Anderson v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 9/13/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAROLYN L. ANDERSON,
o/b/o A. LANKFORD,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commission of Social Security,
Defendant.

CIVIL ACTION 11-0720-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff1
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI).

The parties filed written consent and this action has

been referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 18).
argument was waived in this action (Doc. 19).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner

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Although this action was actually brought by her grandmother,
the Court will refer to Lankford as the Plaintiff.

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be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Lankford was ten
years old and had completed a second-grade education (Tr. 46).
In claiming benefits, Plaintiff alleges disability due to ADHD,
asthma, and Oppositional Defiant Disorder (Doc. 11 Fact Sheet).
The Plaintiff filed a protective application for SSI on
April 30, 2009 (Tr. 168-70; see also Tr. 9).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that although she had severe impairments,
Lankford was not disabled (Tr. 9-29).

Plaintiff requested

review of the hearing decision (Tr. 5) by the Appeals Council,
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but it was denied (Tr. 1-3).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Anderson

alleges the single claim that the ALJ failed to properly analyze
her individualized education program (hereinafter IEP) (Doc.
11).

Defendant has responded to—and denies—this claim (Doc.

14).
Lankford asserts that the ALJ failed to properly analyze
her IEP.

More specifically, she asserts that this report is

important because it post-dates the information relied on by the
ALJ; it is further asserted that the IEP is “vital in
determining the degree of limitation in the domains of
Interacting and Relating with Others and also Health and
Physical Well Being” (Doc. 11, pp. 5-6).

Lankford has argued

that the ALJ’s failure to properly consider this evidence has
resulted in his failure to meet his obligation to develop a full
and fair record (Doc. 11, pp. 3-4).
The Court notes that the Eleventh Circuit Court of Appeals
requires that "a full and fair record" be developed by the
Administrative Law Judge even if the claimant is represented by
counsel.
1981).

Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
The Court further notes, however, that Plaintiff admits
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that “[a]n Administrative Law Judge is not required to discuss
every piece of evidence on the record, McCray v. Massanari, 175
F.Supp.2d 1329, 1336 (M.D. Ala. 2001) (quoting Black v. Apfel,
143 F.3d 383, 386 (8th Cir. 1998))” (Doc. 11, p. 3).
The IEP completed on February 25, 20112 begins by saying
that Lankford, a second grade student, is “a very bright,
talkative young lady who is very creative.

She has an excellent

vocabulary and seems older than her years.

She scores well in

all academic areas and is able to master standards without
assistance” (Tr. 222).

However, the IEP goes on to say that she

is experiencing extreme behavioral issues at
school which include, but are not limited
to: leaving school without permission,
theft of porpoerty, [sic] physical
aggression towards peers and staff,
inappropriate ‘sexual language’ and willful
disobedience. Accommodations include,
behavioral interventions, special education
crises support, teacher/principal reward
system, cool down time in resource room,
resource room support, student/teacher
conferences, parent conferences, serlf [sic]
contained classroom intervention, adjusted
school day, school based counseling,
referral to resource officer, and referral
to a therapudic [sic] day program.

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The Court notes that there are two IEP’s in this record. The
first was completed in March 2010 (Tr. 213-21) while the second was
concluded on February 25, 2011 (Tr. 222-29). As Plaintiff has quoted
the more recent IEP exclusively, the Court will focus its attention on
that evidence.

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(Tr. 222).

Because of her behavioral problems, Plaintiff was

placed in a homebound program for three hours per week; Lankford
was to be re-evaluated every forty-five days for alternative,
appropriate placement (Tr. 228-29).

There was testimony at the

evidentiary hearing that Plaintiff had been removed from her
school to a day treatment school because of her behavior (Tr.
43).
In his decision, the ALJ stated that he carefully
considered the entire record (Tr. 12).

The ALJ also noted that

Plaintiff “underwent an IEP testing due to her behavior for
special classes.

The claimant was found eligible for special

education and related services due to her behavior” (Tr. 15).
In the “Acquiring and Using Information” domain, the ALJ noted
that “school records from Morningside Elementary School
documented that the claimant earned A’s and B’s” in the 2011
IEP; the ALJ found that Plaintiff had no limitations in this
domain (Tr. 22).

In the “Interacting and Relating with Others”

domain, the ALJ pointed out that “Morningside School record
[sic] document disciplinary problems for which the claimant was
written up and suspended from school as noted in [both IEP’s];”
the ALJ found that Lankford had less than marked limitation in
this domain (Tr. 24).

