Opinion
Civil Action No. 00-2639, Section "R" (2)
February 7, 2002
ORDER AND REASONS
On August 31, 2001, the Court adopted the Report and Recommendation of the United States Magistrate Judge and dismissed plaintiff's case with prejudice. The Court mistakenly believed that plaintiff did not object to the Magistrate Judge's Reports and Recommendation, when in fact, plaintiff had filed a motion in opposition on August 10, 2001. Plaintiff alerted the Court of its error. Accordingly, the Court sua sponte grants a Rule 60(b)(1) motion, vacating its August 31, 2001 order, and now reviews the case anew.
I. Background
On May 14, 1998, Andrea Bridges, on behalf of her five year old son, Trevelle, filed for supplemental social security income under Title XVI of the Social Security Act, alleging that Trevelle became disabled on June 12, 1996 due to learning disorders, speech problems, weight problems and Attention Deficit Disorder.
Trevelle's application was initially denied. On appeal, the Administrative Law Judge (ALJ) held a hearing on April 21, 1999. On May 26, 1999, the ALJ issued an opinion finding that Trevelle was not disabled. Specifically, the ALJ found that while Trevelle's attention deficit hyperactivity disorder constituted a severe impairment, it did not meet or medically equal the requirements of Listing 112.11. (Tr. 21.) Plaintiff requested review with the Appeals Council, which denied plaintiff's request for review on July 13, 2000, making the ALJ's decision the final decision of the Commissioner. 42 U.S.C. § 405 (g).
Plaintiff next sought judicial review of the Commissioner's decision, pursuant to the Social Security Act, 42 U.S.C. § 405 (g) On June 7, 2001, United States Magistrate Judge Joseph Wilkinson recommended that defendant's motion for summary judgment be granted and that plaintiff's suit be dismissed. Plaintiff objects to the Magistrate Judge's conclusions. Plaintiff contends that the Magistrate Judge erroneously upheld the ALJ's determination that Trevelle's impairment did not meet listing 112.11 because this conclusion was not supported by substantial evidence.
Section 405(g) provides in pertinent part that "[a]ny individual after any final decision of the Commissioner of Social Security may obtain a review of such decision by a civil action commenced within sixty days . . ."
II. Standard of Review
This Court reviews objected portions of the Magistrate Judge's Report and Recommendations de novo. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.Proc. 72(b). The function of this Court on judicial review under 42 U.S.C. § 405 (g), however, is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision, and whether the Commissioner applied the appropriate legal standards in reaching the decision. See Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The Commissioner's final decision must be upheld if it is supported by substantial evidence. See 42 U.S.C. § 405 (g). Substantial evidence is more than a scintilla, less than a preponderance, and such that a reasonable mind might accept a conclusion based thereon. See Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (internal quotations omitted); Spellman, 1 F.3d at 360. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings exist to support the Commissioner's decision. See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The Court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. See Spellman, 1 F.3d at 360; Martinez, 64 F.3d at 173. Conflicts in evidence are for the Commissioner to resolve, not the courts. See Patton v. Schweker, 697 F.2d 590, 592 (5th Cir. 1983)
III. Discussion
With respect to the Magistrate Judge's conclusions regarding plaintiff's impairments, the Court finds that the Magistrate Judge's findings accurately reflect the evidence in the record. The Court also finds that the Magistrate Judge adequately and properly addressed the issues plaintiff raises in opposition.
The issue is whether Trevelle is "disabled" under the definition promulgated by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which redefined the eligibility standard for children. It provides:
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter 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. § 1383c(a)(3)(C)(i)
The Commissioner sets forth a three-part procedure for making a disability determination. First, the claimant must not be presently working at an substantial gainful activity. Second, the claimant must have an impairment or combination of impairments that are severe. Third, the impairment must meet or equal an impairment listed in Appendix 1, Subpart P, Part 404 of the regulations.
In this case, the ALJ found that plaintiff satisfied the first two parts of the test, but did not suffer from Attention Deficit Hyperactivity Disorder to such a degree that met or equaled the requirements for Listing 112.11. 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.
