Moore O/B/O O.S.G. v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 9/29/2014. (PSM)

FILED
2014 Sep-29 AM 09:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHAREE MOORE o/b/o O.S.G.,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 2:13-cv-01370-JEO

MEMORANDUM OPINION
Plaintiff Sharee Moore, on behalf of her minor daughter O.S.G., brings this action
pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting Commissioner
of Social Security (“Commissioner”) denying her claim for Supplemental Security Income
(“SSI”) benefits. (Doc. 1).1 The case has been assigned to the undersigned United States
Magistrate Judge pursuant to this court’s general order of reference dated January 14, 2013. The
parties have consented to the jurisdiction of this court for disposition of the matter. (Doc. 9).
See 28 U.S.C. § 636(c), FED. R. CIV. P. 73(a). Upon review of the record and the relevant law,
the undersigned finds that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
On September21, 2010, Plaintiff protectively filed an application for SSI on behalf of
O.S.G., alleging disability beginning August 1, 2010, due to a hearing impairment. (R. 121-26,

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References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the docket sheet in
the court’s Case Management/Electronic Case Files (CM/ECF) system.

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144).2 The claim was denied initially. (R. 68-69). Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on May 15, 2012. (R. 51-67). Following the
hearing, the ALJ found that O.S.G. is not disabled. (R. 47).
Plaintiff requested the Appeals Council to review the ALJ’s decision. (R. 25-26). The
Appeals Council denied the request for review on May 20, 2013. (R. 1-5). On that date, the
ALJ’s decision became the final decision of the Commissioner. Plaintiff then filed this action for
judicial review under 42 U.S.C. § 405(g). (Doc. 1).
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of the court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390, 91 S. Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th
Cir. 2002). This court must “scrutinize the record as a whole to determine if the decision reached
is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a
preponderance.” Id.
The court must uphold factual findings that are supported by substantial evidence.
However, it reviews the ALJ’s legal conclusions de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala,

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References to “R.__” are to the page number of the administrative record, which is
encompassed within Docs. 7-1 through 7-11.
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985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the
law, or if the ALJ fails to provide the court with sufficient reasoning for determining the proper
legal analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
An individual under the age of 18 is considered disabled if she “has a medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). Social
Security regulations provide a three-step sequential evaluation process for determining whether a
child is disabled.3 20 C.F.R. § 416.924(a). The Commissioner must determine in sequence (1)
whether the child is engaged in substantial gainful activity; (2) whether the child has an
impairment or combination of impairments that is severe; and (3) whether the child has an
impairment that meets, medically equals, or functionally equals the Listing of Impairments.4 Id.;
see also Gibbs v. Barnhart, 130 F. App’x 426, 428-29 (11th Cir. 2005) (citing 20 C.F.R. §
416.924(a)).
An impairment is “medically equal” to a listed impairment if it is “at least equal in
severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 416.926(a). An
impairment is “functionally equal” to a listed impairment if it is “of listing-level severity; i.e., it

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The regulations promulgated under the Social Security Act are listed in 20 C.F.R. Parts 400 to

499.
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The Listing of Impairments (also referred to as the “Listings”) is located at 20 C.F.R. pt. 404,
subpt. P, app. 1.

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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 regulations identify six domains of functioning to be
considered in determining whether a child’s impairment is functionally equal to a listed
impairment: (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). A “marked”
limitation in a domain of functioning is found when an impairment “seriously” interferes with a
child’s ability to independently initiate, sustain, or complete activities. 20 C.F.R. §
416.926a(e)(2)(i). An “extreme” limitation in a domain is found when an impairment “very
seriously” interferes with a child’s ability to independently initiate, sustain, or complete
activities. 20 C.F.R. § 416.926a(e)(3)(i).
IV. FINDINGS OF THE ALJ
At the time of the ALJ’s decision, O.S.G. was four years old. (R. 56). The ALJ found
that O.S.G. has the severe impairments of bilateral sensorineural hearing loss and a mixed
receptive and expressive language delay, but that her impairments do not meet or medically equal
the criteria of Listing 102.10, the listing for children’s hearing loss not treated with cochlear
implantation. (R. 33-34). The ALJ further found that O.S.G.’s impairments do not functionally
equal a listing. (R. 35). In making this finding, the ALJ specifically found that O.S.G. has a less
than marked limitation in acquiring and using information; a less than marked limitation in
attending and completing tasks; a marked limitation in interacting and relating with others; a less
than marked limitation in moving about and manipulating objects; a less than marked limitation
in her ability to care for herself; and a less than marked limitation in her health and physical well4

