Goree v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed to claimant; Case reassigned to Judge C Lynwood Smith, Jr for all further proceedings. Judge J Foy Guin, Jr no longer assigned to case please use cae number 2:11-CV-2573-CLS on all further proceedings. Signed by Judge C Lynwood Smith, Jr on 8/12/2013. (AHI)
Goree v. Social Security Administration, Commissioner
2013 Aug-12 PM 02:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SANDRA GOREE, o/b/o J.D.S.,
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Civil Action No. CV-11-S-2573-S
MEMORANDUM OPINION AND ORDER
Sandra Goree commenced this action on July 14, 2011, 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
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
Claimant, who was ten years old at the time of the administrative decision,
alleged childhood disability beginning on November 6, 2006, due to asthma and
attention deficit hyperactivity disorder (ADHD), and, indeed, the ALJ found these to
be severe impairments.1 Even so, the ALJ found that claimant did not have an
impairment or combination of impairments that met, medically equaled, or
functionally equaled one of the listed impairments.2 Claimant contends that this
decision was neither supported by substantial evidence nor in accordance with
applicable legal standards. Specifically, claimant argues that the ALJ erred by: (1)
failing to find that his asthma met and/or equaled the criteria of Listing 103.03; (2)
failing to obtain an updated medical opinion regarding medical equivalency; and (3)
improperly misconstruing and dismissing the opinions of claimant’s teachers when
evaluating whether his impairments functionally equaled the Listing. Upon careful
consideration of the record, the court concludes that claimant’s contentions are not
correct, and the ALJ’s decision is due to be affirmed.
Listing 103.03 covers childhood asthma. Claimant argues that he meets Listing
103.03B, which requires asthma attacks of a specified severity and frequency. Listing
103.03B requires asthma with:
B. Attacks (as defined in 3.00C), in spite of prescribed treatment
and requiring physician intervention, occurring at least once every 2
months or at least six times a year. Each inpatient hospitalization for
longer than 24 hours for control of asthma counts as two attacks, and an
evaluation period of at least 12 consecutive months must be used to
determine the frequency of attacks.
20 C.F.R. pt. 404, subpt. P, app. 1, § 103.03B (emphasis supplied). Listing 3.00C
defines “attacks of asthma” as:
prolonged symptomatic episodes lasting one or more days and requiring
intensive treatment, such as intravenous bronchodilator or antibiotic
administration or prolonged inhalational bronchodilator therapy in a
hospital, emergency room or equivalent setting. Hospital admissions are
defined as inpatient hospitalizations for longer than 24 hours.
20 C.F.R. pt. 404, subpt. P, app. 1, § 3.00C.
Although claimant asserts the ALJ “failed to support his finding that [his]
asthma was not severe enough to meet or equal the asthma listing,”3 claimant is the
one who bears the burden of providing medical records showing that he meets a
Listing. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). Claimant’s brief
cites to a number of visits to doctors and hospital emergency rooms, but he has failed
to convincingly demonstrate that any of the visits meet the definition of an “attack of
asthma” in Listing 3.00C.
Of the thirteen visits cited by claimant, two clearly do not meet the Listing
Doc. no. 8 (claimant’s brief), at 7 (alteration supplied).
definition of an asthma attack. On March 9, 2006, claimant presented for treatment
of a fever. His breathing sounds were clear, with no increased effort of breathing.4
On January 29, 2008, claimant presented with complaints of a cold. His lung exam
was normal.5 During the remaining eleven visits, it does not appear the plaintiff
received intensive treatment, such as IV bronchodilator or antibiotic therapy. It also
is clear that claimant did not receive “prolonged inhalational bronchodilator therapy
in a hospital or emergency room setting” during most of those eleven visits. Even if
the court were to assume that all visits to the emergency room satisfy the Listing
3.00C definition of an asthma attack, claimant still would not have the requisite
number of attacks during any twelve-month period. In short, claimant has not shown
that he had the requisite number of asthma attacks — as that term is defined by Listing
3.00C — during any twelve-month period to satisfy the requirements of Listing
Claimant next argues that the additional medical evidence submitted after the
December 15, 2006, medical opinion from the state agency reviewing physician
required the ALJ to utilize a medical expert. However, as the Commissioner points
out in her brief, a medical expert is required by SSR 96-6p only when, in the opinion
of the ALJ, the additional medical evidence might change the state agency doctor’s
opinion.6 As discussed above, the additional records do not suggest the claimant met
or equaled Listing 103.03. Consequently, there was no need for the ALJ to employ
a medical expert to evaluate those records. The ALJ’s decision was supported by
substantial evidence, even without consideration of any additional medical opinions.
