Salmons et al v. Astrue

Filing 18

MEMORANDUM OPINION denying Claimant's 14 BRIEF IN SUPPORT OF JUDGMENT ON THE PLEADINGS, granting Defendant's 15 BRIEF IN SUPPORT OF DEFENDANT'S DECISION, affirming the final decision of the Commissioner and dismissing this matter from the docket of this Court. Signed by Magistrate Judge Dwane L. Tinsley on 3/20/2014. (cc: attys) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
GAIL SALMONS,
o/b/o L.R.S.,
Plaintiff,
v.

Civil Action No. 2:12-cv-06296

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the final decision of the Commissioner of
Social Security denying the Claimant=s application for child's Supplemental Security
Income (hereinafter SSI) under Title XVI of the Social Security Act.
Plaintiff, L.R. Salmons (hereinafter Claimant), through his mother, Gail Salmons,
filed an application on behalf of her son, for children's SSI benefits on May 18, 2009.
The application alleged a disability onset date of November 1, 1999, due to Attention
Deficit Hyperactivity Disorder (hereinafter ADHD). The claim was denied initially on
September 28, 2009, and upon reconsideration on May 7, 2010. (Tr. at 75-78, 84-86).
On June 9, 2010, Claimant requested a hearing before an Administrative Law Judge
(hereinafter ALJ).

The hearing was held on January 4, 2011, in Charleston, West

Virginia. Claimant and his mother appeared. Claimant’s mother testified (Tr. at 27-44).
By decision dated April 13, 2011, the ALJ determined that Claimant was not entitled to
benefits (Tr. at 21). The ALJ=s decision became the final decision of the Commissioner
on August 9, 2012, when the Appeals Council denied Claimant=s request for review (Tr.
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at 1-4). Subsequently, Claimant brought the present action seeking judicial review of
the administrative decision pursuant to 42 U.S.C. ' 405(g).
Under the authority of the Social Security Act, the Social Security Administration
has established a three-step sequential evaluation process to determine whether an
individual under the age of 18 is disabled. 20 C.F.R. ' 416.924(a) (2012). A child is
disabled under the Social Security Act if he or she Ahas 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.@ 42 U.S.C. '
1382c(a)(3)(C)(i).
Under the regulations, the ALJ must determine whether the child is engaged in
substantial gainful activity. 20 C.F.R. ' 416.924(b) (2012). If the child is, he or she is
found not disabled. Id. ' 416.924(a). If the child is not, the second inquiry is whether
the child has a severe impairment. Id. ' 416.924(c). An impairment is not severe if it
constitutes a Aslight abnormality or a combination of slight abnormalities that causes no
more than minimal functional limitations.@ Id. If the child does not have a severe
medically determinable severe impairment or combination of impairments, he is not
disabled. If a severe impairment is present, the third and final inquiry is whether such
impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of
the Administrative Regulations No. 4. Id. ' 416.924(d). If the claimant=s impairment
meets or functionally equals the requirements of Appendix 1, the claimant is found
disabled and is awarded benefits. Id. ' 416.924(d)(1). If it does not, the claimant is
found not disabled.

Id. ' 416.924(d)(2).

416.924a, 416.924b, and 416.929.
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Other applicable rules are found at ''

In this particular case, the ALJ determined that Claimant satisfied the first
inquiry because he has not engaged in substantial gainful activity since the alleged onset
date (Tr. at 13). Under the second inquiry, the ALJ found that Claimant suffers from the
severe impairments of attention deficit hyperactivity disorder, opposition defiant
disorder, depression and anxiety. (Id.) At the third and final inquiry, the ALJ concluded
that Claimant=s impairments do not meet or functionally equal the level of severity of
any listing in Appendix 1. On this basis, benefits were denied (Tr. at 21).
Scope of Review
The sole issue before this court is whether the final decision of the Commissioner
denying the claim is supported by substantial evidence. In Blalock v. Richardson,
substantial evidence was defined as
Aevidence which a reasoning mind would accept as sufficient
to support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
'substantial evidence.=@
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Cellebreze,
368 F.2d 640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the court, is
charged with resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). Nevertheless, the courts Amust not abdicate their traditional functions;
they cannot escape their duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.@ Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir.
1974).
A careful review of the record reveals the decision of the Commissioner is
supported by substantial evidence.

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Claimant=s Background
Claimant was born November 16, 1994; thus he was fourteen years old on the
onset date, sixteen at the time of the administrative hearing, and sixteen when benefits
were denied by the ALJ (Tr. at 37).
The Medical Record
The Court has reviewed all evidence of record, including the medical evidence of
record, and will discuss it further below as it relates to Claimant’s arguments.
Claimant=s Challenges to the ALJ=s Decision
Claimant asserts that the ALJ’s decision is not supported by substantial evidence
because the ALJ incorrectly concluded that Claimant’s functional limitations with
respect to attending and completing tasks were less than marked (ECF No. 14).
Defendant asserts substantial evidence supports the ALJ’s finding that Claimant did not
have a marked limitation in attending and completing tasks and therefore, he was not
disabled under the Social Security Act (ECF No. 15).
Attention Deficit Hyperactivity Disorder
ADHD, Listing 112.11, is manifested by developmentally inappropriate degrees of
inattention, impulsiveness and hyperactivity. The required level of severity for ADHD is
met when the claimant’s medically documented findings demonstrate marked
inattention, marked impulsiveness and marked hyperactivity.
Functional Equivalence
The regulations provide that if a claimant=s impairments do not meet or equal the
Listings, the Commissioner will assess all functional limitations caused by claimant=s
impairments.

