Freeman v. Social Security Administration, Commissioner
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/7/2019. (AFS)
FILED
2019 Aug-07 AM 08:48
U.S. DISTRICT COURT
N.D. OF ALABAMA
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
AUNDREA NICOLE FREEMAN,
o/b/o I.F.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Commissioner, SSA,
Defendant.
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Civil Action Number
4:18-cv-00037-AKK
MEMORANDUM OPINION
Aundrea Nicole Freeman brings this action on behalf of her minor child, I.F.,
pursuant to Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking
review of the Administrative Law Judge’s (“ALJ’s”) denial of disability insurance
benefits, which has become the final decision of the Commissioner of the Social
Security Administration (“SSA”). For the reasons explained below, the court finds
that the ALJ applied the correct legal standards and that his decision is supported by
substantial evidence. Accordingly, the decision is due be affirmed.
I.
PROCEDURAL HISTORY
Freeman filed an application for Disability Insurance Benefits (“DIB”) on
behalf of her minor daughter, I.F., asserting that I.F. suffered from a disability
beginning on August 31, 2009 due to autism. R. 244, 258. On April 6, 2011, the
SSA found I.F. to be disabled as defined by the Act beginning January 19, 2011,
when I.F. was three years old, and awarded her benefits. R. 45. As required by
statute, the SSA conducted a continuing disability review and determined that I.F.
was no longer disabled for purposes of the Act as of January 1, 2015, when I.F. was
seven years old. R. 45, 86-87, 90. Freeman requested reconsideration, and a
disability hearing officer upheld the finding that I.F. was no longer disabled. R. 45,
89, 95-98, 105-13. Subsequently, Freeman requested a hearing before an ALJ, who
also found that I.F.’s disability ended as of January 1, 2015 and that I.F. has not been
disabled since that date. R. 45, 135. The SSA Appeals Council denied Freeman’s
request for review, rendering the ALJ’s decision the final decision of the
Commissioner. R. 1. Having exhausted her administrative remedies, Freeman filed
this petition for review pursuant to 42 U.S.C. §§ 1383(c)(3) and 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) and 1383(c)
mandate that the Commissioner’s “factual findings are conclusive if supported by
‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
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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.’” Id. (quoting 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.’” Id. (quoting Bloodsworth, 703 F.2d at 1239). If
supported by substantial evidence, the court must affirm the Commissioner’s factual
findings even if the preponderance of the evidence is against those findings. See id.
While judicial review of the ALJ’s findings is limited in scope, it “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
In contrast to the deferential review accorded the Commissioner’s factual
findings, “conclusions of law, including applicable review standards, are not
presumed valid” and are subject to de novo review. Martin, 894 F.2d at 1529. The
Commissioner’s failure to “apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal principles
have been followed” requires reversal. Id.
III.
STATUTORY AND REGULATORY FRAMEWORK
An individual applying for DIB bears the burden of proving that she is
disabled. Moore v. Barnhart, 405 F.3d 1208 (11th Cir. 2011) (citation omitted). To
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qualify, a claimant must show “the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
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 twelve months.”
§§ 423(d)(1)(A) and 416(i)(I)(A).
42 U.S.C.
A physical or mental impairment is “an
impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrated by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
For claimants under age 18, determination of disability under the Act requires
a three-step analysis. Specifically, the Commissioner must determine in sequence:
(1) whether the child is working;
(2) whether the child has a severe impairment or combination of
impairments; and
(3) whether the child’s impairment or combination of impairments
meets, medically equals, or functionally equals the severity of an
impairment in the Listing of Impairments.
Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847, 850 (11th Cir. 2015)
(citing 20 C.F.R. § 416.924(a)). A child’s impairment “medically equals’ the
limitations in a listed impairment “if the child’s limitations ‘are at least of equal
medical significance to those of [the] listed impairment.’” Shinn ex rel. Shinn v.
Comm’r of Soc. Sec., 391 F.3d 1276, 1279 (11th Cir. 2004) (quoting 20 C.F.R.
