TERRY F. MOORER, Magistrate Judge.
Plaintiff Lola M. Phillips ("Plaintiff" or "Phillips") filed this lawsuit on behalf of her child, R.D.P., challenging a final judgment by Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, in which she determined that R.D.P. is not "disabled" and therefore, not entitled to supplemental security income benefits. Phillips' application was denied at the initial administrative level. Plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). Following the hearing, the ALJ determined that R.D.P. is not disabled. The Appeals Council rejected a subsequent request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner).
The parties have consented to the undersigned United States Magistrate Judge rendering a final judgment in this lawsuit pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. The court has jurisdiction over this lawsuit pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the court concludes that the Commissioner's decision denying R.D.P. supplemental security income benefits should be reversed and remanded.
An individual under 18 is considered disabled "if that individual 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) (1999). The sequential analysis for determining whether a child claimant is disabled is as follows:
See 20 C.F.R. § 416.924(a)-(d) (1997).
The Commissioner's regulations provide that if a child's impairment or impairments are not medically equal, or functionally equivalent in severity to a listed impairment, the child is not disabled. See 20 C.F.R. § 416.924(d)(2) (1997). In determining whether a child's impairment functionally equals a listed impairment, an ALJ must consider the extent to which the impairment limits the child's ability to function in the following six "domains" of life: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. Shinn ex rel. Shinn v. Comm'r of Soc. Sec., 391 F.3d 1276, 1279 (11th Cir. 2004); 20 C.F.R. § 416.926a(b)(1). A child's impairment functionally equals a listed impairment, and thus constitutes a disability, if the child's limitations are "marked" in two of the six life domains, or if the child's limitations are "extreme" in one of the six domains. Shinn, 391 F.3d at 1279; 20 C.F.R. § 416.926a(d).
In reviewing the Commissioner's decision, the court asks only whether his findings concerning the steps are supported by substantial evidence. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Substantial evidence is "more than a scintilla," but less than a preponderance: it "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, 1158-59 (11th Cir. 2004) (quotation marks omitted). The court "may not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the [Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation marks omitted). The court must, however, conduct an "exacting examination of the [Commissioner's] conclusions of law." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
R.D.P. was eight years old at the hearing before the ALJ. R. 16. Phillips alleges that, on January 3, 2006, R.D.P. became disabled due to vision problems, asthma, learning difficulties, and behavioral problems. R. 66, 70, 183. The ALJ, in his opinion, followed the regulations' three steps listed above when he analyzed R.D.P.'s claim. After doing so, he concluded R.D.P. is not disabled and, therefore, denied his claim for supplemental social security benefits. Under the first step, the ALJ found that R.D.P. is not engaged in substantial activity. R. 39. At the second step, the ALJ found that R.D.P. suffers from severe impairments of borderline intellectual functioning, oppositional defiant disorder, and an attention-deficit disorder/attention-deficit-hyperactivity disorder and non-severe impairments of asthma/breathing problems, vision problems, and various skin disturbances. R. 40. At step three, the ALJ found that R.D.P.'s impairments, when considered singularly or in combination, do not meet or medically equal in severity the criteria for any impairment listed at 20 CFR, part 404, Subpart P, Appendix 1. (Id.). In addition, the ALJ concluded that R.D.P.'s impairments do not functionally equal a Listing. R. 41-51. Consequently, the ALJ determined that R.D.P. is not disabled. R. 52.
Phillips presents the following claims:
The plaintiff raises several issues and arguments related to this court's ultimate inquiry of whether the Commissioner's disability decision is supported by the proper legal standards and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987). However, the court pretermits discussion of several of Phillips' specific arguments because the court concludes that the Commissioner erred as a matter of law, and thus, this case is due to be remanded for further proceedings. Specifically, the court finds that the ALJ failed to properly consider whether R.D.P. meets or equals Listing 112.05(f) by resolving inconsistencies in the evidence and fully developing the record concerning the extent of R.D.P.'s cognitive and communicative functioning.
Phillips argues that the ALJ erred as a matter of law when he failed to find her son presumptively disabled under Listing 112.05(F). Specifically, Plaintiff argues the ALJ failed to provide any rationale to support his finding that R.D.P. does not meet or medically equal the listing. Plaintiff contends that R.D.P.'s diagnosis of borderline intellectual functioning coupled with test results and reports from his mother and teachers indicating he is markedly impaired in age appropriate cognitive/communicative function establish that he meets Listing 112.05(F).