20 C.F.R. ' 416.926a(a) (2012).

To qualify for benefits under the

functional equivalence analysis, out of the six domains, Claimant must have marked
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limitations in two domains of functioning or an extreme limitation in one domain. 20
C.F.R. ' 416.926a(b). The six domains are:
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.
The Court must look at the information in the case record to determine how
claimant’s functioning is affected during all of his activities when the Court decides
whether an impairment or combination of impairments functionally equals the Listings.
Claimant’s activities are everything he does at home, at school and in his community.
See SSR09-1p: Determining Childhood Disability Under the Functional Equivalence
Rule – The “Whole Child” Approach.
AMarked@ and Aextreme@ are defined in ' 416.926a(e), as:
Marked limitation. (i) We will find that you have a Amarked@
limitation in a domain when your impairment(s) interferes
seriously with your ability to independently initiate, sustain, or
complete activities. Your day-to-day functioning may be seriously
limited when your impairment(s) limits only one activity or when
the interactive and cumulative effects of your impairment(s) limit
several activities. AMarked@ limitation also means a limitation that
is Amore than moderate@ but Aless than extreme.@
Extreme limitation. (i) We will find that you have an Aextreme@
limitation in a domain when your impairment(s) interferes very
seriously with your ability to independently initiate, sustain, or
complete activities. Your day-to-day functioning may be very
seriously limited when your impairment(s) limits only one activity
or when the interactive and cumulative effects of your
impairment(s) limit several activities. AExtreme@ limitation also
means a limitation that is Amore than marked.@ AExtreme@
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limitation is the rating we give to the worst limitations. However,
Aextreme limitation@ does not necessarily mean a total lack or loss of
ability to function.
Claimant asserts that he agrees with the ALJ with respect to the following
domains: acquiring and using information, interacting and relating with others, moving
about and manipulating objects, caring for himself and health and physical well-being
(ECF No. 14). Claimant asserts that in the domain of attending and completing tasks,
his limitations were marked. Claimant argues that the ALJ failed in evaluating the
number of activities that were limited, the importance of the limited activities and the
frequency of these activities and their limitations. He contends that the ALJ erred in
relying “heavily” on the assessment of his special education teacher, Monique Bucklen.
The ALJ asserts that Claimant’s mother reported that his efforts were directed at
“clowning around” instead of paying attention. Both Claimant and his mother reported
that he accomplished a number of activities on a regular basis, illustrating that his
functionality was not so impaired that he met a Listing criteria and satisfied the high
threshold for childhood disability.
The domain of attending and completing tasks addresses how well a person 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. 20 C.F.R. § 416.926a(h). Specific examples are provided:
(1) General. (i) Attention involves regulating your levels of alertness
and initiating and maintaining concentration. It involves the ability to
filter out distractions and to remain focused on an activity or task at a
consistent level of performance. This means focusing long enough to
initiate and complete an activity or task, and changing focus once it is
completed. It also means that if you lose or change your focus in the
middle of a task, you are able to return to the task without other people
having to remind you frequently to finish it.

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(ii) Adequate attention is needed to maintain physical and mental
effort and concentration on an activity or task. Adequate attention
permits you to think and reflect before starting or deciding to stop an
activity. In other words, you are able to look ahead and predict the
possible outcomes of your actions before you act. Focusing your attention
allows you to attempt tasks at an appropriate pace. It also helps you
determine the time needed to finish a task within an appropriate timeframe.
…
(3)
Examples of limited functioning in attending and completing
tasks.
(i)
You are easily startled, distracted or over reactive to
sounds, sights, movements or touch.
(ii)
You are slow to focus on, or fail to complete activities
of interest to you, e.g., games or art projects.
(iii) You repeatedly become sidetracked from your
activities or you frequently interrupt others.
(iv) You are easily frustrated and give up on tasks,
including ones you are capable of completing.
(v)
You require extra supervision to keep you engaged in
an activity.
' 416.926a(h)(3).
On May 13, 2004, Claimant’s third grade Individualized Education Program
reported that his hobbies included drawing, playing outside with cousins and playing on
his PlayStation2 (Tr. at 389). His strength in competency areas included “attention to
detail” and persistence in work habits/skills (Tr. at 390).
On October 27, 2008, Claimant’s eighth grade Individualized Education Program
(hereinafter IEP) reported that his math teacher cannot assess his math abilities
because he refuses to do anything in the classroom (Tr. at 185).

