White v. Astrue

Filing 22

Order ent. 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 3/28/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JESSICA WHITE , o/b/o C.A.W.1,

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

CIVIL ACTION 10-00617-B

ORDER
Plaintiff Jessica White (“Plaintiff”) brings this action on
behalf of her minor child, C.A.W., 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

March 15, 2011, the parties consented to have the undersigned
conduct any and all proceedings in this case. (Doc. 18). 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 her only by her initials,
“C.A.W.”

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

protectively

filed

an

application

for

supplemental security income benefits on behalf of her daughter
C.A.W. on July 18, 2005, and alleges a disability date of March
18, 1994. (Tr. 100-3, 136). In applying for benefits, Plaintiff
alleges disability due to asthma and learning problems. (Tr. 7980, 129).

Plaintiff’s application was denied at the initial

stage on October 7, 2005, and she filed a timely Request for
Hearing before an Administrative Law Judge (“ALJ”). (Tr. 77-82,
91-3). On August 24, 2007, Administrative Law Judge Ben Sheely
held an administrative hearing, which was attended by Plaintiff,
her

daughter

C.A.W.,

and

her

attorney.

(Tr.

496-509).

On

September 19, 2007, ALJ Sheely issued an unfavorable decision
finding that C.A.W. is not disabled.

(Id. at 64-76).

Plaintiff’s request for review was granted by the Appeals
Council (“AC”), which vacated the ALJ’s decision and remanded
the case for further proceedings on August 1, 2008. (366-8).
Specifically, the ALJ was directed to evaluate the severity of
C.A.W.’s

mental

impairments

and

their

effects

on

her

functionality ability, obtain evidence from a medical expert to
clarify the nature and severity of Plaintiff’s impairments, and
2

to further evaluate Plaintiff’s limitations in the six domains
of functioning. (Tr. 367) A second administrative hearing was
held on February 2, 2009, before ALJ Sheely. The hearing was
attended by Plaintiff, her daughter C.A.W., and her attorney.
(Tr.

510-27).

On

May

19,

2009,

ALJ

Sheely

issued

a

second

unfavorable decision finding that C.A.W. is not disabled.
at 16-35).

(Id.

After reviewing additional evidence, the AC denied

Plaintiff’s subsequent request for review on September 28, 2010.
(Id. at 7-10).
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 finding that C.A.W. does not
have a severe mental impairment under 20 C.F.R. §§ 416.921
and 416.945(c).

III. Factual Background
C.A.W. was born on March 18, 1994. She was 11 years old and
attending fifth grade when her application was submitted.

When

the first administrative hearing was conducted on August 24,
2007, C.A.W. was 13 years old and in the seventh grade.
100, 162, 499).

(Tr.

At that hearing, C.A.W.’s mother testified that

C.A.W. has excessive absences and tardies due to her asthma, and
that her asthma is worse in the winter and often flares up in
the

morning.

(Id.

at

500-1).

Plaintiff
3

also

testified

that

C.A.W. was being treated for depression, and that because of her
asthma, she “give[s] up a lot.” (Id. at 503).
When

the

second

administrative

hearing

was

conducted

on

February 2, 2009, C.A.W. was 14 years old and in the eighth
grade. (Id. at 514). Plaintiff testified that C.A.W is always
sniffing and that she feels bad all the time. (Id. at 515).
Plaintiff further testified that C.A.W. does not suffer from any
side effects from her medications and that when she takes her
medications and sees Dr. Sindel, she does well. (Id. at 47-49,
518, 524-5).
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).2

A court

may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

2

findings

of

fact

must

be

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

affirmed if they are based upon substantial evidence.

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
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.
5

U.S.C.

§

See 42 U.S.C. § 1382c(a)(3)(C)(I), 20 C.F.R. § 416.906.3

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
C.F.R. part 404, subpart P, and otherwise satisfies the duration
requirement. 20 CFR § 416.924.

