Sistrunk v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is REVERSED and this action is REMANDED to the Commissioner of the Social Security Administration for further proceedings consistant with this memorandum opinion and order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/1/2013. (AHI )

FILED
2013 Apr-01 AM 10:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
FRANCINE SISTRUNK
o/b/o J.D.S.,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. CV-12-S-2144-E

MEMORANDUM OPINION AND ORDER
Francine Sistrunk commenced this action on June 12, 2012, pursuant to 42
U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge, and denying
the claim she asserted on behalf of her son, J.D.S. (“claimant”), for child
supplemental security income benefits. For the reasons stated herein, the court finds
that the Commissioner’s ruling is due to be reversed, and the case remanded to the
Commissioner for further proceedings.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the

Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).
Claimant was eight years old at the time of the ALJ’s decision,1 and he alleged
childhood disability due a speech and language impairment. Upon review of the
hearing testimony and the medical evidence of record, the ALJ concluded that
claimant had not engaged in any substantial gainful activity, and that he had the
severe impairment of disorder of articulation.2 The ALJ nonetheless found that
claimant did not have an impairment or combination of impairments that met,
medically equaled, or functionally equaled one of the listings.3 Accordingly, the ALJ
found that claimant was not under a disability as defined by the Social Security Act.4
Claimant contends that the ALJ’s decision was not supported by substantial
evidence, and that it was not in accordance with applicable legal standards. More
specifically, claimant asserts that the ALJ improperly considered the opinions of the
consultative examiner and the non-examining reviewing physician, and failed to
1

The ALJ stated in his decision that claimant was nine years old. Tr. 23. That statement
must have been in error, however, because claimant’s mother testified that his date of birth was
November 27, 2001,Tr. 35, and the administrative decision was entered on July 26, 2010. See Tr.
15. Claimant would not have reached his ninth birthday until November 27, 2010.
2

Tr. 23, 26.

3

Tr. at 23-24, 26.

4

Tr. 26.

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properly develop the record by not obtaining the opinion of a medical expert at the
administrative hearing. Upon consideration, the court finds that claimant’s argument
about the ALJ’s consideration of the consultative examiner’s opinion has merit, and
remand is warranted for further consideration of the examiner’s opinion.
Claimant asserts that the ALJ improperly considered the assessment of Dr. June
Nichols, the consultative examiner. Social Security regulations provide that, in
considering what weight to give any medical opinion (regardless of whether it is from
a treating or non-treating physician), the Commissioner should evaluate: the extent
of the examining or treating relationship between the doctor and patient; whether the
doctor’s opinion can be supported by medical signs and laboratory findings; whether
the opinion is consistent with the record as a whole; the doctor’s specialization; and
other factors. See 20 C.F.R. § 404.1527(d). See also Wheeler v. Heckler, 784 F.2d
1073, 1075 (11th Cir. 1986) (“The weight afforded a physician’s conclusory
statements depends upon the extent to which they are supported by clinical or
laboratory findings and are consistent with other evidence as to claimant’s
impairments.”).
Dr. Nichols examined claimant on July 9, 2008. She noted that claimant
suffered from Intellectual Deficits and a Disorder of Articulation, but that he was not
on any medication, had never been hospitalized for psychological difficulties, and had
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never participated in counseling.

He repeated kindergarten due to “learning

problems,” attended special classes for speech, and earned mostly C’s and D’s, but
he never experienced disciplinary problems.

Dr. Nichols found evidence of

articulation difficulties during the mental status examination, but claimant’s mood,
affect, sleep, appetite, and energy were normal. His stream of consciousness,
orientation, memory, thought processes, and thought content were normal, but his
judgment and insight were poor. He was not involved in any formal social activities
or organizations, but he did attend church, play video games, watch cartoons, and
spend time with several friends.

Intelligence testing revealed a Verbal

Comprehension Index score of 85, a Perceptual Reasoning Index Score of 77, a
Working Memory Index score of 71, a Processing Speed Index Score of 78, and a
Full Scale IQ score of 73, all of which indicated that claimant was functioning within
the borderline range of intellectual ability. Dr. Nichols assessed a disorder of
articulation, borderline intellectual functioning, academic difficulties, and a GAF
Score of 60, indicating moderate symptoms. Her prognosis for claimant was as
follows:
[Claimant] is functioning in the borderline range of intellectual ability.
He suffers from a disorder of articulation. He has a history of
developmental delays involving speech. Developmental milestones
were met within acceptable time. [Claimant] will be unable to function
in an age appropriate manner cognitively, communicatively, socially.
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Adaptability and behavior are consistent with his intellectual
functioning. There were no behavioral problems reported. He should
have little difficulty relating to peers and authority figures alike. He is
incapable of handling his own funds or live [sic] independently.
[Claimant’s] intellectual deficits will not improvement [sic] in the next
12 months.5
The ALJ gave Dr. Nichols’ assessment “considerable weight” because it was
“consistent with and supported by the claimant’s school records that show him to
have some academic problems, but functioning pretty well at the present time.”6
Even so, the ALJ did not mention Dr. Nichols’ statement that claimant would be
“unable to function in an age appropriate manner cognitively, communicatively,
socially.” It must now be determined whether the ALJ’s failure to address Dr.
Nichols’ statement was harmless error. To make that determination, the court will
consider whether the ALJ’s decision would have been supported by substantial
evidence, even if he had considered Dr. Nichols’ statement and given it full weight.
Claimant does not appear to have asserted that he meets or medically equals
any of the listed impairments. Thus, he will be considered to be disabled only if he
functionally equals a listed impairment.

