Young v. Commissioner of Social Security

Filing 28

OPINION AND ORDER re: 1 Complaint. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file. Signed by Magistrate Judge Carol Mirando on 3/31/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
APRIL YOUNG,
Plaintiff,
v.

Case No: 8:16-cv-333-T-CM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff April Young, on behalf of D.Y., a minor, appeals the final decision of
the Commissioner of the Social Security Administration (“Commissioner”) denying
her child’s claim for Supplemental Security Income (“SSI”).

For the reasons

discussed herein, the decision of the Commissioner is AFFIRMED.
I.

Issue on Appeal

Plaintiff raises one issue on appeal: 1 whether the Administrative Law Judge
(“ALJ”) failed to fully and fairly consider or develop the evidence of record.
II.

Procedural History and Summary of the ALJ’s Decision

On April 10, 2012, Plaintiff filed an application for SSI on behalf of her minor
child, D.Y., born on August 10, 2006, alleging disability that began on April 1, 2012

Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”).
1

due to Attention Deficit Hyperactivity Disorder (“ADHD”), asthma, allergies, and
stomach issues. Tr. 77, 87, 162-67. The Social Security Administration denied the
claim initially on June 28, 2012 and upon reconsideration on August 28, 2012. Tr.
77-105; 110-115. Plaintiff then requested and received a hearing before ALJ Erik
Eklund on May 6, 2014, during which she was represented by an attorney. Tr. 41;
116-18. Plaintiff and D.Y. testified at the hearing. 2 Tr. 41-75.
On May 28, 2014, the ALJ issued a decision finding D.Y. is not disabled and
denying his claim. Tr. 24-36. The ALJ first determined that D.Y. has not engaged
in substantial gainful activity since April 10, 2012, the application date. Tr. 27.
Next, the ALJ found D.Y. has the following severe impairments: attention deficit
hyperactive disorder, asthma, allergies, headaches, and gastrointestinal issues. Id.
At step three, the ALJ found D.Y. “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id.
Taking into account all relevant evidence, the ALJ then determined D.Y. did
not have an impairment or combination of impairments that results in either
“marked” limitation in two domains of functioning, or “extreme” limitation in one
domain of functioning, as is required to functionally meet a listing. Tr. 25-36; 20

The ALJ stated he wanted to question D.Y. to get a sense of what he is like. Because
the child was seven years old at the time and the ALJ found that would likely be too young
to understand the seriousness of the proceedings, the ALJ did not swear in the child before
he testified. Tr. 44-45.
2

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C.F.R. § 416.926a(d). Accordingly, the ALJ found D.Y. is not disabled, and denied
his claim. Tr. 27.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on December 11, 2015. Tr. 1-3. Thus, the ALJ’s May 28,
2014 decision is the final decision of the Commissioner. Plaintiff filed an appeal in
this Court on February 11, 2016.

Doc. 1.

Both parties have consented to the

jurisdiction of the United States Magistrate Judge, and this matter is now ripe for
review. Docs. 15; 17.
III.

Social Security Act Eligibility and Standard of Review

An individual under the age of eighteen is disabled for purposes of seeking
child SSI benefits when he has a medically determinable physical or mental
impairment which results in marked and severe functional limitations and can be
expected to either result in death or last for a continuous period of not less than twelve
months. 42 U.S.C. § 1382c(a)(3)(C)(i). The Commissioner has established a threestep sequential analysis for evaluating a claim of disability for a child. To qualify
for benefits, the child claimant must show that: (1) he is not engaging in substantial
gainful activity; (2) he has an impairment or combination of impairments that is
severe; and (3) his impairment or combination of impairments meets, medically
equals, or functionally equals a listed impairment. 20 C.F.R. § 416.924(a).
At step three, the Commissioner determines whether the claimant has an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix

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1.

If not, the Commissioner decides whether it results in limitations that

functionally equal the listings. 20 C.F.R. § 416.926a(a). In determining whether
an impairment or combination of impairments functionally equals the listings, the
Commissioner assesses the claimant’s functioning in terms of six 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. 20 C.F.R. § 416.926a(b)(1). To
functionally equal the listings, the claimant’s impairment or combination of
impairments must result in “marked” limitations in two domains of functioning or an
“extreme” limitation in one domain.

