Billings v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 2/13/2014. (MSN)

FILED
2014 Feb-13 PM 01:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERNAVIAN BILLINGS
O/B/O
CLIMESHIA RANAE WELLS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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2:12-CV-2777-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Shernavian Billings (“Ms. Billings” or “Plaintiff”), on behalf of

her daughter, Climeshia R. Wells (“Claimant”), appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her
application for Child’s Supplemental Security Income (“SSI”). Ms. Billings timely
pursued and exhausted her administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Claimant was twelve years old at the time of the Administrative Law Judge’s
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(“ALJ’s”) decision, and was going into the seventh grade at Hueytown Middle
School. (Tr. at 55.) Ms. Billings believes that her daughter became disabled on May
30, 2008, due to Attention Deficit Hyperactivity Disorder (“ADHD”). (Tr. at 40.)
When evaluating the disability of a child, the regulations prescribe a three-step
sequential evaluation process. See 20 C.F.R. § 416.924(a). The first step requires a
determination of whether the child is “doing substantial gainful activity.” Id. If he
or she is, the child is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner will consider the child’s physical or mental impairments to see if there
is an impairment or combination of impairments that is “severe.” Id. If the
impairments are not severe, the analysis stops. Id. However, if the impairments are
severe, the Commissioner will look to see if one of the impairments meets or equals
an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Id. If the child has such
an impairment and it meets the durational requirement, the Commissioner will find
that he or she is disabled. Id.
In step number three of the sequential evaluation, the ALJ initially evaluates the
evidence and determines whether the child’s severe impairment or combination of
impairments found in step two meets or medically equals a listed impairment. If they
do not meet each of the criteria enumerated in the listings, the ALJ must decide

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whether the impairment or combination of impairments “functionally equals” the
severity of any listed impairment. See 20 C.F.R. § 416.924(d). When assessing
functional limitations, the Commissioner considers all the relevant factors, such as
how well the child can initiate and sustain activities, how much extra help he or she
requires, the effects of structures or supportive settings, how the child functions in
school, and the effects of medications or other treatments on the child’s health. 20
C.F.R. § 416.926a. To determine functional equivalence, the child’s limitations must
be evaluated in the following six functional areas, called domains: (1) acquiring and
using information; (2) attending and completing tasks; (3) interacting and relating
with others; (4) moving about and manipulating objects; (5) the ability to care for him,
or her self; and (6) health and physical well-being.

See 20 C.F.R. §

416.926a(b)(1)(i-vi). An impairment or combination of impairments functionally
equals a listed impairment if it results in either “marked” limitations in two of the
previously mentioned domains or an “extreme” limitation in one domain. See 20
C.F.R. § 416.926a(a).
Applying this sequential evaluation, the ALJ found that Claimant has not
engaged in substantial gainful activity since May 30, 2008, and that her ADHD is a
“severe” impairment according to 20 C.F.R. § 416.924(c). (Tr. at 30.) However, the

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ALJ determined that Claimant’s ADHD does not meet, medically equal, or
functionally equal the severity of any impairment listed in Appendix 1 to Subpart P.
(Tr. at 28, 30.) According to the ALJ, the testimony that Claimant experiences
disabling limitations is not fully credible in light of medical history, reports from
examining and treating physicians, statements from teachers, and clinical findings on
examination. (Tr. at 29, 30.) In the domains of acquiring and using information and
attending and completing tasks, the ALJ found that Claimant has less than a
“marked” limitation. (Tr. at 30.) In the domains of interacting and relating to others,
moving about and manipulating objects, caring for personal needs, and health and
physical well-being, the ALJ found that Claimant has no limitation. (Id.) Accordingly,
the ALJ determined that Claimant “has not been under a ‘disability,’ as defined by the
Social Security Act, since May 30, 2008, the date the application was filed.” (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d

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1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). Indeed, even if this Court finds that the evidence preponderates against
the Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).
III.

