Moore v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 14, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MISTY MOORE
On behalf of
J.L.M.,A MINOR
vs.

PLAINTIFF

Civil No. 2:16-cv-02010

NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Misty Moore (“Plaintiff”) brings this action on behalf of J.L.M., 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 J.L.M.’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. 6.1 Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
1.

Background:
Plaintiff protectively filed an SSI application on behalf of J.L.M. on April 3, 2013. (Tr. 9).

With this application, Plaintiff alleges J.L.M. is disabled due to Attention Deficit Hyperactivity
Disorder (“ADHD”) and anxiety. (Tr. 166). Plaintiff alleges J.L.M.’s onset date was June 1, 2007.
(Tr. 9). This application was denied initially and again upon reconsideration. (Tr. 91-100).

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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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Thereafter, Plaintiff requested an administrative hearing on J.L.M.’s application, and this
hearing request was granted. (Tr. 28-62). An administrative hearing was held on April 11, 2014 in
Fort Smith, Arkansas. Id. Plaintiff was present and was represented by Fred L. Caddell at this
hearing. Id. Plaintiff and J.L.M. testified at this hearing. Id.
On August 15, 2014, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI on behalf of J.L.M. (Tr. 6-22). In this decision, the ALJ determined J.L.M. was born on
January 10, 2000 and was an adolescent on the date his application was filed and was still an
adolescent at the time of his decision. (Tr. 12, Findings 1-2). The ALJ determined J.L.M. had not
engaged in Substantial Gainful Activity (“SGA”) since his application date. (Tr. 12, Finding 3). The
ALJ determined J.L.M. had the following severe impairments: ADHD, anxiety disorder, and speech
language disorder. (Tr. 12, Finding 4). The ALJ also determined, however, that none of J.L.M.’s
impairments met, medically equaled, or were functionally equivalent to the Listing of Impairments
in Appendix 1, Subpart P, Regulations No. 4 (“Listings”). (Tr. 12-13, Finding 5).
In assessing whether J.L.M.’s impairments were functionally equivalent to the Listings, the
ALJ assessed six domains of functioning. (Tr. 13-21, Finding 6). Specifically, the ALJ determined
J.L.M. had the following limitations in the six domains of functioning: (1) no limitation in acquiring
and using information; (2) less than marked 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) no limitation in the ability to care for himself; and (6) no limitation in
health and physical well-being. Id. Based upon these findings, the ALJ determined J.L.M. had not
been under a disability, as defined by the Act, at any time from the date Plaintiff’s application was
filed through the date of the ALJ’s decision. (Tr. 21, Finding 7).

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Thereafter, on September 30, 2014, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 4-5). On December 7, 2015, the Appeals Council declined to
review this unfavorable decision. (Tr. 1-3). On January 25, 2016, Plaintiff filed the present appeal.
ECF No. 1. The Parties consented to the jurisdiction of this Court on January 26, 2016. ECF No.
6. Both Parties have filed appeal briefs. ECF Nos. 12-13. 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

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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, 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 2013, 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).
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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” 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) (unpublished). 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:
In her appeal brief, Plaintiff raises two arguments for reversal: (A) the ALJ erred by finding

J.L.M.’s disruptive behavior disorder was not a severe impairment; and (B) the ALJ erred in finding
J.L.M. had a less than marked limitation in attending and completing tasks and in interacting and
relating with others. ECF No. 12 at 1-15. In response, Defendant argues the ALJ properly
determined J.L.M.’s impairments did not meet, medically equal, or functionally equal the
requirements of any of the Listings. ECF No. 13. As such, Defendant argues there is no basis for
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reversal in this case. The Court will evaluate both of these arguments.
A.

Severe Impairment

Plaintiff claims the ALJ erred in finding J.L.M.’s disruptive behavior disorder was not a
severe impairment. ECF No. 12 at 2. Plaintiff cites J.L.M.’s medical records to demonstrate he
suffered from this severe impairment. Id.
Upon review, Plaintiff did not allege in either her application or at the administrative hearing
in this matter that J.L.M. was disabled due to disruptive behavior disorder. (Tr. 35, 166). Thus, the
ALJ was under no obligation to find this was a severe impairment or investigate this matter further.
See Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (quoting Brockman v. Sullivan, 987 F.2d 1344,
1348 (8th Cir. 1993) and holding that “the administrative law judge is under no ‘obligation to
investigate a claim not presented at the time of the application for benefits and not offered at the
hearing as a basis for disability’”). Thus, the Court finds no basis for reversal on this issue.
B.

Interacting and Relating with Others

Plaintiff claims J.L.M. suffers from a marked limitation in attending and completing tasks
and in interacting and relating with others. ECF No. 12 at 7-15. Because Plaintiff must demonstrate
J.L.M. has a marked limitation in both these domains of functioning in order to be found disabled
and because Plaintiff cannot demonstrate J.L.M. has a marked limitation in both of these domains,
the Court will only address one of these domains.
Importantly, Plaintiff claims J.L.M. has a marked limitation in the domain of interacting and
relating with others. ECF No. 12 at 7-15. In his opinion, the ALJ found J.L.M. had less than a
marked limitation in this domain of functioning based upon the following:
The evidence shows that . . . [J.L.M.] . . . generally gets along with his friends, but
fights with his siblings and mother at home. He refuses to do chores, but likes
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school, sports, and band. The school counselor reported no problems at school, but
Ms. Moore testified that the child had gotten detention at school (Exhibit B5E). He
no longer has difficulty speaking and being understood, but is on probation for a
criminal act. . . .
Id.
In support of her claim that J.L.M. has a marked limitation in this domain, Plaintiff references
his counseling records wherein he was assigned a Global Assessment of Functioning (“GAF”) score
of 50, which indicates “serious symptoms.” ECF No. 12 at 7-15. However, also in that same report,
it was noted that while J.L.M. gets “in fights with brothers,” he also has “[f]riends at school” and
“[p]lays football, track, and basketball.” (Tr. 472). Plaintiff also testified at the administrative
hearing that J.L.M. makes “As and Bs and Cs” and plays football and does track. (Tr. 37). Thus, the
Court cannot find the ALJ erred in finding J.L.M. had a less than marked limitation in this domain
of functioning.
4.

Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff on behalf of J.L.M. 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 14th day of February 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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