JOHN S. BRYANT, Magistrate Judge.
To: The Honorable John T. Nixon, Senior Judge
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c), to obtain judicial review of the final decision of the Social Security Administration ("SSA" or "the Administration"), through its Commissioner, denying plaintiff's application for childhood supplemental security income, as provided under Title XVI of the Social Security Act. The case is currently pending on plaintiff's motion for judgment on the administrative record (Docket Entry No. 18), to which defendant has responded (Docket Entry No. 21). Plaintiff has further filed a reply in support of her motion. (Docket Entry No. 22) Upon consideration of these papers and the transcript of the administrative record (Docket Entry No. 13),
Plaintiff Jaquese Simon, on behalf of her minor child (referred to herein as "K.A.W." or "the child"), filed an application for childhood supplemental security income benefits on March 15, 2010, alleging a disability onset date of October 30, 2009, the date of K.A.W.'s birth. The application was denied at the initial and reconsideration stages of state agency review, whereupon plaintiff requested de novo hearing of her claim by an Administrative Law Judge (ALJ). The hearing before the ALJ was held on April 6, 2012, when plaintiff appeared with counsel and gave testimony. (Tr. 31-59) At the conclusion of the hearing, the ALJ took the matter under advisement until May 31, 2012, when she issued a written decision finding the child not disabled. (Tr. 11-24) That decision contains the following enumerated findings:
1. The claimant was born on October 30, 2009. Therefore, he was a newborn/young infant on March 15, 2010, the date [the] application was filed, and is currently an older infant (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful activity since March 15, 2010, the application date (20 CFR 416.924(b) and 416.971 et seq.).
3. The claimant has the following severe impairments: congenital heart disease, asthma and expressive language disorder (20 CFR 416.924(c)).
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 March 15, 2010, the date the application was filed (20 CFR 416.924(a)).
(Tr. 14-15, 24)
On September 9, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision (Tr. 1-3), thereby rendering that decision the final decision of the Administration. This civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. §§ 405(g), 1383(c). If the ALJ's findings are supported by substantial evidence, based on the record as a whole, then those findings are conclusive.
The following record review is taken from plaintiff's brief, Docket Entry No. 19 at 2-4:
K.A.W. is a 4.5 year old boy who lives with his mother, Jaquese Simon. K.A.W. was born with Transposition of the Great Vessels (TGV). Normally a child born with this condition will not survive without a corrective operation. See Carol A. Warnes, Congenital Heart Disease for the Adult Cardiologist: Transposition of the Great Arteries, CIRCULATION, Vol. 114, Issue 24, American Heart Association Journals, (December 12, 2006), available at http://circ.ahajournals.org/content/114/24/2699.long#ref-49. However, K.A.W falls into the less than one percent of those born with congenital heart defects that have congenitally corrected TGV (C-TGV). See id. Normally an individual born with TGV requires an operation to correct the ventricles because they do not allow circulation, however in those individuals who, like K.A.W., have C-TGV the circulation continues because it already flows through the wrong ventricles. Id. Therefore, the term "corrected" is a misnomer because nothing is corrected; additional defects functionally mimic some of the corrections that would otherwise require surgery. Id. (citing Carol Warnes, Congenitally corrected transposition: the uncorrected misnomer, 27 J AM COLL CARDIOL., 1244-1245 (1996). Although this congenital "correction" has allowed K.A.W. to avoid many of the initial serious complications of TGV, he remains at a heightened risk of cardiac failure and death for the rest of his life. First, like most of those with C-TGV, K.A.W. also has ventricular septal defects ("VSD") and "patients with a large VSD usually present in infancy or childhood with congestive heart failure." Id.; A.R. at 360. Second, his likelihood of systemic ventricular dysfunction and clinical congestive heart failure is likely to increase with age. Id. (citing Graham TP Jr et al., Long-term outcome in congenitally corrected transposition of the great arteries: a multi-institutional study, 36 J. AM. COLL. CARDIOL. 255-261, 2000). More than one third of patients with C-TGV experience congestive heart failure by the fifth decade while two thirds those with significant associated defects and prior open heart surgery have congestive heart failure by the age of 45. See Prieto LR et al., Progressive tricuspid valve disease in patients with congenitally corrected transposition of the great arteries, 98 CIRCULATION 997-1005 (1998).
An echocardiogram was performed on K.A.W. when he was almost two months of age. A.R. at 355-56.
