Cox v. Astrue

Filing 20

Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for supplemental security income, be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/30/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VENETTA COX, o/b/o J.J.R.1,

*
*
Plaintiff,
*
*
vs.
*
*
MICHAEL J. ASTRUE,
*
Commissioner of Social Security, *
*
Defendant.
*

CIVIL ACTION 10-00554-B

ORDER
Plaintiff Venetta Cox (“Plaintiff”) brings this action on
behalf of her minor child, J.J.R., seeking judicial review of a
final decision of the Commissioner of Social Security denying
her claim for child supplemental security income under Title XVI
of the Social Security Act, 42 U.S.C. ' 1381 et seq. (“SSI).

On

June 22, 2011, the parties consented to have the undersigned
conduct any and all proceedings in this case. (Doc. 17). Thus,
this

case

was

proceedings
U.S.C.

§

argument

referred

through

636(c)
was

and

to

the

undersigned

entry

of

judgment

in

Fed.

R.

Civ.

73.

waived.

Upon

P.

careful

1

to

conduct

accordance
(Doc.

with

19).

consideration

all

of

28

Oral
the

Pursuant to the E-Government Act of 2002, as amended on August
2, 2002, the Court has redacted the minor child’s name
throughout this opinion and refers to him only by his initials,
“J.R.”

1

administrative record and the memoranda of the parties, it is
hereby

ORDERED

that

the

decision

of

the

Commissioner

be

AFFIRMED.
I.

Procedural History
Plaintiff

supplemental

protectively

security

income

filed

an

benefits

on

application
behalf

of

J.J.R. (hereinafter “J.R.”) on November 5, 20072.

for

her

son

Plaintiff

alleges that J.R. has been disabled since June 1, 2004 due to
attention deficit hyperactivity disorder (“ADHD”). (Tr. 85, 102,
123-25, 136, 182).
initial

stage

on

Plaintiff’s application was denied at the
February

11,

2008,

and

she

filed

a

timely

Request for Hearing before an Administrative Law Judge (“ALJ”).
(Tr. 81-88). On August 19, 2009, Administrative Law Judge Alan
E. Michel held an administrative hearing, which was attended by
Plaintiff, her son J.R., and her attorney. (Tr. 30-52).
September

16,

2009,

the

ALJ

issued

finding that J.R. is not disabled.

an

unfavorable

(Id. at 9-24).

On

decision

Plaintiff’s

request for review was denied by the Appeals Council (“AC”) on
August 10, 2010.

(Id. at 1-5, 6-8).

2

Plaintiff previously filed an application for benefits
asserting similar claims, which was denied by an Administrative
Law Judge on October 4, 2007. (Tr. 53-73).

2

The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C. ''
1383(c)(3).
II.

Issues on Appeal
A.

Whether the ALJ erred by failing to discuss the weight
if any, accorded to the opinions of two of J.R.’s
teachers.

III. Factual Background
J.R. was born on November 3, 1997. He was 10 years old and
in the fourth grade when his application was submitted.

When

the administrative hearing was conducted on August 19, 2009,
J.R. was 11 years old and in the fifth grade.
136).

(Tr. 39, 79, 123,

At the hearing, J.R.’s mother testified that he repeated

first grade and that for the past two years, he has been in
special education classes. (Tr. 40-41). According to Plaintiff,
J.R.

use

to

make

“Ds”

and

“Es”,

but

he

began

receiving

assistance through the Individualized Education Program (“IEP”),
and is currently earning “Bs” and “Cs”. (Id. at 42). Plaintiff
also reported that J.R. gets into trouble at school for not
sitting still, not paying attention, and talking. (Id. at 41,
46).
Plaintiff testified that J.R. and his younger sister get
along but that they fight and argue “like siblings do.” (Id. at
42). She also testified that J.R. likes to watch television and
play video games, and that J.R. can dress and bathe himself,
3

although, she generally has to go behind him because he does not
do a “good job.” (Id. at 43, 44). Plaintiff also reported that
J.R. gets mad and frustrated when she directs him to do chores
such as taking out the trash. (Id.)
Plaintiff testified that J.R. sees a therapist and nurse
practitioner at the LeMoyne Center monthly and is treated by a
neurologist

for

seizures,

which

have

been

controlled

by

medication. (Id. at 47-49). She also testified that J.R. takes
medications3 on a regular basis, and that it helps him to get his
work done, and also helps with his eating and sleeping. (Id. at
42, 43, 48-49).
IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
Martin v. Sullivan, 894 F.2d

legal standards were applied.
1520, 1529 (11th Cir. 1990).4

A court

may not decide the facts

3

J.R.’s medications referenced in the record include
Daytrana patch 15 mg, Depakote 125 mg, Clonidine HCL 0.1 mg, and
Zoloft 25 mg. (Id. at 194, 240-46).
4

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).

