Tomisha W. ex rel. T.M.W. v. Saul

• Decision Date: 27 March 2020
• Docket Number: Case No. 3:18-cv-2357-BT
• Parties: TOMISHA M. W., on behalf of minor T.M.W., Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Northern District of Texas

TOMISHA M. W., on behalf of minor T.M.W., Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.

Case No. 3:18-cv-2357-BT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

March 27, 2020

MEMORANDUM OPINION AND ORDER

Plaintiff Tomisha M. W.,¹ on behalf of her minor child T.M.W., filed a civil action seeking judicial review pursuant to 42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of Social Security. For the reasons explained below, the Court AFFIRMS the Commissioner's decision.

Background

Plaintiff filed an application for supplemental security income benefits under Title XVI of the Social Security Act on behalf of T.M.W., who was born on May 22, 2014, alleging he is disabled due to chronic airway disease. Administrative Record 20, 40, 176 (A.R.) (ECF No. 15-1); Pl.'s Br. 5 (ECF No. 18). On June 1, 2015, the date Plaintiff filed her application, T.M.W. was an older infant under the socialsecurity regulations. A.R. 40. After Plaintiff's application was denied initially and on reconsideration, she requested a hearing before an administrative law judge (ALJ). That hearing took place on April 21, 2017, in Dallas, Texas, when T.M.W. was 2 years old. Id. 18, 20.

The ALJ found that T.M.W. was not disabled and, therefore, not entitled to supplemental security income. Id. 48. At step one of the three-step sequential evaluation,² the ALJ found that T.M.W. is a minor child who had never performed substantial gainful activity and, thus, had not engaged in substantial gainful activity since June 1, 2015. Id. 40. At steps two and three, the ALJ found that T.M.W. had the severe impairment of asthma; nonetheless, the ALJ found that his impairment, or combination of impairments, did not meet or equal the severity of any listed impairment in the social security regulations. Id.

Plaintiff appealed the ALJ's decision to the Appeals Council. The Council affirmed. Id. 1. Plaintiff then filed this action in federal district court, arguing the ALJ erred in finding T.M.W. not disabled because (1) he failed to consider T.M.W.'s medically determinable impairments of eczema/dermatitis and allergies, and (2) he improperly evaluated T.M.W.'s functional limitations. Pl.'s Br. 5, 11, 17.

Legal Standards

Judicial "review of Social Security disability cases 'is limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record as a whole, and (2) whether the Commissioner applied the proper legal standard.'" Copeland, 771 F.3d at 923 (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)); see also Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citation omitted). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted); see also Copeland, 771 F.3d at 923 (quoting Perez, 415 F.3d at 461) ("Substantial evidence is 'more than a mere scintilla and less than a preponderance.'"). The Commissioner, and not the courts, resolves conflicts in the evidence; thereafter, the Court may not "reweigh the evidence or try the issues de novo." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995) (per curiam) (citing Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (per curiam)). Accordingly, the Court may not substitute its own judgment for the Commissioner's, and it may affirm onlyon the grounds that the Commissioner stated to support his decision. Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (per curiam)).

Analysis

I.

Plaintiff first argues the ALJ erred because "[t]he record in this case clearly establishes the medically determinable impairments of eczema/dermatitis and allergies; however the ALJ did not evaluate whether such impairments constituted a severe impairment," such that he erred "under the Stone standard." Pl.'s Br. 11, 16. However, Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), which concerns an adult standard for evaluating severity based on the impact an impairment has on an individual's ability to work, is inapposite to this case.

At step two of the five-step sequential evaluation process for adults, the ALJ must "consider the medical severity of [the claimant's] impairment(s)."³ 20 C.F.R. § 404.1520(a)(4)(ii), (c). To comply with this regulation, the ALJ "must determine whether any identified impairments are 'severe' or 'not severe.'" Herrera v. Comm'r of Soc. Sec., 406 F. App'x 899, 903 (5th Cir. 2010) (per curiam) (citing 20C.F.R. § 404.1520(a)(4)(ii), (c)). Under the Commissioner's regulations, a severe impairment is "any impairment or combination of impairments which significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Finding that a literal application of this regulation would be inconsistent with the Social Security Act, the Fifth Circuit held that an impairment is not severe "only if it is a slight abnormality having such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work." Stone, 752 F.2d at 1101, 1104-05 (brackets and citations omitted). Additionally, a severity determination may not be "made without regard to the individual's ability to perform substantial gainful activity." See id. at 1104. To ensure that the regulatory standard for severity does not limit a claimant's rights, the Fifth Circuit held in Stone that it would assume that the "ALJ and Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to this opinion or another of the same effect, or by an express statement that the construction we give to 20 C.F.R. § 404.1520(c) is used." Id. at 1106; accord Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

