Edwards v. Colvin

Filing 21

Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for child supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/26/2015. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TACARA EDWARDS, o/b/o T.S.,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 13-00562-B

ORDER
Plaintiff Tacara Edwards (hereinafter “Plaintiff”) brings
this action on behalf of her minor child, T.S., seeking judicial
review

of

Security

a

final

denying

decision

her

claim

of
for

the

Commissioner

child

of

supplemental

Social
security

income under Title XVI of the Social Security Act, 42 U.S.C. §
1381, et seq.

On October 30, 2014, the parties consented to

have the undersigned conduct any and all proceedings in this
case.

(Doc.

18).

Thus,

this

case

was

referred

to

the

undersigned to conduct all proceedings through entry of judgment
in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
(Doc.

20).

Oral

argument

was

waived.

Upon

careful

consideration of the administrative record and the memoranda of
the

parties,

it

is

hereby

Commissioner be AFFIRMED.

ORDERED

that

the

decision

of

the

I.

Procedural History
Plaintiff

protectively

filed

an

application

for

supplemental security income benefits on behalf of her daughter
T.S. on March 5, 2009, when T.S. was eight months old. 1 (Tr.
242).

Plaintiff

alleged

that

T.S.

February 1, 2009, due to bronchitis.2

has

been

disabled

(Id. at 246).

since

Plaintiff’s

application was denied at the initial stage on April 22, 2009.
(Id. at 127).
on

December

Levinson

Plaintiff filed a timely Request for Hearing, and
17,

2010,

(hereinafter

Administrative

“ALJ”)

held

an

Law

Judge

Michael

administrative

L.

hearing,

which was attended by Plaintiff, her daughter T.S. (who at the
time was two and a half years old), and Plaintiff’s attorney.
(Id. at 32).
At the hearing, Plaintiff alleged for the first time that
T.S. was also mentally retarded.

(Id. at 48).

In light of the

new allegation of impairment based on mental retardation, the
ALJ adjourned the hearing to obtain a review of T.S.’s records
by a physician.

(Id. at 50).

On May 20, 2011, the ALJ held a

second administrative hearing, which was attended by Plaintiff,
1

T.S. was born on June 17, 2008.

2

(Tr. 227).

At the time of her application on March 5, 2009, Plaintiff did
not allege that T.S. was mentally retarded.
(Tr. 246).
Similarly, in her “Disability Report-Appeal” form dated May 13,
2009, Plaintiff reported that T.S.’s only disabling medical
condition was asthma, stating that it affects her breathing and
sleeping. (Id. at 256, 259-60).

2

her daughter T.S. (who at the time was approximately three years
old), Plaintiff’s attorney, and a medical expert, Dr. Juliet
Hananian, M.D.

(Id. at 52).

On June 3, 2011, the ALJ issued an

unfavorable decision finding that T.S. is not disabled.
116).

(Id. at

Plaintiff requested review of the ALJ’s decision by the

Appeals Council, and on November 3, 2011, the Appeals Council
remanded

the

claim

for

further

development

of

the

record

concerning the claimant’s diagnosis of mental retardation.
at

124).

develop

The
the

impairment

of

Appeals

Council

record

regarding

mental

retardation

directed

psychological examination.

the
by

the

ALJ

claimant’s
obtaining

(Id. at 124-25).

a

to

(Id.

further

“possible”
consultative

On March 5, 2012,

the ALJ obtained a consultative psychological examination by Dr.
Donald Blanton, Ph.D.

(Id. at 437).

On April 11, 2012, the ALJ held a third administrative
hearing, which was attended by Plaintiff, her daughter T.S. (who
at the time was three years and ten months old), and Plaintiff’s
attorney.

(Id. at 81).

On May 4, 2012, the ALJ issued a second

unfavorable decision finding that T.S. is not disabled.
17).

(Id. at

Plaintiff requested review of that decision by the Appeals

Council, and, after considering additional evidence submitted by
Plaintiff, the Appeals Council denied Plaintiff’s request for
review on September 18, 2013.

(Id. at 1).

Thus, the ALJ’s decision dated

3

May 4, 2012, became the

final

decision

of

the

Commissioner.

administrative

remedies,

civil action.

(Doc. 1).

Plaintiff

Having

timely

exhausted

filed

the

her

present

The parties agree that this case is

now ripe for judicial review and is properly before this Court
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issues on Appeal
A.

Whether substantial evidence supports
the ALJ’s determination that claimant
is not disabled as a result of her
alleged mental retardation impairment?

B.

Whether the
failing
to
additional
Plaintiff?

Appeals Council erred in
adequately
examine
the
evidence
submitted
by

III. Factual Background
As stated above, T.S. was born on June 17, 2008, and was
eight months old at the time that her mother protectively filed
an

application

for

supplemental

security

income

benefits

on

March 5, 2009, alleging that T.S. was disabled on the basis of
bronchitis.

(Tr.

242,

246).

At

the

time

of

her

first

administrative hearing on December 17, 2010, T.S. was two and a
half years old, and her mother at that time alleged disability
on the basis of mental retardation as well.

(Id. at 32, 48-50).

The record reflects that on November 11, 2010, when T.S.
was

approximately

two

and

a

half

years

old,

her

treating

physician, Dr. Ashraf Syed diagnosed her with “moderate mental

4

retardation (MR) with hyperactivity.”
5,

2012,

at

the

age

of

(Id. at 395).

approximately

three

years

On March
and

nine

months, consultative psychologist, Dr. Donald Blanton, Ph.D.,
opined that T.S.’s alleged mental retardation was “untestable,”
but,

nonetheless,

retardation,
disorder.”

he

estimated”

diagnosed
and

her

with

“attention

“mild

mental

deficit/hyperactivity

(Id. at 437) (emphasis added).

The following month, at T.S.’s third administrative hearing
conducted

on

April

11,

2012,

T.S.’s

mother,

Ms.

Edwards,

testified that T.S. (who was three years and ten months old) was
attending “Head Start” school, that she could say only “small
words,” that she was scheduled for speech therapy, that she had
problems focusing, and that she had severe behavior problems. 3
(Id.

at

testified

86,
that

90-91,
T.S.

91-95,
could

101-02).
feed

herself.

However,
(Id.

Ms.
at

Edwards
96).

