Polk v Social Security Administration

Filing 23

ORDER AND REASONS: IT IS HEREBY ORDERED that the Court SUSTAINS Plaintiff's 22 objections in part and REJECTS the finding on page five of the Report and Recommendation, which states that "there is no evidence in the record to support the finding" that E.A.W. suffers from developmental delay. The Court ADOPTS the 19 Report and Recommendation in all other respects. IT IS FURTHER ORDERED that the ALJ's decision denying Plaintiff's application for benefits on behalf of E.A.W. is AFFIRMED and this case is DISMISSED WITH PREJUDICE. Signed by Chief Judge Nannette Jolivette Brown on 1/14/2019.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IMIRAH SHANTE POLK o/b/o E.A.W.

CIVIL ACTION

VERSUS

NO. 17-8167

NANCY BERRYHILL, ACTING COMMISSIONER
OF THE SOCIAL SECURITY ADMINISTRATION

SECTION: “G”(2)

ORDER AND REASONS
Before the Court are Plaintiff Imirah Shante Polk’s (“Plaintiff”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Plaintiff filed
this action pursuant to 42 U.S.C. § 405(g) for review of the final decision of Defendant, the Acting
Commissioner of the Social Security Administration (the “Commissioner” or “Defendant”),
denying her claim on behalf of her son, E.A.W., for supplemental security income (“SSI”) under
the Social Security Act (the “Act”).3 The Magistrate Judge recommended that the Administrative
Law Judge’s (“ALJ”) decision denying SSI benefits be affirmed.4 Plaintiff objects, arguing that
the ALJ’s decision should be reversed because E.A.W.’s developmental delay qualifies as a serious
impairment.5 Having considered Plaintiff’s objections, the Magistrate Judge’s Report and
Recommendation, the record, and the applicable law, for the following reasons, the Court will
sustain Plaintiff’s objections in part, reject the Magistrate Judge’s Report and Recommendation in

1

Rec. Doc. 22.

2

Rec. Doc. 19.

3

Rec. Doc. 1.

4

Rec. Doc. 19 at 10.

5

Rec. Doc. 22.

part, adopt the Magistrate Judge’s Report and Recommendation, affirm the ALJ’s decision
denying Plaintiff’s application for SSI benefits on behalf of E.A.W., and dismiss this action with
prejudice.
I. Background
A.

Procedural History
Plaintiff filed an application for SSI on behalf of her minor child, E.A.W., on April 3, 2015,

alleging that E.A.W. experienced developmental delays due to his premature birth on February 26,
2015.6 After Plaintiff’s claim was denied at the agency level, Plaintiff requested a hearing before
an ALJ, which was held on March 15, 2016.7 Plaintiff testified at the hearing.8
The ALJ analyzed Plaintiff’s claim pursuant to the three-step sequential evaluation process
used to determine whether an individual under the age of 18 is disabled.9 At step one, the ALJ
found that E.A.W. had not engaged in substantial gainful activity since April 3, 2015, the
application date.10 At step two, the ALJ determined that E.A.W. has the following severe
impairments: “status post hydrocephaly with shunt repair, estropia with surgical correction, status
post low birth weight (resolved).”11 The ALJ also noted that E.A.W. experienced transitory

6

Adm. Rec. at 70.

7

Id. at 57–66.

8

Id.

9

“For a child to be disabled under the meaning of the Act, the child must: (1) not be engaged in substantial
gainful activity; (2) have an impairment that is ‘severe’; and (3) have an impairment that ‘meets, medically equals, or
functionally equals’ the impairments listed in the disability regulations.” Richard ex rel. Z.N.F. v. Astrue, 480 F. App’x
773, 776 (citing 20 C.F.R. § 416.924(a)–(d)).
10

Adm. Rec. at 13.

11

Id.

