United States District Court, W.D. Arkansas, Fayetteville Division
RACHEL WILSON o/b/o A.R.L.S. PLAINTIFF
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT
ERIN L. SETSER, UNITED STATES MAGISTRATE JUDGE
Rachel Wilson, brings this action on behalf of her minor son,
A.R.L.S., seeking judicial review, pursuant to 42 U.S.C.
§405(g), of a decision of the Commissioner of the Social
Security Administration (Commissioner) denying
A.R.L.S.’s application for child’s supplemental
security income (SSI) benefits under Title XVI of the Social
Security Act. In this judicial review, the Court must
determine whether there is substantial evidence in the
administrative record to support the Commissioner’s
decision. See 42 U.S.C. §405(g).
protectively filed the application for SSI on
A.R.L.S.’s behalf on April 27, 2012, alleging that
A.R.L.S. was disabled beginning on April 27, 2012, due to
back problems, GERD disease and asthma. (Tr. 111-116, 126,
129). An administrative hearing was held on June 6, 2013, at
which Plaintiff was represented by counsel and testified.
ALJ, in a written decision dated August 16, 2013, found that
A.R.L.S. was not disabled, as A.R.L.S. did not have an
impairment that met or was medically or functionally equal to
a listed impairment. (Tr. 18-19).
requested a review of the hearing decision by the Appeals
Council, which denied that request on November 21, 2014. (Tr.
1-5). Subsequently, Plaintiff filed this action. (Doc. 1).
The case is before the undersigned pursuant to the consent of
the parties. (Doc. 6). Both parties have filed appeal briefs,
and the case is now ready for decision. (Docs. 10, 11).
Court has reviewed the entire transcript. The complete set of
facts and arguments are presented in the parties’
briefs, and are repeated here only to the extent necessary.
case, the ALJ employed a three-step sequential test to
determine the validity of the alleged disability: 1) First, a
determination of whether the child is engaged in substantial
gainful activity; 2) Second, a determination of whether the
child’s impairments are “severe;” and 3)
Third, whether the child’s impairments are medically or
functionally equal in severity to the listed impairments set
forth in the Commissioner’s disability regulations.
respect to the third step, “a child’s impairment
is medically equal to a listed impairment if it is at least
equal in severity and duration to the medical criteria of the
listed impairment.” Pepper ex rel. Gardner v.
Barnhart, 342 F.3d 853, 854 (8th Cir.
2003)(quoting 20 C.F.R. §416.926(a). “A
child’s impairment is functionally equal to a listed
impairment if there is an ‘extreme’ limitation in
one of six specific functional domains, or a
‘marked’ limitation in at least two
domains.” Pepper, 342 F.3d at 854 (quoting 20
marked limitation in a domain is a limitation that seriously
interferes with a child’s ability to
‘independently initiate, sustain, or complete
activities.’” England v. Astrue, 490
F.3d 1017, 1020 (8th Cir. 2007)(quoting 20 C.F.R.
416.926a(g)(2)(i)). “A marked limitation is ‘more
than moderate’ but ‘less than
extreme.’” Id. “An extreme
limitation is one that ‘interferes very seriously with
[a child’s] ability to independently initiate, sustain,
or complete activities.’” Scales v.
Barnhart, 363 F.3d 699, 703-704 (8th Cir.
2004)(quoting 20 C.F.R. §416.926a(g)(3)(i).
“Domain analysis considers the child’s
age-appropriate functioning in relation to: acquiring and
using information, attending and completing tasks,
interacting and relating with others, moving around and
manipulating objects, caring for oneself, and health and
physical well being.” Pepper, 342 F.3d at 854
(quoting 20 C.F.R. §416.926a(a)(1)(i)-(vi)) “The
evaluation of age-appropriate functioning within each domain
focuses on the child’s abilities and limitations; where
the child has difficulty; the quality of any limitations; and
the kind, extent, and frequency of help that the child
needs.” Scott v. Astrue, No.
09-0196-CV-W-GAF-SSA, 2010 WL 750062 at *2 (W.D. Mo. Mar. 2,
raises the following issues in this matter: 1) Whether the
ALJ erred in failing to find that Plaintiff’s
impairments were functionally equivalent to a Listing; and 2)
Whether the ALJ erred in according “significant
weight” to the opinion of Plaintiff’s teacher.