20 C.F.R. § 416.926a(d).

A “marked

limitation” in a domain results when the child’s impairment(s) “interferes seriously”
with the ability to independently initiate, sustain, or complete activities. 20 C.F.R.
§ 416.926a(e)(2).

An “extreme limitation” in a domain results when the child’s

impairment(s) interferes “very seriously” with his ability to independently initiate,
sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3).
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988)
(citing Richardson v. Perales, 402 U.S. 389, 390 (1971)).

The Commissioner’s

findings of fact are conclusive if supported by substantial evidence.

42 U.S.C. §

405(g). Substantial evidence is “more than a scintilla, i.e., evidence that must do
more than create a suspicion of the existence of the fact to be established, and such

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relevant evidence as a reasonable person would accept as adequate to support the
conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations
omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding
that “[s]ubstantial evidence is something more than a mere scintilla, but less than a
preponderance”) (internal citation omitted).
The Eleventh Circuit has restated that “[i]n determining whether substantial
evidence supports a decision, we give great deference to the ALJ’s fact findings.”

Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black
Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). Where
the Commissioner’s decision is supported by substantial evidence, the court will
affirm, even if the reviewer would have reached a contrary result as finder of fact,
and even if the reviewer finds that the preponderance of the evidence is against the
Commissioner’s decision.

Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.

1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The district court
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record
to determine the reasonableness of the factual findings).
IV.

Discussion

Whether the ALJ failed to develop or consider the evidence of record
Plaintiff contends that the ALJ failed to fully and fairly develop the record and
consider the evidence of record.

Plaintiff points to the opinion of consultative

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examiner Nicholas Gehle, PsyD, in which Dr. Gehle recommended that D.Y. be
reassessed in the future to continue to monitor his cognitive ability with regard to
D.Y.’s IQ score, and in which Dr. Gehle deferred a formal diagnosis of borderline
intellectual functioning due to the impact of D.Y.’s ADHD and development. Doc. 24
at 8.

Plaintiff argues that the ALJ erred in not ordering additional testing, as

recommended by Dr. Gehle. Id. In response, the Commissioner argues that the
regulations do not mandate the ALJ to order a consultative examination when, as
here, there is sufficient evidence in the record to enable the ALJ to render a decision.
Doc. 27 at 15-21. Moreover, the Commissioner argues, Plaintiff fails to show that
she was prejudiced by the ALJ’s decision not to order a consultative psychological
examination. Id. As explained below, the Court finds Plaintiff’s argument to be
without merit.
It is well established that the ALJ has a duty to develop a full and fair record.

Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Graham v. Apfel, 129 F.3d
1420, 1422-23 (11th Cir. 1997) (the ALJ has an affirmative duty to develop the record
fully and fairly). As the Supreme Court has stated, “Social Security proceedings are
inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts
and develop the arguments both for and against granting benefits.” Sims v. Apfel,
530 U.S. 103, 110-11 (2000). In determining whether the ALJ failed in his duty to
develop the record, the Court is “guided by whether the record reveals evidentiary
gaps which result in unfairness or ‘clear prejudice’” necessitating a remand to the
Commissioner for further development of the record. Graham, 129 F.3d at 1423

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(citing Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995)). If the record was
sufficient for the ALJ to evaluate a claimant’s impairments and functional abilities
and does not show the kind of gaps in the evidence necessary to demonstrate
prejudice, there is no error and the Commissioner’s decision must stand. See id.
After a review of the ALJ’s decision and the evidence of record, the Court finds
the ALJ applied the correct legal standards and his decision is supported by
substantial evidence. The record does not show the kind of gaps in the evidence
necessary to demonstrate prejudice, nor has Plaintiff explained how the record was
insufficient to enable the ALJ to evaluate D.Y.’s impairments and functional abilities.
To the contrary, the Court finds the record, as discussed chronologically below, 3
contains sufficient evidence to support the ALJ’s findings in the six functional
domains.
In reaching his decision, the ALJ assessed D.Y.’s functioning in the six
functional equivalence domains and determined that D.Y. has less than marked
limitations in acquiring and using information, attending and completing tasks,
interacting and relating with others, ability to care for himself, and health and
physical well-being; and no limitation in moving about and manipulating objects.
Tr. 30-35. As to the first two domains, the ALJ explained that D.Y.’s medical records
and school grades reflect improvement in function after the start of medication. Tr.
Plaintiff’s brief states “the statements of the testimony and of the documentary
evidence as set forth in the ALJ’s decision (Tr. 21-40) are accepted by the Plaintiff and
incorporated, as if fully presented herein, except as specifically alluded to, accepted, or
explained upon, below.” Doc. 24 at 3. Plaintiff makes no mention of any issues related to
D.Y.’s asthma, allergies, or gastrointestinal issues; accordingly, the Court does not discuss
them.
3

