Opinion
Civil Action No. 00-2639 Section "R" (2)
July 30, 2001
FINDINGS AND RECOMMENDATION
Plaintiff, Andrea Bridges, on behalf of her minor Trevelle Bridges, seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), denying her claim for child's Supplemental Security Income ("SSI") benefits under Title XVI of the Act. 42 U.S.C. § 402 et seq. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S. § 636(b) and Local Rule 73.2E(B).
Although ordered to file a memorandum of facts and law, Record Doc. No. 9, plaintiff filed a motion for summary judgment. Record Doc. No. 12. Defendant filed a timely reply memorandum of facts and law. Record Doc. No. 15.
I. PROCEDURAL HISTORY
Trevelle was born June 12, 1993 and was almost five years old as of the date of his application. (Tr. 78). His mother filed his application for SSI on May 14, 1998, alleging disability since June 12, 1996 based on a learning disorder, speech problem, weight problem and attention deficit hyperactivity disorder. (Tr. 78-79). After Trevelle's application was denied initially and on reconsideration (Tr. 42-44, 52, 54, 58-60), a hearing was conducted before an Administrative Law Judge ("ALJ") on April 21, 1999. (Tr. 356-376). The ALJ issued a decision dated May 26, 1999, finding that Trevelle was not disabled. (Tr. 12-22). The Appeals Council denied plaintiff's request for review on July 13, 2000 (Tr. 8-10) and the decision of the ALJ became the final decision of the Commissioner for purposes of this court s review
II. STATEMENT OF THE ISSUE ON APPEAL
Plaintiff's request for judicial review raises the following issue:
A. Whether the ALJ erred in finding that Trevelle's did not meet or medically equal the requirements of Listing 112.11 deficit hyperactivity disorder.
III. ALJ'S FINDINGS RELEVANT TO ISSUE ON APPEAL
The ALJ made the following findings relevant to the issue on appeal:.
A. The medical evidence establishes that the claimant has adjustment disorder with disturbance of conduct versus attention deficit disorder, mixed type, and probable borderline or higher intellectual functioning/potential which are medically determinable severe impairments.
B. The claimant's condition does not meet or medically equal the criteria for any impairment listed in Appendix 1, Subpart P, Part 404.
C. The claimant's assertions relative to symptomatology, pain, functional limitations and restrictions of activities of daily living are not credible.
D. The medical and other evidence reveals that plaintiff has less than a marked limitation relative to cognition\communication, social functioning and concentration, persistence or pace.
(Tr. 21).
IV. ANALYSIS
A. Standards of Review
The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Loza v. Apfel, 219 F.3d 378, 379 (5th Cir. 2000); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019-1021 (5th Cir. 1990). Substantial evidence is more than a scintilla buy less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate top support a conclusion.Richardson v. Perales 402 U.S. 389, 401 (1971); Loza, 219 F.3d at 393 Spellman, 1 F.3d at 360. This court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's Id.Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The ALJ is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022;Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner. that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1997).
To qualify for SSI, a claimant must be "disabled" as defined by the Act. 42 U.S.C. § 423 (a)(1)(D). In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("1996 Act"), which redefined the eligibility standard for children under the SSI disability determination process. This statute applies to all child disability applicants who filed claims on or after August 22, 1996 or whose cases were not finally adjudicated before that date. Id. § 211(d)(1)(A)(i).
According to the 1996 Act, "(a)n individual under the age of 18 shall be considered disabled for the 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." Id. § 1382c(a)(3)(C)(i).
The Commissioner's regulations in effect at the time of the ALJ's decision provide a three-step procedure for evaluating a child's claim of disability. The first step is to determine whether the claimant is engaging or has engaged in substantial gainful activity. If the answer is "yes," the claimant will be found not disabled. If the answer is "no," the second step requires a determination whether the claimant has a medically determinable severe impairment(s). If not, the claimant will be found not disabled. If the claimant has such an impairment(s), the last step is to determine whether the impairment(s) meets or equals in severity, either medically or functionally, an impairment listed in Appendix 1, Subpart P, Part 404 of the Commissioner's regulations ("Listing"). If the claimant has such an impairment and it meets the duration requirement, the claimant will be found disabled. If not, the claimant will be found not disabled. 20 C.F.R. § 416.924 (a) (1999).