3

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

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
listings4. 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

extreme

§ 416.926a(a).

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

As
decision

noted
on

supra,

September

following
19,

2007,

the
the

ALJ’s
AC

first

unfavorable

determined

that

the

decision “did not evaluate the severity of the claimant’s mood
disorder and any effects it may have on her functional ability.”
4

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

(Id. at 366). On remand, the ALJ was directed to evaluate the
severity of C.A.W.’s mental impairments and their effects on her
functional ability, obtain evidence from a medical expert, and
further

evaluate

functioning.

C.A.W.’s

limitations

in

the

six

domains

of

(Id. at 367-8).

Following remand, C.A.W. was evaluated by Agency consultant
Jack

Christopher

hearing

was

Carney,

conducted.

Ph.D.,

and

Subsequent

a

second

thereto,

administrative

the

ALJ

issued

a

second unfavorable decision on May 19, 2009. The ALJ determined
that while C.A.W. has the severe impairment of asthma, it does
not meet, medically equal or functionally equal the criteria for
any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P.
(Tr. 22). The ALJ also found that C.A.W. has “less than marked”
limitations in acquiring and using information, interacting and
relating with others, and health and physical well-being, that
she has a “marked” limitation in attending and completing tasks,
and that she does not have any limitations in moving about and
manipulating

objects

or

caring

for

herself.

(Tr.

29-35).

Accordingly, the ALJ concluded that because C.A.W. does not have
an

impairment

or

combination

of

impairments

that

result

in

either “marked” limitations in two domains of functioning or
“extreme” limitation in one domain of functioning, she is not
disabled under the Act.

(Tr. 35).

8

2. Record Evidence
Academic Evidence
The academic records reflect that in April 2002, C.A.W. was
eight years old and attending second grade at Old Shell Road
Elementary. (Id. at 104-9). She was referred for testing and was
administered
ABC),

the

the

Kaufman

Wechsler

Assessment

Individual

Battery

Achievement

for

Children

(K-

Test

(WIAT),

the

Kaufman Test of Educational Achievement (KTEA), and the Devereux
Behavior

Rating

Scale

–

School

Form

(DBRS-SF).

Her

IQ

was

measured at 92. (Id.)
C.A.W.’s 2003-2004 fourth grade school report reflects that
C.A.W. earned four “D” grades, three “S” grades, and one “U”
grade, and was promoted to fifth grade. (Id. at 110-118). In a
teacher evaluation dated March 4, 2004 and completed by Susan
Mims, C.A.W.’s special education teacher at Dunbar School of
Creative

and

Performing

Arts,

Ms.

Mims

opined

that

C.A.W.’s

specific learning disability is reading comprehension and noted
that she is provided special instructions in a regular classroom
for 30 hours per week and in the resource room for 5 hours per
week.

(Id.

at

141-51).

Ms.

Mims

opined

that

C.A.W.

has

a

“slight” problem in acquiring and using information and that
“[m]ost skills are age appropriate.” (Id. at 144). According to
Ms.

Mims,

C.A.W.

lacks

the

appropriate

materials

and

sleeps

during instructional time. She also noted that C.A.W. requires a
9

“minimal” amount of help. (Id.) Ms. Mims also opined that C.A.W.
has a problem in the domain of attending and completing tasks
because she “rarely does her homework.” (Id. at 145). Ms. Mims
further opined that C.A.W. has no problems in the domains of
interacting

and

relating

to

others,

moving

about

and

manipulating objects, or caring for herself. (Id. at 146-9).
The

record

also

contains

a

Teacher

Questionnaire

dated

November 5, 2005, and completed by Rachel Dumas, a teacher at
Westlawn

Elementary.

Ms.