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28-29, 31-32. The ALJ noted that even prior to medication D.Y. never failed a grade
and demonstrated improvement in written communication and mathematics. Tr.
31-32. Regarding D.Y.’s limitation in interacting and relating with others, the ALJ
noted that despite a report from D.Y’s kindergarten teacher, Sandra Bennett,
indicating a serious problem in this area, the record reflects D.Y. is not mean or
aggressive, has a positive attitude, is cooperative, and has little, if any, difficulty
communicating. Tr. 29, 33. 211. Regarding the fourth domain – moving about and
manipulating objects – the ALJ found no evidence in the longitudinal pediatric and
specialist medical record to support limitations, despite Ms. Bennett’s report of
“obvious problems” in this area. Tr. 34, 212. Regarding D.Y.’s ability to care for
himself, the ALJ noted that Plaintiff and D.Y. reported D.Y. can perform most aspects
of personal care, and the record did not suggest otherwise.

Tr. 35.

Lastly,

regarding D.Y.’s health and well-being, the ALJ explained that the record supports
longitudinal and ongoing medication use and doctor visits to control D.Y.’s symptoms;
however, his overall good functioning and grades with medication suggested to the
ALJ less than marked limitations in this area. Tr.35. Plaintiff does not specifically
address the ALJ’s findings in the six domains, but the record evidence supports these
findings. Doc. 24.
The relevant medical evidence supporting the ALJ’s findings as to the six
domains begins on April 2, 2012, when Rosalinda Tiongco, ARNP, assessed D.Y. with
ADHD, inattentive type, and prescribed him medication for it. Tr. 358. On June 4,
2012, D.Y.’s kindergarten teacher, Ms. Bennett, completed a Teacher Questionnaire.

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Tr. 208-22. Ms. Bennett stated that she taught D.Y in kindergarten for all subjects
and had known D.Y. for eleven months. Tr. 208. She further stated that D.Y. was
on level in reading, math, and written language. Id. Ms. Bennett compared D.Y.’s
functioning to that of same-aged children who did not have impairments and gave
her opinion as to D.Y.’s impairments in the six domains as follows. 4 Tr. 208-15. In
the area of acquiring and using information, she rated D.Y. with having “a serious
problem” in each of the activities listed and explained that he “[d]oesn’t do work
independently; gets extra help daily.”

Tr. 209.

In the area of attending and

completing tasks, Ms. Bennett rated D.Y. with a very serious problem on a daily basis
in each of: sustaining attention, focusing long enough to finish an assigned activity
or task, refocusing to task when necessary, carrying out multi-step instructions,
organizing his own things or school materials, completing work accurately without
careless mistakes, and working at reasonable pace/finishing on time. Tr. 210. She
rated D.Y. with a serious problem paying attention when spoken to directly, carrying
out single-step instructions, and completing class and homework assignments. Id.
She then indicated that D.Y. had no problem waiting to take turns, changing from
one activity to another without being disruptive, and working without distracting self
or others. Id. She gave no examples nor explained her reasoning for her opined
impairments in this domain. See id.
In the area of interacting and relating with others, Ms. Bennett indicated that,

Except where noted she “wrote” or “explained,” all of Ms. Bennett’s opinions were
expressed by checking off the options in the questionnaire.
4

