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Bragg v. Colvin

United States District Court, D. Maine

July 29, 2015

CASEY BRAGG, on behalf of minor child, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION Defendant.

MEMORANDUM OF DECISION[1]

JOHN C. NIVISON, Magistrate Judge.

In this action, Plaintiff Casey Bragg seeks supplemental security income benefits for her minor child, under Title XVI of the Social Security Act. Defendant Commissioner, after concluding that Plaintiff's child does not have an impairment or combination of impairments that meets or equals a listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1, denied Plaintiff's request for benefits. Plaintiff challenges Defendant's determination.

As explained below, following a review of the record, and after consideration of the parties' arguments, the Court affirms the administrative decision.

THE ADMINISTRATIVE FINDINGS

The Commissioner's final decision is the July 23, 2013, decision of the Administrative Law Judge (ALJ) (ECF No. 9-2).[2] The ALJ's decision tracks the evaluation process for determining disability for children. See 20 C.F.R. § 416.924.

In relevant part, the ALJ found that Plaintiff's child has severe impairments consisting of attention deficit hyperactivity disorder improved with medicine, mood disorder, borderline IQ, oppositional disorder, and an anxiety disorder, but that the impairments, even in combination, do not meet, medically equal, or functionally equal the severity of a listing. (ALJ's Decision ¶¶ 3-5.) The ALJ, therefore, concluded that the child was not disabled. ( Id. ¶ 6.)

STANDARD OF REVIEW

The Court must affirm the administrative decision provided that the ALJ applied the correct legal standard, and provided that the decision is supported by substantial evidence, even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). "The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

DISCUSSION

According to Plaintiff, the ALJ erred when she concluded that her minor child does not suffer from marked limitations (or worse) in (1) the domain of acquiring and using information and (2) the domain of attending and completing tasks.[3] (Statement of Errors at 2-3, ECF No. 11.) Plaintiff contends that the ALJ erroneously gave great weight to the August 3, 2012, assessment of functioning opinion of Maine Disability Determination Services consulting expert, Lewis Lester, Ph.D. (Ex. 3A). Plaintiff maintains that Dr. Lester's opinion is not entitled to great weight because it is outweighed by, and fails to take into consideration, the subsequent Child Assessment made by Susy Sanders, Ph.D. CTS (Ex. 7F) and the opinion of Marcialee Ledbetter, MD, MPH, FAPA (Ex. 8F). Dr. Ledbetter's opinion includes a consideration of the findings of the Child Assessment. Plaintiff contends that the Child Assessment and the records and conclusions of Drs. Sanders and Ledbetter establish that the child has "marked" limitation in both of the relevant domains, and should have been afforded controlling weight.

A. The Functional Equivalence Standard

A disability finding is warranted when a child has an impairment or combination of impairments that (a) meets a listing in the Commissioner's Listing of Impairments in Appendix 1 of Part 404, subpart P, (b) has medical equivalence to a listing, or (c) has functional equivalence to a listing. 20 C.F.R. §§ 416.925-416.926a. Here, this issue is whether the minor child has an impairment or combination of impairments that is functionally equivalent to a listing. To constitute a disability, therefore, the impairments must result in a "marked" limitation in at least two of six domains of activity, or "extreme" limitation in one domain. Id. § 416.926a(d). 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. Id. § 416.926a(b)(1).

A marked limitation exists if the impairment "interferes seriously with [one's] ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(2)(i). "It is the equivalent of functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean." Id. An extreme limitation interferes "very seriously" with activities. Id. § 416.926a(e)(3)(i). "It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean." Id. Although test scores are a valuable source of relevant evidence for assessing disability in a child, the Commissioner may find that a child is not disabled even if the test scores suggest two or more marked limitations or one or more extreme limitations "if other information in [one's] case record shows that [the person's] functioning in day-to-day activities is not seriously or very seriously limited by ...


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