Dumas

noted

that

C.A.W.

receives

special education services daily and that although she was in
the

fifth

grade,

her

reading,

math,

and

written

language

instructional levels were 2.5, 3, and 2, respectively. (Id. at
162-169). Additionally, Ms. Dumas indicated that C.A.W. has an
unusual

degree

of

absenteeism

due

to

sickness

and

doctor’s

appointments. (Id. at 162). Ms. Dumas opined that C.A.W. has a
problem in attending and completing tasks and noted that C.A.W.
is highly inattentive and has to constantly be prompted to stay
on task. (Id. at 164). Ms. Dumas also opined that C.A.W. has a
problem caring for herself and noted a very serious problem with
taking care of personal hygiene and knowing when to ask for
help. (Id. at 167). Ms. Dumas also described C.A.W. as very
lethargic and noted that C.A.W. has a tendency to fall asleep
during classroom instructional time, never smiles, and appears
highly depressed at all times. (Id. at 168).
10

A report from the Mobile County School Board’s Department
of Psychological Services reveals that a Stanford Achievement
Test,

10th

ed.,

was

administered

to

C.A.W.

in

April

2007.

C.A.W.’s scores for reading, math, and language fell in the 5th
national percentile, 14th national percentile, and 1st national
percentile, respectively. (Id. at 375-8). The report also notes
C.A.W.

qualifies

for

special

instruction

under

category

of

Specific Learning Disabilities. Kristie Botta, M.Ed, the school
psychometrist, opined that C.A.W.’s “adaptive skills are

within

the below average range when compared to others her age.” (Id.
at 377).
C.A.W.’s sixth grade report from Scarborough Middle School,
which is dated May 29, 2007 and covers the 2006-2007 academic
year, reflects that C.A.W. was absent a total of 40 times and
tardy 28 times for the year. The grade report also indicates
that C.A.W. was promoted “based on passing summer school.” (Id.
at 170); see (Id. at 172-3) (Application and notification of
Fifth Quarter Participation).
In a teacher evaluation dated May 11, 2007 and completed by
Stanley Lewis, a teacher at Scarborough Middle School, Mr. Lewis
observes that C.A.W. is excessively tardy or absent and while
her mother attributed C.A.W.’s tardiness and absenteeism to her
asthmatic condition, and need for treatment, Mr. Lewis had not
witnessed any asthma attacks during school. (Id. at 174-81).
11

Mr. Lewis opined that C.A.W. has a problem acquiring and using
information in that she will not begin an assignment when the
rest of the class does, but if she is allowed to work with
another student, she is often more receptive. (Id. at 175). Mr.
Lewis

also

opined

that

C.A.W.

has

problems

attending

and

completing tasks, specifically that she has an “obvious problem”
focusing,

carrying

out

single

and

multi-step

instructions,

changing from one activity to another without being disruptive,
completing

class/homework

accurately

without

careless

distracting

self

others,

or

assignments,

completing

mistakes,
and

working

working
at

a

work
without

reasonable

pace/finishing on time. (Id. at 176). He further opined that
C.A.W. has a problem interacting and relating with others, and a
“serious problem” asking permission appropriately. (Id. at 177).
Lastly, Mr. Lewis also observed that C.A.W. has a problem caring
for herself, specifically she has an “obvious problem” knowing
when to ask for help. (Id. at 179).
The record reveals that an individualized education program
(hereinafter

“IEP”)

was

established

for

C.A.W.

on

April

22,

2008, and was to cover C.A.W.’s eighth grade year. (Id. at 373).
C.A.W.’s excessive absences were noted as a area of concern.
(Id. at 274).
In
completed

a

teacher
by

evaluation

Cynthia

Mizell,

dated

October

C.A.W.’s
12

eight

3,

2008,

grade

and

Special

Education teacher, Ms. Mizell notes that C.A.W. was frequently
absent from school during the last school year, and during the
current year, is frequently tardy. (Id. at 384-91). She also
observed that although C.A.W. is in eighth grade, her current
instructional levels in reading, math and written language are
4.5, 4-5th, and 4th, respectively. (Id.

