United States District Court, S.D. Alabama, Southern Division
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
Martha Scarbrough (hereinafter “Plaintiff”)
brings this action on behalf of her minor child, J.J.S.,
seeking judicial review of a final decision of the
Commissioner of Social Security denying Plaintiff's claim
for child supplemental security income under Title XVI of the
Social Security Act, 42 U.S.C. § 1381, et seq.
On October 17, 2019, the parties consented to have the
undersigned conduct any and all proceedings in this case.
(Doc. 15). 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. (Doc. 16). Upon careful consideration of
the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the
Commissioner be AFFIRMED.
protectively filed an application for supplemental security
income on behalf of her son, J.J.S., on February 16, 2016.
(Doc. 11 at 159). Plaintiff alleged that J.J.S. has been
disabled since February 10, 2010, his date of birth, due to
clubfoot, being a slow learner, and asthma. (Id. at
215, 219). Plaintiff's application was denied at the
initial stage on June 15, 2016. (Id. at 107).
Plaintiff filed a timely request for hearing, and on February
9, 2018, Administrative Law Judge Alan E. Michel (hereinafter
“ALJ”) held an administrative hearing, which was
attended by Plaintiff, J.J.S., and Plaintiff's attorney.
(Id. at 57-58). Both Plaintiff and J.J.S. offered
testimony at the hearing. (Id. at 63-71). On March
29, 2018, the ALJ issued an unfavorable decision finding that
J.J.S. is not disabled. (Id. at 21). The Appeals
Council denied Plaintiff's request for review on October
18, 2018. (Id. at 5). Therefore, the ALJ's
decision dated March 29, 2018, became the final decision of
the Commissioner. (Id.).
exhausted her administrative remedies, Plaintiff timely filed
the present civil action. (Doc. 1). Oral argument was
conducted on October 31, 2019 (Doc. 17), and 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).
Issue on Appeal
Whether the ALJ reversibly erred in finding that J.J.S.'s
impairments did not meet Listing 112.05(B)?
was born on February 10, 2010 and was six years old at the
time his mother protectively filed an application for
supplemental security income on February 16,
2016. (Doc. 11 at 159). At the time of his
administrative hearing on February 9, 2018, J.J.S. was seven
years old and in the first grade. (Id. at 64).
had J.J.S. wait an additional year before attending
kindergarten because she felt he wasn't ready to learn
the skills taught in kindergarten. (Id. at 186). At
school, J.J.S. receives special education instruction,
including more intensive and supportive reading and math
instruction in small group settings, as well as speech
therapy. (Id. at 64-65, 68, 70, 277-78). J.J.S.
takes the regular bus to and from school, and he walks to the
bus stop. (Id. at 65-66). J.J.S. has friends and
enjoys playing and interacting with his peers. (Id.
at 66, 277). At the hearing, Plaintiff testified that J.J.S.
does his homework with her assistance, takes her instructions
well, plays well with friends, and does chores, including
cleaning his room, washing dishes, and vacuuming.
(Id. at 66, 69).
function report dated April 7, 2016, Plaintiff indicated that
J.J.S. is limited in his ability to speak clearly,
communicate, read, write, perform math, understand the days
of the week and months of the year, understand money, tell
time, ride a bike, swim, work video game controls, dress and
undress dolls or action figures, and pay attention to tasks.
(Id. at 206-13).
has been diagnosed with attention deficit hyperactivity
disorder (“ADHD”), for which he takes Vyvanse.
(Id. at 468). According to Plaintiff, J.J.S. is
doing a lot better since his Vyvanse dosage was increased
from twenty to thirty milligrams; however, he still seems
“a little slow.” (Id. at 68, 578).
Plaintiff listed J.J.S.'s other medications as
Azelastine, ProAir HFA, and Ipratropium-Albuterol for asthma,
Montelukast for allergies. (Id. at 306).
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 Commissioner 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). “Substantial evidence is
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.” Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983). In determining whether
substantial evidence exists, a reviewing court must consider
the record as a whole, taking into account evidence both
favorable and unfavorable to the Commissioner's decision.
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986)
(per curiam); Short v. Apfel, 1999 U.S. Dist. LEXIS
10163, at *4 (S.D. Ala. June 14, 1999).
Statutory and Regulatory Framework - Childhood Disability
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
42 U.S.C. § 1382c(a)(3)(C)(i); see also 20
C.F.R. § 416.906.
regulations provide a three-step sequential evaluation
process for determining childhood disability claims.
See 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 is engaging in substantial gainful activity.
Id. at § 416.924(b). 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. Id. at § 416.924(c). 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[.]” Id. To the extent the child is
determined to have a severe impairment, the Commissioner must
then determine at step three whether the impairment or
combination of impairments meets, medically equals, or
functionally equals an impairment listed in Appendix 1 of 20
C.F.R. part 404, subpart P, and otherwise satisfies the
duration requirement. Id. at § 416.924(d).
child's impairment(s) meets the listings' limitations
if he actually suffers from limitations specified in the
listings for the severe impairment(s). Shinn v.
Comm'r of Soc. Sec., 391 F.3d 1276, 1279 (11th Cir.
2004). A child's impairment(s) medically equals the
listings if his limitations are at least of equal severity
and duration to the listed impairment(s). Id.
(citing 20 C.F.R. § 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 C.F.R. § 416.926a(a). To establish
functional equivalence at 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.
Id. The six domains are: (1) acquiring and using
information; (2) attending and completing tasks; (3)
interacting and relating with others; (4) moving about and
manipulating objects; (5) caring for oneself; and (6) health
and physical well-being. Id. at §
The ALJ's Findings
instant case, the ALJ found that J.J.S., an eight-year-old
school-age child who was a preschooler on the date his
application was filed, has never engaged in substantial
gainful activity. (Doc. 11 at 27). The ALJ also found that
J.J.S. has the severe impairments of ADHD, intellectual
disability, expressive language delay, and asthma.
(Id.). The ALJ determined that J.J.S.'s
impairments do not meet or medically equal the severity of
any of the listed impairments contained in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.924,
416.925, and 416.926). (Id.). The ALJ then
determined that J.J.S. does not have an impairment or
combination of impairments that functionally equal the
severity of a listing. (Id. at 28-39). In doing so,
the ALJ found that J.J.S. has (1) a less than marked
limitation in acquiring and using information; (2) no
limitation in attending and completing tasks; (3) no
limitation in interacting and relating with others; (4) a
less than marked ...