Functional Equivalence and Teacher Opinions
If a child’s impairments do not meet or medically equal a listed impairment, the
ALJ must then determine if the child’s impairments are functionally equivalent in
severity to a listed impairment. 20 C.F.R. §§ 416.924(d), 416.926a(a). For the child’s
impairments to functionally equal a listed impairment, the child’s impairments must
result in “marked” limitations in two domains of functioning or an “extreme”
limitation in one domain. 20 C.F.R. § 416.926a(a). A “marked” limitation is one
which “interferes seriously” with a claimant’s abilities in a domain. 20 C.F.R. §
416.926a(e). It is more than “moderate” but less than “extreme.” Id. A claimant’s
impairment can also functionally equal a listed impairment if it results in an “extreme”
limitation in one domain. 20 C.F.R. § 416.926a(d). An “extreme” limitation is one
that “interferes very seriously with [a claimant’s] ability to initiate, sustain, or
complete activities.” Id. (alteration supplied). The ALJ considers the child’s
See doc. no. 9 (Commissioner’s Brief), at 10.
functioning in terms of six 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. 20 C.F.R. § 416.926a(b)(1).
In the present case, the ALJ considered claimant’s functioning in these six
domains. Claimant’s argues that the ALJ failed to properly consider the opinions of
his teachers with regard to three of the domains.7
Claimant argues the ALJ failed to properly consider the assessment of his first
grade teacher, Ms. McClinskey, in the domain of “acquiring and using information.”
The ALJ made the following finding concerning that domain:
On December 4, 2006, Judy McClinskey, one of the claimant’s teachers,
completed a teacher questionnaire on the claimant. Ms. McClinskey
indicated that although the claimant had obvious problems in reading,
understanding and writing, the claimant only had slight problems in
comprehending oral instructions; in understanding vocabulary; in doing
mathematical problems; in participating in class discussions and in
providing oral explanations (Exhibit 4E). On March 13, 2009, Ms.
Lawson, also one of the claimant’s teachers, reported that despite some
noticeable problems, the claimant was a very bright young man (Exhibits
9E and 11E). In a child function report, the claimant’s mother noted that
the claimant’s speech could be understood most of the time. She also
indicated that the claimant was able to deliver phone messages; to repeat
stories; to tell jokes; to use sentences beginning with because/what if/
should have been and to communicate with others (Exhibit 2E).8
See doc. no. 8 (claimant’s brief), at 13-14.
Claimant’s argument is based upon Ms. McClinskey’s indication of “an obvious
problem” in five of ten areas covered by the form.9 Ms. McClinskey indicated “a
slight problem” in the other five areas. The form asked the teacher to rate claimant’s
functioning on a scale of one to five. The five levels were:
A slight problem
An obvious problem
A serious problem
A very serious problem.
Because the regulations define a marked limitation as one that “interferes
seriously” with a claimant’s abilities in a domain, Ms. McClinskey’s form supports
the ALJ’s finding on this domain, as she indicated that claimant had less than serious
problems in all ten of the activities contained on the form. Indications on the teacher
questionnaire of an “obvious problem” would represent a less than serious problem,
and thus less than a “marked limitation” under the Listing’s definition. Because Ms.
McClinskey indicated the claimant had a less than serious problem in all ten areas
assessed, the ALJ’s finding on this domain is supported by substantial evidence.
In the Domain of “attending and completing tasks,” the ALJ found that claimant
had a less than marked limitation for the following reasons:
On December 4, 2006, Ms. McClinskey, a teacher of the claimant,
reported that even though the claimant possessed obvious difficulties in
maintaining focus, the claimant only had slight problems in paying
attention, sustaining attention while playing, carrying out instructions,
organizing his things and completing work/assignments (Exhibit 4E). In
a child function report, the claimant’s mother indicated that the claimant
was able to finish what he started; to complete his homework and to
complete his chores most of the time (Exhibit 2E).10
Claimant argues that the ALJ did not consider the two areas in which the
plaintiff had serious problems: i.e., changing from one activity to another without
being disruptive; and working at reasonable pace/finishing on time. It is true that the
ALJ did not specifically mention these two activities. However, these were only two
of the thirteen activities rated in this domain. With only two of thirteen activities
being rated at a level equal to “marked,” the ALJ’s finding on this domain is
supported by substantial evidence.