at 334). Ms. Mizell

opined that C.A.W. has problems in the domain of acquiring and
using information, that she will not participate in class, and
often does not complete work. Ms. Mizell

attributes this to a

lack

grade

of

understanding

directions

or

the

level

of

the

assignment. (Id. at 385). Ms. Mizell also opined that C.A.W. has
problems attending and completing tasks, and notes that even
with redirection, C.A.W. has trouble working independently and
will put her head down during class. Ms. Mizell further opined
that C.A.W. has a “very serious” problem sustaining attention,
carrying

out

multi-step

instructions,

and

working

at

a

reasonable pace/ finishing on time. (Id. at 386).
Ms. Mizell also noted that C.A.W. “does not interact with
other

students

medication

very

strategies

much
had

at
been

all,”

and

developed.

that
(Id.

no
at

behavior
387).

Ms.

Mizell opined that C.A.W. has a problem in the domain of moving
about and manipulating objects and observes that she does not
participate in physical education. (Id. at 388). Regarding the
domain of caring for herself, Ms. Mizell opined that C.A.W. has
13

problems in this area. Specifically, she states that C.A.W.’s
lack of conversation and interaction with others is a cause of
concern for her teachers. (Id. at 389).
Medical Evidence5
The relevant medical evidence of record shows that Robert
O. Harris, MD,6 completed a Childhood Disability Evaluation at
the request of the Agency on April 20, 2004. (Id. at 184-88).
Dr. Harris diagnosed C.A.W. with asthma and specific learning
disability. He opined that while C.A.W. suffers from a severe
impairment, her impairment or combination of impairments did not
meet, medically equal, or functionally equal the Listings. Dr.
Harris opined that C.A.W. has less than marked limitations in
the domains of acquiring and using information and attending and
completing

tasks,

interacting

and

manipulating
regarding

the

and

no

relating

objects.
domains

Dr.
of

limitations

with

others

Harris
caring

did
for

in

the

domains

of

and

moving

about

and

not

offer

herself

and

an

opinion

health

and

physical well being. (Id. at 185, 187).
5

The record also contains treatment notes documenting
C.A.W.’s extensive treatment for asthma.
As noted supra, the
ALJ found that C.A.W.’s asthma constituted a severe impairment,
but it does not meet a listing.
Plaintiff has not challenged
this finding; thus, a discussion of the asthma related treatment
records has been omitted.
6

Patricia Hinton, Ph.D., also served as a consultant and
signed the Evaluation on April 20, 2004. (Id. at 185).

14

On September 2, 2005, Peter Bertucci, MD (hereinafter “Dr.
Bertucci”), completed a Childhood Disability Evaluation Form.7
(Id.

at

254-59).

In

it,

Dr.

Bertucci

determined

C.A.W.’s

impairments included adjustment disorder with mixed disturbance
of emotion and conduct, rule out depressive disorder. He opined
C.A.W.’s impairments were severe, however, they did not meet,
medically

equal

or

functionally

equal

the

Listings.

(Id.

at

254). Dr. Bertucci also found that C.A.W. has “less than marked”
limitations in acquiring and using information, attending and
completing

tasks,

interacting

and

relating

with

others,

and

health and physical well-being. He determined that she does not
have any limitations in moving about and manipulating objects or
caring

for

completing

herself.
tasks,

(Id.

Dr.

at

256-7).

Bertucci

Regarding

noted

that

attending

C.A.W.’s

and

parent

indicated no problem keeping busy and completing chores, but
that C.A.W. has difficulty finishing things. He further noted
that,

with

respect

to

interacting

and

relating

with

others,

C.A.W.’s parent indicated no problems. (Id. at 256).
The record contains treatment notes from the Mobile Mental
Health Center (“MMHC”) LeMoyne Center/ Alta Pointe from March
2005 through May 2008. (Tr. 261-300, 321-25, 399-414, 430-54).

7

William Meneese, Ph.D., also served as a consultant and
signed the Evaluation on September 22, 2005. (Id. at 185).

