Isaac v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying the plaintiff benefits be AFFIRMED. Signed by Magistrate Judge William E. Cassady on 10/30/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CELIA ISAAC o/b/o JDM, Jr., a minor,
Plaintiff,

:
:

v.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 1:12-00097-C

:
MEMORANDUM OPINION AND ORDER

The plaintiff brings this action on behalf of her son, JDM, Jr., a minor (see Doc. 1,
¶¶ 1-2), pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial review of a final decision of
the Commissioner of Social Security denying an application for Supplemental Security
Income (“SSI”).

The parties have consented to the exercise of jurisdiction by the

Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court.

(See

Doc. 21 (“In accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the
parties in this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and conduct
all post-judgment proceedings.”).)

Upon consideration of the administrative record

(“R.”) (Doc. 12), the plaintiff’s brief (Doc. 13), the Commissioner’s brief (Doc. 16), and
the arguments presented at the October 4, 2012 Hearing (see Doc. 20), it is determined
that the Commissioner’s decision denying benefits should be AFFIRMED.1

1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 21 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”).)

Procedural Background
On December 2, 2008, the plaintiff filed an application for SSI on behalf of her
son, alleging disability beginning November 13, 2008 (R. 151-153), due to
attention-deficit hyperactivity disorder (“ADHD”) (R. 158). 2
initially denied on May 18, 2009.

(See R. 80).

Her application was

A hearing was then conducted before an

Administrative Law Judge on May 18, 2010 (see R. 49-78).

On June 2, 2010, the ALJ

issued a decision finding no disability (R. 23-48), and the plaintiff sought review from
the Appeals Council (see R. 21).

The Appeals Council issued its decision declining to

review the ALJ’s determination on December 30, 2011 (see R. 1-6)—making the ALJ’s
determination the Commissioner’s final decision for purposes of judicial review, see 20
C.F.R. § 404.981—and a complaint was filed in this Court on February 17, 2012 (see Doc.
1).
Standard of Review and Claim on Appeal
In all Social Security appeals, even those involving benefits for an individual
under the age of 18, such as this one, the task for this Court is to determine whether the
ALJ’s decision to deny benefits is supported by substantial evidence.

Substantial

evidence is defined as more than a scintilla, and means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Perales, 402 U.S. 389, 401 (1971).

Richardson v.

“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.”

2

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

The plaintiff filed two previous applications for SSI, which were both denied, in
September, 2004 and March, 2007, respectively, and not further appealed. (See R. 52-53.)

2

131 (11th Cir. 1986). Courts are precluded, however, from “deciding the facts anew or
re-weighing the evidence.”

Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1,

2010) (per curiam) (citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).

And,

“[e]ven if the evidence preponderates against the Commissioner’s findings, [a court]
must affirm if the decision reached is supported by substantial evidence.”

Id. (citing

Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the plaintiff asserts a single reason for why the
Commissioner’s decision should be reversed: “[t]he ALJ [ ] erred in failing to find that
[JDM, Jr.] meets Listing 112.05D.”

(Doc. 13 at 1.)
Discussion

The plaintiff contends that because “Listing 112.05D [was] implicated by [JDM,
Jr.’s] available test scores” and the ALJ found JDM, Jr. suffers from a severe impairment,
ADHD and borderline intellectual functioning (“BIF”) (see R. 29), which, she contends,
“establishes an additional mental impairment imposing additional and significant
limitations of functioning[,]” thus “satisf[ying] the second prong of Listing 112.05D[,]”
the ALJ committed reversible error by both failing to address Listing 112.05(D) in her
decision and not finding that JDM, Jr. meets that Listing (Doc. 13 at 3).
An individual under the age of 18, like JDM, Jr. (born in 1999 (see R. 29)),
is considered disabled if he has a “medically determinable physical or
mental impairment, which results in marked and severe functional
limitations.” 42 U.S.C. § 1382c(a)(3)(C)(i); 20 C.F.R. § 416.906. The
Social Security regulations establish a three-step process for determining
whether a child is disabled. 20 C.F.R. § 416.924(a). Under the first step,
the ALJ considers whether the child has engaged in any substantial
gainful activity. Id. At step two, the ALJ considers whether the child
has an impairment or combination of impairments that is severe. Id. At
step three, the ALJ must decide whether the child’s impairment meets,
medically equals, or functionally equals a listed impairment. Id.
3

