Taylor ex rel. L.T. v. Colvin

• Decision Date: 10 October 2016
• Docket Number: CIVIL ACTION NUMBER: 15-07169 SECTION: "G"(5)
• Parties: SHERRY TAYLOR o/b/o L.T. v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
• Court: U.S. District Court — Eastern District of Louisiana

SHERRY TAYLOR o/b/o L.T. v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

CIVIL ACTION NUMBER: 15-07169 SECTION: "G"(5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

October 10, 2016

REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. §636(b) and Local Rule 73.2(B), this matter comes before the Court on the parties' cross-motions for summary judgment following a decision of the Commissioner of the Social Security Administration denying Plaintiff's application for Supplemental Security Income ("SSI") benefits. (Rec. doc. 15, 20).

On August 6, 2013, Sherry Taylor, mother of the Plaintiff-in-interest herein, L.T., filed an application for SSI benefits on behalf of the minor child, alleging disability as of July 1, 2010. (Tr. pp. 139-144). In a "Disability Report-Child" form that appears in the record below, Plaintiff's disabling conditions were identified as ADHD and autism. (Tr. p. 173). Plaintiff's application for SSI benefits was denied at the initial level of the Commissioner's administrative review process on September 24, 2013. (Tr. pp. 104-106). Pursuant to Plaintiff's request, a hearing de novo before an Administrative Law Judge ("ALJ") went forward on May 30, 2014 at which Plaintiff, Ms. Taylor, and Cynthia Deviney, Plaintiff's therapist/counselor, appeared and testified.¹ (Tr. pp. 107-109, 110-112, 32-95). On July 22, 2014, the ALJ issued a written decision in which he concluded that Plaintiff was notdisabled within the meaning of the Social Security Act. (Tr. pp. 12-31). The Appeals Council ("AC") subsequently denied Plaintiff's request for review of the ALJ's decision on October 26, 2015, thus making the ALJ's decision the final decision of the Commissioner. (Tr. pp. 5-8). It is from that unfavorable decision that the Plaintiff seeks judicial review pursuant to 42 U.S.C. §§405(g) and 1383(c)(3).

In her cross-motion for summary judgment, Plaintiff generally argues that the decision of the ALJ is not supported by substantial evidence. (Rec. doc. 15-3, p. 6). Relevant to the resolution of that issue are the following findings that were made by the ALJ:

1. The claimant was born on May 11, 2007. Therefore, he was a school-age child on July 27, 2013, the date [the] application was filed, and is currently a school-age child (20 CFR 416.926a(g)(2)).

2. The claimant has not engaged in substantial gainful activity since July 27, 2013, the application date (20 CFR 416.924(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: Attention Deficit Hyperactivity Disorder (ADHD) and pervasive development disorder (20 CFR 416.924(c)); Stone v. Heckler, 752 F.2d 1099 (5^th Cir. 1985).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).

5. The claimant does not have an impairment or combination of impairments that functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).

6. The claimant has not been disabled, as defined in the Social Security Act, since July 27, 2013, the date the application was filed (20 CFR 416.924(a)).

(Tr. pp. 18, 27).

Judicial review of the Commissioner's decision to deny SSI benefits is limited under 42 U.S.C. §405(g) to two inquiries: (1) whether substantial evidence of record supports the Commissioner's decision, and (2) whether the decision comports with relevant legal standards. Anthony v. Sullivan, 954 F.2d 289, 292 (5^th Cir. 1992); Villa v. Sullivan, 895 F.2d 1019, 1021 (5^th Cir. 1990); Fraga v. Bowen, 810 F.2d 1296, 1302 (5^th Cir. 1987). If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. 42 U.S.C. §405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420 (1971). A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings exist to support the Commissioner's decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5^th Cir. 1988). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Jones v. Heckler, 702 F.2d 616, 620 (5^th Cir. 1983). The Court may not reweigh the evidence or try the issues de novo, nor may it substitute its judgment for that of the Commissioner. Cook v. Heckler, 750 F.2d 590, 592 (5^th Cir. 1983). Conflicts in the evidence are for the Commissioner to resolve, not the courts. Patton v. Schweiker, 697 F.2d 590, 592 (5^th Cir. 1983).