In the domain of “caring for himself,” the ALJ found that claimant had less than
a marked limitation for the following reasons:
On December 4, 2006, Ms. McClinskey noted in a teacher questionnaire
that although the claimant encountered problems in handling frustration
appropriately, asserting his emotional needs, responding appropriately
to his own mood changes and in coping skills, the claimant only
experienced slight to no difficulties in being patient, caring for his
personal hygiene, caring for his physical needs, taking his medications,
using good judgment and knowing when to ask for help (Exhibit 4E). In
a child function report, the claimant’s mother reported that the claimant
was able to use a zipper, button clothes, tie shoelaces, bathe himself,
brush his teeth, comb/wash his hair, use eating utensils, put away his
toys/clothes and help around the house (Exhibit 2E).11
Claimant argues that the ALJ’s finding was not reasonable because Ms. McClinskey
indicated the claimant has a serious problem in handling frustration appropriately, and
obvious problems in three other activities.12 The form completed by Ms. McClinskey
shows a less than serious problem in nine of the ten areas assessed. With only one of
ten activities being rated at a level qual to “marked,” the ALJ’s finding on this domain
is supported by substantial evidence.
Claimant also argues the ALJ did not properly consider the statement provided
by his third grade teacher, Ms. Lawson. That statement contains the following:
I have noticed his behavior since he entered my classroom. He seems to
always fidget with his fingers or arms. He bites his nails constantly in
class and has a difficult time staying on task. His eyes constantly
wonder [sic] around in circular motion, which is very uncommon to me.
He is a very bright young man, but there are few/ [sic] very noticeable
Claimant argues that the ALJ “summarized the letter from Ms. Lawson by stating ‘on
March 13, 2009, Ms. Lawson, the claimant’s elementary school teacher, reported that
See claimant’s brief, at 13.
Tr. 163 (alterations supplied).
the claimant was a ‘very bright young man’. . .”14 This is somewhat of a distortion of
the ALJ’s discussion of Ms. Lawson’s letter. The ALJ referred to Ms. Lawson’s
statement in his consideration of statements made by the claimant’s mother. In
context, the ALJ’s reference to Ms. Lawson’s statement is as follows:
The claimant’s mother also insisted that the claimant requires special
instruction in reading and in performing mathematical calculations.
However, on March 13, 2009, Ms. Lawson, the claimant’s elementary
school teacher, reported that the claimant was a “very bright young
man.” (Exhibits 9E and 11E).15
Ms. Lawson’s reference to the claimant being a “very bright young man” was
contrasted with the claimant’s mother’s statements about his need for special
instruction in reading and math. In addition, earlier in his decision, the ALJ had
discussed Ms. Lawson’s statement as follows: “On March 13, 2009, Ms. Lawson, also
one of the claimant’s teachers, reported that despite some noticeable problems, the
claimant was a very bright young man.”16. Therefore, the ALJ did discuss Ms.
Lawson’s notation of several obvious problems. While claimant may disagree with
the weight the ALJ gave to Ms. Lawson’s statement that the claimant was a “very
bright young man,” it is misleading to imply that the ALJ ignored other portions of
Ms. Lawson’s letter.
See claimant’s brief, at 14.
Tr. 22 (emphasis supplied).
Although claimant argues that the ALJ relied on only portions of the opinions
of claimant’s teachers, it appears that the ALJ was acting as a fact-finder and weighing
the evidence. While he did not discuss every single piece of evidence, the ALJ did
reference evidence from Ms. McClinskey showing that the plaintiff had limitations in
some areas. Most of these limitations were indicated to be “obvious problems,” and
thus, were less than serious/marked. Ms. McClinskey found the plaintiff had a serious
problem in only a small percentage of the activities in the three domains discussed in
claimant’s brief. (Acquiring and using information: 0 of 10; Attending and
completing tasks: 2 of 10; and Caring for himself: 1 of 10.) The ALJ did not ignore
evidence supporting claimant’s case. To the contrary, the ALJ’s findings were
supported by substantial evidence.
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.
DONE this 12th day of August, 2013.
United States District Judge
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