The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
KRISTIAN MOSTACCI, on behalf of
J.N.M., a Minor,
Plaintiff,
v. Case No.: 5:23-cv-263-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Kristian Mostacci on behalf of J.N.M. (“Child”) seeks judicial review
of the final decision of the Commissioner of the Social Security Administration
(“SSA”) denying her claim for supplemental security income benefits. The
Commissioner filed the Transcript of the proceedings (“Tr.” followed by the
appropriate page number), and the parties filed legal memoranda setting forth their
positions. As explained below, the decision of the Commissioner is AFFIRMED
under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I. Standard of Review, Procedural History, and the ALJ’s Decision
A. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo
standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure
to apply the correct law or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been conducted mandates
reversal.” Keeton, 21 F.3d at 1066.
The Social Security Act provides that an individual under the age of 18 will
be considered disabled if he or she has a medically determinable physical or mental
impairment that 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). Child
disability claims are assessed under a three-step sequential analysis. 20 C.F.R.
§ 416.924(a). Under this evaluation process, the ALJ determines: (1) whether the
child is engaging in substantial gainful activity; (2) whether the child’s physical or
mental impairment or combination of impairments are severe; and (3) whether an
impairment or impairments meet, medically equal, or functionally equal the listings.
Id.
A child’s limitations meet a listing if the child actually suffers from the
limitations in a listing. Shinn ex rel. Shinn v. Comm’r of Soc. Sec., 391 F.3d 1276,
1279 (11th Cir. 2004). To medically equal a listing, the child’s impairment must be
at least of “‘equal medical significance to those of a listed impairment.’” Id. (citing
20 C.F.R. § 416.926). Even if the ALJ finds a child’s impairments are not
comparable to a listing, the ALJ may still find that those limitations are “functionally
equivalent” to those in a listing. Id. To determine whether a limitation is functionally
equivalent, an ALJ assesses the degree to which these limitations interfere with a
child’s normal life activities in these six major domains of life: (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 oneself; and
(6) health and physical well-being. Id. (citing 42 U.S.C. § 416.926a(b)(1).
To functionally equal a listing, an impairment must result in “marked”
limitations in two of the six domains of functioning or an “extreme” limitation in
one domain. 20 C.F.R. § 416.926a(a), (d). A “marked” limitation is defined as
seriously interfering with a child’s ability to independently initiate, sustain, or
complete activities. 20 C.F.R. § 416.926a(e)(2)(i). A “marked” limitation also means
a limitation that is “‘more than moderate’” but “‘less than extreme.’” Id. An
“extreme” limitation means a child’s impairment very seriously interferes with his
or her ability to independently initiate, sustain, or complete activities. 20 C.F.R.
§ 416.926a(e)(3)(i). “Extreme” limitation also means a limitation that is “‘more than
marked’” and is given to the worst limitation. Id. In making all these determinations,
the ALJ must evaluate the “whole child,” meaning considering the child’s
functioning in all settings compared to other children of the same age who do not
have impairments. SSR 09-1p, 2009 WL 396031.
When considering a child’s limitations, the ALJ must evaluate any limitation
in functioning that results from symptoms, including pain. 20 C.F.R. § 416.924(a).
So along with considering the objective evidence, the ALJ must also consider a
child’s subjective complaints and if they can reasonably be accepted as consistent
with the objective and other medical evidence. 20 C.F.R. § 416.929(a). Generally, a
claimant may establish that he is disabled through his own testimony of pain or other
subjective symptoms. Ross v. Comm’r of Soc. Sec., 794 F. App’x 858, 867 (11th Cir.
2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). In such a
case, a claimant must establish:
“(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain.”
Id. (quoting Dyer, 395 F.3d at 1210).
When evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; (3) precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication to alleviate pain or
other symptoms; (5) treatment other than medication for relief of pain or other
symptoms; (6) any measures a claimant uses to relieve pain or other symptoms; and
(7) other factors concerning a claimant’s functional limitations and restrictions due
to pain or other symptoms. 20 C.F.R. § 416.929(c)(3); Ross v. Comm’r of Soc. Sec.,
794 F. App’x 858, 867 (11th Cir. 2019).
The ALJ should consider these factors along with all the evidence of record.
