SONJA F. BIVINS, Magistrate Judge.
Plaintiff Venetta Cox ("Plaintiff") brings this action on behalf of her minor child, J.J.R., seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for child supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1381
Plaintiff protectively filed an application for supplemental security income benefits on behalf of her son J.J.R. (hereinafter "J.R.") on November 5, 2007
The parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 1383(c)(3).
J.R. was born on November 3, 1997. He was 10 years old and in the fourth grade when his application was submitted. When the administrative hearing was conducted on August 19, 2009, J.R. was 11 years old and in the fifth grade. (Tr. 39, 79, 123, 136). At the hearing, J.R.'s mother testified that he repeated first grade and that for the past two years, he has been in special education classes. (Tr. 40-41). According to Plaintiff, J.R. use to make "Ds" and "Es", but he began receiving assistance through the Individualized Education Program ("IEP"), and is currently earning "Bs" and "Cs". (
Plaintiff testified that J.R. and his younger sister get along but that they fight and argue "like siblings do." (
Plaintiff testified that J.R. sees a therapist and nurse practitioner at the LeMoyne Center monthly and is treated by a neurologist for seizures, which have been controlled by medication. (
In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied.
The Personal Responsibility and Work Opportunity Act of 1996, which amended the statutory standard for children seeking supplemental security income benefits based on disability, became effective on August 22, 1996. See Pub. L. No. 104-193, 110 Stat. 2105 § 211(b)(2) (1996) (codified at 42 U.S.C. § 1382c). The definition of "disabled" for children is:
At step one, a child's age/work activity, if any, are identified to determine if he has engaged in substantial gainful activity. At step two, the child's physical/mental impairments are examined to see if he has an impairment or combination of impairments that are severe. Under the regulations, a severe impairment is one that is more than "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c). To the extent the child is determined to have a severe impairment, at step three, the Commissioner must then determine whether the impairment or combination of impairments meet or is medically or functionally equal to an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P, and otherwise satisfies the duration requirement. 20 CFR § 416.924.
If the ALJ finds that the impairments are severe, but do not meet the listing requirements, he may find that the impairments result in limitations that functionally equal the listings
In this action, the ALJ issued an unfavorable decision on September 16, 2009. The ALJ determined that while J.R. has the severe impairments of attention deficit hyperactivity disorder and SP Epilepsy, they do not meet, medically equal or functionally equal the criteria for any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P. (Tr. 15). The ALJ also found that J.R. has "less than marked" limitations in his ability to acquire and use information, attend and complete tasks, care for himself, and health and physical well-being, and that he does not have any limitations in interacting and relating with others, or moving about and manipulating objects. (Tr. 19-25). Accordingly, the ALJ concluded that because J.R. does not have an impairment or combination of impairments that result in either "marked" limitations in two domains of functioning or "extreme" limitation in one domain of functioning, he is not disabled under the Act. (Tr. 23-24).
The academic records reflect that during all times relevant, J.R. was attending John Will Elementary School. (
J.R. was also administered the Wechsler Individual Achievement Test II ("WIAT II"), and received the following scores: 80 Spelling; 57 Written Expression; and 63 Written Composite. The record reflects that J.R. was also administered other tests, including the Behavior Assessment System for Children (BASC-2), which is used to evaluate the behavior of children and young adults. Overall, J.R. was rated in the at risk range on the Behavior Symptoms Index, which includes hyperactivity, aggression, depression, atypicality, withdrawal and attention problems. (
The school records reflect that IEP meetings were conducted in April/May 2007 to determine if J.R. was eligible for the program based on concerns regarding his written expression and attention span. (
During an IEP Team meeting in September 2008, J.R.'s resource teacher, Mr. Oglesby, reported that J.R. needed help in reading and needed a reading goal. J.R.'s classroom teacher, Ms. Brubeck, also reported that J.R. had problems with reading and attention. (
In an undated "student narrative," Mr. Oglesby, J.R.'s special education teacher, reported that he had worked with J.R. since August 15, 2008, and that he and J.R.'s classroom teacher, Ms. Brubeck, agree that he should be seated with few distractions. He also noted that J.R. began to pout each time something did not go his way, that J.R.'s homework and assessments began to deteriorate, and that J.R. began to cry uncontrollably whenever he was reprimanded. (Tr. 226).
