Jackson v. Saul
MEMORANDUM OPINION AND ORDER: it is ORDERED that: 1. The decision of the Commissioner is AFFIRMED; 2. A final judgment will be entered separately. Signed by Honorable Judge Kelly F. Pate on 3/31/2021. (bes, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NATISHA JACKSON O/B/O J.J.,
Commissioner of Social Security,
CASE NO. 3:19-CV-936-KFP
MEMORANDUM OPINION AND ORDER
On April 3, 2017, Plaintiff Natisha Jackson, on behalf of her minor son J.J.,
protectively filed an application for child’s Supplemental Security Income, alleging
disability beginning on that date. T. 135-40, 143. On January 11, 2019, after appropriate
proceedings, the Administrative Law Judge issued an unfavorable decision finding J.J. was
not disabled. T. 14-33. Plaintiff seeks judicial review of that decision (see Doc. 1), and
judicial review now proceeds under 42 U.S.C. §§ 405(g) and 1383(c)(3). Upon careful
consideration of the parties’ briefs (Docs. 10, 13) and the transcript (Doc. 14), the
undersigned AFFIRMS the Commissioner’s decision for the reasons set forth below.
STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). “The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. 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 (1971)); Foote, 67 F.3d at 1560 (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the Court will
affirm, even if the Court would have reached a contrary result as finder of fact and even if
the evidence preponderates against the Commissioner’s findings. Ellison v. Barnhart, 355
F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). The Court
must view the evidence as a whole, taking into account evidence that is 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 Court “may not decide facts anew, reweigh the evidence,
or substitute [its] judgment for that of the [Commissioner]”; instead, it “must defer to the
Commissioner’s decision if it is supported by substantial evidence.” Miles v. Chater, 84
F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).
The Court will also reverse the Commissioner’s decision on plenary review if the
decision applies incorrect law or if the decision fails to provide the Court with sufficient
reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep’t of
Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the
Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
STATUTORY AND REGULATORY FRAMEWORK
A claimant (or his parent or guardian) bears the burden of providing evidence that
he is disabled within the meaning of the Social Security Act. 42 U.S.C. § 423(d)(5)(A); 20
C.F.R. § 416.912(a), (c); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). For a
child under the age of 18 to be considered disabled and eligible for SSI under the Act, the
child must have 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). The phrase “marked and severe functional
limitations” refers to “a level of severity that meets, medically equals, or functionally
equals” the Listing of Impairments found at 20 C.F.R. § 404, subpart P, appendix 1. 20
C.F.R. § 416.902(h), (o).
In evaluating a claim for child’s SSI benefits, the Commissioner follows a threestep evaluation process. At step one, the Commissioner determines whether the claimant
is performing substantial gainful activity. See 20 C.F.R. § 416.972. If the individual is not,
the analysis proceeds to the second step. See 20 C.F.R. § 416.924(b).
At the second step, the Commissioner determines whether the claimant has a
medically determinable impairment or a combination of impairments that is severe. See 20
C.F.R. § 416.924(a). For a child under the age of 18, a medically determinable impairment
or combination of impairments is not severe if it is a slight abnormality or a combination
of slight abnormalities that causes no more than minimal functional limitations. See 20
C.F.R. § 416.924(c). If the claimant does not have a severe medically determinable severe
impairment or combination of impairments, he is not disabled. If the claimant has a severe
impairment or combination of impairments, the analysis proceeds to the third step. See 20
C.F.R. § 416.924(a).
At step three, the Commissioner determines whether the claimant has an impairment
or combination of impairments that meets, medically equals, or functionally equals the
severity of a Listing. In making this determination, the Commissioner must consider the
combined effect of all medically determinable impairments, including those that are not
severe. See 20 C.F.R. §§ 416.923, 416.924a(b)(4), 416.926a(a), (c). If the claimant has an
impairment or combination of impairments that meets, medically equals, or functionally
equals the severity of a Listing, and it has lasted or is expected to last for a continuous
period of at least 12 months, he is presumed to be disabled. If not, the claimant is not
disabled. See 20 C.F.R. § 416.924(d).
