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Peck v. Commissioner of Social Security

United States District Court, W.D. Tennessee

April 22, 2015

TENISHA PECK, For AB, a minor, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER AFFIRMING DECISION OF COMMISSIONER

JAMES D. TODD, District Judge.

Plaintiff, through her mother, has filed this action to obtain judicial review of Defendant Commissioner's final decision denying her application for child's supplemental security income benefits ("SSI") under the Social Security Act ("Act"). The application and the request for reconsideration were denied. Plaintiff then requested a hearing before an administrative law judge ("ALJ"), which was held on February 15, 2011.

On March 28, 2011, the ALJ issued a decision, finding that Plaintiff was not entitled to benefits. The appeals council affirmed the ALJ's decision. This decision became the Commissioner's final decision. Plaintiff has filed this action, requesting reversal of the Commissioner's decision. For the reasons set forth below, the decision of the Commissioner is AFFIRMED.

Pursuant to 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made by the Commissioner after a hearing to which he was a party. "The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." Id . The court's review is limited to determining whether or not there is substantial evidence to support the Commissioner's decision, 42 U.S.C. § 405(g); Drummond v. Commissioner , 126 F.3d 837, 840 (6th Cir. 1997), and whether the correct legal standards were applied. Landsaw v. Secretary , 803 F.2d 211, 213 (6th Cir. 1986). When the record contains substantial evidence to support the Commissioner's decision, the decision must be affirmed. Stanley v. Secretary , 39 F.3d 115, 117 (6th Cir. 1994) (citing Richardson v. Perales , 402 U.S. 389, 401 (1971)). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson , 402 U.S. at 401(quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)).

Plaintiff was born on November 10, 1996. She alleges a disability onset date of February 1, 2009, due to anxiety and depression. R. 19, 118. She attended regular classes at school.[1] Due to Plaintiff's young age, she has no work history.

The Welfare Reform Act amended certain provisions of the Social Security Act relating to SSI applications by children as follows:

An individual under the age of 18 shall be considered disabled for purposes of this title 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.

Welfare Reform Act, Title II, Subtitle B, § 211(a)(4) (1996), 42 U.S.C. § 1382c(a)(3)(C)(i). The Social Security Administration ("SSA") promulgated final rules implementing this provision. The rules establish a three step sequential evaluation for determining childhood disability such that the SSA considers (1) whether the child is working; (2) whether the child has a medically determinable severe impairment which is expected to result in death, has lasted or is expected to last for a continuous period of not less than twelve months and, if so, (3) whether the impairment or combination of impairments meets, medically equals, or functionally equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (2000) (the "Listings"). 20 C.F.R. § 416.924 (2000). A child will be found disabled if she has an impairment or combination of impairments which meet, equal, or functionally equal any impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1, Listing of Impairments.

Methods that may be used to determine whether an impairment is functionally equivalent to a listing include consideration of whether the child's impairment effects "broad areas of development or functioning" set forth in the regulations. 20 C.F.R. § 416.926a(b)(1)-(b)(4) (2000). The SSA will find an impairment functionally equivalent to a listing if the child has an extreme limitation in one area of functioning or a marked limitation in two areas of functioning. 20 C.F.R. § 416.926a(b)(2). For children over three years of age, the areas of development or functioning (domains) that may be addressed in considering functional equivalence are: acquiring and using information; attending and completing tasks; interacting and relating with others; moving and manipulating objects; caring for yourself; and, health and well-being. 20 C.F.R. § 416.926a. Determination of functional equivalence to a listing entails determination as to whether a child meets the criteria for "marked" limitation in any two of the six domains, without comparison to any specific childhood listing. Id.

When standardized tests are used as a measure of functional abilities, an "extreme limitation" is a valid score that is three standard deviations or more below the norm for the test 20 C.F.R. § 416.926a, while a "marked limitation" is a valid score that is two standard deviations or more below the norm for the test. 20 C.F.R. § 416.926a(c)(3). A marked limitation is "more than moderate" and "less than extreme." Marked limitations may arise when several activities or functions are limited or even when only one is limited, as long as the degree of limitation interferes seriously with the child's functioning. Id.

The burden of proof at the listing level of the sequential evaluation is on the plaintiff. In order for a plaintiff to show that her impairment matches a listing, the impairment must meet all specified medical criteria. See Zebley v. Sullivan , 493 U.S. 521, 530 (1990). In the present case, the ALJ determined that Plaintiff has a severe impairment of history of conduct disorder but does not have an impairment or combination of impairments that meet or medically equal one of the listed impairments and Plaintiff does not functionally equal the listings. The ALJ also found that Plaintiff's impairments have not caused an "extreme" limitation in any domain of functioning or a "marked" limitation in any two domains of functioning. Therefore, Plaintiff was not disabled as defined in the Social Security Act since March 24, 2009, the date of the application. In reaching his decision, the ALJ considered all of Plaintiff's medically determinably impairments, including any that were not found to be severe in all of the affected domains.

Subjective complaints alone cannot establish disability. The record must include medical signs and findings showing the existence of a medical impairment that, when considered with all the other evidence, would lead to a conclusion the claimant is disabled. See 42 U.S.C. §§ 423(d)(5)(A), 1382(a)(3)(H)(I); 20 C.F.R. § 416.929(a); Buxton v. Halter , 246 F.3d 762, 773 (6th Cir. 2001).

Here, the ALJ properly determined that the mother's testimony did not establish disability because it was not consistent with the following evidence: (1) Plaintiff did not require special education classes and was never retained at any grade level. R. 28, 200, 278, 396. (2) Plaintiff's verbal, performance, and full-scale IQ scores were 118, 105, and 113. R. 282. (3) Opinions from providers at Pathways Behavioral Health Services stated that Plaintiff's strengths included good physical health, good social skills, good verbal skills, and independence in her activities of daily living skills. R. 218, 268. (4) The mother reported that Abilify was working well in October 2010, R. 357, and that Plaintiff had no recent problems at school in November 2010. R. 368. (5) Dr. Paul Brown, a psychologist, observed that Plaintiff was mostly polite and well-mannered, did not exhibit any strange or unusual behavior, had no apparent difficulty comprehending, understanding, or responding to questions and taking part in the interview, and was limited only mildly in understanding and remembering instructions and moderately in sustaining concentration and persistence, interacting with others, and adapting to changes and requirements. R. 23, 240. (6) Dr. Ronald Lynn, a neurologist, observed that Plaintiff had normal speech, followed instructions, had no alteration of consciousness, and was only "perhaps a bit" distractable. R. 275. (7) Dr. Robert Kennon opined that Plaintiff was dissimulating and assigned her a GAF score of 90. R. 280.[2] The ALJ also considered that Plaintiff's mother was not a disinterested third party in finding that her testimony was not credible.

Plaintiff argues that the ALJ should have considered follow-up testing from Memphis Neurology. This evidence includes intelligence testing and a Connors' Assessment of ADHD. R. 282-99. The ALJ cited this exhibit (11F) when considering Plaintiff's varying diagnoses. The ALJ explained that he declined to accept the diagnoses Plaintiff received after this testing because Plaintiff had received varying diagnoses, R. 249, 276, 280, 315, and treatment notes ...


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