Ratcliff v. Social Security Administration

Filing 21

ORDER AND REASONS ADOPTING 19 REPORT AND RECOMMENDATIONS: IT IS ORDERED that the Magistrate Judge's Findings and Recommendation are adopted, overruling objections to same, and this matter is dismissed. Signed by Judge Ivan L.R. Lemelle on 7/20/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TRENISE RATCLIFF

CIVIL ACTION

VERSUS

NO. 16-7835

SOCIAL SECURITY ADMINISTRATION

SECTION “B”

ORDER AND REASONS
Before the Court are petitioner Trenise Ratcliff objections,
on behalf of her minor son (“T.W.”) to the Magistrate Judge’s
Findings

and

Recommendation

(Rec.

Doc.

20).

Magistrate

Judge

Joseph Wilkinson Jr issued Findings and Recommendation (“Findings
and Recommendations”) upholding the denial of the petitioner’s
claim for Supplemental Security Income Benefits (“SSI”) under
Title XVI, 42 U.S.C. § 402 et seq. (Rec. Docs. 16 and 19).
For the reasons outlined below, IT IS

ORDERED

that the

Magistrate Judge’s Findings and Recommendation are adopted,
overruling objections to same, and this matter is dismissed.
PROCEDURAL HISTORY
Ratcliff, on behalf of T.W., filed for Supplemental Security
Income (“SSI”) benefits on October 2, 2013 alleging a disability
beginning August 15, 2006. (Rec. Doc. 13-2 at 46). Specifically,
Ratcliff alleges T.W. has severe impairments of Attention Deficit
Hyperactivity

Disorder

(“ADHD”),

Borderline

Intellectual

Functioning (“BIF”) and Depressive Disorder. (Rec. Doc. 13-2 at
49). Ratcliff’s claim for SSI benefits was denied on January 10,
2014. (Rec. Doc. 13-2 at 46). The matter was referred to an
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Administrative Law Judge (“ALJ”) who conducted a hearing on August
29, 2014 and denied the claim. (Rec. Doc. 13-2 at 59). Petitioner
filed a timely petition in this Court to review the appeals council
denial of her request of the ALJ’s decision on September 23, 2013.
(Rec. Doc. 13-2 at 46). As noted earlier, the matter is now before
us following objections to the Magistrate Judge’s Findings and
Recommendations. `
ADMINISTRATIVE LAW JUDGE AND MAGISTRATE’S FINDINGS
The Administrative Law Judge determined T.W. has “some
limitations in the ability to function, but those limitations are
not severe enough to be considered disabling.” (Rec. Doc. 13-4 at
4). The Magistrate Judge found that “substantial evidence supports
the ALJ’s findings that T.W. has less than marked limitations in
the domains of acquiring and using information and attending and
completing tasks.” (Rec. Doc. 19 at 23).
STANDARD OF REVIEW
Judicial review of any final decision of the Commissioner of
Social Security is limited to: (1) whether the final decision is
supported

by

substantial

evidence,

and

(2)

whether

the

Commissioner applied the proper legal standard when evaluating
evidence. Spellman v. Shala, 1 F.3d 357, 360 (5th Cir. 1993); see
also Griego v. Sullivan, 940 F.2d 942, 943 (5th Cir. 1991); Villa
v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1991). If substantial

2

evidence supports the commissioner’s findings, they are conclusive
and must be affirmed. 42 U.S.C. § 405(g); see also Spellman, 1
F.3d at 360; Richardson v. Perales, 402 U.S. 389, 390 (1971);
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). Substantial
evidence is that which is relevant and sufficient for a reasonable
mind to accept as adequate to support a conclusion. Spellman, 1
F.3d at 360; see also Richardson, 402 U.S. at 401.
This Court may not reweigh the evidence, try the issues de
novo or substitute its judgement for the Commissioner’s even if
the evidence weighs against the Commissioner’s decision. Bowling
v. Shala, 36 F.3d 431, 434 (5th Cir. 1994); see also Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The Commissioner, rather
than the court, must resolve the conflicts in the evidence. Id.
Nevertheless, this Court must scrutinize the record in its entirety
to

determine

the

reasonableness

of

the

decision

and

whether

substantial evidence exists to support it. Johnson v. Bowen, 864
F.2d 340, 343–44 (5th Cir. 1988); see also Villa v. Sullivan, 895
F.2d 1019, 1022 (5th Cir. 1990).
PETITIONER’S OBJECTIONS
Petitioner

requests

rejection

of

the

Findings

and

Recommendation and seeks remand “to SSA for further action.” (Rec.
Doc.

20-1

at

7).

Four

objections

are

raised.

