Parker v. Social Security Administration, Commissioner
MEMORANDUM OF OPINION. Signed by Judge Virginia Emerson Hopkins on 9/28/2012. (JLC)
2012 Sep-28 AM 09:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
PAMELA PARKER O/B.O A.L.P.,
MICHAEL J. ASTRUE,
) Case No.: 4:11-CV-2826-VEH
MEMORANDUM OF OPINION
Plaintiff Pamela Parker (hereinafter “Ms. Parker”), on behalf of her minor
son A.L.P., brings this action pursuant to Title XVI of the Social Security Act
(“the Act”). She seeks review of a final adverse decision of the Commissioner of
the Social Security Administration (hereinafter “Commissioner” or “Secretary”),
who denied her son’s application for Supplemental Security Income (“SSI”). Ms.
Parker timely pursued and exhausted her administrative remedies available before
the Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g) of
In general, the legal standards applied are the same regardless of whether a claimant
seeks Disability Insurance Benefits (“DIB”) or SSI under the Act. However, separate, parallel
FACTUAL AND PROCEDURAL HISTORY
A.L.P. was a 10-year-old male and had completed the third grade at the time
of the 2008 hearing before the administrative law judge (“ALJ”). (R. at 41.) Ms.
Parker claims that her son became disabled in March 2008, due to mild mental
retardation, pervasive developmental disorder, and depressive disorder. (R. at 30.)
Ms. Parker filed an application for SSI on behalf of A.L.P. on March 30,
2006, alleging an onset date of September 1, 2005. (R. at 54, 71–73, 91.) The
Commissioner initially denied this claim on July 13, 2007. (R. at 14.) Ms. Parker
filed a timely written request for a hearing before an ALJ, which was held on June
5, 2008. (R. at 25.) The ALJ again denied A.L.P.’s claim on September 24, 2008.
(R. at 23.) Ms. Parker timely sought review with the Appeals Council. (R. at 24.)
The Appeals Council declined to review the ALJ’s decision. (R. at 1.) Thus, the
Commissioner’s decision became final on December 3, 2009. (Id.)
Ms. Parker brought this suit on November 21, 2011. (Doc. 1.) This court
has carefully considered the record and affirms the decision of the Commissioner.
STANDARD OF REVIEW
statutes and regulations exist for DIB and SSI claims. Therefore, citations in this opinion that
may relate to DIB claims should be considered to refer to the appropriate parallel SSI related
authority. The same applies to citations of statutes or regulations found in quoted court
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of this 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 (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). This court will determine that the ALJ’s opinion is supported by
substantial evidence if it finds “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Id. Substantial evidence is
“more than a scintilla, but less than a preponderance.” Id. Factual findings that
are supported by substantial evidence must be upheld by the court. The ALJ’s
legal conclusions, however, are reviewed de novo, because no presumption of
validity attaches to the ALJ’s determination of the proper legal standards to be
applied. See Davis v. Shalala, 985 F.2d 528 (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 that the proper legal analysis has been
conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.2d
1143, 1145–46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for SSI and establish an entitlement for a period of disability, a
child must be disabled as defined by the Act and the Regulations promulgated
thereunder.2 The law defines children’s “disability” as “a medically determinable
physical or mental impairment or combination of impairments that causes marked
and severe functional limitations, and that can be expected to cause death or that
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); 20 C.F.R. § 416.906.
In determining whether a child is disabled, the Regulations provide a threestep process. 20 C.F.R. § 416.924. The Commissioner must determine in
whether the child is engaged in “substantial gainful activity;”3
whether the child has a “medically determinable impairment” that is
“severe” in that it causes “more than minimal functional limitations;”4
whether the child’s impairment or combination of impairments meets,
medically equals, or functionally equals an impairment listed in the
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, as current through September 20, 2012.
Id. at § 416.924(a).
Id. at § 416.924(c).
appendix to the regulations (the “Listings of Impairments”).5
See Henry v. Barnhart, 156 F. App’x 171, 173 (11th Cir. 2005) (unpublished)
(citing 20 C.F.R. § 416.924(a)); accord Wilson v. Apfel, 179 F.3d 1276, 1277 n.1
(11th Cir. 1999).
A medically determinable impairment “must result from anatomical,
physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 416.908. It
“must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not merely by a claimant’s statement of symptoms.” Id.
The Commissioner will find that a medically determinable impairment (or
combination of impairments) meets a listed impairment if it “satisfies all the
criteria of the listing.” 20 C.F.R. § 416.925. The Commissioner will find that a
medically determinable impairment medically equals a listed impairment using the
procedures described in 20 C.F.R. § 416.926.
