Canada v. Social Security Administration

Filing 15

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Tiffney Canada. Objections to R&R due by 1/14/2010. Signed by Magistrate Judge Mark L Hornsby on 12/28/09. (crt,Alexander, E)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H R E V E P O R T DIVISION

T IF F N E Y CANADA o/b/o R.C. V ER SU S U .S . COMMISSIONER OF SOCIAL S E C U R IT Y ADMINISTRATION

C IV IL ACTION NO. 08-cv-0539 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

R E P O R T AND RECOMMENDATION I n t r o d u c tio n T if f n ey Canada filed an application for Supplemental Security Income on behalf of h e r son, RC, who suffers from several health problems. RC, who was born in September 1 9 9 3 , was 14 years old when ALJ W. Thomas Bundy assessed his claim and denied benefits. T r. 8-20. The Appeals Council denied a request for review. Tr. 3-5. Ms. Canada then filed th is appeal to seek the limited judicial relief that is available under 42 U.S.C. § 405(g). It is re c o m m e n d e d , for the reasons that follow, that the Commissioner's decision to deny benefits b e affirmed. S t a n d a r d of Review; Substantial Evidence T h is court's standard of review is (1) whether substantial evidence of record supports th e ALJ's determination, and (2) whether the decision comports with relevant legal sta n d a rd s. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). "Substantial evidence is m o r e than a scintilla and less than a preponderance. It is such relevant evidence as a re a so n a b le mind might accept as adequate to support a conclusion." Muse v. Sullivan, 925

F .2 d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is justified only if there are no credible evidentiary choices or medical findings which support the ALJ's d eterm inatio n . Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). A n a ly sis A three-step evaluation process is used to determine whether a child is disabled under th e Act. See Swist ex rel. Green v. Barnhart, 177 Fed. Appx. 414, 416 (5th Cir. 2006). The f irs t question is whether the child is engaged in substantial gainful activity, and the ALJ f o u n d that RC was not. Tr. 14. The second question is whether the child has an impairment th a t is "severe" within the meaning of the regulations. The ALJ found that RC has h yp e rte n sio n , renal artery hypoplasia, and neurofibromytosis, impairments which are severe. T r. 14. The third question is whether those impairments are medically or functionally e q u iv a le n t in severity to the impairments listed in the disability regulations. There is no c o n te n tio n that RC's impairments met a listed impairment, so the question is whether the im p a irm e n ts functionally equal a listed impairment. A decision on functional equivalence requires consideration of the child's limitations in six areas or domains. The domains are: (1 ) acquiring and using information (2 ) attending and completing tasks (3) interacting and relating with others (4 ) moving about and manipulating objects

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(5 ) caring for your self (6 ) health and physical well-being. 2 0 C.F.R. § 416.926a(b)(1). The limitations imposed by an impairment are described in in c re a sin g levels of severity: none, moderate, marked and extreme. The child will be c o n sid e re d disabled if he has an extreme limitation in one domain or a marked limitation in tw o domains. Section 416.926a(d). Moderate is not specifically defined, but a marked limitation is defined as "more than m o d era te" but "less than extreme." A marked limitation interferes seriously with the child's a b ility to independently initiate, sustain or complete activities. It is the equivalent of the f u n c tio n in g you would expect to find on standardized testing with scores that are at least two b u t less than three standard deviations below the mean. Section 416.926a(e)(2). An extreme limitation is "more than marked." A child has an extreme limitation when th e impairment interferes very seriously with his ability to independently initiate, sustain or c o m p le te activities. Extreme is the rating given to the worst limitations, but it does

n e c es s a rily mean a total lack or loss of ability to function. It is the equivalent of the f u n c tio n in g one would expect to find on standardized testing with scores that are at least th re e standard deviations below the mean. Section 416.926a(e)(3). The ALJ found that RC had no limitation in any domain except health and physical w e ll being, which he assessed as "less than marked." Plaintiff's pro se brief does not make a n y specific arguments that a greater limitation should have been found in any of the domains

