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Avery v. Colvin

United States District Court, D. South Carolina

March 19, 2018




         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.).

         Plaintiff began receiving Supplemental Security Income (SSI) benefits when she was four years old for a speech delay caused by a hearing impairment. (R.pp. 76, 81-82). On June 5, 2012, pursuant to a required continuing disability review, a state agency decision maker determined that Plaintiff, who was eleven years old at the time, was no longer disabled as of June 2012. (R.pp. 77, 80, 93-97). After this decision was upheld on reconsideration, Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 14, 2015. (R.pp. 52-74, 122-125, 126-130). The ALJ thereafter denied Plaintiffs claim in a decision issued September 23, 2015. (Rpp. 30-43). The Appeals Council denied Plaintiffs request for a review of the decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).

         Plaintiff then filed this action in United States District Court. In her Complaint, Plaintiff asserts that the ALJ erred by failing to find that her impairments meet or equal a Listing, [1]and that the decision is not supported by substantial evidence. Plaintiff also alleges that the ALJ erred in determining that Plaintiff's testimony was not credible, that his decision is contrary to the weight of the evidence in the record, ignores evidence from Plaintiff's teachers, and improperly discounts the testimony of Plaintiff's treating physician, Dr. Ann Taylor. The Commissioner contends that the decision to deny benefits to the Plaintiff after June 2012 is supported by substantial evidence, and that Plaintiff was properly found not to be disabled after that time.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640');">368 F.2d 640 (4th Cir. 1966)).

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).


         Plaintiff was in tenth (10) grade and fifteen (15) years old at the time of the ALJ's decision. (R.pp. 34, 57). The ALJ noted that in the “comparison point decision” (“CPD”) of March 2005, Plaintiff was found disabled as of December 4, 2004 due to a speech delay. (R.p. 33). The ALJ found, however, and the Plaintiff does not dispute, that she had experienced medical improvement with regard to her speech delay. (R.pp. 34, 690-691). The ALJ noted that at the time of the CPD Plaintiff's speech intelligibility was only 50%, while as of June 2012, the treatment notes show significant improvement in Plaintiff's speech such that she was no longer even enrolled in speech/language services or an individualized education plan or 504 plan for a speech delay. (R.pp. 33-34, 93).

The framework used to review SSI benefits previously awarded to a child is set forth at 20 C.F.R. § 416.994a. The ALJ determines in the first step of the analysis whether there has been “medical improvement” from the most recent favorable determination (i.e., the “comparison point decision” or “CPD”). 20 C.F.R. § 416.994a(a)(1). If there has been no medical improvement, the child's disability typically will be deemed to continue. 20 C.F.R. § 416.994a(b)(1). If there has been medical improvement, the ALJ must determine at step two whether the impairment(s) considered during the CPD still meets or equals the severity of the listed impairment it met or equaled at that time. If the impairment(s) meets or equals the severity of the listed impairment it met or equaled at the time of the CPD, the claimant typically is deemed to be disabled. 20 C.F.R. § 416.994a(b)(2).[2]
If there has been medical improvement in the claimant's impairment(s) and the impairment(s) no longer meets or equals the severity of the listed impairment that it met or equaled at the time of the CPD, the ALJ will proceed to step three and consider whether the claimant is disabled under the rules in 20 C.F.R. § 416.924(c) and (d). 20 C.F.R. § 416.994a(b)(3). Under these provisions, the child must have a severe impairment or combination of impairments that meet, medically equal, or functionally equal one of the impairments identified in 20 C.F.R. Part 404, Subpart P, Appx. 1. 20 C.F.R. § 416.924(a); Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003).[3]
If a child's impairment(s) does not meet or medically equal a listed impairment, the Commissioner assesses all functional limitations caused by the impairment(s) to determine if the child's impairment(s) is functionally equivalent in severity to any of the listed impairments. 20 C.F.R. § 416.926a. The Commissioner considers six areas of development in determining whether a child's impairments are functionally equivalent to a listed impairment: (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 yourself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). To meet the “functional equivalence” requirement, the claimant must have a severe impairment that results in “extreme limitation”[4] in one area of functioning or “marked limitations”[5] in two areas of functioning. 20 C.F.R. § 416.926a(d).