The Commissioner will find a medically determinable impairment (or
combination of impairments) functionally equals a listed impairment if a child’s
Id. at § 416.924(d); 20 C.F.R. pt. 404, Subpart P, app.1 (listing and describing
impairment “results in ‘marked’6 limitations in two domains of functioning or an
‘extreme’7 limitation in one domain.” 20 C.F.R. § 416.926a(a). The Regulations
establish six domains of functioning: (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(b)(1)(i-iv). The Regulations recognize
that an impairment or combination of impairments may have an effect in more
than one domain; thus, the Commissioner evaluates a child’s impairment in any
domain in which it causes limitations. 20 C.F.R. § 416.926a(c).
If an impairment (or combination of impairments) does not meet the
duration requirements, or does not meet, medically equal, or functionally equal
one of the listings in the regulations, the Commissioner will find that the child is
not disabled. See 20 C.F.R. § 416.924(d)(2).
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At Step One, the ALJ found that A.L.P. has not engaged in any substantial
A “marked” limitation in a domain of functioning is found when a child’s impairment
seriously interferes with his ability to “independently initiate, sustain, or complete activities.” 20
C.F.R. § 416.926a(e)(2)(i).
An “extreme” limitation in a domain of functioning is found when a child’s impairment
very seriously interferes with his ability to “independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(3)(i).
gainful activity. (R. at 17.) At Step Two, the ALJ found that A.L.P. has one
severe impairment—mild mental retardation. (Id.) The ALJ noted that A.L.P. was
diagnosed with and received treatment for pervasive developmental disorder and
depressive disorder in 2008. (Id.) However, the ALJ did not find that these
impairments are severe.
At Step Three, the ALJ found that A.L.P.’s impairments do not meet or
medically equal Listing 112.05D. (Id.) The ALJ assumed that A.L.P.’s IQ test
score of 65 is valid. However, the ALJ found “no evidence of another physical or
mental impairment that imposes an additional and significant limitation of
function.” (R. at 18.) The ALJ declined to consider A.L.P.’s pervasive
developmental disorder or depressive disorder because there was no evidence
these conditions met the twelve (12) month duration requirement. (Id.)
The ALJ then found that A.L.P.’s impairments do not functionally equal a
listed impairment. Ms. Parker does not allege functional limitations in three
domains (Moving about and Manipulating Objects, Caring for Yourself, and
Health and Physical Well-being). The ALJ found that A.L.P. has a “less than
marked limitation” in the Acquiring and Using Information domain and the
Attending and Completing Tasks domain. (R. at 19–20.) The ALJ then found that
A.L.P. has “no limitation” in the Interacting and Relating to Others domain. (R. at
21.) Because A.L.P. showed only “less than marked” limitations in two of the six
functional domains, the ALJ found that his impairments do not functionally equal
a listed impairment. The ALJ found, therefore, that A.L.P. is not disabled under
the Act. (R. at 23.)
The court can reverse a finding of the Commissioner if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether
substantial evidence supports each essential administrative finding.” Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615
F.2d 1103, 1106 (5th Cir. 1980)).8
Ms. Parker makes three arguments in this appeal: (1) the ALJ erred in
concluding that A.L.P. does not meet Listing 112.05D; (2) the ALJ improperly
substituted his opinion for that of a medical expert; and (3) the ALJ improperly
disregarded or ignored record evidence which is contrary to his decision. Because
the ALJ applied the correct legal standards and because his decision is supported
by substantial evidence, these argument fail.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
The ALJ’s Did Not Err in Finding that A.L.P. Does Not Meet
To meet a listing, a claimant must satisfy each criteria of the listing. See
Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891 (1990) (“For a claimant
to show that his impairment matches a listing, it must meet all of the specified
medical criteria. An impairment that manifests only some of those criteria, no
matter how severely, does not qualify.”) (citation omitted). The claimant bears the
burden of showing that his impairment (or combination of impairments) meets a
listed impairment. See Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662
(11th Cir. 1987).
Listing 112.05D “Mental Retardation” requires that a claimant:
has “significantly subaverage general intellectual functioning with
deficits in adaptive functioning;”
has a “valid, performance, or full scale IQ of 60 through 70;” and
has “a physical or other mental impairment imposing an additional
and significant limitation of function.”
20 C.F.R. pt. 404, Subpart P, App. 1 (hereinafter “Listing 112.05D”). The third
element is the only one at issue here. (See R. at 18.)