15

C.A.W. was seen at the LeMoyne Center for outpatient individual,
female group, and family therapy. During her initial treatment
at LeMoyne, C.A.W. was administered a Psychiatric Evaluation on
July

8,

2005,

otherwise

and

diagnosed

specified;

rule

with

out

adjustment

depressive

disorder,

disorder;

rule

not
out

learning disorder, not otherwise specified; rule out ADHD. (Id.
at 294-8). Upon mental status exam, C.A.W’s
her

affect

was

flat,

her

thought

process

mood was depressed,
was

coherent,

her

memory was intact, and her insight/ judgment were poor. (Id. at
295). It was recommended that she attend depression groups and
receive

psychological

testing

to

rule

out

learning

disorder.

(Id. at 296).
Several times throughout the record, C.A.W. reported having
hallucinations, including seeing a lady standing in her doorway
(Id. at 289), seeing her father standing in her doorway (Id. at
285), and hearing voices (Id. at 270, 286, 282 (voice told her
to do bad things), 324). However, the MMHC records dated April
2, 2007 reflect that C.A.W. was no longer hearing voices or
seeing things but was having nightmares. (Id. at 322).
On a visit to LeMoyne on September 21, 2005, Plaintiff
reported that C.A.W. was not as depressed and that Prozac was
working. The therapist also noted C.A.W. earned As, Bs, Cs, and
two Es in school. (Id. at 288). On December 13, 2005, C.A.W.

16

reported to her therapist that she was “happy 90% of the time
and sad 10%.” (Id. at 281).
During

medication

monitoring

on

April

26,

2006,

C.A.W.

noted her last asthma attack had been the week prior and that
her mood was better when taking two Seroquel8 25 mg instead of
just

one.

As

a

result,

her

prescription

was

increased

to

Seroquel 50 mg. (Id. at 274).
Psychological

records

from

2006

reveal

that

C.A.W.

experienced regular episodes of sadness, and she reported that
kids at school picked on her, and that her sadness started when
her younger brother was born. On May 24, 2006, the therapist
noted

C.A.W.

was

visibly

sad

as

evidenced

by

her

facial

expressions, and when asked, C.A.W. reported she did not know
why she was unhappy. (Id. at 269-277). During a mental health
visit

on

August

29,

2006,

Plaintiff

reported

that

C.A.W.

exhibited extreme behaviors, such as urinating in a cup and
hiding

it

in

a

cabinet.

(Id.

at

269).

C.A.W.

admitted

that

during the past month, she had not been taking her Seroquel and
Lexapro,

and

was

advised

that

she

needed

to

resume

the

medications. (Id. at 267). During C.A.W.’s December 21, 2006

8

Seroquel is used to treat schizophrenia and bipolar
disorder (manic depression) in adults and children who are at
least 10 years old. See http://www.drugs.com/seroquel.html.
(Last visited Mar. 28, 2012).

17

visit, her prescription of Seroquel was increased to 200 mg, up
from 100 mg in October 2006. (Id. at 264, 325).
The 2007 therapy notes reflect that the therapist observed
in June 2007 that C.A.W. had failed the majority of her classes,
and had 40 absences and 28 tardies from school. (Id. at 321). In
August 2007, the therapist noted that C.A.W.’s mood, appetite
and energy were improving, and that C.A.W. reported that while
the

Seroquel

was

helping

her

to

sleep,

she

feels

“sedated”

during the day. C.A.W. also reported difficulty concentrating
when

her

asthma

flares

up.

(Id.

412)

The

August

notes

also

reflect that C.A.W. was started on Trazadone9 50 mg for sleep,
and

that

C.A.W.

was

changing

schools,

and

her

family

was

searching for suitable housing. (Id. at 409).
Notes dated January 9, 2008, indicate that C.A.W. had not
been seen by her therapist since October 3, 2007, and that she
had

missed

several

appointments.

