Carter v. Colvin
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying the claimants application for supplemental security income benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 12/13/2013. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LYRIC S. CARTER,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial
review of a final decision of the Commissioner of Social Security denying her
application for supplemental security income benefits. 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. (Docs. 25 & 27 (“In accordance with the 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, . . . order the entry of a
final judgment, and conduct all post-judgment proceedings.”).) Upon a consideration of
the administrative record, plaintiff’s brief, the Commissioner’s brief, and the arguments
of the parties at the December 10, 2013 hearing before the Magistrate Judge, it is
determined that the Commissioner’s decision denying benefits should be affirmed.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 25 & 27 (“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.”).)
Plaintiff alleges disability due to depression (NOS), ADHD, oppositional defiant
disorder, and sexual abuse of a child (victim). The Administrative Law Judge (ALJ)
made the following relevant findings:
The claimant was born on December 24, 1994. Therefore, she was
an adolescent on January 14, 2010, the date application was filed, and is
currently an adolescent (20 CFR 416.926a(g)(2)).
The claimant has not engaged in substantial gainful activity since
January 14, 2010, the application date (20 CFR 416.924(b) and 416.971 et
The claimant has the following severe impairments: depression,
not otherwise specified; attention deficit hyperactivity disorder;
oppositional defiance (sic) disorder; and sexual abuse of a child (victim)
(20 CFR 416.924(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.924, 416.925 and 416.926).
The claimant does not have an impairment or combination of
impairments that functionally equals the severity of the listings (20 CFR
416.924(d) and 416.926a).
The claimant has not been disabled, as defined in the Social
Security Act, since January 14, 2010, the date the application was filed
(20 CFR 416.924(a)).
(Tr. 24 & 33 (emphasis in original).) The Appeals Council affirmed the ALJ’s decision
(Tr. 1-3) and thus, the hearing decision became the final decision of the Commissioner
of Social Security.
In all supplemental security income cases, including the present one involving a
claimant under the age of 18, the task for the Court is to determine whether the ALJ’s
decision denying 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. Richardson v. Perales, 402 U.S. 389, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial evidence exists,
we 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).2 Courts are precluded, however, from “deciding the facts anew or reweighing the evidence.” Davison v. Astrue, 370 Fed.Appx. 995, 996 (11th Cir. Apr. 1,
2010) (per curiam), citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Indeed,
“’[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., quoting
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004).
In this case, the plaintiff contends that the ALJ erred in failing to make a
credibility determination regarding her mother’s hearing testimony in violation of SSR
96-7p and, further, his decision to give only some weight to the assessment of her ninth
grade history teacher was not fully explained or based on substantial evidence.
An individual under the age of 18 is considered disabled if
[s]he has a “medically determinable physical or mental impairment
which results in marked and severe functional limitations.” The Social
Security regulations establish a three-step process for determining
whether a child is disabled. Under the first step, the ALJ considers
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
whether the child has engaged in any substantial gainful activity. At step
two, the ALJ considers whether the child has an impairment or
combination of impairments that is severe. At step three, the ALJ must
decide whether the child’s impairment meets, medically equals, or
functionally equals a listed impairment.
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. If the child has “marked” limitations in two of
these domains, or an “extreme” limitation in any one domain, then h[er]
impairment functionally equals the listed impairments, and [s]he will be
found to be disabled. A “marked” limitation is one that seriously
interferes with the child’s ability to initiate, sustain, or complete activities.
An extreme limitation is one that “very seriously” interferes with the
child’s ability to initiate, sustain, or complete activities.
Coleman ex rel. J.K.C. v. Commissioner of Social Security, 454 Fed.Appx. 751, 752 (11th Cir.
Dec. 9, 2011) (internal citations omitted). In the instant case, the ALJ determined that
plaintiff: (1) “has not engaged in substantial gainful activity since January 14, 2010,
the application date” (Tr. 24); (2) “has the following severe impairments: depression,
not otherwise specified; attention deficit hyperactivity disorder; oppositional
defiance (sic) disorder; and sexual abuse of a child (victim)” (id.); (3) “does not have
an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments” (id.); and (4) “does not have an impairment
or combination of impairments that functionally equals the listings[.]” (Id.; see also id.