Ms.

Edwards also testified that T.S. was taking medication for ADHD
but that it was not helping.4

(Id. at 90).

3

Plaintiff testified that T.S. hits her little brother, that she
tried to suffocate him once with a pillow, that she eats her own
feces approximately twice a week, that she beats herself in the
head and pulls her own hair, and that the child tells Plaintiff,
“I hate myself.” (Tr. 91-93, 101-02).

4

Plaintiff’s medications include Risperdal and Vyvanse (for
ADHD) and albuterol (for asthma). (Tr. 90, 97, 99). Plaintiff
has not appealed the ALJ’s findings with respect to T.S.’s
asthma or bronchitis.
The only medical conditions at issue on
appeal are T.S.’s alleged mental retardation and ADHD. (Doc.
14).

5

IV.

Analysis
A.

Standard of Review

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

is

a

limited

determining

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

Martin v. Sullivan, 894 F.2d
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

findings

of

fact

must

be

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,
*4 (S.D. Ala. June 14, 1999).

6

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

became effective on August 22, 1996.
110

Stat.

1382c).

2105

§

211(b)(2)

(1996)

based

on

disability,

See Pub. L. No. 104-193,
(codified

at

42

U.S.C.

§

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.

See 42 U.S.C. § 1382c(a)(3)(C)(i), 20 C.F.R. § 416.906.

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 and 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 is 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

7

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 meets or is medically
or functionally equal to an impairment listed in Appendix 1 of
20

C.F.R.

part

404,

subpart

duration requirement.

P,

and

otherwise

satisfies

the

20 CFR § 416.924.

A child’s impairment(s) meets the listings’ limitations if
he or she actually suffers from limitations specified in the
listings for the severe impairment.

Shinn v. Commissioner of

Soc. Sec., 391 F.3d 1276, 1279 (11th Cir. 2004).
impairment(s)

medically

equals

the

listings

if

A child’s
his

or

her

limitations are at least of equal severity and duration to the
listed impairment(s).

Id. (citing 20 CFR § 416.926).

Where a

child’s impairment or combination of impairments does not meet
or

medically

equal

any

listing,

then

the

Commissioner

must

determine whether the impairment or combination of impairments
results in limitations that functionally equal the listings.
CFR § 416.926a.
three,

the

20

To establish functional equivalence in step

claimant

must

have

a

medically

determinable

impairment or combination of impairments that results in marked
limitations in two functional domains or an extreme limitation
in one domain.

20 CFR § 416.926a(a).

The six domains are: (1)

acquiring and using information; (2) attending and completing

8

tasks; (3) interacting and relating to others; (4) moving about
and manipulating objects; (5) caring for oneself; and (6) health
and physical well-being.
C.
In

20 CFR 416.926a.

Discussion
the

case

sub

judice,

the

ALJ

determined

that

the

claimant has not engaged in substantial gainful activity since
March 5, 2009, the application date, and that she has the severe
impairment of attention deficit hyperactivity disorder (“ADHD”).
(Tr.

18).

The

ALJ

found

the

retardation to be non-severe.
found

that

the

claimant

claimant’s

(Id. at 21).

does

not

have

alleged

mental

The ALJ further
an

impairment

or

combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1, nor does she have an impairment or combination of
impairments that functionally equals the listings.

(Id.).

With respect to the functional equivalence domains, the ALJ
found that T.S. has “less than marked” limitations in the domain
of health and physical well-being and “no limitation” in the
domains

of

acquiring

and

using

information,

attending

and

completing tasks, interacting and relating with others, moving
about and manipulating objects, and caring for oneself.
23-24).

(Id. at

Accordingly, the ALJ concluded that, because T.S. does

not meet or medically equal any of listings set forth in 20 CFR
Part 404, Subpart P, Appendix 1, nor does she functionally equal

9

the

listings

by

having

an

impairment

impairments that results in either “marked”

or

combination

of

limitations in two

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

(Id. at 25).

In determining that the claimant’s mental retardation was
non-severe, the ALJ made the following relevant findings:
On February 14, 2011, the claimant was
evaluated for a language delay and behavior
problems at UAB (Exhibit 18F). The claimant
was receiving speech therapy through Early
Intervention
Services
(Exhibit
18F).
Additional genetic testing was requested in
an
attempt
to
explain
the
claimant’s
developmental history. The results of that
testing were normal and it was recommended
that the claimant return in two to three
years for ongoing evaluation (Exhibit 18F).
The claimant returned to Dr. Syed on March
17, 2011, and her parents reported that she
had “been doing well and responded with the
medication fine (Exhibit 16F).
They also
reported that the claimant’s appetite was
good and her sleeping pattern was unchanged
(Exhibit 16F).
Juliet Hananian, M.D., [a board-certified
pediatrician,
who
testified
at
the
supplemental hearing held on May 20, 2011],
testified that while the child’s qualified
diagnosed (sic) of mild mental retardation,
was
based
entirely
on
the
mother’s
statements as, according to the doctor, the
child was too year (sic) to be reliably
tested for confirmation.
Dr. Hananian
continued that a physical examination cannot
be the basis of a mental or behavior
diagnosis. I accept the testimony of Dr.
Hananian and find that there is no reliable
evidence of either mild mental retardation
or asthma.

10

Moreover, the questionnaire completed by
Ashley Jones, the claimant’s Head Start
teacher further confirms that the claimant
is not mentally retarded, just the contrary.
Ms. Jones advises that the claimant was in
regular, not special education, classes at
the Head Start program. When asked how the
claimant performs academically, Ms. Jones
writes:
“[Claimant]
performs
average
academically
in
comparison
to
other
children.
She knows basic skills for her
age
group.
[Claimant]
understands
and
comprehends the teacher’s instructions. She
understands the basic skills taught in the
classroom, such as recognizing alphabets,
colors
and
numbers.”
She
continued,
“[Claimant] plays cooperatively with the
other
children,
makes
friends,
seeks
attention appropriately, expresses herself
very well, follows rules, respects and obeys
adults.”
When asked how the claimant
interacts with and responds to teachers, Ms.
Jones stated, “[Claimant]
respects and
obeys both adults in the classroom.”
“The child will listen and follow given
instructions.” Ms. Jones indicated that the
claimant pays attention when she is spoken
directly to, stays focused and completes her
assigned
tasks,
and
changes
from
one
activity
to
another
without
being
disruptive.
Ms.
Jones
stated
that
the
claimant
“plays
cooperatively
with
her
peers,”
“respects
other
children”
and
“follows
classroom
instruction.”
She
indicated
that
the
claimant
needed
no
assistance
with
grooming,
toileting,
dressing or eating. Ms. Jones stated that
her strengths and weaknesses were typical
for her age, and that no special attention
was needed in order for the claimant to
function within the classroom.
Ms. Jones
was also asked to rate the claimant’s
limitations or deficits in each of the six
functional domains.
Ms. Jones indicated
that the claimant had “no limitations” in
any of these domains, although she indicated

