United States District Court, S.D. Alabama, Northern Division
SONJA F. BIVINS, Magistrate Judge.
Plaintiff Tacara Edwards (hereinafter "Plaintiff") brings this action on behalf of her minor child, T.S., seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for child supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. On October 30, 2014, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 18). Thus, this case was referred to the undersigned to conduct all proceedings through entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (Doc. 20). Oral argument was waived. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be AFFIRMED.
I. Procedural History
Plaintiff protectively filed an application for supplemental security income benefits on behalf of her daughter T.S. on March 5, 2009, when T.S. was eight months old.  (Tr. 242). Plaintiff alleged that T.S. has been disabled since February 1, 2009, due to bronchitis. (Id. at 246). Plaintiff's application was denied at the initial stage on April 22, 2009. (Id. at 127). Plaintiff filed a timely Request for Hearing, and on December 17, 2010, Administrative Law Judge Michael L. Levinson (hereinafter "ALJ") held an administrative hearing, which was attended by Plaintiff, her daughter T.S. (who at the time was two and a half years old), and Plaintiff's attorney. (Id. at 32).
At the hearing, Plaintiff alleged for the first time that T.S. was also mentally retarded. (Id. at 48). In light of the new allegation of impairment based on mental retardation, the ALJ adjourned the hearing to obtain a review of T.S.'s records by a physician. (Id. at 50). On May 20, 2011, the ALJ held a second administrative hearing, which was attended by Plaintiff, her daughter T.S. (who at the time was approximately three years old), Plaintiff's attorney, and a medical expert, Dr. Juliet Hananian, M.D. (Id. at 52). On June 3, 2011, the ALJ issued an unfavorable decision finding that T.S. is not disabled. (Id. at 116). Plaintiff requested review of the ALJ's decision by the Appeals Council, and on November 3, 2011, the Appeals Council remanded the claim for further development of the record concerning the claimant's diagnosis of mental retardation. (Id. at 124). The Appeals Council directed the ALJ to further develop the record regarding the claimant's "possible" impairment of mental retardation by obtaining a consultative psychological examination. (Id. at 124-25). On March 5, 2012, the ALJ obtained a consultative psychological examination by Dr. Donald Blanton, Ph.D. (Id. at 437).
On April 11, 2012, the ALJ held a third administrative hearing, which was attended by Plaintiff, her daughter T.S. (who at the time was three years and ten months old), and Plaintiff's attorney. (Id. at 81). On May 4, 2012, the ALJ issued a second unfavorable decision finding that T.S. is not disabled. (Id. at 17). Plaintiff requested review of that decision by the Appeals Council, and, after considering additional evidence submitted by Plaintiff, the Appeals Council denied Plaintiff's request for review on September 18, 2013. (Id. at 1).
Thus, the ALJ's decision dated May 4, 2012, became the final decision of the Commissioner. Having exhausted her administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). The parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. Issues on Appeal
A. Whether substantial evidence supports the ALJ's determination that claimant is not disabled as a result of her alleged mental retardation impairment?
B. Whether the Appeals Council erred in failing to adequately examine the additional evidence submitted by Plaintiff?
III. Factual Background
As stated above, T.S. was born on June 17, 2008, and was eight months old at the time that her mother protectively filed an application for supplemental security income benefits on March 5, 2009, alleging that T.S. was disabled on the basis of bronchitis. (Tr. 242, 246). At the time of her first administrative hearing on December 17, 2010, T.S. was two and a half years old, and her mother at that time alleged disability on the basis of mental retardation as well. (Id. at 32, 48-50).
The record reflects that on November 11, 2010, when T.S. was approximately two and a half years old, her treating physician, Dr. Ashraf Syed diagnosed her with "moderate mental retardation (MR) with hyperactivity." (Id. at 395). On March 5, 2012, at the age of approximately three years and nine months, consultative psychologist, Dr. Donald Blanton, Ph.D., opined that T.S.'s alleged mental retardation was "untestable, " but, nonetheless, he diagnosed her with "mild mental retardation, estimated " and "attention deficit/hyperactivity disorder." (Id. at 437) (emphasis added).