To determine whether a plaintiff meets or equals Listing 112.05F, the regulations provide:
20 C.F.R. 404, Subpt P, App. 1, § 112.05F
Section 112.02B2a provides:
20 C.F.R. 404, Subpt P, App. 1, §112.02B2a.
The ALJ determined that R.D.P. does not meet the Listing. Specifically, the ALJ found:
R. 40-41.
The ALJ provides no rationale for his determination that R.D.P.'s borderline intellectual functioning does not meet or medically equal Listing 112.05F. The ALJ merely cites to four documents, Exhibits B1F, B3F, B6F, and B7F, without explanation. This court is left to guess the reasons for the ALJ's reference to these particular records. By failing to discuss the evidence in light of Listing 112.05's analytical framework, the ALJ has left this court with grave reservations as to whether his opinion adequately addresses the criteria of the listing. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002).
Exhibit B1F includes 50 pages of medical records from South Alabama Pediatrics dated between January 3, 2006 and October 15, 2010, which indicate R.D.P. received treatment for a variety of childhood illnesses, such as colds, rashes, and sinus infections. R. 285-335. Exhibit B3F includes 35 pages of medical records from Dr. Steven Davis, Sr., a doctor of osteopathy, indicating R.D.P. sought treatment for bronchitis, dermatitis, colds, and other general childhood illnesses between January 17, 2006 through January 27, 2012. R. 343-377. The court is unsure of the particular reasons for the ALJ's reference to these particular medical records.
The ALJ also cites to Exhibit B6F, which includes an Individualized Education Program ("IEP") for the 2012-2013 school year at Opp Elementary School and the results of several test scores. R. 388-394. The information in the IEP contains somewhat conflicting information. For example, the student profile states R.D.P. "is a student who wants to do well, but has difficulty with basic comprehension skills in the areas of reading and math" and that he "will be repeating kindergarten for the 2012-2013 school year." R. 388. The profile, however, also indicates that R.D.P.'s "strengths are in the area of oral response and oral language." Id. In addition, the IEP team found:
R. 388.
The IEP also lists the results of several test scores. On March 6, 2012, R.D.P. received a full-scale score of 80, a non-verbal score of 75, a verbal score of 86, and a predicted achievement score of 87 on the Stanford-Binet Intelligence Scale. On March 12, 2015, however, R.D.P. received a total achievement score of 65, as well as scores of 64 in Mathematics, 52 in Early Reading Skills, 69 in Alphabet Writing, 82 in Oral Language, and 61 in Written Expression on the Wechsler Individual Achievement Test — Third Edition ("WIAT III"). In addition, the results of the Behavior Assessment System of Children, Second Edition ("BASC-2") conducted on March 2, 2012, indicates R.D.P. received an adaptive skills composite score of 71, as well as composite scores of "115 Hyperactivity, 113 Aggression 128, Conduct Problems 116, Externalizing Problems 121, Anxiety 89, Depression 95, Somatization 100, Internalizing Problems 94, Attention Problems 115, Learning Problems 139, School Problems 130, Atypicality 113, Withdrawal 103, Adaptability 79, Social Skills 76, Leadership 74, Study Skills 68, and Communication 79." R. 390.
The IEP team also assessed work samples completed by R.D.P. On January 3, 2012, R.D.P. did not "get any correct" on a math worksheet in which he was instructed to "count[] dots and writ[e] correct number." R. 392. He also did "not know any of the Kindergarten High Frequency words." Id. On March 6, 2012, the IEP team noted that his work samples "indicate that student is performing below grade level at this time within the general education classroom." R. 391. Finally, the IEP team documented a "severe discrepancy" of 22 points between R.D.P.'s predicted achievement of 87 and actual achievement of 65. R. 393. On March 23, 2012, the IEP team found R.D.P. eligible to receive special education accommodations based on his "Specific Learning Disability." R. 394.