11

that the claimant was frequently absent from
class due to “asthma” (Exhibit 10E).
During his mental status examination, Dr.
Blanton noted that the claimant “played and
wiggled and talked and was very active
throughout the day.”
He noted that the
claimant repeatedly ignored her mother’s
speech and verbal commands. The claimant’s
thoughts and conversation were simple but
logical. Her associations were intact and
her affect was normal. The claimant was
alert, able to follow one-step directions
and “correctly do simple vocabulary words.”
Dr. Blanton noted no problems with the
claimant’s speech, vision or hearing. Her
gross and fine motor skills were within
normal
limits.
Although
Dr.
Blanton
estimated that her intelligence was well
below average, he noted that the claimant
was essentially un-testable due to her age
and attention problems. Because of these
limitations or restrictions, Dr. Blanton
could only estimate mild mental retardation,
although he did suggest that a formal
intellectual evaluation be conducted in one
year’s time (Exhibit 22F).
The
observations
of
Ms.
Jones,
the
claimant’s Head Start teacher, are not
indicative of the traits typically found in
a
mentally
retarded
individual.
Furthermore, there is simply no objective
evidence
showing
that
the
claimant
is
actually
mentally
retarded,
mildly
or
otherwise.
Thus,
these
conditions
constitute,
at
most,
only
slight
abnormalities that cannot reasonably be
expected to produce more than minimal, if
any, functional limitations. Therefore, I
find these conditions to be non-severe (20
CFR 416.921).
(Id. at 19-21) (emphasis in original).
Further,

in

determining

that

12

T.S.

did

not

have

an

impairment

or

combination

of

impairments

that

met,

medically

equaled, or functionally equaled the listings, the ALJ made the
following relevant findings:
The medical expert, Juliet Hananian, M.D.,
further
testified
that
the
claimant’s
impairments do not [meet or medically equal
or]
functionally
meet
or
equal
the
requirements of any section of the Listings
of Impairments in 20 CFR, Subpart P,
Appendix 1, Regulation Number 4.
I concur
and do so find.
Based
on
the
requirements
of
20
CFR
416.924a(a) and SSR 09-2p, I have considered
all of the relevant evidence in the case
record.
“All of the relevant evidence”
includes objective medical evidence and
other
relevant
evidence
from
medical
sources; information from other sources,
such as school teachers, family members, or
friends;
the
claimant’s
statements
(including
statements
from
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., at home, at
school, and in the community).
July 2010 notes also show that the claimant
was doing well on her current medication
regimen without any side effects (Exhibit 19
F).
Notes dated January 23, 2012, again
show that the claimant was “doing well,” and
that she had yet another completely normal
physical examination (Exhibit 21F).
The
final treatment note from Dr. Syed, dated
March 19, 2012, documents reports that the
claimant was “extremely hyper,” defiant and
difficult to manage. These notes are in
stark
contrast
to
her
treatment
notes
covering the last sixteen months when she
first began to see Dr. Syed. After sixteen
months of stating that the claimant was
“doing well” on her current medication

13

regimen Ms. Sanders reported the above
symptoms and asked Dr. Syed for medication
increase. Dr. Syed refused to increase the
dosage
of
Risperdal,
and
offered
to
prescribe Vyvanse 20mg in conjunction with
her current medication. Dr. Syed again
reinforced firm discipline and a structured
environment (Exhibit 23F).
As previously discussed, Dr. Blanton, Ph.D.,
evaluated the claimant on March 5, 2012, at
the
request
of
the
Social
Security
Administration.
The
claimant’s
chief
complaint
was
that
her
stomach
hurt,
although Ms. Sanders indicated that she
suffered from behavior problems and mood
changes.
The findings of the claimant's treating
physician, Dr. Syed, have been considered
and are justifiably afforded no weight
regarding
his
assessment
of
mental
retardation. Even though Dr. Syed is the
claimant’s treating physician, his findings
are based only and solely on the subjective
complaints
of
the
mother
absen[t]
a
scintilla of any objective evidence.
Dr. Syed first evaluated the child at twoand-a-half years old. His own notes show
that the claimant met all developmental
milestones at the appropriate time. If so,
this is hardly indicative of any mentally
retarded individual. I find that Dr. Syed’s
findings of ADHD are correct.
Dr. Syed is a pediatric neurologist and not
a child psychologist, and he found that the
claimant had no neurological deficits. For
the aforementioned reasons, his opinion that
the claimant may be mentally retarded is
speculative,
without
any
sufficient
objective basis and afforded no evidentiary
weight.
I afford great weight to the testimony of
the medical expert, Julia Hananian, M.D., a

14

board certified pediatrician. Dr. Hananian
testified that the claimant had no severe
impairments.
As stated earlier, the opinion of the state
agency consulting physician, Dr. Robert
Heilpern, as set out in the Childhood
Disability Evaluation Form at Exhibit 4F,
has been given little weight, as the opinion
of Dr. Hananian is more consistent with the
medical evidence of record.
Likewise, Dr. Blanton’s opinion that the
claimant suffers from ADHD is given great
weight.
This
finding
is
supported
by
objective evidence contained within the
medical evidence of record. His finding of
estimated mental retardation, however, is
given no weight. As the child is too young
for
a
comprehensive
evaluation
to
be
performed, this finding is only an estimate
and appears to be based on pure speculation.
Likewise, his findings of multiple “marked”
and “extreme” limitations, as reported on
the Broad Functional Limitations form, are
afforded no weight.
Dr. Blanton only evaluated the claimant one
time, and his opinions on this form are not
corroborated by the medical evidence of
record. Throughout her treatment with Dr.
Syed, the claimant was reportedly “doing
well.” Dr. Blanton's report is based on
nothing other than a one-time examination.
His findings in this report are in no way
consistent with those of Ms. Jones, the
claimant’s Head Start teacher. Ms. Jones
found no limitations whatsoever in any of
the six functional domains and these forms
were completed within two months of each
other.
a. Acquiring and Using Information
Acquiring and using information concerns how
well a child is able to acquire or learn
information, and how well a child uses the