A claimant’s impairment meets or medically equals a Listing only where it “satisfies
all of the criteria of the Listing, including any relevant criteria in the introduction
[section].” Id. To satisfy all the criteria of a Listing, a claimant must (i) have a diagnosis
included in the Listings and (ii) provide medical reports documenting that the conditions
meet the specific criteria of the Listings and the duration requirement. Wilson v. Barnhart,
284 F.3d 1219, 1224 (11th Cir. 2002) (citations omitted); see also 20 C.F.R. §§ 416.925,
416.926. “For a claimant to show that his impairment matches a Listing, it must meet all
of the specified medical criteria. An impairment that manifests only some of those criteria,
no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
If a child’s impairment or combination of impairments does not meet or medically
equal a Listing, the ALJ will evaluate whether a child’s impairment functionally equals a
Listing by considering the following six broad functional areas, called domains: (i)
Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and
relating with others; (iv) Moving about and manipulating objects; (v) Caring for yourself;
and (vi) Health and physical well-being. See 20 C.F.R. § 416.926a(b)(1). If a child has an
extreme limitation in one domain or marked limitations in two domains, the child’s
impairment is functionally equivalent to a listed impairment. See 20 C.F.R. § 416.926a(d).
A. Factual Background
J.J. was five years old on his alleged onset date and seven years old at the time of
the ALJ’s decision. T. 20. He attended kindergarten, first grade, and second grade during
the relevant time period. T. 20. Plaintiff alleges J.J. was disabled due to ADHD. T. 188.
B. Administrative Proceedings
On April 3, 2017, Plaintiff protectively filed an application for SSI on behalf of J.J.,
alleging disability beginning on that date. T. 135-40, 143. The agency denied Plaintiff’s
application at the initial level (T. 74-78), and she requested a hearing before an ALJ (T.
82-84). Following a hearing (T. 38-61), the ALJ issued an unfavorable decision on January
11, 2019, finding J.J. was not disabled. T. 14-33. On October 30, 2019, the Appeals Council
denied Plaintiff’s request for review. T. 1-3. Thus, Plaintiff sought judicial review. Doc. 1.
C. The ALJ’s Decision
In her January 11, 2019 decision, the ALJ first found that J.J. had not engaged in
substantial gainful activity since his alleged onset date of April 3, 2017. T. 20. The ALJ
then found that J.J. had the following severe impairments: ADHD, Intermittent Explosive
Disorder/Oppositional Defiant Disorder (“ODD”), and Generalized Anxiety Disorder. Id.
Next, the ALJ found that J.J. did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the Listings. Id. In making
this finding, the ALJ noted that J.J. had not demonstrated marked or extreme limitation in
his ability to understand, remember, or apply information; concentrate, persist, or maintain
pace; or adapt or manage himself. Id. Specifically, the ALJ found no impairment in J.J.’s
ability to understand, remember, or apply information; no impairment in his ability to adapt
or manage himself; and less than marked limitation in his ability to concentrate, persist,
and maintain pace. Id. The ALJ determined that J.J. had a marked limitation in his ability
to interact with others but concluded that alone was insufficient for a finding of disability.
Next, after discussion of the evidence in the record, the ALJ found that J.J. also did
not have an impairment or combination of impairments that functionally equaled the
severity of the Listings. T. 20-33. Accordingly, the ALJ found that J.J. had not been under
a disability from his alleged onset date of April 3, 2017 through the date of the ALJ’s
decision on January 11, 2019. T. 33.
ISSUES BEFORE THE COURT
Plaintiff presents two issues for the Court to consider in its review of the
1. Did the ALJ err by finding that J.J. did not have an impairment or combination
of impairments that met or medically equaled Listing 112.08?
2. Did the ALJ err by finding that J.J. did not have an impairment or combination
of impairments that functionally equaled the severity of the Listings?
A. The ALJ did not err in finding that J.J. did not have an impairment or
combination of impairments that met or medically equaled Listing
To meet or medically equal Listing 112.08, which deals with personality and
impulse-control disorders in children, a claimant must demonstrate:
A. Medical documentation of a pervasive pattern of one or more of the
1. Distrust and suspiciousness of others;
2. Detachment from social relationships;
3. Disregard for and violation of the rights of others;
4. Instability of interpersonal relationships;
5. Excessive emotionality and attention seeking;
6. Feelings of inadequacy;
7. Excessive need to be taken care of;
8. Preoccupation with perfectionism and orderliness; or
9. Recurrent, impulsive, aggressive behavioral outbursts.
B. Extreme limitation of one, or marked limitation of two, of the following
areas of mental functioning (see 112.00F):
1. Understand, remember, or apply information (see 112.00E1).
2. Interact with others (see 112.00E2).
3. Concentrate, persist, or maintain pace (see 112.00E3).
4. Adapt or manage oneself (see 112.00E4).
An extreme limitation is a limitation that “interferes very seriously with [the] ability to
independently initiate, sustain, or complete activities” and is given only to “the worst
limitations.” 20 C.F.R. § 416.926a(e)(3)(i). A marked limitation is a limitation that
“interferes seriously with [the] ability to independently initiate, sustain, or complete
activities” and is “more than moderate.” 20 C.F.R. § 416.926a(e)(2)(i).
