Roach v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 16, 2013. (adw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JOHN ROACH
On behalf of
B.L.C.R., A MINOR
vs.

PLAINTIFF

Civil No. 6:12-cv-06092

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
John Roach1 (“Plaintiff”) brings this action on behalf of B.L.C.R., 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 B.L.C.R.’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. 5.2 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 B.L.C.R. on June 18, 2009. (Tr.

11, 101-103). With this application, Plaintiff alleges B.L.C.R. is disabled due to a Attention Deficit

1

John Roach filed a separate application for one of his other children in case number 6:12-cv-06056. The
Court has already addressed that appeal and affirmed the decision of the SSA. That appeal is not before the Court.
2

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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Disorder (“ADD”) and Attention Deficit Hyperactivity Disorder (“ADHD”). (Tr. 111). Plaintiff
alleges B.L.C.R.’s onset date was May 5, 2002. (Tr. 11, 111). This application was denied initially
and again upon reconsideration. (Tr. 58-59).
Thereafter, Plaintiff requested an administrative hearing on B.L.C.R.’s application, and this
hearing request was granted. (Tr. 72-85). An administrative hearing was held on June 14, 2010 in
Hot Springs, Arkansas. (Tr. 29-57).

Plaintiff was present and was represented by Sherri

McDonough at this hearing. Id. Plaintiff and Plaintiff’s wife (B.L.C.R.’s stepmother) testified at
the hearing in this matter. Id.
On October 19, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI on behalf of B.L.C.R. (Tr. 11-24). In this decision, the ALJ determined B.L.C.R. was born
on May 5, 2000 and was a school-aged child on her application date and was currently a school-aged
child. (Tr. 14, Finding 1). The ALJ determined B.L.C.R. had not engaged in Substantial Gainful
Activity (“SGA”) since her application date. (Tr. 14, Finding 2). The ALJ determined B.L.C.R. had
the following severe impairments: Attention Deficit Hyperactivity Disorder (“ADHD”) and
Oppositional Defiant Disorder (“ODD”). (Tr. 14, Finding 3). The ALJ also determined, however,
that none of B.L.C.R.’s impairments met, medically equaled, or were functionally equivalent to the
Listing of Impairments in Appendix 1, Subpart P, Regulations No. 4 (“Listings”). (Tr. 14-24,
Findings 4-5).
In assessing whether B.L.C.R.’s impairments were functionally equivalent to the Listings,
the ALJ assessed six domains of functioning. (Tr. 15-24, Finding 5). Specifically, the ALJ
determined B.L.C.R. had the following limitations in the six domains of functioning: (1) less than
marked limitation in acquiring and using information; (2) less than marked limitation in attending

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and completing tasks; (3) less than marked limitation in interacting and relating with others; (4) no
limitation in moving about and manipulating objects; (5) less than marked limitation in the ability
to care for herself; and (6) no limitation in health and physical well-being. Id. Based upon these
findings, the ALJ determined B.L.C.R. 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 his decision. (Tr. 24, Finding
6).
Thereafter, on November 10, 2010, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 7). On May 30, 2012, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On July 11, 2012, Plaintiff filed the present appeal. ECF No. 1.
The Parties consented to the jurisdiction of this Court on July 19, 2012. ECF No. 5. Both Parties
have filed appeal briefs. ECF Nos. 11-12. 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

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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, 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 his application in 2009, 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
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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” 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.

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3.

Discussion:
In his appeal brief, Plaintiff raises three arguments for reversal: (A) the ALJ erred in finding

B.L.C.R. did not have an extreme3 limitation in interacting and relating with others and a marked
limitation in acquiring and using information and attending and completing tasks; (B) the ALJ erred
in discrediting the opinions and findings of psychiatrist Dr. Kenneth Vest and Tasha Hart; and (C)
the ALJ erred in discrediting the results from the integrated visual and auditory continuous
performance test. ECF No. 11 at 1-20. In response, Defendant argues the ALJ properly determined
B.L.C.R.’s impairments did not meet, medically equal, or functionally equal the requirements of any
of the Listings. ECF No. 12. The Court will evaluate all of Plaintiff’s arguments.4
A.