§ 416.926(a)(2)). To determine whether a child’s impairment or combination of
impairments “functionally equals” a listed impairment, the ALJ must assess the
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degree to which the impairments limits the child’s activities across the following six
domains:
(1)
(2)
(3)
(4)
(5)
(6)
acquiring and using information;
attending and completing tasks;
interacting and relating with others;
moving about and manipulating objects;
caring for [her]self; and
health and physical well-being
Parks, 783 F.3d at 851 (citing 20 C.F.R. §§ 416.926a(a), (b)(1), (d)). A child’s
impairment, or combination of impairments, functionally equals the listings,
resulting in a finding a disability, when the child suffers from an “extreme”
limitation in one of the domains, or a “marked” limitation in two of the six domains.
Id. (citing 20 C.F.R. § 416.926a(a)). Under the regulations, a “marked” limitation
is “more than moderate,” but “less than extreme, and it “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 is “more than marked,” and it “interferes
very seriously with [the child’s] ability to independently initiate, sustain, or complete
activities. Id. at § 416.926a3(e)(3)(i). “In determining whether a child has ‘marked’
or ‘extreme’ limitations in a domain, an ALJ should consider how the child performs
in a supportive setting . . . .” Muhammad ex. Rel. T.I.M. v. Comm’r of Soc. Sec.
Admin., 395 F. App’x 593, 600 (11th Cir. 2010) (citing 20 C.F.R. § 416.926a(a)).
When conducting a continuing disability review of a claimant under the age
of eighteen, the SSA uses a three-step analysis to determine whether the child
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continues to be disabled for purposes of the Act. See 20 C.F.R. § 416.994a. First,
the SSA must determine whether medical improvement has occurred in the
impairment that the child had at the time of the most recent determination that she
was disabled (the comparison point decision or “CPD”). Id. at § 416.994a(b)(1). If
there has been such an improvement, the SSA continues to step two to determine if
the impairment the child had at the CPD equals, medically equals, or functionally
equals the listings. Id. at § 416.994a(b)(2). If it does, the child is still disabled under
the Act. If it does not, the analysis continues to step three. At this last step, the SSA
determines if the child now has an impairment, or combination of impairments, that
are severe, and that meet, medically equal, or functionally equal the listings. Id. at
§ 416.994a(b)(3). If the child does not have such an impairment or combination of
impairments, the SSA finds that she is no longer disabled under the Act.
IV.
THE ALJ’S DECISION
The ALJ found that as of April 6, 2011 (the date of the CPD), I.F. had the
medically determinable impairment of autism, which met section 112.10A2B1b of
the listings. R. 48.1 Then, following the three-step analysis to determine continuing
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At the time of the CPD, Listing 112.10 stated in part as follows:
112.20: Autistic Disorder and Other Pervasive Developmental Disorders:
Characterized by qualitative deficits in the development of reciprocal social
interaction, in the development of verbal and nonverbal communication skills and
in imaginative activity. Often, there is a markedly restrictive repertoire of
activities and interests, which frequently are stereotyped and repetitive.
The required level of severity for these disorders is met when the requirements in
both A and B are satisfied.
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disability, the ALJ first found that I.F. experienced a medical improvement of her
impairment as of January 1, 2015. R. 48. Proceeding to step two, the ALJ
determined that since January 1, 2015, I.F.’s impairment of autism did not meet or
medically equal section 112.10A2B1b of the listings, as that listing was written at
the time of the CPD. R. 49. Next, the ALJ found that since January 1, 2015, I.F.’s
impairment at the time of the CPD, i.e., autism, had not functionally equaled the
listing. R. 50. To reach this decision, the ALJ rated I.F.’s functioning across the six
domains, determining that she had marked limitations in only one domain (Attending
and Completing Tasks) and less than marked limitations or no limitations in the
remaining five domains. R. 51-56.
Having determined that I.F.’s impairment of autism no longer met or equaled
the listing it met at the CPD, the ALJ continued to step three to determine if I.F. was
otherwise disabled under the regulations. The ALJ found that since January 1, 2015,
A.
...
Medically documented findings of the following:
2. For other pervasive developmental disorders, both of the following:
a.
Qualitative deficits in the development of reciprocal social
interaction; and
b.
Qualitative deficits in verbal and non-verbal
communication and in imaginative activity;
AND
B.
For older infants and toddlers (age 1 to attainment of age 3), resulting in at
least one of the appropriate age-group criteria in paragraph B1 of 112.02;
or, for children (age 3 to the attainment of age 18), resulting in at least two
of the appropriate age-group criteria in paragraphs B2 of 112.02.
