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Deboe v. Colvin

United States District Court, W.D. Missouri, Western Division

December 14, 2016

LADONNA DEBOE o/b/o DDD-R, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          ROBERT E. LARSEN United States Magistrate Judge.

         This is a proceeding under Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 1381, et seq. Section 1631(c)(3)of the Act, 42 U.S.C. §1383(c)(3), provides that “[t]he final determination of the Commissioner . . . shall be subject to judicial review as provided in section 205(g) [42 U.S.C. § 405(g)] to the same extent as the Commissioner's final determination under section 205.”

         Plaintiff argues that the administrative law judge erred by (1) failing to find that plaintiff's impairments met or medically equaled Listing 112.11 and (2) inappropriately weighing the evidence by (a) failing to give controlling weight to Latha Venkatesh, M.D.; (b) failing to mention the opinion of Tamera Bryant, plaintiff's kindergarten teacher; and (c) giving controlling weight to the opinion of Dr. Isenberg who did not treat plaintiff. I find that there is substantial evidence in the record to support the ALJ's decision. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.

         I. BACKGROUND

         On July 24, 2013, plaintiff's mother, acting on plaintiff's behalf, protectively filed an application for child's supplemental security income (“SSI”) benefits based on disability under Title XVI, alleging disability beginning June 1, 2013, due to attention deficit hyperactivity disorder (“ADHD”). The application was denied initially on September 30, 2013. On November 19, 2014, Administrative Law Judge George Bock held a hearing. The ALJ found on December 23, 2014, that plaintiff is not disabled. On January 16, 2016, the Appeals Council denied plaintiff's request for review. Therefore, the opinion of the ALJ stands as the final decision of the Commissioner.

         II. STANDARD FOR JUDICIAL REVIEW

         The standard of appellate review of the Commissioner's decision is limited to a determination of whether the decision is supported by substantial evidence on the record as a whole. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support the Commissioner's conclusion. Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008). Evidence that both supports and detracts from the Commissioner's decision should be considered, and an administrative decision is not subject to reversal simply because some evidence may support the opposite conclusion. Finch v. Astrue, 547 F.3d at 935 (citing Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004)). A court should disturb the ALJ's decision only if it falls outside the available “zone of choice, ” and a decision is not outside that zone of choice simply because the court may have reached a different conclusion had the court been the fact finder in the first instance. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (citations omitted). The Eighth Circuit has further noted that a court should “defer heavily to the findings and conclusions of the SSA.” Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).

         An individual under the age of 18 will be considered disabled if he has a medically determinable physical or mental impairment that results in marked and severe functional limitations, and that 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. Notwithstanding, no individual under the age of 18 who engages in substantial gainful activity may be considered to be disabled. The Social Security Administration has established a three-step sequential evaluation process to determine whether an individual under the age of 18 is disabled. 20 C.F.R. § 416.924(a).

         1. Is the claimant engaging in substantial gainful activity?

         Yes = Not disabled.

         No = Go to next step.

         2. Does the claimant have a medically determinable impairment or combination of impairments that is severe?

         No = Not disabled.

         Yes = Go to next step.

         3. Does the claimant have an impairment or combination of impairments that meets or medically equals the criteria of a listing or that functionally equals the listings and has or is expected to last at least 12 months?

         Yes = Disabled.

         No = Not disabled.

         Whether an impairment or combination of impairments functionally equals the listings depends on how appropriately, effectively, and independently the claimant performs activities in six domains -- (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 himself, and (6) health and physical well-being -- as compared to other children of the same age who do not have impairments. To functionally equal the listings, the claimant's impairment or combination of impairments must result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain of functioning. 20 C.F.R. § 416.926a(d).

         A child has an “extreme” limitation in a domain when his impairment interferes “very seriously” with his ability to initiate, sustain, or complete activities independently. 20 C.F.R. § 416.926a(e)(3). A child's day-to-day functioning may be “very seriously” limited when his impairment limits only one activity or when the interactive and cumulative affects of his impairment limit several activities. An “extreme limitation” also means:

1. A limitation that is “more than marked.”
2. The equivalent of functioning that would be expected on standardized testing with scores that are at least three standard deviations below the mean.
3. A valid score that is three standard deviations or more below the mean on a comprehensive standardized test designed to measure ability or functioning in that domain, and his day-to-day functioning in domain-related activities is consistent with that score.
4. For the domain of health and physical well-being, episodes of illness or exacerbations that result in significant, documented symptoms or signs substantially in excess of the requirements for showing a “marked” limitation.