4

anew, reweigh the evidence, or substitute its judgment for that
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th

of the Commissioner.
Cir.

1986).

The

Commissioner’s

findings

of

fact

must

affirmed if they are based upon substantial evidence.

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support a conclusion[]”).

In determining whether substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S.

Dist. LEXIS 10163

(S.D. Ala. 1999).
B. Childhood Disability Law
The

Personal

Responsibility

and

Work

Opportunity

Act

of

1996, which amended the statutory standard for children seeking
supplemental

security

income

benefits

based

on

disability,

became effective on August 22, 1996. See Pub. L. No. 104-193,
110

Stat.

2105

§

211(b)(2)

(1996)

(codified

at

42

1382c). The definition of “disabled” for children is:
An individual under the age of 18 shall be
considered disabled . . . if that individual
has a medically determinable physical or
5

U.S.C.

§

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.
See 42 U.S.C. § 1382c(a)(3)(C)(I), 20 C.F.R. § 416.906.5

The

regulations provide a three-step sequential evaluation process
for

determining

childhood

disability

claims.

20

C.F.R.

§

416.924(a).
At

step

one,

a

child’s

age/work

activity,

if

any,

are

identified to determine if he has engaged in substantial gainful
activity. At step two, the child’s physical/mental impairments
are examined to see if he has an impairment or combination of
impairments that are severe. Under the regulations, a severe
impairment is one that is more than “a slight abnormality or a
combination of slight abnormalities that causes no more than
minimal functional limitations.” 20 C.F.R. § 416.924(c). To the
extent the child is determined to have a severe impairment, at
step three, the Commissioner must then determine whether the
impairment or combination of impairments meet or is medically or
functionally equal to an impairment listed in Appendix 1 of 20

5

On September 11, 2000, the Commissioner published Final
Rules for determining disability for a child under the age of
18. See 65 Fed. Reg. 54,747, corrected by 65 Fed. Reg. 80,307.
These rules became effective on January 2, 2001 and apply to
Plaintiff's claim. See 65 Fed. Reg. at 54,751.

6

C.F.R. part 404, subpart P, and otherwise satisfies the duration
requirement. 20 CFR § 416.924.
If the ALJ finds that the impairments are severe, but do
not

meet

the

listing

requirements,

he

may

find

that

the

impairments result in limitations that functionally equal the
listings6. 20 CFR § 416.926a. To establish functional equivalence
in

step

3,

the

claimant

must

have

a

medically

determinable

impairment that results in marked limitations in two functional
domains

or

an

§ 416.926a(a).

extreme

limitation

in

one

domain.

20

CFR

The six domains are: (1) acquiring and using

information; (2) attending and completing tasks; (3) interacting
and

relating

to

others;

(4)

moving

about

and

manipulating

objects; (5) caring for oneself; and (6) health and physical
well-being. 20 CFR 416.926a.
C.

Discussion
1. ALJ’s Decision

In this action, the ALJ issued an unfavorable decision on
September 16, 2009.

The ALJ determined that while J.R. has the

6

In making this assessment, the reports of the State Agency
medical consultants, reports of other treating, examining and
non-examining medical sources, and the claimant’s symptoms,
including pain and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence, are all taken into consideration.
20 C.F.R. §§ 416.927, 416.929; and SSR 96-5, 96-6p and 96-7p.

7

severe impairments of attention deficit hyperactivity disorder
and

SP

Epilepsy,

functionally

they

equal

the

do

not

criteria

meet,
for

medically

any

of

the

listed in 20 C.F.R. Pt. 404, Subpt. P. (Tr. 15).
found

that

ability

to

J.R.

has

acquire

“less

and

use

than

marked”

equal

impairments
The ALJ also

limitations

information,

attend

or

and

in

his

complete

tasks, care for himself, and health and physical well-being, and
that

he

does

not

have

any

limitations

in

interacting

and

relating with others, or moving about and manipulating objects.
(Tr. 19-25).

Accordingly, the ALJ concluded that because J.R.

does not have an impairment or combination of impairments that
result

in

either

functioning

or

“marked”
“extreme”

limitations
limitation

in
in

functioning, he is not disabled under the Act.

two

domains

of

one

domain

of

(Tr. 23-24).

