Nelson v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 12, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JIMMY NELSON O/B/O
T.N.
v.

PLAINTIFF

CIVIL NO. 13-5265

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jimmy Nelson, brings this action on behalf of his minor daughter, T.N., seeking
judicial review, pursuant to 42 U.S.C. § 405(g), of a decision of the Commissioner of the Social
Security Administration (“Commissioner”) denying T.N.’s application for child’s supplemental
security income (“SSI”) benefits under Title XVI of the Social Security Act (“Act”). In this judicial
review, the Court must determine whether there is substantial evidence in the administrative record
to support the Commissioner’s decision. See 42 U.S.C. § 405(g).
I. Procedural Background
Plaintiff protectively filed an application for SSI on T.N.’s behalf on November 30, 2010,
alleging that T.N. was disabled since February 1, 2007, due to diabetes, thyroid problems, and
asthma. (Tr. 15, 132). An administrative hearing was held on June 7, 2012, at which Plaintiff
testified and was represented by counsel. (Tr. 33-55). By a written decision dated August 10, 2010,
the ALJ found T.N.’s insulin dependant diabetes mellitus and asthma were severe impairments. (Tr.
18). The ALJ, however, found that T.N. did not have an impairment or combination of impairments
medically or functionally equal to a listed impairment, and that T.N. was not disabled. (Tr. 18-28).

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Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied the request on September 18, 2013. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both parties
have filed appeal briefs, and the case is ready for decision. (Doc. 12, Doc. 13).
II. Applicable Law:
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

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severe impairment(s) meets, medically equals, or functionally equals a listed impairment. See 20
C.F.R. § 416.924(d).
Functional equivalence may be established by demonstrating marked limitations in two, or
an extreme limitation 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 well-being. See 20 C.F.R.
§ § 416.926(b)(1), 416.926a(d). SSR 09-1p explains that the Commissioner evaluates the “whole
child” in making a functional equivalence finding. A marked limitation in a domain is an impairment
that seriously interferes with a child’s ability to independently initiate, sustain, or complete activities.
20 C.F.R. § 416.926a(e)(2). An extreme limitation very seriously interferes with the child’s ability
to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3). The ALJ should
consider all relevant evidence to determine whether a child is disabled, and the evidence may come
from acceptable medical sources and from a wide variety of other sources. SSR 09-2P. The
Commissioner’s regulations provide that parents and teachers, as well as medical providers, are
important sources of information. 20 C.F.R. § 416.924.
III. Discussion:
Plaintiff argues on appeal the ALJ erred by (1) failing to find T.N.’s hypothyroidism,
enuresis, and patent foramen ovale (“PFO”) were severe impairments, and (2) failing to find T.N.
met the severity of a listed impairment. (Doc. 12 at 13).
A. Severe Impairments
At Step Two of the sequential analysis, the ALJ is required to determine whether a claimant’s
impairments are severe. See 20 C.F.R. § 404.1520(c). An impairment is severe within the meaning
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of the regulations if it significantly limits an individual's ability to perform basic work activities. 20
C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is
not severe when medical and other evidence establish only a slight abnormality or a combination of
slight abnormalities that would have no more than a minimal effect on an individual's ability to work.
20 C.F.R. § § 404.1521, 416.921. The Supreme Court has adopted a “de minimis standard” with
regard to the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989).
The ALJ addressed all of T.N.’s impairments in the written decision and evaluated her
thyroid condition, enuresis, and PFO, but found these conditions were not severe impairments. (Tr.
18-21).
Plaintiff did not list enuresis or PFO as a basis for disability on the application. Plaintiff also
did not discuss T.N.’s hypothyroidism, enuresis, and PFO at the hearing. The failure to list these
conditions as a basis for disability or discuss the conditions at the hearing tends to indicate the
conditions were not severe. See Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001); see also
Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)(stating an ALJ is under no obligation to investigate
a claim neither presented at the time of the application for benefits nor offered at the hearing).
The record reflects T.N.’s hypothyroidism and enuresis were controlled by treatment. (Tr.
288-291, 320-321, 351). In February 2010, Dr. Deborah Hays, one of T.N.’s treating physicians,
documented T.N.’s hypothyroidism was controlled and her urinary problems were not serious. (Tr.
263). Although T.N. had new urinary problems later in the year, they were resolved with pull-ups
and medications, and the only urinary problems reported after 2010 were related to a urinary tract
infection. (Tr. 321, 373-375).

