Strong v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 5, 2012. (mfr)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
SHALONDA STRONG
On behalf of
E.I., A MINOR
vs.

PLAINTIFF

Civil No. 1:11-cv-01007

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Shalonda Strong (“Plaintiff”) brings this action on behalf of E.I., a minor, pursuant to § 205(g)
of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (“SSA”) denying E.I.’s
application for Supplemental Security Income (“SSI”) under Title XVI of the Act. The parties have
consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case,
including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment
proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
1. Background:
Plaintiff filed an SSI application on behalf of E.I. on June 12, 2008. (Tr. 7, 80-83). In her
application, Plaintiff alleged E.I. was disabled due to mental retardation, attention deficit hyperactivity
disorder (“ADHD”), headaches, and eczema. (Tr. 89). Plaintiff alleged E.I.’s onset date was June 5,
2008. (Tr. 7). This application was denied initially and again upon reconsideration. (Tr. 41-52).

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The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”

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On January 16, 2009, Plaintiff requested an administrative hearing on E.I.’s application, and this
hearing request was granted. (Tr. 57). An administrative hearing was held on August 3, 2009 in Little
Rock, Arkansas. (Tr. 31-40). Plaintiff testified and was represented by counsel, Denver Thornton, at this
hearing. Id.
On November 24, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI on behalf of E.I. (Tr. 7-19). In this decision, the ALJ found E.I. was born on October 22, 2003,
was a preschooler on the date the application was filed, and was a school-aged child on the date of his
decision. (Tr. 10, Finding 1). The ALJ determined E.I. had not engaged in Substantial Gainful Activity
(“SGA”) at any time relevant to his decision. (Tr. 10, Finding 2). The ALJ determined E.I. had the
severe impairments of a learning disorder and conduct disorder. (Tr. 10, Finding 3). The ALJ also
determined none of E.I.’s impairments met or were functionally equivalent to the Listing of Impairments
in 20 CFR Part 404, Subpart p, Appendix 1 (“Listings”). (Tr. 10, Finding 4).
In assessing whether E.I.’s impairments were functionally equivalent to a listing, the ALJ assessed
the six domains of functioning. (Tr. 11, Finding 5). Specifically, the ALJ determined E.I. had the
following limitations in the six domains of functioning: (1) less than marked limitation in acquiring and
using information; (2) no limitation in attending and completing tasks; (3) less than marked limitation
in interacting and relating with others; (4) no limitation in moving about and manipulating objects; (5)
mild limitation in the ability to care for himself; and (6) no limitation in health and physical well-being.
(Tr. 12-19). Based upon these findings, the ALJ determined E.I. had not been disabled, as defined by the
Act, since June 12, 2008, the date E.I.’s application was filed. (Tr. 19, Finding 6).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 23). See 20 C.F.R. § 404.968. On November 24, 2010, the Appeals Council declined to review this

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unfavorable decision. (Tr. 1-3). On January 25, 2011, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on March 2, 2011. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 7, 10. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s findings
are supported by substantial evidence in the record as a whole. See 42 U.S.C. § 405(g) (2006); Ramirez
v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance of the
evidence, but it is enough that a reasonable mind would find it adequate to support the Commissioner’s
decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). As long as there is substantial
evidence in the record that supports the Commissioner’s decision, the Court may not reverse it simply
because substantial evidence exists in the record that would have supported a contrary outcome or
because the Court would have decided the case differently. See Haley v. Massanari, 258 F.3d 742, 747
(8th Cir. 2001). If, after reviewing the record, it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be
affirmed. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
In this case, Plaintiff is seeking disability benefits on behalf of a minor child. On August 22,
1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
Public Law No. 104-193, 110 Stat. 2105 (1996) (codified at 42 U.S.C. § 1382c(a)(3)(C)), which provided
a more stringent standard for determining eligibility for Title XVI childhood disability benefits than the
old law and prior regulations required. See Rucker v. Apfel, 141 F.3d 1256, 1259 (8th Cir. 1998); 142
Cong. Rec. H8913; H.R. Conf. Rep. No. 725, 104th Cong. 2d Sess. 328 (1996), reprinted in 1996 U.S.
Code, Cong. and Ad. News 2649, 2716; Federal Register, Vol. 62, No. 28, p. 6409. Among other things,

