D.A.S. v. Social Security Administration, Commissioner
MEMORANDUM OPINION and ORDER that the decision of the Commissioner is affirmed; costs are taxed to claimant. Signed by Judge C Lynwood Smith, Jr on 05/30/14. (SPT )
2014 May-30 AM 11:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
ROSE MARIE LANGLEY
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Civil Action No. 1:13-cv-1374-CLS
MEMORANDUM OPINION AND ORDER
Rose Marie Langley commenced this action on July 24, 2013, 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, D.A.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 affirmed.
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 born on May 23, 2010, and was not quite three years old when
the ALJ issued his administrative decision on April 9, 2013.1 He alleges childhood
disability due to right eye problems that he has suffered since birth. The ALJ found
that claimant had the severe impairments of Axenfield-Rieger’s syndrome, congenital
glaucoma in the right eye, and congenital cataract in the right eye.2 Despite those
conditions, the ALJ found that claimant did not have an impairment or combination
of impairments that met, medically equaled, or functionally equaled a listed
impairment.3 Claimant asserts that the ALJ’s conclusion was not supported by
substantial evidence because the ALJ: (1) improperly considered the opinions of the
treating and examining physicians; (2) should have found claimant to be disabled
under Listing 102.00, or to functionally equal a Listing; and (3) denied claimant due
process of law by failing to properly develop the administrative record. The court
concludes those contentions are without merit, and the ALJ’s decision is due to be
The ALJ’s Functional Equivalence Findings
See Tr. 8, 14.
The ALJ’s findings on functional equivalence are relevant to several of
claimant’s arguments, so those findings bear separate discussion. 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 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 well-being.” 20 C.F.R. § 416.926a(b)(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).
The ALJ found that claimant did not have any limitations in any of the domains
of functioning, other than health and physical well-being.4 Further, claimant had only
marked, not extreme, limitations in the domain of health and physical well-being.5
Social Security regulations provide some examples of limitations a child of any age
might have in this domain: i.e.,
(i) You have generalized symptoms, such as weakness, dizziness,
agitation (e.g., excitability), lethargy (e.g., fatigue or loss of energy or
stamina), or psychomotor retardation because of your impairment(s).
(ii) You have somatic complaints related to your impairments
(e.g., seizure or convulsive activity, headaches, incontinence, recurrent
infections, allergies, changes in weight or eating habits, stomach
discomfort, nausea, headaches, or insomnia).
(iii) You have limitations in your physical functioning because of
your treatment (e.g., chemotherapy, multiple surgeries, chelation,
pulmonary cleansing, or nebulizer treatments).
(iv) You have exacerbations from one impairment or a
combination of impairments that interfere with your physical
(v) You are medically fragile and need intensive medical care to
maintain your level of health and physical well-being.
20 C.F.R. § 416.926a(l)(4). The regulations also state that, for the domain of health
and physical well-being, the Commissioner may consider a claimant to have a marked
you are frequently ill because of your impairment(s) or have frequent
exacerbations of your impairment(s) that result in significant,
documented symptoms or signs. For purposes of this domain, “frequent”
means that you have episodes of illness or exacerbations that occur on
an average of 3 times a year, or once every 4 months, each lasting 2
weeks or more. We may also find that you have a “marked” limitation
if you have episodes that occur more often than 3 times in a year or once
every 4 months but do not last for 2 weeks, or occur less often than an
average of 3 times a year or once every 4 months but last longer than 2
weeks, if the overall effect (based on the length of the episode(s) or its
frequency) is equivalent in severity.
20 C.F.R. § 416.926a(e)(2)(iv). The Commissioner may find an extreme limitation
in that domain if:
you are frequently ill because of your impairment(s) or have frequent
exacerbations of your impairment(s) that result in significant,
documented symptoms or signs substantially in excess of the
requirements for showing a “marked” limitation in paragraph (e)(2)(iv)
of this section. However, if you have episodes of illness or
exacerbations of your impairment(s) that we would rate as “extreme”
under this definition, your impairment(s) should meet or medically equal
the requirements of a listing in most cases. See §§ 416.925 and 416.926.