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Plaintiff reported to physicians in April 2010 that T.N.’s only medical conditions were
diabetes, hypothyroidism, and asthma, and stated that he considered T.N. to be in good health. (Tr.
300, 304). Although T.N.’s PFO was discovered after an echocardiogram in October 2010, Dr. Hays
described it as a birth defect affecting about 30 percent of people and opined it was only a condition
to monitor. (Tr. 281-285). There is no evidence indicating T.N. suffered an impairment from PFO.1
Accordingly, the ALJ’s Step Two determination was based on substantial evidence.
B. Domains of Functioning
The Court next addresses whether T.N.’s impairments are functionally equal to any listed
impairment, or, in other words, whether “what [T.N.] cannot do because of [her] impairments . . .
is functionally equivalent in severity to any listed impairment that includes disabling functional
limitations in its criteria.” 20 C.F.R. § 416.926a.
Plaintiff argues the ALJ should have found T.N. had a marked limitation in caring for herself
and an extreme limitation in health and well-being, and therefore, her impairments functionally
equaled an impairment listing. (Doc. 12 at 16).
The record shows T.N. struggled with controlling her diabetes, in part, because of late night
snacking and non-compliance with her treatment. (Tr. 267-269). In January 2010, T.N. was admitted
to the hospital for diabetic ketoacidosis. (Tr. 265-266). Immediately following her discharge, T.N.’s
physician, Dr. Adam Mass, switched her treatment from an insulin pump therapy to an insulin

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The Court notes Plaintiff’s brief spends a significant amount of time arguing the ALJ’s
decision conflicts with the State’s non-examining physicians’s opinions on T.N.’s severe
impairments. (Doc. 12 at 14-16). A review of the physicians’s reports shows the State’s
physicians listed PFO, hypothyroidism, and enuresis as impairments, but did not opine
these impairments were severe. (Tr. 433, 466).
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injection treatment because her pump treatment was ineffective and she did not have “significant
helpful parental assistance in managing her diabetes.” (Tr. 266). At a February 2010 followup, Dr.
Mass noted T.N.’s diabetes was still poorly controlled, but indicated her condition was improving
and noted she was “playing at recess after lunch on a daily basis.” (Tr. 263-264). Records from a
follow up in January 2011 showed T.N.’s diabetes was controlled while she was at school, although
she was non-compliant while she was at home, and her injection treatment had resolved her
previously recurrent diabetic ketoacidosis episodes. (Tr. 443). Although T.N. continued to struggle
with her diabetes, Dr. Mass indicated in the most recent treatment notes from December 2011 and
February 2012 that T.N.’s diabetes was managed by multiple daily injections. (Tr. 533, 537).
Plaintiff discontinued T.N.’s treatment with Dr. Mass in April 2012 after some tension due to
Plaintiff adjusting T.N.’s insulin doses himself and generally not following recommendations. (Tr.
542). Test results in May 2012, however, showed T.N.’s A1C result was an 8.9, which was a
significant reduction from previous tests. (Tr. 50-51, 512).
Plaintiff completed a Function Report for T.N. on November 30, 2010, indicating T.N. had
very few limitations. Her only restrictions, according to Plaintiff, were difficulties writing longhand,
difficulties playing team sports, and that “she misses school a lot of school due to the diabetes ... if
her blood sugar is too high or too low, she gets sent home.” (Tr. 122-127). Plaintiff submitted an
updated Function Report on May 17, 2011, that was consistent with the first. (Tr. 152-157). Plaintiff
indicated on both Function Reports that T.N. had no limitation in her ability to help herself or
cooperate with others in taking care of her personal needs, no issues communicating with others, and
no learning limitations. (Tr. 126-128, 152-155).

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In addition to seeing Dr. Mass, T.N. was treated by Dr. Hays for enuresis, rash, UTI, and
candiosis vulva between April and January 2011. (Tr. 281-295, 312, 369, 373-375 408-409). Dr.
Hays submitted a Medical and Functional Capacity Assessment dated September 22, 2011, in which
she opined T.N. had a marked impairment in caring for herself and an extreme impairment in her
health and physical well-being. (Tr. 475-479).
T.N.’s teacher and counselor jointly submitted a Teacher Questionnaire dated December 12,
2010, and opined T.N. had a slight or no problem in all areas, did not have an unusual degree of
absenteeism or miss school frequently due to illness, and that she “had no problems caring for
herself.” (Tr. 322-329).
The record, in relevant part, also shows T.N. was seen by a State psychiatrist, Dr. Scott
McCarty, on March 16, 2011, who opined T.N. had no mental issues or learning disabilities. (Tr.
426-428). Additionally, Dr. William Collie, a State non-examining physician, completed a
Childhood Disability Evaluation on March 23, 2011, and opined T.N.’s conditions did not meet a
Listing, that she had no limitation in caring for herself, but had a marked limitation in her health and
physical well-being due to her diabetes, multiple episodes of vulvar yeast infections, and lack of
parental involvement in diabetes management. (Tr. 433-438). Dr. Susan Manley, a State nonexamining physician, also completed a Childhood Disability Evaluation on June 2, 2011, and opined
T.N. did not meet a Listing, had no limitation in caring for herself, and had less than a marked
limitation in her health and physical well-being. (Tr. 466-471). Dr. Manley’s more positive opinion
reflected an improvement in T.N.’s blood sugar tests and the resolution of her rash and infections.
(Tr. 469).