Ross, 794 F. App’x 867. If the ALJ discredits this testimony, then the ALJ “‘must
clearly articulate explicit and adequate reasons for’ doing so.” Id. (quoting Dyer, 395
F.3d at 1210). The ALJ may consider the consistency of the claimant’s statements
along with the rest of the record to reach this determination. Id. Such findings “‘are
the province of the ALJ,’ and we will ‘not disturb a clearly articulated credibility
finding supported by substantial evidence.’” Id. (quoting Mitchell v. Comm’r of Soc.
Sec., 771 F.3d 780, 782 (11th Cir. 2014)). A decision will be affirmed as long as the
decision is not a “broad rejection which is not enough to enable [a reviewing court]
to conclude that the ALJ considered [the claimant’s] medical condition as a whole.”
Dyer, 395 F.3d at 1211 (quotation and brackets omitted).
B. Procedural History
Plaintiff applied for supplemental security income benefits on behalf of
J.N.M. on January 2, 2020, alleging disability beginning on November 10, 2010. (Tr.
69, 168-70). The application was denied initially and on reconsideration. (Tr. 69,
70). Plaintiff requested a hearing and on April 5, 2022, a hearing was held before
Administrative Law Judge (“ALJ”) Maria Mandry. (Tr. 34-56). On June 29, 2022,
the ALJ entered a decision finding the Child had not been disabled since January 2,
2020, the date the application was filed. (Tr. 15-28).
Plaintiff requested review of the hearing decision, but the Appeals Council
denied Plaintiff’s request on February 23, 2023. (Tr. 1-5). Plaintiff began this action
by Complaint (Doc. 1) filed on April 24, 2023, and the case is ripe for review. The
parties consented to proceed before a United States Magistrate Judge for all
proceedings. (Doc. 10).
C. Summary of ALJ’s Decision
In the decision, the ALJ determined that the Child was born in November
2009, was a school-aged child on January 2, 2020 (the application date), and was a
school-aged child on the date of the decision. (Tr. 16). The ALJ also determined that
the Child had not engaged in substantial gainful activity since January 2, 2020, the
application date. (Tr. 16). The ALJ found the Child had the severe impairments of:
“learning disorder, speech and language impairment.” (Tr. 16). She then determined
that the Child did not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.924, 416.925, and 416.926). (Tr. 16).
The ALJ also found that the Child did not have any impairment or
combination of impairments that functionally equals the severity of the listings. (Tr.
17). In making this finding and after considering all the relevant evidence of record,
the ALJ determined that the Child had: a marked limitation in acquiring and using
information; no limitation in attending and completing tasks; less than marked
limitation in interacting and relating with others; no limitation in moving about and
manipulating objects; no limitation in the ability to care for himself; and less than
marked limitation in health and physical well-being. (Tr. 21-27). The ALJ concluded
that the Child had not been disabled since January 2, 2020, the date the application
was filed. (Tr. 28).
II. Analysis
On appeal, Plaintiff argues that the ALJ failed to properly evaluate the Child’s
intellectual disability and learning disorder to determine if the Child met the
requirements of Listing 112.05(B). (Doc. 17, p. 5). Plaintiff claims that the Child’s
“intellectual disability, learning disorder, and speech sound, and language disorders
meet” this listing. (Doc. 17, p. 6).
The burden lies with Plaintiff to show that the Child has an impairment that
meets or medically equals a listed impairment. Barclay v. Comm’r of Soc. Sec.
Admin., 274 F. App’x 738, 741 (11th Cir. 2008). For an impairment to meet a listing,
a plaintiff must show that it meets all the specified medical criteria. Bailey v. Soc.
Sec. Admin., Comm’r, 782 F. App’x 838, 840 (11th Cir. 2019) (citing Sullivan v.
Zebley, 493 U.S. 521, 530 (1990)). If an impairment meets only some criteria, then
it will not qualify, no matter the severity of the impairment. Id. To meet a listing, a
plaintiff must have a diagnosis included in a listing and provide medical reports
documenting that the conditions meet the specific criteria of a listing and the duration
requirement. Id. (citing Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002)).
