United States District Court, W.D. Virginia, Roanoke Division
LILLIE MATTOX. O/B/O X.T., a minor child, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Glen E. Conrad Senior United States District Judge
Mattox, the grandmother and legal guardian of X.T., filed
this action challenging the final decision of the
Commissioner of Social Security terminating the payment of
child's supplemental security income ("SSI")
benefits under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383(d). Jurisdiction of this court
is established pursuant to 42 U.S.C. § 1383(c)(3), which
incorporates 42 U.S.C. § 405(g).
order entered December 14, 2017, the court referred this case
to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B). On November 20, 2018, the magistrate
judge submitted a report in which he recommends that the
court affirm the Commissioner's final decision. Plaintiff
has filed an objection to the magistrate judge's report,
and the matter is now ripe for the court's consideration.
court is charged with performing a de novo review of
the magistrate judge's report and recommendation. See 28
U.S.C. § 636(b)(1). In the instant case, the court's
review is limited to a determination as to whether there is
substantial evidence to support the Commissioner's
conclusion that the plaintiff has not met the requirements
for entitlement to benefits under the Act since December 3,
2014. If such substantial evidence exists, the final decision
of the Commissioner must be affirmed. Laws v.
Celebrezze, 368 F.2d 640 (4th Cir. 1966). Stated
briefly, substantial evidence has been defined as such
relevant evidence, considering the record as a whole, as
might be found adequate to support a conclusion by a
reasonable mind. Richardson v. Perales, 402 U.S.
389, 401 (1971).
plaintiff was born in August of 2006 with a congenital right
foot deformity, a right tibial deficiency, and an unstable
right knee. (Tr. 341, 358). He underwent a "right
through knee amputation" at Shriners Hospital for
Children in Greenville, South Carolina on July 12, 2007. (Tr.
345). On February 5, 2008, the plaintiffs mother filed an
application for child's supplemental security income
benefits. On August 22, 2008, the plaintiff was found to be
disabled as of February 5, 2008, based on the determination
that the plaintiffs partial leg amputation medically equaled
Listing 101.05(B), since the plaintiff required assistance
with walking and was unable to perform age-appropriate
activities. (Tr. 84-101, 363).
2014, the Social Security Administration performed a
continuing disability review and determined that the
plaintiff was no longer disabled, since he was "able to
use his prosthesis without great difficulty" and could
"participate in most age-appropriate activities."
(Tr. 80). On December 3, 2014, the Social Security
Administration notified the plaintiff that his child's
SSI benefits would end in February of 2015, based on the
agency's determination that the plaintiff was no longer
disabled as of December 2014. (Tr. 102-03). The plaintiff
sought reconsideration of the termination decision. On
September 8, 2015, the agency notified the plaintiff that it
was adhering to its determination that the plaintiff was no
longer eligible for child's SSI benefits. (Tr. 143).
plaintiff then requested and received a de novo
hearing and review before an Administrative Law Judge. In an
opinion dated June 9, 2016, the Law Judge also determined
that the plaintiffs disability ended as of December 3, 2014,
and that the plaintiff has not become disabled again since
that date. (Tr. 43). The Law Judge found that the plaintiff
has suffered from several severe impairments since December
3, 2014, including right leg amputation, eczema, allergic
rhinitis, and attention deficit hyperactivity disorder
("ADHD"). However, the Law Judge determined that
the plaintiffs previously disabling impairment has improved,
and that none of the plaintiffs conditions, either
individually or in combination, has met or medically equaled
the severity of a listed impairment since December 3, 2014.
(Tr. 19, 26). The Law Judge also considered each of the six
functional domains for the period since December 3, 2014, and
concluded that the plaintiff has experienced "less than
marked" limitations in each domain. (Tr. 38-42). Thus,
the Law Judge found that the plaintiff has not had an
impairment or combination of impairments that functionally
equals a listed impairment since December 3, 2014. (Tr. 27).
Accordingly, the Law Judge concluded that the plaintiff was
no longer disabled as of that date. (Tr. 43). The Law
Judge's opinion was adopted as the final decision of the
Commissioner by the Social Security Administration's
Appeals Council. Having exhausted all available
administrative remedies, the plaintiff has now appealed to
is disabled within the meaning of the Social Security Act if
he has a "physical or mental impairment, which results
in marked and severe functional limitations, and ... which
has lasted or can be expected to last for a continuous period
of not less 12 months." 42 U.S.C. §
1382c(a)(3)(C)(i)., Under the applicable regulations, the
determination of whether a child meets this definition is
determined via a three-step inquiry. 20 C.F.R. §
416.924. The first determination is whether the child is
working and performing substantial gainful activity.