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on a daily basis, D.Y. had a serious problem making and keeping friends and seeking
attention appropriately. Tr. 211. She also indicated D.Y. had an obvious problem
following rules in the classroom, games, and sports. Id. She opined D.Y. had a
slight problem playing cooperatively, expressing anger appropriately, asking
permission

appropriately,

respecting/obeying

adults

in

authority,

relating

experiences and telling stories, using language appropriate to the situation and
listener, introducing and maintaining relevant and appropriate topics of
conversation, taking turns in a conversation, interpreting meaning of facial
expression and body language, and using adequate vocabulary and grammar to
express thoughts and ideas in everyday conversation. Id. Ms. Bennett indicated it
had not been necessary to implement behavior modification strategies for D.Y., and
she wrote, “not an independent child!” Tr. 211.
Ms. Bennett also noted she could understand very little of D.Y.’s speech on the
first attempt when the topic of conversation was known or unknown or even after
repetition or rephrasing. Tr. 212. In the area of moving about and manipulating
objects, Ms. Bennett indicated that, on a daily basis, D.Y. had an obvious problem
moving his body from one place to another; moving and manipulating things;
demonstrating strength, coordination, and dexterity in activities or tasks; managing
pace of physical activities; showing a sense of his body’s location and movement in
space; integrating sensory input with motor output; and planning, remembering, and
executing controlled motor movements. Tr. 212. In the area of caring for himself,
Ms. Bennett noted a slight problem in D.Y.’s handling of frustration appropriately,

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being patient when necessary, using appropriate coping skills to meet daily demands
of school environment, and knowing when to ask for help. Tr. 213. As for D.Y.’s
health and well-being, Ms. Bennett stated that D.Y.’s allergies bother him daily, but
she did not know if D.Y. took prescribed medication. Tr. 214.
The ALJ gave Ms. Bennett’s opinion limited weight. Tr. 29. In so doing, he
noted, “[n]otwithstanding the lack of specific examples, the opinion came prior to the
start of medication which . . . reflected a significant improvement in symptoms and
limitations.” Id. Plaintiff does not specifically challenge the weight given to Ms.
Bennett. 5 Nevertheless, the ALJ discussed the medications and D.Y.’s improvement
due to them, which the Court will also discuss infra. Id.
On June 12, 2012, D.Y. visited Dr. Gehle for a consultative evaluation. Tr.
388-92.

At the time, D.Y. was five years old.

Tr. 388.

Dr. Gehle’s general

observations of D.Y. were that D.Y. did not display any significant problems with
motor functioning. Tr.388. D.Y.’s speech was slow, and the quality of his speech
was soft. He was alert, had adequate eye contact, and had a positive attitude. Id.
D.Y. was able to answer most questions presented but relied on his father for specific
information and dates. Id. Overall, however, D.Y.’s behavior during the evaluation
was remarkable for distractibility. Id. Dr. Gehle noted it was reported D.Y. was
able to bathe, dress, and toilet independently. Tr. 389. He also noted D.Y.’s grades

Plaintiff makes a rote notation that “the assessment of the claimant’s kindergarten
teacher was given limited weight, again because it came prior to the start of medication”
without any discussion, analysis, or supporting authority whether it was error for the ALJ to
do so. Doc. 24 at 9. Accordingly, the argument whether the ALJ erred in giving limited
weight to Ms. Bennett’s assessment is deemed waived. See note 1, supra.
5

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were reported as “poor” but he had not repeated any grades and was not involved in
special education classes.

Id.

On the mental status evaluation, D.Y.’s general

thought processes were coherent, logical, and goal-directed. Id. His thought form
and content were age appropriate and unremarkable. Id. His visual and auditory
attention were at an age appropriate level. Tr. 389. D.Y.’s sustained attention was
remarkable for deficits secondary to inattention, and his speed of processing was
impaired. Id. D.Y.’s receptive language, expressive language, and recent memory
were adequate. Tr. 390. His motor coordination was age-appropriate. Id. His
judgment related to self-care and social problem-solving was adequate. Id.
Dr. Gehle administered the Wechsler Preschool and Primary Scale of
Intelligence-Third Edition (WPPSI-III) and Wechsler Individual Achievement TestThird Edition (WIAT-III). Tr. 390-91. Dr. Gehle opined D.Y. put forth his best
effort on the tests and the test results were valid, but D.Y. “appeared distracted and
unfocused at times as evidenced by looking away during testing, staring at the
wall/picture, an[d] not attending to directions.” Tr. 390. On the WPPSI-III, D.Y.
received a verbal score of 74 (Borderline), a performance score of 81 (Low Average), a
Processing Speed of 100 (Average), and a full scale IQ score of 77, which placed D.Y.
in the in the borderline range of intellectual functioning. Id.
On the WIAT-III, D.Y. received all Below Average scores: an oral language
score of 75, a written expression score of 88, and mathematics score of 79. Tr. 391.
Dr. Gehle opined that, compared with D.Y.’s learning potential, his achievement
scores were not “statistically significant and a specific learning disability was not