This demonstrated his underlying condition of dextrocardia with L-TGA. There was a left ventricular outflow tract obstruction noted (ulmonic ventricle) with both a subvalvar as well as valvar pulmonary stenosis present. The total conbined gradient was 880 mmHg across this area with a mean gradient of 60 mmHg. The pulmonary valve appears to be bicuspid measuring 7 mm. There is an LSCV that drains into the coronary sinus. There was no VSD seen on this study even though it was suspected on previous studies. There was no ASD or PDA present. The position of the heart is dextrocardic with the heart being in the right chest with a rightward apex. The morphological right ventricle is on the left side. The morphological left venrtricle is on the right. The aorta is anterior and to the left. In terms of connections through the heart, the systemic veins drain into the right atrium, the right atrium to the LV, the LV to the pulmonary artery. The Pulmonary veins drain to the left atrium and the left atrium drains to the RV. The RV drains to the aorta. Id. at 355.
The cardiologist recommended:
At some point Kierre may be a candidate for a double switch type operation. This may involve either a Rastelli and Mustard procedure, at which time we may have to enlarge or create a VSD, otherwise an aortic translocation type procedure with a homograft being placed. Surgical options will be discussed in the future as we can further define this anatomy as the time approaches. Id. at 356.
Additionally, K.A.W. has severe lung and respiratory problems. He has been diagnosed with chronic asthma, a history of methicillin susceptible pneumonia, chronic cough, and frequently experiences upper respiratory infections often requiring trips to the Emergency Room. Id. at 258-59, 270-75, 279-82, 461-63, 464-68. On October 15, 2011, the treating physician commented, "child looks semi lethargic and is using accessory musckles [sic] and having intercostal retracting to help him breathe." Id. at 287. After a CT of the chest on June 18, 2012, the treating physician reported the impression:
Bilateral peribronchovascular alveolar consolidation with areas of septal thickening most prominent in the right upper, superior segment right lower lobe, as well as the lingula. These findings may be compatible with the diagnosis of bronchopneumonia (as history states MSSA pneumonia). Underlying chronic changes are not excluded. Id. at 550.
K.A.W. has also been diagnosed with severe oropharyngeal stage dysphagia, which causes him to frequently aspirate liquids. A.R. at 510. A Videofluoroscopic Swallow Study was conducted on August 11, 2011, and it showed poor oral control, passive leak over the base of the tongue, premature spillage, and overfilling of the oral cavity. Id. at 510-11 As a result, it was recommended that a thickener be added to all liquids consumed by K.A.W. to prevent aspiration. Id.
K.A.W. also has significant trouble communicating and has been diagnosed with Expressive Language Disorder (ELD). A.R. at 423-25. The International Statistical Classification of Diseases and Related Health Problems 10th Version (ICD-10)—the comprehensive medical classification list maintained by the World Health Organization and others—describes ELD as "[a] developmental disorder in which the child's ability to use expressive spoken language is markedly below the appropriate level for its mental age, but in which language comprehension is within normal limits." (ICD-10, F80.1). After being evaluated under the Battelle Developmental Inventory-2nd Edition test by Tennessee's Early Intervention System, the development specialist concluded that K.A.W. presented a 25% delay in personal-social domain and a 40% delay in adaptive, communication, and cognitive domains. A.R. at 531. K.A.W. attended speech-language therapy for treatment of ELD, but his therapy has been especially difficult due to behavioral problems. A.R. at 423, 424.
Additional record evidence is discussed as pertinent in the discussion below.
This court reviews the final decision of the SSA to determine whether that agency's findings of fact are supported by substantial evidence in the record and whether the correct legal standards were applied.
To be eligible for childhood disability benefits during the period applicable to this case, plaintiff must meet the definition of disability set forth at 42 U.S.C. § 1382c(a)(3)(C)(i):
The Commissioner's regulations implementing this statutory standard are set forth at 20 C.F.R. § 416.924
20 C.F.R. § 416.926a(b)(1).
Functional equivalence to a listed impairment is established when the evidence shows extreme limitations in one domain of functioning or marked limitations in two domains of functioning. 20 C.F.R. § 416.926a(a). "Marked" is "more than moderate," but "less than extreme"; a marked limitation will be found where the child's impairment "interferes seriously" with his ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2). "Extreme" limitations result when the child's impairment "interferes very seriously" with his ability to independently initiate, sustain, or complete activities; it is the rating which SSA gives to the worst limitations. 20 C.F.R. § 416.926a(e)(3).