Likewise, Ms. Brubeck, J.R.'s classroom teacher, reported that J.R. had been her student since August 2008, and that his maturity level was "well below" his classmates. She also noted that he continues to suck his thumb, that he is very easily upset and cries frequently, and that he goes into "strange moods" where he shouts or makes animal noises. She noted that math is J.R.'s strength and that he typically does better in math than many of the other children in the class. (
In an IEP student profile covering February 2009 to February 2010, it was noted that J.R. had shown growth based on his classroom scores, Star test, and the Brigance Diagnostic Test for comprehension; however, his reading score for the second quarter was one point less than the first quarter. The profile listed J.R.'s strengths as: vocabulary knowledge and comprehending functional and textual information, although he has difficulty with comprehending literary/recreational materials, identifying important details in textual/informational materials, and decoding unfamiliar and multisyllabic words. The profile also noted that J.R. is easily distracted in the classroom, that his mother reported that he gets easily frustrated at home when not on medication, and that his behavior causes learning difficulties. The profile reflects that steps were taken to reduce distractions and that his IEP was modified to include accommodations in general education requirements. Also, J.R. would receive a regular grade in all areas except reading, where a basic grade would be given. (
The relevant medical evidence of record shows that Plaintiff was seen by Norma Mobley, M.D. (hereinafter "Dr. Mobley") on two occasions for a health maintenance exam. During the July 9, 2007 visit, Plaintiff reported that J.R. has a learning disability in reading comprehension and writing but he is "doing better" academically. Dr. Mobley noted that at age nine, J.R. was still sucking his thumb. (
The record contains treatment notes from the Mobile Mental Health Center ("MMHC") LeMoyne Center/Alta Pointe from April 2004 through at least June 2009. (Tr. 257-96, 304-12, 384-414, 423-38). J.R. was seen at the LeMoyne Center for outpatient individual, group, and family therapy. Psychological records for the year 2004 reveal a history of hyperactivity, sleeplessness, talking back to adults, school disruption, fidgeting, crying spells, temper tantrums, and inattentiveness. Plaintiff reported that she had to "stay on him to finish work" and that he appeared to be "in space" at times. (
Psychological records reflect that during a visit to LeMoyne on January 19, 2006, Plaintiff reported that J.R. was doing better in school but not at home. At that time he was taking Ritalin
The treatment notes for January and February 2007 reflect that J.R. was struggling with reading, impulsivity, and was "in trouble all the time." Plaintiff admitted to inconsistent management due to her own depression. She also reported that J.R. could not tolerate the 20 mg Daytrana patch because it caused appetite loss. His dosage was decreased to 15 mg, and his mother was encouraged to obtain special education testing and educational services through the school in order to address J.R.'s learning problems. (
The treatment notes for April and May 2007 reflect that J.R.'s was earning "A," "B," and "C" grades, that he was promoted to the third grade, and that his attention and hyperactivity had improved per his mom and his teacher. Plaintiff also reported that J.R. continues to have anger problems at home. (
The treatment records for the latter part of 2007 reflects that J.R. was now receiving special education services and tutoring assistance. J.R. reported that he liked school, that he received good grades in all subjects except math, and that he was received tutoring in math. His mother reported some improvement in his concentration and behavior at times. (
During a February 2008 counsel session, J.R. reported that his medication helps him. The therapist noted that J.R. was cooperative and appeared to listen but needed to be occasionally redirected to the assigned art project. (
Treatment notes from December 11, 2008 reflect that Plaintiff called in and reported that J.R. was more oppositional, defiant, irritable, and disruptive at the after-school program, and that he had been more irritable and easily angered at home, so Plaintiff stopped giving him his antidepressant and resumed the Daytrana 30 mg patch. According to Plaintiff, she saw some improvement after the switch. (