2

conditions including diaper rash and anemia, but that these conditions did not result in more than
minimal functional limitations and were therefore “non-severe.”12 The ALJ also found that while
E.A.W. had a seizure on one occasion there was no objective testing to confirm the presence of a
seizure disorder and no diagnosis of a seizure disorder was made.13
At step three, the ALJ held that E.A.W. does not have an impairment or combination of
impairments that meets or medically equals the severity of the impairment listed at 20 C.F.R.
§ 404. Supbpt. P., Appendix 1.14 At step three, the ALJ also considered six functional equivalence
domains and determined that E.A.W. did not have an impairment or combination of impairments
that functionally equals the severity of the listing.15 The ALJ determined that E.A.W. had no
limitations in the following domains: (1) acquiring and using information;16 (2) attending and
completing tasks;17 (3) interacting and relating with others;18 (4) moving about and manipulating
objects;19 and (5) caring for himself.20 Finally, the ALJ found that E.A.W. had “less than marked”

12

Id.

13

Id.

14

Id. at 14.

15

Id.

16

Id. at 19–20.

17

Id. at 20–21.

18

Id. at 21–22.

19

Id. at 22–23.

20

Id. at 23–24.

3

limitations in the health and physical well-being domain.21 Therefore, the ALJ concluded that
E.A.W. was not disabled as defined by the Act.22
Plaintiff requested review by the Appeals Council. The ALJ’s decision became the final
decision of the Commissioner for purposes of this Court’s review after the Appeals Council denied
review on June 19, 2017.23 On August 23, 2017, Plaintiff filed a complaint seeking judicial review
pursuant to Section 405(g) of the Act.24 This matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On February 14, 2018, the
Commissioner answered the Complaint.25
On March 26, 2018, Plaintiff filed a memorandum arguing that the ALJ erred in failing to
consider E.A.W.’s developmental delays a serious impairment.26 Furthermore, Plaintiff argued
that E.A.W. had marked impairments in the domains of “interacting and relating with others” and
“health and physical well-being.”27 On May 9, 2018, the Commissioner filed a memorandum
arguing that E.A.W.’s developmental delays are not a serious impairment and that substantial
evidence supports the ALJ’s determination that E.A.W. did not have marked limitations in the
domains of “interacting and relating with others” and “health and physical well-being.”28

21

Id. at 24.

22

Id. at 25.

23

Id. at 1–6.

24

Rec. Doc. 1.

25

Rec. Doc. 14.

26

Rec. Doc. 16 at 1.

27

Id. at 2–3.

28

Rec. Doc. 17.

4

B.

The Magistrate Judge’s Findings and Recommendation
On November 6, 2018, the Magistrate Judge recommended that this Court affirm the ALJ’s

decision denying Plaintiff’s application for SSI on behalf of E.A.W.29 The Magistrate Judge found
that the there was no evidence in the record to support Plaintiff’s contention that E.A.W. suffers
from developmental delay.30 The Magistrate Judge noted that developmental delay was suspected
in the adaptive area on June 26, 2015,31 but the Early Steps and Developmental Clinic’s evaluation
of E.A.W. indicated that he was not developmentally delayed.32 Therefore, the Magistrate Judge
determined that the ALJ’s assessment of E.A.W.’s severe impairments was based on substantial
evidence.33
The Magistrate Judge also found Plaintiff’s argument that the ALJ should have found
marked limitations in two childhood functioning domains unavailing. 34 With respect to the domain
of “interacting and relating to others,” the Magistrate Judge noted that the medical records showed
that when E.A.W. was three months old his domain score was 2.33 standard deviations below the
mean and E.A.W. demonstrated delays in adaptive and motor demands.35 However, the Magistrate

29

Rec. Doc. 19 at 9.

30

Id. at 5.

31

Id. (citing Adm. Rec. at 543).

32

Id. (citing Adm. Rec. at 563).

33

Id. at 5–6.

34

Id. at 6–9.

35

Id. at 7 (citing Adm. Rec. at 564, 387).

