B B v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 9/21/12. (ASL)

FILED
2012 Sep-21 PM 01:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
B.B. by and through his mother, and )
next friend, Randi Hodges,
)
Plaintiff,
)
)
vs.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
Defendant.
)
)

CASE NO. CV:12-J-0210-J

MEMORANDUM OPINION
This matter is before the court on the record. This court has jurisdiction
pursuant to 42 U.S.C. § 405. The plaintiff is seeking reversal or remand of a final
decision of the Commissioner. All administrative remedies have been exhausted.
Procedural Background
The plaintiff, B. B., a minor, brings this action by and through his mother and
next friend, Randi Hodges, seeking judicial review of a final adverse decision of the
Commissioner of the Social Security Administration (“the Commissioner”) denying
his application for supplemental security income. Plaintiff’s mother protectively filed
for Child’s Supplemental Security Income benefits on October 29, 2008, alleging
disability onset beginning August 1, 2008 (R. 129, 166) due to problems related to

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Attention Deficit Hyperactivity Disorder (R. 170). The administrative law judge
(“ALJ”) denied plaintiff’s application on January 28, 2011 (R. 37–49). The Appeals
Council denied plaintiff’s request for review on September 20, 2011 (R. 16–18). The
Appeals Council set that decision aside to consider additional information, but again
denied plaintiff’s request for review on December 13, 2011 (R. 1–3). The ALJ’s
decision thus became the final order of the Commissioner. See 42 U.S.C. § 405(g).
This action for judicial review of the agency action followed (doc. 1). The court has
considered the entire record and whether the decision of the ALJ is supported by
substantial evidence. For the reasons set forth below, the decision of the
Commissioner is due to be AFFIRMED.
Factual Background
The plaintiff is a minor child, aged nine years at the time of the ALJ’s decision,
who was represented at the hearing before the ALJ by his mother (R. 56). Plaintiff has
been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and and a
mood disorder, and also has a history of anxiety related disorder (R. 62).
Plaintiff’s mother testified that the most problematic of these ailments is the
ADHD; she said that plaintiff has a “hard time” focusing in school, “listening,” and
remembering to perform basic tasks like washing his hair when bathing (R. 63).
Plaintiff’s grades also dropped precipitously (from an A/B student to “Ds and Fs”)

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(R. 63). Plaintiff’s medication was altered and he “had begun to have some
aggression on the new medication,” along with “involuntary jerking,” and plaintiff’s
mother had him admitted to the hospital to “make sure that he was not going to harm
anybody or himself” (R. 63–64). Plaintiff does not have “special needs” from a
cognitive or intellectual functioning standpoint, and does not have a low I.Q. or
mental retardation, but he does receive accommodation in the form of “special
resources and some attention” from his school for his ADHD,1 and his mother helps
him with his homework “every night” (R. 65, 68). She testified that plaintiff “has to
be walked through” his math homework and “can’t focus long enough to work all the
way through one problem” (R. 69).
With respect to plaintiff’s mood disorder, his mother testified that plaintiff is
“very tenderhearted” and that he “would just start crying and say that he felt all
alone,” would cry for “no reason,” and would withdraw from group activities at
school and had “a real hard time making friends” (R. 69–70). Plaintiff was
subsequently placed on Zoloft, an anti-depressant, and as of the hearing had been on
it “approximately a year and a half to two years” (R. 70). Plaintiff was previously on
Prozac, which his mother described as “horrible” (R. 70). Plaintiff has experienced
benefits from being on Zoloft, but “still has a lot of anxiety in large group settings