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the new law amended Section 1614(a)(3) of the Act, 42 U.S.C. § 1382c(a)(3), and changed the statutory
definition of disability for individuals under age eighteen (18) under the SSI program. Under the new
standard, a child is entitled to disability benefits only if he or she 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 Pub. L. No. 104-193 § 211(a)(4)(c); 20 C.F.R. § 416.906. The new standard
applies to all applicants who filed claims on or after August 22, 1996, or whose claims had not been
finally adjudicated by August 22, 1996. Since Plaintiff filed her application in 2008, the new law applies.
Under the new law, the ALJ’s disability determination is based upon a three-step analysis. See 20
C.F.R. § 416.924. First, the ALJ must determine whether the minor child has engaged in substantial
gainful activity. If not, the ALJ will proceed to the second step where the ALJ must consider whether
the child has a severe impairment. If a severe impairment is found, the ALJ will proceed to the third step.
At this step, the ALJ, must consider whether the impairment meets, or is medically or functionally
equivalent, to a disability listing in the Listing of Impairments (“Listings”), See 20 C.F.R. pt. 404, subpt.
P, app. 1. A minor child may be disabled if his or her impairment is functionally equivalent to a disability
listing, even if the minor child’s impairment does not meet the standard requirements for a disability
listing. See 20 C.F.R. § 416.924(d)(1).
A single method is provided for evaluating whether an impairment is “functionally equivalent”
to a disability listing, based upon six domains of functioning. The six domains are the following: (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 himself or herself, and (6) health and
physical well-being. See 20 C.F.R. § 416.926a(b)(1). If the minor child claiming benefits has “marked”
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limitations in two of these domains or an “extreme” limitation in one of these domains, then the child’s
impairment is functionally equivalent to a disability listing. See id. § 416.926a(a); Moore ex rel. Moore
v. Barnhart, 413 F.3d 718, 721 (8th Cir. 2005).
A “marked” limitation is a limitation that is “more than moderate” and “less than extreme.” See
id. § 416.926a(e); Lehnartz v. Barnhart, No. 04-3818, 2005 WL 1767944, at *3 (8th Cir. July 27, 2005).
A marked limitation is one that seriously interferes with a child’s ability to independently initiate, sustain,
or complete activities. See 20 C.F.R. § 416.926a(e). An “extreme” limitation is more than “marked” and
exists when a child’s impairment(s) interferes very seriously with his or her ability to independently
initiate, sustain or complete activities. See id. “Extreme” limitation is the rating the Commissioner gives
to the most serious limitations. See id.
3. Discussion:
Plaintiff brings the present appeal claiming substantial evidence does not support the ALJ’s
determination that E.I.’s impairments are not functionally equivalent to the Listings. ECF No. 7, Pgs. 3-8.
In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 10.
A. Domains of Functioning
Plaintiff claims the ALJ erred by finding E.I.’s impairments were not functionally equivalent to
the Listings. ECF No. 7, Pages 3-8. Specifically, Plaintiff claims E.I. has marked limitations in the
domains of moving about and manipulating objects and in caring for himself. Id. These are the only two
domains in which Plaintiff disputes the ALJ’s findings. This Court will only address these two domains
of functioning.
1. Moving About and Manipulating Objects
The child’s gross and motor skills are assessed in the domain of moving about and manipulating
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objects. See 20 C.F.R. § 416.926a(j). The ALJ determined E.I. had no limitation in the domain of
moving about and manipulating objects. (Tr. 16-17). Plaintiff claims E.I. has a marked impairment in
the domain of moving about and manipulating objects ECF No. 7, Pgs. 5-6.
According to Plaintiff, E.I. was seen for an occupational evaluation by April Hern, M.S., OTR/L
on July 16, 2008. (Tr. 98-104). Plaintiff states the test results indicated a severe delay in acquisition of
fine motor, self-help and sensory integrative skills. (Tr. 98). Plaintiff argues E.I. was also tested on that
same date by Angie Day, BSE-EC Special Ed, and Allison Rushton, M.Ed. EC Special Ed, and the tests
reflected E.I. was at least 2.00 standard deviations below the mean in the area of gross motor, fine motor,
cognitive, and language. (Tr. 108). Finally, Plaintiff argues E.I. was tested by Gladys A. Mustafa, PT,