15

information she has learned. This domain
involves how well children perceive, think
about, remember, and use information in all
settings, which include daily activities at
home, at school, and in the community (20
CFR 416.926a(g) and SSR 09-3p).
The claimant has no limitation acquiring and
using information.
While the claimant’s
mother alleges limitations in this domain,
there is no medical evidence to support
those claims.
The claimant’s teacher, Ms.
Jones, also found no limitations in this
domain, as did Dr. Heilpern. Accordingly, I
find that the claimant has no functional
limitations in this domain.
b. Attending and Completing Tasks
This domain considers how well a child is
able to focus and maintain attention, and
how well she is able to begin, carry
through, and finish activities, including
the mental pace at which she performs
activities
and
the
ease
of
changing
activities. Attending and completing tasks
also refers to a child’s ability to avoid
impulsive
thinking
and
her
ability
to
prioritize competing tasks and manage her
time (20 CFR 416.926a(h) and SSR 09-4p).
The claimant has no limitation in attending
and completing tasks. While the claimant’s
mother alleges limitations in this domain,
there is no medical evidence to support
those claims. The claimant’s teacher, Ms.
Jones, also found no limitations in this
domain, as did Dr. Heilpern. Accordingly, I
find that the claimant has no functional
limitations in this domain.
c. Interacting and Relating with Others
This domain considers how well a child is
able to initiate and sustain emotional

16

connections with others, develop and use the
language of the community, cooperate with
others,
comply
with
rules,
respond
to
criticism, and respect and take care of the
possessions of others.
Interacting and
relating with others relates to all aspects
of social interaction at home, at school,
and in the community. Because communication
is
essential
to
both
interacting
and
relating, this domain considers the speech
and language skills children need to speak
intelligibly and to understand and use the
language
of
their
community
(20
CFR
416.926a(i) and SSR 09-5p).
The
claimant
has
no
limitation
in
interacting and relating with others. While
the claimant’s mother alleges limitations in
this domain, there is no medical evidence to
support
those
claims.
The
claimant’s
teacher,
Ms.
Jones,
also
found
no
limitations in this domain, as did Dr.
Heilpern.
Accordingly, I find that the
claimant has no functional limitations in
this domain.
d. Moving About and Manipulating Objects
This domain considers how well a child is
able to move her body from one place to
another
and
how
a
child
moves
and
manipulates objects.
These activities may
require gross motor skills, fine motor
skills,
or
a
combination
of
both.
Limitations in this domain can be associated
with
musculoskeletal
and
neurological
impairments,
other
physical
impairments,
medications
or
treatments,
or
mental
impairments (20 CFR 416.926a(j) and SSR 096p).
The claimant has no limitations in moving
about and manipulating objects. While the
claimant’s mother alleges limitations in
this domain, there is no medical evidence to
support
those
claims.
The
claimant’s

17

teacher,
Ms.
Jones,
also
found
no
limitations in this domain, as did Dr.
Heilpern.
Accordingly, I find that the
claimant has no functional limitations in
this domain.
e. Caring for Yourself
This domain considers how well a child
maintains a healthy emotional and physical
state, including how well a child satisfies
her physical and emotional wants and needs
in appropriate ways.
This includes how the
child copes with stress and changes in the
environment and how well the child takes
care of her own health, possessions, and
living area.
(20 CFR 416.926a(k) and SSR
09-7p).
The claimant has no limitation in the
ability to care for herself.
While the
claimant’s mother alleges limitations in
this domain, there is no medical evidence to
support
those
claims.
The
claimant’s
teacher,
Ms.
Jones,
also
found
no
limitations in this domain, as did Dr.
Heilpern.
Accordingly, I find that the
claimant has no functional limitations in
this domain.
f. Health and Physical Well-Being
This domain considers the cumulative effects
of physical and mental impairments and any
associated treatments or therapies on a
child’s health and functioning that were not
considered in the evaluation of the child’s
ability
to
move
about
and
manipulate
objects.
Unlike the other five domains of
functional equivalence, which address a
child’s abilities, this domain addresses how
recurrent illness, the side effects of
medication,
and
the
need
for
ongoing
treatment affect the child’s health and
sense
of
physical
well-being
(20
CFR
416.929a(l) and SSR 09-8p).

18

The
claimant
has
less
than
a
marked
limitation in health and physical wellbeing. The evidence shows that the claimant
has ADHD; however, she attends Head Start
five days a week.
The treatment of ADHD
requires her to take Risperdal and, if she
is still taking it,
Vyvanse.
While these
medications have not caused the claimant to
have any side effects according to Dr. Syed,
the mere treatment of these conditions would
constitute some limitations in this domain.
As such, I find that the claimant has some,
albeit less than marked, limitations in this
domain.
Accordingly, this child does not have an
impairment or combination of impairments
that result in “marked” limitations in two
domains
of
functioning
or
“extreme”
limitations in one domain of functioning.
6. I find that the claimant has not been
disabled, as defined in the Social Security
Act, since March 5, 2009, the date the
application was filed (20 CFR 416.924(a)).
(Id. at 21-25) (emphasis in original).
Following the ALJ’s determination on May 4, 2012, that the
claimant

was

not

disabled,

Plaintiff

submitted

additional

evidence to the Appeals Council consisting of treatment records
from Dr. Ashraf Syed dated June 4, 2012, through October 22,
2012, related to treatment for moderate mental retardation and
hyperactivity. (Id. at 9-12). These treatment notes consistently
reflect that the “child has been doing well and responded with
the medication fine.” (Id.).

Dr. Syed further noted improvement

in T.S.’s behavior and no side effects from her medication.

19

(Id.).