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See R. at 148–49 for a list of plaintiff’s accommodations.
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such as family events” and “still doesn’t have a lot of friends” (R. 70). Plaintiff gets
along well with his sister, his mother, and his stepfather (R. 73).
With respect to his general physical condition, plaintiff has a history of
seizures; his mother testified she “witnessed one full-blown epileptic seizure and
witnesses at school witnessed another one” (R. 71). His mother testified that both his
father and paternal grandmother have epilepsy (R. 71–72). Plaintiff was hospitalized
on one occasion for a seizure (R. 72). Otherwise, plaintiff’s mother testified that
plaintiff has no physical or musculoskeletal problems, and replied affirmatively when
asked if plaintiff could “do the kind of things that typically nine-year-olds would do”
(R. 73). She also testified that plaintiff could clean and dress himself without
difficulty “once you’ve told him multiple times” (R. 74). She noted that she had
planned to take him to a urologist because plaintiff was still wetting the bed at night
“about five days a week” and was also “having daytime wetting,” which she testified
doctors had failed to attribute to a specific cause (R. 74).
The record provides significant evidence from plaintiff’s teachers that he
requires ADHD medication and that such medication improves his performance. The
records indicate that plaintiff is eligible for Section 504 Services “due to impact of
ADHD on ability to perform in the school setting” (R. 205).2 Plaintiff “seems shy and

2

A list of the accommodations needed is provided at R. 207–08.
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unsure when answering multi-step questions. It’s almost as if he knows the answer
but has difficulty getting it out” (R. 179). Plaintiff’s work “takes him [a long] time to
complete” (R. 180). One teacher observed that after plaintiff takes medication, he “is
better behaved and more able to focus and function in the classroom,” but that
“[t]here is a significant difference when [plaintiff] doesn’t have his medication” and
that the questionnaire she filled out “would be completely different if I filled it out
using days when he isn’t medicated” (R. 184); see also R. at 283.3
The record also shows that plaintiff has been diagnosed with mood disorder
with anxiety (R. 257–59, 263–65, 275, 347). Plaintiff was initially prescribed four
medications, on December 28, 2008, and January 4, 2009, to manage his ADHD and
mood disorder: Desmopressin, 0.2 mg/daily;4 Remeron, 22.5 mg/twice daily;5
Metadate, 20 mg/daily; and Ritalin, 10 mg/daily6 (R. 172, 212, 251, 254). Plaintiff
underwent a psychiatric evaluation on September 30, 2008, and his Global

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As the ALJ observes (see R. at 42), the reports by plaintiff’s teachers are from plaintiff’s
second grade teachers; plaintiff had progressed to the fourth grade by the time of his hearing.
4

Desmopressin is a drug used to control bed-wetting. See
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a608010.html (last visited September 6,
2012).
5

Remeron is a brand name of Mirtazapine, a generic drug used to treat depression and
major depressive disorder. See PHYSICIANS’ DESK REFERENCE 124 (PDR Network, LLC, 2012).
6

Metadate and Ritalin are both forms of Methylphenidate, a generic drug used to treat
ADHD. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000606/ (last visited September
6, 2012).
5

Assessment of Functioning (“GAF”) was reported to be 55 (R. 275, 347); according
to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, a GAF of
between 50 and 60 represents moderate symptoms or moderate difficulty in social,
occupational, or school functioning.
On October 29, 2008, Dr. Robert Estock reviewed plaintiff’s medical records
when completing a Childhood Disability Evaluation Form for the state agency (R.
278–83) and found that plaintiff only had “Less Than Marked” limitations in one
area: Attending and Completing Tasks, and no limitations in other areas (R. 280). His
ultimate determination was that plaintiff exhibited an impairment or combination of
impairments that is “severe, but does not meet, medically equal, or functionally equal
the listings” (R.278).
On September 3, 2009, plaintiff underwent an EEG which “suggest[ed] the
diagnosis of focal epilepsy arising from left parietotemporal regions” (R. 341). On
September 18, 2009, plaintiff visited the emergency room complaining of a seizure
(R. 336–37). The attending nurse noted that plaintiff “does not appear acutely ill,”
and that plaintiff “[l]eft without treatment” and “[l]eft without being seen by
Physician . . . because [plaintiff and his family] felt it was taking too long” (R. 337).
Plaintiff again returned to the emergency room twice in one day on October 4, 2009,
complaining of seizures (R. 324–33). Plaintiff’s mother noted that plaintiff has been

