Daniel v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 1/31/13. (ASL)

FILED
2013 Jan-31 PM 02:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAJUANNA DANIEL o/b/o J.K.D., )
Plaintiff,
vs.

)
)

CV 12-CV-2188-S

MICHAEL J. ASTRUE,
)
Commissioner of the Social Security
Administration,
)
Defendant.

)
MEMORANDUM OPINION

This matter is before the court on the record and the briefs of the parties. This
court has jurisdiction pursuant to 42 U.S.C. § 405. Plaintiff is seeking reversal or
remand of a final decision of the Commissioner. All administrative remedies have
been exhausted.
Procedural Background
J.K.D. (Plaintiff), a minor protectively filed an application for Supplemental
Security Income (SSI) benefits through his mother on December 10, 2009, alleging
disability from October 21, 2008 (R. 19, 112) based on seizures (R. 124) and
problems speaking. A hearing was requested on June 7, 2010 (R. 78) and a hearing
before an Administrative Law Judge (ALJ) was held on June 14, 2011 (R. 44). A
decision was issued by the ALJ on July 6, 2011 (R. 19-33). Finding that the medical

evidence established severe impairments of expressive/receptive language delay,
microcephaly1 and seizure disorder (R. 22) which do not meet or functionally equal
a Listing (R. 23, 24) but result in a marked limitation in acquiring and using
information (R. 27), and less than marked limitations in interacting and relating with
others (R. 29) and in health and physical well being (R. 32), the ALJ denied plaintiff
benefits under Title XVI of the Social Security Act from December 10, 2009, the date
of the SSI application (R. 32). The decision was appealed by and through counsel on
August 17, 2011 by filing a Request for Review of the ALJ decision (R. 14) and
subsequently submitting argument on December 21, 2011 (R. 157). The Appeals
Council issued a form denial of the request for review on April 16, 2012 (R. 1). This
action made the ALJ’s decision the final decision of the Commissioner of the Social
Security Administration (SSA), and plaintiff exhausted his administrative remedies.
Factual Background
Plaintiff was born on March 5, 2008 (R. 112). Plaintiff alleged disability due
to seizures (R. 124). Plaintiff has severe impairments as determined by the ALJ of
expressive/receptive language delay, microcephaly and seizure disorder (R. 22).

1
Microcephaly is abnormal smallness of the head; applied to a skull with a capacity below
1350 ml. Stedmans Medical Dictionary microcephaly (27th ed. 2000).

2

Plaintiff was first seen at Children’s Health System in Birmingham, Alabama
for febrile2 seizures on February 9, 2009 (R. 163-165). On October 27, 2010, plaintiff
was seen by Dr. Stephanie Keller at Children’s Health System for evaluation of
microcephaly and “tremor-like” spells (R. 168). Dr. Keller referred plaintiff for an
Electroencephalography (EEG) (R. 169). On November 3, 2009, an EEG was
performed (R. 167). The EEG findings were consistent with primary generalized
epilepsy of partial onset with rapid secondary generalization (R. 167)). Plaintiff was
seen again on February 3, 2010 complaining of seizures (R. 224).
Plaintiff was evaluated by Sonya D. Whitaker, Speech-Language Pathologist
on February 2, 2010, when plaintiff was approximately 23 months old (R. 213-215).
Ms. Whitaker administered a Preschool Language Scale- 4th Edition3 (PLS-4) to
assess plaintiff’s receptive and expressive language skills (R. 214). Plaintiff received
a score on the PLS-4 that placed his expressive communication in the 1st percentile
and his total language score in the 2nd percentile (Id.). Plaintiff’s scores gave him an
age equivalency of 1 year for total language and 0.11 year for expressive
communication (Id.). Ms. Whitaker was unable to evaluate plaintiff’s articulation,
2

Febrile seizures are those denoting or relating to fever. Stedmans Medical Dictionary
febrile (27th ed. 2000).
3

This is a measure of young children's receptive and expressive language.
http://www.pearsonassessments.com/HAIWEB/Cultures/en-us/Productdetail.htm?Pid=015-8659
-406 (January 29, 2013).
3