(Doc. 10). Before discussing Plaintiff’s arguments, the
Court will briefly summarize the facts.
was born in November of 2011. (Tr. 126). At birth, his second
and third toes were connected and there was a cyst located on
his left lower back. (Tr. 205, 207). An early ultrasound in
the area of the soft tissue swelling in the lower back was
normal on December 1, 2011. (Tr. 587). A.R.L.S. was diagnosed
with gastroesophageal reflux (GERD) on December 16, 2011.
(Tr. 199). A.R.L.S. also suffered from several upper
respiratory and ear infections. (Tr.172, 176, 178, 181, 185,
187, 190). On April 3, 2012, Dr. Charles S. Ball, of
Northwest Arkansas Pediatric Clinic, reported a large 6 cm x
4 cm mass over A.R.L.S.’s lumbar spine, which appeared
to be a lipoma. (Tr. 170). On April 10, 2012, A.R.L.S. was
diagnosed with lipoma of his back, acute, and a repeat
ultrasound for spinal dysraphism was ordered, and if the
ultrasound was unable to adequately evaluate the spinal cord,
a MRI was to be performed. (Tr. 590). On April 24, 2012, a
MRI of A.R.L.S.’s lumbar spine revealed the following:
1. Probable lipoma in the subcutaneous region of the lower
2. Probable fibrous tract extending from the lipoma into the
3. Possible tethered cord
4. Motion limited examination
(Tr. 709). On May 22, 2012, A.R.L.S. was seen by Dr. Gregory
W. Albert, at the Neurosurgery Clinic at Arkansas
Children’s Hospital, for questionable spinal lipoma.
(Tr. 210). Dr. Albert noted that A.R.L.S. had been doing well
since birth, moved all extremities well with apparent good
strength, and had a fat pad just to the right of his lumbar
spine. (Tr. 211). Dr. Albert reported that he could not make
a diagnosis of spinal lipoma based on the imaging studies he
then had available, and a spine MRI under anesthesia was
subsequently performed. On July 31, 2012, Dr. Albert again
evaluated A.R.L.S., with the new MRI, and noted that A.R.L.S.
appeared to have good gross motor strength on both lower
extremities, but on his left foot, his second and third
digits overlapped each other. (Tr. 231). He found no gross
orthopedic deformity in the neutral position and reported
that he appeared to have good sensation to light touch in
both lower extremities. (Tr. 231). Dr. Albert noted that
A.R.L.S. had no evidence of hyperreflexia, had downgoing toes
bilaterally, no clonus, and did have a fatty infiltration
over his lumbar spine with a small epidemoid appendage, but
no evidence of a sinus tract. (Tr. 231). Dr. Albert reviewed
the MRI and reported that A.R.L.S. had a dorsal lipoma with a
tethered spinal cord, and there were some bony anomalies, and
a fatty infiltration of his filum. (Tr. 231). At that point,
Dr. Albert thought it was reasonable to conduct a detethering
procedure, to which Plaintiff agreed. (Tr. 231, 238).
Albert performed surgery on A.R.L.S., resectioning the spinal
lipoma and untethering the spinal cord with resection of
filum terminale, and A.R.L.S. was discharged from the
hospital on September 3, 2012. (Tr. 250, 264).
to the surgery, on May 24, 2012, Christie Krumwiede,
A.R.LS.’s teacher at Ivory M. Conley School, where he
attended, who had known A.R.L.S. for three months, and worked
with him five days a week from 8:00 am until 2:00 pm,
completed a Teacher Questionnaire. (Tr. 135-141). In said
questionnaire, Ms. Krumwiede reported that A.R.L.S. had no
problems acquiring and using information, attending and
completing tasks, interacting and relating with others,
moving about and manipulating objects, or caring for himself.
(Tr. 135-140). She also reported that he took no medication
on a regular basis and did not miss school frequently due to
illness. (Tr. 141).
October 3, 2012, Jerrye Woods, M.D., completed a Childhood
Disability Evaluation. (Tr. 305-306). Dr. Woods found that
A.R.L.S. had no limitations in acquiring and using
information, in attending and completing tasks, in
interacting and relating with others, in caring for himself,
or in health and physical well-being. (Tr. 307-308). Dr.
Woods further found that A.R.L.S. had less than marked
limitation in moving about and manipulating objects. (Tr.
October 9, 2012, Dr. Albert saw A.R.L.S. in follow-up, and
reported that he was recovering well from his complex
tethered spinal cord release and seemed to be improving
somewhat neurologically. (Tr. 413). On November 16, 2012, at
a wellness visit to Dr. Orrin J. Davis, at Northwest Arkansas