5

Judge found that later records revealed that E.A.W.’s social interactions improved.36 Therefore,
the Magistrate Judge found that substantial evidence supported the ALJ’s determination that
E.A.W., had no limitations in the domain of “interacting and relating to others.”37
As to the domain of “health and physical well-being,” Plaintiff argued that E.A.W. had
marked limitations in this domain because he had four to five appointments a month.38 The
Magistrate Judge found this argument unavailing because “[a]ppointments alone are insufficient
to satisfy the regulations,” and E.A.W.’s therapy treatments improved his functioning.39 The
Magistrate Judge noted that the opinion was issued nearly two years after Plaintiff’s alleged onset
date and more than one year after her date last insured.40 Accordingly, the Magistrate Judge found
that the ALJ’s assessment of these domains was supported by substantial evidence.41
II. Objections
A.

Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation.42

Plaintiff argues that the Magistrate Judge erred in stating that the Early Steps evaluation did not
find that E.A.W. was developmentally delayed.43 Plaintiff asserts that the Early Steps testing found

36

Id. at 8.

37

Id.

38

Id.

39

Id. at 9.

40

Id.

41

Id.

42

Rec. Doc. 22.

43

Rec. Doc. 22-1 at 1.

6

that E.A.W. was significantly developmentally delayed in his adaptive and motor domains, and
that his social standard score was 65.44 Furthermore, Plaintiff contends that the Early Steps testing
determined that E.A.W. was developmentally delayed in adaptive, communication and cognitive
skills.45 Plaintiff asserts that E.A.W. was “born premature, suffered two interventricular
hemorrhages which caused developmental delays and continues to receive bi-weekly therapy
sessions and other treatment.”46 Plaintiff contends that the ALJ was required to consider all
impairment and evaluate whether the impairment is severe or not.47 Plaintiff argues that the ALJ
erred by failing to assess E.A.W.’s developmental delay as a serious impairment.48 Furthermore,
Plaintiff asserts that the ALJ erred in failing to find that E.A.W. had marked impairments in the
domains of “interacting and relating to others” and “health and physical well-being.”49 For these
reasons, Plaintiff contends that the Magistrate Judge’s recommendation should be rejected and the
decision of the ALJ should be reversed.50
B.

The Commissioner’s Response
The Commissioner did not file a brief in opposition to Plaintiff’s objections despite

receiving electronic notice of the filing.

44

Id. (citing Adm. Rec. at 566–69).

45

Id.

46

Id. at 2.

47

Id.

48

Id.

49

Id.

50

Id. at 1.

7

III. Standard of Review
A.

Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to a Magistrate Judge to provide

a Report and Recommendation. A district judge “may accept, reject, or modify the recommended
disposition” of a magistrate judge on a dispositive matter.51 The district judge must “determine de
novo any part of the [Report and Recommendation] that has been properly objected to.”52 A district
court’s review is limited to plain error of parts of the report which are not properly objected to.53
B.

Standard of Review of Commissioner’s Final Decision on SSI Benefits
Under 42 U.S.C. § 405(g) the district court has the power to enter “a judgment affirming,

modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”54 Appellate review of the Commissioner’s denial of SSI
benefits is limited to determining whether the decision is supported by substantial evidence in the
record and whether the proper legal standards were used in evaluating the evidence.55 “Substantial
evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”56 The Court must review the

51

Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

52

Id.

53

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
54

42 U.S.C. § 405(g).

55
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.
2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
56

Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393; Villa,
895 F.2d at 1021–22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Randall v. Sullivan, 956 F.2d
105, 109 (5th Cir. 1992)).

8

whole record to determine if such evidence exists.57 However, the district court cannot “reweigh
the evidence in the record, try the issues de novo, or substitute its judgment for the
Commissioner’s.”58 The ALJ is entitled to make any finding that is supported by substantial
evidence, regardless of whether other conclusions are also permissible.59 A court “weigh[s] four
elements of proof when determining whether there is substantial evidence of disability: (1)
objective medical facts; (2) diagnoses 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.”60
IV. Law and Analysis
A.

