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Bradley v. Colvin

United States District Court, Fourth Circuit

August 12, 2013

MELISSA BRADLEY o/b/o L.R.B., a minor child, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant

REPORT AND RECOMMENDATION

Hon. James G. Welsh U.S. Magistrate Judge

Melissa Bradley brings this civil action on behalf of L.R.B., (“the plaintiff”), a child under the age of eighteen, challenging a final decision of the Commissioner of the Social Security Administration (the "agency") denying an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, as amended (the “Act"), 42 U.S.C. §§ 1381 et seq.; 20 C.F.R. § 416.1481. Jurisdiction of the court is pursuant to 42 U.S.C. § 405(g).

The record shows that the application was protectively filed on August 21, 2009, alleging a disability beginning xxxxx, xx, 1997, when the child was zero years of age. (R. 10, 122). The claim was denied initially, on state agency reconsideration, and following an administrative hearing held on March 2, 2011. (R. 10-23, 28-55, 56-57, 59-61, 65-67, 73-79, 81-83, .72-79, 95, 101, 118).[2] The unfavorable written decision of the administrative law judge ("ALJ") was issued on May 16, 2011; the plaintiff’s timely request for Appeals Council review was denied on May 21, 2012 (R.1-3, 5), and the unfavorable written decision of the ALJ now stands as the Commissioner's final decision. See 20 C.F.R. § 404.981.

Along with her Answer (docket #7) to the plaintiff’s Complaint (docket #3), the Commissioner has filed a certified copy of the Administrative Record (docket #8), which includes the evidentiary basis for the findings and conclusions set forth in the Commissioner’s final decision. The parties have filed motions for summary judgment with supporting memoranda; oral argument was conducted by telephone on these motions on June 6, 2013 (docket #18). By standing order this case is before the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. Standard of Review

The court's review in this case is limited to determining whether the factual findings of the Commissioner are supported by substantial evidence and whether they were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” of evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). “If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642). The court is “not at liberty to re-weigh the evidence … or substitute [its] judgment for that of the [ALJ].” Johnson v. Barnhart, 434 F.3d650, 653 (4th Cir. 2005) (internal quotation marks omitted).

II. The ALJ’s Decision

The ALJ, in his written decision (R. 13-23), found that L.R.B., a female child, was born in 1997, that she was of school age at the time her SSI application was filed, and that she was an adolescent[3] at the time of the administrative hearing. (R. 13). He determined that her anxiety disorder and Asperger syndrome[4] were both severe[5] impairments; however, he further found that these impairments did not meet or medically equal a listed[6] impairment, nor did she have an impairment or combination of impairments that functionally equaled the listings pursuant to 20 C.F.R. §§ 416.924(d) and 416.926a. (R. 13-22). It was his conclusion that the plaintiff had a less than marked limitation[7] in only two domains[8] – Interacting and Relating to Others and Self Care – and was, therefore, not disabled within the meaning of the Act. (R. 17-23).

III. Summary and Recommendation

On appeal and at oral argument the plaintiff’s attorney argues that the ALJ's adverse determination is not supported by substantial evidence in three particulars.[9] He argues that the ALJ erred by failing first “to assess the child as a ‘whole’” as required by 20 C.F.R. § 416.924(a); second, he argues that the ALJ erred by “ignoring” the hearing testimony of the child’s father that was based on his “‘daily’ observations of the child’s devastating impairments, ” and as a third claim of error on appeal, plaintiff’s attorney argues that the ALJ also erred by “ignoring” the longitudinal record of the child’s treatment for anxiety and her attendant functional limitations. (Docket #13 pp 3-10). After reviewing all of the evidence of record, including both the medical evidence and testimony, and for the reasons discussed below in relation to these arguments, it is RECOMMENDED that the Commissioner's decision be AFFIRMED, the Commissioner’s motion for summary judgment be GRANTED, the plaintiff’s motion for summary judgment be DENIED, and this case STRICKEN from the docket of the court.

IV. Evidence Summary

Age & Education L.R.B., a minor child, was born in 1997. (R.32, 256). She was fourteen years of age and in the eighth (her age-appropriate) grade at the time of the administrative hearing. (R. 32. See also R. 129-130, 213, 375). She has at least an average IQ. In their response to a teacher questionnaire dated November 9, 2009, four of L.R.B.’s teachers jointly reported that the child academically performed at or above grade level, and in comparison with other same-age children, she demonstrated no problems in the domains of Acquiring and Using Information, Attending and Completing Tasks, Interacting and Relating with Others, and Self Care.[10] (R. 145, 213-216; see also R.147-177).

Medical & Mental Health

The plaintiff’s pediatric care records for the period between 2004 and the end of 2008 document her medical treatment for general wellness issues and for several transient medical problems. (R. 339, 343, 357-374). Additionally, they show that as an adjunct to her sister’s mental health treatment, the plaintiff also saw a social worker at Augusta League of Therapies on a more or less weekly basis between March 20 and July 7, 2008 for difficulties she then experienced with sibling and family-related stressors. (R. 309-312, 314-329). Although her family, by history, reported concerns that the plaintiff was also experiencing school socialization and performance issues, the social worker opened no treatment file, made no assessment of L.R.B.’s development; moreover, she found L.R.B. to be “engaged, ” to display good hygiene, to express herself verbally with accuracy, to demonstrate “a need to be structured and purposeful in her approach to therapeutic activities, ” and to exhibit generally a “positive mood and matching affect.” (R.309-312).

Eight months later, in March 2009 her parents reported their concerns about L.R.B.’s anxiety and/or “lack of desire to socialize” to her pediatrician, which led on referral to a diagnosis of Asperger syndrome by Dr. Kenneth Norwood at University of Virginia Medical Center (“UVaMC”) and to the establishment of a treatment regime in July 2009 that included an anti-depressant (Zoloft), a six-month period of counseling to address her symptoms of worry and social coping skills, and to periodic medication management and status follow-ups through UVaMC’s Child & Family Psychiatry Clinic (“C&FP Clinic”). (R. 335-338, 340-341, 353, 356, 358, 376-382, 390-403, 410-415).

In January 2010, following the plaintiff’s referral to the C&FP Clinic for further evaluation of her anxiety, her parents reported that her condition had been “somewhat help[ed] by the medication, but they were concerned that she was having panic attacks after eating certain foods or when she was in a crowded areas with loud noises and that she was at times having crying spells after school. (R. 379). Her mental status examination at the time was essentially normal, and the examining psychiatrist, Adrienne Turner, MD, assessed L.R.B. to be functioning at level 70 on the GAF scale.[11] (R. 381). The following month, L.R.B.’s mood was assessed at 7-8 out of 10, and in April she reported that her anxiety was under better control, but she was still having some irritability and sensitivity at school. (R.377-378). When Dr. Turner next saw the plaintiff at the end of the year (in November and for a follow-up office visit in December), she found L.R.B. to be well-groomed and to exhibit appropriate behavior, normal speech, intact thought ...


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