United States District Court, W.D. North Carolina, Charlotte Division
ANGELINE GAINEY o.b.o. J.G., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
RICHARD L. VOORHEES, UNITED STATES DISTRICT JUDGE
MATTER IS BEFORE THE COURT on cross-motions for summary
judgment. (Docs. 13, 15). Also before the Court is the
February 23, 2017 Memorandum and Recommendation of United
States Magistrate Judge David C. Keesler, to whom the motions
were referred for recommended disposition pursuant to 28
U.S.C. § 636(b)(1)(B). (Doc. 17). The Magistrate Judge
recommended that Plaintiff's motion be denied, that
Defendant's motion be granted, and that the
Commissioner's decision be affirmed. (Doc. 17 at 11).
Plaintiff filed Objections (Doc. 18) and Defendant responded
(Doc. 20). For the reasons set out below, Plaintiff's
Motion for Summary Judgment is DENIED, Defendant's Motion
for Summary Judgment is GRANTED, and the Commissioner's
decision is AFFIRMED.
on behalf of minor child J.G. (“J.G.”), seeks
judicial review of the June 24, 2014 decision of
Administrative Law Judge Sara L. Alston (“ALJ
Alston”) determining J.G. was not disabled under Title
XVI of the Social Security Act and therefore not entitled to
child supplemental security income. (Doc. 1; see
Transcript of the Record of Proceedings (“Tr.”)
application for child supplemental security income was filed
on behalf of J.G. on May 29, 2007. (Tr. 89). On October 16,
2009, an ALJ issued a decision on the original application,
finding that J.G. was not disabled (“2009
Decision”). (Tr. 99). In December 2010 another
application was filed on behalf of J.G. (Tr. 23, 240).
Plaintiff's 2010 application was initially denied on May
19, 2011, and, upon reconsideration, again denied on November
10, 2011. (Tr. 144, 157). Plaintiff received a hearing before
ALJ Alston on January 30, 2014. (Tr. 23, 47-85).
a written decision dated June 24, 2014, ALJ Alston concluded
that J.G. had not been under a statutory disability since
December 2010, when the second application was filed
(“2014 Decision”). (Tr. 20-39). On November 5,
2015, the Appeals Council denied Plaintiff Gainey's
request for review, making ALJ Alston's decision the
final decision of the Commissioner. (See Tr. 1).
Plaintiff Gainey, on behalf of J.G., brought the present
action, seeking review of the 2014 Decision. (Doc. 1).
EVALUATING CHILD DISABILITY CLAIMS AND THE 2014 DECISION
deciding whether J.G. was disabled, ALJ Alston applied the
three-step sequential evaluation process (“SEP”)
applicable to a child. (Tr. 24). A child under eighteen years
of age is considered disabled for supplemental security
income purposes if the child “has a medically
determinable physical or mental impairment, which results in
marked and severe functional limitations” and which
lasts for a period of not less than 12 months. 42 U.S.C.
deciding whether a child is disabled, an ALJ at Step One
determines whether the child is engaged in substantial
gainful activity. If not, the ALJ moves to Step Two and
determines whether the child has a physical or mental
impairment or combination of impairments that is severe. If
the ALJ at Step Two finds the impairment(s) severe, the ALJ
proceeds to Step Three and determines whether the claimant
has an impairment(s) that (1) meets, (2) medically equals,
or (3) functionally equals the Listing of
Impairments set out in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “listings”). 20 C.F.R.
§§ 416.924(a), 416.925(a). If the child has an
impairment(s) that meets or medically equals or functionally
equals the listings, the ALJ must find the child disabled,
provided the child also meets the duration requirement. 20
C.F.R. § 416.924(d)(1). If the child's impairment(s)
does not meet the duration requirement, or does not meet,
medically equal, or functionally equal the listings, the ALJ
will find the child is not disabled. 20 C.F.R. §
determining whether a child's impairment(s)
“functionally equal” the listings (also known as
“functional equivalence”), an ALJ considers how
the child functions in terms of six domains of functioning:
(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. 20 C.F.R.
§ 416.926a(b)(1), (g)-(1). The ALJ assesses functioning
in each domain, in part, by considering descriptors based on
where the child falls in the following age groups: (1)
newborns and infants (birth to attainment of 1 year of age);
(2) older infants and toddlers (age 1 to attainment of age
3); (3) preschool children (age 3 to attainment of age 6);
(4) school age children (age 6 to attainment of age 12); and
(5) adolescents (age 12 to attainment of age 18). 20 C.F.R.