DPT, CMP, and had a standard deviation of -2.05 below the standard deviation. E.I.’s gross motor scores
on PDMS and TGMD-2 (object control and locomotor) indicated gross motor delay for gross motor age.
(Tr. 111).
The ALJ discussed these reports, but placed greater weight on the observations of E.I.’s preschool
instructor and the medical records from physicians who treated E.I. (Tr. 16-17). Weighing evidence and
resolving conflicts is the proper role of the ALJ. See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002). The medical evidence of record supports the ALJ’s decision that E.I. had no limitations in the
domain of moving about and manipulating objects. (Tr. 16).
To begin with, the ALJ noted E.I.’s medical records did not describe him as having a serious
physical impairment. (Tr. 11-12). E.I. was seen by Dr. Rafael Otero on June 4, 2008. (Tr. 225-233).
Dr. Otero indicated E.I. was healthy and taking no medication. (Tr. 226-227). On August 6, 2008, E.I.
was seen by Dr. Charles Spellman. (Tr. 235-237). E.I.’s mother reported to Dr. Spellman, that E.I.
enjoyed a good variety of activities including reading, coloring, and swimming. (Tr. 237). E.I.’s self-help
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skills were noted to be intact. (Tr. 237). Dr. Spellman found no physical limitations that could limit
adaptive functioning, and E.I. was seen as capable of normal functioning in terms of his ability to engage
in age appropriate living activities. (Tr. 237).
On January 12, 2009, E.I. was seen by Dr. Paul Gardial. (Tr. 316-320). Dr. Gardial noted E.I.
had no abnormalities with respect to the musculoskeletal or neurological examination. (Tr. 318). Dr.
Gardial also found E.I. had normal strength and range of motion of all extremities. (Tr. 318). On May
22, 2009, E.I. was seen by Dr. Sarah Robertson. (Tr. 313-315). Dr. Robertson indicated the
musculoskeletal and neurological examinations did not reveal abnormalities. Also, Dr. Robertson found
E.I. had normal strength and range of motion of all extremities. (Tr. 313-315).
The ALJ also relied on reports from E.I.’s preschool teacher in a report from November 17, 2008.
(Tr. 160-166). E.I’s teacher indicated his functioning appeared age-appropriate in the domain of moving
about and manipulating objects. (Tr. 163). The teacher noted either “no problem” or only “a slight
problem,” but did not identify any obvious or serious problems in moving about or manipulating objects.
(Tr. 163).
Finally, Dr. Stephen Whaley and Dr. Susan Manley each prepared Childhood Disability
Evaluation Forms on E.I. (Tr. 241-244, 305-308). Both Dr. Whaley and Dr. Manley found E.I. had no
limitations in the domain of moving about and manipulating objects. (Tr. 244, 308). These findings
support the ALJ’s decision.
This Court finds substantial evidence supports the ALJ’s finding of no limitation in the domain
of moving about and manipulating objects.
2. Caring for Yourself
This domain requires consideration of how well the child can maintain his emotional and physical
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health, including the ability to fulfill wants and needs, as well as cope with stress and change, and caring
for his or her own health, possessions, and living area. 20 C.F.R. § 416.926a(k).
The ALJ determined E.I. had a mild limitation in the domain of caring for himself. (Tr. 17).
Plaintiff claims E.I. has a marked limitation in this domain of functioning. ECF No. 7, Pages 7-8.
Dr. Otero, who saw E.I. on June 4, 2008, indicated overall, E.I.’s social and daily living skills
were adequate and without restrictions. (Tr. 226). Also, Dr. Spellman, who saw E.I. on August 6, 2008,
indicated E.I’s self-help skills were intact. (Tr. 237). Dr. Spellman also indicated E.I. was capable of
normal functioning in terms of his ability to engage in age appropriate living activities. (Tr. 237).
Additionally, E.I.’s preschool teacher did indicate E.I. had problems in this domain, but did not identify
an obvious or serious problem in the domain of caring for oneself. (Tr. 164).
Further support for the ALJ’s decision is found in the Childhood Disability Evaluation Forms on
E.I. prepared by Dr. Stephen Whaley and Dr. Susan Manley. (Tr. 241-244, 305-308). Both Dr. Whaley
and Dr. Manley found E.I. had no limitations in the domain caring for yourself. (Tr. 244, 308).
This Court finds substantial evidence supports the ALJ’s finding of a mild limitation in the
domain of caring for self.
4. Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits to
Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating these
findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 5th day of March, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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