Law Applicable to Qualification for SSI for Children Under Age 18
For a child under the age of 18, the Act defines disability as “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.”61 “For a child to be disabled under the meaning of
the Act, the child must: (1) not be engaged in substantial gainful activity; (2) have an impairment

57

Singletary v. Bowen, 798 F.2d 818, 822–23 (5th Cir. 1986).

58

Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

59

See Arkansas v. Oklahoma, 503 U.S. 91 (1992).

60

Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

61

42 U.S.C. § 1382c(a)(3)(C)(i).

9

that is ‘severe’; and (3) have an impairment that ‘meets, medically equals, or functionally equals’
the impairments listed in the disability regulations.”62
In the instant case, the ALJ found that E.A.W. satisfied the first two steps of this analysis
as he has not engaged in substantial gainful activity since April 3, 2015, the application date, and
he had the following severe impairments: “status post hydrocephaly with shunt repair, estropia
with surgical correction, status post low birth weight (resolved).”63 The ALJ also noted that E.A.W.
experienced transitory conditions including diaper rash and anemia, but that these conditions did
not result in more than minimal functional limitations and were therefore “non-severe.”64 The ALJ
also found that while E.A.W. had a seizure on one occasion there was no objective testing to
confirm the presence of a seizure disorder and no diagnosis of a seizure disorder was made.65 At
step three, the ALJ held that E.A.W. does not have an impairment or combination of impairments
that meets or medically equals the severity of the impairment listed at 20 C.F.R. § 404. Supbpt. P.,
Appendix 1.66
In determining whether an impairment or combination of impairments functionally equals
the listing, the ALJ must “assess the interactive and cumulative effects of all of the impairments
for which we have evidence, including any impairments [] that are not ‘severe.’”67 In making this

62

Richard ex rel. Z.N.F. v. Astrue, 480 F. App’x 773, 776 (5th Cir. 2012) (citing 20 C.F.R. § 416.924(a)-

63

Adm. Rec. at 13.

64

Id.

65

Id.

66

Id.

67

See 20 C.F.R. § 416.926a(a).

(d)).

10

determination, the ALJ must consider the child’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.68 To functionally equal a listing, a child must have an impairment or combination of
impairments that result in “marked” limitations in two domains of functioning, or an “extreme”69
limitation in one domain of functioning.70
A “marked” limitation interferes “seriously” with the “ability to independently initiate,
sustain, or complete activities.”71 A limitation will be considered “marked” if standardized testing
scores are at least two, but less than three, standard deviations below the mean, or for children
under the age of three years old where the child is “functioning at a level that is more than onehalf but not more than two-thirds of [the child’s] chronological age.”72 An “extreme” limitation
interferes “very seriously” with the “ability to independently initiate, sustain, or complete
activities.”73 A limitation will be considered “extreme” if standardized testing scores are at least

68

See 20 C.F.R. § 416.926a(b)(1).

69

An “extreme” limitation interferes “very seriously” with the ability to independently initiate, sustain, or
complete activities. A child’s day-to-day functioning may be very seriously limited when his impairment(s) limits
only one activity or when the interactive and cumulative effects of his impairments(s) limit several activities. 20 C.F.R.
§ 416.926a(e)(3).
70

See 20 C.F.R. § 416.926a(d).

71

20 C.F.R. § 416.926a(e)(2)(i).

72

20 C.F.R. § 416.926a(e)(2)(i)–(ii).

73

20 C.F.R. § 416.926a(e)(3)(i).

11

three standard deviations below the mean, or for children under the age of three years old where
the child is “functioning at a level that is one-half of [the child’s] chronological age or less.”74
In this case, the ALJ found that E.A.W. had no limitations in the first five domains, and a
“less than marked” limitation in the “health and physical well-being” domain.75 Therefore, the ALJ
concluded that E.A.W. was not disabled as defined by the Act.76 The Court may disturb that finding
only if the ALJ lacked “substantial evidence” to support it.77
B.