being. (R. 38-47). The ALJ thus concluded that O.S.G. is not disabled. (R. 47).
V. ANALYSIS
Plaintiff’s primary argument is that the ALJ erred in failing to analyze O.S.G.’s
impairments from the standpoint of “medical equivalence.” (Doc. 12 at 5-12). As part of this
challenge, she asserts that the ALJ erred in reciting the criteria for Listing 102.10(B), the hearing
loss section pertaining to children age five and older. (Id. at 6-7). Plaintiff further argues that the
ALJ erred in failing to obtain a medical expert to assist him in making the medical equivalence
determination and the functional equivalence determination. (Id. at 12-15). Finally, she argues
that the ALJ erred in rejecting opinions from a treating physician and from one of O.S.G.’s
teachers. (Id. at 15). After carefully reviewing the evidence in the record, the court concludes
that none of Plaintiffs’ arguments warrants reversal of the ALJ’s decision.
A.

Medical Equivalence
The ALJ found that O.S.G. “does not have an impairment that meets or medically equals

the criteria of any impairment included in the Listing of Impairments,” noting that “[n]o
examining or treating medical source has reported that the claimant has an impairment that
medically equals the criteria of a listed impairment.” (R. 34). Plaintiff does not dispute that
O.S.G. does not have an impairment that meets the criteria of a listed impairment, but challenges
the ALJ’s finding with respect to medical equivalence. She argues that the ALJ did not cite the
correct section of Listing 102.10 and “circumvent[ed] an analysis of the impairments in
combination and from the standpoint of medical equivalence.” (Doc. 12 at 6).
Plaintiff is correct that the ALJ cited the wrong section of Listing 102.10. O.S.G. was
four years old at the time of the ALJ’s decision. (R. 56) The ALJ cited the criteria of Listing
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102.10(B), which applies to hearing loss not treated with cochlear implantation for children from
age five to the attainment of age eighteen. (R. 34). He should have cited the criterion of Listing
102.10(A), the listing for children from birth to the attainment of age five.
Although the ALJ erred in citing the wrong section of Listing 102.10, Plaintiff has failed
to demonstrate how the error was harmful. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
(“the burden of showing that an error is harmful normally falls upon the party attacking the
agency’s determination”). To meet Listing 102.10(A), a child must have an average air
conduction hearing threshold of 50 decibels or greater in the better ear. 20 C.F.R. pt. 404, subpt.
P, app. 1, § 102.10(A). Plaintiff makes no argument that O.S.G.’s hearing loss meets this
criterion and points to no medical findings of equal medical significance. See 20 C.F.R. §
416.926(b)(1)(ii) (“We will find that your impairment is medically equivalent to [a] listing if you
have other findings related to your impairment that are at least of equal medical significance to
the required criteria.”). Indeed, when O.S.G.’s unaided hearing was tested on August 16, 2010
(just over two weeks after her alleged disability onset date), her test results revealed a speech
threshold awareness of approximately 25 decibels in her right ear and 25 decibels in her left ear.
(R. 267-75). After tubes were implanted in her ears, test results revealed hearing loss that was
just “mild to moderate” with a speech threshold awareness of 20 decibels in her right ear and 15
decibels in her left ear. (R. 245-50). O.S.G. was then prescribed hearing aids; test results
indicated that her aided hearing “meets targets.” (R. 241-44). Her most recent test results, from
November 2011, reflect an unaided speech threshold awareness of 20 decibels in each ear and an
aided speech threshold awareness of 10 decibels in her better-hearing ear. (R. 354-55). All of
these medical findings support the conclusion that O.S.G.’s hearing loss does not meet or
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medically equal Listing 102.10(A). Plaintiff cites no evidence to the contrary.
Plaintiff devotes more than a third of her brief to quoting the preamble to Listing 102.10
regarding audiometric testing, the “speech or language” criteria of Listing 102.10(B)(3), and the
considerations used to evaluate impairments that do not meet a listing, but offers no
corresponding analysis or citation to any evidence that would support a finding of medical
equivalence. (Doc. 12 at 7-12). In this regard, the court would note that Plaintiff has identified
no deficiencies in the audiometric testing procedures used to assess O.S.G.’s hearing loss. The
court would further note that the “speech or language” criteria of Listing 102.10(B)(3) do not
apply here; as Plaintiff herself has pointed out, Listing 102.10(B) pertains to children age five
and older.
In sum, notwithstanding the ALJ’s failure to cite the correct section of Listing 102.10,
his finding that O.S.G.’s impairments do not meet or medically equal that listing is supported by
substantial evidence. Plaintiff has identified no evidence in the record that would support a
contrary finding.
B.

