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Wilson v. Colvin

United States District Court, W.D. Arkansas, Fayetteville Division

May 18, 2016

RACHEL WILSON o/b/o A.R.L.S. PLAINTIFF
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION

          HON. ERIN L. SETSER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         I. Procedural Background:

         Plaintiff 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. (Tr. 32-46).

         The 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).

         Plaintiff 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).

         The 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.

         II. Applicable Law:

         In this 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. (Tr. 16-18).

         With 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 C.F.R. §416.926(a).

         “A 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, 2010).

         III. Discussion:

         Plaintiff 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.

         A.R.L.S. 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 back
2. Probable fibrous tract extending from the lipoma into the spinal canal
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).

         Dr. 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).

         Prior 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).

         On 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. 308).

         On 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 Pediatric ...


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