A claimant, whether a child or an adult, bears the burden of proving that he is disabled within the meaning of the Social Security Act. Fraga, 810 F.2d at 1301; 20 C.F.R. §416.912(a). In making a disability determination on a child, the Commissioner uses the three-step sequential analysis set forth in 20 C.F.R. §416.924, as follows:

1. Determine whether the child engaged in substantial gainful activity during the relevant time frame and, if not;

2. Determine whether the child has a medically determinable severe impairment and, if so;3. Determine whether the impairment meets, medically equals, or is functionally equal to an impairment set forth in the Listing of Impairments, Appendix 1, Subpart P, Part 404.

See Verrett v. Commissioner of Social Security, No. 99-CV-3647 2001 WL 179922 at *1 n. 7 (E.D. La. Feb. 20, 2001)

In determining whether a child's impairment is functionally equivalent to one of those set forth in the Listing of Impairments, the Commissioner considers the child's limitations in the following six domains: acquiring and using information; attending and completing tasks; interacting and relating with others; moving about and manipulating objects; caring for oneself; and health and physical well-being. 20 C.F.R. §416.926a(b)(1). To be functionally equal to a listing and thus of listing-level severity, the child must have "marked" limitations in two of the six domains or an "extreme" limitation in one domain. 20 C.F.R. §416.926a(a). In evaluating a child's ability to function in each domain, the Commissioner is to consider: 1) the activities the child is able to perform; 2) the activities the child is not able to perform; 3) which of the child's activities are limited or restricted compared to children of the same age who do not have impairments; 4) whether the child has difficulty with activities at home, in childcare, at school, or in the community; 5) whether the child has difficulty independently initiating, sustaining, or completing activities; and 6) what kind of help the child needs to do activities, how much, and how often. 20 C.F.R. §416.926a(b)(2); Maps ex rel. M.J. v. Astrue, 09-CV-2226, 2010 WL 1946662 at *8 (N.D. Tex Apr. 30, 2010), adopted, 2010 WL 1948363 (N.D. Tex. May 13, 2010).

As noted earlier, Plaintiff challenges the Commissioner's decision to deny her son SSI benefits on one broad ground, that "[t]he opinion of the Administrative Law Judge is notsupported by substantial evidence." (Rec. doc. 15-3, p. 6). Under the heading of that broad challenge, Plaintiff argues that the ALJ erred in failing to find that L.T. was markedly limited in the functional domains of acquiring and using information, attending and completing tasks, and interacting and relating with others as evidenced by substandard test scores and his day-to-day functioning. (Id.). Plaintiff first cites at some length the testimony that Ms. Taylor gave at the administrative hearing regarding L.T.'s aggressive tendencies at home and at school and the medication, therapy, and counseling that he receives to address his level of functioning. (Id. at pp. 6-7). Next, Plaintiff points to the results of various tests that were performed as part of a comprehensive psychological evaluation that was conducted at Children's Hospital on August 27, 2012, as a result of which L.T. was found to be eligible for special education services. (Id. at pp. 7-8). Although the ALJ noted in his written decision that an Individualized Educational Plan ("IEP") affirmed the results of various standardized assessments indicating clinical significance for certain ADHD symptoms, Plaintiff argues that the ALJ failed to consider how the August 27, 2012 test results affected L.T.'s functioning in each applicable domain. (Id. at pp. 8-9). Indeed, Plaintiff observes that the test scores in question were not mentioned anywhere in the Disability Determination Explanation of the state agency medical consultants who reviewed Plaintiff's file at the initial level of the Commissioner's administrative review process or in the ALJ's written decision. (Tr. pp. 96-102, 12-13).

For her part, the Commissioner charges Plaintiff with ignoring almost all of the evidence cited by the ALJ, instead focusing on hearing testimony and the clinical test results of August 27, 2012. (Rec. doc. 20-1, p. 5). With respect to the administrative hearing testimony, the Commissioner points to various Fifth Circuit cases that stand for the ratherunremarkable proposition that subjective evidence need not take precedence over objective evidence. (Id.). Relatedly, the Commissioner argues that some of the test results cited by Plaintiff were based upon subjective reports from, rather than direct observations of, L.T. and that in the latter circumstance, the testing individual found no significant delays in developmental functioning. (Id. at pp. 5-6). The Commissioner further argues that the ALJ made his decision based upon the totality of the evidence and not just the evidence that Plaintiff believes was favorable to his case. (Id. at p. 6). Finally, while acknowledging the existence of Administration Regulations and policy indicating that ADHD may cause functional limitations in multiple domains, the Commissioner recites the well-established principle that the mere existence of an impairment or its functional limitations is not disabling per se...