Analysis
Plaintiff argues that the Magistrate Judge erred in stating that the Early Steps evaluation

did not find that E.A.W. was developmentally delayed.78 Plaintiff argues that the Early Steps
evaluation shows that E.A.W. had developmental delays, and the ALJ erred by failing to assess
E.A.W.’s developmental delay as a serious impairment.79 Furthermore, Plaintiff asserts that the
ALJ erred in failing to find that E.A.W. had marked impairments in the domains of “interacting
and relating to others” and “health and physical well-being.”80 Accordingly, the Court will address
each of these issues in turn.

74

20 C.F.R. § 416.926a(e)(3)(i)–(ii).

75

Adm. Rec. at 19–25.

76

Id. at 25.

77

See Perez, 415 F.3d at 461

78

Rec. Doc. 22-1 at 1.

79

Id. at 1–2.

80

Id.

12

1.

Did the ALJ err by failing to assess E.A.W.’s developmental delay as a serious
impairment?

At page five of the Report and Recommendation, the Magistrate Judge stated that the Early
Steps and Developmental Clinic’s evaluation of E.A.W. “does not indicate that E.A.W. was
developmentally delayed.”81 Therefore, the Magistrate Judge concluded that “there is no evidence
in the record to support the finding” that E.A.W. suffers from developmental delay.82 In support
of this assertion, the Magistrate Judge cited a checklist report completed by Early Steps on May
28, 2015.83 The report states that the “eligibility team agrees by indication below that the child is
eligible and in need of early intervention.”84 In response, the eligibility team checked “yes” and
indicated that E.A.W. was in need of early intervention for a medical diagnosis of “intraventricular
hemorrhage/prematurity.”85 The report has a section for “developmental delay,” but this portion is
not marked on E.A.W.’s eligibility form.86 Therefore, this form appears to suggest that E.A.W.
was eligible for early intervention due to his medical diagnosis of “intraventricular
hemorrhage/prematurity” not due to a developmental delay.87

81

Rec. Doc. 19 at 5 (citing Adm. Rec. at 563).

82

Id.

83

Id.

84

Adm. Rec. at 563.

85

Id.

86

Id.

87

Id.

13

However, the “Early Steps Report for IFSP and Program Planning” completed by Evaluator
Helen DeMoss on May 28, 2015, suggests that a developmental delay was found.88 Specifically,
the report states that E.A.W. “demonstrated delays in his adaptive and motor domains” in the
Battelle Developmental Inventory-2 (“BDI-2”) examination administered on May 28, 2015.89 The
report states that E.A.W.’s social standard score was 65, which is “in the range of significant
developmental delay.”90 Furthermore, the evaluation revealed a “mild developmental delay” in the
areas of adaptive, communication and cognitive skills.91 Therefore, because portions of the Early
Steps records do indicate that E.A.W. was developmentally delayed, the Court will sustain
Plaintiff’s objection and reject the Report and Recommendation to the extent it states that “there
is no evidence in the record to support the finding” that E.A.W. suffers from developmental
delay.92
Nevertheless, a review of the ALJ’s opinion reveals that although he did not find that
E.A.W.’s developmental delay was a severe impairment, the ALJ did thoroughly consider the
Early Steps evaluation.93 The ALJ’s opinion notes that the BDI-2 evaluation was administered by
Early Steps on May 28, 2015.94 The ALJ’s opinion notes the following findings from the BDI-2

88

Id. at 567.

89

Adm. Rec. at 567.

90

Id.

91

Id.

92

Rec. Doc. 19 at 5.

93

Adm. Rec. at 11–26.

94

Id. at 16.