20 C.F.R. pt. 404, subpt. P., app. 1, § 112.10 (2011).
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I.F. has had the severe impairments of autism, pervasive developmental disorder,
and borderline intellectual functioning, but that I.F.’s impairments do not meet,
medically equal, or functionally equal the listings. R. 56. Accordingly, the ALJ
found that I.F.’s disability ended as of January 1, 2015, and that she has not been
disabled under the Act since that time. R. 60.
V.
ANALYSIS
Freeman contends that the Commissioner’s decision should be reversed, and
I.F. awarded benefits because (1) I.F.’s impairments functionally equal the listings
and (2) substantial evidence does not support the finding of medical improvement to
the point of no disability. Doc. 1 at 2, 20-29. The court addresses these issues in
turn.
A.
Whether I.F.’s impairments functionally equal the listings
Freeman first argues that substantial evidence does not support the ALJ’s
determination that I.F.’s impairments did not functionally equal the listings of
impairments as of January 1, 2015. Doc. 11 at 20. In particular, Freeman maintains
that contrary to the ALJ’s finding that I.F. has a marked limitation in only one
domain, I.F. has a marked or extreme impairment in four of the six domains. Id. at
20-21.
But, as explained below, substantial evidence supports the ALJ’s
determination.
To determine if I.F.’s impairment, or combination of impairments,
functionally equal the listings, the ALJ considered I.F.’s medical and education
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records, academic performance, teacher evaluations, and Freeman’s testimony to
assess the degree to which I.F.’s impairments limit her activities across the six
domains. See R. 48-56. The ALJ’s findings with respect to three of the domains are
not in contention—Freeman did not dispute the ALJ’s determination that, since
January 1, 2015, I.F. has no limitation in moving about and manipulating objects,
and less than marked limitation in health and physical wellbeing, see doc. 11 at 2028; R. at 54-56, and Freeman agrees with the ALJ’s finding that I.F. has a marked
limitation in attending and completing tasks, doc. 11 at 22; R. 52. Freeman contends,
however, the ALJ should have also found that I.F. has marked limitation in the
following three domains: acquiring and using information, interacting and relating
with others, and caring for herself. Doc. 11 at 20. Basically, Freeman states that her
testimony and I.F.’s individualized educational programs (“IEPs”) from her
elementary school support a finding of marked limitations in these domains. Doc.
11 at 21-25. But, the issue before the court is whether substantial evidence supports
the ALJ’s finding, not whether evidence may support a contrary finding. See Martin,
894 F. 2d at 1529 (citations omitted). And, as explained fully below, the substantial
evidence supports the ALJ’s decision.
1.
Acquiring and Using Information
The “acquiring and using information” domain relates to how well a child
acquires or learns information, and how well the child uses the information. 20
C.F.R. § 416.926a(g). Based on the applicable regulations, a school-age child I.F.’s
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age with no limitations “should be able to learn to read, write, and do math, and
discuss history and science,” and “be able to use increasingly complex language . . .
to share information and ideas . . . .” Id. at § 416.926a(g)(2)(iv). In reaching the
conclusion that, since January 1, 2015, I.F. has had less than marked limitation in
acquiring and using information, R. 52, 59, the ALJ noted that I.F. has shown
improvement in her academic functioning and found that reports from I.F.’s
teachers, mother, and the opinion of a consultative examiner support his finding. R.
52. Indeed, Freeman testified that I.F. is an A/B student, although she still receives
special education services. R. 49, 52, 71, 76. In addition, I.F.’s academic records
reveal that I.F. mastered, or was expected to master, all of her second and third grade
IEP goals in reading, writing, and speech/language, and, as of second grade, I.F. read
at the benchmark level for her grade. R. 49, 331-38, 403, 423. I.F.’s IEP goal
progress report from second grade also states that I.F. “mastered the benchmark of
answering a vocabulary question correctly” and “is making great progress in the area
of reading,” R. 403, and her IEP for third and fourth grade shows that I.F. “does well
with basic math facts,” “gets her thoughts on paper and is very good at using
punctuation and sentence structure,” and “has grown in all academic areas . . . .” R.