The parties agree that Plaintiff has satisfied the “A.” provision of the Listing. Doc.
10 at 7; Doc. 13 at 10, n.2. However, the ALJ determined that Plaintiff did not demonstrate
an extreme limitation of one, or marked limitation of two, of the areas of mental functioning
in the “B.” provision of the Listing. Accordingly, the ALJ determined that J.J. did not have
an impairment or combination of impairments that met or medically equaled the Listing.
Plaintiff argues that finding was erroneous. Specifically, Plaintiff argues that J.J. has an
extreme limitation in interacting with others or, at the very least, a marked limitation in
interacting with others; concentrating, persisting, or maintaining pace; and/or adapting or
managing himself. Doc. 10 at 7, 9.
In support of her claims, Plaintiff relies on a disability Teacher Questionnaire J.J.’s
kindergarten teacher completed on May 16, 2017. T. 205-213. In that questionnaire, J.J.’s
teacher opined, in part, that J.J. had “obvious” to “very serious” problems in several areas,
which Plaintiff argues demonstrates extreme or marked limitations in the above areas of
mental functioning. 1 However, while the ALJ found the teacher’s opinion to be
“persuasive,” she determined that it was “not entirely consistent with the overall record”
because the record showed J.J.’s behavioral problems were merely sporadic; his behavior
improved significantly with behavior interventions and medication; and his periods of
increased behavior problems generally corresponded to periods where J.J. did not take his
medication appropriately. T. 26.
Plaintiff takes issue with the ALJ’s treatment of the Teacher Questionnaire.
Specifically, Plaintiff argues that, while J.J.’s “extensive treatment, including multiple
medications and behavioral therapy, resulted in some improvement . . . there is no evidence
that J.J. improved to a degree that conflicts with the opinions from [his] teacher.” Doc. 10
For instance, J.J.’s teacher opined in part that he had a serious problem waiting to take turns and changing
from one activity to another without becoming disruptive; a very serious problem working without
distracting himself or others; a serious problem asking permission; and a very serious problem expressing
anger appropriately, following rules, and respecting/obeying adults in authority. T. 207-208. However,
J.J.’s teacher also opined that J.J.’s instructional levels in reading, math, and writing were “average to high.”
T. 205. She observed “NO problems” in J.J.’s ability to acquire and use information, including
comprehending oral and written instructions, comprehending math problems, understanding and
participating in class discussions, expressing ideas, learning new material, and applying problem-solving
skills. T. 206. She found that he had no problems paying attention when spoken to, sustaining attention
during play/sports activities, and focusing long enough to finish assigned activities. T. 207. She noted,
“[J.J.] is capable of completing [tasks] with ease and completely independently. However, he doesn’t like
to do tasks that are work in nature.” Id. She found that he had no problems using appropriate language to
communicate, introducing and maintaining relevant and appropriate topics of conversation, and taking turns
in conversation. T. 208. She noted that J.J.’s anger problems “worsened when he doesn’t get his ADHD
medication” but his behavior improved when he took his medication. T. 208, 212. She stated, “[J.J.] was
on an ADHD medication for about a week. During that time, he didn’t have any angry tantrums or outbursts.
He completed tasks with ease and seemed to be generally happier. Since that time, Mom decided to have
his dose changed [and J.J.] is not responding well to this change.” T. 212. As will be discussed below, the
ALJ considered all of this evidence in her January 11, 2019 decision.
at 8. Accordingly, Plaintiff argues the ALJ erred by “fail[ing] to cite to findings in the
record supporting her conclusion that the opinions from J.J.’s teacher are not consistent
with the record.” Id. at 9. In response, the Commissioner argues that the ALJ did cite to
evidence in the record supporting her conclusion and that her conclusion is supported by
substantial evidence. Doc. 13 at 10-12. Upon independent consideration of the ALJ’s
decision and the record, the Court agrees with the Commissioner and finds that (i) the ALJ
properly considered J.J.’s teacher’s May 2017 opinion and (ii) substantial evidence
supports the ALJ’s decision to deviate from that opinion.
i. The ALJ properly considered the May 16, 2017 Teacher
Questionnaire in her decision.
