Wade v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/16/2016. (AVC)

FILED
2016 Jun-16 PM 02:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
HEATHER WADE for M.L.D., a
minor child,

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Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Civil Action Number
4:15-cv-00579-AKK

MEMORANDUM OPINION
Heather Wade (“Wade”) brings this action on behalf of M.L.D. (“the
Claimant”), a minor child, 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 (“the Commissioner”). This
court finds that the Administrative Law Judge (“ALJ”) applied the correct legal
standard and that his decision – which has become the decision of the
Commissioner – is supported by substantial evidence.

Therefore, the court

AFFIRMS the decision denying benefits.
I.

Procedural History

In a determination dated January 13, 2000, the Commissioner initially found
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M.L.D. disabled as of November 1, 1999. (R. 21). The Commissioner revisited
the issue again on February 24, 2004, and found that M.L.D. had a continuing
disability. Id. However, on May 25, 2012, the Commissioner determined that
M.L.D. was no longer disabled as of May 1, 2012, which prompted Wade to
request a hearing before an ALJ. Id. The ALJ subsequently denied M.L.D.’s
claim, (R. 18), which became the final decision of the Commissioner when the
Appeals Council refused to grant review, (R. 1-4). Wade then filed this action
pursuant to §205(g) of the Act, 42 U.S.C. §405(g). 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

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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 reasonable person
would accept as adequate to support a conclusion.” Martin, 894 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 finding.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III.

Statutory and Regulatory Framework

A claimant under the age of eighteen is considered disabled if the claimant
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 also 20
C.F.R. pt. 404 subpt. P, app. 1 (the listings). The Commissioner has developed a
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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 the impairment or combination of 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).
To qualify, the child’s impairments must result in “marked” limitations in two
domains of functioning or an “extreme” limitation in one domain. 1 20 C.F.R.
§416.926a(a). 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).
However, a modified standard is applied in a cessation of benefits case. The
ALJ must first consider if there is evidence of “medical improvement” in the
child’s impairment. 20 C.F.R. §416.994a(a)(1). Medical improvement means a
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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 and manipulating objects; (5) caring for himself; and (6) health and physical wellbeing. 20 C.F.R. §416.926a(b)(1)(i)-(vi).
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“decrease in the medical severity of [the child’s] impairment(s) which was present
at the time of the most recent favorable decision that [the child was] disabled or
continued to be disabled.”

20 C.F.R. §416.994a(c).

“This is known as the

‘comparison point decision’ or CPD.” (R. 24). If there is evidence of medical
improvement, the ALJ must consider whether the impairment(s) the child had at
the time of the CPD, now meets, or medically or functionally equals, the severity
of the listing it met or equaled at the time of the CPD. 20 C.F.R. §416.99a(a)(1).
If the answer is no, the ALJ will consider whether the child is currently disabled
based on the current impairments, including any the child did not have at the time
of the CPD. 20 C.F.R. §416.99a(b)(3).
IV.

The ALJ’s Decision

In performing the modified three step analysis, the ALJ found initially that
the record showed that “medical improvement occurred as of May 1, 2012.” (R.
24). Next, the ALJ found that “[s]ince May 1, 2012, the impairments that the
claimant had at the time of the CPD 2 [did] not [meet], or medically [equal],” the
severity of the listing they met, or equaled, at the time of the CPD in February
2004. (R. 25). The ALJ then proceeded to the next step and found that “since May
1, 2012, the claimant has not had an impairment or combination of impairments
that meets or medically equals one of the listed impairments.”

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(R. 26).

The reference here is to the February 24, 2004, continuing disability decision.
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Consequently, the ALJ found that “the Claimant has not [been] disabled . . . since
[May 1, 2012],” (R. 35).
V.

Analysis

Wade contends that the ALJ’s decision is not supported by substantial
evidence of improvement that establishes that M.L.D. is no longer disabled. Doc.
12 at 15-16. Specifically, Wade alleges that the ALJ gave insufficient weight to
the psychological evaluation of M.L.D. by Dr. David Wilson, and that the ALJ did
not evaluate M.L.D.’s mental impairments under section 112.00. Id. at 16-17. As
shown below, neither contention establishes that the ALJ committed reversible
error. Therefore, the court will affirm the ALJ’s decision.
1. The ALJ afforded sufficient weight to Dr. Wilson’s psychological
evaluation
Dr. Wilson conducted a consultative psychological examination of M.L.D.
during which he administered the Wechsler Intelligence Scale for Children-IV
(“the WISC-IV”). (R. 31, 404). The test results showed that M.L.D. had a verbal
comprehension index of 98, a perceptual reasoning index of 98, a working memory
index of 68, a processing speed index of 94, and a full-scale IQ of 88. (R. 31,
404).