The IEP placed

Claimant in the general education environment 89% of the time and in special education
environment 11% of the time (Tr. at 190).
Claimant’s application dated May 18, 2009, reported that he takes care of his
personal hygiene, washes and puts away his clothes, helps around the house, gets to
school on time and uses public transportation by himself (Tr. at 118).
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Mareda L. Reynolds, M.A., P.L.L.C., performed a Mental Status Examination on
July 20, 2009 (Tr. at 416-421). This Mental Status Examination was conducted
approximately two months after Ms. Salmons filed a disability application on behalf of
Claimant. At the time of the examination, Claimant was 14 years old. Examination
observations stated that Claimant’s grooming and hygiene were adequate and that he
was cooperative during the examination.

Claimant’s household chores included

cleaning his bedroom and his “band room,” washing dishes, taking out the trash and
trimming weeds (Tr. at 420). Claimant visits friends and has visitors in his home. He
frequently goes out into the community. His hobbies included playing guitar, drawing,
flying remote control planes and skateboarding. Psychologist Reynolds’s prognosis of
Claimant was “fair” (Tr. at 421).
On August 24, 2009, Claimant’s Individualized Education Program reported that
he was “returning to school from homebound” (Tr. at 252). While on homebound, he
made a C in math, B in science, C in english and B in West Virginia Studies. Claimant’s
“teacher reported that he was very creative and polite.”

(Id.)

The Individualized

Education Program demonstrated that “the regular educator reports that [he] rarely
starts or completes assignments. He lacks motivation but is capable of doing much
better work. He focuses on getting out of work instead of completing work.”
On September 25, 2009, James Binder, M.D., completed a Childhood Disability
Evaluation Form which found that Claimant’s impairment or combination of
impairments were severe, but did not meet, medically equal or functionally equal the
Listings.

Dr. Binder considered Claimant’s functional equivalence and found his

limitation in the domain of attending and completing tasks to be less than marked (Tr.

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at 450). Dr. Binder pointed out that on Claimant’s IEP, his teacher noted that he was
capable of learning the material if he applied himself. (Id.)
On March 15, 2010, Monique Bucklen, Claimant’s special education teacher,
completed a teacher questionnaire assessing his abilities in her class (Tr. at 146-153).
Ms. Bucklen reported that Claimant refused to participate in math class (Tr. at 147).
Ms. Bucklen noted during an assessment that Claimant was capable of performing well
in school, but instead focused on his large social circle (Tr. at 211).
On September 23, 2010, Frank Roman, Ed.D., completed a Childhood Disability
Evaluation Form which found that Claimant’s impairment or combination of
impairments were severe, but did not meet, medically equal or functionally equal the
Listings (Tr. at 494). Mr. Roman considered Claimant’s functional equivalence and
found his limitation in the domain of attending and completing tasks to be less than
marked (Tr. at 496). Mr. Roman pointed out that Claimant lacks motivation and is
capable but unwilling. (Id.)
The ALJ’s decision references Ms. Bucklen’s observations when addressing the
functional equivalence domain of attending and completing tasks (Tr. at 16-17). The
ALJ reported that he considered all of the relevant evidence in the case record. “All the
relevant evidence” specifically included objective medical evidence and other relevant
evidence from medical sources; information from other sources, such as school teachers,
family members or friends; the claimant’s statements; and any other relevant evidence
in the case record, including how the claimant functions over time and in all settings.
Further the ALJ states that he gave great weight to the reviewing opinions of State
agency physician, Dr. Binder, and State agency psychiatrist, Mr. Roman, because they

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were consistent with the medical record in its entirety. As such, the Court finds that the
ALJ’s decision is substantially supported by the evidence of the record.
Conclusion
The Court finds that the ALJ properly evaluated the evidence of record in keeping
with the applicable regulation related to review of childhood disability. Claimant did not
meet any of the listings, and as a result, his case turned on whether he could show
functional equivalence to a listed impairment.

To qualify for benefits under the

functional equivalence analysis, Claimant must have demonstrated marked limitations
in two domains of functioning or an extreme limitation in one domain. 20 C.F.R. '
416.926a(a).
The ALJ’s finding that Claimant’s impairments do not functionally meet or equal
the Listings is supported by substantial evidence. In particular, substantial evidence
supports the ALJ’s determination that Claimant has less than marked limitation in the
domain of attending and completing tasks. The ALJ’s findings are supported by the
above-cited evidence of record, including evidence from Claimant’s teachers, treating
medical sources, consulting physicians and psychiatrists, and the testimony of
Claimant’s mother.

The evidence of record substantially supports the ALJ’s

determination that Claimant was not disabled under the Social Security Act.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is supported by substantial evidence.

Accordingly, by

Judgment Order entered this day, Claimant’s Brief in Support of Judgment on the
Pleadings is DENIED, Defendant’s Brief in Support of Defendant’s Decision is
GRANTED, the final decision of the Commissioner is AFFIRMED and this matter is
DISMISSED from the docket of this Court.
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The Clerk of this Court is directed to provide copies of this Order to all counsel of
record.
Enter: March 20, 2014.

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