. 6:09-cv-1936-Orl-28DAB, 2010
WL 4941425, at *4 (M.D. Fla. Oct. 27, 2010)).
The Commissioner argues that, even though teacher evaluations are considered
“other” sources and thus not entitled to special weight or significance, the ALJ properly
considered the teacher questionnaire from Ms. Hamlet. Comm’r’s Br. (Doc. 13) at 5-8.
The Commissioner notes that the ALJ was not required “to recite every part of Ms.
Hamlet’s opinion[,]” id. at 8, and points to the ALJ’s inclusion of portions of Ms.
Hamlet’s teacher questionnaire that the ALJ explicitly noted in his opinion.2 Id. at 6.
Further, the Commissioner argues that Wilson and Green, cited by Plaintiff, are
distinguishable because, in contrast to the former, the ALJ in this matter “cited portions
of Ms. Hamlet’s opinion that weighed in favor of limitations[,]” id. at 7, and, in contrast
to the latter, the ALJ in this matter “considered [Ms. Hamlet’s] responses under each
functional domain and noted [that D.M.W.B.] had some problems in the domains of
The Commissioner points to the ALJ’s inclusion of Ms. Hamlet’s “description of [D.M.W.B.’s]
difficulties with focus for extended periods, moodiness, acting out when seeking attention, and a need for
special reading intervention for 30 minutes each day” under the appropriate domains as reported on the
teacher questionnaire. Id. at 6.
acquiring and using information, attending and completing tasks, and interacting and
relating with others[,]” id. at 8.
As previously noted, there are six functional equivalence 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 himself; and (6)
health and physical well-being. See, infra, Coleman, 454 F. App’x at 752. 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. Id.
Under the domain of acquiring and using information, Ms. Hamlet concluded that
D.M.W.B. has a serious problem3 in all ten categories, noting that D.M.W.B. “is pulled
for reading intervention daily for 30 min[utes].” Tr. 151-56 (Ex. 15E (Doc. 14-6)).
Similarly, in evaluating D.M.W.B.’s proficiency in attending and completing tasks, Ms.
Hamlet determined that D.M.W.B. has a serious problem in twelve out of thirteen
categories, noting that he “has a hard time focusing for an extended period of time to
finish his work.” Tr. 152. Considering the domain of interacting and relating with
others, Ms. Hamlet advised that D.M.W.B. has a serious problem in all thirteen
categories, and that behavior modification was necessary to curb D.M.W.B.’s
inappropriate actions. Tr. 153. In evaluating D.M.W.B.’s ability to move and manipulate
A serious problem is scored as four out of five on the rating scale for the teacher evaluation.
objects, Ms. Hamlet concluded that he has a very serious problem4 in all seven
categories.5 Tr. 154. She also noted that D.M.W.B. “has to move all of the time.” Id. In
the domain of caring for himself, Ms. Hamlet scored D.M.W.B. as having a serious
problem in one out of ten categories, an obvious problem in four, a slight problem in two,
and no problem in three. Tr. 155. Ms. Hamlet further noted, however, that D.M.W.B.
“has difficulty with controlling his moods.” Id. Finally, in the domain of health and
physical well-being, Ms. Hamlet noted that D.M.W.B. “has asthma, but [it] has not been
a problem.” Tr. 156.
With regards to these domains, the ALJ found that D.M.W.B. had “less than
marked limitation” in the domains of acquiring and using information, attending and
completing tasks, interacting and relating with others, and health and physical well-being.
Tr. 19-24. The ALJ found that D.M.W.B. had “no limitation” in the domains of moving
about and manipulating objects, and in caring for himself. Tr. 22-23. In reaching these
determinations, the ALJ referenced Ms. Hamlet’s teacher evaluation on three occasions:
A very serious problem is scored as five out of five on the rating scale for the teacher evaluation.
As noted in the ALJ’s opinion, “[t]his domain considers how well a child is able to move his body from
one place to another and how a child moves and manipulates objects. . . . Limitations . . . can be
associated with musculoskeletal and neurological problems, other physical impairments, medications or
treatments, or mental impairments.” Tr. 22. While Ms. Hamlet marked that D.M.W.B. has severe
impairments in all of the seven categories, she noted that D.M.W.B. “has to move all the time.” Tr. 154.
It is possible that Ms. Hamlet assumed that this domain related to D.M.W.B.’s hyperactive movements,
instead of his motor skills and his ability to manipulate objects, and marked the limitations accordingly.
However, that determination is not for the undersigned to make.
In acquiring and using information, the ALJ noted that Ms. Hamlet “reports
a need for some special reading intervention for 30 minutes each day. . . .” Id.
at 20. He did not reference Ms. Hamlet’s assessment that D.M.W.B. has a
serious problem in all ten categories of this domain.
In attending and completing tasks, the ALJ noted that Ms. Hamlet
“describes some difficulties with focus for extended periods. . . .” Id. at 21.
He did not reference Ms. Hamlet’s assessment that D.M.W.B. has a serious
problem in twelve out of thirteen categories in this domain.
In interacting and relating with others, the ALJ noted that Ms. Hamlet
reported “some moodiness and acting out inappropriately when [D.M.W.B.] is
seeking attention.” Id. at 22. He did not reference Ms. Hamlet’s assessment
that D.M.W.B. has a serious problem in all thirteen categories of this domain.