Plaintiff also submitted a Broad Functional Limitations

form completed by Dr. Syed on June 4, 2012, in which he opined
that T.S. had “marked” limitations in three functional domains
(acquiring

and

using

information,

attending

tasks, and health and physical well-being).
addition,

Plaintiff

submitted

a

Child

and

completing

(Id. at 30-31).

Progress

and

In

Planning

Report from T.S.’s teachers, Terrell/Gwin, dated November 13,
2012, in which they stated that T.S. was at times “very social”
and at other times did not like “certain kids to sit by her;”
T.S.

“likes

to

get

her

way;”

T.S.

knows

“very

few

of

her

alphabets and very few numbers” and “is not able to recognize
the alphabet or her name;” T.S. is very active; T.S. “speaks
very well;” “teachers need to do one on one” with T.S.; and
“parents need to reinforce things learned at school.”
7).

(Id. at

The Appeals Council found that the additional evidence did

not affect the decision about whether Plaintiff was disabled on
or before May 4, 2012, and denied review.
The

Court

now

considers

the

(Id. at 1-2).

foregoing

in

light

record in this case and the issues on appeal.

1.

Issues
a.
Whether
substantial
evidence
supports the ALJ’s determination that
claimant is not disabled as a result of

20

of

the

her
alleged
impairment?

mental

retardation

In her brief, Plaintiff makes several arguments related to
the issue of whether substantial evidence supports the ALJ’s
determination

that

T.S.

is

not

disabled

alleged mental retardation impairment.
that

the

ALJ

erred

in

failing

to

argues

that,

although

examination

following

conduct

the

ALJ

remand

by

additional

an

did
the

administrative

a

result

of

her

First, Plaintiff argues

fully

related to T.S.’s mental retardation.

as

develop

the

record

Specifically, Plaintiff
order
Appeals
hearing,

one

consultative

Council
he

and

should

did
have

ordered a second consultative examination requiring I.Q. testing
after the first consultative examiner, Dr. Blanton, determined
that T.S. was too young for I.Q. testing. 5

(Doc. 14 at 4).

In

addition, Plaintiff argues that the ALJ erred in rejecting the
opinion of T.S.’s treating neurologist, Dr. Syed, in favor of
the

opinion

Plaintiff

of

T.S.’s

essentially

teacher,

maintains

Ms.
that

Jones.
the

ALJ’s

(Id.

at

5-7).

determination

that T.S. is not disabled as a result of her alleged mental

5

As discussed herein, Dr. Blanton examined T.S. and completed
his report on March 5, 2012, when T.S. was three years and nine
months old, and he determined that T.S. was too young for
intellectual testing. (Tr. 435). Dr. Blanton recommended that
a formal intellectual evaluation be delayed for one year. (Id.
at 437). The ALJ conducted the claimant’s third administrative
hearing on April 11, 2012, and issued his final decision on May
4, 2012. (Id. at 17, 81).

21

retardation is not supported by substantial evidence.

(Id. at

7-13).
The Commissioner counters that the ALJ fulfilled his duty
to develop the record by ordering a consultative examination as
instructed by the Appeals Council, that the ALJ had good cause
to discredit the speculative opinions of treating physician Dr.
Syed (that T.S. has mild to moderate mental retardation) and
consultative examiner Dr. Blanton (estimating that T.S. has mild
mental retardation), and that the ALJ’s decision that T.S. is
not disabled as a result of

mental retardation is supported by

substantial evidence in the record.

(Doc. 15 at 6-12).

Having

carefully reviewed the record, the Court agrees with Defendant
that Plaintiff’s claims are without merit.
It is well established that a hearing before an ALJ in
social security cases is inquisitorial and not adversarial.

A

claimant bears the burden of proving disability and of producing
evidence in support of her claim, while the ALJ has “a basic
duty to develop a full and fair record.”

Ellison v. Barnhart,

355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see also
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269
(11th

Cir.

2007).

This

duty

to

develop

the

record

whether or not the claimant is represented by counsel.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995).

22

exists

Brown v.

42 U.S.C. 421(h) provides that “in any case where there is
evidence which indicates the existence of a mental impairment,”
a determination that a claimant is not disabled “shall be made
only if the Commissioner . . . has made every reasonable effort
to ensure that a qualified psychiatrist or psychologist” has
offered an opinion or reviewed the record.
McCall

v.

Bowen,

846

F.2d

1317,

1320

Id.

(11th

Likewise, in

Cir.

1988),

the

Eleventh Circuit stated that where there is evidence indicating
the

existence

of

a

mental

impairment,

the

Commissioner

may

determine that the claimant is not under a disability only if
the Commissioner has made “every reasonable effort to obtain the
opinion

of

a

qualified

psychiatrist

or

psychologist.”

Id.

(quoting 42 U.S.C. § 421(h) (internal quotation marks omitted).
Later, in Sneed v. Barnhart, 214 F. Appx. 883, 886 (11th Cir.
2006) (unpublished), a panel of the Eleventh Circuit stated that
“McCall interprets § 421(h) [to] require[] an ALJ to order a
psychological consultation where there is evidence of a mental
impairment.”

Id.

The ALJ is not required to order a consultative examination
where

the

ALJ’s

RFC

record

contains

determination.

sufficient
Ingram,

evidence

496

F.3d

to
at

permit
1269

the

(“The

administrative law judge has a duty to develop the record where
appropriate

but

is

not

required

to

order

a

consultative

examination as long as the record contains sufficient evidence

23

for

the

administrative

law

judge

to

make

an

informed

decision.”); see also Good v. Astrue, 240 Fed. Appx. 399, 404
(11th

Cir.

2007)

additional

(unpublished)

consultative

(“the

examination

ALJ

need

where

not

the

order

record

an
was

sufficient for a decision.”).
In
claim

this

on

the

November

additional
impairment

case,

3,

evidence
of

2011,

Council

the

retardation,

to

psychological

remanded

instructing

concerning

mental

consultative

Appeals

the

Plaintiff’s

ALJ

claimant’s

(Tr.

obtain

“possible”

specifically

examination.”

to

include
125).

“a
The

Appeals Council further instructed the ALJ to then determine
whether
severe

the

claimant’s

impairment

evaluation process.

and,

“possible”
if

so,

to

mental

retardation

complete

the

was

a

sequential

(Id.).

The ALJ complied with

the first portion of

the Appeals

Council’s mandate by obtaining a consultative examination from
Dr. Donald Blanton, Ph.D., on March 5, 2012.6

In his report, Dr.