Id. § 416.924(b). If the child is not working,
it must then be decided whether the child suffers from a
severe impairment or combination of impairments. IcL §
416.924(c). If the child suffers from a severe impairment or
combination of impairments, it must then be determined
whether the child's impairment(s) meet, medically equal,
or functionally equal an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. Id. § 416.924(d).
determine whether an impairment is functionally equivalent to
a listed impairment, the Law Judge evaluates its severity 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 oneself; and (6) health and physical well-being.
Icl § 416.926a(b)(1). Functional equivalence exists if
the Law Judge finds a "marked" limitation in two
areas of functioning or an "extreme" limitation in
one area of functioning. Id. § 416.926a(d). A
"marked" limitation is one that "interferes
seriously with [the claimant's] ability to independently
initiate, sustain, or complete activities." Id.
§ 416.924a(e)(2)(i). A "marked" limitation
"also means a limitation that is 'more than
moderate' but 'less than extreme.'"
Id. As previously noted, the court referred the case
to a magistrate judge for a report setting forth findings of
fact, conclusions of law, and a recommended disposition. In
his report, the magistrate judge recommended that the court
affirm the final decision of the Commissioner terminating the
payment of child's SSI benefits to the plaintiff.
Succinctly stated, the magistrate judge determined that
substantial evidence supports the Law Judge's finding
that the plaintiffs right leg amputation has not met or
medically equaled Listing 101.05(B) since December 3, 2014.
The magistrate judge likewise determined that substantial
evidence supports the Law Judge's finding that the
plaintiff has had "less than marked" limitations in
all six areas of functioning since December 3, 2014, and thus
has not had an impairment or combination of impairments that
functionally equals a listed impairment since that date.
objections to the report and recommendation, plaintiff takes
issue with the magistrate judge's findings as to four of
the issues raised in the plaintiffs motion for summary
judgment. The first issue is whether the Law Judge erred in
finding that the plaintiffs right leg impairment has not met
or medically equaled Listing 101.05(b) since December 3,
2014. A claimant meets or medically equals this Listing with
the amputation of "[o]ne or both lower extremities at or
above the tarsal region, with stump complications resulting
in medical inability to . use a prosthetic device to ambulate
effectively, ... which have lasted or are expected to last
for at least 12 months." 20 C.F.R. § 404, Subpart
P, App'x 1, 101.05. The inability to "ambulate
effectively" is defined as "an extreme limitation
of the ability to walk." Id. at
101.00(B)(2)(b). "Older children, who would be expected
to be able to walk when compared to other children the same
age who do not have impairments, must be capable of
sustaining a reasonable walking pace over a sufficient
distance to be able to carry out age-appropriate
activities," and they "must have the ability to
travel age-appropriately without extraordinary assistance to
and from school." Id.
Judge found that since December 3, 2014, the plaintiff has
not experienced stump complications resulting in "12
months (actual or expected) of inability to ambulate
effectively." (Tr. 20, 26). The court agrees with the
magistrate judge that the Law Judge's finding is
supported by substantial evidence. In June of 2014, the
plaintiffs second grade teacher noted that the plaintiff
"moves better than most of the other kids" and that
he "runs and jumps" with "lots of
energy." (Tr. 286). The plaintiffs grandmother
subsequently reported that the plaintiff enjoys,
skateboarding and playing soccer and basketball. (Tr.
655-56). On March 27, 2015, a state agency physician found
that "there has been significant medical
improvement" and that the plaintiffs right leg
amputation does not meet or medically equal a listed
impairment. (Tr. 411, 416). During an October 12, 2015
examination at Shriners Hospital, the plaintiff showed
"good range of motion through the hip" and was
found to be "doing well" overall, even though he
had been wearing his "smaller broken
prosthesis." (Tr. 536). Although the plaintiff was
prescribed a wheeled walker approximately two months before
the administrative hearing due to a "skin
irritation" (591), the Law Judge reasonably concluded
that "the record does not establish an inability to
ambulate effectively that has lasted or is expected to last
for at least 12 months." (Tr. 19).
arguing to the contrary, the plaintiff emphasizes that he has
been treated for eczema since 2014, and that his skin
problems therefore "did not suddenly arise shortly
before the ALJ hearing." PI.'s Objections 2, Dkt.
No. 22. While this may be true, the record amply supports the
Law Judge's determination that the plaintiffs
complications from eczema did not prohibit him from
ambulating effectively during most of the relevant time
period. Indeed, when the plaintiff first presented for an
evaluation of his eczema on September 10, 2014, he exhibited
"normal range of motion" and primarily complained
of dry, itchy skin on his "arms and neck." (Tr.