416. Moreover, I.F.’s second grade teacher reported that I.F. has no more than a
slight problem with any aspect of acquiring and using information. R. 349. Lastly,
at a consultative psychological evaluation on January 19, 2015, Dr. Sharon D. Waltz
found that I.F.’s “ability to function in an age appropriate manner cognitively” to be
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only “[m]ildly [i]mpaired.” R. 502. Based on these records, substantial evidence
supports the ALJ’s finding that I.F. has less than marked limitation in acquiring and
using information.
2.
Interacting and Relating with Others
Next, for the “interacting and relating with others” domain, the SSA
considers how well a child is able to “initiate and sustain emotional connections with
others, develop and use the language of [her] community, cooperate with others,
comply with rules, respond to criticism, and respect and take care of the possessions
of others.” 20 C.F.R. § 416.926a(i). The regulations provide that with respect to
this domain, a school-age child without impairments should be able to, among other
things, “develop more lasting friendships with children [her] age,” “understand how
to work in groups,” and “be well able to talk to people of all ages, to share ideas, tell
stories, and to speak in a manner that . . . listeners readily understand.” Id. at §
416.926a(i)(iv). Relevant to this domain, the ALJ found that since January 1, 2105,
I.F. has had less than a marked limitation, and he pointed to the opinions of
consultative examiners and reports from I.F.’s teachers and mother to support his
finding. R. 53, 59. The evidence the ALJ referenced includes (1) I.F.’s second grade
teacher who reported that she observed no problems with I.F.’s interacting with
others and that I.F. functioned age appropriately in this domain, R. 351; (2) I.F.’s
third grade teachers who reported observing only slight problems in I.F.’s
functioning in this domain, R. 433-34, 440-41; (3) I.F.’s second grade IEP goal
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progress report and third to fourth grade IEP, which reflected that I.F “works and
plays well with her peers,” R. 403, 416-17; and (4) a consultative psychological
evaluation with Dr. Waltz that noted that I.F. reported “mostly getting along well
with peers,” and Dr. Waltz’s opinion that I.F. “is able to mostly relate to other[s]
well.” R. 500, 502. Moreover, based on his review of the record, the ALJ noted that
there is no evidence I.F. has “any persistent communication or disciplinary issues.”
R. 53. Thus, substantial evidence supports the ALJ’s finding that I.F. has had a less
than marked limitation in this domain since January 1, 2015.
3.
Caring for Herself
To evaluate a child’s functioning in the “caring for yourself” domain, the SSA
considers how well the child is able to “maintain a healthy emotional and physical
state,” cope with stress and changes in [her] environment,” and “take care of [her]
own health, possessions, and living area.” 20 C.F.R. § 416.926a(k). The regulations
provide that a school-age child without impairments should “be independent in most
day-to-day activities (e.g., dressing [her]self, bathing [her]self), although [she] may
still need to be reminded sometimes to do these routinely.” Id. at § 416.926a(k)(iv).
According to the ALJ, since January 1, 2015, I.F. has had no limitation in this
domain, finding that I.F. “cares for herself as any other child her age,” that no
evidence exists of any limitation in this domain, and that “no limitation was alleged
in this domain.” R. 55. The ALJ maintains, without elaboration, that his finding is
supported by the opinions of the consultative examiners and reports from I.F.’s
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teachers and mother. R. 55. Indeed, I.F.’s second grade teacher reported that she
observed that I.F. had no problems with caring for herself and that I.F.’s functioning
appears age-appropriate in this domain. R. 353. And, while I.F.’s third grade
teachers reported that I.F. had a “slight problem” with handling frustration
appropriately, that issue occurred only infrequently, i.e., monthly, rather than weekly
or daily. R. 435, 442. In addition, based on her observations from her 2015
consultative exam, Dr. Waltz opined that I.F. “is able to function primarily
independently with assistance.” R. 502. Finally, based on a review of I.F.’s records,
Dr. Robert Estock, a state agency consultant, opined that I.F. has no limitation in
caring for herself. R. 506. This evidence indicates that I.F. can care for herself like
other children her age without her impairments, and it supports the finding that I.F.
has no limitation in this domain.
