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Gainey v. Berryhill

United States District Court, W.D. North Carolina, Charlotte Division

August 3, 2017

ANGELINE GAINEY o.b.o. J.G., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          RICHARD L. VOORHEES, UNITED STATES DISTRICT JUDGE

         THIS 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.

         I. BACKGROUND

         Plaintiff, 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.”) 38).

         A prior 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).

         Through 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).

         II. EVALUATING CHILD DISABILITY CLAIMS AND THE 2014 DECISION

         In 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. § 1382c(a)(3)(C)(i).

         In 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. § 416.924(d)(2).

         In 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).[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).

         In this 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 listings.

         ALJ 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)).[2]

         Plaintiff 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).

         III. STANDARD OF REVIEW

         The 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 Plaintiff's Objections.

         The 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.[3] 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 472.

         IV. DISCUSSION

         A. Plaintiff's Arguments, the M & R, and Plaintiff's Objections

         Plaintiff 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.”[4] (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 ...


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