Functional Equivalence

As noted above, to determine whether a child’s impairments are functionally equivalent to
a Listing, the SSA considers the following six domains of functioning: (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). Plaintiff claims B.L.C.R. has an extreme limitation in
the third domain and a marked limitation in first and second domains. ECF No. 11. Accordingly,
the Court will only address the first three domains.5
3

Plaintiff actually claims B.L.C.R. has a “severe” limitation in this domain of functioning. Presumably,
based upon the applicable legal standard, Plaintiff intended to argue this was an “extreme” (not “severe”) limitation.
Accordingly, the Court will substitute the word “extreme” for “severe.”
4

Plaintiff’s third argument regarding the “integrated visual and auditory continuous performance test” will
be addressed as a part of the first argument. Thus, it will not be addressed separately.
5

Later in his briefing, Plaintiff also references the domains of “caring for yourself” and “health and
physical well-being.” ECF No. 11 at 14-15. Plaintiff states that B.L.C.R. “has limitations” in these domains but
does not even specify the level of those limitations (whether less than marked, marked, or extreme). Id. Indeed, the
ALJ even found B.L.C.R. had “limitations” in these domains but not “marked” limitations. Accordingly, due to the
lack of specificity, the Court will not address these domains.

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1.

Acquiring and Using Information

The ALJ determined B.L.C.R. has a less than marked limitation in this domain of
functioning. (Tr. 17-18). Plaintiff disputes this finding and argues that the results from an
“IVA+Plus Comprehensive General Interpretive Report” and one progress note from Community
Counseling Services, Inc. support his claim that B.L.C.R. has a marked limitation in this domain of
functioning. ECF No. 11 at 10.
First, the Integrated Visual and Auditory (“IVA+Plus”) Comprehensive General Interpretive
Report is an undated report included in the record. (Tr. 311-331). In his opinion, the ALJ
discounted the findings from this report and noted the following:
The results of an Integrated Visual and Auditory Continuous Performance Test report
dated June 29, 2010 are also given little weight. (Exhibit 10F.) This report states
that the findings are automated and does not contain the name or signature of an
examiner. (Id.) Additionally, the form does not state where the test was
administered, who administered it, or why the test was conducted. (Id.) Roach
testifies that the test was performed at Community Counseling and was administered
by Linn Terry. [B.L.C.R.’s] attorney was asked at the hearing to look into the
background of the report and provide a foundation for its addition to the record;
however, no further information on this report was ever received. Therefore, little
weight is given to the findings of the Integrated Visual and Auditory Continuous
Performance Test report from June 2010.
(Tr. 16).
Plaintiff claims the ALJ should have given the findings from this report more weight. ECF
No. 11 at 17-19. Specifically, Plaintiff claims the ALJ “knew this test was performed at Community
Counseling, Inc.,” and Plaintiff references the introduction to the report to demonstrate the report
is credible. Id. Finally, Plaintiff claims the ALJ was required to consider this report, even if he did
not find it credible. Id. Despite Plaintiff’s claim, the ALJ did consider this report in his opinion.
(Tr. 16). After considering it, the ALJ assigned it “little weight” based upon the findings stated
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above. Id. Based upon these facts, the Court finds no support for Plaintiff’s claim that the ALJ
improperly considered this report.
Second, in support of his claim that B.L.C.R. has a marked limitation in this domain of
functioning, the ALJ references one treatment record from Community Counseling Services, Inc.
dated from the week of August 9, 2010 until August 13, 2010. (Tr. 689-690). Although part of this
record demonstrates B.L.C.R. had some behavioral problems during that week, the therapist also
noted during that week that B.L.C.R.’s behavior was entirely normal: “Client interacted well with
staff and peers. Client followed directions, maintained the appropriate mood, and encouraged others
to use positive bx. Client completed all tasks without direction.” (Tr. 689). Accordingly, based
upon this information, the Court finds the ALJ’s determination that B.L.C.R. has a less than marked
limitation in this domain of functioning is supported by substantial evidence.
2.

Attending and Completing Tasks

The ALJ determined B.L.C.R. has a less than marked limitation in this domain of
functioning. (Tr. 19-20). Plaintiff disputes this finding and argues that B.L.C.R. has a marked
limitation in this domain of functioning. ECF No. 11 at 10-11. In support of this claim, Plaintiff
references B.L.C.R.’s treatment records from Community Counseling, Inc. during which time
B.L.C.R. was found to be “hyperactive” and needing “redirection.” (Tr. 368, 672, 675-677, 689-690,
695).
The records from Community Counseling, Inc. also demonstrate, however, that B.L.C.R.’s
behavior improved with treatment and parental involvement. Indeed, during the week July 16, 2010,
B.L.C.R.’s father (Plaintiff in this action) was contacted because B.L.C.R. had been exhibiting
behavioral problems.

(Tr. 676).