Paragraph B2 lists the following age-group criteria:
a. Marked impairment in age-appropriate cognitive/communicative function, documented by medical findings . . .; or
b. Marked impairment in age-appropriate social functioning, documented by history and medical findings . . .; or
c. Marked impairment in personal/behavioral function, as evidenced by;
(1) Marked restriction of age-appropriate activities of daily living, documented by history and medical findings. . . .; or
(2) Persistent serious maladaptive behaviors destructive to self, others, animals, or property, requiring protective intervention; or
d. Deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner.Id. at § 112.02B2.
Plaintiff objects to this finding and claims that the medical evidence supports a contrary finding
B. Medical Evidence
The Court has reviewed the medical evidence and the Magistrate Judge's summary of the medical evidence, and adopts the Magistrate Judge's characterization of the medical evidence.
C. Analysis
In her objection, plaintiff points to medical evidence in the record to support her position that Trevelle's level of inattention, hyperactivity and impulsiveness reaches the level of marked limitation, satisfying subpart A of the listing, and that he has marked limitations in social functioning and concentration, persistence and pace, therefore satisfying subpart B. (Pl.'s Objection, at 3-6.)
The Court finds that while there is evidence of Trevelle's inattention, hyperactivity and impulsiveness, there is nonetheless substantial evidence in the record supporting the ALJ's conclusion that these did not rise to the level of marked limitations. In his decision, the ALJ noted that the State Agency Medical Consultants concluded that Trevelle's impairments were severe, but did not meet, medically equal or functionally equal the severity of a listing. (Tr. 19, 336, 340.) The ALJ determined that the evidence indicated that Trevelle's behavioral problems were due to family dysfunctions, citing to the medical opinions of Brian Murphy, Ph.D., and Dr Hava, Trevelle's treating physician. (Tr. 17, 19.) Murphy found that "[t]here is really no structure or discipline, much less consistence and/or stability on the home front, all of which contribute to this boy's problems." (Tr. 328.) Murphy suggested that Trevelle was in need of "structure, discipline, consistence, and stability . . . on the home front." (Tr. 332.) He also noted that he did not believe that Trevelle had an "inborn problem." (Tr. 328.) Dr. Hava also recommended changes in parenting techniques to improve Trevelle's behavior. (Tr. 352.) The ALJ further stated that Trevelle had been noncompliant with his prescribed medication. Dr. Frank Hava, Trevelle's treating physician noted that Trevelle had been off his medication for seven months. (Tr. 19; 348.) The Court agrees with the Magistrate Judge's determination that "the ALJ reasonably could have concluded that Trevelle may not have been taking his medication regularly when the form was completed." (Report and Rec., at 13) (citing Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987) ("A medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling.")).
Similarly, while the Court finds that the record shows evidence that Trevelle has limitations in social functioning and concentration, persistence and pace, there is substantial evidence in the record supporting the ALJ's conclusion that they do not rise-to the requisite level. As noted before, the ALJ determined that Trevelle's social limitations were due to his family environment. That determination is supported by the reports of Lloyd Mire, PhD., and Dr. Blundell. (Tr. 217, Tr. 227.) Further, the Court agrees with the Magistrate Judge's finding that Trevelle "responds to direction and authority in a more structured environment and to behavior modification." (Report and Rec. 9.) Kim Terrebonne, Trevelle's noncategorical preschool teacher noted that Trevelle's behavior was less aggressive at school than at home. (Tr. 314.) Further, examiner J. Sue Austin, Ph.D., found that Trevelle did not have significant deficits in his daily functioning. (Tr. 313.) She also rated his concentration, persistence and pace as fair. ( Id.) Pediatrician Francis N. Donner, Jr., found that Trevelle was not currently functionally disabled (Tr. 309.)
A review of the record as a whole, therefore, shows substantial evidence to support the ALJ's conclusion that Trevelle's condition was not sufficiently severe to satisfy the requirements of the regulations. As the Court's function is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact, the Court dismisses plaintiff's complaint with prejudice Loza v. Apfel, 219 F.3d 378, 379 (5th Cir 2000).
IV. Conclusion
For the foregoing reasons, the Court rejects plaintiff's objections. The Court approves and adopts the Magistrate Judge's Report and Recommendation, grants the Commissioner's Motion for Summary Judgment, denies plaintiff's motion for summary judgment, and dismisses plaintiff's claims.