Prentice v. Colvin

Filing 17

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is Affirmed.A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 03/23/2016. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
T.P., by and through LATISHA
PRENTICE, as his next friend,
Plaintiff,
v.

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Administration,
Defendant.

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No. 4:15CV374 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 42 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
application for Supplemental Security Income under Title XVI of the Social
Security Act (Act), 42 U.S.C. §§ 1381, et seq. For the reasons set forth below, the
Court will affirm the Commissioner's denial of Plaintiff's application.
Facts and Background
On September 11, 2013, Administrative Law Judge Beverly Susler Parkhurst
conducted a hearing. Plaintiff appeared in person in St. Louis. An impartial
medical expert also appeared at the hearing. The ALJ conducted the hearing from

Chicago, Illinois. Plaintiff was 14 years old at the time of the hearing. Plaintiff’s
mother alleged Plaintiff was disabled due to asthma, headaches and depression.
Plaintiff testified that he has trouble in school because he falls asleep in
class, cannot play sports because of his asthma and plays video games and draws
for fun. Plaintiff takes albuterol inhaler, Zyrtec, Advair, Flonase, and sometimes
Benadryl. Plaintiff testified his medication makes him drowsy. He is more
talkative and active without the medication. Plaintiff had been to the emergency
room three or four times in 2012, and had not been to the emergency room in 2013
at the time of the hearing. No hospital admissions resulted from the emergency
room visits because hospital personnel were able to get Plaintiff’s breathing under
control with medication.
Plaintiff also testified that he takes no medication to help with his moods or
with any behavioral problems at school. He does not see any kind of counselor. In
2012, Plaintiff was placed in an anger management class at his school for about
two months. Plaintiff attends regular classes.
Plaintiff’s mother testified that Plaintiff was taken to the emergency room
twice in 2011, and he was hospitalized once in 2011 for two days. She testified
that Plaintiff has asthma attacks three to four times per week for which she gives
him his inhaler. Plaintiff is “ashamed” of his asthma; he gets into fights because

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he used to be teased. Plaintiff used to fail to take his medication because he said
they made him feel “funny.”
The ALJ found Plaintiff not to be disabled under the Social Security Act.
The Appeals Council denied Plaintiff’s request for review on January 16,
2015. The decision of the ALJ is now the final decision for review by this court.
Statement of Issues
The issues in a Social Security case are whether the final decision of the
Commissioner is consistent with the Social Security Act, regulations, and
applicable case law, and whether the findings of fact by the ALJ are supported by
substantial evidence on the record as a whole. Here Plaintiff asserts the ALJ failed
to properly consider Plaintiff’s asthma at step two of the sequential evaluation
process in that her analysis is not supported by substantial evidence; and the ALJ
failed to exercise her duty to fully and fairly develop the record regarding
Plaintiff’s mental impairments.
Standard for Determining Disability
A claimant under the age of eighteen is considered disabled and eligible for
SSI under the Social Security Act if he “has 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

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last for a continuous period of not less than 12 months.” 42 U.S .C. §
1382c(a)(3)(C)(i).
The Commissioner is required to undergo a three-step sequential evaluation
process when determining whether a child is entitled to SSI benefits. First, the
Commissioner must determine whether the child is engaged in substantial gainful
activity. If not, the Commissioner must then determine whether the child's
impairment, or combination of impairments, is severe. Finally, if the child's
impairment(s) is severe, the Commissioner must determine whether such
impairment(s) meets, medically equals or functionally equals the severity of an
impairment listed in Appendix 1 of Subpart P of Part 404 of the Regulations. 20
C.F.R. § 416.924(a); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th
Cir.2004). If the impairment(s) meets or medically equals a Listing, the child is
disabled. Garrett, 366 F.3d at 647. If a child's impairment does not meet or
medically equal a listed impairment, the Commissioner will assess all functional
limitations caused by the child's impairment to determine whether the impairment
functionally equals the listings. 20 C.F.R. § 416.926a. To functionally equal a
listed impairment, the child's condition must result in an “extreme” limitation of
functioning in one broad area of functioning, or “marked” limitations of
functioning in two broad areas of functioning. 20 C.F.R. § 416.926a(a). If this
analysis shows the child not to have an impairment which is functionally equal in
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severity to a listed impairment, the ALJ must find the child not disabled. Oberts
o/b/o Oberts v. Halter, 134 F.Supp.2d 1074, 1082 (E.D.Mo.2001).
The Commissioner's findings are conclusive upon this Court if they are
supported by substantial evidence. 42 U.S.C. § 405(g); Young v. Shalala, 52 F.3d
200 (8th Cir.1995) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993)).
Substantial evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion. Briggs v. Callahan, 139
F.3d 606, 608 (8th Cir.1998). In evaluating the substantiality of the evidence, the
Court must consider evidence which supports the Commissioner's decision as well
as any evidence which fairly detracts from the decision. Id. Where substantial
evidence supports the Commissioner's decision, the decision may not be reversed
merely because substantial evidence may support a different outcome. Id.
ALJ Decision
The ALJ here utilized the three-step analysis as required in these cases. The
ALJ determined at Step One that Plaintiff had not engaged in substantial gainful
activity since January 23, 2012, the application date. The ALJ found at Step Two
that Plaintiff had the medically determinable impairment of asthma.
At Step Three, the ALJ found that Plaintiff’s impairments caused no more
than minimal functional limitations; and therefore Plaintiff did not have an

