Ebert v. Kijakazi

• Docket Number: 3:21-cv-35-JTA (WO)
• Decision Date: 27 June 2022
• Parties: KAREN EBERT obo SE, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Alabama

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KAREN EBERT obo SE, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 3:21-cv-35-JTA (WO)

United States District Court, M.D. Alabama, Eastern Division

June 27, 2022

MEMORANDUM OPINION AND ORDER

JERUSHA T. ADAMS UNITED STATES MAGISTRATE JUDGE

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), the plaintiff, Karen Ebert (“Ebert”) on behalf of her minor daughter, SE, brings this action to review a final decision by the Commissioner of Social Security (“Commissioner”). (Doc. No. 1.)^[1] The Commissioner denied Ebert's claim for Supplemental Security Income (“SSI”). The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 10, 11.)

After careful scrutiny of the record and the briefs submitted by the parties, the Court finds that the decision of the Commissioner is due to be REVERSED and REMANDED.

I. PROCEDURAL HISTORY AND FACTS

SE was born on June 1, 2011 and was a school aged child at the time of the administrative hearing held on April 1, 2020. (R. 100 101.)^[2] She is currently in the third grade. (R. 106.) She has not engaged in substantial gainful activity since the application date of November 13, 2018. (R. 101.) She alleges a disability onset date of August 1, 2014, due to attention deficit hyperactivity disorder (“ADHD”), asthma, heart murmur, and high QT. (R. 106, 328.)

On November 13, 2018, Ebert, on behalf of SE, applied for a period of SSI under Title XVI of the Social Security Act (“the Act”) (42 U.S.C. §§ 1381, et seq.). (R. 100, 265.) The application was denied on February 13, 2019 (R. 100, 222-225), and Ebert requested an administrative hearing (R. 100, 227).

Ebert and SE participated in a telephonic administrative hearing on April 1, 2020. Because Ebert was unrepresented, the Administrative Law Judge (“ALJ”) explained her right to have an attorney or non-attorney representative. (R. 117.) After Ebert stated that she understood those rights and “chose not to [have a representative],” the ALJ proceeded to the hearing. (R. 117-18.) The ALJ denied Ebert's request for benefits in a decision dated August 4, 2020. (R. 97-112.) On August 27, 2020, Ebert, then represented by counsel, sought review by the Appeals Council on the grounds that the record was not completely developed on the date of the administrative hearing. (R. 263.) On August 31, 2020, the Appeals Council informed Ebert that it would accept additional evidence that would be considered if it was new, material, and related to the period on or before the date of the ALJ's decision. (R. 89.)

Ebert submitted the following documents to the Appeals Council.

(1) September 18, 2020 - Child's RFC Questionnaire, completed by Dr. Christy McNair on September 12, 2020 (R. 27-28);

(2) October 6, 2020 - Records from the Sibley Heart Center dated September 18 and 19, 2020 (R. 9-26);

(3) (a) November 10, 2020 - School records from L.K. Moss Elementary School in Buena Vista, Georgia, dated September 9, 2020 through October 28, 2020 (R. 34-73);

(b) November 10, 2020 - Psychological evaluation conducted on September 9, 2020 and September 15, 2020 by the Chattahoochee-Flint Regional Educational Service Agency (R. 74-88);

(4) November 30, 2020 - Medical records from Zoe Pediatrics dated October 22, 2019 through October 21, 2020 (R. 131-81);

(5) September 29, 2020 - School records from the Marion County (Georgia) Board of Education dated October 9, 2019 through October 31, 2019 (R. 182-96); and

(6) September 29, 2020 - Medical records from Rivertown Psychiatry dated October 17, 2017 through July 26, 2018 (R. 198-204).

On December 14, 2020, the Appeals Council found no reason to review the ALJ decision and informed Ebert that the ALJ decision was the final decision of the Commissioner.^[3] (R. 1-3.) On January 15, 2021, Ebert filed the instant action appealing the decision of the Commissioner. (Doc. No. 1.)