B. Factual Background
Trevelle testified that he can go to the bathroom, brush his teeth and eat my himself. He stated that he goes to school all day and that he likes it. He said that he plays football with friends and he watches cartoons. His statements in the transcript regarding whether he can ride a bike are unclear (Tr. 360-63), but the ALJ found that Trevelle said he could ride a bike.
Andrea Bridges testified that her son has a prescription for Adderall for his hyperactivity. Her testimony in the transcript about whether he is taking it is unclear at one point (Tr. 362), but she later states that Trevelle takes his medicine twice a day and that she visits the doctor to renew his prescription when he runs out. (Tr. 367-68). She stated that the Adderall does not help (Tr. 367) and that Trevelle has been on medication for about a year but has not demonstrated improved behavior. (Tr. 371). She said Trevelle could not tolerate Ritalin. (Tr. 367).
Bridges testified that Trevelle rides the bus to school because he cannot walk by himself. (Tr. 362). She said that he can eat, use the bathroom and put on his clothes by himself, with supervision. (Tr. 362-63). She stated that she has to punish Trevelle physically to make him go to bed (Tr. 363).
Trevelle's mother testified that he had not failed a class as of the hearing date and probably would remain in a non-categorical, special education class until age six. (Tr. 365-66). She testified that Trevelle is placed in "time out" when he misbehaves at school. (Tr. 367). At home Trevelle is placed in time out and paddled for bad behavior. (Tr. 367). His mother testified that Trevelle is mean and sneaky; that he lies, initiates fights and has bitten other children. (Tr. 370). She testified that she has taken things away and physically punished Trevelle as a result of his hyperactivity. (Tr. 372).
Bridges testified that Trevelle was hospitalized between the ages of three and four for his behavior after he started a fire at home by throwing his coat on the stove. (Tr. 372-73). She said that he sees a doctor about once a month and a counselor about once every two weeks concerning his behavior. (Tr. 368-69).
C. Medical Evidence
I have reviewed the medical records in evidence and the ALJ's summary of the medical evidence. I find the ALJ's summary of the medical evidence substantially correct and incorporate it herein by reference, with the modifications, corrections and highlights noted below.
D. Plaintiff's Appeal
The ALJ found that Trevelle's attention deficit hyperactivity disorder constituted a severe impairment but that he did not meet Listing 112.11 (Tr 21) Plaintiff argues that the Commissioner's decision is unsupported by substantial evidence and that Trevelle meets the requirements of Listing 112.11. I find that the ALJ's finding is supported by substantial evidence in the record for the following reasons.
Listing 112.11 provides:
Attention Deficit Hyperactivity Disorder: Manifested by developmentally inappropriate degrees of inattention, impulsiveness, and hyperactivity.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied.
A. Medically documented findings of all three of the following:
1. Marked inattention; and
2. Marked impulsiveness; and
3. Marked hyperactivity; AND
B. For . . . children (age 3 to attainment of age 18), resulting in at least two of the appropriate age-group criteria in paragraph B2 of 112.02.20 C.F.R. Part 404, Subpart P, Appendix 1, § 112.11 (emphasis added).
The four areas of age-appropriate functioning in Listing 112.02 (B)(2), which are incorporated into Listing 112.11(B) by reference, are cognitive/communicative function, social functioning, personal functioning and deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner. Id. § 112.02(B)(2). Trevelle must have a "marked impairment" in at least two of these areas to meet subpart B of the Listing. Id. The Commissioner's regulations provide that "marked" limitations exist for purposes of subparts A and B when "the degree of limitation is such as to interfere seriously with the child's functioning." Id. § 416.926a(c)(3)(C).
The ALJ found that Trevelle has been diagnosed with attention deficit hyperactivity disorder, which is a severe impairment. However, diagnosis alone is insufficient to satisfy the requirements of any listing Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Plaintiff must show that his impairment matches a listing and must meet all of specified medical criteria. Id. If a claimant meets a listing, he is per se disabled.Martin v. Heckler, 748 F.2d 1027, 1035 (5th Cir. 1984); accord 20 C.F.R. § 416.924 (d) ("An impairment(s) causes marked and severe functional limitations if it meets . . . the set of criteria for an impairment listed in the Listing of Impairments.").