After he was contacted, B.L.C.R.’s behavior improved

dramatically:
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Staff praised client for her bx during this time. Client followed staff direction on the
1-2 prompt, client interacted well with peers. Staff and client spoke on positive bx
and change in her attitude since her father had been called. Client agreed that
involving her parents and talking to them had helped her to wanna have more
positive bx. Staff will continue to meet with client as needed.
Id.
Further, in his opinion, the ALJ noted that with regard to this domain of functioning,
B.L.C.R.’s teachers reported only observing relatively mild limitations: “slight problems with
carrying out multi-step instructions and completing class and homework assignments, as well as an
obvious problem with organization (See Exhibit 4E and Exhibit 9E). Yet, Anthony [B.L.C.R.’s
teacher] states that [B.L.C.R.], ‘could do a lot of the work correctly if she slowed down and thought
about it first,’ commenting that she was more focused and less hyper when she took her ADHD
medications.” (Tr. 19). Based upon these facts, the Court finds no basis for reversing the ALJ’s
determination that B.L.C.R. has less than a marked limitation in this domain of functioning.
3.

Interacting and Relating with Others

The ALJ determined B.L.C.R. has a less than marked limitation in this domain of
functioning. (Tr. 20-21). Plaintiff disputes this finding and argues that B.L.C.R. has an extreme
limitation in this domain of functioning. ECF No. 11 at 11-14. Again, Plaintiff references several
treatment records from Community Counseling, Inc. to support his claim that B.L.C.R. suffers from
an extreme limitation in this domain of functioning. (Tr. 349-350, 353, 356-358, 362, 364, 366, 370,
372, 396, 443, 448, 452, 463, 473, 475, 479, 545, 671, 677, 681). Primarily, these records state that
B.L.C.R. had problems interacting with peers, yelling and screaming, exhibiting anger, and throwing
tantrums. Id.
In his opinion, the ALJ considered these records from Community Counseling, Inc. (Tr. 21).
The ALJ, however, also noted that the reports from B.L.C.R.’s teachers indicated B.L.C.R. does not
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suffer from a marked or extreme limitation in this domain of functioning:
[B.L.C.R.’s] teachers report that she has only a slight problem playing cooperatively
with children and in her ability to seek attention, express anger, and ask permission
appropriately. (See Exhibit 4E and Exhibit 9E). They also note that she has
problems making and keeping friends. (See Id.) However, they additionally assert
that B.L.C.R. does not require the implementation of behavior modification
strategies. (See Id.) In fact, Anthony [B.L.C.R.’s teacher] states that, “[a]s long as
she took her ADHD meds, [B.L.C.R.] was capable of behaving as well as her peers.”
Plaintiff does not provide a basis for disregarding the findings of B.L.C.R.’s teachers. ECF No. 11
at 11-14. Accordingly, based upon these facts, the Court finds the ALJ’s determination that B.L.C.R.
has less than a marked limitation in this domain of functioning is supported by substantial evidence
in the record, and Plaintiff has offered no basis for reversal on this issue. Further, because Plaintiff
has not demonstrated the ALJ erred when he found B.L.C.R. did not have a marked or extreme
limitation in any of these domains of functioning, the Court finds Plaintiff has also not demonstrated
B.L.C.R.’s impairments are functionally equivalent to the Listings.
B.

Dr. Kenneth Vest and Tasha Hart

Plaintiff claims the ALJ improperly discredited the “opinions and findings of community
counseling psychiatrist Dr. Kenneth Vest and Tasha Hart.” ECF No. 11 at 17-20. Although Plaintiff
includes “psychiatrist Dr. Kenneth Vest” in his argument header, Plaintiff only addresses the findings
of Tasha Hart. Id. In his opinion, the ALJ fully considered the opinions and findings of Ms. Hart
but discounted them because she was “not a certified psychologist” but was only a “licensed
professional counselor.” (Tr. 16).
In his briefing, Plaintiff disputes the ALJ’s finding that Ms. Hart’s opinions should be given
little weight. ECF No. 11 at 15-17. Plaintiff also refers to Ms. Hart as a “licensed psychologist”
in his briefing. Id. Presumably, Plaintiff is arguing that Ms. Hart’s opinions should be given the
weight of a licensed psychologist. See id. However, Ms. Hart is not a licensed psychologist but is
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instead an “LPC” or “licensed professional counselor.” See, e.g., Tr. 449. Thus, the Court finds no
basis for reversing the ALJ’s determination that her opinions should be afforded the weight of a
licensed professional counselor. Further, even if Plaintiff had properly characterized her as a
licensed professional counselor, Plaintiff still has offered no basis for reversal on this issue.
4.

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

to Plaintiff on behalf of B.L.C.R. 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 May 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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