Biffle v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/4/2016. (AVC)

FILED
2016 Jan-04 AM 09:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CHAPRINA BIFFLE,

)

As Mother and Next Friend of T.H. a minor )
child
)
Plaintiff,

)
)
)
)
)
)

vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,

Civil Action Number
2:15-cv-00146-AKK

Defendant.

MEMORANDUM OPINION
Chaprina Biffle (“Biffle”) brings this action on behalf of her son, T.H. (“the
Claimant”), pursuant to Section 205(g) of the Social Security Act (“the Act”), 42
U.S.C. §405(g), seeking review of the final adverse decision of the Commissioner
of the Social Security Administration (“SSA”). This court finds that the
Administrative Law Judge’s (“ALJ”) decision—which has become the decision of
the Commissioner—is supported by substantial evidence. Therefore, for the
reasons elaborated herein, the court will AFFIRM the decision denying benefits.

I.

Procedural History

Biffle protectively filed an application on behalf of her minor child, T.H., for
the child’s Supplemental Security Income (“SSI”), alleging a disability onset date
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of January 9, 2010, due to Sickle Cell Disease and Asthma. (R. 97, 114). After the
SSA denied T.H.’s claim, Biffle requested a hearing before an ALJ. (R. 62–64).
The ALJ subsequently denied T.H.’s claim, (R. 12–26), which became the final
decision of the Commissioner when the Appeals Council refused to grant review.
(R. 1–6). Biffle then filed this action for judicial review pursuant to 42 U.S.C.
§1383(c)(3). Doc. 1.

II.

Standard of Review

The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g)
mandates that the Commissioner’s “factual findings are conclusive if supported by
‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The district court may not reconsider the facts, reevaluate the evidence, or
substitute its judgment for that of the Commissioner; instead, it must review the
final decision as a whole and determine if the decision is “reasonable and
supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)). Substantial evidence falls somewhere between
a scintilla and a preponderance of evidence; “[i]t is such relevant evidence as a
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reasonable person would accept as adequate to support a conclusion.” Martin, 849
F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If
supported by substantial evidence, the court must affirm the Commissioner’s
factual findings even if the preponderance of the evidence is against the
Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges its judicial review is limited in scope, it notes that the review “does
not yield automatic affirmance.” Lamb, 847 F.2d at 7.
III.

Statutory and Regulatory Framework

A claimant under the age of eighteen is considered disabled if she has a
medically determinable physical or mental impairment which results in marked
and severe functional limitations, and which is expected to result in death, or which
has lasted or is 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 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 three-step process requires a child to show: (1) that he is not
working; (2) that he has a “severe” impairment or combination of impairments;
and (3) that his impairment or combination of impairments is of listing-level
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severity, that is, the impairments meet, medically equal, or functionally equal the
severity of an impairment in the listings. 20 C.F.R. § 416.924. An impairment
medically equals a listing “if it is at least equal in severity and duration to the
criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). If the claimant’s
impairments do not meet or medically equal a listed impairment, the ALJ must
then determine if the child’s impairments are, instead, functionally equivalent in
severity. 20 C.F.R. §§ 416.924(d), 416.926a(a). For the child’s impairments to
functionally equal a listed impairment, they 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 ALJ considers the child’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 himself; and (6) health and physical well-being. 20 C.F.R. §
416.926a(b)(1)(I)-(vi). If the impairments do not satisfy the duration requirements,
or do not meet, medically equal, or functionally equal one of the listings, a finding
of not disabled is reached and the claim is denied. See 20 C.F.R. § 416.924(d)(2).

IV.

The ALJ’s Decision

In performing the three step analysis, initially, the ALJ determined that T.H. has
not engaged in any substantial gainful activity since his alleged disability onset
date. (R. 18). Next, in satisfaction of Step Two, the ALJ found that T.H. suffers
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from the severe impairments of “sickle cell disease, asthma, chronic otitis media,
obstructive sleep apnea, and eczema.” Id. Finally, at Step Three, the ALJ
concluded that T.H.’s impairments did not meet, medically equal, or functionally
equal, any of the listed impairments and, therefore, found that T.H. was not
disabled. (R. 18–19).

V.

Analysis

The court now turns to Biffle’s contentions that the ALJ erred by failing to find
T.H. disabled pursuant to Social Security regulations, and that the Appeals Council
erred by failing to properly consider or review the evidence presented on appeal.
Doc. 1 at 2. The court addresses each contention in turn.