First,

T.W.’s

depressive disorder caused several incidents at school, markedly

3

diminished his interest or pleasure in almost all activities,
decreased

appetite,

caused

psychomotor

agitation,

and

caused

difficulty concentrating. (Rec. Doc. 13-4 at 20). Second, the
screen information shows T.W. needs improvement in the areas of
listening attentively, completing tasks in a reasonable time,
working well independently, and completing homework. (Rec. Doc.
20-1). Third, T.W.’s difficulties in cognitive activities are
well-documented because T.W.’s teacher stated he has difficulty in
writing, social studies, and science. In addition, T.W. exhibits
a marked cognitive impairment when compared to his same-aged peers.
(Rec.

Doc.

20-1).

Lastly,

Petitioner

argues

T.W.

experiences

marked or extreme limitations in acquiring and using information.
Id.
Disability Determination Process
In 1996, Congress passed the Personal Responsibility and Work
Opportunity

Reconciliation

Act

(“The

Act”)

that

stated

“an

individual under the age of 18 shall be considered disabled if
that individual has a medically determinable physical or mental
impairment

which

limitations.”

results

Personal

in

marked

Responsibility

and
and

severe

functional

Work

Opportunity

Reconciliation Act of 1996, PL 211(d)(1), August 22, 1994, 110
Stat 2105.
When

making

a

determination

of

disability,

the

Social

Security office uses a three-step procedure for evaluating a
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child’s claim for disability. 20 C.F.R. § 416.924 (2014). The first
step is to determine if the child is doing substantial gainful
activity. Id. If “yes” then the claimant is not disabled. Id. If
“no” then the claim will move forward to consider physical or
mental impairment(s). Id. If the impairment(s) is not severe, the
claimant will be found not disabled. Id. “If the impairment(s) is
severe, the impairment(s) will be reviewed to meet or equal in
severity, either medically or functionally, an impairment listed
in

Appendix

1,

Subpart

P,

Part

404

of

the

Commissioner’s

regulations (the Listings”).” Id. If the claimant has such an
impairment and the impairment meets the duration requirement, the
claimant will be found disabled. Id.

If not, the claimant will be

found not disabled. Id.
If the claimant is not satisfied with the decision by the
Social Security office, the claimant can request a hearing with an
Administrative Law Judge. (Rec. Doc. 13-4 at 6). The claimant must
provide any new evidence available and a strong reason why the
decision should be reversed. Id. If the claimant is dissatisfied
with the Administrative Law Judge’s decision, the claimant can
apply for review by the Appeals Court. If the Appeals Court denies
review, the claimant can file in this Court.
The Court weighs four elements of proof when determining
whether there is substantial evidence of a disability set forth in

5

20 C.F.R. § 416.924:(1) objective medical facts, (2) diagnosis and
opinions of treating and examining physicians, (3) the claimant’s
subjective evidence of pain and disability, and (4) his age,
education, and work history. Martinez v. Chater, 64 F.3d 172, 174
(5th Cir. 1995). The claimant must prove the impairment meets or
equals all specified criteria for listing. Parks ex rel. D.P. v.
Comm’r, Soc. Sec. Admin, 783 F.3d 847, 850 (11th Cir. 2015).
Analysis of Plaintiff’s Objections
1. T.W.’s impairments do not meet Listing 112.04
To meet Listing 112.04 the requirements for both 112.04(A)
and 112.04(B) must be satisfied. To satisfy the requirements of
Listing

112.04(A)

for

depression,

there

must

be

medically

documented findings of at least five of the following: “depressed
or irritable mood, markedly diminished interest or pleasure in
almost all activities, appetite or weight increase or decrease,
sleep

disturbance,

psychomotor

agitation,

fatigue

or

loss

of

energy, feelings of unworthiness or guilt, difficulty thinking or
concentrating, suicidal thoughts or acts or, hallucinations.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, Listing 112.04. To satisfy
Listing 112.04(B), the child must be “between the ages 3 and 18”
and

“at

least

two

of

the

appropriate

age-group

criteria

in

paragraph B2 of 112.04.” 20 C.F.R. Pt. 404, Subpt. P, App. 1.

6

Listing 112.02(b) is met when an impairment “results in at least
two of the following”:
(a)“Marked
impairment
in
age-appropriate
cognitive/communicative function, documented by medical
findings (including consideration of historical and other
information from parents or other individuals who have
knowledge of the child, when such information is needed and
available) and including, if necessary, the results of
appropriate standardized psychological tests, and for
children under age 6, by appropriate tests of language and
communication; or
(b) “Marked impairment in age—appropriate social functioning,
documented by history and medical findings (including
consideration
of
information
from
parents
or
other
individuals who have knowledge of the child, when such
information is needed and available) and including, if
necessary, the results of appropriate standardized tests; or
impairment
in
age-appropriate
personal
(c)“Marked
functioning, documented by history and medical findings
(including consideration of information from parents or other
individuals who have knowledge of the child, when such
information is needed and available) and including, if
necessary, appropriate standardized tests; or
(d) “Marked difficulties in maintaining concentration,
persistence, or pace.”
Petitioner argues T.W.’s depressive disorder causes him to
experience
pleasure

depressed
in

almost

mood,
all

markedly

diminished

activities,

appetite

interest
decrease,

or
and

psychomotor agitation. (Rec. Doc. 20-1 at 1). The statements of
Petitoner are not entirely supported by the record. To establish
credibility,