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found.” Tr. 391.

Dr. Gehle diagnosed attention-deficit/hyperactivity disorder,

predominantly inattentive type (Tr. 391).
Dr. Gehle summarized his findings as follows:
While [D.Y.’s] Full Scale IQ fell in the Borderline range, the diagnosis
on Axis II (Borderline Intellectual Functioning) is deferred at this time
due to the impact that [D.Y.’s] ADHD and development have on his
measured cognitive ability. It would be recommended that [D.Y.] be
reassessed in the future to continue to monitor his cognitive ability.
[D.Y.’s] overall presentation appeared valid and consistent with the
reported conditions. The symptoms based on claimant report and
clinical observations appear to be moderately impacting activities of
daily living, academic performance, and interpersonal interactions.
Current prognosis for [D.Y.] is fair with treatment.

Id. The ALJ gave limited weight to Dr. Gehle’s opinion regarding D.Y.’s moderate
limitations in activities of daily living, academic performance, and interpersonal
interactions. Tr. 29. The ALJ noted that Dr. Gehle failed to define “moderate,” but
“[n]evertheless, Dr. Gehle examined [D.Y.] only once. Moreover, he did not have the
benefit of subsequent evidence, which showed improvement in functioning and grades
following treatment.” Tr. 29. Plaintiff does not specifically challenge the weight
given to this portion of Dr. Gehle’s opinion, 6 but rather argues that the ALJ erred in
not ordering an additional consultative evaluation.
however,

agrees

with

the

Commissioner’s

See Doc. 24.

contention

that

The Court,
Dr.

Gehle’s

recommendation does not support an argument that the ALJ could not reach an
informed decision without ordering an additional consultative examination. Doc. 27

Plaintiff points out that the ALJ gave Dr. Gehle’s opinion “diminish[ed]” weight;
however provides no discussion, analysis, or supporting authority whether it was error for
the ALJ to do so. Doc. 24 at 9. Accordingly, the argument whether the ALJ erred in giving
limited weight to Dr. Gehle’s opinion is deemed waived. See note 1, supra.
6

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at 15.

As the ALJ’s decision points out, medical records after Dr. Gehle’s

examination, D.Y.’s report cards, and hearing testimony provided enough
information for the ALJ to make an informed decision.
The medical records relied upon by the ALJ in support of his findings come
primarily from Advanced Registered Nurse Practitioner “ARNP” Tiongco and
Melanie Rodriguez, MS, CCC-SLP. D.Y. saw ARNP Tiongco on June 14, 2012 for his
six-week follow-up after she diagnosed him with ADHD in April 2012. Tr. 419-21.
D.Y.’s father reported that D.Y. was “focusing well,” “staying on task,” and had not
been aggressive. Tr. 419. Overall, D.Y.’s father reported no concerns that day. Id.
On examination, D.Y. was alert and oriented; his speech, language, and memory for
recent and remote events were intact; and his fund of knowledge was age appropriate.

