United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF DECISION
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
Josephine Scales (“Plaintiff” or
“Scales”) brings this action on behalf of her
granddaughter A.J.G., pursuant to Title XVI of Section
1631(c) of the Social Security Act (the “Act”),
seeking review of the decision of the Commissioner of Social
Security (the “Commissioner”) denying claims for
Children's Supplemental Security Income
(“CSSI”). See 42 U.S.C. § 1383(c).
Based on 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.
case sits in an interesting procedural posture. Although she
was denied disability benefits on January 1, 2016, and that
decision is under review here, A.J.G. is currently receiving
disability benefits pursuant to a favorable November 2016
decision. (Doc. #16 at 16-17; Doc. #17 at 15; Tr. 1). A
review of the history related to A.J.G.'s case is
January 16, 2008, Attorney Carla C. Ray applied on behalf of
then-thirteen-year-old A.J.G. for child SSI alleging
disability beginning September 1, 2007. (Tr. 359, 367).
Later, on January 31, 2008, Plaintiff, A.J.G.'s
grandmother, filed an application on behalf of A.J.G. for
child SSI. (Tr. 373). The Social Security Administration
(“SSA”) denied the application on May 6, 2008.
(Tr. 178). Plaintiff then requested a hearing by an
Administrative Law Judge. (Tr. 186-89). Administrative Law
Judge Charles A. Thigpen (“ALJ Thigpen”) heard
the case on July 28, 2010. (Tr. 94-114). On August 16, 2010,
ALJ Thigpen found A.J.G. not disabled under the Act. (Tr.
118-39). Plaintiff requested review of that decision on
August 27, 2010. (Tr. 213). On December 20, 2011, the Appeals
Council remanded the decision for a rehearing by ALJ Thigpen
because he had issued his decision before the expiration of a
30-day period he had set for post-hearing development of the
record. (Tr. 140-43; see also Tr. 108-109, 113).
24, 2012, A.J.G. turned eighteen. (Tr. 367). After a second
hearing on July 18, 2012 (Tr. 77-93), ALJ Thigpen again
denied Plaintiff's claim. (Tr. 145-73). Plaintiff again
requested review. (Tr. 7). On March 21, 2014, the Appeals
Council again remanded the decision for a third hearing, this
time because the ALJ did not provide Plaintiff with time to
respond to medical interrogatories propounded to Dr. Sydney
Garner. (Tr. 174-77).
Law Judge Mary E. Helmer (“the ALJ”) held the
third hearing on August 21, 2015. (Tr. 35-76). After the ALJ
rendered an unfavorable decision on September 22, 2015 (Tr.
9-329), the Appeals Council denied Plaintiff's request
for another rehearing. (Tr. 1-8). The ALJ's decision then
became the final decision of the Commissioner and therefore a
proper subject of this court's appellate review.
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.
was born May 25, 1994 (Tr. 583), she turned 18 on May 24,
2012 (Tr. 367), and she was 22 years old at the time of the
third hearing. (Tr. 35). Plaintiff alleges that A.J.G. has
been mentally disabled since September 1, 2007. (Tr. 359).
A.J.G. has never worked. (Tr. 17).
2007, Plaintiff sought treatment for A.J.G.'s poor school
performance, behavior problems, and defiance. (Tr. 579). On
July 5, 2007, Dr. Shakil Khan saw A.J.G. through the
Children's Services of the Jefferson-Blount-St. Clair
Mental Health Authority. (Tr. 579-81). Dr. Khan diagnosed
A.J.G. with intermittent explosive mood disorder,
oppositional defiant disorder, parent-child relationship
problem, and learning disorder. (Tr. 580). Dr. Khan assigned
A.J.G. a Global Assessment of Functioning (“GAF”)
score of 60 and prescribed Trileptal, which A.J.G. continued
taking at least through July 2010. (Tr. 100-101, 580-81).
connection with Plaintiff's initial application,
psychologist Dr. John Neville produced a consultative
evaluation of A.J.G., recorded A.J.G.'s full-scale IQ of
84, and diagnosed her with oppositional defiant disorder.