T.W.’s

symptoms

must

be

confirmed

by

medical

findings. Jackson v. Astrue, 734 F.Supp.2d 1343, 1357 (N.D. Ga.
July 15, 2010).
The

only

Depressive

relevant

Disorder

medical

diagnosis

evidence
by

7

Dr.

presented
Hamm

and

is
Mr.

T.W.’s
Daryl

Guggeriheim’s teacher questionnaire. Although Dr. Hamm diagnosed
T.W. with depressive disorder and prescribed Prozac, she did not
provide insight to T.W.’s intensity, persistence and limiting
effects of his diagnosis. T.W. has not shown symptoms of depressed
mood,

bipolar,

feelings

of

guilt,

hallucinations

or

paranoid

thinking as described in 20 C.F.R. Pt. 404, Subpt. P, App. 1,
Listing 112.04. Sambula v. Barnhart, 285 F.Supp.2d 815, 816 (S.D.
Tex. 2002) (the child showed symptoms of Listing 112.04, but not
one evaluator described the child as having any behavior, social,
or personality disorders that would have been disabling. The court
held

the

defendant’s

motion

for

summary

judgement

should

be

granted).
2. T.W. does not meet Listing 112.11
To meet Listing 112.11 for ADHD, T.W. must have “(a) medically
documented findings or marked inattention, marked impulsiveness
and marked hyperactivity; and (b) at least two of the following:
marked

impairment

function,
necessary,

in

documented
the

age-appropriate
by

results

medical

cognitive

findings

appropriate

and

standardized

communicative
including,

if

psychological

tests; marked impairment in age appropriate social functioning,
documented by history and medical findings; or marked difficulties
in maintaining concentration, persistence or pace.” 20 C.F.R. Pt.
404, Subpt.P, App. 1 §§ 112.11, 112.02(B)(2).

8

Petitoner argues that the ALJ erred in finding that T.W.’s
impairments do not meet Listing 112.11. (Rec. Doc. 20-1 at 1).Dr.
Hamm diagnosed T.W. with ADHD and treated with Intuniv. (Rec. Doc.
13-7 at 17, 20). The mere diagnosis and treatment of ADHD does not
establish disability. 20 C.F.R. § 416.925(d); see also Bordelon v.
Astrue, 281 F. App.’x 418, 422 (5th Cir. 2008) (citing Hames v.
Heckler, 707 F.2d 162, 165 (5th Cir. 1983)). Both Petitioner and
T.W.’s teacher expressed T.W. must be redirected during the day to
complete tasks. Rec. Docs. 13-2 at 88, 13-6 at 58. Although T.W.
has issues focusing, his symptoms are improved with medication.
Rec. Doc. 13-2 at 82. The ALJ established T.W. has an impairment,
but the impairment is not severe enough to meet the Listing of
impairments in 20 C.F.R. § 416.924, 416.925, 416.926. Bridges v.
Massanari, Case No. 00-2639 2001 WL 883218, at*1 (E.D. La. July
20, 2001) (“although the record contained references to the son’s
inattention, impulsiveness and hyperactivity, substantial evidence
supported the ALJ’s conclusion that these did not rise to the level
of marked limitations.”); see also Magee v. Astrue, Case No.
1:09cv620HSO-JMR

2011

WL

1225011

at*3

(S.D.

Miss.

March

29,

2011)(plaintiff contends the treating physician found marked or
extreme limitations based on Listing 112.11, but the record is
devoid of medical evidence); D.T. v. Barnhart, Case No. 02-1656
2003 U.S. Dist. LEXIS 16198, at*1 (E.D. La. March 12, 2003)
(“substantial evidence showed the alleged severity of claimant’s
9