14

evaluation: (1) motor skills were in the low average range; (2) adaptive, communication, and
cognitive skills were in the range of mild developmental delay; (3) social skills were in the range
of significant developmental delay (2.33 standard deviations below the mean).95
Plaintiff argues that the ALJ erred in failing to find that E.A.W.’s developmental delay was
a serious impairment. However, even assuming that the ALJ should have found that the
developmental delay was a severe impairment, this error alone does not demand reversal of the
ALJ’s decision. As the Fifth Circuit has explained, when an ALJ proceeds to subsequent steps of
the sequential evaluation analysis and denies benefits on that basis, any alleged error in not finding
a specific impairment severe is harmless.96 In Dise v. Colvin, the ALJ found that the plaintiff
suffered from a severe mental impairment of oppositional defiant disorder.97 On appeal, the
plaintiff argued that the ALJ erred in failing to address whether the plaintiff’s depression was also
a severe impairment.98 The Fifth Circuit found that this argument was meritless because “[t]he
remainder of the opinion clearly reflects that the ALJ considered all of [the plaintiff’s] claimed
impairments (including depression) in his assessment of [the plaintiff’s] disability, even though he
only mentioned ODD at step two. In short, ‘this case did not turn on whether or not [the plaintiff’s
depression] impairment was severe,’ but on subsequent steps in the analysis.”99

95

Id.

96
Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987); Dise v. Colvin, 630 F. App’x. 322, 324 (5th Cir. 2015)
(per curiam).
97

Dise, 630 F. App’x. at 326.

98

Id.

99

Id. (quoting Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987)).

15

Like in Dise, here, the ALJ’s opinion clearly reflects that the ALJ considered all of
E.A.W.’s claimed impairments, including developmental delays, in his assessment of E.A.W.’s
disability. The ALJ’s determination did not turn on whether E.A.W.’s developmental delays were
severe but on subsequent steps in the analysis. Specifically, the ALJ determined that E.A.W. was
not disabled at step three because E.A.W. did not have marked or extreme limitations in the six
domains used to assess a child’s functioning. Therefore, Plaintiff’s argument that the ALJ’s
opinion should be reversed on this basis is without merit.
2.

Did the ALJ err in failing to find that E.A.W. had marked impairments in the
domains of “interacting and relating to others” and “health and physical wellbeing”?

Next, Plaintiff argues that the ALJ erred in failing to find that E.A.W. had marked
impairments in the domains of “interacting and relating to others” and “health and physical wellbeing.”100 The domain of interacting and relating with others requires assessment of how well a
child is able to initiate and sustain emotional connections with others; develop and use language;
cooperate with others; comply with rules; respond to criticism; and take care of the possessions of
others.101 Newborns and young infants should visually and vocally respond to caregivers, develop
speech vowel and consonant sounds, and respond to a variety of emotions.102 Older infants should
begin to separate from caregivers, express emotions, and respond to others.103

100

Rec. Doc. 22-1 at 1–2.

101

20 C.F.R. § 416.926a(i).

102

20 C.F.R. § 416.926a(i)(2)(i).

103

20 C.F.R. § 416.926a(i)(2)(ii).

16

Plaintiff bases the argument that E.A.W. has marked limitation in this domain on testing
performed by Early Steps on May 28, 2015, when E.A.W. was three months old, which indicated
that his social/emotional behavior was 2.33 standard deviations below the mean.104 The regulations
provide that a limitation will be considered “marked” if standardized testing scores are at least
two, but less than three, standard deviations below the mean, or for children under the age of three
years old where the child is “functioning at a level that is more than one-half but not more than
two-thirds of [the child’s] chronological age.”105
However, later medical records reveal that E.A.W.’s social interactions improved. As noted
by the ALJ, the state agency medical consultant who reviewed the evidence determined that
E.A.W. had no limitations in this domain.106 Furthermore, during a well-child visit on January 15,
2016, E.A.W.’s father reported that E.A.W. cooed interactively,107 and on February 4, 2016,
E.A.W.’s father noted that E.A.W. was alert and interactive with feedings.108 Physicians at the
Children’s Hospital Medical Practice also reported on numerous visits that E.A.W. presented
appropriate behavior for his age and did not exhibit barriers to learning.109 Therefore, substantial
evidence supported the ALJ’s determination that E.A.W. had no limitation in the domain of
“interacting and relating to others.”

104

Adm. Rec. at 385.

105

20 C.F.R. § 416.926a(e)(2)(i)–(ii).

106

Adm. Rec. at 22, 73.

107

Id. at 635.