The ALJ found that A.L.P. does not have “a physical or other mental
impairment which impos[es] an additional and significant limitation of function.”
Listing 112.05D. Substantial record evidence supports this conclusion. The ALJ
noted that A.L.P.’s medical records from Gadsden Pediatrics—which encompass
the years 2002 to 2008—made “no mention of any mental health complaints.” (R.
at 18, 109–120, 136–150.) In fact these records frequently noted that A.L.P. was
well-appearing, well-developed, and cooperative. (R. at 113, 114, 116, 118, 119,
136, 139, 144, 146.) No objective record evidence indicates that A.L.P. had any
serious disciplinary problems while in school. (R. at 17, 21, 155.) And, the record
shows that A.L.P has never been tested for behavioral problems. (R. at 94.)
In May 2008, the C.E.D. Mental Health Center diagnosed A.L.P. with
pervasive developmental disorder and depressive disorder NOS. (R. at 161.) Ms.
Parker contends the ALJ overlooked these conditions. Contrary to Ms. Parker’s
contention, the ALJ was clearly aware of them. (R. at 18) (noting the treating
records from the C.E.D. Mental Health Center). The ALJ found that these
conditions are not severe impairments. (R. at 17.) Alternatively, the ALJ found
that these conditions do not satisfy the one year duration requirement. See 20
C.F.R. § 416.909; R. at 18.
The record supports these conclusions. First, the record contains no
evidence that these impairments lasted or could be expected to last for longer than
twelve (12) months. The treatment records from C.E.D. Mental Health Center are
only for a three month period (April through June of 2008). (R. at 153–64.) And,
these records are silent as to how long these conditions might last. Ms. Parker
contends the ALJ should have recontacted A.L.P.’s physicians to find out if his
pervasive development disorder and depressive disorder would last more than
twelve (12) months. This argument fails. The Regulations require an ALJ to
contact a medical source only when the records contain a conflict or ambiguity.
See Social Security Ruling 96-5p, 1996 WL 374183, at *2. Here, the treatment
records are not ambiguous, simply silent.
Furthermore, even if the ALJ erred in finding that these conditions do not
satisfy the twelve (12) month duration requirement, this error was harmless as the
record contains little to no evidence showing that these conditions imposed “an
additional and significant limitation of function.” See Diorio v. Heckler, 721 F.2d
726, 728 (11th Cir. 1983) (dismissing an ALJ’s error as harmless). A.L.P.’s
treatment records show his doctor prescribed Geodon for his pervasive
developmental disorder and depressive disorder. (R. at 161.) Shortly thereafter,
A.L.P. apparently ceased treatment. This cessation in treatment suggests either
that A.L.P’s pervasive developmental disorder and depressive disorder were wellcontrolled by medication or that these conditions did not significantly limit
Ms. Parker contends that treatment notes from the C.E.D. Mental Health
Center show that A.L.P.’s pervasive developmental disorder and depressive
disorder significantly limited his functioning. For instance, she contends the notes
show A.L.P. frequently fought while in public school, has difficulty understanding
simple instructions, makes noises throughout the day for no reason, has
nightmares four times a week, beat his mother’s cat to death, has difficulty making
friends, and has experienced auditory hallucinations. (See R. at 156.) Upon closer
inspection, these notes represent only Ms. Parker’s statements to A.L.P.’s doctor.
(See R. at 156) (“Mom states consumer seems to have a problem . . . .”). Thus,
these statements are not a medical opinion, nor are they objectively verified by the
record. The ALJ specifically discounted as uncorroborated Ms. Parker’s
contention that A.L.P. fought frequently while in school. (R. at 21.) Additionally,
the objective evidence in the record shows that A.L.P. was cooperative, appeared
well developed, and presented to his doctors with a normal mood. (R. at 113, 114,
116, 118, 119, 123 136, 139, 144, 146, 162, 164.)
Ms. Parker bears the burden of showing that A.L.P. meets all the criteria of
a listed impairment. Given the objective record evidence and the lack of evidence
in the record showing that A.L.P.’s pervasive developmental disorder and
depressive disorder impose “additional and significant limitations of function,”
the court cannot conclude the Commissioner erred in finding that A.L.P does not
meet Listing 112.05D.