As an initial matter, the ALJ discussed J.J.’s teacher’s May 2017 opinion numerous
times throughout her decision. First, the ALJ found that the opinion conflicted with
Plaintiff’s report of her child’s abilities and behavior. T. 23. For instance, the ALJ found
Plaintiff’s report that J.J. had problems with reading, spelling, writing, math, explaining
himself, doing physical activities, and managing himself independently to be inconsistent
with the teacher’s opinion. Id. The ALJ further noted that:
The teacher did report obvious to very serious problems in interacting and
relating with others, caring for himself, and attending and completing tasks,
but she also noted that the child was quite capable of completing tasks “with
ease and completely independently.” However, he did not like to do “work”
like tasks and would become angry and throw tantrums. She said he was
angry almost all the time. She also noted, however, that the child’s anger was
worsened when he did not get his ADHD medication. She reported the child
had been on an ADHD medication for only about a week, during which time
he had no angry tantrums or outbursts. He completed tasks with ease and
seemed generally happier. However, since that time, “Mom decided to have
his dose changed” and the child did not respond well to the change.
T. 23-24. Finally, the ALJ stated that although she found the teacher’s opinion
“persuasive,” it was “not entirely consistent with the overall record.” T. 26. The ALJ stated:
Although I agree the child has some difficulty in interacting with others and
attending and completing tasks, the record does not show significant
limitations in the child’s ability to care for himself. Additionally, while the
teacher documents serious problems in attending and completing tasks and
interacting with others, with appropriate treatment these problems are better
controlled and only sporadic.
The record shows the child has some behavior problems that most
significantly impact his ability to interact and relate with others and his
ability to attend and complete tasks. However, the child is still able to do well
in school and makes good grades. Additionally, the behavior problems are
mostly sporadic and have improved significantly with behavior interventions
and medication. Periods of increased behavior problems generally
correspond to periods where the child did not take medicine appropriately.
Id. Thus, it is clear to the Court that the ALJ properly considered the teacher’s entire
opinion, including evidence that both supports and challenges the ALJ’s findings. See
Kilpatrick ex rel. RLK v. Colvin, No. 2:11cv652, 2013 WL 3994674, at *4 (M.D. Ala. Aug.
2, 2013) (finding no error in ALJ’s consideration of teacher questionnaire where ALJ cited
to the questionnaire twice and referred to the teacher’s responses in reaching his findings);
Courtney D. on behalf of M.B. v. Comm’r of Soc. Sec. Admin., No. 1:18cv3347, 2019 WL
5406552, at *2 (N.D. Ga. Sept. 10, 2019) (“The ALJ cited the teacher questionnaires
several times throughout her opinion and specifically explained why—based on when
Claimant started taking medication and his subsequent improvement—she accorded the
questionnaires only moderate weight. As such, the ALJ sufficiently explained the weight
she gave to the teacher questionnaires and her reasoning.”).
ii. Substantial evidence supports the ALJ’s finding that J.J. did not have
an impairment or combination of impairments that met or medically
equaled Listing 112.08.
Additionally, there is substantial evidence in the record, specifically addressed in
the ALJ’s decision, to support the ALJ’s finding that J.J. had only marked limitation in his
ability to interact with others; less than marked limitation in his ability to concentrate,
persist, and maintain pace; and no limitation in his abilities to understand, remember, or
apply information and adapt or manage himself. See T. 21-26 (the ALJ’s discussion of the
evidence in the record).
For instance, in June 2017, J.J. was promoted to the first grade after performing
satisfactorily in all subjects. T. 23, 145. His teachers consistently observed the following
behaviors: listening attentively and following directions; demonstrating fine motor skills;
completing projects in a timely manner; working independently with little assistance;
accepting responsibility for his own materials; and communicating with adults and peers.
T. 23, 146. He achieved expectations for all physical skills. T. 23, 148. He demonstrated
“exemplary” behavior in the areas of willing participation; consideration of self, others,
and equipment; ability to listen and follow directions; and staying on task. T. 23, 149. J.J.’s
teacher reported that he was “very smart”; that she saw progress in his attitude and
behavior; that he had made a friend who was a good role model; that she could count on
J.J. to help her around the classroom; and that he seemed to enjoy the sense of
responsibility. T. 23, 362.