Plaintiff argues that his inattention, impulsiveness and hyperactivity are all marked, satisfying subpart A of the Listing, and that he has marked limitations in social functioning and concentration, persistence and pace, thus satisfying subpart B. However, substantial evidence supports the ALJ's finding that Trevelle does not satisfy the requisite criteria of either Section 112.11(A) or 112.11(B).
The ALJ found that Bridges's descriptions of Trevelle's functional limitations and restrictions of activities of daily living was not credible. The ALJ's evaluation of witness credibility is entitled to considerable deference by this court. Carrier v. Sullivan 944 F.2d 243, 247 (5th Cir. 1991); Villa v. Sullivan 895 F.2d 1019, 1024 (5th Cir. 1990)
Although the record contains references to Trevelle's inattention, impulsiveness and hyperactivity, substantial evidence supports the ALJ's conclusion that these do not rise to the level of marked limitations. As noted in the discussion of the evidence cited below, Trevelle responds to direction and authority in a more structured environment and to behavior modification. One examiner, J. Sue Austin, Ph.D., noted on November 10 1997 that Trevelle did not have significant deficits in his daily functioning. (Tr 313). His teacher noted that his behavior is not as aggressive at school as it is at home. (Tr. 314).
As to plaintiff's argument concerning subpart B, social functioning refers to a child's ability to establish relations and to interact appropriately. Id. § 416.926(a)(b)(2)(c). In the area of social functioning, the ALJ will consider plaintiffs "ability or inability to form and maintain relationships with others," including cooperation, behavior, absence of inappropriate actions, interactions with adults, responding to authority and cooperative behavior. Id., § 416.926a(c)(4)(vi).
During the hearing, Trevelle testified that he has friends, plays football and takes the bus to school. (Tr. 361). His school and medical records indicate that, despite his lapses in conduct, he generally responds to authority, plays with other children and is friendly. (Tr. 165, 306, 311).
Lloyd Mire, Ph.D., conducted a consultative examination on April 18, 1996 and found Trevelle was untestable because he was out of control. Dr. Mire observed that Trevelle's mother was unable to exert control. Rather, she did things that did not help or were counterproductive, including using a punishment regime rather than a positive reinforcement approach. She was in need of training in parenting skills. (Tr. 217).
Gordon Blundell, M.D., who is apparently a psychiatrist, reported in a March 29, 1997 hospital discharge summary that Trevelle had attention deficit hyperactivity disorder and oppositional defiant disorder and had been hospitalized for being "out of control." (Tr. 230). Dr. Blundell noted that Trevelle was not on medication because of his age and needed behavioral modification. (Tr. 231). Dr. Blundell stated that a family session during the admission had focused on parenting skills. As of the discharge date, Trevelle had learned behavior modification, had improved when he was in a more structured environment, was more calm and predictable, and could return to school. (Tr. 227). Trevelle was not hospitalized again at any time through the hearing date.
Pediatrician Francis N. Donner, Jr., M.D., performed a consultative examination on October 30, 1997 and found no significant functional disability. (Tr. 309).
Dr. Austin conducted a psychological evaluation on November 10, 1997. She noted that Trevelle demonstrated adequate motivation and effort, cooperated, sustained attention and persistence during testing, demonstrated impulse control, smiled frequently and was friendly. (Tr. 311-12). He was fairly attentive and focused, but occasionally lost interest and responded randomly to some tasks. She concluded that Trevelle did not have significant deficits in his daily functioning, but that he had poor social functioning. Dr. Austin rated his concentration, persistence and pace as fair. She noted no limitations in his cognitive or personal functioning. Dr. Austin diagnosed Trevelle with a learning disorder and borderline intellectual functioning and recommended that he be medication. She assessed a Global Assessment of Functioning Scale ("GAF") score of 70, which is "consistent with mild symptoms or mild difficulty with social or occupational functioning." Bryant v. Shalala, 882 F. Supp. 544, 546 (S.D. W. Va. 1995) (citing American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV")) (Tr. 313).