423). Three months later, the eczema was found to be
"well controlled" and "much improved on his
skin care plan." (Tr. 433, 435). The same was true in
March of 2015, when the plaintiffs skin was found to be
"normal," with "no rashes or lesions."
(Tr. 453). Likewise, in August of 2015, the allergist noted
that the plaintiffs "eczema has been under good
control" and that "his skin is much improved."
(Tr. 570-73). Although the plaintiff complained of increased
itching in December of 2015, less than three months before
the administrative hearing, the plaintiff nonetheless
exhibited normal range of motion. (Tr. 579-81). Because the
itching primarily affected the plaintiffs ability to
"sleep," the allergist recommended that the
plaintiff apply Vaseline gauze to his stump "at
bedtime." (Tr. 579, 582). In sum, the court is convinced
that substantial evidence supports the Law Judge's
conclusion that the record fails to establish an inability to
ambulate effectively for a period of at least 12 months.
Accordingly, the plaintiffs objection as to the right leg
issue is overruled.
second objection, the plaintiff argues that the magistrate
judge erred in concluding that substantial evidence supports
the Law Judge's determination that the plaintiff has
experienced a "less than marked" limitation in the
area of attending and completing tasks since December 3,
2014. In this functional domain, the Law Judge considers how
well the claimant is able to focus and maintain his
attention, and how well he begins, carries through, and
finishes his activities, including the pace at which he
performs his activities and the ease with which he changes
them. 20 C.F.R. § 416.926a(h). The regulations provide
that school-age children should be able to follow directions,
remember and organize their school materials, and complete
assignments. Id. § 416.926a(h)(2)(iv). They
should also be able to concentrate on details, stay on task,
and sustain their attention well enough to read by
themselves, participate in group sports, and complete chores.
Id. The court agrees with the magistrate judge that
the Law Judge's assessment of this area of functioning is
supported by substantial evidence. In June of 2014, the
plaintiffs second grade teacher rated the plaintiff as having
either no problems or only slight problems in the domain of
attending and completing tasks, and noted that the plaintiff
"takes medication that helps him focus." (Tr. 284).
During a subsequent psychological evaluation, the plaintiffs
grandmother reported that the plaintiffs prescription for
Adderall proved "very helpful in improving his
attention, decreasing hyperactivity and impulsivity,"
and that, when taking such medication, the plaintiffs ADHD
symptoms were "mild in the classroom." (Tr. 658).
The plaintiffs grandmother also reported that the plaintiff
was doing well in third grade, that he was capable of
independently performing chores, and that he could sustain
concentration long enough to watch a movie and read a
five-minute book. (Tr. 657-58). Similarly, during the
administrative hearing, the plaintiff testified that he was
doing well in fourth grade, that his favorite subject was
reading, and that he did not have any problems reading his
favorite book series. (Tr. 55). The Law Judge's
assessment of the plaintiffs ability to attend and complete
tasks is also supported by the findings of the state agency
consultants, both of whom opined in March of 2015 that the
plaintiff has a "less than marked" limitation in
this area of functioning. (Tr. 374, 413).
pending objection, the plaintiff argues that "he has
experienced significant issues with eczema affecting his
prosthesis since September of 2014," and that the Law
Judge "ignored evidence from plaintiffs fourth grade
teacher, Ms. Hoyt, that plaintiffs itching and pain from his
eczema and prosthesis frequently interferes with his ability
to attend and complete tasks." PL's Objection 3.
Upon review of the record, however, the court is constrained
to conclude that this objection is without merit. As the Law
Judge noted in his decision, "the treatment history
discussed above shows that these physical symptoms are
intermittent and variable," and that they generally
improved under the skin care plan prescribed by the
allergist. (Tr. 39). Although Ms. Hoyt reported that the
plaintiff would "often" ask to visit the school
nurse or the restroom to scratch his leg (Tr. 295), the Law
Judge did not ignore the teacher's letter. Instead, the
Law Judge's decision confirms that he reviewed the
contents of the letter and determined that it was not
entitled to considerable weight since it was "vague as
to the frequency of the claimant's prosthetic-related
interruptions." (Tr. 28, 35). The Law Judge also
emphasized that "[a] review of the notes kept by the
school nurse suggests that the actual frequency [of nurse
visits] was rather low." (Tr. 35-36). Indeed, the notes
reflect that the plaintiff visited the nurse approximately
four times between January 2015 and February 2016 for
complaints related to itching or his prosthesis, and ...