Id. ARNP Tiongco diagnosed ADHD, controlled. Tr. 420.
On August 13, 2012, D.Y., six years old at the time, presented to Melanie
Rodriguez, MS, for a speech/language evaluation at the state agency’s request. Tr.
394-96. Ms. Rodriguez noted that D.Y.’s articulation, voice, and fluency were all
within normal limits. Tr. 396. D.Y. presented as a shy and quiet boy who exhibited
adequate attention and eye contact. Id. He primarily spoke in six word sentences
and did not elaborate on his thoughts and ideas. Id. He responded to questions
appropriately but his responses also were short in nature. Id. The examiner noted
that D.Y. followed complex directions without cues and demonstrated understanding
of a variety of linguistic concepts such as location, sequence, and spatial. Id. He
exhibited adequate turn taking skills and joint attention. Ms. Rodriguez noted that,

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overall, D.Y. communicated effectively with the use of sentences and presented with
well-developed nonverbal skills. Id. Ms. Rodriguez’s diagnosis was that D.Y. did
“exhibit

language/articulation/phonological

skills

commensurate

to

chronological/developmental age.” Id.
The following month, on September 13, 2012, D.Y. presented to ANP Tiongco
again for a neurologic follow-up. Tr. 416-18. On examination, he appeared alert
and oriented, friendly, cooperative, and attentive. Tr. 417. His speech, language,
and memory for recent and remote events were intact. Id. He was tolerating his
medicine “very well,” however, it seemed to be working mostly for the first few hours
of the day because he was losing concentration at the end of the day and was having
difficulty completing his homework.

Id.

ARNP Tiongco diagnosed ADHD,

currently not well controlled, with some wearing off effect towards the end of the day,
and she changed D.Y.’s medication. Tr. 417-18. Notes from a follow-up visit in
November 27, 2012 also state that D.Y. was doing well at school but was not focusing
during homework time; the examination results and diagnosis remained the same as
the September visit. Tr. 413-15. During D.Y.’s February 27, 2013 follow-up visit,
his father reported D.Y. had been doing well at school but not focusing during
homework time, so he gave D.Y. a second dosage of ADHD medication around 3:00
p.m. Tr. 410. The examination results and diagnosis remained unchanged from
the previous two visits, and ARNP Tiongco increased D.Y.’s medication dosage. Tr.
411-12.
During D.Y.’s visits with ARNP Tiongco for the following year, there were no

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complaints reported by either of his parents.

Tr. 398-409. The treatment notes

show improvement in D.Y.’s attention, concentration, behavior, and academics since
the adjustment of his medication in February 2012 through February 25, 2014, which
is the last record on file before his hearing. Id. Throughout this time period, he was
tolerating his medication without any side effects. Tr. 398, 401, 404, 407, 410. On
May 20, 2013, Plaintiff reported D.Y. had been doing “well behaviorally.” Tr. 407.
D.Y. had been reported to “focus, concentrate and stay on task”, although he had
problems with comprehension, such as reading but not understanding the content he
read. Id. On August 5, 2013, D.Y.’s father reported there had been no behavioral
complaints. Tr. 404. On November 5, 2013, D.Y.’s father reported D.Y. had been
“focusing, concentrating, and staying on task,” had been doing “well behaviorally”,
and there were no complaints from D.Y.’s teachers. Tr. 401. On February 25, 2014,
Plaintiff reported D.Y. had been “listening and following through with instructions
very well.” Tr. 398. D.Y. had not been forgetful or easily distracted. Id.

He had

been “completing his school work[] and homework[] without any difficulties,” and he
had “been doing very well academically.” Id. Moreover, Plaintiff reported that D.Y.
had been initiating and maintaining good attention. Id. The examination results
during each of these visits showed D.Y. was alert, attentive, cooperative, and
oriented. Tr. 399, 402, 405, 408, 411. His speech, language, and memory for recent
and remote events were intact, his fund of knowledge was age appropriate, and he
was friendly. Id. ARNP Tiongco diagnosed ADHD, controlled during each of these
visits. Tr. 399, 402, 405, 408.

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D.Y.’s report cards corroborate his parents’ reports to ARNP Tiongco of D.Y.’s
improvement with the ADHD medication. His kindergarten report card from the
2011-12 school year shows D.Y. had below level performance for the second and third
quarters in reading, written communication, and mathematics – the latter two
improving to on level performance by the fourth quarter. Tr. 268. Although he
needed improvement on some of the other remaining subjects during the second and
third quarters, D.Y.’s performance was satisfactory in all other subjects by the fourth
quarter.

Id.

His report card also shows that, behaviorally, D.Y. needed

improvement in listening attentively and completing homework assignments on time.

Id. D.Y.’s first grade report card for the 2012-13 academic year shows that, except
for being below level on reading on the first quarter, he was on level in reading,
written communication, and mathematics all year.