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o th e r than health and physical well being. Rather, her brief focuses on RC's physical health, th u s implying an argument that the ALJ should have found an extreme limitation in the d o m a in of health and physical well being. Only an extreme limitation in that one domain co u ld lead to a finding of disability. A finding of a merely marked limitation would require a marked limitation in another domain to support a finding of disability. T h e regulations set forth some examples of impairments and limitations that would f u n c tio n a lly equal the listings. They include a need for major organ transplant, walking is p o ss ib le only with bilateral upper limb assistance, the impairments cause complete inability to function independently outside the home, 24-hour-a-day supervision is required, a c o n g e n ita l organ disfunction which could be expected to result in death within the first year o f life without surgical correction, and a condition that requires continuing surgical m a n a g e m e n t as a life-saving measure or restoration of function (and such major function is n o t restored or is not expected to be restored within 12 months after onset of the condition). 2 0 C.F.R. § 416.926a(m). T h e ALJ looked to the findings of Dr. Billy McKellar, a state agency medical ex am iner. Social Security Ruling 96-6p states that state agency medical consultants are h ig h ly qualified physicians who are experts in the evaluation of medical issues in disability c laim s under the Act. The ALJ found that the state agency examiner's assessment was well s u p p o rte d by the record. Tr. 15. Dr. McKellar found a less than marked impairment in the a re a of health and physical well being. He noted that the medical records showed the child

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h a d renal artery hypoplasia and hypertension and was on medications. The child's blood p re ss u re was slightly elevated for his age but was normal at his last visit. The treating p h ys i c ia n had indicated in the records that the child had neurofibromytosis, but he did not m e n tio n any problems or limitations caused by the condition. Tr. 120-26. The ALJ noted th o s e same reasons for his finding that the impairment was less than marked in this domain. T r. 20. Plaintiff does not point to any medical evidence that was in the record before the ALJ th a t is so compelling as to suggest that the ALJ erred in not finding an extreme limitation. P la in tif f 's description of the child's medical condition is that his blood pressure was too high f o r him to play football. He has taken regular blood pressure medication and been told that h e may not play any type of sports or engage in heavy lifting, and he had to receive surgery o n his left kidney in May 2008. Nothing in those assertions undermines the ALJ's finding. W ith regard to the 2008 surgery, it came after the ALJ's decision so is not relevant to the tim e period at issue on this appeal. Plaintiff attaches medical records related to the surgery a n d suggests that the result would be different if they were considered. T h e court "may at any time order additional evidence to be taken before the C o m m is s io n e r of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the re c o rd in a prior proceeding." 42 U.S.C. § 405(g)(sentence 6). For new evidence to be m a te ria l, there must exist the reasonable probability that, if it had been presented to the

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C o m m is s io n e r, it would have changed the outcome. Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994). The evidence must also relate to the time period for which benefits were d e n ie d and cannot concern evidence of later acquired disability or subsequent deterioration o f a previously non-disabling condition. Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1 9 8 7 ). A s noted, the evidence Plaintiff submits is not concerning the child's health during th e period the ALJ was reviewing. Even if the 2008 medical evidence related back to the r e le v a n t time frame, there is no reasonable probability that it would have changed the o u tc o m e . The medical records show that the child was admitted to the hospital in March 2 0 0 8 with poorly controlled blood pressure, and he was discharged the next day with his b loo d pressure "well controlled" and with instructions to continue current blood pressure m e d ic in e s and resume normal activity. The child underwent an aortorenal bypass in May 2 0 0 8 . The physician stated that the goal of the procedure was to improve the child's h yp e rte n sio n , resolve his need for blood pressure medication, and allow him to get back to n o rm a l activity for a child his age. Records from a later outpatient visit show that blood p re ss u re levels had improved, though there had been no adjustment in medications. The p h ys ic ia n stated a belief that this represented an improvement, but he was not yet sure of the s ig n if ic a n c e . The child obviously suffers from serious health problems, but there is substantial e v id e n c e to support the ALJ's decision that, at the relevant time, the child did not suffer an

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e x tre m e limitation. The post-decision medical records are not relevant to the time assessed b y the ALJ. Even if they are considered, they are not sufficient to give rise to a reasonable p o s s ib ility that the ALJ would have reached a different decision had those records been b e f o re him. The later records include evidence of a surgery, but it appears to have actually im p ro v e d the child's health. A c c o r d i n g l y, I T IS RECOMMENDED that the Commissioner's decision to deny benefits be a ffir m e d and that Plaintiff's complaint be dismissed with prejudice. O b je c tio n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v e d by this recommendation have fourteen (14) days from service of this report and r e c o m m e n d a tio n to file specific, written objections with the Clerk of Court, unless an e x te n sio n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another p arty's objections within seven (7) days after being served with a copy thereof. Counsel are d ire c te d to furnish a courtesy copy of any objections or responses to the District Judge at the tim e of filing. A party's failure to file written objections to the proposed findings, conclusions and re c o m m e n d a tio n set forth above, within 14 days after being served with a copy, shall bar that p a rty, except upon grounds of plain error, from attacking on appeal the unobjected-to

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p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 28th day of December, 2009.

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