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Scarbrough v. Saul

United States District Court, S.D. Alabama, Southern Division

November 7, 2019

MARTHA SCARBROUGH o/b/o J.J.S., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          ORDER

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Procedural History[1]

         Plaintiff 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.).

         Having 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).

         II. Issue on Appeal

         1. Whether the ALJ reversibly erred in finding that J.J.S.'s impairments did not meet Listing 112.05(B)?

         III. Factual Background

         J.J.S. 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.[2] (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).

         Plaintiff 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).

         In a 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).

         J.J.S. 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, [3] and Montelukast for allergies. (Id. at 306).

         IV. Standard of Review

         In 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.[4] 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).

         V. Statutory and Regulatory Framework - Childhood Disability Law

         The 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 months.

42 U.S.C. § 1382c(a)(3)(C)(i); see also 20 C.F.R. § 416.906.

         The 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).

         A 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 § 416.926a(b)(1)(i)-(vi).

         VI. The ALJ's Findings

         In the 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 ...


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