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having an average of “one episode of seizure-like activity per week but had three
episodes” that day (R. 331). During the first visit, plaintiff was prescribed a small
course of Klonopin,7 discharged, and advised to follow up with a neurologist (R.
332–33). Plaintiff was subsequently re-admitted after exhibiting further symptoms,
including a staring spell and loss of bladder control (R. 326). Plaintiff underwent
further testing, was prescribed “‘High Alert’ Ativan”8 in addition to the Klonopin, and
was again discharged (R. 326–28).
On October 5, 2009, plaintiff visited Dr. Jan Mathisen, a pediatric neurologist
(R. 321–23). He underwent an EEG and was diagnosed with seizure disorder (R.
321–22). He was prescribed Keppra,9 at varying dosages over the subsequent weeks,
and discharged (R. 322). Plaintiff followed up with Dr. Mathisen on October 20,
2009, whose notes indicate that plaintiff “[l]eft without being seen due to long delay”
(R. 311–12). Dr. Mathisen noted she recommended plaintiff continue taking the
Keppra at varying dosages (R. 312).
On April 14, 2010, plaintiff visited the emergency room complaining of

7

Klonopin is a brand name of Clonazepam, a generic drug used to treat seizures. See
PHYSICIANS’ DESK REFERENCE 119 (PDR Network, LLC, 2012).
8

Ativan is a brand name of Lorazepam, a generic drug used to treat anxiety disorder and
seizures. See PHYSICIANS’ DESK REFERENCE 123 (PDR Network, LLC, 2012).
9

Keppra is a brand name of Levetiracetam, a generic drug used to treat seizures. See
PHYSICIANS’ DESK REFERENCE 123 (PDR Network, LLC, 2012).
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“[p]ossible focal seizure activity” (R. 302). Plaintiff’s mother said that plaintiff “has
been saying that he doesn’t feel right for the past 3 weeks” and reported plaintiff had
“several episodes of bladder incontinence, more frequent than normal and occuring
both day and night”; teacher reports also indicated that plaintiff “had been staring off
multiple times a day” (R. 303–04). The attending physician, Dr. Melissa Mannion,
observed that “[d]escriptions of staring off in to space and incontinence are consistent
with seizure[-]like activity” (R. 304). Plaintiff’s Keppra dosage was increased to 750
mg in the morning and 500 mg at night, and it was recommended that plaintiff follow
up with a neurologist in one week if symptoms persisted (R. 304–05).
During a reassessment of plaintiff by Dr. Jayne Ness on July 21, 2010,
plaintiff’s mother indicated that plaintiff’s seizures were “still present” (R. 296).
Plaintiff was still taking Keppra, 500 mg/twice daily, and no other substantive
changes were noted in his condition or treatment plan (R. 296–300).
On August 19, 2010, plaintiff visited the emergency room complaining of a
seizure (R. 395–99). Plaintiff’s mother stated that plaintiff “went for dental work
today and was giv[en] laughing gas and after they discharged him he had [a] seizure
while sitting in the waiting room” that lasted about 45 seconds (R. 396). Plaintiff’s
exam revealed no abnormalities or injury, and he was discharged with no changes in
medication or treatment recommendation (R. 397–99). Plaintiff underwent a 72 hour,

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22 minute EEG in the awake, drowsy, and sleeping states between August 23 and 26,
2010 (R. 384–94). The EEG was “entirely normal” (R. 386). No additional diagnoses
were provided (R. 390). Because plaintiff’s seizure activity had continued, Dr. Ness
switched plaintiff from the Keppra to Depakote, 750 mg/daily10 (R. 386–87). Dr. Ness
noted plaintiff “may also get some mood stabilization from Depakote, especially
compared to Keppra which is quite notorious for worsening irritability in children
with pre-existing behavioral problems” (R. 387). Plaintiff’s next follow-up was
scheduled for December 8, 2010 (R. 387).11
As of January 18, 2011, plaintiff was taking the following medications:
Clonidine, 0.1 mg/daily;12 Zoloft, 50 mg/daily;13 Depakote, 750 mg/daily; and
Adderal, 2.5 mg/twice daily14 (R. 402–03). Records indicate that plaintiff had visited
the Children’s Behavioral Health Department of Children’s Health Systems of
10