Medical Expert Opinion
Plaintiff also argues that the ALJ erred in failing to obtain the services of a medical

expert to assist him in applying the medical equivalence standard and to assist him in assessing
the “functional domains.” (Doc. 12 at 12, 15). No such medical expert was required or
necessary.
With respect to determining medical equivalence, the regulations provide that the ALJ
will consider “all evidence in your case record about your impairment(s) and its effect on you ...
[and will] also consider the opinion given by one or more medical or psychological consultants
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designated by the Commissioner.” 20 C.F.R. § 416.926(c). Social Security Ruling 96-6p
clarifies the Commissioner’s policy that “the judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence on the evidence before the
administrative law judge ... must be received into the record as expert opinion and given
appropriate weight.” SSR 96-6p, 1996 WL 374180, *3 (July 2, 1996); see also Wilkinson v.
Bowen, 847 F.2d 660, 663 (11th Cir. 1987) (“When considering medical equivalence, the
Secretary [now the Commissioner] must consider the medical opinion of one or more designated
physicians on an advisory basis.”).
Here, the record contains a Childhood Disability Evaluation Form completed by Dr.
Richard Walker, a state agency consulting physician engaged to review the evidence of record
and to opine on O.S.G.’s impairment. (R. 293-98). Dr. Wilson determined that O.S.G.’s hearing
loss is a “Greater Than Not severe impairment” and that the impairment does not meet or
medically equal a listing. (R. 292-93, 298). The ALJ gave Dr. Wilson’s opinion “significant
weight,” noting that Dr. Wilson “provided specific reasons for his opinion indicating that it was
based on the evidence of record, including careful consideration of the objective medical
evidence and the claimant’s allegations regarding symptoms and limitations.” (R. 37). As
previously noted, the ALJ also observed that no treating or examining medical source had
reported that O.S.G. has an impairment that medically equals a listed impairment (R. 34), which
is consistent with Dr. Wilson’s opinion. The ALJ properly considered Dr. Wilson’s opinion and
gave it appropriate weight, and there was no need for him to engage another medical expert on
the issue of medical equivalence. See Wilkinson, 847 F.2d at 663 (noting that the ALJ could rely
on the opinion of a non-examining medical consultant in deciding medical equivalence).
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With respect to functional equivalence, “the responsibility for deciding functional
equivalence rests with the administrative law judge” at the hearing level. 20 C.F.R. §416.926a(n).
As with all disability determinations, “where the ALJ’s findings are supported by evidence
sufficient for a decision, the ALJ is not obligated to seek additional medical testimony.” Logan v.
Colvin, 2014 WL 3889926, *6 (N.D. Ala. Aug. 6, 2014) (citing Wilson v. Apfel, 179 F.3d 1276,
1278 (11th Cir. 1999)).
Here, the ALJ found that O.S.G. has a “marked” limitation in “interacting and relating
with others” and a “less than marked” limitation in all other functional domains. (R. 38-47).
These findings are supported by substantial evidence, which is thoroughly analyzed in the ALJ’s
written decision. In general, the ALJ observed that O.S.G.’s functional abilities have improved
since she started wearing hearing aids and started speech and language therapy sessions, as
reflected in her speech therapists’ records and her mother’s testimony. (See R. 37, 308-50, 383412). In addition, the ALJ’s findings are consistent with the opinion of Dr. Walker, who
assessed the same functional limitations as the ALJ and concluded that O.S.G. does not have an
impairment that functionally equals a listing. (R. 293, 295-98). In light of the substantial
evidence supporting the ALJ’s findings with respect to ALJ’s functional limitations, the ALJ did
not err in failing to seek additional expert assistance on the issue of functional equivalence.
C.

