Escalante v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 16, 2011. (dmc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
PEPPER ESCALANTE
On behalf of
R.Y.E, A MINOR
vs.

PLAINTIFF

Civil No. 6:10-cv-06084

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Pepper Escalante (“Plaintiff”) brings this action on behalf of R.Y.E., 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 R.Y.E.’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 protectively filed an SSI application on behalf of R.Y.E. on August 25, 2008. (Tr.

9, 67). Plaintiff alleged R.Y.E. was disabled due to speech and learning problems. (Tr. 67).
Plaintiff alleged R.Y.E.’s onset date was August 25, 2008. (Tr. 67). This application was denied
initially and again upon reconsideration.

(Tr. 29-30).

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Thereafter, Plaintiff requested an

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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administrative hearing on R.Y.E.’s application, and this hearing request was granted. (Tr. 43-59).
An administrative hearing was held on August 5, 2009 in Hot Springs, Arkansas. (Tr. 1728). Plaintiff was present and was represented by counsel, Don Pullen, at this hearing. Id. Only
Plaintiff testified at the hearing. Id. During that hearing, Plaintiff testified that R.Y.E. was born on
March 22, 2005 and was four years old as of the date of the hearing. Id.
On September 4, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI on behalf of R.Y.E. (Tr. 9-16). In this decision, the ALJ determined R.Y.E. had
not engaged in Substantial Gainful Activity (“SGA”) at any time since the alleged onset date. (Tr.
15, Finding 1). The ALJ determined R.Y.E. had Attention Deficit Hyperactivity Disorder (ADHD)
and a delay in adaptive, gross and fine motor skills. (Tr. 15, Finding 2). The ALJ determined these
were severe impairments.

Id.

The ALJ also determined, however, that none of R.Y.E.’s

impairments met, medically equaled, or were functionally equivalent to the Listing of Impairments
in Appendix 1, Subpart P, Regulations No. 4. (Tr. 15, Finding 3).
In assessing whether R.Y.E.’s impairments were functionally equivalent to a Listing, the ALJ
assessed six domains of functioning. (Tr. 12-15). Specifically, the ALJ determined R.Y.E. had the
following limitations in the six domains of functioning: (1) less than a marked limitation in acquiring
and using information; (2) no limitation in attending and completing tasks; (3) less than a severe
limitation in interacting and relating with others; (4) less than a marked limitation in moving about
and manipulating objects; (5) no limitations in caring for oneself; and (6) no limitation in health and
physical well-being. (Tr. 12-14). Based upon these findings, the ALJ determined R.Y.E. had not
been under a disability, as defined by the Act, at any time through the date of his decision. (Tr. 15,
Finding 4).

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Thereafter, on September 18, 2009, Plaintiff requested that the Appeals Council review the
ALJ’s unfavorable decision. (Tr. 4). See 20 C.F.R. § 404.968. On October 26, 2010, the Appeals
Council declined to review this unfavorable decision. (Tr. 1-3). On November 15, 2010, Plaintiff
filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on
December 8, 2010. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 8-9. 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)),

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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, 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
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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” 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 alleges R.Y.E. has a marked limitation in at least two domains

of functioning or an extreme limitation in at least one domain of functioning such that R.Y.E.’s
impairments are functionally equivalent to a Listing. ECF No. 8. In response, Defendant claims the
ALJ properly determined R.Y.E.’s impairments were not functionally equivalent to any of the
Listings. ECF No. 9. To fully evaluate R.Y.E.’s alleged disability, this Court will separately
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consider each of the following six domains of functioning: (A) acquiring and using information; (B)
attending and completing tasks; (C) interacting and relating with others; (D) moving about and
manipulating objects; (E) caring for yourself; and (F) health and physical well-being.
A.