In August 2017, Plaintiff reported to Dr. Patel, J.J.’s treating physician, that J.J. was
doing “okay” on his current medication but the effect wore off by 1:00 p.m. T. 24, 475.
Thus, Dr. Patel prescribed J.J. Adzenys so that it would work the whole day. Id. Also, in
August 2017, Dr. Robert Estock, a psychiatrist and state agency medical consultant,
reviewed J.J.’s record and opined that J.J. had marked limitation in interacting and relating
with others; less than marked limitation in attending and completing tasks; and no
limitations in the remaining functional domains. T. 27, 67-68.
Notably, gaps in pharmacy records indicate that J.J.’s medication was not picked up
every month, including in September and October 2017. T. 24, 370. Medication was
dispensed in November 2017. Id. That month, Plaintiff told Dr. Patel that J.J. was “doing
much better,” with only “some” bad days. T. 477. He had reportedly been doing very well
until three weeks prior, when he regressed a little bit and acted out at school and home. Id.
However, he had continued making good grades in school. Id. Dr. Patel noted that J.J. was
cooperative and that he sustained attention and concentration throughout their session. Id.
Dr. Patel assigned J.J. a Global Assessment of Functioning rating of 70, indicating only
mild symptoms. T. 478.
Medication was again not picked up in December 2017, at which time J.J. had a
behavioral issue at school. T. 24, 314-316. The medication was dispensed again in January
2018 (T. 24, 370), at which time J.J. had a follow-up appointment with Dr. Patel. T. 24,
479-483. During their meeting, Dr. Patel noted that J.J.’s behavior was cooperative and
pleasant; he was conversational and made good eye contact; his speech was fluent,
articulate, and regular in rate, rhythm, and volume; his memory was grossly intact; he had
good insight and judgment; and he was oriented with organized, logical, linear, and goaloriented thought processes. T. 24, 482.
In February 2018, J.J. attempted to play with his iPad during an appointment with
Dr. Patel, and he made faces when Dr. Patel made him turn it off. T. 24, 484. Dr. Patel told
Plaintiff that she needed to be strict with J.J. and should not have allowed him to bring his
iPad to the appointment. Id. Dr. Patel also noted that, although J.J. reportedly experienced
no side effects from his medications, Plaintiff was undecided and kept changing her mind
about J.J.’s medications and the doses she wanted for him. Id. During his evaluation, J.J.
was cooperative; his speech was clear, coherent, and goal-oriented; his affect was
constricted but appropriate; and he was oriented and sustained concentration and attention
throughout the session. Id. Dr. Patel made no changes to J.J.’s medications. Id.
In February and March 2018, J.J. was generally able to listen, follow directions, and
maintain a positive attitude. T. 25, 266-290. He demonstrated “good manners,” was a “very
hard worker,” and was a “good friend to others.” Id. Although J.J. had behavior problems
intermittently, he generally had good days, and he managed to calm down, control his
anger, and avoid tantrums on numerous occasions. Id. J.J.’s first grade teacher reported that
his behavioral problems were “sporadic” and inconsistent and that interventions had proven
effective. T. 25, 309.
In April 2018, Dr. Patel noted that J.J.’s anxiety, attention, hyperactivity, and
behavior were all well controlled with medication and that J.J. had no side effects from his
medication. T. 25, 485-489. J.J. had a euthymic mood; he had organized, logical, linear,
and goal-oriented thoughts; he was oriented; his memory was grossly intact; he had good
insight and judgment; he was cooperative, pleasant and conversational; he made good eye
contact; and his dress and hygiene were appropriate. Id.
J.J.’s 2017-2018 first grade report card, issued in or around June 2018, demonstrated
good to excellent grades in all subjects. T. 25, 294. His teacher indicated that he had an
“excellent 4th quarter” and had exhibited “great improvements in behavior.” Id. J.J. was
promoted to the second grade. Id.
In July 2018, Brent Smith, P.A., observed that J.J.’s interaction with his mother was
normal and that he interacted well with other adults. T. 25, 491. Plaintiff reported to Smith
that J.J. was involved in school and community activities and completed self-care tasks
like brushing his teeth, exercising, and sleeping appropriately. Id.