The following month, at T.S.'s third administrative hearing conducted on April 11, 2012, T.S.'s mother, Ms. Edwards, testified that T.S. (who was three years and ten months old) was attending "Head Start" school, that she could say only "small words, " that she was scheduled for speech therapy, that she had problems focusing, and that she had severe behavior problems.  (Id. at 86, 90-91, 91-95, 101-02). However, Ms. Edwards testified that T.S. could feed herself. (Id. at 96). Ms. Edwards also testified that T.S. was taking medication for ADHD but that it was not helping. (Id. at 90).
A. Standard of Review
In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is defined as "more than a scintilla but less than a preponderance" and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion."). In determining whether substantial evidence exists, a court must view the record as a whole, taking into account evidence favorable, as well as unfavorable, to the Commissioner's decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4 (S.D. Ala. June 14, 1999).
B. Childhood Disability Law
The Personal Responsibility and Work Opportunity Act of 1996, which amended the statutory standard for children seeking supplemental security income benefits based on disability, became effective on August 22, 1996. See Pub. L. No. 104-193, 110 Stat. 2105 § 211(b)(2) (1996) (codified at 42 U.S.C. § 1382c). The definition of "disabled" for children is:
An individual under the age of 18 shall be considered disabled... if that individual 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 last for a continuous period of not less than 12 months.
See 42 U.S.C. § 1382c(a)(3)(C)(i), 20 C.F.R. § 416.906. The regulations provide a three-step sequential evaluation process for determining childhood disability claims. 20 C.F.R. § 416.924(a).
At step one, a child's age and work activity, if any, are identified to determine if he has engaged in substantial gainful activity. At step two, the child's physical/mental impairments are examined to see if he has an impairment or combination of impairments that is severe. Under the regulations, a severe impairment is one that is more than "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c). To the extent the child is determined to have a severe impairment, at step three, the Commissioner must then determine whether the impairment or combination of impairments meets or is medically or functionally equal to an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P, and otherwise satisfies the duration requirement. 20 CFR § 416.924.
A child's impairment(s) meets the listings' limitations if he or she actually suffers from limitations specified in the listings for the severe impairment. Shinn v. Commissioner of Soc. Sec., 391 F.3d 1276, 1279 (11th Cir. 2004). A child's impairment(s) medically equals the listings if his or her limitations are at least of equal severity and duration to the listed impairment(s). Id . (citing 20 CFR § 416.926). Where a child's impairment or combination of impairments does not meet or medically equal any listing, then the Commissioner must determine whether the impairment or combination of impairments results in limitations that functionally equal the listings. 20 CFR § 416.926a. To establish functional equivalence in step three, the claimant must have a medically determinable impairment or combination of impairments that results in marked limitations in two functional domains or an extreme limitation in one domain. 20 CFR § 416.926a(a). The six domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating to others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 CFR 416.926a.
In the case sub judice, the ALJ determined that the claimant has not engaged in substantial gainful activity since March 5, 2009, the application date, and that she has the severe impairment of attention deficit hyperactivity disorder ("ADHD"). (Tr. 18). The ALJ found the claimant's alleged mental retardation to be non-severe. (Id. at 21). The ALJ further found that the claimant does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix 1, nor does she have an impairment or combination of impairments that functionally equals the listings. (Id.).
With respect to the functional equivalence domains, the ALJ found that T.S. has "less than marked" limitations in the domain of health and physical well-being and "no limitation" in the domains of acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, and caring for oneself. (Id. at 23-24). Accordingly, the ALJ concluded that, because T.S. does not meet or medically equal any of listings set forth in 20 CFR Part 404, Subpart P, Appendix 1, nor does she functionally equal the listings by having an impairment or combination of impairments that results in either "marked" limitations in two domains of functioning or "extreme" limitation in one domain of functioning, she is not disabled under the Act. (Id. at 25).
In determining that the claimant's mental retardation was non-severe, the ALJ made the following relevant findings:
On February 14, 2011, the claimant was evaluated for a language delay and behavior problems at UAB (Exhibit 18F). The claimant was receiving speech therapy through Early Intervention Services (Exhibit 18F). Additional genetic testing was requested in an attempt to explain the claimant's developmental history. The results of that testing were normal and it was recommended that the claimant return in two to three years for ongoing evaluation (Exhibit 18F). The claimant returned to Dr. Syed on March 17, 2011, and her parents reported that she had "been doing well and responded ...