Stone, however, dealt with a regulation and statute that was not tailored specifically to child disability. The Fifth Circuit noted this distinction and recognized that Stone's non-severity analysis applies only to adult claimants. See Burnside ex rel. Burnside v. Bowen, 845 F.2d 587, 591 (5th Cir. 1988) ("Stone's five-step evaluation procedure applies only to adult claimants, who must complywith regulations set out in 20 C.F.R. § 416.920, not to child claimants, whose disabilities are evaluated according to the procedure set out in [child disability regulations].") (emphasis in original), abrogated on other grounds by Sullivan v. Zebley, 493 U.S. 521, 527 (1990), superseded by statute as stated in Colon v. Apfel, 133 F. Supp. 2d 330, 339 (S.D.N.Y. 2001).⁴ For children, the statutory definition of disability requires a finding that the impairment "results in marked and severe functional limitations"—a requirement omitted from the general definition of disability. Compare 42 U.S.C. § 1382c(a)(3)(C)(i) with § 423(d) and § 1382c(a)(3)(A)-(B). This standard is more stringent than the standard for adults. Denton ex rel. Denton v. Astrue, 2008 WL 763209, at *8 (N.D. Tex. Mar. 21, 2008) ("Defendant correctly states that the standard for disability for a child is not only more stringent than that for an adult, but is more stringent than the previous children's disability evaluation standard."), aff'd, 295 F. App'x 702, 702 (5th Cir. 2008) (per curiam). Similarly, the regulation for determining disability for children provides that an impairment is not severe if it "is a slight abnormality or a combination of abnormalities that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c). Unlike in Stone, where the Fifth Circuit found that a literal application of 20 C.F.R. § 404.1520(c) would be inconsistent with theSocial Security Act, this regulation is consistent with the statutory definition of disability applicable in child-disability cases.

Plaintiff has not shown that Stone applies in this child-disability case. And the ALJ's failure to consider any alleged impairment at step 2 under the Stone standard provides no basis for remand. Mapps ex rel. M.J. v. Astrue, 2010 WL 1946662, at *9 (N.D. Tex. Apr. 30, 2010); see also Goffney ex rel. B.L. v. Astrue, 2011 WL 1297184, at *5-6 (S.D. Miss. Mar. 31, 2011) (holding the ALJ's use of the severity standard from 20 C.F.R. § 416.924, the regulation governing disability standard for claimants under age 18, was the proper legal standard).

Further, although the ALJ did not specifically discuss T.M.W.'s eczema/dermatitis and allergies at step 2 of the sequential analysis, the written decision reflects that he "considered all the relevant evidence in the case record," including "objective medical evidence and other relevant evidence from medical sources; information from other sources, such as school teachers, family members, or friends; the claimant's statements (including statements from the claimant's parent(s) or other caregivers); and any other relevant evidence in the case record, including how the claimant functions over time and in all settings," as required by 20 C.F.R. § 416.924(a). A.R. 40-41. Additionally, in making his findings regarding functional equivalence, the ALJ "assessed the interactive and cumulative effects of all of the claimant's medically determinable impairment(s), including any impairments that are not 'severe' in all of the affected domains." Id. 41. And here, the record indicates doctors advised Plaintiff to use Aveeno moisturizing cream,dermasmooth, and hydrocortisone 2% to treat T.M.W.'s dermatitis/eczema. Def.'s Br. 4 (ECF No. 21); A.R. 554, 673, 696. Plaintiff reported that this treatment controlled T.M.W.'s eczema. A.R. 554. Similarly, Plaintiff stated that Zyrtec, Flonase, and Singulair reasonably control T.M.W.'s nasal allergies, unless she forgets to give him his medication. Id. 671, 694. Because "a medical condition that...