United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Alleging disability due to Asperger's syndrome, attention deficit disorder, central auditory processing disorder and other maladies, Jennifer Wrene Marshall seeks judicial review of the Social Security Commissioner's denial of her Child Insurance Benefits (CIB) based on disability and Supplemental Security Income (SSI). Doc. 1 at 1.
I. GOVERNING STANDARDS
In social security cases, courts:
review the Commissioner's decision for substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id . (quotation omitted).... "We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Commissioner." Winschel, 631 F.3d at 1178 (quotation and brackets omitted). "If the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it." Dyer v. Barnhart, 395 F.3d 1206) 1210 (11th Cir.2005) (quotation omitted).
Mitchell v. Commissioner, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).
The burden of proving disability lies with the claimant. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). In response to the showing the claimant makes, the ALJ applies
a five-step, "sequential" process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(1). If an ALJ finds a claimant disabled or not disabled at any given step, the ALJ does not go on to the next step. Id. § 404.1520(a)(4). At the first step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). At the second step, the ALJ must determine whether the impairment or combination of impairments for which the claimant allegedly suffers is "severe." Id. § 404. 1520(a)(4)(ii). At the third step, the ALJ must decide whether the claimant's severe impairments meet or medically equal a listed impairment. Id. § 404.1520(a)(4)(iii). If not, the ALJ must then determine at step four whether the claimant has the RFC to perform her past relevant work. Id. § 404.1520(a)(4)(iv). If the claimant cannot perform her past relevant work, the ALJ must determine at step five whether the claimant can make an adjustment to other work, considering the claimant's RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). An ALJ may make this determination either by applying the Medical Vocational Guidelines or by obtaining the testimony of a VE. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011).
Stone v. Comm'r. of Soc. Sec. Admin., 2015 WL 106620 at *1 (11th Cir. Jan. 15, 2015) (footnote added).
A CIB "claimant must show that she is the child of an individual who is entitled to old-age or disability insurance benefits and is dependent on the insured, is unmarried, and was under a disability as defined in the Act that began before [s]he attained the age of twenty-two." Solomon v. Colvin, 2013 WL 3778447 at *3 (S.D. Ala. July 18, 2013); see also Bzadogh v. Comm'r of Soc. Sec., 2015 WL 627704 at *5 (D.N.J. Feb. 9, 2015) (same criteria applied, concluding: "Plaintiff simply has not carried her burden of proving the severity of her disability prior to the age of twenty-two."); 42 U.S.C. §§ 402(d)(1), 423(d)(1)(A); 20 C.F.R. § 404.350(a)(5).
Marshall applied for CIB and SSI benefits in 2010, claiming disability commencing on or about April 1, 2008, but seeking benefits from May 28, 2010. Doc. 8-2 at 27, 45; doc. 1 at 1. Following administrative denial, she (then aged 21) attended a 2012 hearing before an Administrative Law Judge (ALJ). Doc. 8-2 at 42, 47. He denied her application and that was upheld by the SSA's Appeals Council. Doc. 8-2 at 9-11, 36.
The ALJ determined that Marshall had not attained the age of 22 before her claimed disability onset date, April 1, 2008. Doc. 8-2 at 29. Nor had she engaged in substantial gainful activity since that date. Id. She suffers "the following severe impairments: Asperger's syndrome; attention deficit hyperactive disorder (ADHD); and central auditory processing disorder (20 CFR 404. 1520(c)and 416.920(c)), " Id. at 29-30.
That brought her to step three, where the ALJ determined that she does not have a severe enough impairment that met SSA guidelines. Id. at 30. Thus, the ALJ proceeded to step four, which required that he first determine her RFC to perform work at all exertional levels. As noted supra n. 1, RFC "is an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite his impairments." Lewis, 125 F.3d at 1440; Harris v. Colvin, 2014 WL 5844240 at *6 (S.D. Ala. Nov. 12, 2014). Once the ALJ determines ...