Depakote is a brand name of Valproic Acid, a generic drug used to treat seizures and
mood disorders. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000677/ (last visited
September 6, 2012). Plaintiff’s physician prescribed Depakote “[t]o control mood” (R. 402–03).
11

No records pertaining to this follow-up visit were submitted either to the ALJ or to the

court.
12

Clonidine is a generic drug used to treat a variety of conditions. See PHYSICIANS’ DESK
REFERENCE 119 (PDR Network, LLC, 2012). Plaintiff’s physician prescribed Clonidine “[t]o
treat behavioral problems” (R. 402–03).
13

Zoloft is a brand name of Sertraline, a generic drug used to treat a variety of mood
disorders. See PHYSICIANS’ DESK REFERENCE 126 (PDR Network, LLC, 2012).
14

Adderal is a combination of dextroamphetamine and amphetamine, and is used to
control symptoms of ADHD. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000166/
(last visited September 6, 2012).
9

Alabama from January 13 through 18, 2011 (R. 405).15 At that time, plaintiff was
discharged with instructions to return to school on January 19, 2011, with no
restrictions, and plaintiff’s parents were advised that plaintiff “would benefit from
continued medication monitoring focusing on behavior and mood symptoms” (R.
405–06).
Plaintiff underwent a neuropsychological evaluation on January 20, 2011, by
Daniel S. Marullo, Ph.D., a licensed pediatric psychologist (R. 407–418). The
clinical impression was that the results of the evaluation
indicates [plaintiff’s] core intellectual and cognitive skills
to be intact and within the average range of functioning.
[Plaintiff’s] scores do not indicate a specific learning
disorder at this time. His verbal learning and memory is
intact; although he demonstrates a passive learning style
and does not use efficient learning strategies. . . . At this
time, [plaintiff] continues to meet criteria for AttentionDeficit/Hyperactivity Disorder, Combined Type (314.01)
and Cognitive Disorder NOS (294.9) characterized by
executive deficits.
. . . In addition, [plaintiff’s] psychiatric functioning can
exacerbate his executive deficits and adversely affect his
academic performance despite adequate cognitive skills.
(R. 411–12). Dr. Marullo made five specific recommendations for plaintiff and his
teachers: plaintiff should continue with psychiatric follow-ups; plaintiff should work
with a child psychologist to “develop adequate coping skills and social skills”;

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Later records indicate he was hospitalized “to address aggressive behavior and poor
concentration” (R. 408).
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plaintiff would continue to benefit from 504 Modifications; plaintiff should receive
“basic classroom accommodations”; and plaintiff “will benefit from learning more
active strategies for learning, including how to manage a planner” (R. 412).16
Standard of Review
In a Social Security case, the initial burden of establishing disability is on the
claimant, who must prove that due to a mental or physical impairment he is unable
to perform his previous work. See Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.
1987). If the claimant is successful, the burden shifts to the Commissioner to prove
that the claimant can perform some other type of work existing in the national
economy. See id.
This court’s review of the factual findings in disability cases is limited to
determining whether the record contains substantial evidence to support the ALJ’s
findings and whether the correct legal standards were applied. See 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Bloodsworth v. Heckler,
703 F.2d 1233 (11th Cir. 1983). Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990). “Substantial evidence” is generally defined as “such relevant evidence as a
reasonable mind would accept as adequate to support a conclusion.” Richardson, 402
U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));

16

Some suggested accommodations and strategies pertaining to these final two
recommendations were listed in a handout appended to Dr. Marullo’s report; see R. at 413–18.
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see also Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Bloodsworth, 703 F.2d
at 1239.
This court also must be satisfied that the decision of the Commissioner is
grounded in the proper application of the appropriate legal standards. See McRoberts
v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Bridges v. Bowen, 815 F.2d 622, 624
(11th Cir. 1987); Davis v. Shalala, 985 F.2d 528 (11th Cir. 1993). No presumption of
correctness applies to the Commissioner’s conclusions of law, including the
determination of the proper standard to be applied in reviewing claims. See Brown v.
Sullivan, 92 F.2d 1233, 1235 (11th Cir. 1991); Corneliuis v. Sullivan, 936 F.2d 1143,
1145 (11th Cir. 1991). Furthermore, the Commissioner’s “failure to . . . provide the
reviewing court with sufficient reasoning for determining that the proper legal
analysis has been conducted mandates reversal.” Cornelius, 936 F.2d at 1145–46.
When making a disability determination, the Commissioner must, absent good cause
to the contrary, accord substantial or considerable weight to the treating physician’s
opinion as against the opinions of other physicians. See Lamb v. Bowen, 847 F.2d
698, 703 (11th Cir. 1988); Walker, 826 F.2d at 1000.
Legal Analysis
The guidelines and requirements for the finding of a disability for minor
children are more intricate that those applicable to adults. The ALJ’s detailed and