Blanton opined that T.S., who was three years and nine months
old at the time, was “untestable” because of her age and “low
concentration”
year.”

and

that

(Id. at 436-37).

testing

should

be

“delayed

for

one

Nothing in the record contradicts Dr.

6

The ALJ subsequently determined that T.S.’s alleged mental
retardation was not severe and that T.S. was not disabled as a
result of that impairment, thereby complying with the second
portion of the Appeals Council’s mandate. (Tr. 21, 435).

24

Blanton’s opinion that T.S. was “untestable” at that time due to
her young age.

Thus, Plaintiff’s argument that the ALJ should

have ordered another consultative examination for the purpose of
requiring formal I.Q. testing on T.S. is simply without merit.
Next, Plaintiff argues that the ALJ erred in rejecting the
opinion of T.S.’s treating neurologist, Dr. Ashraf Syed, that
T.S. was mildly to moderately mentally retarded.

(Tr. 395).

Based upon a careful review of the record, the undersigned finds
that Plaintiff’s argument is again without merit.
Generally speaking, “[i]f a treating physician’s opinion on
the nature and severity of a claimant’s impairments is wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques, and is not inconsistent with the other
substantial

evidence

in

controlling weight.” 7

the

record,

the

ALJ

must

give

it

Roth v. Astrue, 249 Fed. Appx. 167, 168

(11th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(2)).
“An

administrative

considerable

weight

physician

unless

Broughton

v.

1985)(citations

to

good

Heckler,
and

law

judge

the

opinion

cause

is

776

internal

must
of

a

shown

F.2d
quotation

7

accord

substantial

claimant’s
to

960,
marks

the

961

or

treating

contrary.”
(11th

omitted).

Cir.
“The

“Controlling weight” is defined as a medical opinion from a
treating source that must be adopted. See SSR 96–2P, 1996 SSR
LEXIS 9, *3, 1996 WL 374188, *1 (1996).

25

requisite ‘good cause’ for discounting a treating physician’s
opinion may exist where the opinion is not supported by the
evidence, or where the evidence supports a contrary finding.”
Hogan

v.

Astrue,

2012

U.S.

3155570, *3 (M.D. Ala. 2012).

Dist.

LEXIS

108512,

*8,

2012

WL

“Good cause may also exist where

a doctor’s opinions are merely conclusory, inconsistent with the
doctor’s medical records, or unsupported by objective medical
evidence.”

Id.

“[T]he weight afforded a treating doctor’s

opinion must be specified along with ‘any reason for giving it
no weight, and failure to do so is reversible error.’”

Williams

v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009); see also Phillips v.

Barnhart, 357 F.3d 1232,

1241 (11th Cir. 2004) (“When electing to disregard the opinion
of a treating physician, the ALJ must clearly articulate [his or
her] reasons.”).
In addition, the Social Security regulations and rulings
require that an ALJ “consider all relevant evidence in the case
record,”

and

this

medical sources.
*4.
as

includes

opinion

evidence

from

other

non-

SSR 06-03p, 2006 SSR LEXIS 5, 2006 WL 2329939,

When evaluating child disability claims, teachers, as well
other

non-medical

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 to other children his age. 20

26

C.F.R. § 416.913(d); 20 C.F.R. § 416.924a(a)(2)(iii) (in child
disability cases, the ALJ considers school personnel assessments
about how a child is functioning at school on a day-to-day basis
compared

to

other

children

the

child’s

age

who

do

not

have

impairments).
“Social Security Ruling 06-03p, which addresses evidence
from non-medical sources, provides that, where the non-medical
source

has

capacity,

seen

the

the

claimant

evaluation

of

in

that

his

or

her

evidence

is

professional
fact-specific,

considering the nature and extent of the relationship between
the

source

expertise,

and
the

claimant,

extent

to

the
which

source’s
the

qualifications

source

provides

and

relevant

evidence to support his or her opinion, and the consistency of
that opinion with other evidence.” Reed v. Astrue, 2009 U.S.
Dist. LEXIS 99357, *7-8, 2009 WL 3571699, *2 (S.D. Ala. October
26,

2009)

(unreported)

(internal

quotation

marks

omitted).

“Under certain circumstances, the opinion of such a source may
be entitled to greater weight than a medical source, even a
treating source.”

Id.

In this case, the record shows, as the ALJ found, that Dr.
Syed treated T.S. for approximately two years, from November
2010 to October 2012 for mild to moderate mental retardation and
hyperactivity.
439).

At

(Id. at 9-12, 394-95, 407-11, 413, 425, 433,

T.S.’s

very

first

appointment

27

with

Dr.

Syed

on

November 11, 2010, Dr. Syed concluded, without testing, that
T.S. had “moderate mental retardation (MR) with hyperactivity.” 8
(Id. at 395).
(Id.).

T.S. was two and a half years old at the time.

Dr. Syed made this diagnosis after noting that T.S.’s

neurological and physical examinations were completely normal. 9
(Id. at 408, 410).

It appears from Dr. Syed’s treatment notes

that the basis for his diagnosis of mental retardation was the
mother’s

statements

that

the

child

was

“very

active

and

impulsive,” that she was “aggressive” and unable to “sit still,”
that no one could keep her due to her behavior problems, that
she was unable to talk, that she rocked back and forth, that she
threw temper tantrums “hitting herself to the floor,” that she
did

not

sleep

control her.”

at

night,

and

that

(Id. at 394-95).

the

“mom

[was]

unable

to

Dr. Syed noted that the mother

was “requesting some drug intervention.”10

(Id. at 394).

Based

8

Dr. Syed opined that T.S.’s “cognitive maturity [was] below
average,” but that there was “no evidence of a progressive
neurodegenerative disorder.” (Tr. 395).

9

In addition, Dr. Syed ordered EEG monitoring of T.S. to rule
out seizures, and the results came back completely normal. (Tr.
408, 410). Genetic testing to rule out genetic causes of mental
problems or disorders also came back completely normal. (Id. at
418).

10

Similarly, on March 19, 2012, Dr. Syed’s notes reflect that
the mother and grandmother reported that the child was
“extremely hyper, defiant, and difficult to manage” and
requesting that he “increase the dosage of medicine because it’s
not helping enough.”
(Tr. 439).
Dr. Syed refused to increase
the dosage of Risperdal, but he added Vyvanse. (Id.).

