Cox v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 8/10/15. (MRR)

FILED
2015 Aug-11 AM 11:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GERIALEAN COX, o/b/o B.C.,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 2:14-cv-00461-SLB

MEMORANDUM OPINION
Plaintiff B.C., a minor child born in 2002, filed an application for supplemental
security income [“SSI”] by and through her mother, Gerialean Cox, on November 22, 2010.
Upon review of the record, the submissions of the parties, and the relevant law, the court is
of the opinion that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Plaintiff filed an application for SSI on November 22, 2010. (R. 146.)1 Her application
was denied by the Social Security Administration [“SSA”], (R. 99), and plaintiff
subsequently requested a hearing before an Administrative Law Judge [“ALJ”], which was
held on August 8, 2012, (R. 48). After the hearing, the ALJ found that plaintiff was not
disabled and denied plaintiff’s request for SSI on September 21, 2012. (R. 43.)

Reference to a document number, (“Doc.___”), refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as (“R.___”).
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On November 14, 2012, plaintiff petitioned the Appeals Council (“AC”) to review the
ALJ’s decision, (R. 19), and on January 15, 2014, the AC denied plaintiff’s request for
review, thereby rendering the ALJ’s decision the final decision of the Commissioner of
Social Security. (R. 1.) Following denial of review by the AC, plaintiff filed an appeal in this
court on March 17, 2014. (Doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court “is limited to
an inquiry into whether there is substantial evidence to support the findings of the
Commissioner, and whether the correct legal standards were applied.” Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions
of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that
of the [Commissioner]; rather the court must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)) (internal quotations and other citation omitted). “The
Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin, 894 F.2d at 1529; Allen v. Bowen, 816 F.2d 600,
602 (11th Cir. 1987)). “Substantial evidence is more than a scintilla and is such relevant

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evidence as a reasonable person would accept as adequate to support a conclusion.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius,
936 F.2d at 1145. “[N]o . . . presumption of validity attaches to the [Commissioner’s]
conclusions of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
A. THE THREE-STEP EVALUATION
The definition of child's SSI disability provides that a claimant under the age of
eighteen shall be considered disabled if the claimant 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). The Regulations
define the statutory standard of "marked and severe functional limitations" in terms of
"listing-level severity." 20 C.F.R. §§ 416.902, 416.906, 416.924(a), 416.926a(a); see also 20
C.F.R. pt. 404, subpt. P, app. 1 (the listings). The Commissioner has developed a specific
sequential evaluation process for determining whether a child claimant is disabled. 20 C.F.R.
§ 416.924. The specific steps in this evaluation process are as follows:

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1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” 20 C.F.R. § 416.924(b).2 If the claimant is engaged in
substantial gainful activity, the Commissioner will find that the claimant is not disabled,
regardless of the claimant’s medical condition or her age, education, and work experience.
20 C.F.R. § 416.924(b).
The ALJ found that plaintiff had not engaged in substantial gainful activity since
November 10, 2010, the application date.3 (R. 30.)

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The Regulations define “substantial gainful activity”:
(a) Substantial work activity. Substantial work activity is work activity
that involves doing significant physical or mental activities. Your work
may be substantial even if it is done on a part-time basis or if you do
less, get paid less, or have less responsibility than when you worked
before.
(b) Gainful work activity. Gainful work activity is work activity that
you do for pay or profit. Work activity is gainful if it is the kind of work
usually done for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like
taking care of yourself, household tasks, hobbies, therapy, school
attendance, club activities, or social programs to be substantial gainful
activity.
20 C.F.R. § 404.1572.

While plaintiff’s Application Summary for Supplemental Security Income states that
plaintiff filed an application for SSI on November 22, 2010, (R. 146), the ALJ states that
plaintiff filed her application on November 10, 2010, (R. 30). Nevertheless, this
discrepancy is not material to the court’s decision.
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2. Severe Impairments
Second, the Commissioner must determine whether the claimant has a medically
determinable impairment that is “severe” or a combination of impairments that is “severe.”
20 C.F.R. § 416.924(a). For an individual who has not attained the age of 18, a medically
determinable impairment or combination of impairments is not severe if it is a slight
abnormality or a combination of slight abnormalities that causes no more than minimal
functional limitations. 20 C.F.R. § 416.924(c). If the claimant does not have a severe
medically determinable impairment or combination of impairments, she is not disabled.
The ALJ determined that plaintiff had the following severe impairments: “asthma,
allergies, vitiligo, and molluscum contagiosum.” (R. 30.)
3. The Listings
If a child claimant is not working and has a severe impairment, the Commissioner
must determine if the child’s impairments meet or medically equal an impairment in the
listings. 20 C.F.R. § 416.924(a)-(d). If the child’s impairments do not meet or medically
equal a listed impairment, the Commissioner 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(d). The Commissioner considers
the child's functioning in terms of six domains: (1) acquiring and using information; (2)

