O'Brian v. Astrue

Filing 16

MEMORANDUM OPINION. Signed by S. Allan Alexander on 6/22/11. (bnd) (Main Document 16 replaced on 6/22/2011) (tab).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

JENNIFER O’BRIAN natural mother and next friend
of ETHAN O’BRIAN, a minor
v.

PLAINTIFF

CIVIL ACTION NO. 1:10CV250-SAA

MICHAEL J. ASTRUE, Commissioner of
The Social Security Administration

DEFENDANT

MEMORANDUM OPINION
This case involves an application pursuant to 42 U.S.C. § 405(g) for judicial review of
the decision of the Commissioner of Social Security denying child supplemental security income
benefits under Title XVI to Ethan O’Brian (“plaintiff”). The district court’s jurisdiction over
plaintiff’s claim rests upon 28 U.S.C. § 1331. In accordance with the provisions of 28 U.S.C. §
636(c), both parties have consented to have a magistrate judge conduct all the proceedings in this
case; the undersigned therefore has the authority to issue this opinion and the accompanying
final judgment.
I. FACTS
Jennifer O’Brian filed this action on behalf of her son Ethan O’Brian, who was born on
January 1, 2000. At the time of the hearing decision, on September 1, 2009, he was nine years
old and was in the third grade. Plaintiff’s application for supplemental security income,
protectively filed on June 21, 2007, alleged an onset date of January 1, 2004. Plaintiff alleges he
is disabled due to Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant
Disorder (ODD). His claim was denied both initially and on reconsideration. He timely

1

requested a hearing before an administrative law judge (ALJ), and the hearing was held on
September 1, 2009. The ALJ issued an unfavorable decision finding that plaintiff was not
disabled on November 23, 2009. Plaintiff unsuccessfully sought review from the Appeals
Council and timely filed suit in this court. The case is now ripe for review.
II. STANDARD OF REVIEW
The Personal Responsibility and Work Opportunity Reconciliation Act statutorily
amended the relevant substantive standard for evaluating children’s disability claims. Under the
1996 Act, a child seeking SSI benefits based on disability will be found disabled if he has a
medically determinable impairment “which results in marked and severe functional limitations,”
and which meets the statutory duration requirement. See 42 U.S.C. § 1382c(a)(3)(C) (2004). In
determining disability of a child, the Commissioner, through the ALJ, works through a threestep sequential evaluation process.1 At all stages of the proceedings the burden rests upon the
plaintiff to prove disability. First, the ALJ determines whether the child is working.2 Second,
the ALJ decides whether the child has an medically determinable “severe” impairment or
combination of impairments. Finally, at step three, for a finding of disabled, the ALJ must
conclude the child’s impairment or combination of impairments meets, medically equals or
functionally equals the severity of an impairment listed at 20 C.F.R. Part 404, Subpart P, App. 1,
§§ 1.00-114.02.3 If plaintiff’s impairment is severe but does not meet or equal in severity a listed
impairment, the ALJ must then determine whether the impairment is “functionally equal in

1

See 20 C.F.R. § 404.924 (2004).

2

20 C.F.R. § 416.924(b) (2006).

3

20 C.F.R. §§ 416.924(d), 416.925 (2006).
2

severity to a listed impairment.”
Under the final regulations published by the Social Security Administration, effective
January 2, 2001, the Commissioner evaluates a child’s functional limitations in the following six
domains:
1.
2.
3.
4.
5.
6.

Acquiring and using information;
Attending and completing tasks;
Interacting and relating with others;
Moving about and manipulating objects;
Caring for himself; and
Health and physical well-being.

20 C.F.R. § 416.926a(b)(1)(i-vi)(2007). “An impairment(s) causes marked and severe functional
limitations if it meets or medically equals the severity of a set of criteria for an impairment in the
listings, or if it functionally equals the listings.” 20 C.F.R. § 416.924(d)(2006). A medically
determinable impairment or combination of impairments functionally equals a listed impairment
if it results in “marked” limitations in two domains of functioning or an “extreme” limitation in
one domain. See 20 C.F.R. § 416.926a (2007). When deciding whether a child has a marked or
extreme limitation, the ALJ must consider the child’s functional limitations in all areas,
including their interactive and cumulative effects, then make a determination as to whether the
child is disabled under the Act.
This court’s review of the Commissioner’s decision is limited to an inquiry into whether
there is substantial evidence to support the findings of the Commissioner, Richardson v. Perales,
402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. §
405(g); Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2001), citing Paul v. Shalala, 29 F.3d 208,
210 (5th Cir.1994); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.1992). Substantial evidence
has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable
3