20 C.F.R. § 416.926a(e)(3)(iv).
Upon consideration of those regulations, the ALJ made the following findings
with regard to claimant’s health and physical well-being:
The Claimant has marked limitation in health and physical well
being. The Claimant’s vision impairment and requisite treatment led to
the determination that the Claimant is markedly limited in this domain.
While the operation one year ago shows promise in allowing the
Claimant to use his right eye, the undersigned recognizes he has a
guarded prognosis as corneal transplants, in the best of circumstances,
are often more of an art than science. In addition to facing the prospect
of graft rejection, the Claimant will have to be put under anesthesia for
examinations and suture removal, which occurs in gradually over time
[sic]. However, the last treatment reports from his ophthalmologist
show signs of hope that the Claimant will be able to have meaningful
sight in his eye. Despite this hope, in making this finding, the
undersigned considered the Claimant’s condition as it has existed for the
duration of the alleged period of disability, his birth. Even if the
undersigned assumed the graft would be completely rejected and thus
fail, the Claimant’s right eye impairment would not extremely limit the
Claimant because he retains normal function in his left eye and would
still be able to see.6
Claimant asserts that the ALJ “failed to show good cause why the opinion of
the plaintiff’s treating sources and his mother should not be given substantial or
considerable weight,”7 and that the ALJ “did not properly consider the opinions of
Plaintiff’s treating and examining doctors in rendering his hasty decision.”8 The court
Tr. 24 (emphasis in original, alteration supplied).
Doc. no. 9 (claimant’s brief), at 7.
Id. at 17.
disagrees, and concludes that the ALJ properly considered all of the medical evidence
It is true that the opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (internal citations omitted). Good
cause exists when “(1) [the] treating physician’s opinion was not bolstered by the
evidence; (2) [the] evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Id. (alterations supplied). Additionally, the ALJ is not required to accept
a conclusory statement from a medical source, even a treating source, that a claimant
is unable to work, because the decision whether a claimant is disabled is not a
medical opinion, but is a decision “reserved to the Commissioner.” 20 C.F.R. §
Social Security regulations also 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. § 416.927(c). 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.”).
Claimant did not actually identify the treating physician opinion to which she
contends the ALJ should have given controlling weight, and the court’s review of the
record did not reveal any such opinions. Instead, claimant’s argument focuses on the
fact that the ALJ gave significant weight to the opinion of Dr. Henry Durham, the
medical expert who testified during the administrative hearing.
completed a set of Medical Interrogatories on July 15, 2012. He stated that claimant
suffered from glaucoma and corneal scarring in the right eye that might be helped by
surgery but still would be likely to cause diminished vision. He also stated that
claimant did not satisfy the requirements of any of the Listings, because his left eye
was much better than his right eye. Even though claimant was too young to have
standard vision testing performed on his left eye, the examinations that were
conducted did not indicate any problems with the left eye. Dr. Durham also opined
that claimant did not have any impairments in any domain of functioning except for
health and physical well-being, in which he had a marked impairment due to the fact
that the surgical procedures he recently underwent would require prolonged follow8
up.9 Dr. Durham provided consistent testimony during the administrative hearing.10
The ALJ afforded Dr. Durham’s testimony significant weight because it was
“well reasoned and consistent with the objective evidence.”11 Even though Dr.
Durham is not an ophthalmologist, he is a pediatrician, and thus possesses “adequate
insight into evaluating the Claimant’s cognitive, social, and behavioral
development,”12 characteristics that also are important factors in evaluating claimant’s
overall functioning. The ALJ found that any deficiency in Dr. Durham’s opinion due
to his lack of specialty was harmless, because Dr. Durham “already found the
Claimant is markedly limited” in the domain of health and physical well-being.13 He
also found no basis in the record for concluding that claimant suffered extreme
impairment in that domain because his left eye was fully functioning.
Those conclusions were supported by substantial evidence. There is no
indication in the record that claimant suffered any significant impairment in his left
eye, and no other medical assessment that conflicted with Dr. Durham’s opinion. In
fact, the only other medical assessment in the record — that of the state agency
See Tr. 40-48.
physician — actually is consistent with Dr. Durham’s opinion.14
To the extent claimant argues that the ALJ should have given controlling
weight to his mother’s testimony about his impairments, the court disagrees.