28

on

the

mother’s

retardation
ADHD).

and

reports,

Dr.

Syed

diagnosed

and

prescribed

hyperactivity

(Id. at 9-10, 394-95, 407).

moderate

mental

Risperdal

(for

In subsequent visits, Dr.

Syed consistently noted “improvement in [T.S.’s] behavior” and
that she was “doing well” and responding “fine” to medication
with no side effects.
Syed

also

(Id. at 9-10, 407, 410, 413, 433).

consistently

documented

the

absence

Dr.

of

any

neurological or physical problems, and he recorded no personal
observations of behavioral problems similar to those reported by
the mother.

(Id.).

To the contrary, Dr. Syed regularly noted

that T.S. was “alert and cooperative” during her examinations
and

that

behavior.

he

was

“pleased

to

see

the

improvement”

in

her

(Id. at 9-12, 407-10, 413, 425-26, 433, 439).

The record also shows that T.S. attended preschool in the
Head Start program, and on February 16, 2012 (when T.S. was
three years and eight months old), her teacher, Ashley Jones,
completed a Teacher’s Report, detailing her observations of T.S.
(Id.

at

266).

In

the

report,

Ms.

Jones

noted

that

T.S.

“performs average academically in comparison to other children;”
she “knows basic skills for her age group;” she “understands and
comprehends the teacher’s instruction[s];” she “understands the
basic skills taught in the classroom;” she “plays cooperatively
with

the

other

children;”

she

makes

friend[s]

[and]

seeks

attention appropriately;” she “expresses herself very well;” she

29

“follows rules;” she “respect[s] [and] obey[s] adults;” she is
only absent from school “when she has an asthma attack;” she
“will

listen”

and

“follows

given

instruction[s];”

she

“pays

attention when spoken to directly;” she “stays focus[ed] and
completes assigned tasks[s];” she “is able to change from one
activity

to

the

other

without

being

disruptive;”

she

“plays

cooperatively with her peers;” she “respects other children;”
she “follows classroom rules;” she has no problems with age
appropriate
dressing,

self-help
and

eating;

skills
her

such

as

“strengths

grooming,
and

toileting,

weakness[es]

are

typical for her age;” “no special attention is needed from the
teachers for [T.S.] to function in a normal classroom;” and T.S.
has no physical problems. 11

(Id. at 266-69).

Ms. Jones further

completed a Broad Functional Limitations form stating that T.S.
has “no limitations” whatsoever in any of the six functional
domains.

(Id. at 268-69).

As the ALJ found, the record reflects a lack of objective
evidence supporting Dr. Syed’s opinions that T.S. has mild to
moderate mental retardation.

Indeed, Dr. Syed’s opinions are

inconsistent with his own repeated observations that T.S. was
alert,

cooperative,

doing

well,

11

and

that

her

behavior

was

The Court notes that T.S.’s mother reported to Dr. Blanton the
following month, in March 2012, that T.S.’s teachers complain
that she does not “pay much attention” and “is always ‘up and
going.’” (Tr. 436).

30

consistently improving.

Moreover, Dr. Syed’s opinions directly

conflict with the fact-specific, detailed evaluation of T.S.’s
preschool teacher, Ms. Jones, who observed T.S. on a regular,
consistent
limitations

basis
in

at

any

preschool
of

the

and

found

functional

T.S.

domains,

to

have

no

and,

to

the

contrary, to be functioning on the same level as her peers.
Given this evidence, the ALJ had good cause to discredit the
opinion of T.S.’s treating physician, Dr. Syed, and to afford
greater weight to the opinions of T.S.’s teacher, Ms. Jones.
See Reed, 2009 U.S. Dist. LEXIS 99357 at *7-8, 2009 WL 3571699
at *2 (Under certain circumstances, a teacher’s opinion may be
entitled to greater weight than even a treating physician.).
For the same reasons, the ALJ did not err in discrediting
the

March

5,

2012,

opinion

of

consultative

examiner,

Dr.

Blanton, Ph.D., that he “estimate[s]” that T.S. “may” have mild
mental

retardation.

(Id.

at

435).

As

the

ALJ

found,

Dr.

Blanton saw T.S. on one occasion, and he stated unequivocally
that she was “untestable” because of her age (three years and
nine months old) and “attention problems.”
Blanton

recommended

that

delayed for one year.

formal

(Id.).

(Id. at 437).

intellectual

evaluation

Dr.
be

Nonetheless, his observations

included that T.S.’s persistence and concentration were poor and
that she had trouble identifying the shape of a ball or doing
any type of calculation.

(Id. at 436).

31

However, he noted that

her

conversation

was

“simple

but

logical;”

her

“associations

were in tact; her insight was limited, but her judgment was fair
for a child her age; her gross and fine motor skills were within
normal

limits;

her

affect

was

normal;

she

exhibited

no

confusion; her mood was normal; she was alert and able to follow
one step directions; she correctly performed simple vocabulary
words; and she could recite two digits forward.

(Id. at 436).

Despite these largely “normal” observations and the absence of
any objective testing, Dr. Blanton opined that T.S. “may” have
“mild mental retardation, estimated.”
added).

(Id. at 437) (emphasis

He further opined in a Broad Functional Limitations

form dated April 11, 2012, that T.S. had “extreme” limitations
in the domains of acquiring and using information and attending
and completing tasks and “marked” limitations in the domain of
interacting and relating with others.

(Id. at 446).

These

opinions are directly contradicted by T.S.’s teacher, Ms. Jones,
who stated unequivocally that T.S. had no limitations whatsoever
in

these

domains,

and

to

the

contrary,

that

she

performed

average academically in comparison to other children, had basic
skills for her age group, listened, understood, and comprehended
the

teacher’s

respected

the

instructions,
other

children,

played
made

cooperatively
friends,

sought

with

and

attention

appropriately, expressed herself “very well,” followed rules,
respected

and

obeys

adults,

stayed

32

focused,

and

was

not

disruptive.

(Id. at 266-69).

Under the circumstances, the ALJ

had good cause to discredit Dr. Blanton’s opinion, particularly
given the conflict with Dr. Blanton’s own noted observations,
the lack of objective evidence, and the conflicting opinions of
T.S.’s teacher, Ms. Jones.