In August 2018, Plaintiff reported to medical personnel that medication had
improved J.J.’s behavioral issues, including his attentiveness and anger management. T.
25-26, 500. She reported that she had not given J.J. his medication as prescribed because
it made him groggy. Id. She reported that J.J. had received some school-based services that
helped with anger management. Id. The counselor encouraged Plaintiff to try a different
medication to assist with anger management. T. 503. Two weeks later, Plaintiff reported
that J.J. had experienced only one angry outburst at school, and his teacher had intervened.
T. 26, 512.
The above evidence, discussed by the ALJ in her decision, indicates that J.J. had
more good days than bad days with regard to his behavior; that he was often cooperative
and pleasant at school and medical appointments; that he had learned or was learning to
control his anger and avoid tantrums; and that he had friends. Thus, there is substantial
evidence in the record to support the ALJ’s findings that J.J.’s behavioral problems were
sporadic, rather than consistent; that his behavior improved significantly with behavior
interventions and medication; and that his periods of increased behavioral problems
generally corresponded to periods where J.J. did not take his medication as prescribed.
Accordingly, substantial evidence supports the ALJ’s finding that J.J. had a marked, rather
than extreme, limitation in interacting with others.
Furthermore, the above evidence indicates that J.J. is intelligent; that he consistently
makes good grades; that his mental status is generally normal; and that he is perfectly
capable of independently completing tasks, particularly when he takes his ADHD
medication as prescribed. Thus, there is substantial evidence in the record to support the
ALJ’s findings that J.J. had no limitation in his ability to understand, remember, or apply
information; no limitation in his ability to adapt or manage himself; and less than marked
limitation in his ability to concentrate, persist, or maintain pace. Accordingly, substantial
evidence supports the ALJ’s determination that J.J. did not have an impairment or
combination of impairments that met or medically equaled Listing 112.08. Therefore, that
determination was not erroneous.
Plaintiff cites to and argues that there is evidence in the record that supports a
contrary finding. However, this Court’s review “is limited to an inquiry into whether there
is substantial evidence to support the findings of the Commissioner, and whether the
correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002) (citations omitted). In this case, as addressed above, the Court finds that substantial
evidence supports the findings of the Commissioner and that the correct legal standards
were applied. Thus, although there may also be some evidence in the record supporting a
contrary finding, the Court is not entitled to decide the facts anew, reweigh the evidence,
or substitute its judgment for that of the Commissioner. See Winschel, 631 F.3d at 1178.
This is true even if the evidence preponderates against the ALJ’s findings. See Gibbs v.
Comm’r, Soc. Sec. Admin., 686 F. App’x 799, 800 (11th Cir. 2017).
B. The ALJ similarly did not err in finding that J.J. did not have an
impairment or combination of impairments that functionally equaled
the severity of a Listing.
As discussed above, a child may also be found disabled for purposes of SSI if he
has a severe impairment or combination of severe impairments that are functionally
equivalent to a Listing. 20 C.F.R. § 416.924(d). To demonstrate functional equivalence of
a Listing, the claimant must demonstrate one area of extreme limitation or two areas of
marked limitation in the following domains of functioning:
Acquiring and using information;
Attending and completing tasks;
Interacting and relating with others;
Moving about and manipulating objects;
Caring for yourself; and
Health and physical well-being.
20 C.F.R. § 416.926a(b)(1). Plaintiff argues that J.J. should have been found to have an
extreme, rather than marked, limitation in interacting and relating with others; a marked
limitation in concentration, persistence, or pace, which is the equivalent of attending and
completing tasks; and a marked limitation in caring for himself. Doc. 10 at 10-11.
However, for the same reasons set forth above, the Court finds that the ALJ sufficiently
explained her reasoning and that substantial evidence supports the ALJ’s findings.