2. Record Evidence
Academic Evidence
The

academic

records

reflect

that

during

all

times

relevant, J.R. was attending John Will Elementary School. (Id.
at 139-239). The record shows that J.R. was administered the
Kaufman Assessment Battery for Children, Second Edition (“KABC
II”) on April 13, 2007. He received scores of 91 on Sequential
Index; 66 on Simultaneous Index; 92 on Learning Index; 99 on
Planning Index; and 81 on Knowledge Index.

8

J.R. obtained an

overall score of 81 on Fluid Crystallized Index, which falls in
the below average range. (Id. at 144-153).
J.R.

was

also

Achievement

Test

II

scores:

Spelling;

80

administered
(“WIAT
57

II”),

Written

the
and

Wechsler

received

Expression;

Individual

the

and

following

63

Written

Composite. The record reflects that J.R. was also administered
other

tests,

including

the

Behavior

Assessment

System

for

Children (BASC-2), which is used to evaluate the behavior of
children and young adults.
risk

range

on

hyperactivity,

the

Overall, J.R. was rated in the at

Behavior

aggression,

Symptoms

depression,

Index,

which

atypicality,

includes

withdrawal

and attention problems. (Id at 149-152).
The school records reflect that IEP meetings were conducted
in April/May 2007 to determine if J.R. was eligible for the
program based on concerns regarding his written expression and
attention span. (Id. at 154-157).
currently

passing

all

of

his

It was noted that J.R. was
subjects,

that

he

has

been

diagnosed with ADHD, that he was receiving treatment at the
LeMoyne Center, and that his teachers reported that there are no
behavior or attention problems when he is taking his medication
on a regular basis.

The IEP Plan Team determined, on May 8,

2007, that J.R. qualified for special education services under
Alabama State Department of Education guidelines for the 20072008 school year, during which he would be in third grade. (Id.
9

at 154, 156, 159-180, 207). A strategy was developed to address
J.R.’s inattention. It was decided that J.R. would receive third
grade

instruction

in

the

general

education

classroom

with

accommodations, and that regular grades would be earned. (Id. at
207). The accommodations would include seating J.R. away from
doors and windows and near the teacher, providing J.R. breaks
when

restless,

segments,

and

breaking

providing

J.R.’s

J.R.

with

assignments
positive

into

shorter

reinforcement

for

appropriate on-task behavior and work completion. (Id. at 206219).7
During

an

IEP

Team

meeting

in

September

2008,

J.R.’s

resource teacher, Mr. Oglesby, reported that J.R. needed help in
reading and needed a reading goal. J.R.’s classroom teacher, Ms.
Brubeck, also reported that J.R. had problems with reading and
attention. (Id. at 221). It was decided that J.R.’s IEP plan
would be changed so that for the 2008-2009 school year, J.R.
would receive a “basic” grade for math, reading and language
arts, and would receive a regular grade for science and social
studies. (Id. at 221-222). J.R.’s goal for the school term was

7

Included in the record is an unsigned and undated “Child
Disability Evaluation for School Age Children (Age 6 to
Attainment of Age 12),” which appears to have been faxed on
January 30, 2008. In it, the author opines that J.R. has
“marked” limitations in acquiring and using information and in
attending and completing tasks. (Id. at 139-40).

10

that he would be able to use a wide range of comprehension
strategies to comprehend literary/recreational material with 80%
accuracy and that he would be able to decode multisyllable words
on a fourth grade level with 80% accuracy. (Id.)
In

an

undated

“student

narrative,”

Mr.

Oglesby,

J.R.’s

special education teacher, reported that he had worked with J.R.
since August 15, 2008, and that he and J.R.’s classroom teacher,
Ms.

Brubeck,

distractions.
something

agree

that

he

should

be

seated

with

few

He also noted that J.R. began to pout each time

did

not

go

his

way,

that

J.R.’s

homework

and

assessments began to deteriorate, and that J.R. began to cry
uncontrollably whenever he was reprimanded. (Tr. 226).
Likewise, Ms. Brubeck, J.R.’s classroom teacher, reported
that J.R. had been her student since August 2008, and that his
maturity level was “well below” his classmates. She also noted
that he continues to suck his thumb, that he is very easily
upset

and

cries

frequently,

and

that

he

goes

into

“strange

moods” where he shouts or makes animal noises. She noted that
math is J.R.’s strength and that he typically does better in
math than many of the other children in the class. (Id. at 22627).
In

an

IEP

student

profile

covering

February

2009

to

February 2010, it was noted that J.R. had shown growth based on
his classroom scores, Star test, and the Brigance Diagnostic
11

Test

for

comprehension;

however,

his

reading

score

for

the

second quarter was one point less than the first quarter. The
profile

listed

J.R.’s

strengths

as:

vocabulary

knowledge

and

comprehending functional and textual information, although he
has

difficulty

materials,

with

comprehending

identifying

textual/informational
multisyllabic

important

materials,

words.