Treatment notes dated January 9, 2009 reflect that J.R. was not taking his medication because he was having difficulty swallowing pills. Additionally, notes from January 14, 2009, indicate that J.R. had been seizure free for the year. Later in the month, J.R. exhibited inappropriate behavior, which Plaintiff felt was due to a change in his medications. (
The therapist noted, on January 30, 2009, that J.R. had no grades less than a "B" and that his work/study skills had improved. She also noted that narratives from J.R.'s teachers indicated he was having "much more difficulty with attention-concentration" and that he had had some "very good" days. According to the notes, Plaintiff associated J.R.'s behavior problems with the Daytrana patch, and she reported that she had increased his dosage to two patches a day. Plaintiff was later informed that two patches could have lethal side effects. Plaintiff reported that the two patches were discontinued, and that no side effects were observed. (Tr. 403-405)
In March 2009, J.R.'s therapist noted that his academic performance continued to improve and that he usually completed homework, although he might need one-on-one attention from his special education teacher. During that day's therapy session, the therapist assisted him with anger management skills. (
William H. Simpson, Ph.D. (hereinafter "Dr. Simpson"), completed a Childhood Disability Evaluation on February 8, 2008, at the request of the Agency. Dr. Simpson determined that J.R.'s impairment or combination of impairments were severe but did not meet, medically equal, or functionally equal the listings. Dr. Simpson also opined that J.R. has "less than marked" limitations in acquiring and using information and attending and completing tasks, and no limitations in interacting and relating with others, moving about and manipulating objects, caring for oneself, and in health and physical well-being. In opining that J.R. has "less than marked" limitations in the domain of acquiring and using information, Dr. Simpson noted that the records indicate that J.R. was passing all of his subjects and that he does better in school if seated by his teacher and away from distractions. With respect to the domain of attending and completing tasks, Dr. Simpson noted that the records reflect that while J.R. does not finish things he starts and does not complete his homework, his IEP teacher reported he had no behavior problems when taking his medications on a regular basis. Additionally, in finding that J.R. has no limitations in the domain of interacting and relating to others, Dr. Simpson noted that J.R.'s activities of daily living indicate that he has friends his own age, that he can make friends and get along with his teachers, although his mother reports that he does not get along with her or other adults. (
Plaintiff was treated by Dr. Ilyas A. Shaikh at Gulf Neurology from March 2008 through at least July 2009. (Tr. 313-22, 379-83, 415-22, 439-48). Dr. Shaikh diagnosed J.R. with SP Epilepsy. During J.R.'s May 19, 2008 visit, Dr. Shaikh noted he was still having staring spells and problems with attention and restlessness. An MRI and other testing were normal. (
Plaintiff argues that the ALJ committed reversible error by failing to discuss the weight, if any, given to the opinions of two of J.R.'s teachers. According to Plaintiff, the ALJ failed to mention the narrative letters from Mr. Oglesby and Ms. Brubeck. Plaintiff argues that these letters do not describe a child who has no limitations in interacting and relating with the others, and these letters should have been considered in evaluating J.R. in the domains of acquiring and using information, attending and completing tasks, and interacting and relating to others. (Doc. 13). Plaintiff also argues that SSR 09-2p, 2009 SSR LEXIS 2 require the ALJ to weigh the opinions of J.R.'s teachers when assessing his limitations. (Doc. 13 at 5).
In his opposition, the Commissioner acknowledges that under the regulations, the observations of teachers, as "other sources," are important when evaluating the severity of a child's impairments. The Commissioner argues, however, that Ms. Brubeck and Mr. Oglesby's narratives do not offer opinions about J.R.'s functional abilities; thus, they are not acceptable non-medical "opinions." Additionally, the Commissioner argues that even if the ALJ should have discussed the teacher narratives, any error was harmless because the ALJ specifically stated he considered all of the evidence in the record, and the ALJ is not required to discuss every piece of evidence. (Doc. 14).