(Tr. 585-86). Reviewing the record for completion of the SSA
Childhood Disability Evaluation Form, psychiatrist Dr. Samuel
Williams diagnosed A.J.G. with “less than marked”
limitations in any functional domain. (Tr. 587-92).
the SSA denied Plaintiff's initial application, A.J.G.
was admitted to Hill Crest Hospital for behavioral issues
after she became violent with adults in the home, pulled
knives on family members, and was verbally aggressive. (Tr.
649). A.J.G. remained in the hospital from December 28, 2008
through January 9, 2009. (Tr. 61-62, 648-58). She was
discharged with diagnoses of ADHD, conduct disorder, and
parent-child relationship problem. (Tr. 648). Later that
year, on July 14 and August 18, 2009, psychologist Dr. Amy
Cooper evaluated A.J.G. at the UAB Civitan-Sparks Clinic on
referral due to concerns regarding poor academic performance.
(Tr. 605-18). Dr. Cooper recorded a full-scale IQ of 77 (Tr.
607) and diagnosed learning disorder, ADHD by history, and
depression by history (Tr. 611). Dr. Cooper assigned A.J.G. a
GAF score of 63. (Id.).
more than two years following her release from the hospital,
A.J.G. had no documented episodes. But on September 27, 2011,
Plaintiff took A.J.G. to Hill Hospital in York, Alabama for
an overdose of Naprosyn. (Tr. 674). Plaintiff testified that
the overdose was intentional (Tr. 61-64), but hospital notes
indicate that the overdose was accidental (Tr. 674).
connection with the second hearing by ALJ Thigpen,
psychologist Dr. Sydney Garner prepared a medical opinion.
(Tr. 681-85). Dr. Garner specified A.J.G.'s medical
impairments as ADHD, oppositional defiant disorder, mood
disorder, learning disorder, and borderline intellectual
functioning. (Tr. 681). According to Dr. Garner, A.J.G.'s
impairments did not meet or equal any impairment described in
the Listing of Impairments. (Tr. 681-82). Dr. Garner
specifically concluded that the impairments did not meet
Listing 112.11 or Listing 112.08. (Tr. 682). Following the
second denial by ALJ Thigpen, A.J.G. continued taking
medication, improved her academic performance, and had no
further behavioral problems. (Tr. 714-15).
A.J.G. turned eighteen in May 2012, she received no more
treatment. (Tr. 20, 38, 41). Plaintiff and A.J.G. both
testified that, after A.J.G. turned eighteen and lost
eligibility for Medicaid, Plaintiff could no longer afford
A.J.G.'s treatments. (Tr. 41, 58-60). However, as of
August 2015, A.J.G. testified that she takes medications
daily, which control her mood and temper. (Tr. 44-45, 50-51,
58). A.J.G. did not graduate from high school (Tr. 55-56),
does not currently work (Tr. 39-40), and watches television
for approximately thirteen hours a day (Tr. 41-43).
case, disability must be determined in relation to two
distinct time periods, and different standards apply with
respect to those time periods. For the period before A.J.G.
turned eighteen, January 16, 2008 through May 23, 2012, the
ALJ must determine disability using the child standard. 20
C.F.R. § 416.924(a). For the period after May
24, 2012 (when A.J.G. turned 18) through the date of the
decision (here, September 22, 2015), the ALJ must determine
disability using the adult standard. 20 C.F.R. §
404.1520. Each distinct standard was considered by the ALJ.
The ALJ Determined that A. J. G. was Not Disabled as a
child to be found disabled under the Act, she 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.” 42
U.S.C. § 1382(c) (a)(3)(C)(i); 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.
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, the 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 the child's medical condition. 20 C.F.R. §
416.924(b). If the child is found to not be engaging in
substantial gainful activity, the analysis proceeds. Here,
the ALJ found that, as a child, A.J.G. had not engaged in
substantial gainful activity. (Tr. 17; see also Tr.
second step, the ALJ must determine whether the child has a
medically determinable impairment or a combination of medical
impairments that is “severe” under the Act. 20
C.F.R. § 416.924(c). At this stage of the analysis,
“severe” as understood under Social Security
regulations requires that the child have a medically
determinable impairment, or an impairment or combination of
impairments, which are more than a slight abnormality that
causes merely minimal functional limitations. Id.
Absent such a “severe” impairment, the child may
not claim disability. Id. Here the ALJ found that
“[b]efore attaining age 18, [A.J.G.] had the following
severe impairments: oppositional defiance disorder, attention