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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(b)(1).
A child has a “marked” limitation in a domain when her 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 of the impairment(s) limit several
activities. 20 C.F.R. § 416.926a(e)(2). A child has an “extreme” limitation in a domain when
her impairment(s) interferes “very seriously” with the ability to independently initiate,
sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3).
The ALJ found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listing or that functionally equaled a listing. (R.
31.)
B. MS. COX’S CLAIMS
Plaintiff argues that (1) the ALJ failed to fully and fairly develop the record, and (2)
the AC erred in failing to remand this case for proper consideration of the opinion of Dr.
Rosalyn L. Morgan, plaintiff’s treating physician. (Doc. 11.) Upon reviewing the record and
the parties’ briefs, the court finds that the Commissioner’s decision is due to be affirmed.

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1. ALJ’s Duty to Develop the Record
Plaintiff argues the ALJ failed to fulfill his duty to fully and fairly develop the record.
(Doc. 11 at 6.) More specifically, plaintiff contends that the ALJ should have obtained the
opinion of a treating or examining physician. (Id. at 8.) Additionally, because plaintiff was
unrepresented at the hearing,4 she argues that the ALJ was under a special duty to develop
the record. (Id. at 7.)
“Even though Social Security courts are inquisitorial, not adversarial, in nature,
claimants must establish that they are eligible for benefits.” Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). “The administrative law judge has a duty to
develop the record where appropriate but is not required to order a consultative examination
as long as the record contains sufficient evidence for the administrative law judge to make
an informed decision.” Id. Additionally, even when a treating or examining physician submits
an RFC assessment, the assessment is not entitled to special deference because the RFC
determination is a finding reserved by the Commissioner. 20 C.F.R. § 416.927(d); see also
Bell v. Bowen, 796 F.2d 1350, 1353-54 (11th Cir. 1986) (“The regulation in 20 C.F.R.
§ 404.1527 provides that although a claimant’s physician may state he is ‘disabled’ or
‘unable to work’ the agency will nevertheless determine disability based upon the medical
findings and other evidence.”).

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Plaintiff’s attorney withdrew representation in March 2012. (R. 51.)
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The ALJ did not err in not further developing the record because the record contains
sufficient evidence supporting the ALJ’s disability determination. In a subsequent report by
Dr. Morgan, included in the record after the ALJ’s opinion was issued, Dr. Morgan opined
that plaintiff had marked limitations in three domains: (1) attending and completing tasks,
(2) moving about and manipulating objects, and (3) health and physical well-being. (R. 58990.) Substantial evidence supports the ALJ’s findings that plaintiff did not have marked
limitations in the three domains, later noted by Dr. Morgan. Though plaintiff does have
chronic asthma and various allergies, treatment notes show that medications taken in
conjunction with these conditions were often effective in controlling her symptoms. (See R.
432, 518, 521, 529-30, 569-573.) Defendant also points out that the overwhelming majority
of the treatment notes showed that plaintiff’s lungs were clear. (See Doc. 13 at 7 (citing R.
35, 432, 438, 474, 476, 478, 515, 518, 521, 523, 528-530, 565, 569-573, 581).)
The reports from third grade teacher Ms. Benn and examining physician Dr. Lowery
provide further evidence that plaintiff did not have marked limitations. Ms. Benn reported
that plaintiff had either “no problem” or only a “slight problem” in every domain. (R. 18894.) Dr. Lowery’s testing revealed no signs of ADHD and no problems with plaintiff’s
attention, concentration, or focus. (R. 480-482, 487.) Additionally, state agency consultants
Dr. Sullivan and Dr. Estock opined that plaintiff had less than marked limitations in
acquiring and using information, interacting and relating with others, attending and

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completing tasks, and health and physical well-being, and no limitations in the remaining two
domains. (R. 507-509.)
The court finds no reversible error regarding the ALJ’s decision not to further develop
the record, as the record provides substantial evidence that plaintiff was not disabled.
2. Evidence Submitted to the Appeals Council
Plaintiff argues that the AC should have remanded this case for proper consideration
of Dr. Morgan’s opinion. Dr. Morgan, plaintiff’s treating physician, completed a Broad
Functional Limitations report, in which she noted that plaintiff had marked limitations in
three domains: (1) attending and completing tasks, (2) moving about and manipulating
objects, and (3) health and physical well-being. (R. 589-90.) Relying on the evidence of
record, necessarily excluding Dr. Morgan’s Broad Functional Limitations report, which had
not yet been submitted, the ALJ found plaintiff had less than marked limitations in all
domains.
First, plaintiff alleges the AC failed to show that it adequately evaluated the new
evidence presented to the AC. (Doc. 11 at 10-11.) “The Appeals Council must consider new,
material, and chronologically relevant evidence and must review the case if the
administrative law judge's action, findings, or conclusion is contrary to the weight of the
evidence currently of record.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261