II. STANDARD OF REVIEW

Judicial review of SSI claims is limited to whether the Commissioner's decision is supported by substantial evidence and whether the correct legal standards were applied. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). “The Commissioner's factual findings are conclusive” when “supported by substantial evidence.” Doughty, 245 F.3d at 1278. “Substantial evidence” is more than a mere scintilla and is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1346, 1349 (11th Cir. 1997)). Even if the Commissioner's decision is not supported by a preponderance of the evidence, the findings must be affirmed if they are supported by substantial evidence. Id. at 1158-59; see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The court may not find new facts, reweigh evidence, or substitute its own judgment for that of the Commissioner. Bailey v. Soc. Sec. Admin., Comm'r, 791 Fed.Appx. 136, 139 (11th Cir. 2019); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004); Dyer, 395 F.3d at 1210. However, the Commissioner's conclusions of law are not entitled to the same deference as findings of fact and are reviewed de novo. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).

III. STANDARD FOR DETERMINING DISABILITY

A claimant (or his parent or guardian) bears the burden of providing evidence that he is disabled within the meaning of the Social Security Act. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a), (c); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). A child under the age of 18 is considered disabled and eligible for SSI under the Act if the child 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 Rodriguez obo R.C. v. Berryhill, No. 2014458, 2021 WL 5023951, at *3 (11th Cir. Oct. 29, 2021) (“A child under the age of eighteen is considered disabled, and thus entitled to benefits including supplemental security income, if the child has ‘a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations ... that has lasted or can be expected to last for a continuous period of not less than 12 months.' ”) (quoting 20 C.F.R. § 416.906). A “marked and severe functional limitation” is one that has “a level of severity that meets, medically equals, or functionally equals” the Listing of Impairments (“Listing”) found at 20 C.F.R. § 404, subpart P, appendix 1. 20 C.F.R. § 416.902(h), (o).

Disability under the Act is determined under a three-step sequential evaluation process. 20 C.F.R. § 416.924(a). At step one, the Commissioner determines whether the claimant is performing substantial gainful activity. See 20 C.F.R. § 416.972. If the individual is not, the analysis proceeds to the second step. See 20 C.F.R. § 416.924(b).

At the second step, the Commissioner determines whether the claimant has a medically determinable impairment or a combination of impairments that is severe. See 20 C.F.R. § 416.924(a). A medically determinable impairment or combination of impairments is not severe if it is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations. See 20 C.F.R. § 416.924(c). If the child claimant does not have a severe medically determinable impairment or combination of impairments, he is not disabled. If the child claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step. See 20 C.F.R. § 416.924(a).

At step three, the Commissioner determines whether the child claimant has an impairment or combination of impairments that meets, medically equals, or functionally equals the severity of a Listing. Id. Here, the Commissioner considers the combined effect of all medically determinable impairments, including those that are not severe. See 20 C.F.R. §§ 416.923, 416.924a(b)(4), 416.926a(a), (c). If the child claimant has an impairment or combination of impairments that meets, medically equals, or functionally equals the severity of a Listing, and it has lasted or is expected to last for a continuous period of at least 12 months, he is presumed to be disabled. If not, the child claimant is not disabled. See 20 C.F.R. § 416.924(d).

A claimant's impairment meets or medically equals a Listing only where it “satisfies all of the criteria of that [L]isting, including any relevant criteria in the introduction [section].” 20 C.F.R. § 404.1525(c)(3). To satisfy all the criteria of a Listing, a claimant must (1) have a diagnosis included in the Listings and (2) provide medical reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (citations omitted); see also 20 C.F.R. §§ 416.925, 416.926. “For a claimant to show that his impairment matches a [L]isting, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

If a child's impairment or combination of impairments does not meet or medically equal a Listing, the ALJ will evaluate whether a child's impairment functionally equals a Listing by considering the following six broad functional areas, called domains: (1) acquiring and using information (2) attending and completing tasks; (3) interacting and relating...