§ 416.926a(g)-(1). To qualify for disability under
“functional equivalence, ” a child's
impairment(s) “must result in ‘marked'
limitations in two domains of functioning or an
‘extreme' limitation in one domain.” 20
C.F.R. § 416.926a(a).
case, ALJ Alston at Step One found J.G. had not engaged in
substantial gainful activity since the date of his
application and at Step Two found J.G. had the following
severe impairments: learning disorder, arthropathies,
achondrophlasia with spondylometaphyseal, coxa vera, and
developmental delays. (Tr. 26). At Step Three, ALJ Alston
found J.G. did not have an impairment or combination of
impairments that met or medically equaled one of the
listings. (Tr. 26). ALJ Alston, therefore, was required to
consider whether J.G. had an impairment or combination of
impairments that “functionally equaled” the
Alston, evaluating J.G. as a “school age child, ”
found that J.G. had “less than marked limitation”
in each of the six domains. (Tr. 27-38). In other words, ALJ
Alston found that J.G. did not have a “marked” or
“extreme” limitation in any of the six domains
and, as a result, found that J.G. did not have an impairment
or combination of impairments that functionally equaled the
listings. (Tr. 32-38). These findings mandated a conclusion
that J.G. was not disabled for the applicable period.
See 20 C.F.R. § 416.926a(a). The Appeals
Council denied a request for review of the 2014 Decision.
(Tr. 1). In reaching her decision, ALJ Alston did not
specifically address the findings of the prior 2009 Decision.
Although the 2009 Decision found J.G. not disabled, the ALJ
in that decision, applying the domain benchmarks for
preschool children (given J.G.'s age during the relevant
period), found that J.G. had a marked limitation in one of
the six domains, that of “caring for himself.”
(Tr. 94-99 (finding “less than marked limitation”
for the other five domains)).
Gainey, on behalf of J.G., seeks reversal of the 2014
Decision, arguing that ALJ Alston committed reversible error
by not considering the findings of the 2009 Decision in
denying J.G. benefits. (Doc. 1; Doc. 14 at 1-2). Plaintiff
has filed Objections to the Magistrate Judge's Memorandum
and Recommendation (“M & R”), which
recommended that the Commissioner's 2014 Decision be
affirmed. (Doc. 18).
STANDARD OF REVIEW
Federal Magistrates Act requires a district court to
“make a de novo determination of those portions of the
magistrate judge's report or specified proposed findings
or recommendations to which objection is made.”
Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. §
636(b)(1)) (emphases and brackets omitted). Nonetheless, a
district judge is responsible for the final determination and
outcome of the case, and accordingly the undersigned has
conducted a careful review of the M & R as well as a
de novo review of the portions of the M & R and
specified proposed findings and recommendations subject to
district court's review of the Commissioner's final
decision is limited to the following two issues: (1) whether
the Commissioner's factual findings are supported by
substantial evidence; and (2) whether the Commissioner
applied the correct legal standards. Hancock v. Astrue,
667 F.3d 470, 472 (4th Cir. 2012); see 42 U.S.C.
§ 405(g). Substantial evidence means such evidence as a
reasonable mind might accept as adequate to support a
conclusion. Hancock, 667 F.3d at 472. While
substantial evidence “does not mean a large or
considerable amount of evidence, ” Pierce v.
Underwood, 487 U.S. 552, 564-55 (1988), it is
“more than a scintilla and it must do more than create
a suspicion of the existence of a fact to be established,
” Smith v. Heckler, 782 F.2d 1176, 1179 (4th
Cir. 1986) (citing Richardson v. Perales, 402 U.S.
389, 401 (1971)) (brackets omitted). When reviewing for
substantial evidence, the court does not undertake to reweigh
evidence, make credibility determinations, or substitute its
judgment for that of the ALJ. Hancock, 667 F.3d at
Plaintiff's Arguments, the M & R, and Plaintiff's
asserts that in determining whether J.G. was disabled ALJ
Alston failed to consider the findings of the prior 2009
Decision. This failure, Plaintiff argues, violates
Albright v. Comm'r of Social Sec. Admin., 174
F.3d 473, 477 (4th Cir. 1999), and Social Security
Administration Acquiescence Ruling 00-1(4), which Plaintiff
notes “dictate that when rendering a decision in a
subsequent claim, the ALJ must consider a prior, final
decision of the Commissioner as evidence and assign
appropriate weight to its findings in a subsequent
decision.” (Doc. 14 at 1-2). Plaintiff contends this
error is significant because (1) the 2009 Decision found J.G.
suffered from a “marked” limitation in the domain
of “caring for himself” and (2) evidence
demonstrates that J.G.'s orthopedic deformities have
worsened since the 2009 Decision, especially in the domain of
“moving about and manipulating objects.” (Doc. 14
at 2). Plaintiff concludes ...