         A child has a “marked” limitation in a domain when his impairment “interferes seriously” with the ability to initiate, sustain, or complete activities independently. 20 C.F.R. § 416.926a(e)(2). A child's day-to-day functioning may be “seriously limited” when the impairment limits only one activity or when the interactive and cumulative affects of the impairment limit several activities. A “marked” limitation also means:

1. A limitation that is “more than moderate” but “less than extreme.”
2. The equivalent of functioning that would be expected on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.
3. 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 or functioning in that domain, and his day-to-day functioning in domain-related activities is consistent with that score.
4. For the domain of health and physical well-being, frequent episodes of illnesses because of the impairment or frequent exacerbations of the impairment that result in significant, documented symptoms or signs that occur (1) on an average of three times a year or once every four months, each lasting two weeks or more, (2) more often than three times a year or once every four months but lasting longer than two weeks, if the overall affect (based on the length of the episode or its frequency) is equivalent in severity.

         III. THE RECORD

         The record consists of the testimony of plaintiff's mother in addition to documentary evidence admitted at the hearing.

         A. SUMMARY OF RECORDS

         1. Administrative Records

         a. Child Supplemental Questionnaire

         On September 11, 2013, plaintiff's mother, Ms. Deboe, completed this form and reported that plaintiff is able to play video games and puzzles or use a computer for ten minutes at a time (Tr. at 143-145). If plaintiff goes out shopping, to eat, or to special events with his mother, he has to go right after his early morning medicine. She has to talk him through the whole outing to make sure he does not get out of hand. Plaintiff does not listen when he is told to do something, he throws temper tantrums, he will not sit still, he talks back, and he fights. Plaintiff has not visited the school nurse because of his impairment. His school has not recommended that he participate in summer school.

         b. Letter from plaintiff's sister

         In a letter dated only “11/14” plaintiff's sister, Tanisha Deboe, wrote that plaintiff is very hyper, it is hard to keep him calm, she gets very frustrated with him at times due to his inability to sit still, and he has a temper -- if he does not get his way, he screams as loud as he can, kicks, and has outbursts (Tr. at 198). The age of plaintiff's sister Tanisha is unknown.

         2. School Records.

         Plaintiff's elementary school cumulative record shows that from 2011 through 2012 (age 3 through 4), his class work evaluation in every subject was 2 out of 5 with 5 being the highest (Tr. at 160). He was promoted to “P4.” During the academic year 2012 through 2013 (age 4 through 5), his class work in every subject was 3 out of 5 with 5 being the highest. He was promoted to kindergarten.

         On May 29, 2013 (prior to plaintiff's alleged onset date), when plaintiff was 5 years old and finishing grade “P4, ” his report card showed that he was progressing satisfactorily in the following:

Social/group/work activities
Group participation
Initiative
Attention to detail
Completing a work cycle
Choosing appropriate work
Relating well with others
Responding to others' needs and feelings
Expressing his own needs and feelings well
Language
Vocabulary
Phonetics
Word Building
Spelling
Mathematics
Quantity recognition
Symbol recognition
Linear counting
Decimal system
Sensorial
Visual discrimination
Sound discrimination
Touch discrimination
Terminology
Geometric shape/form
Practical life
Sense of order
Sequence
Large motor control
Care of environment
Attention to detail (care of self)
Art
Uses art skills to develop appropriate manipulative skills, fine & gross motor skills
Computers
Can open a document
Knows what the AUP stands for and its importance
Can explain how to stay safe online and off
Can use the tools in the toolbox to enhance graphic
Can format text by changing font, size, color and character style
Can explain how technology is used in daily life
Can draw/use graphics that match what the author describes
Music
Sings/plays online and with others within varied styles and musical forms
Moves to, describes, analyzes or discusses music
Described functions of music and musicians in varied settings/cultures
Physical education
Demonstrates cooperation with partners and small groups to accomplish objective
Participates in instructionally-appropriate moderate to vigorous physical activity for at least 50% of a structured physical education class
Demonstrates the ability to share, be cooperative and safe with others

         His report card reflected that he needed improvement in the following areas:

Social/Group/Work Skills

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