Acquiring and Using Information

In this domain of functioning, the SSA considers how well a claimant acquires or learns
information and how well the claimant uses the information learned. See 20 C.F.R. § 416.926a(g).
The ALJ determined R.Y.E. had a less than marked level of limitation in this domain of functioning.
(Tr. 13). Plaintiff contends that R.Y.E.’s records from First Step contradict the ALJ’s finding. ECF
No. 8 at 12-14. Specifically, after testing R.Y.E. when she was three years old, the examiners at First
Step found R.Y.E. delayed in some areas of functioning, and they recommended her for preschool
special education. (Tr. 116-121).
However, the mere fact that the First Step examiners recommended R.Y.E. for early
childhood special education classes does not establish R.Y.E. has a marked or extreme limitation in
this domain of functioning. Indeed, the ALJ found it was significant that R.Y.E.’s preschool teacher
at First Step assessed her as having no serious or very serious limitations in this domain. (Tr. 12-13,
138). The only “obvious problem” this teacher found was in “applying problem solving in class
discussions.” (Tr. 138). However, even with an “obvious problem” in this area, on October 6, 2008,
R.Y.E. was still found to be within the low average range of measured intelligence. (Tr. 146).
Further, the preschool coordinator at First Step reported on June 17, 2009 that R.Y.E. only
had a “mild delay” in her “cognitive skills,” “excelled” in her “cognitive abilities,” and was “a very
sweet girl” whom she considered to be “very smart.” (Tr. 199). Accordingly, based upon this
information, this Court finds the ALJ’s determination that R.Y.E. had a less than marked limitation
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in acquiring and using information is supported by substantial evidence in the record.
B.

Attending and Completing Tasks

In this domain of functioning, the SSA considers how well the claimant is able to focus and
maintain attention and how well the claimant begins, carries through, and finishes activities,
including the pace at which the claimant performs activities and the ease with which the activities
are changed. See 20 C.F.R. § 416.926a(h). The ALJ determined R.Y.E. had no limitation in this
domain of functioning. (Tr. 13). Specifically, the ALJ found R.Y.E. was able to pay attention when
spoken to directly and sustain attention in play and learning activities. (Tr. 13). The ALJ found
R.Y.E. was able to focus long enough to do many things by herself. Id.
In her briefing, Plaintiff references two school records in support of her claim that R.Y.E. is
limited in this domain of functioning. ECF No. 8 at 15-16. First, Plaintiff relies upon R.Y.E.’s
preschool teacher’s report stating that R.Y.E. “becomes very distracted during class time.” (Tr. 143).
This teacher, however, also stated she observed “NO” problems in R.Y.E.’s ability to attend and
complete tasks. (Tr. 138). Thus, her findings on this issue are apparently inconsistent. Second,
Plaintiff relies upon another statement from this teacher wherein she finds the following: “[R.Y.E.]
. . . becomes very distracted during class time when doing center rotations with peers, and does need
redirection to stay on task.” (Tr. 144). This teacher, however, also noted that R.Y.E. “responds very
well to redirection and does not need more than one reminder usually.” Id. Based upon this
information, this Court finds the ALJ’s decision that R.Y.E. has no limitation in this domain of
functioning is supported by substantial evidence in the record.
C.

Interacting and Relating with Others

In this domain of functioning, the SSA considers how well the claimant initiates and sustains
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emotional connections with others, develops and uses the language of the claimant’s community,
cooperates with others, complies with the rules, responds to criticism, and respects and takes care
of the possessions of others. See 20 C.F.R. § 416.926a(i). The ALJ found R.Y.E. had “no severe
limitation” in this domain of functioning. (Tr. 13). Presumably, because the ALJ characterized
R.Y.E.’s limitation in this domain of functioning as not being severe, the ALJ may have intended
to state R.Y.E.’s limitation in this domain is marked. Thus, this Court will evaluate this finding
assuming the ALJ found R.Y.E. has a marked limitation in this domain of functioning.
In support of her claim R.Y.E. has greater than a marked limitation in this domain, Plaintiff
cites to R.Y.E.’s records from her preschool teacher at First Step. ECF No. 8 at 16-17. In these
records, however, R.Y.E.’s preschool teacher found R.Y.E. had “no problem” or only “a slight
problem” in this domain of functioning. (Tr. 140). Clearly, such findings do not support Plaintiff’s
claim that RY.E. has more than a marked limitation in this domain of functioning. Further, R.Y.E.’s
preschool director found R.Y.E. was able to participate social games and socialize with peers. (Tr.
199). She stated R.Y.E. “excelled at her communication skills and her social interactions with other
peers and adults.” Id. Thus, this Court finds the ALJ’s determination that R.Y.E. has only a marked
limitation in this domain of functioning is supported by substantial evidence in the record.
D.