Although Plaintiff vaguely argues that “[t]he ALJ certainly did not consider all the
relevant evidence relating to” these areas of functioning, see Doc. 10 at 10, Plaintiff fails
to cite to any specific evidence not addressed in the ALJ’s decision that she believes should
have been considered. See N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th
Cir. 1998) (“Issues raised in a perfunctory manner, without supporting arguments and
citation to authorities, are generally deemed to be waived.”) (citing Continental Tech. Serv.,
Inc. v. Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991)). The argument, if not
waived, is nevertheless unpersuasive. The Eleventh Circuit has made clear that “there is no
rigid requirement that the ALJ specifically refer to every piece of evidence in [her]
decision” so long as the decision enables the Court to conclude that the ALJ properly
considered the claimant’s condition as a whole. Mitchell v. Comm’r, Soc. Sec. Admin., 771
F.3d 780, 782 (11th Cir. 2014) (citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005)). Here, the ALJ’s comprehensive discussion of the evidence in the record and
consideration of evidence both strengthening and weakening her position enables the Court
to make such a conclusion. 2
Finally, Plaintiff briefly argues that the ALJ should have obtained a psychiatric or
psychological evaluation to assess J.J.’s mental functioning under McCall v. Bowen, 846
F.2d 1317 (11th Cir. 1988). In McCall, the Eleventh Circuit stated that, under 42 U.S.C. §
Plaintiff states in her brief that, “[i]n concluding that J.J. does not have an impairment or combination of
impairments that functionally equals a . . . Listing the ALJ relied primarily on findings from a nonexamining state agency medical consultant.” Doc. 10 at 12. Plaintiff argues that reliance on the consultant
was inappropriate and that “[t]he ALJ failed to explain why she concluded that the nearly year-and-a-half
of treatment records submitted after August 2017 contradicted the opinions from the non-examining
consultant.” Id. However, upon review, the Court finds neither that the ALJ relied “primarily” on the
medical consultant’s opinion nor that she concluded treatment records rendered after August 2017
contradicted that opinion. To the contrary, the ALJ discusses—at length—treatment and other records
rendered after August 2017 and simply remarks that the medical consultant’s opinion “is persuasive as it is
consistent with the overall evidence.” T. 27.
421(h), “in any case where there is evidence which indicates the existence of a mental
impairment the [Commissioner] may determine that the claimant is not under a disability
only if the [Commissioner] has made every reasonable effort to obtain the opinion of a
qualified psychiatrist or psychologist.” Id. at 1320. However, as the Commissioner
indicates, the plain language of § 421(h) appears to apply only to initial determinations,
not to decisions made by an ALJ. See 42 U.S.C. § 421(h) (stating that the rule applies to
“[a]n initial determination”); see also Sneed v. Barnhart, 214 F. App’x 883, 886 (11th Cir.
2006) (recognizing that “[t]he Third Circuit has held that the normal requirement to order
a psychiatric consult pursuant to § 421(h) does not apply to . . . cases heard by an ALJ.”)
Regardless of its applicability, the ALJ complied with § 421(h) in this case because
Dr. Estock, a qualified psychiatrist and state agency medical consultant, reviewed the
record and provided an opinion regarding Plaintiff's mental impairments and functioning.
See T. 67-71; see also Westphal v. Berryhill, No. 4:16cv59, 2017 WL 2172021, at *7 (N.D.
Ala. May 17, 2017). The opinion of Dr. Estock, as a non-examining state agency medical
consultant, is entitled to consideration as a relevant expert opinion. Westphal, 2017 WL
2172021, at *7 (citing 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i)). Indeed, this Court
and numerous other courts have previously concluded that an ALJ’s reliance on a state
agency medical consultant’s review is appropriate to satisfy any requirement imposed by
§ 421(h) even where the ALJ did not order a consultative psychological examination. 3
Accordingly, the ALJ’s failure to order a consultative psychological examination in this
case was not erroneous.
For the reasons set forth above, the Court finds that substantial evidence supports
the findings of the Commissioner and that the correct legal standards were applied.
Accordingly, it is ORDERED that:
The decision of the Commissioner is AFFIRMED.
A final judgment will be entered separately.
DONE this 31st day of March, 2021.
/s/ Kelly Fitzgerald Pate
KELLY FITZGERALD PATE
UNITED STATES MAGISTRATE JUDGE
See, e.g., Westphal, 2017 WL 2172021, at *7; Fernandez v. Saul, No. 3:19cv458, 2020 WL 3259174, at
*5, n.5 (M.D. Ala. June 16, 2020) (holding record was sufficient without consultative examination by a
qualified psychiatrist or psychologist where Dr. Estock, as a non-examining state agency medical
consultant, reviewed the record and provided an opinion regarding plaintiff’s mental impairments and
functioning); Parker v. Colvin, No. 3:15cv269, 2016 WL 1092237, at *4 (M.D. Ala. Mar. 21, 2016) (same);
Thomas v. Colvin, No. 11-00569, 2015 WL 4458861, at *15 (S.D. Ala. July 21, 2015) (same).
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