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Scales v. Colvin

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

January 12, 2018

JOSEPHINE SCALES, o/b/o A.J.G., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. Proceedings Below

         This 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 outlined below.

         On 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).[1] 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).

         On May 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).

         Administrative 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. 1986).

         II. Relevant Facts

         A.J.G. 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).

         In July 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).

         In 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).

         After 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.).

         For 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).

         In 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).

         After 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).

         III. ALJ Decision

         In this 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.

         A. The ALJ Determined that A. J. G. was Not Disabled as a Child

         For 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.

         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, 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. 124, 153).

         In the 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 ...


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