Romero on behalf of S.B.G. v. Berryhill, No. 17-188, 2018 WL 326466, at *3 (E.D. Ky. Jan. 8, 2018)

         At Steps One and Two, the ALJ found that Plaintiff's speech delay had improved and no longer met or equaled the criteria of the Listings since June 30, 2012. (R.pp. 33-34). Plaintiff does not challenge the ALJ's conclusions at Steps One or Two, and does not argue that her speech delay failed to improve or continued to meet a Listing. See Plaintiff's Brief, pp. 4-12.

         At Step Three, the ALJ found that Plaintiff had the severe impairments of oppositional defiant disorder, ADHD, depression, and avascular necrosis causing leg length discrepancy. (R.p. 34). However, the ALJ found that from December 30, 2012 through the date of the ALJ's decision on September 23, 2015, Plaintiff's mental health conditions did not meet the criteria for Listings 112.04, 112.08, or 112.11, because she did not have marked restrictions in the relevant Listing criteria. (R.pp. 35-43). The ALJ also found that Plaintiff's combination of impairments did not functionally equal a Listing. (R.pp. 35-43).

         In this appeal, Plaintiff only challenges that she did not meet or functionally equal a listing after June 30, 2012, based on her mental impairments. See Plaintiff's Brief, pp. 4-12. She does not present any arguments concerning an alleged disability based on her condition of avascular necrosis causing leg length discrepancy. See generally Plaintiff's Brief, pp. 4-12. However, after careful review and consideration of the case record, the undersigned finds and concludes for the reasons set forth hereinbelow that there is substantial evidence to support the decision of the Commissioner that Plaintiff was no long entitled to disability benefits as of June 2012, and that the decision should therefore be affirmed. Laws, 368 F.2d 640 [Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion”].

         (General Listing Analysis)

         The ALJ found that Plaintiff had the severe mental impairments of ADHD, ODD and depression. However, at Step Three, the ALJ determined that Plaintiff did not meet or medically equal the severity of Listings 112.04 (mood disorders), 112.08 (personality disorders), or 112.11 (ADHD). (R.p. 35). The requirements for each of these Listings is set forth below.

         To meet Listing 112.04 the requirements for both 112.04(A) and 112.04(B) must be satisfied. Listing 112.04 is:

Characterized by a disturbance of mood (referring to a prolonged emotion that colors the whole psychic life, generally involving either depression or elation), accompanied by a full or partial manic or depressive syndrome.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied.
A. Medically documented persistence, either continuous or intermittent, of one of the following:
1. Major depressive syndrome, characterized by at least five of the following, which must include either depressed or irritable mood or markedly diminished interest or pleasure: a. Depressed or irritable mood; or b. Markedly diminished interest or pleasure in almost all activities; or c. Appetite or weight increase or decrease, or failure to make expected weight gains; or d. Sleep disturbance; or e. Psychomotor agitation or retardation; or f. Fatigue or loss of energy; or g. Feelings of worthlessness or guilt; or h. Difficulty thinking or concentrating; or i. Suicidal thoughts or acts; or j. Hallucinations, delusions, or paranoid thinking;
2. Manic syndrome, characterized by elevated, expansive, or irritable mood, and at least three of the following: a. Increased activity or psychomotor agitation; or b. Increased talkativeness or pressure of speech; or c. Flight of ideas or subjectively experienced racing thoughts; or d. Inflated self-esteem or grandiosity; or e. Decreased need for sleep; or f. Easy distractibility; or g. Involvement in activities that have a high potential of painful consequences which are not recognized; or h. Hallucinations, delusions, or paranoid thinking;
3. Bipolar or cyclothymic syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently or most recently characterized by the full or partial symptomatic picture of either or both syndromes);
B. For older infants and toddlers (age 1 to attainment of age 3), resulting in at least one of the appropriate age-group criteria in paragraph B 1 of 112.02; or, for children (age 3 to attainment of age 18), resulting in at least two of the ...

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