The ALJ also cites to a psychological report, Exhibit B7F, prepared by Dr. Fernelle L. Warren, a clinical psychologist, on June 19, 2012. Dr. Warren found that "[o]verall, his responses to mathematical and serial tasks, memory functions, fund of information, and ability to think in abstract terms appeared to be consistent with a level of functioning estimated to be within the Borderline to Mental Retardation range of intelligence." R. 397. The psychologist also found that R.D.P.'s ability to function in an age appropriate manner, as well as the ability to understand instructions and relate to others socially, cognitively, communicatively, adaptively, behaviorally, and persist on a task, is mildly to moderately impaired. Dr. Warren's diagnostic assessment was oppositional defiant disorder; attention deficit hyperactivity disorder, combined type, provisional; borderline to mental retardation, provisional; asthma; and academic problems. The psychologist also found that a favorable response to treatment for disruptive behaviors and ADHD is expected within the next 6 to 12 months and strongly encouraged R.D.P. to continue to consult with a therapist and psychiatrist with regards to treating and managing his symptoms. Dr. Warren also recommended "[a]dditional testing . . . to substantiate a diagnosis of ADHD and to assess his learning difficulties." Id.
Despite the inconsistent scores and a mental health specialist's recommendation to perform additional testing to assess R.D.P.'s learning difficulties, the ALJ did not further explore this matter. It is error for the ALJ to fail to obtain additional testing or otherwise develop the evidence, if that information is necessary to make an informed decision. See Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1998). Because the ALJ ignored Dr. Warren's recommendation to obtain additional testing to assess the extent of R.D.P.'s learning difficulties, the court is unable to determine whether the Commissioner's decision is supported by substantial evidence.
In addition, the ALJ ignored historical and other information from parents or teachers when determining R.D.P. does not meet or medically equal Listing 112.05F. If "the results fo standardized intelligence tests are unavailable," such as "where the child's young age or condition precludes formal standardized testing," mental retardation may be proven only through the listings. Prior to R.D.P. attending elementary school, he did not participate in standardized testing. Thus, the mother's reports concerning R.D.P.'s behavioral and learning difficulties prior to and during kindergarten are persuasive. In addition, several teacher questionnaires indicate R.D.P. struggles in school. On a teacher questionnaire form, an Opp Elementary kindergarten teacher indicated that R.D.P. performs below grade level in reading, math, and written language and that he has a "serious problem" with reading and comprehending written material, comprehending and doing math problems, learning new material, recalling and applying previously learned material, and applying problem-solving skills in class discussion.
Phillips also provided an additional teacher questionnaire, in which an Opp Elementary School teacher indicated that she has known R.D.P. for at least four months, that she sees him "most of the day," and that she is his Science, Math, and Homeroom teacher.
The Appeals Council also received additional evidence, including other test scores and school records. Phillips provided the sub-test scores and clinician's report from the WIAT-III conducted on March 12, 2012. R. 227. The report indicates R.D.P. received "below average scores," ranking in the fifth percentile for oral discourse comprehension and thirteenth percentile for expressive vocabulary. R. 228. He also scored "below average" in oral language and "low" in written expression, mathematics, and total achievement. R. 229.
Phillips also provided an IEP for the 2013-2014 school year, which includes a NICHQ Vanderbilt Assessment Scale completed by R.D.P.'s teachers. On a scale of 1 to 5, with 1 being "excellent" and 5 being "problematic," the general education teacher found R.D.P.'s academic performance to be "problematic" in reading, mathematics, and written expression. R. 418. The special education teacher also found R.D.P's performance in reading and written expression "problematic" and his performance in mathematics "somewhat of a problem." R. 414. The Appeals Council, however, "found that this information does not provide a basis for changing the Administrative Law Judge's decision." R. 2. It is impossible for this court, however, to determine whether the Commissioner's determination is supported by substantial evidence until the inconsistencies in the record concerning R.D.P.'s cognitive and communicative functioning are resolved.
After reviewing the record, the court concludes that the ALJ failed to articulate adequately the basis for his conclusion that R.D.P. does not meet or equal Listing 112.05F and failed to develop the record in full by obtaining or considering additional testing as recommended by a mental health specialist to determine the extent of R.D.P.'s learning difficulties, precluding this court from engaging in meaningful judicial review of Phillips' claims.
Accordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion.
A separate order will be entered.