Dr.

Dolgos

renewed

her

prescriptions for Lexapro 20 mg and Trazadone 50 mg. (Id. at
402, 442). In therapy on March 13, 2008, it was agreed that
C.A.W. would work to spend one day and one hour per day with her
brother each week to help foster a positive relationship between

9

Trazadone is used to treat depression. It may also be used
for relief of anxiety disorders and chronic pain. See
http://www.drugs.com/trazodone.html. (Last visited Mar. 28,
2012).

18

(Id. at 437). The treatment notes dated April 28, 2008

them.

reflect that C.A.W. and her family have had no stable home since
Hurricane Katrina and that they continue to move between the
homes of various relatives because they have not been able to
secure suitable housing. (Id. at 432, 436).
C.A.W.

was

evaluated

by

Jack

Christopher

Carney,

Ph.D.

(hereinafter “Dr. Carney”), at the request of the Agency on
October

28,

2008.

(Id.

at

472-8).

Upon

exam,

Dr.

Carney

indicated that C.A.W. was awake, alert, and oriented in time,
place, and person. He noted her mood seemed depressed, and her
affect was flat. (Id. at 472).

The Weschler Intelligence Scale

for Children-Fourth Edition (WISC-IV) was administered to C.A.W.
According to Dr. Carney, despite encouragement and prompting,
C.A.W.’s effort and persistence during the examination appeared
to vary across subtests, and he opined that C.A.W.’s test scores
were an underestimate of her true abilities. According to the
WISC-IV,

C.A.W.’s

Full

Scale

IQ

was

78,

falling

in

the

Borderline range of intelligence. Dr. Carney opined that if more
consistently motivated, C.A.W.’s Full Scale IQ would fall in the
Low Average range.
Additionally,

C.A.W.

was

administered

the

Wide

Range

Achievement Test- Revision 4 (WRAT-4), and her Word Reading,
Sentence Comprehension, Spelling, and Reading Composite Standard
scores fell in the Low Average range. Her Math Computation score
19

was

in

the

Borderline

range.

Dr.

Carney

opined

that

all

of

C.A.W.’s scores were commensurate with her assessed level of
intelligence.
Dr. Carney diagnosed C.A.W. with dysthymia and opined that
a favorable response to treatment could be expected within six
to twelve months. (Id. at 475). He further opined that C.A.W.
has moderate impairment in interacting with the public. (Id. at
477).
1.
Whether the ALJ erred by finding that
C.A.W. does not have a severe mental
impairment under 20 C.F.R. §§ 416.921 and
416.945(c).
In

her

brief,

Plaintiff

argues

that

the

ALJ

committed

reversible error by finding that C.A.W. does not suffer from a
severe

mental

impairment

under

the

Regulations.

According

to

Plaintiff, C.A.W. was diagnosed with depressive disorder in July
2005 and has received continuous treatment at MMHC. Plaintiff
also points out that C.A.W.’s teachers have indicated that she
has a very serious problem interacting and relating with others
on a daily basis and that she appears highly depressed at all
times. Plaintiff also notes that while the AC expressly directed
the ALJ to evaluate the severity of C.A.W.’s mental impairments,
the ALJ did not explain the underlying mental impairment which
results in C.A.W.’s marked limitation in the domain of attending
and completing tasks, as determined by the ALJ. (Doc. 14).