In determining whether an impairment functionally equals a listed
impairment, the ALJ must consider the child's ability to function in six
different “domains”: (1) acquiring and using information; (2) attending
and completing tasks; (3) interacting and relating with others; (4) moving
about and manipulating objects; (5) “caring for yourself;” and (6) health
and physical well-being. 20 C.F.R. § 416.926a(b)(1). If the child has
“marked” limitations in two of these domains, or an “extreme” limitation
in any one domain, then his impairment functionally equals the listed
impairments, and he will be found to be disabled. Id. § 416.926a(d). A
“marked” limitation is one that seriously interferes with the child’s ability
to initiate, sustain, or complete activities. Id. § 416.926a(e)(2)(i). An
extreme limitation is one that “very seriously” interferes with the child's
ability to initiate, sustain, or complete activities. Id. § 416.926a(e)(3)(i).
Coleman ex rel. J.K.C. v. Commissioner of Soc. Sec., 454 Fed. App’x 751, 752 (11th Cir. Dec.
9, 2011) (per curiam) (affirming an order of this Court affirming the ALJ’s denial of SSI
benefits for a minor child).3
Here, the ALJ determined that (1) JDM, Jr. has not engaged in substantial gainful
activity since the alleged disability onset date, November 13, 2008 (R. 29) and (2) his
ADHD and BIF are severe impairments (id.), but, at step three, concluded that (3) his
severe impairments neither meet or medically equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1—specifically, Listing 112.11, which deals with
ADHD4—nor functionally equal the listings (id. at 29-43).5

3

“The Listing of Impairments, located at Appendix 1 to Subpart P of the
regulations, describes impairments the SSA considers to be severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience. In other words, a claimant who meets the requirements of a listed impairment will
be deemed conclusively disabled.” Johnson ex rel. Johnson v. Commissioner of Soc. Sec., No. 1:09–
cv–967, 2011 WL 4954049, at *6 (W.D. Mich. Sept. 22, 2011) (noting that “[t]he structure of the
mental disorders listing for children under the age of 18 parallels the structure of the mental
disorders listings for adults, but is modified to reflect the presentation of mental disorders in
children), report & recommendation adopted, 2011 WL 4954253 (W.D. Mich. Oct. 17, 2011) (citations
omitted and emphasis added).
4

“Under the third step, a child’s impairment is medically equal to a listed
impairment if it is at least equal in severity and duration to the medical criteria of the listed
impairment.” Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 854 (8th Cir. 2003) (citing 20

4

1.

The ALJ did not err by not considering whether JDM’s Jr. meets Listing
112.05(D) because the plaintiff has not shown that her son has a valid
qualifying score.

On appeal, the plaintiff contends that JDM, Jr.’s “working memory” score of 68,
achieved when the state agency examiner, Dr. Bennett, administered the Wechsler
Intelligence Scale for Children–IV (“WISC–IV”), should have triggered the ALJ to
consider whether—and find that—JDM, Jr. met Listing 112.05(D), which, in part,
requires that a claimant have a “valid verbal, performance, or full scale IQ of 60 through
70” (see Doc. 13 at 3 (“Despite Listing 112.05D being implicated by the available test
scores, the ALJ did not address this Listing in her decision.
provided.”)).6

No explanation is

When questioned at oral argument about what a “working memory”

C.F.R. § 416.926(a)). And, “[s]tanding alone, a diagnosis of ADHD does not establish a
disability under the Act.” F.S. v. Astrue, No. 1:10–CV–444 (MAD), 2012 WL 514944, at *10
(N.D.N.Y. Feb. 15, 2012) (citing Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999)).
5

Whether a claimant’s severe impairment(s) meets or medically equals a listing is
an inquiry separate from whether his severe impairment(s) functionally equals a listing. See,
e.g., F.S., 2012 WL 514944, at *4 (“Equivalence to a Listing can be either medical or functional.”)
(citing, inter alia, 20 C.F.R. § 416.924(d)) (emphasis added). The determinations should not be
conflated, and as the ALJ did here (see R. 29), separate findings should be made as to each.
Contra Brown ex rel. M.J.A.B. v. Astrue, Civil Action No. 1:11cv859–TFM, 2012 WL 4896087, at *12
(M.D. Ala. Oct. 15, 2012) (“When determining that M.J.A.B. ‘does not have marked limitations
in two of the following: age-appropriate cognitive/communicative function; age-appropriate
social functioning; age appropriate personal functioning; and concentration, persistence, or
pace’, the ALJ improperly conflated his assessment of whether M.J.A.B. meets or medically
equals Listing 112.05 with a determination of whether he functionally equals the Listing.”)
(emphasis in original, record cite omitted).
6