These scores placed M.L.D. in the low average range of intellectual

functioning, with her verbal and perceptual reasoning skills falling in the average
range. (R. 31, 405). Dr. Wilson also noted that M.L.D. had an extreme deficit in
her working memory, which “was likely to continue, and cause her serious
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problems in school and eventually in the work setting, even with medication.” (R.
31, 405). According to Wade, these findings refute the ALJ’s determinations that
M.L.D.’s working memory index has improved and that M.L.D. is no longer
disabled. Doc. 12 at 17. Consequently, Wade asserts that the ALJ failed to give
sufficient weight to Dr. Wilson’s findings.
The court disagrees because, as a threshold matter, the opinion of a one-time
examiner is not entitled to any special deference or consideration. See 20 C.F.R.
§§404.1502, 404.1527(c)(2); Crawford v. Comm’r, of Soc. Sec., 363 F.3d 1155,
1160 (11th Cir. 2004) (“The ALJ correctly found that because [Dr.] Hartig
examined [Claimant] on only one occasion, her opinion was not entitled to great
weight.”). Moreover, although the ALJ does not specifically state what weight he
afforded Dr. Wilson’s opinion, it is clear that the ALJ discounted Dr. Wilson’s
findings by ultimately concluding “that the limitations alleged as a result of
[M.L.D.’s mental] impairments are inconsistent with the substantial evidence of
the record and that [M.L.D.] has a higher level of mental . . . functioning than that .
. . alleged.” (R. 32). The record supports the ALJ’s finding. For example,
although Wade alleged that M.L.D. had a short attention span and was easily
distracted, (R. 32, 429), when compliant with her medication, M.L.D.’s grades
improved, her mother reported that she was doing better (albeit with some ongoing problems with attention), and M.L.D.’s teacher reported that M.L.D. stayed
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on task for the most part. (R.31-33). Furthermore, M.L.D.’s intelligence test
scores showed her functioning in the average range of intellectual abilities. (R. 33,
404-405).

Based on this record, the substantial evidence supports the ALJ’s

decision.
2. The ALJ properly evaluated the Claimant’s mental impairments
Wade challenges next the ALJ’s failure to evaluate M.L.D.’s mental
impairments under section 112.00 of the Listing of Impairments, specifically
Listing 112.05D, the listing for intellectual disabilities. Doc. 12 at 17; see also 20
C.F.R. pt. 404, subpt. P, app. 1, at §112.00. The Commissioner concedes that the
ALJ did not discuss whether M.L.D. met Listing 112.05D, but contends that the
omission is harmless because an “ALJ’s finding as to whether a claimant meets a
listed impairment may be implied from the record.”

Doc. 15 at 8 (quoting

Kalishek v. Comm’r of Soc. Sec., 470 F. App’x. 868, 870 (11th Cir. 2012) (citing
Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986))); see also Turberville
ex rel. Rowell v. Astrue, 316 Fed. App’x. 891, 893 (11th Cir. 2009) (“[T]hough the
ALJ did not explicitly discuss why [the Claimant] did not actually meet Listing
112.05 — substantial record evidence supports that [the Claimant’s] condition did
not actually or functionally meet Listing 112.05. . . .”). The court agrees.
To satisfy Listing 112.05D, Wade must show that M.L.D. meets the
intellectual disability diagnostic description, 20 C.F.R. pt. 404, subpt. P, app. 1,
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§§112.00A, 112.05D, in particular, subpart D, which requires “a valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant limitation of function,” 20
C.F.R. pt. 404, subpt. P, app. 1, §112.05D. Wade cannot make this showing
because M.L.D. had a verbal comprehension index of 98, a perceptual reasoning
index of 98, and a full-scale IQ of 88. (R. 31, 404). Moreover, Wade’s contention
that M.L.D.’s working memory index of 68 qualified M.L.D. for consideration
under Listing 112.05D is unavailing because Wade has not provided any support
for the position that a working memory score of 68 is synonymous with a “valid
verbal, performance, or full scale IQ of 60 through 70.” In fact, to the contrary,
“[w]hile the previous version of the Wechsler, the WISC-III, reported scores as
performance IQ, verbal IQ, and full scale IQ, as used by the Listing, the WISC-IV
reports scores as ‘verbal comprehension,’ ‘perceptional reasoning,’ ‘working
memory,’ processing speed,’ and ‘full scale score.’” Isaac ex rel. JDM v. Astrue,
2012 WL 5373435, at *3 (S.D. Ala. Oct. 30, 2012) (citing David Wechsler, WISCIV Administration and Scoring Manual, p. 4, The Psychological Corporation
(2003)). “[T]he WISC-IV ‘Verbal Comprehension Index’ is equivalent to Verbal
IQ . . . and ‘Perceptional Reasoning’ is equivalent to Performance IQ . . . .” Isaac
ex rel. JDM, 2012 WL 5373435, at *3 (citing David Wechsler, WISC-IV
Administration and Scoring Manual, at p. 4). There is simply no support in the
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WISC-IV scoring manual for the contention that the working memory score is
equivalent to verbal IQ, performance IQ, or full scale IQ.
VI.

Conclusion

Based on the foregoing, the court concludes that the ALJ’s determination
that M.L.D. is no longer disabled is supported by substantial evidence, and the ALJ
applied the correct legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED.
DONE the 16th day of June, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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