Under the domains of moving about and manipulating objects, and caring for oneself, the
ALJ noted that there were “no allegation[s] of limitation[s] in [those] domains.” Id. at
Social Security Ruling 06–03p states:
Since there is a requirement to consider all relevant evidence in an
individual’s case record, the case record should reflect the consideration of
opinions from medical sources who are not “acceptable medical sources”
and from “non-medical sources” who have seen the claimant in their
professional capacity. Although there is a distinction between what an
adjudicator must consider and what the adjudicator must explain in the
disability determination or decision, the adjudicator generally should
explain the weight given to opinions from these “other sources,” or
otherwise ensure that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the
outcome of the case.
SSR 06-03p, 2006 WL 2329939, at *6 (emphasis added). The Eleventh Circuit has held
that an ALJ need not specifically refer to every piece of evidence in the record, Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). However, the ALJ must explain the
weight afforded to “obviously probative exhibits[,]” Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981), or the reasoning in his decision must sufficiently enable a court to
conclude that the ALJ fully considered the claimant’s condition, and did not ignore
evidence—like that in a teacher evaluation—that was patently inconsistent with the
ALJ’s ultimate findings, Green, 2010 WL 4941425, at *4.
Here, the court cannot
conclude that the ALJ has met this standard.
As an initial note, nowhere in his opinion does the ALJ state what weight he is
assigning to Ms. Hamlet’s evaluation.
Thus, according to SSR 06-03p, he must
otherwise ensure that his discussion of the evidence allows a subsequent reviewer to
follow his reasoning for his decision that D.M.W.B. is not disabled.
During the Step Three determination of whether D.M.W.B. has a combination of
impairments that results in either “marked” limitations in two of the functional
equivalence domains or “extreme” limitation in one domain, the ALJ referenced his
review of Ms. Hamlet’s teacher evaluation in three of the six domains. That review,
however, failed to note that Ms. Hamlet reported D.M.W.B. to have “serious” problems
in ten of ten categories related to the domain of acquiring and using information; twelve
of thirteen categories related to the domain of attending and completing tasks; and
thirteen of thirteen categories related to the domain of interacting and relating with
others. The ALJ’s review failed to note that Ms. Hamlet reported D.M.W.B. to have
“very serious” problems in seven of seven categories related to the domain of moving and
manipulating objects. Instead, when discussing each domain, the ALJ noted the evidence
supporting his conclusion that D.M.W.B. was not disabled,6 and followed that brief
discussion with one sentence reciting Ms. Hamlet’s handwritten notes regarding the
domain. See Tr. 20 (“However, a teacher reports a need for some special reading
intervention. . . .”); Tr. 21 (“However, one teacher describes some difficulties with focus.
. . .”; Tr. 22 (“A teacher reports some moodiness and acting out inappropriately. . . .”).
While the ALJ pointed to the notes made by Ms. Hamlet on the questionnaire that cut
slightly against the ALJ’s finding, he failed to address Ms. Hamlet’s concerns that
D.M.W.B. had serious and very serious problems in multiple domains.
appears that the ALJ downplayed Ms. Hamlet’s assessment by including the information
that did not reflect the severity of her concerns. Further, the ALJ provided no reasoning
as to why he was discounting Ms. Hamlet’s evaluation by not discussing her concerns for
D.M.W.B. in the different domains.
Thus, because the ALJ failed to provide a
The ALJ’s opinion provides lengthy discussion during Step Two with regards to evidence in the case
from consulting physicians, D.M.W.B.’s mother, and D.M.W.B.’s grandmother. See Tr. 14-19. In that
discussion, the ALJ notes that he is assigning “great weight” to the findings of the DDS medical experts
who found no more than less than marked limitations. Tr. 18. The ALJ did not refer to Ms. Hamlet’s
meaningful discussion involving his evaluation of the evidence, this court is precluded
from conducting a meaningful review of his decision to determine whether the ALJ
ignored evidence that was patently inconsistent with his ultimate findings. See Tyler v.
Colvin, 2016 WL 4445482, at *8 (N.D. Fla. June 14, 2016) (holding that the ALJ’s
discussion involving teach questionnaires did not allow a meaningful review by the court
when the only portion of the questionnaires the ALJ credited were the statements that the
plaintiff’s symptoms improved with medication).
The ALJ’s failure to sufficiently discuss the reasons why he discounted Ms.
Hamlet’s questionnaire is evident in the ALJ’s evaluation of the domain of moving about
and manipulating objects. In that domain, Ms. Hamlet concluded that D.M.W.B. has a
very serious problem—the most severe rating that could be assigned under the
questionnaire—and noted that he “has to move all of the time.” Tr. 154. However, in
making his determination that D.M.W.B. has no limitation in that area, the ALJ noted
that “there is no allegation of a problem in this domain.” Tr. 22. The undersigned cannot
agree with the ALJ that there is no allegation of a problem in this domain. If the ALJ was
of the opinion that Ms. Hamlet’s assessment was faulty in some way, or if the ALJ relied
upon other evidence suggesting that there was no problem in this area, the ALJ could
have easily discussed the reasons for his conclusion and discounted Ms. Hamlet’s
opinion. He did not, and now the court is left with evidence that there is an allegation of
questionnaire during Step Two.
a problem within the domain of moving about and manipulating objects that the ALJ has
Accordingly, the matter is due to be remanded for the ALJ to properly consider
Ms. Hamlet’s teacher evaluation, and all other evidence in the record, pertaining to
D.M.W.B.’s limitations in the six different domains.
Whether the ALJ provided meaningful rationale to support his meets,
medically equals, and functionality equals determination.
Because the undersigned concludes that this matter is due to be reversed and
remanded for further proceedings, the undersigned will not address Plaintiff’s second
argument at this time.
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
matter is REMANDED back to the Commissioner. A separate judgment will issue.
Done this 26th day of October, 2016.
/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?