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McLeroy v. Berryhill

United States District Court, M.D. Georgia, Macon Division

December 8, 2017

MARY MCLEROY, o/b/o W. C., a minor, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

         Social Security Appeal

          REPORT AND RECOMMENDATION

          Charles H. Weigle United States Magistrate Judge

         This is a review of a final decision of the Commissioner of Social Security denying Plaintiff Mary McLeroy's application for benefits, filed on behalf of W.C., a minor. Because substantial evidence supports the Commissioner's decision, it is RECOMMENDED that the Commissioner's decision be AFFIRMED and that Plaintiff's Motion to Remand (Doc. 15) be DENIED.

         BACKGROUND

         W.C. (“claimant”) was born on January 9, 2008. (R. 385). Plaintiff filed an application for Social Security benefits on claimant's behalf, alleging disability as of February 15, 2009. (R. 195). That application was denied initially and on reconsideration, (R. 194-220), and Plaintiff subsequently requested review before an administrative law judge (“ALJ”). At a hearing before the ALJ on May 15, 2014, Plaintiff argued that claimant was disabled due to problems associated with his lower extremities, as well as psychiatric issues. (R. 170). In an opinion dated March 26, 2015, the ALJ determined that claimant was not disabled within the meaning of the Social Security Act. (R. 141-55). Plaintiff subsequently sought further administrative review before the Appeals Council, to whom Plaintiff submitted additional evidence. The Appeals Council determined that much of Plaintiff's new evidence was chronologically irrelevant, and it denied Plaintiff's request for further review on September 7, 2016. (R. 1-4). Plaintiff now seeks review before this Court pursuant to 42 U.S.C. § 405(g).

         STANDARD OF REVIEW

         Judicial review of a decision of the Commissioner of Social Security is limited to a determination of whether that decision is supported by substantial evidence, as well as whether the Commissioner applied the correct legal standards. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence” is defined as “more than a scintilla, ” and as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The Eleventh Circuit has explained that reviewing courts may not decide the facts anew, reweigh the evidence, or substitute their judgment for that of the Commissioner. Id. Rather, if the Commissioner's decision is supported by substantial evidence, the decision must be affirmed even if the evidence preponderates against it.

         EVALUATION OF DISABILITY

         Persons under the age of 18 are “disabled” for purposes of receiving Title XVI benefits if they have “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.” 42 U.S.C. § 1382c(a)(3)(C)(i).

         When analyzing the issue of disability for persons under the age of 18, the ALJ uses a three-step sequential evaluation procedure. 20 C.F.R. § 416.924(a). At step one, the ALJ determines whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). At step two, if the child is not engaged in substantial gainful activity, the ALJ determines whether the child has a medically determinable impairment or combination of impairments that is “severe.” 20 C.F.R. § 416.924(c). At step three, the ALJ determines whether the child's impairment or combination of impairments meets or medically or functionally equals one of the listed impairments, and otherwise satisfies the duration requirement. 20 C.F.R. § 416.924(d).

         To determine whether a child's impairments functionally equal a listed impairment, the ALJ must consider six “domains, ” which are “broad areas of functioning intended to capture all of what a child can and cannot do.” 20 C.F.R. § 416.926a(b)(1). The six domains are: (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 yourself, and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). To satisfy the “functional equivalent” standard, the child must have either “marked” limitations in two domains or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(d).

         MEDICAL RECORD

         The medical record in this case begins in 2008, with claimant's birth on January 9. (R. 385). Treatment notes show concern due to claimant's mother's history of cocaine use. (R. 385, 390, 433). In August 2008, claimant underwent a successful ventilation treatment for an ear infection and tube disorder. (R. 387). Claimant also received treatment for possible asthma, as well as a staph infection, in late 2008. (R. 463, 465, 478-79, 484). During 2009, claimant received follow-up care for his ear condition, (R. 486-93), as well as successful treatment for curved feet. (R. 498-504).

         The next available, pertinent record shows treatment for asthma in August 2011. (R. 511). That record also indicates that claimant, then 3 years and 7 months old, was demonstrating behavioral problems, such as outbursts “with threats to other children and mother about killing them.” (R. 511). In September 2011, claimant was diagnosed with major depressive disorder and an autistic disorder during an ...


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