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1. Acquiring and Using Information
The ALJ found T.N. had no limitation in this domain. (Tr. 23-24). The ALJ highlighted
T.N.’s school records, which showed she was doing well in school, achieving high grades, and
performing above average on standardized tests. (Tr. 24). The ALJ also gave significant weight to
the opinions of T.N.’s teachers, who opined T.N.’s only difficulty in school was an occasional need
for one-on-one assistance with math, and Plaintiff’s Function Reports, who stated T.N. did not have
any difficulty in this domain. (Tr. 24, 123, 151, 323).
In further support of his finding, the ALJ also noted the State’s non-examining medical
consultants, Dr. Manley and Dr. Collie, opined T.N. had no limitation in this domain. (Tr. 435, 468).
Based on the record as a whole, the Court finds there is substantial evidence to support the
ALJ’s finding that T.N. had no limitation in acquiring and using information.
2. Attending and Completing Tasks:
The ALJ found T.N. had no limitations in this domain. (Tr. 24). The ALJ gave great weight
to the opinion of T.N.’s teachers, the Function Report submitted by Plaintiff, and the unanimous
medical opinions that T.N. had no limitations in this domain. (Tr. 24, 324, 435, 468, 477). As the
ALJ noted, T.N.’s teachers observed that T.N. had no problems attending or completing tasks, and
Plaintiff reported T.N. did not have any problems paying attention or sticking with a task. (Tr. 127,
324).
Based on the record as a whole, the Court finds there is substantial evidence to support the
ALJ’s finding that T.N. had no limitation in attending and completing tasks.

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3. Interacting and Relating with Others
The ALJ found T.N. had no limitation in this domain. (Tr. 25). The ALJ acknowledged T.N.
had a few episodes of misbehavior at school, but concluded the incidents were isolated and not
representative of her ability to interact and relate with others. The ALJ gave great weight to the
opinions of T.N.’s teachers, who indicated she had no serious problems getting along with other
children or respecting authority, and Plaintiff’s reports that T.N. did not have any difficulties
interacting with others, except a limited ability to play team sports. (Tr. 25, 125, 153, 325).
The record also showed that all of the medical experts were in agreement that T.N. had no
limitation in this area, and that T.N.’s behavioral counselors reported her strengths included the
“ability to form and maintain positive relationships.” (Tr. 252, 435, 468, 478).
Based on the record as a whole, the Court finds there is substantial evidence to support the
ALJ’s finding that T.N. had no limitation in interacting and relating with others.
4. Moving About and Manipulating Objects
The ALJ found T.N. had no limitation in this domain. (Tr. 25-26). The ALJ gave great weight
to Plaintiff’s report that T.N. had no limitation in this area, other than some difficulty playing
basketball, and gave significant weight to the opinions of T.N.’s physicians and teachers, who
believed she had no limitations in this area. (Tr. 25, 326, 478). The State’s consulting physicians also
opined T.N. had no limitation in this domain. (Tr. 436, 469).
Based on the record as a whole, the Court finds there is substantial evidence to support the
ALJ’s finding that T.N. had no limitation in moving about and manipulating objects.