If a plaintiff satisfies all of the criteria of a listing, then she is considered disabled.
McCormick v. Soc. Sec. Admin., Comm’r, 619 F. App’x 855, 857 (11th Cir. 2015)
(citing 20 C.F.R. § 416.920a)(4)(iii), (d).
Listing 112.05(B) for intellectual disorder for children age 3 to attainment of
18 provides:
B. Satisfied by 1 and 2 (see 112.00H):
1. Significantly subaverage general intellectual
functioning evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or
below on an individually administered
standardized test of general intelligence; or
b. A full scale (or comparable) IQ score of 71-75
accompanied by a verbal or performance IQ
score (or comparable part score) of 70 or
below on an individually administered
standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently
manifested by extreme limitation of one, or marked
limitation of two, of the following areas of mental
functioning:
a. Understand, remember, or apply information
(see 112.00E1); or
b. Interact with others (see 112.00E2); or
c. Concentrate, persist, or maintain pace (see
112.00E3); or
d. Adapt or manage oneself (see 112.00E4).
20 C.F.R. Pt. 404, Subpt. P. App. 1, § 112.05(B).
Plaintiff argues that the Child’s impairments met Listing 112.05(B). (Doc. 17, p. 6).
It appears uncontested that the Child met the first prong of Listing 112.05(B), by having a
full-scale IQ score of 70 or below or a full-scale IQ score of 71-75 accompanied by a verbal
or performance IQ score of 70 or below on an individually administered standardized test
of general intelligence. 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 112.05(B)(1). On August 18,
2021, Colleen D. Character, Ph.D. conducted a Psychological Evaluation of the Child. (Tr.
308-15). Dr. Character administered the Wechsler Intelligence Scale tests and determined
that the Child had a full-scale IQ of 63 and a verbal comprehension index of 59. (Tr. 309).
These scores meet the first prong of Listing 112.05(B). In addition, to meeting this prong,
the Child’s impairments must also meet the second prong of the listing.
To meet the second prong, Plaintiff must establish that the Child has deficits in
adaptive functioning such that he had an extreme limitation in functioning in one area or
marked limitations in functioning in two areas. 20 C.F.R. Pt. 404, Subpt. P. App. 1, §
112.05(B)(2). The areas are: (1) understanding, remembering or applying information; (2)
interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting
or managing oneself. Id.
In the decision, the ALJ determined that the Child had marked limitation in
acquiring and using information, citing the State agency medical and psychological
consultants opinions. (Tr. 22). Both State agency consultants found the Child had
marked limitation in this domain. (Tr. 64, 74). Both reached their determinations
after reviewing the medical and other evidence of record. (Tr. 64, 74). The ALJ
further found:
For example, according to the August 2021, consultative
examination report, the claimant achieved a Full Scale IQ score
of 63 on the WISC-IV; his scores were in the mild mental
retardation range of intellectual functioning. His verbal
comprehension was 59 which was considered mildly delayed.
In regards to his achievement it was found that reading level
was comparable to age 7.5 and Math level comparable to age
7.9. His working memory index was at the mildly delayed
range and his processing speed index was in the low average
range. (Exhibit 7F). At the hearing the claimant’s mother
testified that the claimant is currently on an IEP in school for
learning (Testimony). While the record evinces a problem in
this domain of function, I note that the claimant’s limitation
was not extreme. For example, the 2021 report cards show that
while the claimant had some difficulties earning a few C’s and
Ds and one B. However, the claimant continued to attend
regular classes (Exhibit 8E). Evidence shows that the claimant
had moderate delays in receptive language but the record
shows that he had 100 percent intelligibility (Exhibit 8F).
While the record evinces a problem in this domain of function,
I note that the claimant’s limitation was not extreme. Notably,
the claimant has not had to repeat a grade. The claimant is not
currently receiving special education classes. I find that this
evidence is consistent with marked limitation in acquiring and
using information.
(Tr. 22).
Plaintiff challenges that finding and contends that the Child has an extreme
limitation in this functional equivalence domain. (Doc. 17, p. 7). As stated above, an
“extreme” limitation means a child’s impairment very seriously interferes with his
ability to independently initiate, sustain, or complete activities. 20 C.F.R.