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thorough opinion clearly sets forth these guidelines (see R. at 37–40) and traces, in
minute detail with numerous specific references to the record, the reasoning behind
his opinion. Most significant, “[t]o functionally equal the listings” and qualify for
benefits, “the [social security] claimant’s impairment or combination of impairments
must result in ‘marked’ limitations in two domains of functioning or an ‘extreme’
limitation in one domain” (R. 38); see also 20 C.F.R. § 416.926a(d).
In this case, the ALJ found that plaintiff has the severe impairments of ADHD,
mood disorder with mixed anxiety features, and non-focal epileptic type-seizure vs.
syncope events (R. 40). He then denied plaintiff benefits, finding that “[n]o treating
or examining physician has opined that the claimant has impairments, singly or
combined, that medically equals a listed impairment” (R. 41). Scrutinizing plaintiff’s
medical history, the ALJ finds that plaintiff suffers“less than marked limitation” in
acquiring and using information, interacting and relating with others, and in his health
and physical well-being; “marked limitation” in attending and completing tasks; and
“no limitation” in moving about and manipulating objects and caring for himself (R.
43–48).
The court finds the ALJ’s opinion to be supported by substantial evidence,
drawn from the record, which the ALJ cites and references repeatedly throughout his
opinion. With respect to plaintiff’s ability to acquire and use information, the ALJ

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found that while plaintiff exhibited demonstrable difficulties in school because of his
ailments, “the evidence indicates that the combined effects of [plaintiff’s]
accommodations and . . . treatment medications is successful” (R. 44). Though
plaintiff does have a “less than marked limitation” interacting and relating with
others, the ALJ noted that “[w]hile the evidence reveals that the claimant’s mood
disorder results in his desire to isolate himself from groups and difficulty making new
friends, nevertheless, he has the functional ability to interact with others. . . . The
record contains no disciplinary actions from the claimant’s school due to behavior
issues [and] his most recent mental health treatment noted no behavior problems.” (R.
46). As for plaintiff’s “less than marked limitation” in health and physical well-being,
the ALJ observed that “the treatment records demonstrate that [plaintiff’s] new
medication has ostensibly begun to control this condition,” and specifically noted that
plaintiff’s prolonged ambulatory EEG “was entirely normal” (R. 42; see also R. at
386). Finally, the ALJ observed that plaintiff’s difficulties attending and completing
tasks were ameliorated by assistance from his parents and teachers, “the need to
prompt constantly [the plaintiff] to remain on task represents a significant limitation”
supporting the finding of a “marked” limitation in this area (R. 44–45).
Before the court in this case are multiple medical opinions concerning the
scope and severity of plaintiff’s ailments. As the ALJ properly observes, the evidence

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demonstrates that all of these ailments are ameliorated or mitigated through treatment
to the point that they do not form an impairment or combination of impairments that
result in either “marked” limitations in two domains of functioning or “extreme”
limitation in one domain of functioning, as required under the regulations. As noted
above, the sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal
standards were applied. See Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983).
The court has carefully reviewed the entire record in this case and is of the opinion
that the Commissioner’s decision is supported by substantial evidence and that proper
legal standards were applied in reaching that decision.
Conclusion
Based on the foregoing, the court is of the opinion that the decision by the ALJ
is well-supported by substantial evidence and that proper legal standards were applied
in reaching that decision. Therefore, the decision of the Commissioner must be
AFFIRMED. The court shall so rule by separate order.
DONE and ORDERED this the 21st day of September, 2012.

INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE

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