United States District Court, S.D. Alabama, Southern Division
F. BIVINS UNITED STATES MAGISTRATE JUDGE
Deshay Bishop (hereinafter “Plaintiff”), seeks
judicial review of a final decision of the Commissioner of
Social Security denying his claim for childhood disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act, 42 U.S.C.
§§ 401, et seq., and 1381, et
seq. On December 5, 2016, the parties consented to have
the undersigned conduct any and all proceedings in this case.
(Doc. 17). Thus, the action was referred to the undersigned
to conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Federal Rule of
Civil Procedure 73. Upon careful consideration of the
administrative record and the memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner be
Procedural History 
filed his applications for childhood disability insurance
benefits and supplemental security income on January 31,
2012, alleging disability beginning on March 6, 2006, based
on “seizures.” (Tr. 244, 253, 278, 283).
Plaintiff's application was denied and upon timely
request, he was granted administrative hearings on July 17,
2013, and on February 28, 2014, before Administrative Law
Judge Thomas M. Muth, II (hereinafter “ALJ”).
(Id. at 49, 73). Plaintiff attended the hearings
with his counsel and provided testimony related to his
claims. (Id. at 53, 79). A vocational expert
(“VE”) also appeared at each hearing and provided
testimony. (Id. at 69, 86). On March 28, 2014, the
ALJ issued an unfavorable decision finding that Plaintiff is
not disabled. (Id. at 30-41). The Appeals Council
denied Plaintiff's request for review on August 3, 2015.
(Id. at 1). Therefore, the ALJ's decision dated
March 28, 2014, became the final decision of the
exhausted his administrative remedies, Plaintiff timely filed
the present civil action. (Doc. 1). The parties waived oral
argument on December 5, 2016 (Doc. 16) and 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
Issues on Appeal
Whether the ALJ erred in failing to give
“considerable” weight to the opinions of
Plaintiff's treating neurologist, Dr. Abdel Kasmia, M.D.?
Whether the ALJ erred in evaluating the testimony of
Plaintiff and his mother?
Whether the ALJ erred in failing to rely on the vocational
experts' responses to hypotheticals that assumed
restrictions in excess of the RFC?
was born on March 11, 1988, and was twenty-three years of age
at the time that he filed his applications for benefits. (Tr.
244, 253, 278). Plaintiff alleges that he became disabled on
March 6, 2006, five days before his eighteenth birthday, as a
result of frequent seizures. (Id. at 278, 283).
graduation from high school in 2006, Plaintiff attended
college as a full time student and earned an associate's
degree in computer science in 2009. (Id. at 54, 79).
Plaintiff has never worked, except while in college when he
worked part-time as an office assistant. (Id. at
54-55, 79, 283). In his Disability Report submitted to the
Agency and at his administrative hearings, Plaintiff stated
that he is not able to work because of seizures, which cause
him to bite his tongue and become incontinent and leave him
feeling fatigued and unable to concentrate. (Id. at
59, 80-81, 283).
Standard of Review
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).
Statutory And Regulatory Framework
matter involves an application for childhood disability
insurance benefits and for supplemental security income. An
individual who applies for Social Security disability
benefits must prove his or her disability. 20 C.F.R.
§§ 404.1512, 416.912. Disability is defined as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment 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.
§§ 423(d)(1)(A); see also 20 C.F.R.
§§ 404.1505(a), 416.905(a).
Social Security regulations provide a five-step sequential
evaluation process for determining if a claimant has proven
his disability. 20 C.F.R. §§ 404.1520, 416.920. The
claimant must first prove that he or she has not engaged in
substantial gainful activity. The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the
claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience. If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their
past relevant work. Jones v. Bowen, 810 F.2d 1001,
1005 (11th Cir. 1986). In evaluating whether the claimant has
met this burden, the examiner must consider the following
four factors: (1) objective medical facts and clinical
findings; (2) diagnoses of examining physicians; (3) evidence
of pain; and (4) the claimant's age, education and work
history. Id. Once a claimant meets this burden, it
becomes the Commissioner's burden to prove at the fifth
step that the claimant is capable of engaging in another kind
of substantial gainful employment which exists in significant
numbers in the national economy, given the claimant's
residual functional capacity, age, education, and work
history. Sryock v. Heckler, 764 F.2d 834, 836 (11th
Cir. 1985). If the Commissioner can demonstrate that there
are such jobs the claimant can perform, the claimant must
prove inability to perform those jobs in order to be found
disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th
Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987) (citing Francis v. Heckler,
749 F.2d 1562, 1564 (11th Cir. 1985)).
Plaintiff is over eighteen years of age and seeks child's
benefits under the Social Security Act, he must also
establish that (1) he is dependent on an insured parent who
is entitled to old-age or disability benefits or has died;
(2) he is unmarried; and (3) at the time of filing, he was
under age 18, or age 18 or older and has a disability that
began before he became 22 years old. See Bailey v.
Colvin, 2016 U.S. Dist. LEXIS 171783, *6, 2016 WL
7210404, *2 (N.D. Ala. Dec. 13, 2016) (citing 42 U.S.C.
§ 402(d)(1); 20 C.F.R. § 404.350). The Commissioner
evaluates a claim for adult child disability benefits under
the same standards generally applicable to adults applying on
their own wage records by employing the five-step evaluation
process listed above. Id. (citing 20 C.F.R.
§§ 404.1505(a), 404.1520(a)(4)(i)-(v)).
The ALJ did not err in failing to give
“considerable” weight to the opinions of
Plaintiff's treating neurologist, Dr. Abdel Kasmia,
brief, Plaintiff argues that the ALJ erred in failing to give
“considerable” weight to the opinions of his
treating neurologist, Dr. Abdel Kasmia, M.D. (Doc. 11 at 2).
of this, Plaintiff argues, the RFC is not supported by
substantial evidence. Having reviewed the record at length,
the Court finds ...