Bausley v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 26, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TAMMY BAUSLEY, o/b/o
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Tammy Bausley, brings this action on behalf of her minor niece, V.R., as her
legal guardian, seeking judicial review, pursuant to 42 U.S.C. § 405(g), of a decision of the
Commissioner of the Social Security Administration (Commissioner) denying V.R.’s application
for child’s supplemental security income (SSI) benefits under Title XVI of the Social Security
Plaintiff protectively filed the application for SSI on V.R.’s behalf on February 24, 2006,
alleging that V.R. was disabled due to attention deficit hyperactivity disorder (“ADHD”),
adjustment disorder with mixed anxiety and depressed mood, headache, and stomach aches. (Tr.
83, 541). An administrative hearing was held on October 3, 2007, at which Plaintiff and V.R.
testified. (Tr. 487-506). Plaintiff and V.R. were represented by counsel. Following the ALJ’s
unfavorable decision dated March 26, 2008, the Appeals Council declined review of Plaintiff’s
request, and the ALJ’s decision became the final administrative action of the Commissioner. (Tr.
541). On September 15, 2009, Magistrate Judge James R. Marchewski entered a Memorandum
Opinion and Judgment, reversing and remanding the matter to the Commissioner for further
consideration, pursuant to sentence four of 42 U.S.C. § 405(g). (Tr. 540-541).
After remand, on October 5, 2010, another hearing was held before the ALJ, at which
Plaintiff and V.R. testified and were represented by counsel. (Tr. 805-828). The ALJ, in a
written decision dated January 31, 2011, found that V.R. was not disabled, as V.R. did not have
an impairment that met or was medically or functionally equal to a listed impairment. (Tr. 513514).
Subsequently, Plaintiff filed this action. (Doc. 1). The case is before the undersigned
pursuant to the consent of the parties. (Doc. 5). Both parties have filed appeal briefs, and the
case is now ready for decision. (Docs.9, 11).
This Court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, 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. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
The regulations prescribe a three-step process for making the disability determination.
First, the ALJ must determine whether the child has engaged in substantial gainful activity. See
20 C.F.R. 416.924(b). Second, the ALJ must determine whether the child has a severe
impairment or combination of impairments. See 20 C.F.R. 416.924(c). Third, the ALJ must
determine whether the severe impairment(s) meets, medically equals, or functionally equals a
listed impairment. See 20 C.F.R. § 416.924(d). Whether V.R.’s impairments are functionally
equivalent in severity to any listed impairment may be established by demonstrating marked
limitations in two, or extreme limitations1 in one of the following “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 wellbeing. See 20 C.F.R. §§ 416.926(b)(1), 416.926a(d). The ALJ should consider all relevant
evidence in the case to determine whether a child is disabled, and the evidence may come from
acceptable medical sources and from a wide variety of “other sources,” including teachers. SSR
09-2P. In fact, the Commissioner’s regulations for childhood disabilities “provide that parents
(2)Marked limitation -(i)We will find that you have a “marked” limitation in a domain when your impairment(s)
interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day
functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and
cumulative effects of your impairment(s) limit several activities. “Marked” limitation also means a limitation that
is “more than moderate” but “less than extreme.” It is the equivalent of the functioning we would expect to find
on standardized testing with scores that are at least two, but less than three, standard deviations below the mean....
(3)Extreme limitation - (i) We will find that you have an “extreme” limitation in a domain when your
impairment(s) interferes very seriously with your ability to independently initiate, sustain, or complete activities.
Your day-to-day functioning may be very seriously limited when your impairment(s) limits only one activity or
when the interactive and cumulative effects of your impairment(s) limit several activities. “Extreme” limitation
also means a limitation that is “more than marked.” “Extreme” limitation is the rating we give to the worst
limitations. However, “extreme limitation” does not necessarily mean a total lack or loss of ability to function. It
is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least
three standard deviations below the mean.
20 C.F.R. § § 416.926a(e)(2) and (3).
and teachers, as well as medical providers, are important sources of information.” Lawson v.
Astrue, 2009 WL 2143754, at *9 (E.D. Mo. July 13, 2009), citing 20 C.F.R. §416.9249. In the
present case, the ALJ found that V.R.’s claim failed at step three, as V.R. did not have an
impairment that met or medically or functionally equaled a listed impairment.
What is of concern to the Court is the ALJ’s failure to follow the Court’s direction upon
remand. In Judge Marchewski’s opinion, he directed the ALJ, upon remand, to
address interrogatories to V.T.R.’s treating physician and counselor,
asking them to review V.T.R.’s medical records during the relevant time
period; to complete an RFC assessment regarding V.T.R.’s capabilities
during the time period in question; and, to give the objective basis for
their opinions, so that an informed decision can be made regarding
V.T.R.’s ability to perform basic work activities on a sustained basis
during the relevant time period in question. Chitwood v. Bowen, 788
F.2d 1376, 1378 n.1 (8th Cir. 1986); Dozier v. Heckler, 754 F.2d 274, 276
(8th Cir. 1985).
(Tr. 551-552). However, there is no indication that, subsequent to remand, the ALJ directed any
interrogatories to V.R.’s treating physician or counselor, or had them complete the equivalent
of an RFC assessment (Children’s Individual Functional Assessment). Instead, such an
assessment was completed by Jolene Trotter, who, as indicated at the October 5, 2010 hearing,
was V.R.’s biology teacher. (Tr. 811). Ms. Trotter completed a Children’s Individual Functional
Assessment on September 27, 2010, in which she reported, inter alia, that V.R. had a “markedly
interfering” limitation in acquiring and using information and attending to and completing tasks.
(Tr. 784). While the ALJ did not have to give Ms. Trotter’s assessment great weight, as she is
not an acceptable medical source, it was made clear at the hearing that she was one of V.R.’s
teachers, and her opinion could be considered as an important “other source.” The Court does
not understand why the ALJ indicated he did not know Ms. Trotter’s relationship to V.R. or her
professional qualifications, since V.R.’s attorney noted who she was at the hearing.
There is no evidence of any interrogatories sent to V.R.’s treating physician or counselor
and no evidence a functional assessment was completed by them subsequent to Judge
Marschewski’s remand. Thus, the Court believes this matter should once again be remanded
with directions for the ALJ to comply with the directives set forth by Judge Marschewski in his
In addition, it is noteworthy that although the ALJ did not find V.R.’s allegations of
disabling symptoms and limitations to be wholly credible, he obviously chose to find her credible
when he noted that V.R. testified that she had several friends at school and home and that she
played with them almost daily, which was strongly disputed by V.R.’s guardian. (Tr. 516, 520).
For the reasons stated herein, the Court hereby finds that there is not substantial evidence
to support the ALJ’s findings, and therefore remands this case to the Commissioner for further
proceedings consistent with the opinion, pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 26th day of July, 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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