The plaintiff’s first assignment of error is that the ALJ erred in failing to make a
credibility determination regarding her mother’s hearing testimony in violation of SSR
96-7p. The plaintiff is correct, of course, that SSR 96-7p requires the ALJ to set forth
specific reasons for his credibility findings, supported by evidence in the record, and
while the “discussions” in this ruling refer to claims of individuals age 18 or older
under title XVI, “the same basic principles . . . apply to claims of individuals under age
18 claiming disability benefits under title XVI.” See SSR 96-7p, n.1. Here, however, the
undersigned disagrees with plaintiff’s argument and finds that the ALJ made a
sufficient credibility determination regarding the mother’s testimony.
The claimant’s mother alleges that the claimant is disabled due to
depression, ADHD, posttraumatic stress disorder, and suicidal ideation.
The claimant’s mother testified that the claimant has bad mood swings,
gets angry and depressed, does not have any friends,3 does not get along
with others, and is always fighting. The claimant’s mother also testified
that the claimant has been suspended from school several times, that she
cannot keep in her seat or stay focused. Additionally, the claimant’s
mother reported that the claimant has difficulties concentrating and
controlling her anger.
After considering the evidence of record, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to produce the alleged symptoms; however, the statements
concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with finding
that the claimant does not have an impairment or combination of
impairments that functionally equals the listings for the reasons explained
(Tr. 25-26 (emphasis supplied).)4 The ALJ then explained his reasons for this credibility
determination, namely: (1) there was no evidence of record of any mental health
treatment after April of 2011 and although there were periods of time when Carter had
some significant symptoms, her symptoms ultimately improved such that by the date of
Martin’s hearing testimony that her daughter “has no friends” (Tr. 41) is simply
not borne out by the record (compare, e.g., Tr. 171 (Carter’s student profile on her Individualized
Education Program for School Year 2011-2012 reflects that she likes “hanging out with her
friends”) with Tr. 271 & 273 (referencing a boyfriend and her mother allowing her to “do things
In making this finding, it is clear that the ALJ was not totally rejecting the
mother’s testimony. In other words, “it is evident that the ALJ credited plaintiff’s mother’s
allegations of symptoms, but not to an extent sufficient to find that plaintiff’s limitations were
severe enough to functionally equal those of a listed impairment.” McMillian ex rel. A.T.F. v.
Astrue, 2012 WL 4478783, *8 n.18 (M.D. Ala. Aug. 17, 2012), report and recommendation adopted,
2012 WL 4478780 (M.D. Ala. Sept. 27, 2012), aff’d, 521 Fed.Appx. 801 (11th Cir. Jun. 6, 2013).
the hearing those symptoms were well-controlled with proper use of medication5 (see
Tr. 26);6 (2) the report of the consultative psychologist dated April of 2010 revealed
benign symptoms (Tr. 26-27); and (3) while plaintiff did experience behavioral problems
when she attended Blount High School, her symptoms basically resolved when she
transferred to the Continuous Learning Center (see id. at 27). In addition to the
foregoing, the ALJ considered Martin’s January 19, 2010 Function Report in evaluating
the six functional equivalence domains. (See Tr. 27-33.) Accordingly, the Court finds
that the ALJ’s credibility determination comports with SSR 96-7p and the relevant
inquiry “specified by the Eleventh Circuit for analyzing subjective complaints.”
McMillian ex rel. A.T.F., supra, at *8.
Plaintiff’s only other assignment of error is that the ALJ’s decision to give only
“some” weight to the assessment of her ninth grade history teacher is not fully
explained or based on substantial evidence. The ALJ specifically stated that he was
according “some weight to the assessment of the claimant’s ninth grade history teacher
; however, it is not clear whether the ratings given are based on a diagnosed medical
condition.” (Tr. 27.) And while plaintiff appears to criticize the ALJ for recognizing the
teacher’s failure to link her ratings with a diagnosed medical condition (see Doc. 14, at 5
(“[A]s noted above, medical diagnoses of depressive disorder, ADHD, ODD, and sexual
abuse of a child (victim) are evident in records from AltaPointe Mental Health.”)), there
is simply nothing in the record which would suggest that the history teacher was aware
Indeed, it was Latonya Martin’s explicit testimony at the August 10, 2011
administrative hearing that when her daughter is “on the medicine she’s more calm and she’ll
listen, but it still takes her a minute to do little things. But when she’s not on the medicine she’s
a whole different person.” (Tr. 42.)