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impairment or combination of impairments that is severe. (20 CFR Part
416.924(c)).
Judicial Review Standard
The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports the
Commissioner’s decision, the Court considers evidence that supports that decision
and evidence that detracts from that decision. Id. However, the court “‘do[es] not
reweigh the evidence presented to the ALJ, and [it] defer[s] to the ALJ’s
determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id.
(quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “If, after
reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d
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860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)).
Courts should disturb the administrative decision only if it falls outside the
available “zone of choice” of conclusions that a reasonable fact finder could have
reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006). The Eighth
Circuit has repeatedly held that a court should “defer heavily to the findings and
conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).
Discussion
Plaintiff asserts the ALJ failed to properly consider Plaintiff’s asthma at step
two of the sequential evaluation process and that the ALJ’s analysis is not
supported by substantial evidence. Plaintiff argues that the ALJ did not properly
develop the record regarding Plaintiff’s mental impairments.
The ALJ must determine whether the claimant has a medically determinable
impairment that is “severe” or a combination of impairments that is “severe.” 20
C.F.R. § 416.924(a). For a claimant under the age of 18, a medically determinable
impairment or combination of impairments is not severe if it is a slight abnormality
or a combination of slight abnormalities that causes no more than minimal
functional limitations. 20 C.F.R. § 416.924(c).

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If the claimant does not have a severe medically determinable impairment or
combination of impairments that is severe, he is not disabled. Id.
The ALJ acknowledged that Plaintiff had the medically determinable impairment
of asthma, but found that it did not cause more than minimal functional limitations
and was, therefore, not severe. The ALJ considered that Plaintiff did not require
significant recent treatment for his asthma, the fact that his asthmatic exacerbations
were generally correlated with medication non-compliance, and evidence that his
asthma improved with medication compliance. “If an impairment can be

controlled by treatment or medication, it cannot be considered disabling.”
Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (citing Brace v. Astrue, 578
F.3d 882, 885 (8th Cir. 2009)).
The ALJ found Plaintiff’s mother’s testimony not credible, considering the
Medical Expert’s testimony that Plaintiff did not experience a mental medically
determinable impairment. Recognizing that Plaintiff briefly received mental health
treatment, the ALJ noted that Plaintiff was never diagnosed with ADHD. Plaintiff
takes no medication for ADHD and the behavioral issues in the record could be
attributed to a multitude of reasons. There was no direct correlation to any
underlying mental health impairment.
The ALJ gave significant weight to the medical expert, Dr. Wargel’s
testimony because it is supported by the evidence in the record. Dr. Wargel
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testified that because there was nothing in the record to indicate Plaintiff’s
behavior problems were related to a mental impairment, Plaintiff’s behavior might
be unrelated to a medical issue.
Likewise, testimony by his mother that Plaintiff is disabled due to headaches
and asthma was not credible in that the record establishes that Plaintiff’s asthma is
well controlled through medication; he only required emergency attention when he
was non-compliant with his medication and did not require overnight
hospitalization when emergency treatment was sought. Plaintiff’s doctors noted
that Plaintiff was not properly using his medication to control his asthma. When
Plaintiff used his medication properly, his exercise tolerance improved. Plaintiff’s
most recent pulmonary function studies reflected normal results in February 2013
and August 2013.
Plaintiff also argues that the ALJ failed to exercise her duty to fully and
fairly develop the record regarding Plaintiff’s mental impairments. Plaintiff points
out that the record contains an opinion from Plaintiff’s teacher, a psychological
non-examining medical expert and a State agency medical consultant. The ALJ
thoroughly articulated her rationale in giving great weight to the medical expert;
Dr. Wargel’s opinions were supported by the medical records before him.
With respect to Dr. Mora’s opinions, the ALJ referenced Dr. Mora’s opinion
in her decision, but, as the Commissioner points out, the ALJ discredited the
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opinion because it was conclusory and was inconsistent with all of the evidence
discussed by the ALJ throughout her decision.
Mr. Kevin Starks completed a February 2012 questionnaire in which he
indicated that he had observed behavioral problems but denied that it had been
necessary to implement behavior modification strategies for Plaintiff. Mr. Starks
also indicated that Plaintiff had no problems in acquiring and using information,
attending and completing tasks, moving about and manipulating objects, and
caring for himself. He also denied that Plaintiff frequently missed school due to
illness.
Plaintiff argues that the ALJ did not adequately develop the record regarding
possible mental impairments because she did not order a consultative psychiatric
evaluation. It is elementary that the ALJ is required to order a consultative

examination “only if the medical records presented to [her] do not give
sufficient medical evidence to determine whether the claimant is disabled.”
McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (citing Conley v. Bowen,
781 F.2d 143, 146 (8th Cir. 1986)).
In this case, the medical records clearly gave the ALJ sufficient medical
evidence to determine that Plaintiff is not disabled. Plaintiff only had brief
mental health visits, had not seen a mental health counselor since November
2012 and had never taken any medication to treat any mental impairment.
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After careful review, the Court finds the ALJ’s decision is supported by
substantial evidence on the record as a whole. Perkins v. Astrue, 648 F.3d 892,

900 (8th Cir.2011); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001).
The ALJ’s clear and specific opinion is supported by substantial evidence in the
record, and therefore is affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is Affirmed.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 23rd day of March, 2016.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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