Plaintiff's arguments before this Court are directed to the ALJ's weighing of the evidence and application of legal standards on the way to determining that the child's combination of impairments does not functionally equal the severity of any listed impairment. Plaintiff does not contend that the child's impairments meet or medically equal the criteria of any listing.
Plaintiff first argues that the ALJ erred by failing to give sufficient weight to the testimony of Ms. Simon. After recounting that testimony in considerable detail, the ALJ weighed its credibility as follows:
(Tr. 16) This rationale, albeit brief, is sufficient to support the ALJ's credibility finding. While the regulations recognize that a parent is bound to be intimately familiar with her child's limitations, and one of the only sources of information as to the child's day-to-day condition,
It is for the ALJ to resolve any conflicts in the evidence,
Plaintiff further contends that the ALJ erred in giving "some weight" to the opinions of the nonexamining consultants (Tr. 16), when those opinions reflected a lack of adequate familiarity with the child's medical history. However, the ALJ made only brief note of the opinions in question, and expressly rejected them as they bore on the child's ability to acquire and use information and to interact and relate with others.
Finally, plaintiff argues that the ALJ erred in her consideration of the child's functional abilities when she found "less than marked" limitation in the domains of acquiring and using information; interacting and relating with others; caring for yourself; and, health and physical well-being.
Regarding acquiring and using information, plaintiff argues that the ALJ should have found the existence of marked limitations based on the child's scores on the Battelle Developmental Inventory, Second Edition (BDI-II), an instrument used in this case to evaluate initial eligibility for Tennessee Early Intervention Services. (Tr. 530) Plaintiff argues that the BDI-II is "a comprehensive standardized test designed to measure ability or functioning" in the domain of acquiring and using information, and so the child's scores in the cognitive and communication domains of the BDI-II, which were more than two standard deviations below the mean, should compel a finding of marked limitation pursuant to 20 C.F.R. § 416.926a(e)(2)(iii). That section of the regulation provides that "[i]f you are a child of any age. . ., we will find that you have a `marked' limitation when you have a valid score that is two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability of functioning in that domain, and your day-to-day functioning in domain-related activities is consistent with that score." Assuming arguendo that the BDI-II is such a test designed to measure the functional ability to acquire and use information, the regulation further requires that in order to warrant a finding of marked limitations, the valid, qualifying BDI-II test score must be accompanied by day-to-day functioning that is consistent with that score. The ALJ cited examples of the child's functional abilities with respect to acquiring and using information at the ages of six, nine, twelve, and fifteen months, in support of the notion that the child was hitting typical developmental milestones. (Tr. 18) Only upon considering the results of the BDI-II administered at 23 months, which showed a 40% delay in the adaptive, cognitive, and communication domains, was the ALJ persuaded that the child was properly categorized as limited with respect to acquiring and using information, albeit less than markedly.
(Tr. 423) The ALJ cited these test results in her decision, noting that functional abilities equivalent to a 19-month-old child would not satisfy the regulatory definition of marked limitation in the case of the 23-month-old child here.
Regarding the domain of interacting and relating with others, plaintiff contends that the ALJ improperly found a less than marked limitation, citing the child's delay in expressive language development on testing at 23 months of age (Tr. 423-24) and his excessive tantrums during speech therapy sessions and in the home. The ALJ cited both the expressive language test results and the reports of tantrums in discussing the evidence bearing on the child's ability to interact and relate. (Tr. 20) However, the ALJ also noted that at that 23 month evaluation, the child was able to interact and communicate wants and needs in various ways despite his inability to combine words at that point, and in the months that followed he demonstrated improvement in this domain with speech therapy. Indeed, at 29 months old his speech pathologist noted improvements including spontaneous use of two- to three-word utterances and imitation of novel 2-word utterances. (Tr. 480) As to the evidence of the child's tantrums, this is not well developed in the evidence as an abnormality which would justify a finding of marked limitations in interacting and relating with others, and was dismissed by the ALJ as "somewhat indicative of a two-year old child." (Tr. 20) While plaintiff argues that a hearing test was scheduled at 23 months old due to the child's aggressive and self-injurious behaviors, the note of this hearing screening does not reveal that any such concerns motivated the referral to testing, but merely lists these "behavioral concerns" while identifying the reason for the screening as "[c]oncerns regarding speech and language, reporting that [K.A.W.] tried to say several words, but that he was often difficult to understand" (Tr. 502). The hearing screening was unremarkable. The undersigned finds that substantial evidence supports the ALJ's findings with regard to this domain.