However, the ALJ did not address Freeman’s testimony regarding I.F.’s
ability to care for herself. See R. 55. In particular, Freeman testified that: (1) I.F.
sometimes does not want to get dressed in the morning for school, and Freeman has
to dress her “as if she’s an infant;” (2) Freeman sometimes has to brush I.F.’s teeth
for her; (3) I.F. requires help bathing because she does not rinse soap off when she
is allowed to bathe herself; and (4) I.F. has had several accidents at school because
I.F. is too shy to ask a teacher if she may go to the restroom. R. 72, 78. Freeman’s
testimony also reveals that I.F. has difficulty soothing herself, and I.F. wants to be
held and soothed every day. R. 75, 77, 81-82. Moreover, in function reports dated
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August 10, 2014 and February 13, 2015, Freeman reported that I.F. has difficulty
dressing and bathing herself, and that I.F. “has temper tantrums/meltdowns often.”
R. 242, 359. The ALJ erred by ignoring the testimony and reports from I.F.’s
mother. See Shinn, 391 F.3d at 1283. But, even so, the error is harmless because
Freeman’s testimony and reports are not sufficient to show a marked limitation in
this domain. In addition, as discussed above, the evidence relied on by the ALJ
provides substantial support for his finding that I.F. has no limitations in her ability
to care for herself in an age-appropriate manner. See Taylor ex rel. McCaster v.
Comm’r of Soc. Sec. Admin., 213 F. App’x 778, (11th Cir. 2006) (finding the ALJ’s
failure to make any credibility determination with respect to testimony was no
reversible error in part because other evidence supported the ALJ’s determination).
To summarize, substantial evidence supports the ALJ’s finding that since
January 1, 2015, I.F. has not had a marked limitation in her function in at least two
of the six domains of living, or an extreme limitation in one domain. Consequently,
the ALJ’s conclusion that I.F.’s impairments, or combination of impairments, has
not functionally equaled the listings is due to be affirmed.
B.
Whether substantial evidence supports the finding of medical
improvement to the point of no disability
In a cessation of benefits case, such as this one, the court “must ascertain
whether the [Commissioner’s] finding of improvement to the point of no disability
is supported by substantial evidence.” Simpson v. Schweiker, 691 F.2d 966, 969
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(11th Cir. 1982), rev’d on other grounds by Hand v. Heckler, 761 F.2d 1545 (11th
Cir. 1985). When the evidence in a cessation case “is substantially the same as the
evidence had been in the initial disability benefits request case, benefits must be
continued.” Id. Freeman argues that there is no substantial evidence to support the
ALJ’s finding that I.F’s autism had improved to the point of no disability. Doc. 11
at 2, 28-29. For the reasons discussed below, the court disagrees.
The SSA found I.F. disabled in 2011 because her impairment of autism met
Listing 112.10A2B1b. R. 48. As the ALJ described, at the time of the CPD, I.F.
was three-years old, was not toilet trained, used a lot of “jargon,” and she had limited
intelligible speech. R. 48, 108, 459. In addition, she was sensitive to loud sounds,
upset with changes, her motor skills were slightly delayed, and she engaged in a lot
of “hand flapping.” R. 108, 458-60, 462, 482. Moreover, her preschool teachers
reported that I.F. had “a very serious problem with interacting and relating to others,”
“a serious problem taking care of self, and problem with controlled motor
movements.” R. 108. And, based on an examination on January 6, 2011, Zolinda
Cochran, from Glenwood found that I.F. met the criteria for autism. R. 108, 461.
However, when I.F.’s benefits ceased in 2015, I.F. was seven years old and
had no trouble speaking. R. 49. In addition, as the ALJ noted, I.F’s IEPs reveal that
she mastered all of her second and third grade IEP goals, and in second grade, she
was reading at the benchmark level for her grade. R. 49, 331-38, 403, 416, 423.
Moreover, reports from her second and third grade teachers indicated that I.F. was
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doing well in school, had only slight problems relating to others, and could
communicate well, and I.F’s mom testified that I.F. was an A/B student. R. 49, 52,
71, 76, 349, 403. And, at a consultative psychological evaluation on January 19,
2015, Dr. Waltz observed “no unusual mannerisms, tics or gestures” by I.F. R. 501.
All of this evidence provides substantial support for the ALJ’s finding that I.F.’s
impairment of autism had improved to the point of no disability.
VI.
CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination that
I.F. has not been disabled since January 1, 2015 is supported by substantial evidence,
and that the ALJ applied proper legal standards in reaching his decision. Therefore,
the Commissioner’s final decision is due to be affirmed. A separate order in
accordance with this memorandum opinion will be entered.
DONE the 7th day of August, 2019.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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