Brown v. Social Security Administration

Filing 13

MEMORANDUM RULING. Signed by Magistrate Judge Mark L Hornsby on 12/28/2009. (crt,Reasor, M)

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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 R O N D H A M. BROWN o/b/o T .T .B . (XXX-XX-7486) V ER SU S U .S . COMMISSIONER SOCIAL S E C U R IT Y ADMINISTRATION C IV IL ACTION NO. 08-cv-1804 M A G I S T R A T E JUDGE HORNSBY M E M O R A N D U M RULING I n t r o d u c tio n R o n d h a Brown filed an application for SSI on behalf of her son, TTB, who suffers f ro m health problems. TTB was born on March 20, 2004. He was still an infant when the a p p lic a tio n was filed in January 2005, and he was a four-year-old preschooler when ALJ O s ly F. Deramus issued his decision in April 2007. The Appeals Council denied a request f o r review, and Ms. Brown ("Plaintiff") filed this judicial appeal. Pursuant to 28 U.S.C. § 6 3 6 (c ) and the standing order of the district court governing social security cases, the action w a s referred to the undersigned for decision and entry of judgment. For the reasons that f o llo w , the Commissioner's decision to deny benefits will be affirmed. Standard 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). T h r e e -S t e p Evaluation 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 TTB was not. Tr. 21. 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 TTB suffers from s p e e ch delay and a left leg length discrepancy, impairments which are severe. Tr. 21. The th ird question is whether those impairments are medically or functionally equivalent in s e v e rity to the impairments listed in the disability regulations. There is no contention that T T B 's impairments met a listed impairment, so the question is whether the impairments f u n c tio n a lly 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 Page 2 of 10 (3) interacting and relating with others (4 ) moving about and manipulating objects (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 worse limitations, but it does n e c e s 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). Page 3 of 10 T h e Medical Evidence T h e medical evidence reviewed by the ALJ and discussed by the parties comes from th re e primary sources: Shriners Hospital records, LSU-HSC records, and consultative e x a m in a tio n report from Dr. Catrell McCulloch. A physical therapist at the Shriners Hospital noted in September 2005 that TTB was th e n 17 months old with a diagnosis of developmental delay. TTB had just started walking, a n d he received therapy through Easter Seals. The therapist reported that the child's walking " lo o k s pretty good" but did exhibit some problems. TTB's mother wanted to place the child in a brace, based on the recommendation of another therapist, but the Shriners therapist d e c id e d to hold off on using a brace. Tr. 248. Another report from the visit to Shriners stated that TTB had "normal appearing gait p a tte rn as well as normal appearing function of both lower extremities and both upper e x tre m itie s ." Tr. 245. The records indicate that Shriners made a mold in May 2006 for some s o rt of orthotic device for TTB's ankle. That same month, a physician at Shriners wrote that T T B "did walk and run with a fairly typical gait for a child his age." His mother expressed w o rry that he was not speaking like her other children. The physician noted that the child w a s not very vocal and not as gregarious as his sister. Tr. 240. Dr. Rosario Riel-Romero at LSU-HSC saw the child in February 2006, when he was 2 2 months old. She wrote that TTB could understand commands but said only one word, m a m a , he pointed to objects and grunted, and he cried whenever he was displeased. He had Page 4 of 10 " v e ry little verbal output." On examination, the child played with a ball, followed c o m m a n d s, and was able to open his hands well and grasp objects really well. He would " ru n after the ball without problems." Dr. Riel-Romero's assessment was mild d e v e l o p m e n t a l delay, making progress, and she saw no motor handicap. The child did e x h ib it speech delay, and she recommended continued speech therapy. Tr. 250-51. D r. McCulloch conducted a consultative examination in December 2006, when the c h ild was two and one-half years old. There was a difference in length between TTB's right a n d left leg. The child babbled and issued "unintelligible speech." He wore a velcro brace o n his left leg and had extra insole support. Dr. McCulloch wrote that the child's speech "is c u rre n tly 90 percent unintelligible" and he recommended an increase in the weekly speech th e r a p y that the child was already receiving. The difference in leg length seemed to cause " s o m e motor deficits," so the physician recommended physical and occupational therapy. T r. 257-60. T e s tim o n y M s. Brown testified at the hearing ­held when TTB was 27 months old ­ that the child w a s just learning to walk. She said TTB did not use his thumbs, keeping them in his palms, w h ich is reflected in some of the medical records. Ms. Brown testified that she had been told o n c e that the difference in the child's leg length was 1.5 inches, another specialist said it was tw o inches, and Shriners also said the difference was two inches. (Dr. McCulloch's report sta tes in one place that the difference is a quarter-inch, and in another place that it is one-half Page 5 of 10 in c h ) . Ms. Brown said the child was wearing braces on his hands to help him use his thumbs. S h e estimated that he could travel only about 20 steps at a time on a good day. Ms. Brown t e s t i f i e d that the child's twin sister speaks very clearly and can have a conversation with so m e o n e , but TTB could say only a few words like mom, ball, or bye. She estimated that his v o c a b u la ry did not exceed seven words. Tr. 329-49. A L J 's Findings T h e ALJ reviewed the evidence and made findings that the child had no limitation in th e ability to care for himself and had "less than marked