Regarding the domain of caring for yourself, the ALJ found that the child had no limitation. As part of that determination, the ALJ noted that the child had been feeding himself in age-appropriate ways, including eating bite-size pieces of food with a spoon and drinking from an open cup at 23 months old. (Tr. 22) Plaintiff argues that the ALJ failed to consider the child's dysphagia and the associated requirement that his liquids be thickened before they are consumed, diagnosed when he was 21 months old. (Tr. 458-59) Plaintiff contends that "[s]ince K.A.W. is an infant, a caretaker must thicken his liquids, which, effectively, gives K.A.W. `disordered eating patterns' and renders him unable to feed himself `age appropriately,'" in contravention of the ALJ's finding that his eating and drinking behaviors are normal. (Docket Entry No. 19 at 15) However, the undersigned finds this argument to be lacking in logic, inasmuch as a child that age would need all food and drink to be prepared by his parent or caregiver for his consumption. Being unable to independently add thickener to the contents of his cup does not render K.A.W.'s drinking patterns disordered. There is no evidence that K.A.W. displayed any deficit regarding age-appropriate drinking behaviors, such that his ability to care for himself was limited. Moreover, despite plaintiff's argument that K.A.W. engages in self-injurious behavior (i.e., "banging his head" and "falling out" (Docket Entry No. 19 at 15)), the undersigned finds that this infantile behavior is not the sort contemplated in the regulations as indicating an inability to care for oneself. The regulation gives examples of such behavior including "e.g., suicidal thoughts or actions, self-inflicted injury, or refusal to take your medication[.]" 20 C.F.R. § 416.926a(k)(3)(iv). While plaintiff contends that K.A.W.'s speech therapist testified that such behaviors prevented him from learning (Docket Entry No. 19 at 15-16), the undersigned is unable to locate any such testimony, and in any event, does not see any correlation with the domain of caring for yourself. Substantial evidence supports the ALJ's determination that K.A.W. had no limitation in this domain.
Regarding the domain of health and physical well-being, plaintiff argues that the ALJ gave insufficient consideration to the effects of K.A.W.'s lung and respiratory system problems, his congenital heart defect, and his dysphagia, which she argues cause difficulties addressed by this domain, i.e., "somatic complaints related to the impairment (e.g., recurrent infections), limitations in physical functioning because of need for frequent treatment or therapy (e.g., nebulizer treatments); periodic exacerbations from impairments that interfere with physical functioning and medical fragility requiring intensive medical care to maintain level of health and physical well-being." (Docket Entry No. 19 at 16) However, the undersigned finds that the ALJ gave due consideration to all of these impairments and their effects, as follows:
This determination is well supported by the record as a whole. While the ALJ did not give express consideration in this domain to the child's dysphagia, it is not argued that this condition requires anything more than the addition of a thickening agent to the liquids that K.A.W. consumes. There are no ongoing treatment needs as such, and plaintiff does not allege any side effects from the thickener. Moreover, the fact that the child must be monitored by a cardiologist and is at an increased future risk of cardiac problems does not alter the analysis of his cardiac health at the time in question, which was stable. It is argued that plaintiff's vigilance in meeting the medical needs of her child and the practical difficulty of doing so was not given adequate consideration as it relates to the child's ability to control his symptoms, since "he is utterly reliant on his mother for treatment" and "[t]herefore, his impairment effectively `cannot be controlled by treatment or medication' unless his mother is available." (Docket Entry No. 19 at 19) However, again, no child the age of K.A.W. has the ability to manage his own symptoms by treatment or medication. The difficulty of his mother's task as sole caregiver is not lightly regarded, and her dedication to meeting this burden at any cost is laudable. However, the fact remains that K.A.W.'s medical needs were being met during the period under review, and so even considering the child's dependence upon his mother, the record simply does not support a level of physical limitation or "medical fragility" that suggests marked limitations as of the date of the ALJ's decision.
The decision of the ALJ is supported by substantial evidence on the record as a whole, and should therefore be affirmed.
In light of the foregoing, the Magistrate Judge recommends that plaintiff's motion for judgment on the administrative record be DENIED and that the decision of the SSA be AFFIRMED.
Any party has fourteen (14) days from receipt of this Report and Recommendation in which to file any written objections to it with the District Court. Any party opposing said objections shall have fourteen (14) days from receipt of any objections filed in which to file any responses to said objections. Failure to file specific objections within fourteen (14) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation.