ADHD,

stomach

aches,

asthma

and

speech

impairment

were

not

supported by the record”).
3. Petitoner did not provide substantial evidence to prove a
marked impairment in social functioning.
To have a “marked” or “extreme” limitation, the court must
consider

the

claimants

functional

limitations

and

cumulative

effects. A claimant has a “marked limitation” when the impairment
interferes seriously with his “ability to independently initiate,
sustain, or complete activities.” A “marked” limitation is “more
than moderate” but “less than extreme.” 20 C.F.R. § 416.926a. An
extreme limitation means no meaningful function in a given area.
Id. Accepted evidence to determine the limitations are “signs,
symptoms, laboratory findings, descriptions we have about your
functioning from your parents, and teachers.” 20 C.F.R. § 416.926a.
Petitioner argues T.W. is socially immature because he “plays
better” with little kids. (Rec. Doc. 13-2 at 89). However, on the
“interacting and relating with others section” of the teacher
questionnaire, T.W. has “no problem” with functioning with same
age children without impairments on four out of thirteen of the
sections. (Rec. Doc 13-6 at 59). T.W. has “a slight problem” on
eight out of the thirteen sections, and “an obvious problem” on
one out of the thirteen sections. Id. The reviewing psychologist
Julia Wood, Ph.D. believes T.W. has “less than marked limitations
10

in interacting and relating with others and the functional domain
similar to social functioning.” (Rec. Doc. 19 at 15).
Petitioner has not provided sufficient evidence to prove T.W.
has a marked impairment in age-appropriate social functioning.
Less than marked limitations is not severe enough to meet the
standard

of

marked

impairment

in

social

functioning.

T.W.’s

teacher and Dr. Wood both indicate T.W. has less than marked
limitations

in

age

appropriate

social

functioning,

but

the

findings are not severe enough to meet the standard. (Rec. Doc.
13-6 at 59). Petitioner failed to prove T.W. has impairments in at
least two areas of functioning to meet the Listing criteria for
112.11.
4.

T.W.’s

impairments

do

not

functionally

equal

listing

112.04 or 112.11
If a claimant has a severe impairment or combination of
impairments that do not meet or medically equal any listing, it
must be determined whether the limitations functionally equal the
listings. 20 C.F.R. § 416.926a. The impairment must result in a
“marked” limitations in two domains of functioning or an “extreme”
limitation in one domain. Id. Functional equivalence is assessed
by examining the child’s limitations in six domains: “(i) acquiring
and using information; (ii) attending and completing tasks; (iii)
interacting

and

relating

with

others;
11

(iv)

moving

about

and

manipulating and completing tasks; (v) caring for yourself; and,
(vi)

health

and

physical

well-being.”

20

C.F.R.

§

416.926(a)(b)(1).
Petitioner argues T.W. has “marked or extreme limitations in
acquiring and using information, attending and completing tasks,
interacting and relating with others, and caring for himself.”
(Rec. Doc. 20-1 at 7). In the acquiring and using information
section, T.W. has less than marked limitations. Although T.W. has
deficits

in

reading

and

math,

which

was

reflected

on

the

standardized test scores, the scores were from one year prior and
cannot be used. (Rec. Doc. 13-7 at 50). Additionally, T.W. is only
in special education classes two and a half hours per day and
spends five and a half hours per day in a regular classroom. T.W.’s
teacher, questionnaire stated T.W. has “slight to obvious” problem
in this domain and often has to be redirected during the day. (Rec.
Doc. 13-6 at 58). During the ALJ hearing Petitoner stated T.W. has
to be redirected at home to complete cleaning tasks. (Rec. Doc.
13-2 at 84).
“Dr. Wood reviewed T.W.’s records on January 8, 2014. Dr.
Wood opined that T.W. has less than marked limitations in the two
domains of acquiring and using information and attending and
completing

tasks.

No

medical

evidence

contradicts

Dr.

Wood’s

assessment.” (Rec. Doc. 19 at 22). In addition, Dr. Wood assessed

12

T.W. with less than marked limitations in the ability to care for
himself. (Rec. Doc. 13-6 at 8). T.W.’s teacher questionnaire does
not mention limitations in T.W’s ability to care for himself. (Rec.
Doc. 13-6 at 58). There is not enough evidence to sufficiently
prove T.W. has marked limitations in caring for himself. Petitioner
argues T.W. is socially immature because “he plays better” with
little kids. (Rec. Doc. 13-2 at 89). As mentioned before, T.W.’s
teacher and Dr. Wood both indicate T.W. has less than marked
limitations

in

age

appropriate

social

functioning,

but

the

findings are not severe enough to meet the standard. (Rec. Doc.
13-6 at 59). Thus, T.W.’s limitation in interacting and relating
with others do not functionally equal listing 112.04 or 112.11.
CONCLUSION
Substantial record evidence supports the ALJ’s findings that
T.W. has less than marked limitations in the domains of acquiring
and

using

Petitioner’s

information
objections

and
do

attending
not

and

demonstrate

completing
error

tasks.

with

the

Magistrate Judge’s Findings and Recommendations. Therefore,

a

judgment will be separately issued dismissing the captioned
action.
New Orleans, Louisiana, this 20th day of July, 2017.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
13