A. The ALJ properly found T.H’s impairments did not equal listing 103.03B or
416.926b(3)
Biffle admits that T.H. does not have an impairment that meets listing 103.03B,
but contends that T.H. is disabled based on 20 C.F.R. § 416.926b(3) as a result of
numerous hospitalizations that she asserts show the equivalent of 12 asthma attacks
in an 18 month period. Doc. 16 at 2–3. To meet listing 103.03B, T.H. must have
asthma with:
[a]ttacks (as defined in 3.00C), in spite of prescribed treatment and
requiring physician intervention, occurring at least once every 2 months
or at least six times a year. Each inpatient hospitalization for longer than
24 hours for control of asthma counts as two attacks, and an evaluation
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period of at least 12 consecutive months must be used to determine the
frequency of attacks.
20 C.F.R. § Pt. 404, Subpt. P, App. 1. Listing 3.00C defines “attacks” as
“prolonged symptomatic episodes lasting one or more days and requiring intensive
treatment, such as intravenous bronchodilator or antibiotic administration or
prolonged inhalational bronchodilator therapy in a hospital, emergency room or
equivalent setting.” Id.
T.H. bears the burden of showing that his impairments meet a listed
impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). Moreover,
T.H.’s impairments must “meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in
original). In order for there to be a functional equivalence, T.H. must demonstrate
that he has marked limitations 1 in two or more domains, or extreme limitations in
one domain. Douglas ex rel. Patterson v. Comm’r of Soc. Sec., Case No. 04-16235,
2005 WL 3116634 (11th Cir. Nov. 23, 2005). Where, as here, T.H. is alleging
disability based on a combination of impairments, if an additional impairment is
not severe as defined in 20 C.F.R. § 416.924(a), the Commissioner “will not find
that the additional impairment(s) imposes an additional and significant limitation
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“A ‘marked’ limitation is defined as a limitation that ‘interferes seriously with
[the] ability to independently initiate, sustain, or complete activities,’ and is ‘more
than moderate.’” Henry v. Barnhart, 156 F. App’x 171, 174 (11th Cir. 2005).
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of function.” Gibbs ex rel. Barris v. Barnhart, 130 Fed. App’x 426 (11th Cir.
2005). Moreover, if T.H. has a medical condition that can be reasonably remedied
by surgery, treatment, or medication, that condition is not disabling. Dawkins v.
Bowen, 848 F.2d 1211, 1213 (11th Cir.1988).
Turning now to the specific contentions, Biffle relies primarily on numerous
hospital visits in the eighteen months preceding the ALJ’s decision that she
contends demonstrate the severity of T.H.’s impairments. (R. 44, 136). However,
none of those hospital visits were for an actual sickle cell or asthma attack. (R. 45,
166–213). In fact, some included visits to replace tubes in T.H.’s ears for his
chronic otitis, (R. 40), one of which resulted in an overnight stay prior to having
tubes put in his ears, (R. 314). The visits also included trips to the ER when T.H.
had a fever and overnight admissions to keep the fever down, (R. 43), and involved
T.H. receiving “fluids” and general monitoring, (R. 340–412). Significantly,
although Biffle presumably felt some anxiety during these overnight
hospitalizations of T.H., none of these admissions were related to T.H.’s sickle cell
or his asthma. (R. 36, 45). As such, these hospitalizations are not a factor in the
determination of disability under listing 103.03B, which states unequivocally that
the “inpatient hospitalization” must be “for control of asthma.” 20 C.F.R. § Pt. 404,
Subpt. P, App. 1. Therefore, the court finds no error in the ALJ’s determination
related to the inpatient hospitalizations.
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Next, in addition to evaluating the medical record, 20 C.F.R. §§ 416.926a(b)
and (c) require the ALJ to also evaluate the “whole child” in making findings
regarding functional equivalents. 20 C.F.R. 416.926a. The ALJ did so in this case.
First, in finding that T.H. did not suffer from a marked or extreme limitation in any
of the six functional equivalence domains, (R. 19), the ALJ relied on Biffle’s
evaluations of T.H., which show that T.H. has no functional limitations as a result
of sickle cell or asthma. (R. 107). The ALJ also relied on the evaluation completed
by Biffle’s mother, who appears to be T.H.’s primary caregiver, which also stated
T.H. was normal across all categories. (R. 121–127). In fact, the only response that
indicated a physical limitation involved the possibility that T.H. may not be able to
play sports at some point in the future. Id. Second, with respect to the ALJ’s own
evaluation of the record, the only areas in which she noted “less than marked
limitations” were in T.H.’s ability to care for himself due to the possibility of a
fever leading to a sickle cell attack, (R. 25), and health and physical well-being due
to T.H.’s need to take daily medication to control his asthma and sickle cell, (R.
26). Finally, as the ALJ noted, in evaluating T.H. in the six functional
equivalences, there is no evidence in the record from either T.H.’s caregivers or
physicians to demonstrate any marked limitations. (R. 22–26).
Ultimately, Biffle bears the burden of presenting medical evidence showing that
T.H.’s impairments meet or equal a listing. Zebley, 493 U.S. at 530. Biffle has
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failed to make this showing. In fact, the evidence shows that T.H. has not suffered
the requisite asthma attacks to meet listing 103.03B and his functional equivalence
evaluations fail to demonstrate the marked limitations required under 20 C.F.R.
§ 416.926a(a). Therefore, the substantial evidence supports the ALJ’s decision.