mind might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401, quoting
Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938). In the Fifth Circuit, substantial
evidence
must do more than create a suspicion of the existence of the fact to be established,
but ‘no substantial evidence’ will be found only where there is a ‘conspicuous
absence of credible choices’ or ‘no contrary medical evidence.’
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988), quoting Hames v. Heckler, 707 F.2d 162,
164 (5th Cir. 1983). This court may not overturn the Secretary’s decision if it is supported by
substantial evidence – “more than a mere scintilla” – and correctly applies the law. Morris, 207
F.3d at 745; Anthony, 954 F.2d at 292.
Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence
is found to support the decision, the decision must be affirmed even if there is evidence on the
other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not re-weigh
the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner.
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence
preponderates against the Commissioner’s decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th
Cir. 1994); Harrell, 862 F.2d at 475. If the Commissioner’s decision is supported by the
evidence, then it is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.
1994).
Of course, this standard of review is not a rubber stamp for the Commissioner’s
decision. It involves more than a basic search for evidence supporting the findings of the
Commissioner. The court must scrutinize the record and take into account whatever fairly
detracts from the substantiality of evidence supporting said findings. Austin v. Shalala, 994 F.2d
4

at 1174, citing Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir.1984). See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Martin v. Heckler,
748 F.2d 1027, 1031 (5th Cir.1984). The plaintiff argues that the decisions of both the ALJ and
the Appeals Counsel were not supported by substantial evidence, and thus this action must be
remanded for further consideration.
III. DISCUSSION
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since June 21, 2007, the application date. Docket 9, p. 16. At step two, she found that plaintiff’s
ADHD and ODD are severe impairments. Id. At step three, she found plaintiff’s impairments or
combination of impairments did not meet or medically equal any listed impairment in 20 CFR
404, Subpart P, Appendix 1. Id. at 21, then concluded that the plaintiff’s impairments or
combination of impairments did not functionally equal a listed impairment using the required six
domains. Id. at 22.
The ALJ held plaintiff had marked impairment in the area of “attending and completing
tasks” but a less-than-marked degree of limitation or no limitation at all in the remaining five
domains. Plaintiff asserts that he has at least marked limitations in the areas of interacting and
relating with others, acquiring and using information and caring for himself. Although plaintiff
raises the issue of functional equivalency on appeal, the court will focus on the fact that the ALJ
should have found plaintiff disabled because he meets Listing 12.08 of 20 C.F.R. Part 404,
Subpart P, App. 1, which provides:
12.08 Personality Disorders: A personality disorder exists when
personality traits are inflexible and maladaptive and cause either significant
impairment in social or occupational functioning or subjective distress.
Characteristic features are typical of the individual’s long-term functioning and
5

are not limited to discrete episodes of illness.
The required level of severity for these disorders is met when the requirements in
both A and B are satisfied.
A. Deeply ingrained, maladaptive patterns of behavior associated with one of the
following:
1. Seclusiveness or autistic thinking; or
2. Pathologically inappropriate suspiciousness or hostility; or
3. Oddities of thought, perception, speech and behavior; or
4. Persistent disturbances of mood or affect; or
5. Pathological dependence, passivity, or aggressivity; or
6. Intense and unstable interpersonal relationships and impulsive and damaging
behavior;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
When a plaintiff’s impairment is either in the Listing of Impairments or is determined to
be equivalent to a listed impairment, the presumption of disability applies . . . Selders v.
Sullivan, 914 F.2d 614, 619 n.1 (5th Cir. 1990); see also Sullivan v. Zebley, 493 U.S. 512 (1990).
In this case, plaintiff has established that as far back as December 2005 he exhibited
documented signs of a behavioral disorder meeting the requirements of Listing 12.08. The
record is replete with examples of evidence that plaintiff suffers from oddities of thought,
perception, speech and behavior and that he has persistent disturbances of mood, pathological
aggressivity and unstable interpersonal relationships and damaging behavior, all of which satisfy
the first prong of Listing 12.08 Personality Disorders. In December 2005, plaintiff put a broken
piece of glass to a peer’s throat in the cafeteria. Docket 9, p. 355. In March 2007, medical
records document plaintiff breaking beds and windows, failing kindergarten twice, stealing and
lying, and his inability to sleep or follow rules. Id. at 351-55. Records from Community
Counseling Services dated March 7, 2007, indicate that plaintiff tried to choke his younger
6

brother. Id. at 343. On another occasion, plaintiff was hospitalized after he tried to hang his
younger brother. Id. at 52, 392. Records from Dr. Samuel Fleming, a neuropsychologist who
examined plaintiff, indicate that plaintiff has been sexually inappropriate with animals, friends,
his younger brother and a little girl from the neighborhood. Id. at 392. Dr. Fleming also noted
that plaintiff cannot attend Sunday school due to his behavior. Id. Plaintiff’s mother testified
that he has attacked other students, teachers and faculty every year that he has been in school and
is not allowed to attend school field trips because the staff cannot handle his behavioral issues.
Id. at 49. The record is full of examples from professionals such as these, who have examined
plaintiff or personally interacted with him for years and provided the ALJ with their experiences,
yet the ALJ did not mention any of these instances or the many others in her Decision at all,
much less in relation to whether the plaintiff’s impairment meets Listing 12.08. In the court’s
opinion, these and the many other instances in which plaintiff has been involved clearly evidence
oddities of behavior, aggresivity and damaging behavior sufficiently to meet the requirements of
12.08(A).
The ALJ held, and the undersigned agrees, that plaintiff has marked limitation in the area
of “attending and completing tasks.” This domain considers how well a child is able to focus
and maintain attention and how well he is able to begin, carry through and finish activities,
including the mental pace at which he performs activities and the ease of changing activities.
This conclusion? evaluation? similarly satisfies 12.08(B)(3), the requirement that plaintiff have
marked difficulties in maintaining concentration, persistence or pace.
Plaintiff arguably satisfies all four sub-parts of 12.08B, but it is clear that at the very least
he satisfies 12.08(B)(2), marked difficulties in maintaining social functioning. Plaintiff has