Tr. 267.

For the first three

quarters of this academic year, he received either satisfactory or excellent remarks
for the remaining subjects of science/health, social studies, art, music, and physical
education; he completed the fourth quarter with excellent remarks in each subject.

Id.

D.Y.’s second grade report card contains information through the first two

quarters of the 2013-14 school year.

Tr. 251-52. D.Y.’s student performance for

reading, written communication, and mathematics was on level for both quarters.
Tr. 252.

He needed improvement in academic progress for reading, written

communication, and science/health in the first quarter; however, during the second
quarter his academic progress was satisfactory in those subjects.

Id.

D.Y.’s

academic progress in all other subjects was excellent or satisfactory both quarters.

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Id. Neither of D.Y.’s first grade or second grade report card indicated D.Y. needed
improvement in any area of “Expected Behaviors.” Tr. 251, 267. Nor did D.Y.’s
report cards show any disciplinary history from 2011 through 2014. Tr. 257.
Plaintiff argues that the ALJ erroneously relied on the medical records versus
Plaintiff’s testimony. Doc. 24 at 10. As noted, the reports of improved focus and
concentration, better behavior, and improved academic performance reflected in the
medical records were made by Plaintiff or her husband. Tr. 398, 404, 407, 410, 419.
During the hearing, however, Plaintiff testified that D.Y. has difficulty focusing and
finishing tasks, and that he needs constant supervision and frequent reminders to
complete tasks.

Tr. 72. Plaintiff argues that the ALJ’s reliance on the medical

records containing the subjective unsworn impressions of the parents versus the
sworn testimony of Plaintiff is “inherently flawed” in this case.

Doc. 24 at 10.

Plaintiff, however, offers no authority to support this proposition. The ALJ noted
the mother’s hearing testimony and later explained that the “statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely
credible.” Tr. 28. It is the function of the Commissioner, and not the courts, to
resolve conflicts in the evidence and to assess the credibility of the witnesses. Lacina

v. Comm’r, Soc. Sec. Admin., 606 F. App’x 520, 525 (11th Cir. 2015) (citing Grant v.
Richardson, 445 F.2d 656 (5th Cir. 1971)).
Plaintiff also argues that the ALJ erred in not mentioning in his decision D.Y.’s
testimony that he was given extra time for school work and testing when he did not

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complete assignments on time. 7 Doc. 24 at 10; see also Tr. 56-57. As noted, the ALJ
found D.Y. had less than marked limitation in the domain of attending and
completing tasks, and explained that finding. “[T]here is no rigid requirement that
the ALJ specifically refer to every piece of evidence in his decision” so long as the
Court is able to conclude, as it does here, that the ALJ considered the condition as a
whole. Dyer, 395 F.3d at 1211.
Based on a thorough review of the ALJ’s opinion and the record as a whole,
there is substantial evidence to support the ALJ’s determination of D.Y.’s
impairments and that he fully and fairly developed the record and considered the
evidence therein. Plaintiff has failed to demonstrate evidentiary gaps in the record
which have resulted in clear prejudice sufficient to justify a remand in this case. See

Graham, 129 F.3d at 1423.
V.

Conclusion

The undersigned concludes that the ALJ applied the proper legal standards,
and his determination that D.Y. is not disabled is supported by substantial evidence.
ACCORDINGLY, it is hereby
ORDERED:
1. The decision of the Commissioner is AFFIRMED.
1. The Clerk of Court is directed to enter judgment pursuant to sentence four of
Plaintiff’s last argument rests on her questioning the value of the report cards as
proof of D.Y.’s improvement. She argues, “[g]rades on a report card are certainly subjective
and without the personal insight of the grader, as opposed to the comments and extensive
questionnaire completed by Ms. Bennett.” Doc. 24 at 11. Notwithstanding the lack of any
authority cited for this proposition, the Court finds this argument without merit for the same
reasons explained by the Commissioner in her brief. See Doc. 27 at 20-21.
7

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42 U.S.C. § 405(g) in favor of the Commissioner, and close the file.

DONE and ORDERED in Fort Myers, Florida on this 31st day of March, 2017.

Copies:
Counsel of record

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