limitations" in the other five d o m a in s . Ms. Brown argues on appeal that the child had marked or greater limitations in the d o m a in s of acquiring and using information, interacting and relating to others, and moving a b o u t and manipulating objects. A c q u ir in g and Using Information In the domain of acquiring and using information, the ALJ noted that the regulations p ro v id e that an older infant/toddler (age one to attainment of age three) without an im p a irm e n t should understand that words represent things, and that words are symbols or n a m e s for toys, people, places, and activities. The child should refer to himself and things a ro u n d him by pointing and eventually by naming. The child should begin to respond to in c re a sin g ly complex instructions and questions, and to produce an increasing number of w o r d s and grammatically correct simple sentences and questions. Page 6 of 10 D r. McCulloch noted in his report that the child's speech was 90% unintelligible d u rin g his examination. Other evidence showed that this child could name a few objects but h a d quite a limited vocabulary and made only single-word declarations. Dr. McCulloch c o m p le te d an assessment form and rated the limitation in this domain as "less than marked," s e c o n d ary to speech delay. Tr. 261. The ALJ adopted that finding. Tr. 24. P la in tif f argues that the evidence compels a finding that child has at least a marked lim itatio n , which requires the limitation that interferes seriously with the child's ability to in d e p e n d en tly initiate, sustain, or complete activities. She suggests that the limitation might a lso rise to the extreme level, which requires that it interfere very seriously with his ability to independently initiate, sustain or complete activities. The regulations attempt to make s u c h decisions as objective as possible, that there is obviously a degree of judgment that must b e exercised when assessing the degree of such limitations. Dr. McCulloch had the benefit of actual examination and made a determination that th e degree of limitation in this domain was less than marked. Reasonable arguments could b e made to the contrary, but the court finds that the child did have some limited vocabulary th a t provided substantial evidence to support the less than marked finding. The child's speech w a s quite limited, but he was able to understand a great deal more than he could say, and s u c h understanding is also relevant in this domain. Page 7 of 10 I n t e r a ctin g and Relating with Others T h e ALJ acknowledged that, with respect to interacting and relating with others, the re g u latio n s provide that a preschooler without an impairment should be able to socialize with c h i ld r e n as well as adults. He should be able to use words instead of actions to express h im se lf and also be better able to share, show affection, and offer to help. The child should b e able to initiate and participate in conversations, using increasingly complex vocabulary a n d grammar, and speaking clearly enough that both familiar and unfamiliar listeners can u n d e rs ta n d what he says most of the time. Tr. 25. The ALJ once again relied on Dr. McCulloch's report to find a less than marked l i m i t a tio n , secondary to speech delay. Tr. 26 and 261. The undersigned cannot find su b sta n tial evidence to support that determination. The child's lack of ability to c o m m u n ica te must be said to at least seriously interfere with his ability to socialize with o th e rs , express himself, participate in conversations, and perform other tasks that fall under th is domain. Thus, a finding of a marked limitation is required in this domain. M o v ing About and Manipulating Objects P la in tif f next challenges the ALJ finding of a less than marked limitation in the d o m a in of moving about and manipulating objects. The ALJ acknowledged that the re g u la tio n s provide that a preschooler without an impairment should be able to walk and run w ith ease. He should be able to climb stairs and playground equipment with little s u p e rv is io n . He should be able to swing by himself and possibly start learning to ride a Page 8 of 10 t r ic yc le . He should be able to complete puzzles easily and build with an assortment of b lo c k s . Tr. 26. The ALJ relied on Dr. McCulloch's report to find a less than marked limitation in this a re a . Dr. McCullouch stated that the limitation was secondary to unequal leg length and the u se of a brace. Tr. 26-27, 262. The undersigned finds that, though reasonable minds could p e rh a p s differ, there is substantial evidence to support the ALJ's decision on this issue. T h e re was evidence that Plaintiff definitely has a leg length discrepancy and that an orthotic d e v ice has been used, but there was also substantial evidence that the child was observed to h a v e a normal gait and was able to chase a ball without difficulty. There is, on balance, s u f f ic ie n t evidence that a reasonable mind could reach a determination of a less than marked lim ita tio n in this domain. C o n c lu s io n P la in tif f has demonstrated a marked limitation in one domain, but the child must have m a rk e d limitations in at least two domains (or one extreme limitation) to require a finding o f disabled. This is, as Dr. McCulloch and the ALJ acknowledged by their findings, a close c a se with the child having (in their opinions) slightly less than marked limitations in five d o m a in s . The regulations require significantly greater abilities once the child passes the age o f three, so if the lack of development continues, the child may by now have a significantly stro n g e r case for disability. On the current record, the Commissioner's determination is Page 9 of 10 su p p o rte d by substantial evidence. A judgment affirming the Commissioner's decision will b e entered. T H U S DONE AND SIGNED in Shreveport, Louisiana, this 28th day of December, 2009. Page 10 of 10

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