fluency, voice/resonance, and oral motor skills due to lack of language skills (R. 214215). Ms. Whitaker found that plaintiff presented with a receptive and expressive
language impairment and recommended speech-language therapy (R. 215).
Plaintiff’s initial evaluation by the Alabama Early Intervention System was
completed on March 15, 2010 (R. 350-353). Plaintiff was identified as having
cognitive, speech, adaptive and social developmental delays of 25% or greater. The
evaluation assessed plaintiff’s communication skills “through observation, informal
and formal testing, including the Preschool Language Scale-4 (PLS-4)” administered
by Amy Moore (R. 367). This assessment found that plaintiff is “diagnosed with a
severe receptive-profound expressive language delay” (R. 369). The results of the
PLS-4 showed that plaintiff’s overall receptive/expressive language equivalency was
6 months (R. 351, 368). Plaintiff received speech therapy as part of the early
intervention program (R. 295-299, 305-321).
After participating in an early intervention program for approximately 12
months, plaintiff was found eligible by Bessemer City Schools for special education
services (R. 322-349). Plaintiff was administered the Battelle Developmental
Inventory4 2nd (BDI-2) as part of this assessment (R. 341, 349). The BDI-2 indicated

4
Screening for developmental delay in children from 1 to 8 years of age. 2 Attorneys
Medical Deskbook § 18:12.

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a severe delay in the areas of cognitive, communication and social emotional (R.
341). Plaintiff’s total BDI-2 score placed him in the 0.2 percentile (R. 349). Due to
cognitive and communication delay, the plaintiff was provided services through an
IEP from April 7, 2011, to May 28, 2011 (R. 341). Plaintiff has continued to
experience difficulty with expressive language skills and therefore found eligible to
continue in special education services (R. 388-392).
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.
5

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));
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 Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987); Davis v. Shalala, 985 F.2d 528, 531
(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, 921 F.2d 1233, 1235-36 (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. See Lamb v. Bowen, 847
F.2d 698, 703 (11th Cir.1988); Walker, 826 F.2d at 1000.

6

Legal Analysis
The ALJ found that plaintiff has the following severe impairments:
expressive/receptive language delay, microcephaly, and seizure disorder. See 20
C.F.R. § 416.924(c). The ALJ then found that the claimant does not have an
impairment or combination of impairments that functionally equals the criteria of any
impairment included in the Listing of Impairments. See 20 C.F.R. §§ 416.924(d).
In determining whether an impairment or combination of impairments
functionally equals the listings, the Administrative Law Judge must assess the
plaintiff’s 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 yourself; and (6) health and
physical well-being. 20 C.F.R. § 416.926a(g)-(e). In making this assessment, the
Administrative Law Judge must compare how appropriately, effectively and
independently the plaintiff performs activities compared to the performance of other
children of the same age who do not have impairments. To functionally equal the
listings, the plaintiff’s impairment or combination of 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)&(d).

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In assessing whether the plaintiff has “marked” or “extreme” limitations, the
Administrative Law Judge must consider the functional limitations from all medically
determinable impairments, including any impairments that are not severe. 20 C.F.R.
§ 416.926a(a). The Administrative Law Judge must consider the interactive and
cumulative effects of the plaintiff’s impairment or multiple impairments in any
affected domain. 20 C.F.R. § 416.926a(c).
The ALJ found that plaintiff has a marked limitation in acquiring and using
information and a less than marked limitation in interacting and relating to others and
in health and physical well-being (R. 27, 29). In making these findings the ALJ
afforded significant weight to the childhood disability evaluation prepared by the
State agency medical consultant, Robert Heilpern, M.D (R. 26, 261-267). Dr.
Heilpern’s report is dated March 24, 2010, and finds that plaintiff’s impairment or
combination of impairments is severe, but does not meet, medically equal, or
functionally equal the listings. Dr. Heilpern found that plaintiff has a marked
limitation in acquiring and using information and a less than marked limitation in
interacting and relating to others and in health and physical well-being (R. 263-264).
Dr. Heilpern’s explanation for the marked limitation in acquiring and using
information states “third party notes difficulties in this area. Child is 23 months old.
Language impairment” (R. 263). A review of the record shows that the only third
8

parties to have evaluated plaintiffs language impairment at the time of Dr. Heilpern’s
report were Sonya D. Whitaker, Speech-Language Pathologist (R. 213-215) and Amy
Moore. (R. 366-368).
The ALJ afforded good weight to the opinion of Sonya D. Whitaker, SpeechLanguage Pathologist (R. 26, 213-215). Ms. Whitaker’s report was prepared February
2, 2010, when plaintiff was approximately 23 months old (R. 213). Ms. Whitaker
administered a Preschool Language Scale- 4th Edition (PLS-4) to access plaintiff’s
receptive and expressive language skills (R. 214). Plaintiff received a score on the
PLS-4 that placed his expressive communication in the 1st percentile and his total
language score in the 2nd percentile (Id.). Plaintiff’s scores gave him an age
equivalency of 1 year for total language and 0.11 year for expressive communication
(Id.). Ms. Whitaker’s notes state that plaintiff “was unable to babble two syllables
together, use one word, produce a variety of consonant sounds, imitate words, use
five words, use vocalizations and gestures to request, produce different C-V
combinations, babble short syllable strings with adult inflection, or name objects in
pictures” (Id.).
The ALJ’s opinion does not mention or assign weight to the testing by Amy
Moore for the report prepared for the Alabama Early Intervention Program (R. 350).