While the plaintiff points to other seemingly low test scores in her brief (from
testing administered by the Mobile County Public School System (“MCPSS”) in September,
2008), the claimant’s other WISC-IV scores, from the same administration, are above 70: Verbal
Comprehension—89; Perceptual Reasoning—75; Processing Speed—91; and Full Scale IQ—76.
(Id. at 2.) See also A.G. v. Lower Merion Sch. Dist., Civil Action No. 11–5025, 2012 WL 4473244, at
*4 (E.D. Pa. Sept. 28, 2012) (noting that “the Wechsler Intelligence Scale for Children–IV (‘WISC–
IV’) . . . measures a child’s verbal comprehension, perceptual reasoning, working memory,
processing speed, and full-scale intelligence quotient (‘IQ’)”) (citation and internal quotation
marks omitted).

5

score meant—specifically, whether a “working memory” score was the same as a verbal
or performance IQ—counsel for the plaintiff advanced the position that, while the
fourth edition of the WISC still provides a full scale IQ, it no longer provides a verbal IQ
or performance IQ, that the regulations have not kept up with the testing protocol, and,
as such, the Court should consider the “working memory” score of 68 as qualifying the
claimant for consideration under Listing 112.05(D).
The Court rejects this position.

First, “[t]he burden lies with the claimant to

prove that he meets or equals a Listing.”

Gray ex rel. Whymss v. Commissioner of Soc.

Sec., 454 Fed. App’x 748, 750 (11th Cir. Dec. 8, 2011) (per curiam) (citing Barron v.
Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)) (emphasis added).

And the plaintiff simply

has not provided the Court with any support for the position that it should take JDM’s
Jr.’s “working memory” score of 68 to mean that he has a “valid verbal, performance, or
full scale IQ of 60 through 70.”

Moreover, there is, in fact, authority to the contrary.

Further, as the ALJ explains in her findings (see R. 30-32), an expert witness, Dr.
McKeown, testified that low scores achieved by JDM, Jr. in the September 19, 2008 MCPSS
Testing (R. 306-319), including on the Woodcock and Kaufman tests, considered together with
other record evidence, suggest that JDM, Jr. “functions in the borderline range” (R. 32):
Dr. McKeown stated the claimant’s adaptive living skills also show he is
functioning in the borderline range. He opined the record as a whole does not
support mild mental retardation as an impairment. He testified the claimant’s
Woodcock achievement levels were in the borderline range. In reference to the
discrepancy between[ ] the claimant’s 2008 achievement and Kaufman scores, Dr.
McKeown stated the difference can reveal a learning disability, which is reflected
by the claimant’s ADHD treatment.
(Id.) Indeed, when they met to review the September, 2008 Testing, although JDM, Jr.’s IEP
team discussed the possibility of mental retardation due to his low adaptive behavior scores,
they “decided that SLD [specific learning disabilities was the] more appropriate placement.”
(R. 183-185.)

6

While “[t]he WISC-IV does not assess Verbal or Performance IQ” per se, Mapps ex
rel. M.J. v. Astrue, No. 3:09–CV–2226–O–BH, 2010 WL 1946662, at *12 n.10 (N.D. Tex.
Apr. 30, 2010), report & recommendation adopted, 2010 WL 1948363 (N.D. Tex. May 13,
2010), other scores reported by the WISC-IV are “equivalent to” verbal IQ and
performance IQ.