Discussion

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Plaintiff is pro se and did not file a brief in support of her appeal. However, this
Court shows leniency to pro se litigants. See Christiansen v. McRay, 380 F. App’x 862,
863 (11th Cir. 2010). Therefore, when reviewing the appeal of a pro se plaintiff, this
Court will thoroughly review the evidentiary record and the ALJ’s opinion to
determine whether the ALJ’s findings are supported by substantial evidence.
The ALJ reviewed Claimant’s subjective complaints, taking into account the
controlling case law dictating the standards used to assess subjective complaints of
pain and other symptoms, and found that the testimony that Claimant experiences
disabling limitations is not fully credible. (Tr. at 29-30.) The ALJ considered all
symptoms, opinion evidence, and additional relevant evidence, and found that
Claimant does not have an impairment or combination of impairments that meets,
medically equals, or functionally equals a listed impairment. (Id.) The ALJ ultimately
found that the record as a whole does not warrant a conclusion that Claimant is
disabled due to her ADHD. (Id.)
The Eleventh Circuit has established a three-part “pain standard” that applies
when a claimant attempts to establish disability through his or her own testimony of
pain or other subjective symptoms, which “requires (1) evidence of an underlying
medical condition and either (2) objective medical evidence that confirms the severity

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of the alleged pain arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably expected to give rise
to the alleged pain.” Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). Once an
impairment is established, the ALJ must consider “all evidence about the intensity,
persistence, and functionally limiting effects of pain or other symptoms . . . in addition
to the medical signs and laboratory findings in deciding the issue of disability.” Foote
v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). The claimant’s subjective testimony
supported by medical evidence that satisfies the standard is sufficient to support a
finding of disability. Brown, 921 F.2d at 1236. If the ALJ decides not to credit such
testimony, he must articulate reasons for doing so. Id. Credibility determinations by
the ALJ will not be disturbed unless unsupported by substantial evidence. Foote, 67
F.3d at 1562.
Plaintiff testified that her daughter has problems with completing tasks,
fidgeting, and frustration. (Tr. at 41, 53.) Plaintiff also testified that her daughter
experiences depression and mood swings. (Tr. at 41, 43.) Claimant testified that
without her medication, she has trouble focusing and is distracted by noise. (Tr. at 5758.) The ALJ considered the pain standard when evaluating Claimant and her
mother’s complaints of subjective symptoms, but found that in light of the medical

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history, reports from examining and treating physicians, statements from teachers, and
clinical findings on examination, the descriptions of Claimant’s impairments and
limitations are not fully credible. (Tr. at 28-29.) This Court finds that the ALJ
properly articulated the reasoning behind his credibility determination. See East v.
Barnhart, 197 F. App’x 899, 905 (11th Cir. 2006) (finding that the ALJ properly
applied the pain standard where the ALJ stated that she was required to “consider all
symptoms, including pain, and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence based
on the requirements of 20 CFR § 416.929 and Social Security Ruling 96-7p”).
Moreover, there is substantial evidence in the record to support the ALJ’s credibility
determination.
Claimant’s medical records provide support for the ALJ’s credibility
determination. In assessing the credibility of an individual’s statements, the ALJ
considers the type, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms. SSR 96-7p, 1996 WL 374186
( July 2, 1996). A medical condition that can be remedied by medication is not
disabling.1 Claimant’s Pediatrics West records from September 2008 through March

1

Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988). When a claimant cannot afford
medication or treatment, the condition continues to be disabling even though it can be remedied by
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2010 indicate that while taking Concerta, several of her symptoms of
inattention—poor attention span, poor sustained mental effort, and easily
distracted—had resolved. (Tr. at 215.) Additionally, several symptoms of
hyperactivity and impulsivity, including fidgeting, running about excessively, and
difficulty playing quietly, had also resolved. (Id.) All of her remaining symptoms had
improved. (Id.) Plaintiff also reported that her daughter’s mood swings, fidgeting, and
grades had improved with medication. (Tr. at 195.)
Furthermore, Claimant was given a mental examination on August 11, 2008, by
Dr. Cynthia A. Neville, a licensed clinical psychologist. Dr. Neville found that
Claimant had mild symptoms of ADHD, but appeared to possess age-appropriate
cognitive, communication, social, behavioral, and adaptive abilities. (Tr. at 198.) Dr.
Neville noted that Claimant was only mildly more fidgety than a typical 10-year-old,
that her levels of concentration and persistence were normal, and that she was
cooperative, motivated, and persisted well with challenging tasks. (Tr. at 197-98.) Dr.
Neville also indicated that Claimant possessed an age-appropriate amount of insight
into her reported problems. (Tr. at 197.)