Claimant’s mother is an “other source” under 20 C.F.R. § 416.913(d)(4), so the ALJ
could decide whether to consider her testimony and how much weight to afford it.
The problem for claimant is that the ALJ did consider his mother’s testimony, and he
found it to be credible. Even so, the mother’s testimony did not support the existence
of extreme limitations in health and physical well-being, or in any other area that
would lead to a finding of disability.15 The function report claimant’s mother
completed indicated that claimant’s ability to learn, move about, and interact with
others was not limited.16
Additionally, claimant’s mother testified during the
administrative hearing that he was “fine” in all respects other than his vision
problems,17 that he could play outside as long as it wasn’t in too much sunlight,18 and
that he could see “perfectly” out of his left eye as long as he was not wearing a
Listings and Functional Equivalence
Listing 102.00, Special Senses and Speech
Claimant asserts that he meets the requirements of Listing 102.00, for Special
Senses and Speech. However, that Listing actually encompasses many different
standards for determining disability,20 and claimant does not specify which standard
he claims to meet. Instead, claimant cites only to the prefatory comments in the
introductory section of the Listing. Because claimant did not offer any more detailed
argument about satisfaction of the various Listing requirements, the court also will
not address the issue in much detail. It will suffice to say that there is no evidence
that any of the requirements of the Listings related to vision have been satisfied. As
discussed above, there is no evidence of significant impairment in claimant’s left eye,
and the applicable Listings require significant impairment of the “better eye.” See 20
C.F.R. pt. 404, subpt. P, app. 1, §§ 102.02, 102.03, 102.04. Thus, the ALJ’s finding
that claimant did not satisfy any of the Listings was supported by substantial
evidence.21 It is of no consequence, as claimant suggests, that he is too young to
See, e.g., Listing 102.02 (Loss of central visual acuity), which has two sub-parts; Listing
102.03 (Contraction of the visual field in the better eye), which has three sub-parts; Listing 102.04
(Loss of visual efficiency, or visual impairment, in the better eye), which has two sub-parts.
The ALJ found:
The Claimant’s visual impairments do not meet the requirements contained
in section 102.02. The medical expert provided a detailed analysis regarding why the
Claimant’s vision impairment, which primarily affects his right eye, does not meet
undergo “standard” vision testing, because the Regulations provide for alternative
methods of assessing vision in babies and toddlers. 20 C.F.R. pt. 404, subpt. P, app.
1, § 102.00(A)(5)(a)(iv).
Claimant also asserts that his impairments functionally equal a listing. He
challenges only the ALJ’s finding that he suffered marked impairments in the domain
of health and physical well-being.
Instead, he asserts that he had extreme
impairments in that domain “because he has severe impairments which limit his
function. Dr. Martinez noted Plaintiff would require multiple surgeries and patching
of his better eye to treat ambloypia. She further noted Plaintiff had a ‘guarded visual
prognosis.’”22 As discussed above, however, the record supports only impairments
of claimant’s right eye, not his left eye. The ALJ’s decision that claimant suffered
only marked impairments in health and physical well-being was supported by
either section of said listing . . . . He explains that due to the Claimant’s age, two
years old as of the date of the supplemental hearing, he was not old enough to
undergo standard vision testing . . . . Despite the lack of testing, the medical expert
wrote the Claimant’s left eye, his better eye, is generally unaffected by his
impairments, which suggests the Claimant’s left eye vision would not [be] as bad as
required in section 102.02. While the Claimant was previously noted to have anterior
segment dysgenesis, the Claimant was able to follow a light with his left eye, and
treatment reports showed the Claimant’s left eye had normal function and had a clear
lens and cornea . . . .
Tr. 15 (alteration supplied, citations to the record omitted).
Claimant’s brief, at 15.
substantial evidence, including the opinions of the medical expert and the state
Due Process/ Failure to Develop the Record
Finally, claimant asserts that the ALJ violated his right to due process when the
ALJ failed to properly develop the administrative record: i.e., by failing to order a
consultative examination by a specialist in ophthalmology.