7

repeatedly assaulted, both physically and sexually, other children, teachers, his family members
including his younger brother, and animals. Just a few examples of this include: choking his
brother (Docket 9, p. 343), attempting to hang his brother (Id. at p. 52, 392), attempting to cut
child’s throat with piece of glass (Id. at 355), stealing from teacher (Id. at 351-55), being
diagnosed at Alliance Health Center with peer relationship problems and “putting his little
brother in harm’s way intentionally and acting out socially with other children.” Also while
receiving in-house treatment at Alliance Health Center, plaintiff exhibited issues with anger and
fighting. Plaintiff has exhibited inappropriate sexual touching of his brother, friends and
animals. Id. at 409. Even the school he attends has expressed a desire to transfer him to an
alternative school due to his aggressive behavior towards his peers and teachers. Id. at 436.
These are just a few of the many examples of plaintiff’s inability to maintain social relationships
with his family and peers which satisfy Listing 12.08(B)(2).
The court has carefully reviewed the entire record in the case, and there is clearly
substantial evidence that plaintiff meets Listing 12.08. The ALJ concluded without elaboration
that the “claimant’s oppositional/defiant disorder fails to meet or medically equal in severity the
requirements of Section 112.08 of the Listing of Impairments . . . .” In other words, she appears
merely to have parroted the listing requirements without further explanation of why the evidence
supports a finding that plaintiff fails to meet each component of the listing. While it is true that
the criteria for the listings are demanding and stringent, Falco v. Shalala, 27 F.3d 160 (5th Cir.
1994), and it is the plaintiff’s burden to prove that his condition satisfies the listing, the record
evidence in this case firmly establishes that the plaintiff’s impairments meet Listing 12.08.
Where an ALJ merely states a summary conclusion that the plaintiff’s impairments did

8

not meet or equal any listed impairment, without identifying the relevant listed impairments,
discussing the evidence, or explaining her reasoning, the decision is not supported by substantial
evidence. Burnett v. Comm. of Social Sec., 220 F.3d 112, 119-20 (3rd Cir. 2000); see also Clifton
v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). As the Clifton Court stated, “[s]uch a bare
conclusion is beyond meaningful judicial review.” Clifton, 79 F.3d at 1009. In this case, the
ALJ failed to outline any of the required factors and information to evaluate plaintiff’s claims.
The ALJ failed to meaningfully review plaintiff’s case, and, therefore, the court holds that the
ALJ’s decision was not based on substantial evidence.
IV. DETERMINATION OF BENEFITS
In determining whether to reverse the Commissioner’s final decision and remand or to
grant benefits without further administrative review, the court must look to the completeness of
the record, the weight in favor of the plaintiff, the harm to the claimant that further delay might
cause, and the effect of a remand delaying the ultimate receipt of benefits by a deserving
plaintiff. SOCIAL SECURITY LAW & PRACTICE, §55.77, p. 129. In this case, the plaintiff has
been very patient. He has been seeking benefits through the administrative processes for four
years.4 The evidence in this case is clear. Plaintiff’s treating physicians, teachers and counselors
have noted that plaintiff has all of the requisite elements necessary to meet Listing 12.08, and his
mother has continuously tried to receive treatment for these impairments despite the fact that she
has very little in terms of funds to do so. Plaintiff’s behavioral issues fall squarely within the
requirements of Listing 12.0 of the Social Security Act, and the plaintiff is therefore presumed
disabled under the Act. Accordingly, the court holds that because the evidence is conclusive, an

4

Plaintiff protectively filed his application for benefits on June 21, 2007.
9

award of benefits at this stage would be in the best interests of the plaintiff’s health and welfare
and will avoid further undue delay which would result upon remand for additional review. The
court directs that this case be remanded for the sole purpose of determining the amount of
benefits to be awarded to the plaintiff under the Act.
V. PLAINTIFF’S REMAINING ARGUMENTS
Because the court has determined that the plaintiff is disabled under the Social Security
Act, and this action is being remanded for the sole purpose of determining the amount of benefits
to be awarded to the plaintiff under the Act, the court need not address the merits of the
plaintiff’s remaining arguments at this time.
VI. CONCLUSION
For the foregoing reasons, the court finds that the decision of the ALJ was not supported
by substantial evidence, that plaintiff’s impairments fall within the requirements of Listing
12.08, and plaintiff is entitled to benefits under the Social Security Act. This case is remanded
for the sole purpose of determining the amount of benefits to be awarded. An final judgment in
accordance with this memorandum opinion will issue this day.
SO ORDERED, this, the 22nd day of June, 2011.

/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

10