The

literary/recreational

and

details

decoding

profile

also

in

unfamiliar

noted

that

and

J.R.

is

easily distracted in the classroom, that his mother reported
that he gets easily frustrated at home when not on medication,
and that his behavior causes learning difficulties. The profile
reflects that steps were taken to reduce distractions and that
his

IEP

was

modified

to

include

accommodations

in

general

education requirements. Also, J.R. would receive a regular grade
in all areas except reading, where a basic grade would be given.
(Id. at 229-234).

Additionally, the profile notes that J.R. is

“a very friendly person and well liked by his peers” and that
when given free time, “ he likes to read.” (Id. at 228).
Medical Evidence
The
Plaintiff

relevant
was

seen

medical
by

evidence

Norma

Mobley,

of

record

M.D.

shows

that

(hereinafter

“Dr.

Mobley”) on two occasions for a health maintenance exam. During
the

July

9,

2007

visit,

Plaintiff

reported

that

J.R.

has

a

learning disability in reading comprehension and writing but he
12

is “doing better” academically.

Dr. Mobley noted that at age

nine, J.R. was still sucking his thumb. (Id. at 254-56)8. J.R.’s
examination

was

normal,

and

was

diagnosed

with

ADD

with

hyperactivity; asthma, stable; eczema, atopic dermatitis; and
learning problems. (Id.) J.R. was next seen by Dr. Mobley on
February 21, 2008. (Id. at 240-46). Dr. Mobley’s treatment notes
reflect that Plaintiff reported that J.R. was having difficulty
at home and school and seemed to have developed a tolerance to
his medication, Daytrana 15 mg patch9. According to Plaintiff,
J.R. could not sit still, was constantly talking and disrupting
his classroom, was having angry outbursts and yelling at other
children and adults, was hitting and kicking his sibling when
angry,

and

was

angered

by

small

things.

The

physical,

neurological and psychiatric exams are listed as normal, and Dr.
Mobley

assessed

childhood

with

J.R.

with

attention

hyperactivity,

deficit

allergic

disorder

rhinitis,

of

behavior

problems, and conduct disorder, childhood onset type. Dr. Mobley
suggested
Roberts

8

behavior

for

therapy,

counseling.

She

and
also

referred

J.R.

increased

to

J.R.’s

Dr.

David

dosage

of

Dr. Mobley’s records incorrectly refer to J.R. as female.

9

Daytrana is a central nervous system stimulant that is
used to treat ADHD. It affects chemicals in the brain and nerves
that contribute to hyperactivity and impulse control. See
www.drugs.com/daytrana.html (last visited Mar. 30, 2012).

13

Daytrana to 20 mg for one month and directed him to continue
treatment at the LeMoyne Center. (Id.)
The record contains treatment notes from the Mobile Mental
Health Center (“MMHC”) LeMoyne Center/ Alta Pointe from April
2004 through at least June 2009. (Tr. 257-96, 304-12, 384-414,
423-38). J.R. was seen at the LeMoyne Center for outpatient
individual, group, and family therapy. Psychological records for
the year 2004
talking

back

reveal a history of hyperactivity, sleeplessness,
to

adults,

school

disruption,

fidgeting,

crying

spells, temper tantrums, and inattentiveness. Plaintiff reported
that

she

had

to

“stay

on

him

to

finish

work”

and

that

he

visit

to

appeared to be “in space” at times. (Id. at 257-67).
Psychological

records

reflect

that

during

a

LeMoyne on January 19, 2006, Plaintiff reported that J.R. was
doing better in school but not at home. At that time he was
taking Ritalin10, and the dosage was increased. (Id. at 291). In
much of 2006, it was noted that J.R. was inattentive, defiant,
oppositional,

fidgety,

distractible,

argumentative

with

his

sister, had memory lapses and low self-esteem, and earned a “D”
in reading at school. It was further noted that J.R. had not

10

Ritalin is a central nervous system stimulant that is
used to treat ADD and ADHD. It affects chemicals in the brain
and nerves that contribute to hyperactivity and impulse control.
See www.drugs.com/ritalin.html (last visited Mar. 30, 2012).

14

been taking his medications.
dated

October

30,

2006,

(Id. at 284-290). Treatment notes

reflect

that

J.R.

has

difficulty

swallowing pills, so his medication was changed to a Daytrana
patch in November 2006. (Id. at 284-285).
The treatment notes for January and February 2007 reflect
that J.R. was struggling with reading, impulsivity, and was “in
trouble

all

the

time.”