108

Id. at 628.

109

Id. at 625, 630–31, 634, 637–38.

17

As to the domain of “health and physical well-being,” Plaintiff argues that E.A.W. had
marked limitations in this domain because he had four to five appointments a month.110 The
domain of “health and physical well-being” requires assessment of “the cumulative physical
effects of physical or mental impairments and their associated treatments or therapies on [the
child’s] functioning.”111 The regulations provide that a child may have “marked” limitation if he
or she is “frequently ill because of [their] impairment(s) or have frequent exacerbations of [their]
impairment(s) that result in significant, documented symptoms or signs.”112 The regulations define
frequent as “episodes of illness or exacerbations that occur on an average of 3 times a year, or once
every 4 months, each lasting 2 weeks or more.”113 Alternatively, the regulations provide that an
ALJ may find a “marked” limitation if the child has “episodes that occur more often than 3 times
in a year or once every 4 months but do not last for 2 weeks, or occur less often than an average
of 3 times a year or once every 4 months but last longer than 2 weeks, if the overall effect (based
on the length of the episode(s) or its frequency) is equivalent in severity.”114
In examining this domain, the ALJ noted that E.A.W. was born prematurely with low birth
weight, which had resolved.115 The ALJ noted E.A.W. required a shunt placement for

110

Rec. Doc. 16 at 2–3.

111

20 C.F.R. § 416.926a(l).

112

20 C.F.R. § 416.926a(e)(2)(iv).

113

Id.

114

Id.

115

Adm. Rec. at 24.

18

hydrocephaly, and he underwent an eye surgery to correct his estropia on February 8, 2016.116 The
ALJ also noted that on March 3, 2016, E.A.W.’s pediatrician described a physical examination as
normal and discussed introducing more meat into E.A.W.’s diet to help with anemia.117 Finally,
the ALJ noted that on March 7, 2016, the Early Steps therapist reported that E.A.W. was beginning
to focus and progress much more since his eye surgery.118 Therefore, the ALJ concluded that
E.A.W.’s limitations were less than marked in this domain.119
The fact that E.A.W. had four to five appointments a month is alone insufficient to satisfy
the regulations. Plaintiff does not point to evidence showing that E.A.W. experienced episodes or
exacerbations of an illness frequently as described by the regulations. Furthermore, as noted by
the ALJ, the medical records suggest that E.A.W.’s condition was improving. Therefore,
substantial evidence supported the ALJ’s determination that E.A.W. had less than marked
limitations in the domain of “health and physical well-being.”
V. Conclusion
Because portions of the Early Steps records indicate that E.A.W. was developmentally
delayed, the Court will sustain Plaintiff’s objection and reject the Report and Recommendation to
the extent it states that “there is no evidence in the record to support the finding” that E.A.W.
suffers from developmental delay. However, Plaintiff’s argument that the ALJ’s opinion should
be reversed because the ALJ did not find that the developmental delay was a severe impairment is

116

Id.

117

Id.

118

Id.

119

Id. at 25.

19

without merit. The ALJ’s opinion clearly reflects that the ALJ considered all of E.A.W.’s claimed
impairments, including developmental delays, in his assessment of E.A.W.’s disability.
Furthermore, substantial evidence supported the ALJ’s determination that E.A.W. had no
limitation in the domain of “interacting and relating to others” and less than marked limitations in
the domain of “health and physical well-being. Accordingly,
IT IS HEREBY ORDERED that the Court SUSTAINS Plaintiff’s objections in part and
REJECTS the finding on page five of the Report and Recommendation, which states that “there
is no evidence in the record to support the finding” that E.A.W. suffers from developmental delay.
The Court ADOPTS the Report and Recommendation in all other respects.
IT IS FURTHER ORDERED that the ALJ’s decision denying Plaintiff’s application for
benefits on behalf of E.A.W. is AFFIRMED and this case is DISMISSED WITH PREJUDICE.

14th
NEW ORLEANS, LOUISIANA, this _____ day of January, 2019.
__________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

20