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5. Domain of Caring For Self
The domain of caring for yourself considers how well a child can maintain her emotional and
physical health, including the ability to fulfill wants and needs, cope with stress and change, and care
for her own health, possessions, and living area. 20 C.F.R. § 416.926a(k). The ALJ found T.N. had
no limitation in her ability to care for herself. (Tr. 27).
The only evidence indicating T.N. had a limited ability to care for herself was a checklist
questionnaire submitted by Dr. Hays, which the ALJ discounted for appropriate reasons. (Tr. 22, 27,
478). The ALJ specifically discounted Dr. Hays’s opinion because there was no indication of a
limitation in Dr. Hays’s treatment notes; T.N.’s father and teachers indicated she had no limitations
in caring for herself; and Dr. Hays’s opinion conflicted with uncontroverted evidence that T.N. was
capable of managing her diabetes by checking her blood sugar and giving herself injections. (Tr. 22,
27).
A treating physician’s opinion will typically be given controlling weight when the opinion
is well-supported and is not inconsistent with the record, but a treating physician’s opinion does “not
automatically control, since the record must be evaluated as a whole.” Prosch v. Apfel, 201 F.3d
1010, 1012-1013 (8th Cir. 2000). Opinions of treating physicians may be discounted or disregarded
“where other medical assessments are supported by better or more thorough medical evidence.” Id.
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997)). Whatever weight the ALJ accords
the treating physician’s report, the ALJ is required to give good reasons for the weighting. See
Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001).
Here, Dr. Hays’s opinion was not supported by the record. Although Dr. Hays’s opinion was
generally consistent with her treatment notes from 2010, the opinion appeared to overstate T.N.’s
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present limitations and did not reflect that T.N.’s infections and urinary problems had improved. As
the ALJ noted, Dr. Hays’s opinion was also contradicted by T.N.’s teacher and counselor’s opinions,
her father’s reports, and the record as a whole. (Tr. 27). The Court also notes Dr. Hays treated T.N.
for only a limited time period and for relatively minor conditions that were resolved, and her opinion
was offered in a checklist format without any analysis about the basis of her opinion. See Piepgras
v. Chater, 76 F.3d 233, 236 (8th Cir. 1996) (“A treating physician’s opinion deserves no greater
respect than any other physician’s opinion when it consists of nothing more than vague, conclusory
statements”). It was permissible for the ALJ to discount Dr. Hays’s opinion based on the reasons the
ALJ identified.
The record as a whole shows T.N. was capable of taking care of herself. Dr. Collie and Dr.
Manley opined T.N. had no limitations in this area. (Tr. 436, 469). Plaintiff indicated on the Function
Reports that T.N. had no limitation in her ability to help herself or cooperate with others in taking
care of her personal needs. (Tr. 126, 152). Plaintiff similarly stated to Dr. Scott McCarty, a State
examining psychiatrist, that T.N. had “no problems communicating, understanding, walking,
bathing, feeding, playing, or going to school.” (Tr. 300, 428). T.N.’s teacher and counselor opined
she “had no problems caring for herself.” (Tr. 322-329).
Accordingly, the ALJ’s finding was based on substantial evidence.
6. Domain of Health and Physical Well-Being
The health and physical well-being domain addresses how recurrent illness, the side effects
of medication, and the need for ongoing treatment affect a child’s health and sense of physical wellbeing. 20 C.F.R. 416.929a.

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The ALJ found T.N. had a marked limitation in this domain “due to her diabetes and asthma,
[but] she is functioning well when compliant with [her] medication and treatment regimen.” (Tr. 28).
Plaintiff argues the ALJ should have determined T.N. had an extreme limitation in this domain due
to Dr. Hays’s opinion, her absenteeism, and rapidly fluctuating blood sugars. (Doc. 12 at 19-20).
As discussed above, the ALJ appropriately discounted Dr. Hays’s opinion based on her
treatment relationship, the improvement in T.N.’s conditions, and the record as a whole. The record
shows T.N.’s blood sugar levels had improved by 2012. As for T.N.’s attendance and school
performance, school records show her absenteeism was declining each year, she scored proficient
on standardized tests, and she made A’s and B’s on her most recent semester report card. (Tr. 185186, 190, 193, 512). T.N.’s teacher and counselor also opined she did not frequently miss school
due to illness and did not have an unusual degree of absenteeism. (Tr. 322, 328).
An extreme limitation requires a very serious interference on a child’s ability to
independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3). The record as a
whole does not demonstrate T.N. had an extreme limitation. Her grades were adequate and she was
missing fewer days from school, her minor health conditions had improved, and the switch from an
insulin pump therapy to an injection treatment appeared to be controlling her diabetes so long as she
was compliant with her treatment.
Accordingly, Court finds substantial evidence supports the ALJ’s finding of a marked
limitation in the domain of health and physical well-being.

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IV. Conclusion:
Having carefully reviewed the record, the undersigned finds substantial evidence supporting
the ALJ’s decision denying the Plaintiff benefits, and thus the decision should be affirmed. The
undersigned further finds that the Plaintiff's complaint should be dismissed with prejudice.
Dated this 12th day of March, 2015.

s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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