Plaintiff

admitted

to

inconsistent

management due to her own depression. She also reported that
J.R. could not tolerate the 20 mg Daytrana patch because it
caused appetite loss.

His dosage was decreased to 15 mg, and

his mother was encouraged to obtain special education testing
and educational services through the school in order to address
J.R.’s learning problems. (Id. at 282-3, 312). The therapy notes
dated March 20, 2007 reflect that J.R. reported that

he “fe[lt]

good about himself,” that he made the “Hall of Fame,” and that
his grades were improving. The therapist noted that Plaintiff
reported

that

J.R.

finished

more

homework,

was

less

easily

frustrated, and needed less supervision since the Daytrana Patch
was

changed

to

15

mg.

Plaintiff

also

reported

that

J.R.

completed chores with less supervision, had less conflicts with
his sister and no physical aggression, and she attributed the
improvement to the change in medication dosage. (Id. at 278-9,
281).

15

The treatment notes for April and May 2007 reflect that
J.R.’s

was

promoted

earning

to

the

hyperactivity
Plaintiff

“A,”

third

had

also

“B,”

and

grade,

improved

reported

and

per

that

“C”

that

his

J.R.

grades,

mom

he

was

attention

his

that

and

and

continues

his
to

teacher.

have

anger

problems at home. (Id. at 276-7, 280).
The treatment records for the latter part of 2007 reflects
that

J.R.

was

now

receiving

tutoring assistance.

special

education

services

and

J.R. reported that he liked school, that

he received good grades in all subjects except math, and that he
was

received

tutoring

in

math.

His

mother

reported

improvement in his concentration and behavior at times.
273-5).

Treatment

progress

report,

trouble

with

notes
his

sitting

reflect

teacher
down,

that

in

indicated

completing

J.R.’s

that
work

he

some

(Id. at

mid-quarter
was

without

having

frequent

prompts, holding his pencil, eating lunch, and relating to other
children.

(Id.

at

270-1).

On

December

21,

2007,

Plaintiff

called to report that J.R. was experiencing angry outbursts,
including hitting and threats, and that afterwards, he did not
appear to be aware of his behavior. (Id. at 268). The Center
notes

reflect

that

J.R.

participated

in

group

therapy

in

December 2007 and January 2008.
During a February 2008 counsel session, J.R. reported that
his medication helps him. The therapist noted that J.R. was
16

cooperative and appeared to listen but needed to be occasionally
redirected to the assigned art project.

(Id. at 306). The April

through October 2008 records reflect that J.R. continued to be
compliant with his medication.
defiant

behavior

at

school

No negative academic reports or
were

noted,

although,

reported that J.R. continued to talk back to her.

Plaintiff

J.R.’s mood,

sleep, and appetite were noted as stabilized. (Id. at 385-391).
Treatment
Plaintiff

notes

called

from

in

December

and

11,

reported

2008

that

reflect

J.R.

was

that
more

oppositional, defiant, irritable, and disruptive at the afterschool program, and that he had been more irritable and easily
angered

at

home,

so

Plaintiff

stopped

giving

him

his

antidepressant and resumed the Daytrana 30 mg patch. According
to Plaintiff, she saw some improvement after the switch.

(Id.

at 414). Plaintiff was advised that at that point, J.R. was only
being treated for depression, and not ADHD, and that he could be
re-evaluated

for

ADHD

medications.

J.R.

was

prescribed

Clonidine11, and Plaintiff was instructed about the benefits of
the medication.
improved

since

The notes also reflect that J.R.’s grades had
the

beginning

of

11

the

school

year,

and

that

Clonidine is often used to treat ADHD and works by
decreasing your heart rate and relaxing the blood vessels so
that blood can flow more easily through the body. See
www.ncbi.nlm.nih.gov (last visited Mar. 30, 2012).

17

assistance from the resource teachers was helping. J.R. reported
feeling happy when his grades improve, and when questioned about
his

behavior,

he

became

tearful,

and

indicated

that

he

has

nothing fun to do before or after school. (Id. at 412-3).
Treatment notes dated January 9, 2009 reflect that J.R. was
not

taking

swallowing

his

medication

pills.

because

Additionally,

he

having

difficulty

from

notes

was

January

14,

2009,

indicate that J.R. had been seizure free for the year. Later in
the

month,

J.R.

exhibited

inappropriate

behavior,

which

Plaintiff felt was due to a change in his medications. (Id. at
404-8).
The therapist noted, on January 30, 2009, that J.R. had no
grades

less

than

a

“B”

and

that

his

work/study

skills

had

improved. She also noted that narratives from J.R.’s teachers
indicated he was having “much more difficulty with attentionconcentration”
According

to

and
the

that
notes,

he

had

had

Plaintiff

some

“very

associated

good”

J.R.’s

days.

behavior

problems with the Daytrana patch, and she reported that she had
increased his dosage to two patches a day. Plaintiff was later
informed

that

two

patches

could

have

lethal

side

effects.