Moving About and Manipulating Objects

In this domain of functioning, the SSA considers how the claimant moves his or her body
from one place to another and how the claimant moves and manipulates things through gross and
fine motor skills. See 20 C.F.R. § 416.926a(j). The ALJ found R.Y.E. had a less than marked
limitation in this domain of functioning. (Tr. 13).
Plaintiff claims the ALJ erred in this determination, and she claims R.Y.E. has limitations
in this domain due to a “dropped” left foot. ECF No. 8 at 18. Notably, Plaintiff relies upon her
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testimony at the administrative hearing in this matter where she testified that R.Y.E.’s “left foot goes
in and like twists in like that.” (Tr. 27). Despite this testimony which indicates R.Y.E. has a left foot
weakness, Plaintiff also testified that R.Y.E. is able to jump on a trampoline. (Tr. 26). Further,
Plaintiff’s preschool teacher at First Step found R.Y.E. had no limitation in this domain of
functioning. (Tr. 141). Thus, this Court finds the ALJ’s determination that R.Y.E. had a less than
marked limitation in this domain of functioning is supported by substantial evidence in the record.
E.

Caring for Yourself

In this domain of functioning, the SSA considers how well the claimant maintains a healthy
emotional and physical state. See 20 C.F.R. § 416.926a(k). Factors to consider include how well
the claimant gets his or her physical and emotional wants and needs met in appropriate ways, how
the claimant copes with stress and changes in his or her environment, and whether the claimant takes
care of his or her own health, possessions, and living area. Id. The ALJ determined R.Y.E. had no
limitation in this domain of functioning. (Tr. 14).
Plaintiff claims the ALJ erred in this determination. ECF No. 8 at 19. Plaintiff relies upon
her testimony at the administrative hearing to support this claim. Id. During this hearing, she
testified R.Y.E. cannot care for herself (cannot bathe herself, cannot put her clothes on, and cannot
wipe her own bottom). Id. R.Y.E.’s preschool teacher, however, found R.Y.E. had either “no
problem” or only a “slight problem” in this domain. (Tr. 142). She stated her limitations in this
domain were “[n]ot that big of a problem, sometimes she may need prompts or reminders to express
needs.” Id. Thus, this Court finds substantial evidence supports the ALJ’s determination regarding
this domain.
F.

Health and Physical Well-Being

In this domain of functioning, the SSA considers the cumulative physical effects of the
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claimant’s physical or mental impairments and their associated treatments or therapies on that
claimant’s functioning. See 20 C.F.R. § 416.926a(l). The ALJ determined R.Y.E. had no limitation
in this domain of functioning. (Tr. 14). Plaintiff claims R.Y.E. is limited in this domain but does
not provide any specific argument or authority on this issue. ECF No. 8 at 19.
Upon review of the transcript, R.Y.E.’s preschool teacher reported R.Y.E. did not have any
medical conditions, did not take any medications, and did not frequently miss school due to illnesses.
(Tr. 14, 143). R.Y.E.’s pediatric records also do not indicate marked or extreme limitations in this
domain. Instead, they reveal R.Y.E. primarily received only routine treatment for minor problems.
(Tr. 122-129, 165-169, 193-194, 202-211). Accordingly, based upon this information, this Court
finds the ALJ’s determination regarding this domain of functioning is supported by substantial
evidence in the record.
4.

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

to Plaintiff on behalf of R.Y.E., 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 16th day of December, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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