The OAF orders the evaluating physician to "consider psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.'" Boston v. Chater No. 94-5781, 1995 WL 708552, at *4 (E.D. Pa. November. 28, 1995) (quoting DSM-IV at 32). "The Global Assessment of Functioning Scale . . . ranges from 90 (absent or minimal symptoms) to 1 (persistent danger of severely hurting self or others, or unable to care for herself)." Irwin v. Shalala, 840 F. Supp. 751, 759 n. 5 (D. Ore. 1993) (quoting American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 12 (3d ed. 1987) ("WSM-III")). "Lower GAF scores signify more serious symptoms. Scores between 31 and 40 indicate "major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work) . . . Marcotte v. Callahan, 992 F. Supp. 485, 488 n. 4 (D.N.H. 1997) (quoting DS,-III at 12).
Frank Hava, M.D., a psychiatrist, evaluated Trevelle on December 23, 1997. (Tr. 292-98). He diagnosed Trevelle with attention deficit hyperactivity disorder and prescribed Ritalin. He assigned the boy a GAF score of only 30-40. (Tr. 290, 298). Dr. Hava's progress notes dated October 1997 through December 1997 indicate that Trevelle's behavior improved as he became cooperative. (Tr. 302-06). Bridges testified that Dr. Hava discontinued Ritalin because it caused her son's heart to race. (Tr. 367). In July 1998, Dr. Hava noted that Trevelle had been out of medication since January 1998 and he prescribed Adderall. (Tr. 348).
The ALJ noted that Trevelle was noncompliant with his medication, which would be consistent with his teachers' remarks on a January 1998 school form that, despite their belief that he was taking medicine, his condition was worsening. (Tr. 292). The ALJ reasonably could have concluded that Trevelle may not have been taking his medicine regularly when the form was completed. "A medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling."Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987); accord Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988); Anderson v. Apfel, No. 97-3447, 1999 WL 39518, at *5 (E.D. La. Jan. 29, 1999) (Porteous, J.);see 20 C.F.R. § 416.930 (failure to comply with a medication regimen, without good cause, may be sufficient to deny benefits).
School records show that Trevelle's conduct was not controlled prior to his treatment with medication. (Tr. 292). However, his teacher indicated that Trevelle interacted well socially and played with peers while everything was "going his way" and that he generally responded to authority. (Tr. 165).
With respect to concentration, persistence and pace, school records indicate that Trevelle occasionally worked independently, could easily be redirected to work, completed class work timely and adequately, and could sustain an ordinary daily routine without supervision. Trevelle could engage in play for an appropriate period of time and carry out short and simple instructions. (Tr. 165). The definition of concentration, persistence and pace for individuals between the ages of three and eighteen is "[t]he ability or inability to attend to, and sustain concentration on, an activity or task, such as playing, reading, or practicing a sport, and the ability to perform an activity or complete the task." 20 C.F.R. § 416.926a(c)(4) (vi). Trevelle demonstrated that he was able to focus on his class work more often than not and complete his work timely; therefore, substantial evidence supports a finding that he does not have a marked functional limitation.
The ALJ concluded that the evidence shows that Trevelle's behavior is not based on mental impairment but is due to the familial environment. The ALJ considered and cited to the evidence that supported his findings, including Dr. Hava's report about the lack of medication compliance and the consultative evaluation report dated August 20, 1998 of Brian G. Murphy, Ph.D., stating that Trevelle's loss of control of his behavior is due to dysfunction in the family unit and parenting problems rather than "an inborn problem." (Tr. 20, 327-28, 348). Therefore, substantial evidence supports the ALJ's finding that Trevelle has less than marked limitations in social functioning and concentration, persistence and pace.
CONCLUSION
Accordingly, substantial evidence supports the ALJ's conclusion that Trevelle's impairments do not meet the criteria of Listing 112.11. The ALJ's determination that Trevelle had no limitations in the areas of personal functioning and had less than marked limitations with cognition/communication, social functioning and concentration, persistence and pace is supported by substantial evidence.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that plaintiffs motion for summary judgment be DENIED and that her complaint dismissed with prejudice.
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).