(Id. at 437).

In addition to the evidence discussed above, the ALJ found,
and the record confirms, that the medical expert who testified
at T.S.’s second administrative hearing, Dr. Juliette Hananian,
M.D., opined that without intellectual testing, it would not be
possible to diagnose mental retardation in T.S., adding that
mental

retardation

cannot

physical examination.

be

diagnosed

(Id. at 73-74).

on

the

basis

of

a

Further, T.S.’s mother

testified at the third administrative hearing on April 11, 2012,
that T.S. had speech problems and could only say “small words”
like “dada,” “mawmaw,” and “bye bye.”
T.S.’s
2012,

teacher
that

T.S.

reported
“knows

two

months

basic

earlier,

skills

“expresses herself very well.”

(Id. at 95).

for

on

her

February

age

(Id. at 266).

However,

group”

16,
and

Indeed, at the

third administrative hearing, T.S. (who was three years and ten
months old at the time) responded to questions from the ALJ, and
the

transcript

of

that

testimony in this regard.
Having

reviewed

the

colloquy

contradicts

the

mother’s

(Id. at 103-09).
record

at

length,

the

undersigned

concludes that the ALJ’s determination that T.S. is not disabled

33

as a result of mental retardation is supported by substantial
evidence.
before

In

him

sum,

the

sufficient

ALJ’s

decision

evidence

reflects

upon

which

that
to

he

make

had
his

determination, that he thoroughly examined all of the record
evidence, and that his determination that T.S. is not disabled
is supported by substantial evidence.

Accordingly, Plaintiff’s

claims are without merit.
b.

Whether the
failing
to
additional
Plaintiff?

Appeals Council erred in
adequately
examine
the
evidence
submitted
by

Last, Plaintiff argues that the Appeals Council failed to
adequately examine the additional evidence that she submitted
after the ALJ issued his decision on May 4, 2012.
14-17).

(Doc. 14 at

Plaintiff argues that the new evidence, namely, a Broad

Functional Limitations form completed by Dr. Syed on June 4,
2012; treatment records from Dr. Syed dated June 4, 2012 to
October

22,

2012;

and

a

Child

Progress

Report

from

T.S.’s

teachers dated November 13, 2012 should have been considered by
the Appeals Council because

the new evidence

relates to the

period on or before the ALJ’s decision on May 4, 2012.
16; Tr. 7, 9, 31).

(Id. at

The Commissioner counters that the new

evidence is immaterial and does not, in any event, undermine the
ALJ’s finding of no disability.

Having carefully reviewed the

record in this case, the Court agrees that the Appeals Council

34

did not err in finding that Plaintiff’s new evidence did not
provide a basis for changing the ALJ’s decision.
“With a few exceptions, the claimant is allowed to present
new evidence at each stage of [the] administrative process.”
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1261
(11th

Cir.

2007).

“The

Appeals

Council

must

consider

new,

material, and chronologically relevant evidence and must review
the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently
of record.’” Id. (quoting 20 C.F.R. § 404.970(b)). “[W]hen a
claimant properly presents new evidence to the Appeals Council,
a

reviewing

renders

the

court
denial

must

consider

whether

that

of

benefits

erroneous.”

new
Id.

evidence
at

1262.

Evidence is material if it is “relevant and probative so that
there

is

a

reasonable

possibility

administrative outcome.”

that

it

would

change

the

Caulder v. Bowen, 791 F. 2d 872, 877

(llth Cir. 1986).
In this case, Plaintiff properly submitted the new evidence
to the Appeals Council, as it was generated after the ALJ’s
decision dated May 4, 2012.

The treatment notes of Dr. Syed

dated June 4, 2012 to October 22, 2012, reflect continued follow
up

treatment

for

T.S.’s

alleged

mild

to

moderate

mental

retardation and hyperactivity and reflect that T.S. continued to
do well, respond well to her medication, and improve in her

35

behavior.

(Tr.

9).

The

Broad

Functional

Limitations

form

completed by Dr. Syed on June 4, 2012, reflects a restatement of
his opinion that T.S. is mentally retarded.

(Id. at 30-31).

Dr. Syed opined in the form that T.S. has “marked” limitations
in three functional domains.

(Id.).

The Child Progress Report

from T.S.’s teachers dated November 13, 2012, reflects that T.S.
“speaks very well,” that she is

“sometimes very social” and

sometimes does not like “certain kids to sit by her,” that she
is very active, that she knows only a few of her alphabets and
numbers,

and

teachers.

that

she

needs

one-on-one

attention

from

the

(Id. at 7).

Assuming, arguendo, that the new evidence is probative of
the period in question, Plaintiff has failed to establish

a

reasonable possibility that the consideration of this evidence
by the Appeals Council would have changed the administrative
outcome.
issue

one

moderately

First, the Court has already found in relation to
that

Dr.

mentally

Syed’s

opinion

retarded

is

that

T.S.

unsupported

by

is
any

mildly

or

objective

record evidence, is speculative, is inconsistent with Dr. Syed’s
own treatment records, and is inconsistent with the detailed
observations of T.S.’s preschool teacher, Ms. Jones.

Thus, it

was properly discredited by the ALJ and entitled to no weight.
Likewise, the newly submitted Broad Functional Limitations form
completed

by

Dr.

Syed

on

June

36

4,

2012,

which

is

merely

a

restatement of his already discredited opinion, is entitled to
no weight.
newly
from

(Id. at 31).

submitted
June

Report

2012

dated

Moreover, nothing in the remaining

evidence,
through

November

i.e.,

October
13,

Dr.

Syed’s

2012

2012,

and

treatment

the

suggests

Child

that

records
Progress

Plaintiff

is

mentally retarded or that she is disabled as a result of her
alleged mental retardation impairment.

Therefore, even if the

Appeals Council had granted review on the basis of Plaintiff’s
newly

submitted

that

it

would

evidence,
have

there

changed

is

no

the

reasonable

possibility

administrative

outcome.

Therefore, Plaintiff’s claim is without merit.
V.

Conclusion
For

the

reasons

set

forth

herein,

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
child supplemental security income be AFFIRMED.
DONE this 26th day of March, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

37