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(11th Cir. 2007) (quoting 20 C.F.R. § 404.970(b)).5 Here, the AC considered the new
evidence plaintiff presented but denied review of the ALJ’s decision stating, “In looking at
your case, we considered the reasons you disagree with the decision and the additional
evidence listed on the enclosed Order of Appeals Council. We considered whether the
Administrative Law Judge’s action, findings, or conclusions is contrary to the weight of the
evidence of record. We found that this information does not provide a basis for changing the
[ALJ’s] decision.” (R. 1-2.)
Plaintiff relies on Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980), and Flowers v.
Comm’r of Soc Sec., 441 F. App’x 735 (11th Cir. 2011), to argue that the AC was required
to explain its evaluation of the new evidence and that failure to do so presents grounds for
remand. The Epps plaintiff submitted new evidence to the AC, and the AC granted review
and affirmed the ALJ’s decision. Epps, 624 F.2d at 1273. The Eleventh Circuit found that
the AC had not adequately evaluated the new evidence, but rather had “perfunctorily adhered
to the decision of the hearing examiner.” Id. However, as the Commissioner notes, Epps is
not binding in the context of a denial of review because in Epps, the AC granted review of
the ALJ’s decision and affirmed. (Doc. 13 at 13.) “When a claimant properly presents new
evidence to the AC and it denies review, we essentially consider the claimant’s evidence
anew to determine whether ‘that new evidence renders the denial of benefits erroneous.’”

The language in 20 C.F.R. § 416.1470(b), applicable to SSI claims, is substantially
identical to the language in 20 C.F.R. § 404.970(b).
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Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 903 (11th Cir. 2011) (quoting Ingram, 496
F.3d at 1262). Because the district court must evaluate a plaintiff’s evidence anew, “the AC
is not required to provide a thorough explanation when denying review.” Id. The AC properly
considered Dr. Morgan’s report, and contrary to plaintiff’s argument, was not required to
thoroughly explain its rationale for denying review of the ALJ’s decision.
Further, the AC did not err in failing to remand plaintiff’s case based on the new
evidence incorporated into the record. The new evidence consists of Dr. Morgan’s opinion,
indicated by checkmarks, of plaintiff’s functional abilities in each of the six domains. (See
R. 589-90.) Unlike in Flowers, where the additional evidence submitted to the AC included
“an RFC assessment that was supported by significant clinical findings from three
examinations performed by [a treating physician] over a ten-month period,” 441 F. App’x
at 746, in this case, the new evidence consists only of checkmarks without an explanation as
to Dr. Morgan’s opinions. See Burgin, 420 F. App’x at 903 (finding that “the AC was free
to give little weight to the conclusory assertions contained in . . . questionnaires [completed
by health care providers] because they merely consisted of items checked on a survey, with
no supporting explanations”).
Additionally, Dr. Morgan’s treatment notes, which were submitted to the ALJ, largely
do not support her findings. For example, on February 22, 2011, Dr. Morgan noted that
plaintiff showed “no signs of ADHD,” yet Dr. Morgan opined that plaintiff had marked
limitations in attending and completing tasks. Furthermore, as defendant notes, the record

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lacks any evidence supporting the conclusion that plaintiff had a marked limitation in moving
about and manipulating objects. (Doc. 13 at 11-12.) The court finds that the AC properly
determined that the new evidence did not render the ALJ’s decision contrary to the weight
of all the evidence currently of record.
Plaintiff also argues that “remand is warranted under [42] U.S.C. § 405(g) when a
claimant establishe[s] that (1) there is new non-cumulative evidence; (2) the evidence is
material because it is relevant and probative and there is a reasonable possibility that it would
change the administrative results; and (3) there is good cause for failure to submit the
evidence at the administrative level.” (Doc. 11 at 12.) Plaintiff’s argument refers to a
sentence six remand, which applies only “when the district court learns of evidence not in
existence or available to the claimant at the time of the administrative proceeding that might
have changed the outcome of that proceeding.” Ingram v. Comm’r of Soc. Sec., 496 F.3d
1253, 1267 (11th Cir. 2007) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990))
(internal quotations omitted). Because plaintiff presented the new evidence at issue to the
AC, it was not “presented for the first time in the district court,” and thus, sentence six of 42
U.S.C. § 405(g) does not apply.
IV. CONCLUSION
Based on the reasons set forth above, the decision of the ALJ, as adopted by the
Commissioner, denying plaintiff’s claim for SSI is due to be affirmed. An Order affirming

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the decision of the Commissioner will be entered contemporaneously with this Memorandum
Opinion.
DONE this 10th day of August, 2015.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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