Plaintiff reported that the two patches were discontinued, and
that no side effects were observed. (Tr. 403-405)
In March 2009, J.R.’s therapist noted that his academic
performance continued to improve and that he usually completed
18

homework, although he might need one-on-one attention from his
special education teacher. During that day’s therapy session,
the therapist assisted him with anger management skills. (Id. at
395-6). The May 2009 treatment notes reflect that before J.R.
began the Daytrana 15 mg patch, his grades were “Ds” and “Es,”
but that after using the patch, he earned two “A” and three “C”
grades. Plaintiff also reported that J.R. was sleeping well,
reading more, and behaving at home and school. (Id. at 435).
William

H.

Simpson,

Ph.D.

(hereinafter

“Dr.

Simpson”),

completed a Childhood Disability Evaluation on February 8, 2008,
at the request of the Agency. Dr. Simpson determined that J.R.’s
impairment or combination of impairments were severe but did not
meet, medically equal, or functionally equal the listings. Dr.
Simpson also opined that J.R. has “less than marked” limitations
in acquiring and using information and attending and completing
tasks,

and

others,

no

limitations

moving

about

and

in

interacting

manipulating

and

relating

objects,

with

caring

for

oneself, and in health and physical well-being. In opining that
J.R.

has

acquiring

“less
and

than

using

marked”

limitations

information,

Dr.

in

Simpson

the

domain

of

noted

that

the

records indicate that J.R. was passing all of his subjects and
that he does better in school if seated by his teacher and away
from distractions. With respect to the domain of attending and
completing tasks, Dr. Simpson noted that the records reflect
19

that while J.R. does not finish things he starts and does not
complete

his

behavior

problems

basis.

homework,
when

his

IEP

taking

teacher

his

reported

medications

on

he
a

had

no

regular

Additionally, in finding that J.R. has no limitations in

the domain of interacting and relating to others, Dr. Simpson
noted that J.R.’s activities of daily living indicate that he
has friends his own age, that he can make friends and get along
with his teachers, although his mother reports that he does not
get along with her or other adults. (Id. at 297-302).
Plaintiff

was

treated

by

Dr.

Ilyas

A.

Shaikh

at

Gulf

Neurology from March 2008 through at least July 2009. (Tr. 31322, 379-83, 415-22, 439-48). Dr. Shaikh diagnosed J.R. with SP
Epilepsy.

During J.R.’s May 19, 2008 visit, Dr. Shaikh noted he

was still having staring spells and problems with attention and
restlessness. An MRI and other testing were normal. (Id. at 3157, 319). The treatment notes dated April 21, 2008, July 1, 2008,
October 28, 2008, January 20, 2009, and June 9, 2009, reflect
J.R. was doing well on his medications, which included Zoloft12
and Clonidine. (Id. at 313-4, 317-8, 379, 382, 419-20, 443-8).
3.

12

Analysis

Zoloft is used
increasing the amounts of
brain
that
helps
www.ncbi.nlm.nih.gov (last

to treat depression and works by
serotonin, a natural substance in the
maintain
mental
balance.
See
visited Mar. 30, 2012).

20

Plaintiff argues that the ALJ committed reversible error by
failing to discuss the weight, if any, given to the opinions of
two of J.R.’s teachers. According to Plaintiff, the ALJ failed
to

mention

Brubeck.

the

narrative

letters

from

Mr.

Oglesby

and

Ms.

Plaintiff argues that these letters do not describe a

child who has no limitations in interacting and relating with
the others, and these letters should have been considered in
evaluating

J.R.

in

the

domains

of

acquiring

and

using

information, attending and completing tasks, and interacting and
relating to others. (Doc. 13). Plaintiff also argues that SSR
09-2p, 2009 SSR LEXIS 2 require the ALJ to weigh the opinions of
J.R.’s teachers when assessing his limitations. (Doc. 13 at 5).
In his opposition, the Commissioner acknowledges that under
the

regulations,

sources,”

are

the

observations

important

when

of

evaluating

teachers,
the

as

severity

“other
of

a

child’s impairments. The Commissioner argues, however, that Ms.
Brubeck and Mr. Oglesby’s narratives do not offer opinions about
J.R.’s functional abilities; thus, they are not acceptable nonmedical “opinions.” Additionally, the Commissioner argues that
even if the ALJ should have discussed the teacher narratives,
any error was harmless because the ALJ specifically stated he
considered all of the evidence in the record, and the ALJ is not
required to discuss every piece of evidence. (Doc. 14).