The ALJ Did Not Substitute His Opinion for that of a Treating
The ALJ found that A.L.P. has “less than marked” limitation in two
functional domains (the Acquiring and Using Information and the Attending and
Completing Tasks domains) and “no limitation” in one functional domain (the
Relating to Others domain).9 Ms. Parker contends these findings show the ALJ
substituted his opinion for the opinions of A.L.P.’s treating physicians. Pl.’s Br. at
9. Again, she points to her statements in A.L.P.’s treatment notes from the C.E.D.
Mental Health Center. (R. at 156.) As noted above, Ms. Parker’s statements are
not a medical opinion. Moreover, Ms. Parker has not identified the specific
medical professional for whom the ALJ substituted his opinion. Pl.’s Br. at 9.
And, no medical professional, at least not one whose opinion the court can find in
the record, ever concluded that A.L.P. has a “marked” or “extreme” limitation in
any functional domain. (R. at 153–64.) Therefore, the ALJ did not substitute his
opinion for that of a medical expert.
Additionally, the ALJ’s decision regarding A.L.P.’s functional domains is
A.L.P. does not allege a limitation in any of the other three functional domains (the
Moving and Manipulating Objects domain, the Caring for Yourself domain, and the Health and
Physical Well-Being domain). Moreover, the ALJ expressly found the evidence does not suggest
a limitation in any of these domains. (R. at 21–23.)
supported by substantial evidence. A “marked” limitation is one which “interferes
seriously with [a claimant’s] ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(2)(i) (emphasis added). An “extreme”
limitation is one which interferes very seriously with [a claimant’s] ability to
independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i) (emphasis added).
Regarding A.L.P.’s ability to Acquire and Use Information, the ALJ found
that he received A’s, B’s, and C’s in first grade while in regular classes and noted
that he was not pulled from public school for academic reasons. (R. at 17, 19,
122.) In the Attending and Completing Tasks domain, the ALJ found A.L.P. had
not been diagnosed with attention deficit disorder nor were there any observations
of hyperactivity or inattention. (R. at 20.) Still, the ALJ “erred on the side of
caution” and found A.L.P. had a less than marked limitation based on his IQ
scores and academic record. (Id.)
Finally, regarding A.L.P.’s ability to Interact and Relate to Others, the ALJ
found no limitation. The ALJ based his conclusion on the lack of corroborating
evidence that A.L.P. fought frequently in school. Other evidence in the record
also supports the ALJ’s finding. Dr. June Nichols reported that A.L.P. told her he
has several friends he enjoys spending time with. (R. at 123.) And, an agency
consultant, Dr. Frank Nuckols, who reviewed A.L.P.’s medical records in 2006,
opined that A.L.P. has no limitation in the Interacting and Relating to Others
domain of functioning. (R. at 128.)
However, the court is aware that other evidence in the record suggests that
A.L.P.’s ability to Interact and Relate to Others is somewhat impaired. For
instance, Dr. June Nichols, Psy. D., reported that A.L.P. “will likely have difficulty
relating to peers and authority figures alike due to his intellectual deficits.” (R. at
Additionally, the court notes that Dr. Nuckols’s report is dated almost two
years before A.L.P. was admitted to the C.E.D. Mental Health Center.
Nonetheless, the court finds that, even if the ALJ erred in deciding that A.L.P. has
no limitation in this functional domain, the error was harmless. The record does
not support a finding that A.L.P. has an extreme limitation in this domain. See 20
C.F.R. § 416.926a(e)(3)(i) (“‘Extreme’ limitation is the rating we give to the worst
limitations.”). And, even if A.L.P.’s limitation in this domain is “marked,” he
would still not be disabled under the Regulations. See 20 C.F.R. § 416.926a(a)
(requiring a “marked” limitation in at least two functional domains to find a child
The ALJ Did Not Err by Ignoring Contrary Record Evidence
Ms. Parker argues that an ALJ’s decision “is not based on substantial
evidence which focuses on one aspect of the evidence while ignoring other
contrary evidence.” Pl’s Br. at 11 (citing McCruter v. Bowen, 791 F.2d 1544,
1548 (11th Cir. 1986)). While this argument correctly states the law, Ms. Parker
does not identify the specific record evidence the ALJ allegedly ignored. As noted
above, Ms. Parker contends the A.L.J. overlooked treatment notes from the C.E.D.
Mental Health Center. But, as explained above, the ALJ did not disregard or
ignore these treatment notes. (R. at. 20.) Additionally, the court has thoroughly
reviewed the record and found no evidence which “establish[es] a disabling
impairment.” Pl.’s Br. at 11. Therefore, the court finds the ALJ did not err by
ignoring significant and contrary record evidence.
For the forgoing reasons, the decision of the Commissioner is due to be
DONE and ORDERED this the 28th day of September, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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