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Phillips v. Berryhill

United States District Court, E.D. Louisiana

October 3, 2018

LARONDA PHILLIPS ON BEHALF OF E.P.
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

         SECTION “B” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         Laronda Phillips, on behalf of her minor child, E.P., seeks judicial review pursuant to Section 405(g) of the Social Security Act (the “Act”) of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), denying plaintiff's claim for childhood Supplemental Security Income (“SSI”) benefits under Title XVI of the Act. 42 U.S.C. § 402 et seq. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2E(B).

         Instead of filing a memorandum of facts and law as ordered, Record Doc. No. 13, plaintiff filed a motion for summary judgment. Record Doc. No. 14. The court treats her summary judgment motion as a memorandum of facts and law regarding her instant appeal from the Commissioner's final decision. The Commissioner filed a timely reply memorandum of facts and law. Record Doc. No. 22.

         I. PROCEDURAL HISTORY

         E.P. was five years and three months old on March 9, 2015 when his mother applied for SSI on his behalf, alleging a disability onset date of December 10, 2010, due to a speech impairment and “mental conditions.” (Tr. 59, 112, 129). However, “[c]laimants applying to the SSI program may not receive payments for a period predating the month in which they apply for benefits.” Rosetti v. Shalala, 12 F.3d 1216, 1224 n.20 (3d Cir. 1993) (citing 20 C.F.R. § 416.335); accord Brown v. Apfel, 192 F.3d 492, 495 n.1 (5th Cir. 1999); Wilson v. Colvin, No. 4:15-CV-711, 2017 WL 121056, at *1 n.2 (S.D. Tex. Jan. 11, 2017) (citing 20 C.F.R. § 416.335; Brown, 192 F.3d at 495 n.1). “Thus, the month following an application . . . fixes the earliest date from which benefits can be paid.” Hector v. Barnhart, 337 F.Supp.2d 905, 910 (S.D. Tex. 2004) (citing 20 C.F.R. § 416.335; Brown, 192 F.3d at 495 n.1). Phillips must show that E.P. was disabled as of March 9, 2015, when she filed for benefits on his behalf, through November 2, 2016, the date of the Administrative Law Judge's (“ALJ”) decision.

         After the application was denied, plaintiff filed a timely request for a hearing, which was conducted before an ALJ on August 11, 2016. (Tr. 35-54). The ALJ issued a decision on November 2, 2016, finding that E.P. was not disabled. (Tr. 17-31). After the Appeals Council denied plaintiff's request for review on October 5, 2017 (Tr. 1-6), the decision of the ALJ became the final decision of the Commissioner for purposes of this court's review.

         II. STATEMENT OF THE ISSUE ON APPEAL

         Plaintiff contends that the Commissioner made the following error:

A. Substantial evidence does not support the ALJ's finding that E.P. is not markedly limited in the functional domains of acquiring and using information, attending and completing tasks, and interacting and relating with others.

         III. ALJ'S FINDINGS RELEVANT TO ISSUE ON APPEAL

         The ALJ made the following findings relevant to the issue on appeal:

A. E.P. was a preschool child on his application date and a school-age child on the date of the ALJ's decision.
B. He has severe impairments consisting of attention deficit hyperactivity disorder, anxiety disorder and mood disorder.
C. His impairments do not meet or medically equal the criteria for any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, including Listing 112.11 for attention deficit hyperactivity disorder.[1]
D. E.P. does not have an impairment or combination of impairments that functionally equals the severity of any listing.
E. His medically determinable impairments could reasonably be expected to produce the alleged symptoms, but the statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical and other evidence in the record.
F. E.P. has less than marked limitations in the functional domains of acquiring and using information, attending and completing tasks, and interacting and relating with others. He has no limitation in the remaining three domains.
G. He has not been disabled from March 9, 2015, the date his application was filed, through the date of the ALJ's decision.

(Tr. 48-49, 51, 53-58).

         IV. ANALYSIS

         A. Standards of Review

         The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir. 2002); Loza v. Apfel, 219 F.3d 378, 389 (5th Cir. 2000); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Loza, 219 F.3d at 393; Spellman, 1 F.3d at 360. This court may not “reweigh the evidence in the record, try the issues de novo or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision.” Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The Commissioner, rather than the courts, must resolve conflicts in the evidence. Id.

         The ALJ is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence supports it. Harper v. Barnhart, 176 Fed.Appx. 562, 565 (5th Cir. 2006); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Newton, 209 F.3d at 452; Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).

         To qualify for SSI, a claimant must be “disabled” as defined by the Act. 42 U.S.C. § 423(a)(1)(D). In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“1996 Act”), which redefined the eligibility standard for children under the SSI disability determination process. This statute applies to all child disability applicants who filed claims on or after August 22, 1996, or whose cases were not finally adjudicated before that date. Id. § 211(d)(1)(A)(I).

         According to the 1996 Act, “[a]n individual under the age of 18 shall be considered disabled for the purposes of this title if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which 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.” Id. § 1382c(a)(3)(C)(i).

         The Commissioner's final regulations in effect at the time of the ALJ's decision provide a three-step procedure for evaluating a child's claim of disability. The first step is to determine whether the claimant is engaging or has engaged in substantial gainful activity. If the answer is “yes, ” the claimant will be found not disabled. If the answer is “no, ” the second step requires a determination of whether the claimant has a medically determinable severe impairment. If not, the claimant will be found not disabled. If the claimant has such an impairment, the last step is to determine whether the impairment meets or equals in severity, either medically or functionally, an impairment listed in Appendix 1, Subpart P, Part 404 of the Commissioner's regulations (the “Listings”). If the claimant has such an impairment and the impairment meets the duration requirement, the claimant will be found disabled. If not, the claimant will be found not disabled. 20 C.F.R. § 416.924 (2014).

         The claimant has the burden of proof at all steps of the inquiry. Parks ex rel. D.P. v. Comm'r, Soc. Sec. Admin., 783 F.3d 847, 850 (11th Cir. 2015); Taylor ex rel. D.M.T. v. Colvin, 555 Fed.Appx. 643, 643-44 (8th Cir. 2014) (citing Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004)); Lopez v. Barnhart, 176 Fed.Appx. 618, 619 (5th Cir. 2006); Fox o/b/o HMB v. Berryhill, No. 16-16892, 2017 WL 7310104, at *2 (E.D. La. Dec. 12, 2017), report & recommendation adopted, 2018 WL 671231 (E.D. La. Jan. 31, 2018) (citing Fraga v. Bowen, 810 F.2d 1296, 1301 (5th Cir. 1987); 20 C.F.R. § 416.912(a)); Pickett v. Colvin, No. 3:15CV700, 2017 WL 439978, at *2 (S.D.Miss. Jan. 6, 2017), report & recommendation adopted, 2017 WL 422812 (S.D.Miss. Jan. 31, 2017) (citing Whitehead v. Colvin, 820 F.3d 776, 781 (5th Cir. 2016)).

         The court “weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work ...


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