Claimant bears the ultimate burden of producing evidence to support his
disability claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(citing 20 C.F.R. §§ 416.912(a), (c)). Even so, an ALJ
has an obligation to develop a full and fair record, even if the claimant
is represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981). The ALJ is not required to seek additional
independent expert medical testimony before making a disability
determination if the record is sufficient and additional expert testimony
is not necessary for an informed decision. Wilson v. Apfel, 179 F.3d
1276, 1278 (11th Cir. 1999) (holding the record, which included the
opinion of several physicians, was sufficient for the ALJ to arrive at a
decision); Holladay v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988)
(holding the ALJ must order a consultative exam when it is necessary
for an informed decision).
Nation v. Barnhart, 153 F. App’x 597, 598 (11th Cir. 2005) (emphasis supplied).
The record reflects that the ALJ did initially schedule a consultative
examination with a ophthalmology specialist, but claimant declined to attend. The
ALJ described those events during the administrative hearing as follows:
The Mother appeared and testified at a hearing held on June 11, 2012,
in Montgomery, Alabama.
At the hearing, the Mother provided testimony, but the
undersigned directed the matter be placed in post development so that
an impartial medical expert could review the Claimant’s medical
records. The medical expert, Henry S. Durham, Jr., M.D., submitted
responses to interrogatories on July 15, 2012. In light of the medical
expert’s interrogatory responses, the Claimant’s attorney requested a
supplemental hearing on August 1, 2012 . . . . That motion was granted.
On August 24, 2012, the Claimant’s attorney requested the undersigned
order a consultative ophthalmological examination . . . . Pursuant to the
attorney’s request, the undersigned ordered the consultative
ophthalmological examination. However, the Claimant did not attend
the consultative ophthalmological examination because the Mother
declined to travel to the examination in Montgomery, Alabama, the site
of the hearing . . . . On December 19, 2012, the Claimant’s attorney
moved that the consultative examination be rescheduled for an
ophthalmologist in Birmingham, Alabama. That motion was denied as
the grounds underlying the motion did not merit the action requested by
the Claimant’s attorney. A medical expert had provided a detailed
assessment of the evidence and the representative provided no evidence
of a significant change in the claimant’s vision. As a side matter, the
undersigned also notes contact from the state development agency that
finding an ophthalmologist willing to perform the type of examination
desired by the representative was problematic because the examination
would have to be performed under anesthesia[ due to claimant’s age],
conditions outside the scope of state agency consultative examinations.
On January 6, 2013, the Claimant’s attorney resubmitted the December
19, 2012 motion and also moved that the hearing be rescheduled
because the Claimant and his Mother moved . . . . The undersigned
denied this motion as the Claimant and his Mother had moved more than
three months prior to the supplemental hearing date and remained within
a reasonable distance to attend . . . . However, the undersigned offered
the Claimant’s representative the opportunity to appear at the hearing by
herself as the Mother had already provided testimony in the earlier
hearing and the purpose of the supplemental hearing was to allow the
representative the opportunity to question the medical expert, Dr.
Durham. At the second hearing, the impartial medical expert was
present, so the Claimant’s attorney had an opportunity to examine the
medical expert in light of his interrogatory responses. On January 10,
2013, the supplemental hearing was held in Montgomery, Alabama. The
Claimant’s attorney, Carla Ray, Esq., and the impartial medical expert
It is apparent that the ALJ offered claimant a reasonable opportunity to be examined
by a specialist. Claimant’s decision to decline that opportunity should not be held
against the ALJ.
Additionally, there is no indication that an additional consultative examination
by an ophthalmologist was necessary. Instead, the court concludes that the record in
this case, including the records of claimant’s treating physicians and the opinions of
the medical expert and the state agency physician, was sufficient to give substantial
support to the ALJ’s decision.
Conclusion and Order
In summary, the court concludes that the ALJ’s decision regarding claimant’s
disability was supported by substantial evidence and in accordance with applicable
legal standards. Accordingly, the decision of the Commissioner is AFFIRMED.
Costs are taxed to claimant. The Clerk is directed to close this file.
Tr. 11-12 (alteration supplied, citations to the record omitted).
DONE this 30th day of May, 2014.
United States District Judge
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