The Opinions of O.S.G.’s Pediatrician and Teacher
Plaintiff’s final argument is that the ALJ erred in “rejecting” the opinions of Dr. Beatrice

Moore, O.S.G.’s pediatrician, and Ms. Ebony Grant-Bruce, one of O.S.G.’s teachers in the
“toddler 2” class. (Doc. 12 at 13-15). Dr. Moore completed a “Child Development and
Functioning Rating” form drafted by O.S.G.’s attorneys and, with no explanation or comment,
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assessed O.S.G. as having “marked” limitations in all six of the functional domains. (R. 299300). Ms. Grant-Bruce completed a “Teacher Questionnaire” and assessed O.S.G. as having
problems (of varying degree) in each of the six domains except for “moving about and
manipulating objects.”5 (R. 157-64). The court finds that the ALJ did not err in his consideration
of either opinion.
The Eleventh Circuit has held that the opinion of a treating physician such as Dr. Moore
“must be given substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Lewis v. Callahan, 125 F. 3d 1436, 1449 (11th Cir. 1997). “Good cause” exists when “the: (1)
treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing Lewis).
“When electing to disregard the opinion of a treating physician, the ALJ must clearly articulate
its reasons.” Id.
Here, the ALJ gave Dr. Moore’s opinion “little weight”6 and clearly articulated his
reasons for doing so:
[T]he opinion of Beatrice Moore, M.D., the claimant’s pediatrician,
is inconsistent with the overall objective evidence and it is
inconsistent with her own treatment records. Dr. Moore opined that
the claimant had marked limitations in all six domains [of

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Concerning the domain of “health and well-being,” Ms. Grant-Brice noted that O.S.G. did not
frequently miss school due to illness, but commented that her hearing and speech impairment “affected
her learning as far as responding to asked questions.” (R. 163).
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The ALJ mistakenly stated that “the opinion of Dr. Glover as set out in Exhibit 7” was given
little weight. (R. 39) (emphasis added). It is clear, however, that he was referring to the opinion of Dr.
Moore; Exhibit 7 is the Child Disability and Functioning Rating form completed by Dr. Moore. (See R.
299-300).

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functioning]. Her treatment records show that other than the
claimant’s hearing and speech problems and some occasional
episodes of sinusitis, tinea capitis, and cellulitis, she was generally
well (Exhibits 8F and 14F). Those records do not document marked
limitations in the areas of attending and completing tasks, moving
about and manipulating objects, and caring for herself as reported by
Dr. Moore.
(R. 38). The ALJ also expressed his specific reasons for discounting Dr. Moore’s opinion in his
thorough analysis of the evidence relevant to each of the six functional domains. (See R. 39-47).
The court is more than satisfied that there was good cause to discount Dr. Moore’s opinion and
that the ALJ’s decision to give the opinion little weight is supported by substantial evidence.
Unlike Dr. Moore, Ms. Grant-Bruce is not a medical doctor. Therefore, she is not
considered an “acceptable medical source” under the regulations and her opinion “cannot
establish the existence of a medically determinable impairment.” SSR 06-03p, 2006 WL
2329939, *2 (Aug. 9, 2006); see 20 C.F.R. § 416.913(a). However, information from nonmedical sources such as Ms. Grant-Bruce “may provide insight into the severity of the
impairment[s] and how it affects the individual’s ability to function.” SSR 06-03p, 2006 WL
2329939 at *2.
Contrary to Plaintiff’s argument, the ALJ did not “reject” Ms. Grant-Bruce’s opinion. He
discussed her opinion in detail in his assessment of O.S.G.’s functioning in the various domains
and placed her observations in the context of the other evidence in the record. (R. 39-44). The
court would also note that Ms. Grant-Bruce’s opinion was based solely on her observations of
O.S.G. when she was in the “toddler 2 class” and that the records from O.S.G.’s speech and
language therapy sessions reflect improvement in her functional abilities since then. (See. R. 30850, 383-412). In sum, the court is satisfied that the ALJ gave proper consideration to Ms. Grant11

Bruce’s opinion.
VI. CONCLUSION
For the reasons set forth above, the undersigned finds that the decision of the
Commissioner is supported by substantial evidence and is due to be AFFIRMED. An
appropriate order will be entered separately.
DONE, this the 29th day of September, 2014.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

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