21

Based upon a careful review of the record, the undersigned
finds that the ALJ’s failure to discuss the narrative letters
provided by Mr. Oglesby and Ms. Brubeck was not error. Rather,
the ALJ’s decision reveals that he carefully considered all the
relevant evidence, and his decision that J.R. is not disabled is
supported by substantial evidence.
Plaintiff is correct that, teachers, as well as other nonmedical personnel who are able to observe and interact with a
child on a daily basis, are valuable resources in determining
the severity of a child’s impairment and how a child typically
functions

compared

416.913(d)

(These

to

other

sources

may

children
provide

his

age.

evidence

20
“to

C.F.R.
show

§

the

severity of [a claimant’s] impairment(s) and how it affects [a
claimant’s] ability to work or, if [the claimant is] a child,
how [the claimant] typically function compared to children [the
claimant’s] age who do not have impairments.”).
SSR 06-03p, 2006 SSR LEXIS 5 advises that the opinions of
“other sources” such as school teachers and counselors, who have
had

extended

contact

with

a

claimant

in

their

professional

capacity, may outweigh the opinions of treating or examining
medical sources, if their opinions are supported by other record
evidence and if the source sufficiently explains the opinion.
See SSR 06-03p, 2006 SSR LEXIS 5, *11 (The factors outlined in
20 C.F.R. § 416.927(d) “represent basic principles that apply to
22

the consideration of all opinions from medical sources who are
not

‘acceptable

medical

sources’

as

well

as

from

‘other

sources,’ such as teachers and school counselors, who have seen
the individual in their professional capacity”); SSR 09-2p, 2009
SSR LEXIS 2; Reed ex rel. DMR v. Astrue, 2009 U.S. Dist. LEXIS
99357,

*7-8

(S.D.

Ala.

Oct.

26,

2009)

(observing

that

in

evaluating non-medical sources, the evaluation is fact-specific
and should consider the nature and extent of the relationship
between the source and claimant, the source’s qualifications and
expertise,

the

extent

to

which

the

source

provides

relevant

evidence in support of the opinion, and the consistency of the
opinion with other evidence).
Although

the

ALJ

is

required

to

consider

these

“other

source” opinions, non-medical testimony can neither establish
the

existence

establish

of

a

medically

disability

absent

determinable

corroborating

impairment,
competent

nor

medical

evidence. See SSR 06-03p, 2006 SSR LEXIS 5, at *5 (“Information
from these ‘other sources’ cannot establish the existence of a
medically
evidence

determinable
from

purpose.”);

20

an

impairment.

‘acceptable

C.F.R.

§

Instead

medical

416.927,

there

source’

416.926a(e);

must
for

Meredith

be
this
v.

Astrue, 2011 U.S. Dist. LEXIS 37363 (E.D. Wash. Apr. 5, 2011);
cf. Madise v. Astrue, 2009 U.S. Dist. LEXIS 87623 (S.D. Ala.
Sept. 23, 2009).
23

In this case, the ALJ concluded that J.R. does not have an
impairment

or

combination

of

impairments

that

meet

or

functionally equals the Listings. The ALJ’s decision contains a
detailed summary of J.R.’s progression through school, including
a specific discussion of his grades and efforts by the school to
address J.R.’s behavior and learning difficulties.

The decision

also discusses in significant detail the medical evidence from
Alta

Pointe/LeMoyne,

which

contains

extensive

information

concerning J.R.’s performance at school, as well as the medical
findings of Dr. Shaikh. Further, the ALJ referenced the hearing
testimony of both Plaintiff and J.R., and noted that Plaintiff
testified

that

J.R.’s

grades

were

improving

and

that

his

medication and his placement in the IEP program have helped to
improve J.R.’s problems at school. (Doc. 12 at 23).
It is clear from a reading of the ALJ’s opinion that he
adequately considered all of the evidence, including educational
records. Indeed, the ALJ explicitly stated that he considered
all

of

evidence

the
and

relevant
other

evidence,

relevant

including

evidence

from

“objective
medical

medical
sources;

information from other sources, such as school teachers, family
members,

or

friends;

the

claimant’s

statements

(including

statements from the claimant’s parent(s) or other caregivers);
and any other relevant evidence in the case record, including
how the claimant functions over time and in all settings (i.e.,
24

at home, at school, and in the community)” as required by 20
C.F.R. § 416.924a(a) and SSR 09-2p. (Doc. 12 at 15) (emphasis
added). In addition, the ALJ noted he considered the “whole
child” and “assessed the interactive and cumulative effects of
all

of

the

claimant’s

medically

determinable

impairment(s),

including any impairments that are not ‘severe’ in all of the
affected domains.” (Id. at 15-16).