20

The

Commissioner

contends

that

Plaintiff’s

argument

is

without merit and argues that the ALJ is not required to refer
to every piece of evidence in his decision. According to the
Commissioner, the ALJ discussed C.A.W.’s therapy at MMHC and
provided a detailed summary of Dr. Carney’s 2008 psychological
evaluation. Additionally, according to the Commissioner, even if
the ALJ committed error, any error was harmless because the ALJ
did not deny Plaintiff’s claim at step two and found that she
had a severe impairment, namely asthma. (Doc. 21).
Based upon a careful review of the record, the undersigned
finds that notwithstanding the fact that the ALJ concluded that
C.A.W. does not have a severe mental impairment, the record
demonstrates that the ALJ carefully considered all the relevant
evidence,

including

that

relating

to

C.A.W.’s

mood

disorder,

through all five steps of the sequential inquiry; thus, the
error at step two is harmless and not cause for reversal. Delia
v. Comm’r of Soc. Sec., 433 Fed. Appx. 885 (llth Cir. 2011)
(although

substantial

evidence

does

not

support

the

ALJ’s

finding at step two, that claimant’s mental impairments were not
severe,

error

impairments

was

severe

harmless
and

because

therefore

the

ALJ

continued

deemed
the

other

sequential

inquiry, and considered consequences of mental impairments at
steps three, four and five of the inquiry) (citing Reeves v.
Heckler,

734

F.2d

519,

524

(llth
21

Cir.

1984)(rejecting

a

challenge to an ALJ’s conclusion as harmless error when the ALJ
had considered the relevant evidence in making the disability
determination)).
As noted supra, at step two of the five-step evaluation
process prescribed by the regulations, the ALJ is called upon to
determine whether a claimant’s impairments are severe. 20 C.F.R.
§§

404.1520,

416.920.

The

burden

at

this

step

is

on

the

claimant. Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986).
A

“[c]laimant

need

show

only

that

her

impairment

is

not

so

slight and its effect not so minimal.” McDaniel v. Bowen, 800
F.2d 1026, 1031 (11th Cir. 1986). This inquiry is a “threshold”
inquiry.

It

allows

only

claims

based

on

the

slightest

abnormality to be rejected. Brady v. Heckler, 724 F.2d 914, 920
(11th Cir. 1984).
Here, consistent with the regulations and applicable law at
step two, the ALJ found that C.A.W. has the severe impairment of
asthma. Because the ALJ found a severe impairment, he did not
end

his

analysis,

but

proceeded

forward

with

the

sequential

evaluation, and consideration of the effects of all of C.A.W.’s
impairments, including those from her mental impairment. Thus,
while the record reflects that Plaintiff has been diagnosed with
dysthymia,

and

has

treatment,

the

ALJ’s

an

extensive

error

in

not

history

of

including

mental
it

as

a

health
severe

impairment at step two was not fatal because the record reflects
22

that the ALJ did, in fact, consider all of the evidence relating
to C.A.W.’s mental impairment at every step of the analysis, and
his conclusions regarding functional limitations are supported
by substantial evidence.
Indeed, the record reflects that in his discussion of the
six domains, the ALJ considered all of the medical evidence,
including Plaintiff’s mental impairments.

For instance, the ALJ

concluded

marked

that

C.A.W.

has

interacting with others.

a

less

than

limitation

in

In reaching this conclusion, the ALJ

discussed not only records from the teacher questionnaires and
from Dr. Carney’s evaluation, but also the treatment records
from Alta Pointe.

He specifically noted that C.A.W. “receives

counseling and guidance for a mood disorder that has proven
stable.”

He further noted that C.A.W’s family was displaced by

Hurricane Katrina and has moved from the home of one relative to
another, that C.A.W. has been affected by the tragedy, and that
her

mood

has

been

stabilized

by

school

intervention

and

counseling and guidance from Alta Pointe.
Plaintiff has not argued that the ALJ erred in finding that
C.A.W.

has

marked

limitations

in

only

one

domain,

namely

attending and completing tasks, and as noted supra, substantial
record evidence supports this finding. Accordingly, viewing the
record

in

its

entirety,

the

undersigned

is

satisfied

that

C.A.W.’s mood disorder was given the necessary consideration by
23

the ALJ in rendering his decision, and that substantial evidence
supports the ALJ’s determination.
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 the 28th day of March, 2012.
/s/ SONJA F. BIVINS_ ___
UNITED STATES MAGISTRATE JUDGE

24