As explained by the court in Green ex rel. K.C.G. v. Astrue, Civil

Action No. 09–1028, 2011 WL 1440363 (M.D. La. Feb. 15, 2011), report & recommendation
adopted, 2011 WL 1456218 (M.D. La. Apr. 14, 2011),
while the previous version of the Wechsler, the WISC–III, reported scores
as performance IQ, verbal IQ, and full scale IQ, as used by the Listing, the
WISC–IV reports scores as “verbal comprehension,” “perceptional
reasoning,” “working memory,” “processing speed,” and “full scale
score.” The WISC–IV Administration and Scoring Manual instructs that
the WISC–IV “Verbal Comprehension Index” is equivalent to Verbal IQ in
the WISC–III and “Perceptional Reasoning” is equivalent to Performance
IQ in the WISC–III:
Users of the WISC–III and previous Wechsler intelligence scales
should note the change in terminology for the composite scores . .
. . The terms Verbal IQ (VIQ) and Performance IQ (PIQ) have
been replaced with the terms Verbal Comprehension Index (VCI)
and Perceptual Reasoning Index (PRI) respectively.
Id. at *4 (quoting David Wechsler, WISC–IV Administration and Scoring Manual, p. 4, The
Psychological Corporation (2003)); cf. Baldwin v. Astrue, Civil Action No. 11–cv–01553–
WYD, 2012 WL 2190836, at *4 n.1 (D. Colo. June 14, 2012).7

7

There, the court, in a fairly recent decision, discussed the discrepancy between
the Listings and the WISC noted by the plaintiff’s counsel at oral argument:
The current version of Listing 112.05C became effective September 20, 2000, and
directly tracks the structure of the WISC–III. The WISC–IV was released in
2003, and the Social Security Administration [“SSA”] has not updated the Listing
to reflect the different scores reported by the new version of the test. There is
no information in this Record or in any of SSA’s regulations or rulings that
instructs how to translate the results of the WISC–IV into the scores needed to
satisfy the Listing. Consequently, in the event of a conflict between the WISC–

7

As noted previously, the plaintiff’s argument fails because she has not carried
her burden to show that the Court can rely on the claimant’s WISC-IV “working
memory” score of 68, see id.; moreover, given the Court’s independent research into this
issue, it appears that a “working memory” score is neither “equivalent to” a verbal IQ
nor “equivalent to” a performance IQ, see Green ex rel. K.C.G., 2011 WL 1440363, at *4.
In fact, the claimant’s scores that appear to be “equivalent to” verbal IQ (an 89 on
“verbal comprehensive”) and performance IQ (a 75 on “perceptual reasoning”) are
outside the range required by Listing 112.05(D).
2.

Even if JDM, Jr. possessed a valid qualifying score and although he has
a severe impairment, the ALJ did not err by not considering Listing
112.05(D) because the plaintiff has not shown that her son meets all the
requirements for that Listing.

A qualifying “score and an accompanying severe impairment alone are not
sufficient to satisfy Listing 112.05(D).”

Richard ex rel. Z.N.F. v. Astrue, No. 11–30766,

2012 WL 2299479, at *2 (5th Cir. June 15, 2012) (per curiam); Elliot v. Astrue, No. 3:09–cv–
985–J–JRK, 2011 WL 1230542, at *12 (M.D. Fla. Mar. 30, 2011) (“Plaintiff mistakenly
assumes that there are only two requirements to meet Listing 112.05: (1) the IQ score
requirement; and (2) the requirement of a physical or mental impairment.”); cf. Kine ex
rel. Z.E.K. v. Astrue, Civil Action No. 2:10cv751–MEF, 2012 WL 705336, at *5-6 (M.D. Ala.
Feb. 13, 2012) (“On the whole, Z.E.K. is essentially arguing that, standing alone, his IQ
scores establish a disability.

As a matter of law, they do not.”), report & recommendation

adopted, 2012 WL 695494 (M.D. Ala. Mar. 5, 2012).
III and WISC–IV (as in this case), it would appear that the WISC–III provides the
most appropriate data for evaluating whether the claimant meets the Listing.
Id. at *4 n.1.

8

A claimant satisfies Listing 112.05(D) if (1) his impairment is
“[c]haracterized by significantly subaverage general intellectual
functioning with deficits in adaptive functioning;” and (2) he has a “valid
verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant
limitation of function.”
Id.
The first prong[,contained in the
introductory paragraph,] is sometimes called the “capsule” requirement
or the general diagnostic description that applies to all of [ ] Listing 112.05,
while the second prong is one of several ways to satisfy the Listing’s
severity requirement.
Richard ex rel. Z.N.F, 2012 WL 2299479, at *2 (citing Randall v. Astrue, 570 F.3d 651, 658
(5th Cir. 2009) (“[E]very mental disorder listing includes two independent components:
a diagnostic description of the disorder and specific criteria measuring the disorder’s
severity.”)); see also Gray ex rel. Whymss, 454 Fed. App’x at 750 (“[T]o be entitled to
benefits, Gray must prove that her son meets both the requirements in the diagnostic
description of the introductory paragraph and the listed severity criteria in 112.05D.”);
Singleton ex rel. M.T.S. v. Astrue, Civil Action No. 2:11cv512–CSC, 2012 WL 666098, at *4
(M.D. Ala. Feb. 29, 2012) (“[I]t is not sufficient to merely demonstrate an IQ score in the
appropriate range and an additional physical or mental impairment. M.T.S. is also
required to demonstrate that she has deficits in adaptive functioning sufficient to satisfy
the diagnostic description in the introductory paragraph of § 112.05.”).
First, on appeal, the plaintiff fails to meaningfully address whether JDM, Jr.
meets the general diagnostic description/”capsule” requirement for Listing 112.05.
She too “mistakenly assumes” that a purportedly qualifying score and a severe
impairment obligate an ALJ to explicitly consider—and find—that a child meets the
Listing.