B. The ALJ relied upon substantial evidence in making that determination
Biffle challenges next the ALJ’s review of the medical record and takes
issue with the ALJ’s failure to engage in a piece by piece review of T.H.’s medical
record. Doc. 1. However, “there is no rigid requirement that the [ALJ] specifically
refer to every piece of evidence in his decision so long as our Court can conclude
[that] the [ALJ] considered [the claimant’s] medical condition as a whole.” Parks
ex rel. D.P. v. Comm’r Soc. Sec. Admin., 783 F.3d 847, 852 (11th Cir. 2015).
Relevant here, it is clear from the ALJ’s opinion that she, in fact, considered the
medical condition as a whole.
Specifically, the ALJ found that T.H.’s impairments of sickle cell disease,
asthma, chronic otitis media, obstructive sleep apnea, and eczema did not
medically equal or functionally equal listing-level severity. (R. 18). The ALJ
reached this conclusion after first looking at T.H.’s impairments and his
combination of impairments to see if any of the impairments medically equaled the
severity of one of the listed impairments. (R. 18). The ALJ noted that “most [of
T.H.’s hospitalizations] were due to fevers and not asthma,” (R. 18), and that while
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T.H. “has been hospitalized in the past for fever only (with only one emergency
room visit specifically reporting leg pain), but the fever never resulted in a full
sickle cell crisis,” (R. 20). This finding is consistent with Biffle’s admission during
the hearing that T.H. did not have a single impairment that was severe enough to
meet a disability listing. (R. 45).
Second the ALJ next looked at “all relevant evidence in the case record” and
evaluated “the whole child in making findings regarding functional equivalence.”
(R. 18–19). In doing so, the ALJ pointed out that at T.H.’s follow up visits for his
sickle-cell, “his parents consistently reported no pain, dactylitis, or sickle cell
crisis” and that “no physician has ever reported that [T.H.] is disabled or that he
has any limitations.” (R. 20).
Finally, the ALJ rejected Biffle’s assertions of limitations due to sickle cell or
asthma as not credible due to the lack of objective medical evidence, as well as the
answers Biffle and Biffle’s mother provided on the functional assessment
evaluations. (R. 19). As the ALJ noted, T.H.’s grandmother described T.H. in her
assessment as a normally functioning child with no marked limitations in any
single category, (R. 121–127), and that Biffle’s own assessment only listed one
functional limitation—i.e., that T.H. “can not [sic] run and play too much because
he will [get] out of breath,” (R. 107). The ALJ even pointed out inconsistencies
between Biffle’s contentions on the one hand that T.H. “was unable to do certain
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things, such as crawling, standing alone, walking alone, etc.,” and her report “that
he was able to drink from a cup, feed himself, undress himself, and brush his
teeth.” (R. 24). Based on the record, the court concludes that the ALJ clearly
articulated her reasons for finding Biffle not credible. See Wilson v. Barnhart, 284
F.3d 1219, 1226 (11th Cir. 2002) (noting that the “ALJ made a reasonable decision
to reject [the claimant’s] subjective testimony, articulating in detail, the contrary
evidence as his reasons for doing so.”).
The ALJ properly concluded that, none of T.H.’s conditions rise to the severity
level required for a disability finding. Substantial evidence supports the ALJ’s
decision and, as such, the decision is due to be affirmed.

C. The Appeals Council properly reviewed the evidence
Biffle contends also that the Appeals Council failed to properly review the
evidence. Doc. 1 at 2. While Biffle is generally correct that the Appeals Council
“must review the case if the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently in record,” Gichuru
v. Astrue, No. 2:11-cv-04203-RDP, 2013 WL 1178723 (N.D. Ala., March 20,
2013), and that the Appeals Council must adequately evaluate any new evidence in
making its decision, Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980), there is
no evidence here that the Appeals Council failed to carry out its duties. To the
contrary, consistent with Ingram v. Comm’r of Social Sec. Admin., 496 F.3d 1253
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(11th Cir. 2007), the Appeals Council stated that it “considered the reasons [Biffle]
disagree[d] with the decision” but was denying her request for review because it
found no reason under its rules to review the ALJ’s decision. (R. 1). This language
complies with the standard set in Ingram, especially where, as here, Biffle
introduced no new evidence and simply challenged the ALJ’s findings. As a result,
the Appeals Council only reviewed the ALJ’s decision for mistakes of law or
findings that were contrary to the evidence in the record. See generally, Ingram,
496 F.3d 1253. In light of the court’s finding that the ALJ relied on substantial
evidence in rendering her decision, see, supra, at 11, the court also finds no error in
the decision of the Appeals Council to deny review.

VI.

Conclusion

Based on the foregoing, the court concludes that the ALJ’s determination that
T.H. is not disabled is supported by substantial evidence, and that the ALJ applied
proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 4th day of January, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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