In the “Health and Physical Well-Being”
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domain, the ALJ made no specific reference to Plaintiff’s IEP
but found that she had less than marked limitation (Tr. 27-28).
The Court notes that the ALJ had nearly three hundred pages
of medical evidence (Tr. 230-525), plus Plaintiff’s
Grandmother’s testimony at the evidentiary hearing, which he
summarized and considered in reaching his decision (Tr. 13-21).
Though all of the evidence will not be summarized herein, the
Court will review the most salient parts.
On October 20, 2006, the Mobile County Department of
Psychological Services administered the Stanford-Binet
Intelligence Scale to Lankford who scored a Nonverbal IQ of 114,
a Verbal IQ of 112, and a Full Scale IQ of 114 (Tr. 232; see
generally Tr. 230-45).

Plaintiff also took the Behavior

Assessment System for Children that measures behavior and
personality; on that test, Lankford’s scores were clinically
significant for the following:

hyperactivity (“[t]he tendency

to be overly active, rush through work or activities, and act
without thinking”); aggression (“[t]he tendency to act in a
hostile manner (either verbal or physical) that is threatening
to others”); and externalizing problems (Tr. 233-34).

There

were also reports from school officials of Plaintiff’s being
defiant to authority, hitting other students, throwing chairs,
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and running away from school (Tr. 236).
On February 18, 2009, Lankford was admitted to Altapointe
Health systems for approximately four weeks; it was noted that
her problems included severe defiance, anger outbursts, and
sadness (Tr. 257-79).

Her behaviors were suggestive of

oppositional defiant disorder and ADHD, combined type, for which
she was given medication, including Abilify.3

It was noted that,

during her hospital stay, Plaintiff had very low frustration
tolerance and that she had to be physically restrained
frequently and given medication to prevent injuring herself; she
also demonstrated sexually inappropriate behavior.
behavior improved before discharge.

Lankford’s

A follow-up note from April

2009 stated that Plaintiff had hit a teacher and destroyed a
classroom and that she continued to lie and steal (Tr. 287).

On

May 13, 2009, it was reported that Lankford had hit and
scratched her teacher the day before and then run into the hall,
taking other students’ ice cream; she was suspended from school
for five days for this behavior (Tr. 285).

On the last day of

school, Plaintiff hit her teacher and called her a bitch (Tr.
283).

At a meeting on August 10, 2009, Lankford stated that she

3

Abilify is a psychotropic drug used in the treatment of
schizophrenia. Error! Main Document Only.Physician's Desk Reference
872-74 (62nd ed. 2008).

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had been having sex with her peers since she was five, six, or
seven years old (Tr. 309).
On August 31, 2009, Psychologist Thomas S. Bennett examined
Lankford and found her alert and oriented in all spheres; she
had good immediate recall and no obvious difficulty with shortor long-term memory (Tr. 322-26).

Abstract reasoning skills

were good; social judgment was adequate.

In his final comments,

Bennett made the following observations:
Her ability to function in an age
appropriate manner cognitively appears to be
average or above average. Her ability to
function communicatively appears to be
average or above average. Her ability to
function socially appears to be quite good
if she is motivated. Her ability to
function adaptively appears to be average or
above average. She has reportedly had
significant behavior problems, but the
actual cause is unknown. Her concentration,
persistence, and pace appear to be quite
good in the current evaluation, though they
were not extensively evaluated.
(Tr. 325) (emphasis added).
Records from Altapointe Health Systems show that Lankford
was kicked out of private school in December 2009 for fighting
her peers and biting her teacher and calling her a bitch (Tr.
395, 399).

She was then suspended from public school; her

principal told her that she could not return unless her
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medications were increased (Tr. 397).

On December 30, 2009,

Plaintiff’s Grandmother stated that Lankford had become
increasingly defiant, acting out and refusing to follow rules
(Tr. 395).

In a note from March 15, 2010, it was noted that

Plaintiff was attending public school, but leaving at noon every
day because of her behavior; it was further noted that she had
been suspended twice during the third quarter for fighting and
had been called to the office several times for stealing (Tr.
389).

On July 21, Lankford’s Grandmother reported that

Plaintiff still lied to her and was acting out sexually (Tr.
499).

A later note reported that during the first couple of

weeks of the new school year, she had had a fight with another
girl, had slapped a boy, kissed a boy, and pulled up her skirt
in class; for these behaviors, Lankford was attending school for
only half a day and sitting in the principal’s office during
P.E. (Tr. 496).
After reviewing some of the relevant portions of the
transcript, the Court finds no merit in Plaintiff’s claim that
the ALJ failed to properly analyze her IEP.

The record is

replete with evidence of her behavioral problems.

The Court

further finds that the record demonstrates that the ALJ
considered the IEP and used it as the basis for his conclusions.
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Lankford has raised a single claim in this action; the
Court has found that that claim is without merit.

Upon

consideration of the entire record, the Court finds "such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion."

Perales, 402 U.S. at 401.

Therefore,

it is ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 13th day of September, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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