Based upon a careful review of the record, the undersigned finds that the ALJ's failure to discuss the narrative letters provided by Mr. Oglesby and Ms. Brubeck was not error. Rather, the ALJ's decision reveals that he carefully considered all the relevant evidence, and his decision that J.R. is not disabled is supported by substantial evidence.
Plaintiff is correct that, teachers, as well as other non-medical personnel who are able to observe and interact with a child on a daily basis, are valuable resources in determining the severity of a child's impairment and how a child typically functions compared to other children his age. 20 C.F.R. § 416.913(d) (These sources may provide evidence "to show the severity of [a claimant's] impairment(s) and how it affects [a claimant's] ability to work or, if [the claimant is] a child, how [the claimant] typically function compared to children [the claimant's] age who do not have impairments.").
SSR 06-03p, 2006 SSR LEXIS 5 advises that the opinions of "other sources" such as school teachers and counselors, who have had extended contact with a claimant in their professional capacity, may outweigh the opinions of treating or examining medical sources, if their opinions are supported by other record evidence and if the source sufficiently explains the opinion.
Although the ALJ is required to consider these "other source" opinions, non-medical testimony can neither establish the existence of a medically determinable impairment, nor establish disability absent corroborating competent medical evidence.
In this case, the ALJ concluded that J.R. does not have an impairment or combination of impairments that meet or functionally equals the Listings. The ALJ's decision contains a detailed summary of J.R.'s progression through school, including a specific discussion of his grades and efforts by the school to address J.R.'s behavior and learning difficulties. The decision also discusses in significant detail the medical evidence from Alta Pointe/LeMoyne, which contains extensive information concerning J.R.'s performance at school, as well as the medical findings of Dr. Shaikh. Further, the ALJ referenced the hearing testimony of both Plaintiff and J.R., and noted that Plaintiff testified that J.R.'s grades were improving and that his medication and his placement in the IEP program have helped to improve J.R.'s problems at school. (Doc. 12 at 23).
It is clear from a reading of the ALJ's opinion that he adequately considered all of the evidence, including educational records. Indeed, the ALJ explicitly stated that he considered all of the relevant evidence, including "objective medical evidence and other relevant evidence from medical sources; information from other sources, such as
Also without merit is Plaintiff's suggestion that the ALJ's findings regarding J.R's limitations in the domains of acquiring and using information, in attending and completing tasks, and interacting and relating with others deserves further consideration. Substantial evidence supports the ALJ's decision that J.R. does not have a "marked" limitation in more than two domains, or an "extreme" limitation in one domain. The record reflects that William H. Simpson, Ph.D. reviewed J.R.'s records and concluded that J.R. has "less than marked" limitations in acquiring and using information and attending and completing tasks, and no limitations in the other domains. (
With respect to the domain of interacting and relating to others, the ALJ found that J.R. has no limitation in interacting and relating with others and noted that the therapy notes from the LeMoyne Center dated June 24, 2009 reflect that J.R. had been doing well at school, that he followed directions, was polite to others and was respectful to the staff members and his peers. A review of the record evidence reveals that J.R. has had some behavior problems, particularly with respect to following instructions at school and at home; however, the records demonstrate that he has no behavior or attention problems when he is taking his medication on a regular basis. Indeed, the record is replete with statements from J.R.'s teachers, therapists, treating physician, and mother tracing his ADHD behavioral problems to irregular dosage or adjustments of his medications and noting that he performed better when taking his medication regularly. Accordingly, the undersigned finds that while there is evidence which strongly suggests that J.R. has "less than marked" limitations in the domain of interacting and relating with others, the ALJ's finding that J.R. does not have any limitation in this area is harmless error as the substantial record evidence supports the ALJ's ultimate findings that J.R. does not have "marked" limitations in at least two domains, or an "extreme" limitation in one domain. The ALJ's opinion is consistent with standardized testing results, school records, medical opinions, and other observations by J.R.'s teachers and mother. Accordingly, viewing the record in its entirety, the undersigned is satisfied that the ALJ's decision finding that J.R. is not disabled is supported by substantial evidence.
For the reasons set forth, and upon careful consideration of the administrative record and memoranda of the parties, it is hereby