To functionally equal a listing, the

claimant’s impairments “must be of listing-level severity; i.e., [they] must result in
‘marked’ limitations in two domains of functioning or an ‘extreme’ limitation in one
5

Tr. 158-60 (alterations supplied).

6

Tr. 25.

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domain . . . .” 20 C.F.R. § 416.926a(a). The “domains of functioning” to be
evaluated include: “(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 wellbeing.” 20 C.F.R. § 416.926a(1)(i)-(vi). Social Security regulations inform
claimants that “marked” limitations in these domains exist
when your impairment(s) interferes seriously with your ability to
independently initiate, sustain, or complete activities. Your day-to-day
functioning may be seriously limited when your impairment(s) limits
only one activity or when the interactive and cumulative effects of your
impairment(s) limit several activities. “Marked” limitation also means
a limitation that is “more than moderate” but “less than extreme.” It is
the equivalent of the functioning we would expect to find on
standardized testing with scores that are at least two, but less than three,
standard deviations below the mean.
20 C.F.R. § 416.926a(e)(2)(i). “Extreme” limitations exist
when your impairment(s) interferes very seriously with your ability to
independently initiate, sustain, or complete activities. Your day-to-day
functioning may be very seriously limited when your impairment(s)
limits only one activity or when the interactive and cumulative effects
of your impairment(s) limit several activities. “Extreme” limitation also
means a limitation that is “more than marked.” “Extreme” limitation is
the rating we give to the worst limitations. However, “extreme
limitation” does not necessarily mean a total lack or loss of ability to
function. It is the equivalent of the functioning we would expect to find
on standardized testing with scores that are at least three standard
deviations below the mean.
20 C.F.R. § 416.926a(e)(3)(i).
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Claimant has not identified the functional domains in which he claims to have
marked or extreme limitations, nor has he explained why the evidence would support
a finding of marked or extreme limitations in any domain.7 Even so, if claimant truly
is “unable to function in an age appropriate manner cognitively, communicatively,
[and] socially,” as Dr. Nichols stated, he could experience significant limitations in
the domains of acquiring and using information, attending and completing tasks,
interacting and relating with others, and health and physical well being. Thus, the
ALJ’s finding that claimant’s impairments did not functionally equal a listing is
inconsistent with Dr. Nichols’ statement that claimant was unable to function in an
age appropriate manner. Perhaps the ALJ discredited that statement from Dr. Nichols
because he found it to be unsupported by the remainder of the record. Perhaps he
simply overlooked the statement. Or perhaps he intentionally did not address the
statement in his administrative decision because the statement did not support the
decision he had reached. There is no way for this court to know, without any
explanation from the ALJ, why he did not consider all of Dr. Nichols’ opinion, or
whether he still would have found claimant to be non-disabled if he had considered
the entire opinion. Thus, there is no way to evaluate whether the ALJ’s decision was
7

The closest claimant comes to making an argument on this topic is the following sentence:
“The evidence establishes an articulation disorder resulting in limitations in the domains of
functioning at least more restrictive than determined by the ALJ.” Doc. no. 9 (claimant’s brief), at
7.

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supported by substantial evidence. Remand is warranted for the ALJ to give further
consideration to the entirety of Dr. Nichols’ assessment, to articulate his reasons for
not crediting Dr. Nichols’ statement that claimant was unable to function in an ageappropriate manner in several areas, and to conduct any other appropriate
proceedings.8
In accordance with the foregoing, the decision of the Commissioner is
REVERSED, and this action is REMANDED to the Commissioner of the Social
Security Administration for further proceedings consistent with this memorandum
opinion and order. The Clerk is directed to close this file.
DONE this 1st day of April, 2013.

______________________________
United States District Judge

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Because remand is warranted on these grounds, there is no need to consider claimant’s other
arguments, i.e., that the ALJ improperly considered the opinion of the non-examining, reviewing
physician, and that the ALJ failed to fully develop the record by not obtaining the opinion of a
medical expert during the administrative hearing.

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