medication. Id. Plaintiff indicated that at the time of filing the application for SSI, she was
unemployed and receiving food stamps (Tr. at 46.) However, Plaintiff has not indicated anywhere
in the record that she is unable to afford medication.
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Claimant’s school records and reports from her teachers provide additional
support for the ALJ’s credibility determination. In evaluating symptoms, the ALJ will
consider not only the claimant’s statements about her symptoms, but other statements
from other persons who can provide information about how the child’s symptoms
affect activities of daily living and functioning. See 20 C.F.R. § 416. 929(a). In May
2010, Claimant’s physical education teacher, Mrs. Glynis Whitfield-Moss, reported
that Claimant had no problem acquiring and using information, attending and
completing tasks, interacting and relating with others, moving about and manipulating
objects, and caring for herself. (Tr. at 218-24.) Claimant’s social studies and writing
teacher, Ms. Erin Ball, noted that Claimant had some difficulties interacting and
relating to others, but did not report any problems in any of the remaining domains,
and indicated that Claimant “seemed to be a generally happy student.”(Tr. at 22532.) Claimant’s report cards from May 2007 through May 2010 show that she
received mostly A’s and B’s from the third grade through the sixth grade. (Tr. at 23338.)
The required level of severity for ADHD is met where there are medically
documented findings of marked inattention, marked impulsiveness, and marked
hyperactivity, resulting in at least two of the appropriate age-group criteria in

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paragraph B2 of 20 C.F.R. pt. 404, subpt. P, app. 1, § 112.02. 20 C.F.R. pt. 404,
subpt. P, app. 1 § 112.11. The criteria listed in paragraph B2 include marked
impairment in age-appropriate cognitive and communicative function, marked
impairment in age-appropriate social function, marked impairment in age-appropriate
personal functioning, and marked difficulties in maintaining concentration,
persistence, or pace. 20 C.F.R. pt. 404, subpt. P, app. 1 § 112.02. In determining
whether a claimant’s impairment functionally equals a listed impairment, the ALJ
considers all of the evidence in the record about the claimant’s impairments and their
effects on the claimant, as well as opinion evidence from medical or psychological
consultants designated by the Commissioner. 20 C.F.R. § 416.926(c).
The ALJ determined that no examining or treating physician has indicated
findings equivalent in severity to the criteria of any listed impairment, and that
Plaintiff has not alleged that her daughter’s impairments meet any listed impairment.
(Tr. at 28.) The ALJ also found that Claimant’s impairment causes less than a marked
limitation in acquiring and using information, less than a marked limitation in
attending and completing tasks, and no limitation in any of the other domains. (Tr at
29-30.) Therefore, the ALJ found that Claimant’s impairment does not meet or
functionally equal a listed impairment. (Tr. at 28-30.) Upon review of Claimant’s

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medical records from Pediatrics West, Dr. Neville’s report, reports from Claimant’s
teachers, and Claimant’s report cards, discussed above, this Court finds that there is
substantial evidence to support these findings. Furthermore, the report of Dr. Samuel
J. Popkin, the non-examining state agency physician, is consistent with the record as
a whole, and indicates that Claimant does not have an impairment or combination of
impairments that functionally equals the listings. (Tr. at 199-204.); See 20 C.F.R. §
416.927(e) (“We consider all evidence from nonexamining sources to be opinion
evidence.”); 20 C.F.R. § 416.927(c)(4) (“[T]he more consistent an opinion is with
the record as a whole, the more weight we will give to that opinion.”). Accordingly,
the cumulative record supports the ALJ’s findings that Claimant has not been under
a disability, as defined by the Social Security Act, since the date the application was
filed.
IV.

Conclusion
Upon review of the administrative record, the Court finds the Commissioner’s

decision is supported by substantial evidence and in accord with the applicable law.
A separate order will be entered.

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Done this 13th day of February 2014.

L. Scott Coogler
United States District Judge
[160704]

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