The mental health records from the latter portion of 2010 through April of 2011
reflect normal symptoms and a stable condition. (See Tr. 267-297.)
of Carter’s mental health treatment and diagnoses. Regardless of the foregoing,
plaintiff simply does not establish how the ALJ’s decision to accord only “some” weight
to the teacher’s assessment, as opposed to significant weight, would have necessarily
changed the functional equivalence analysis. Cf. Delosa ex rel. A.L.D. v. Commissioner of
Social Security, 2013 WL 4002329, *3 (M.D. Fla. Aug. 6, 2013) (court noted that the ALJ
not only considered the evaluations submitted by the child’s teachers, “she also gave
them weight: . . . [specifically] ‘some weight.’”). First, with respect to every domain of
that analysis, save health and physical well-being, the ALJ specifically considered the
teacher’s assessment ratings in making his “limitation” determination. (See Tr. 27-33.)7
More importantly, while plaintiff argues that her ninth grade history teacher’s ratings
equate to “marked impairments in attending and completing tasks and interacting and
relating with others” (Doc. 14, at 5), not only does she fail to cite to any case law which
supports that argument but, as well, the evidence of record is to the contrary. Indeed,
the ALJ’s “domain” limitations are supported by: (1) the May 20, 2010 assessment
completed by Dr. Linda Duke after a record review, including a review of the teacher’s
assessment (Tr. 252-257); (2) the April 20, 2010 objective findings of consultative
examiner Dr. Jennifer M. Jackson, including no limitations identified with respect to
orientation, concentration and attention,8 memory, fund of information, thought
Plaintiff’s ninth grade teacher, of course, did not evaluate the domain of health
and physical well-being. (See Tr. 130-135.) And while plaintiff’s ninth grade history teacher also
did not evaluate the domain of moving about and manipulating objects (see id.), it was not
erroneous for the ALJ to note that “claimant’s teacher [did not] report any difficulties in
moving about and manipulating objects[.]” (Tr. 31.)
“Lyric attended to instructions without apparent difficulty. Her attention span
seemed appropriate. She did not appear to have trouble concentrating. She did not seem easily
distracted. Lyric was able to subtract serial 7’s correctly. She could add 4+5 and subtract $6 from
$10. She could count backward from 20 to 1. She was able to spell ‘world’ backward.” (Tr. 249.)
process, and thought content (Tr. 249); (3) education records from the Continuous
Learning Center in the spring of 2011 reflecting better grades and comments from her
science teacher that she was cooperative and motivated to learn and from her remedial
math teacher that her conduct was satisfactory (Tr. 182); and (4) the mental health
records supplied by AltaPointe Health Systems from the latter portion of 2010 through
April of 2011 (Tr. 267-297). Thus, even assuming the ALJ somehow erred in according
only “some” weight to the ninth grade teacher’s assessment, such error was harmless
since substantial evidence in the record supports the ALJ’s ultimate determination—the
only determination to which the teacher’s assessment has any import—that plaintiff’s
impairments are not functionally equivalent to a listed impairment. Cf. Swilling ex rel.
L.G.M.W. v. Astrue, 2011 WL 2982522, *3 (M.D. Ala. July 22, 2011) (“Even though the
ALJ did not specifically state he considered the teacher’s questionnaire, his general
comment about opinion evidence is sufficient to show that he did consider all the
evidence. Moreover, even if it was error, it is harmless. The opinion of the ALJ shows
that he carefully considered the evidence in this case and was extremely familiar with it.
A remand is not required.”).
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying the claimant’s application for supplemental security income
benefits be affirmed.
DONE and ORDERED this the 13th day of December, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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