Elliot, 2011 WL 1230542, at *12.

That is simply not the law in this Circuit.

“Although [an] ALJ must consider the Listings, there is no requirement that the
ALJ mechanically recite the evidence leading to his ultimate determination.”
9

Gray ex

rel. Whymss, 454 Fed. App’x at 750 (citing Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th
Cir. 1986)).

Moreover, “[a] finding that a claimant’s impairments are not contained in

the Listings may be implied from [an] ALJ’s decision.”

Id.

In Gray, in which “the ALJ

did not explicitly cite Listing 112.05D, [but, like the ALJ here,] found that [the child] did
not meet one of the Listings” and “properly cited the three-step process[,]” the Eleventh
Circuit affirmed the ALJ’s decision, citing to “evidence in the record, the ALJ could
have” used to find that the child did not meet the listing—including (1) that the child’s
“IQ score of 66 was inconsistent with other evidence of his activities and behavior, and
therefore was not conclusive[,]” see Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)
(“a valid IQ score need not be conclusive of mental retardation where the score is
inconsistent with other evidence on the claimant's daily activities and behavior”), and
(2) the child “did not have deficits in adaptive functioning.”

454 Fed. App’x at 750

(emphasis added); compare id., with Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855
(8th Cir. 2003) (where, like here, an ALJ found that a child had the severe impairments
of borderline intellectual functioning and attention deficit hyperactivity disorder, but
had neither an impairment medically equal to a listed impairment nor impairments that
resulted in marked limitations in any of the six functional domains, the court of appeals
noted, “[a]lthough it is preferable” to do so, an ALJ’s failure “to address [an]
impairment in relation to the specific criteria of mental retardation, under listing
112.05(D)[,] . . . is not reversible error if the record supports the overall conclusion, as it
[did] in [that] case”) (citations omitted); see also Jackson ex rel. K.J. v. Astrue, 734 F. Supp.
2d 1343, 1365 n.17 (N.D. Ga. 2010) (noting that “the Eleventh Circuit has indicated that
the ALJ’s lack of discussion of a specific Listing at Step Three is not fatal to the ALJ’s

10

decision”) (citing Turberville ex rel. Rowell v. Astrue, 316 Fed. App’x 891, 893 (11th Cir.
Feb. 18, 2009) (per curiam) (“We conclude that—though the ALJ did not explicitly
discuss why Rowell did not actually meet Listing 112.05—substantial record evidence
supports that Rowell’s condition did not actually or functionally meet Listing 112.05
and, therefore, supports the ALJ’s ultimate conclusion that Rowell was not disabled.”)).
Here, the ALJ may not have addressed Listing 112.05(D) explicitly—possibly
because, as explained above, although JDM, Jr. has the severe impairment of ADHD
(which explains why the ALJ explicitly discussed Listing 112.11), he does not possess a
valid score qualifying him for Listing 112.05(D)—but the record evidence clearly
supports the conclusion that the claimant does not meet the Listing, and, moreover, the
ALJ discussed this record evidence at length (for more than 13 pages (R. 29-43)), in
considering whether JDM, Jr.’s impairments functionally equal the listings.

And the

plaintiff has not challenged these functional findings.
Conclusion
Based on the case law, as set out herein, and the Court’s review of the ALJ’s
decision, specifically her extensive discussion of whether JDM, Jr.’s impairments
functionally equal a Listing, it is clear that the decision is supported by substantial
evidence.

It is therefore ORDERED that the decision of the Commissioner of Social

Security denying the plaintiff benefits be AFFIRMED.
DONE this the 30th day of October, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

11