9

Ms. Moore’s assessment found that plaintiff suffered from “a severe receptiveprofound expressive language delay” (R. 369). The results of the PLS-4, performed
by Ms. Moore, showed that plaintiff’s overall receptive/expressive language
equivalency was 6 months (R. 368). Plaintiff’s expressive language age equivalency
was found to be 5 months (Id.).
The ALJ does not mention or assign weight to a Battelle Developmental
Inventory prepared as part of the Bessemer City Schools evaluation for special
education services (R. 341, 349). The BDI-2 was prepared January 28, 2010 (R. 349).
The BDI-2 total score placed plaintiff in the 0.2 percentile (Id). The IEP documents
that the results of plaintiff’s BDI-2 indicate a “severe delay in the areas of cognitive,
communication and social emotional” (R. 341).
Social Security regulation 20 C.F.R. § 416.926a(e)(2) explains that a child has
a “marked limitation” in a domain when his impairment(s) “interferes seriously” with
the ability to independently initiate, sustain, or complete activities. A child’s
day-to-day functioning may be seriously limited when the impairment(s) limits only
one activity or when the interactive and cumulative effects ofthe impairment(s) limit
several activities. The regulations also explain that a “marked” limitation also means:
(ii) If you have not attained age 3, we will generally find that you have
a “marked” limitation if you are functioning at a level that is more than
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one-half but not more than two-thirds of your chronological age when
there are no standard scores from standardized tests in your case record.
(iii) If you are a child of any age (birth to the attainment of age 18), we
will find that you have a “marked” limitation when you have a valid
score that is two standard deviations or more below the mean, but less
than three standard deviations, on a comprehensive standardized test
designed to measure ability or functioning in that domain, and your
day-to-day functioning in domain-related activities is consistent with
that score.
20 C.F.R. § 416.926a(e)(2).
Social Security regulation 20 C.F.R. § 416.926a(e)(3) explains that a child has
an “extreme” limitation in a domain when his impairment(s) interferes “very
seriously” with his ability to independently initiate, sustain, or complete activities. A
child’s day-to-day functioning may be very seriously limited when his impairment(s)
limits only one activity or when the interactive and cumulative effects of his
impairments(s) limit several activities. The regulations also explain that an “extreme”
limitation also means:
(ii) If you have not attained age 3, we will generally find that you have
an “extreme” limitation if you are functioning at a level that is one-half
of your chronological age or less when there are no standard scores from
standardized tests in your case record.
(iii) If you are a child of any age (birth to the attainment of age 18), we
will find that you have an “extreme” limitation when you have a valid
score that is three standard deviations or more below the mean on a
comprehensive standardized test designed to measure ability or

11

functioning in that domain, and your day-to-day functioning in
domain-related activities is consistent with that score.
20 C.F.R. § 416.926a(e)(3)
One of the PLS-4 tests administered to plaintiff shows that plaintiff’s language
functioning was at 6 months for total language when he was 23 months old. Under
20 C.F.R. § 416.926a(e)(3) this is a severe limitation because plaintiff was
functioning at less than one-half his chronological age. Further, the BDI-2 evaluation
of plaintiff placed plaintiff in the 0.2 percentile, an extremely low score (R. 349).
Although the pertinent regulations place an emphasis on standardized tests and age
equivalency, the ALJ failed to take either of these standardized tests into
consideration. Fontanez v. Barnhart, 195 F. Supp. 2d 1333, 1348 (M.D. Fla. 2002)
(citing Borgens v. Halter, 164 F. Supp. 2d 1309, 1312 (M.D. Fla. 2001) (“An ALJ
who fails to determine the significance of a child's obviously low scores on
standardized testing, acts contrary to the . . . regulations and to his basic duty to fully
develop the record.”).
Because the ALJ failed to evaluate the standardized tests provided as part of
plaintiff’s record, the ALJ did not provide sufficient reasoning for determining that
the proper legal analysis has been conducted. The ALJ’s opinion is therefore against
the weight of the evidence and the ALJ failed to apply the proper legal standards.
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Accordingly, the decision of the Commissioner is hereby REVERSED and
REMANDED to the Commissioner for further evaluation of the record in accordance
with this opinion.
DONE and ORDERED this 31st day of January 2013.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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