In regards to the opinion

evidence, the ALJ stated he “considered the opinion evidence in
accordance with 20 C.F.R. 2416.927 and SSRs 96-2p, 96-5p, 96-6p,
and 06-3p”, and a review of his decision supports this assertion
(Id.)

Accordingly,

the

undersigned

finds

no

reason,

and

Plaintiff has provided none, to discount the ALJ’s assertion
that

he

considered

the

opinion

evidence,

which

teacher narratives, in rendering his decision.

includes

the

As noted by the

Commissioner, an ALJ is not required to “specifically refer to
every

piece

of

evidence

in

his

decision,”

so

long

as

the

decision is sufficient to allow this Court to conclude that the
ALJ considered the claimant’s medical condition as a whole. Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam).
Thus, Plaintiff’s contention that the ALJ committed reversible
error

because

he

did

not

specifically

reference

the

teacher

narratives is without merit.
Also without merit is Plaintiff’s suggestion that the ALJ’s
findings regarding J.R’s limitations in the domains of acquiring
25

and using information, in attending and completing tasks, and
interacting

and

consideration.

relating

with

others

deserves

further

Substantial evidence supports the ALJ’s decision

that J.R. does not have a “marked” limitation in more than two
domains, or an “extreme” limitation in one domain.

The record

reflects that William H. Simpson, Ph.D. reviewed J.R.’s records
and concluded that J.R. has “less than marked” limitations in
acquiring

and

using

information

and

attending

tasks, and no limitations in the other domains.
303).

and

completing

(Id. at 181-96,

Also, in finding that J.R. has a “less than marked”

limitation in acquiring and using information and in attending
and

completing

records

and

tasks,

medical

the

ALJ

records

discussed

and

noted

both
that

J.R.’s
J.R.

school

has

been

diagnosed with Hyperactivity-Impulsivity-Attention Syndrome and
attention

deficit

disorder,

that

he

has

struggled

with

attention-concentration and reading comprehension, and that he
has had behavior issues. The ALJ also found that once an IEP was
established and J.R. began receiving accommodations at school,
and his medication was regulated, J.R.’s grades improved, and
his mother testified that the IEP was helping and that J.R.
completes his classroom work and homework as long as he is on
his medication.

Accordingly, the undersigned finds that while

J.R. clearly has limitations in these two domains, the evidence
reflecting J.R.’s positive response to IEP intervention and his
26

current medication provides substantial evidence in support of
the ALJ’s finding that J.R.’s limitations in these domains are
“less than marked.”
With respect to the domain of interacting and relating to
others, the ALJ found that J.R. has no limitation in interacting
and relating with others and noted that the therapy notes from
the LeMoyne Center dated June 24, 2009 reflect that J.R. had
been doing well at school, that he followed directions, was
polite to others and was respectful to the staff members and his
peers.
had

A review of the record evidence reveals that J.R. has

some

following
records

behavior

problems,

instructions
demonstrate

at

that

particularly

school
he

and

has

no

at

with
home;

behavior

respect
however,
or

to
the

attention

problems when he is taking his medication on a regular basis.
Indeed,

the

record

is

replete

with

statements

from

J.R.’s

teachers, therapists, treating physician, and mother tracing his
ADHD behavioral problems to irregular dosage or adjustments of
his medications and noting that he performed better when taking
his

medication

regularly.

Accordingly,

the

undersigned

finds

that while there is evidence which strongly suggests that J.R.
has “less than marked” limitations in the domain of interacting
and relating with others, the ALJ’s finding that J.R. does not
have

any

limitation

in

this

area

is

harmless

error

as

the

substantial record evidence supports the ALJ’s ultimate findings
27

that J.R. does not have “marked” limitations in at least two
domains, or an “extreme” limitation in one domain. The ALJ’s
opinion is consistent with standardized testing results, school
records,

medical

teachers

and

opinions,

mother.

and

other

Accordingly,

observations

viewing

the

by

record

J.R.’s
in

its

entirety, the undersigned is satisfied that the ALJ’s decision
finding that J.R. is not disabled is supported by substantial
evidence.
V.

Conclusion
For the reasons set forth, and upon careful consideration

of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security, denying Plaintiff’s claim for supplemental security
income, be AFFIRMED.
DONE this 30th day of March, 2012.

/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

28