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Lavender v. Colvin

United States District Court, N.D. Alabama, Northeastern Division

August 3, 2015

KERRY A. LAVENDER, II, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OF DECISION

R. DAVID PROCTOR, District Judge.

Plaintiff Kerry A. Lavender, II brings this action pursuant to Title XVI of Section 1631(c) of the Social Security Act ("Act"), seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying his claim for Supplemental Security Income ("SSI"). See also 42 U.S.C. § 1383(c). Based upon the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

I. Proceedings Below

Plaintiff's mother filed an application for SSI on behalf of Plaintiff on June 13, 2011. (Tr. 174-191). She initially alleged that disability began on October 10, 2008, but the onset date was later amended to June 13, 2011, the same date the application was filed. (Tr. 192, 202). The Social Security Administration denied Plaintiff's application on September 8, 2011. (Tr. 79). Plaintiff then requested and received a hearing before Administrative Law Judge ("ALJ") J. Dennis Reap on January 10, 2013. (Tr. 38-76, 100). In his decision, dated March 8, 2013, the ALJ determined that Plaintiff had not been under a disability within the meaning of section 1614(a)(3)(C) of the Act since June 13, 2011, the date the application was filed. (Tr. 14-31). The ALJ also found that Plaintiff had not been under a disability within the meaning of section 1614(a)(3)(A) of the Act since March 21, 2012, the day Plaintiff attained age eighteen. ( Id. ). After the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1), Plaintiff had exhausted all administrative remedies making this case ripe for review by this court.

II. Facts

Plaintiff was born on March 22, 1994. (Pl.'s Br. 2). Plaintiff was under the age of eighteen at the time the application was filed, but he was over the age of eighteen at the time of the hearing.[1] (Tr. 14). Plaintiff alleges he has been disabled since June 13, 2011, due to "diabetes, seizures, slow mental processing, and borderline intellectual functioning." (Pl.'s Br. 3).

During his alleged period of disability, Plaintiff received treatment primarily from two different sources: Dr. James Mize, a general physician, and Dr. Joycelyn Atchison, an endocrinologist. (Tr. 65, 489-531, 555-577). For purposes of review, it is undisputed that Plaintiff suffers from diabetes and borderline intellectual functioning. Therefore, the court will address the evidence concerning Plaintiff's alleged seizures and slow mental processing.

Plaintiff cites several portions of the record to support his claim that he suffers from seizures. First, he cites Dr. Mize as noting that on May 5, 2000, "Plaintiff had a seizure this A.M.'"[2] (Pl.'s Br. 3). Next, Plaintiff again cites Dr. Mize, who reported on November 16, 2011, "that he has lot [sic] seizures with normal blood sugar levels."[3] (Pl.'s Br. 3). Plaintiff also cites a record from Children's Health System of Alabama, which described his alleged seizures as "characterized by loss of consciousness, foaming at the mouth, and tonic clonic movements. He is very tired after the seizure for approximately 30-40 minutes, and does not remember anything that happens during the episodes. Reports some headaches after the seizures, some of which are waking him up at night."[4] (Pl.'s Br. 3). Lastly, Plaintiff cites Dr. Mize again from an April 23, 2012 report, which noted "seizure 1 year."[5] (Pl.'s Br. 4). However, it appears from the record that these accounts merely were the doctors documenting Plaintiff's subjective complaints rather than an actual diagnosis. Moreover, Dr. Atchison provided a letter to the ALJ which stated that Plaintiff has "no disability at present." (Tr. 592).

Plaintiff likewise cites to several places in the record to support his allegation that he suffers from slow mental processing. Dr. Rogers, a non-treating psychological consultant, is the one medical source of record that may corroborate Plaintiff's claim. (Tr. 549). Dr. Rogers found:

Conversation was slow. He had extreme difficulty expressing himself. Thought Process: Blocking was observed... Stream of talk and mental activity were extremely slow and sluggish. Speech was slow... His speed of mental processing was extremely slow... Kerry reads but does not make change with sufficient accuracy for trade level activities. Social response will be below average. He is capable of being cooperative with peers and supervision and maintaining a routine work cycle in a sheltered employment situation... Response to frustration will be poor... The speed of mental processing was slow; and probably the slowest that I have seen in my entire practice; it took him over 5 hours what should have taken about 1 ½ to 2 hours, which for all practical purposes, would preclude employment.

(Tr. 550-552). Furthermore, Plaintiff was in an Individualized Education Program ("IEP") in high school. There is some discrepancy as to whether Plaintiff was in the IEP because of mental deficiencies or merely because it gave him added monitoring for his diabetes. Plaintiff was given extra time to complete exams and was allowed to take his exams in areas free from distraction. (Tr. 245). Plaintiff graduated high school with an Alabama Occupational Diploma (Tr. 242), and he plans to try to enroll at a community college. (Tr. 51). Dr. Rogers also administered a Wechsler Adult Intelligence Scale-III test that showed Plaintiff had a verbal IQ of 79, a performance IQ of 75, and a full scale IQ of 72. (Tr. 551). However, the test showed an inconsistent pattern of achievement and the 16 Personality Factor test results were invalid. ( Id. ). Furthermore, according to Plaintiff's school record, Plaintiff achieved a normal non-verbal IQ score of 101 in 2004. (Tr. 260). That score placed Plaintiff in the average range for his age. ( Id. ).

III. The ALJ's Decision

For a child to be determined disabled as defined under the Act, the child must "have a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.906. A physical or mental impairment is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1508.

Social Security regulations provide a three-step test for determining whether a child is disabled. 20 C.F.R. § 416.924(a); see e.g. Wilson v. Apfel, 179 F.3d 1276, 1277 n.1 (11th Cir. 1999); Cole v. Barnhart, 436 F.Supp.2d 1239, 1241 (N.D. Ala. 2006). First, an ALJ must determine whether the child is engaging in substantial gainful activity. "Substantial gainful activity" is work activity that involves doing significant physical or mental activities for pay or profit. 20 C.F.R. § 416.972. If the child engages in substantial gainful activity, then the child cannot claim disability regardless of ...


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