§ 416.926a(e)(3)(i). “Extreme” limitation also means a limitation that is “‘more than
marked’” and is given to the worst limitation. Id. Plaintiff fails to meet her burden
of showing that the Child’s limitations met Listing 12.05(B).
In support, Plaintiff cites a June 30, 2020 language evaluation, which found
the Child , who was 10 years and 7 months old at the time, had speech and learning
delays such that his scores reflected an age equivalency of 6 years 8 months to 7
years 10 months. (Doc. 17, p. 8, (citing Tr. 300-306)). Plaintiff also cites her
testimony that the Child struggles with expressive language, not many people can
understand him, and he needs a lot of redirection. (Doc. 17, p. 10-11). Plaintiff
contends that the evidence of record supports a finding of an extreme limitation in
the Child’s speech sound disorder. (Tr. 17, p. 11).
In the decision, the ALJ discussed the June 30, 2020 consultative examination
for speech and language. (Tr. 20). The ALJ noted that the examiner found the Child
had moderate delays in receptive language and mild delays in expressive language.
(Tr. 20, 303). But the ALJ also noted, that the Child scored 100% in intelligibility.
(Tr. 20, 305).
The ALJ discussed an August 18, 2021 psychological consultative
examination that found Plaintiff’s IQ score of 63, which showed mild mental
retardation and his verbal score of 59 which showed mildly delayed. (Tr. 20, 309).
The ALJ relied on the State agency consultative examiners that found Plaintiff had
no more than marked limitations in any of the domain areas. (Tr. 20). The ALJ
acknowledged that Plaintiff alleged that the Child had disabling symptoms, but the
ALJ found no evidence from Teacher Questionnaires, or supporting medical
evidence to support this claim. (Tr. 21). The ALJ also noted that the Child attended
regular classes at school, received grades ranging from B’s to D’s, and Plaintiff
testified that the Child had not repeated any grades. (Tr. 21, 42). The ALJ provided
substantial evidence to support the decision,
Plaintiff also argues that despite ample evidence that the Child’s intellectual
disability met Listing 112.05(B)’s requirements, the ALJ failed to discuss or
evaluate whether Plaintiff met or functionally equaled Listing 112.05(B) for
intellectual disorders in children at step three of the sequential evaluation. (Doc. 17,
p. 6). Even when an ALJ does not explicitly find that a claimant’s impairments were
contained in a listing, such a determination may be implicit in the decision. Bailey
v. Soc. Sec. Admin., Comm’r, 782 F. App'x 838, 841 (11th Cir. 2019) (citing
Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986)). While the Listings must
be considered, the ALJ is not required to “‘mechanically recite the evidence leading
to her determination.’” Id. at 841-42 (citing Hutchison, 787 F.2d at 1463.
Here, the ALJ found that the Child had the severe impairments of learning
disorder, and speech and language impairment, but found that the Child’s
impairments singly or in combination did not meet or medically equal a listing. (Tr.
16). The ALJ specifically discussed Listings 111.09 and 112.02, but not 112.05(B).
(Tr. 16-17). The ALJ also found that the Child’s impairments singly or in
combination did not functionally equal the severity of a listing. (Tr. 17). Even though
the ALJ did not explicitly state that she considered Listing 112.05(B), as found
above, the ALJ implicitly considered the requirements of the listing in the decision,
and substantial evidence supports that the Child’s impairments do not meet,
medically equal, or functionally equal the requirements of Listing 112.05(B).
In effect, Plaintiff invites the Court to reweigh the evidence, which it cannot
do. A court may not decide the facts anew, reweigh the evidence, or substitute its
judgment for that of the Commissioner. Mitchell v. Comm’r, Soc. Sec. Admin., 771
F.3d 780, 782 (11th Cir. 2014). Even if the evidence preponderates against the
Commissioner’s decision, the Court must affirm if substantial evidence supports the
Commissioner’s decision. Buckwalter vy. Acting Comm’r of Soc. Sec., 5 F. Ath 1315,
1320 (11th Cir. 2021). Here, substantial evidence supports the ALJ’s decision.
iI. Conclusion
For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on June 26, 2024.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties