Jackson v. Saul (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

NATISHA JACKSON O/B/O J.J., )

)

Plaintiff, )

)

v. ) CASE NO. 3:19-CV-936-KFP

)

ANDREW SAUL, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

On April 3, 2017, Plaintiff Natisha Jackson, on behalf of her minor son J.J.,

protectively filed an application for child’s Supplemental Security Income, alleging

disability beginning on that date. T. 135-40, 143. On January 11, 2019, after appropriate

proceedings, the Administrative Law Judge issued an unfavorable decision finding J.J. was

not disabled. T. 14-33. Plaintiff seeks judicial review of that decision (see Doc. 1), and

judicial review now proceeds under 42 U.S.C. §§ 405(g) and 1383(c)(3). Upon careful

consideration of the parties’ briefs (Docs. 10, 13) and the transcript (Doc. 14), the

undersigned AFFIRMS the Commissioner’s decision for the reasons set forth below.

I. STANDARD OF REVIEW

The Court’s review of the Commissioner’s decision is a limited one. The Court’s

sole function is to determine whether the ALJ’s opinion is supported by substantial

evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d

1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983). “The Social Security Act mandates that ‘findings of the Secretary as to any fact, if

supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,

1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the

Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.

Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla—

i.e., the evidence must do more than merely create a suspicion of the existence of a fact

and must include such relevant evidence as a reasonable person would accept as adequate

to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing

Richardson v. Perales, 402 U.S. 389 (1971)); Foote, 67 F.3d at 1560 (citing Walden v.

Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).

If the Commissioner’s decision is supported by substantial evidence, the Court will

affirm, even if the Court would have reached a contrary result as finder of fact and even if

the evidence preponderates against the Commissioner’s findings. Ellison v. Barnhart, 355

F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.

1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). The Court

must view the evidence as a whole, taking into account evidence that is favorable as well

as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d

129, 131 (11th Cir. 1986). The Court “may not decide facts anew, reweigh the evidence,

or substitute [its] judgment for that of the [Commissioner]”; instead, it “must defer to the

Commissioner’s decision if it is supported by substantial evidence.” Miles v. Chater, 84

F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).

The Court will also reverse the Commissioner’s decision on plenary review if the

decision applies incorrect law or if the decision fails to provide the Court with sufficient

reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep’t of

Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v.

Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the

Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236

(11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).

II. STATUTORY AND REGULATORY FRAMEWORK

A claimant (or his parent or guardian) bears the burden of providing evidence that

he is disabled within the meaning of the Social Security Act. 42 U.S.C. § 423(d)(5)(A); 20

C.F.R. § 416.912(a), (c); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). For a

child under the age of 18 to be considered disabled and eligible for SSI under the Act, the

child must 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). The phrase “marked and severe functional

limitations” refers to “a level of severity that meets, medically equals, or functionally

equals” the Listing of Impairments found at 20 C.F.R. § 404, subpart P, appendix 1. 20

C.F.R. § 416.902(h), (o).

In evaluating a claim for child’s SSI benefits, the Commissioner follows a three-

step evaluation process. At step one, the Commissioner determines whether the claimant

is performing substantial gainful activity. See 20 C.F.R. § 416.972. If the individual is not,

the analysis proceeds to the second step. See 20 C.F.R. § 416.924(b).

At the second step, the Commissioner determines whether the claimant has a

medically determinable impairment or a combination of impairments that is severe. See 20

C.F.R. § 416.924(a). For a child under the age of 18, a medically determinable impairment

or combination of impairments is not severe if it is a slight abnormality or a combination

of slight abnormalities that causes no more than minimal functional limitations. See 20

C.F.R. § 416.924(c). If the claimant does not have a severe medically determinable severe

impairment or combination of impairments, he is not disabled. If the claimant has a severe

impairment or combination of impairments, the analysis proceeds to the third step. See 20

C.F.R. § 416.924(a).

At step three, the Commissioner determines whether the claimant has an impairment

or combination of impairments that meets, medically equals, or functionally equals the

severity of a Listing. In making this determination, the Commissioner must consider the

combined effect of all medically determinable impairments, including those that are not

severe. See 20 C.F.R. §§ 416.923, 416.924a(b)(4), 416.926a(a), (c). If the claimant has an

impairment or combination of impairments that meets, medically equals, or functionally

equals the severity of a Listing, and it has lasted or is expected to last for a continuous

period of at least 12 months, he is presumed to be disabled. If not, the claimant is not

disabled. See 20 C.F.R. § 416.924(d).

A claimant’s impairment meets or medically equals a Listing only where it “satisfies

all of the criteria of the Listing, including any relevant criteria in the introduction

[section].” Id. To satisfy all the criteria of a Listing, a claimant must (i) have a diagnosis

included in the Listings and (ii) provide medical reports documenting that the conditions

meet the specific criteria of the Listings and the duration requirement. Wilson v. Barnhart,

284 F.3d 1219, 1224 (11th Cir. 2002) (citations omitted); see also 20 C.F.R. §§ 416.925,

416.926. “For a claimant to show that his impairment matches a Listing, it must meet all

of the specified medical criteria. An impairment that manifests only some of those criteria,

no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

If a child’s impairment or combination of impairments does not meet or medically

equal a Listing, the ALJ will evaluate whether a child’s impairment functionally equals a

Listing by considering the following six broad functional areas, called domains: (i)

Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and

relating with others; (iv) Moving about and manipulating objects; (v) Caring for yourself;

and (vi) Health and physical well-being. See 20 C.F.R. § 416.926a(b)(1). If a child has an

extreme limitation in one domain or marked limitations in two domains, the child’s

impairment is functionally equivalent to a listed impairment. See 20 C.F.R. § 416.926a(d).

III. BACKGROUND

A. Factual Background

J.J. was five years old on his alleged onset date and seven years old at the time of

the ALJ’s decision. T. 20. He attended kindergarten, first grade, and second grade during

the relevant time period. T. 20. Plaintiff alleges J.J. was disabled due to ADHD. T. 188.

B. Administrative Proceedings

On April 3, 2017, Plaintiff protectively filed an application for SSI on behalf of J.J.,

alleging disability beginning on that date. T. 135-40, 143. The agency denied Plaintiff’s

application at the initial level (T. 74-78), and she requested a hearing before an ALJ (T.

82-84). Following a hearing (T. 38-61), the ALJ issued an unfavorable decision on January

11, 2019, finding J.J. was not disabled. T. 14-33. On October 30, 2019, the Appeals Council

denied Plaintiff’s request for review. T. 1-3. Thus, Plaintiff sought judicial review. Doc. 1.

C. The ALJ’s Decision

In her January 11, 2019 decision, the ALJ first found that J.J. had not engaged in

substantial gainful activity since his alleged onset date of April 3, 2017. T. 20. The ALJ

then found that J.J. had the following severe impairments: ADHD, Intermittent Explosive

Disorder/Oppositional Defiant Disorder (“ODD”), and Generalized Anxiety Disorder. Id.

Next, the ALJ found that J.J. did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the Listings. Id. In making

this finding, the ALJ noted that J.J. had not demonstrated marked or extreme limitation in

his ability to understand, remember, or apply information; concentrate, persist, or maintain

pace; or adapt or manage himself. Id. Specifically, the ALJ found no impairment in J.J.’s

ability to understand, remember, or apply information; no impairment in his ability to adapt

or manage himself; and less than marked limitation in his ability to concentrate, persist,

and maintain pace. Id. The ALJ determined that J.J. had a marked limitation in his ability

to interact with others but concluded that alone was insufficient for a finding of disability.

Id.

Next, after discussion of the evidence in the record, the ALJ found that J.J. also did

not have an impairment or combination of impairments that functionally equaled the

severity of the Listings. T. 20-33. Accordingly, the ALJ found that J.J. had not been under

a disability from his alleged onset date of April 3, 2017 through the date of the ALJ’s

decision on January 11, 2019. T. 33.

IV. ISSUES BEFORE THE COURT

Plaintiff presents two issues for the Court to consider in its review of the

Commissioner’s decision:

1. Did the ALJ err by finding that J.J. did not have an impairment or combination

of impairments that met or medically equaled Listing 112.08?

2. Did the ALJ err by finding that J.J. did not have an impairment or combination

of impairments that functionally equaled the severity of the Listings?

V. DISCUSSION

A. The ALJ did not err in finding that J.J. did not have an impairment or

combination of impairments that met or medically equaled Listing

112.08.

To meet or medically equal Listing 112.08, which deals with personality and

impulse-control disorders in children, a claimant must demonstrate:

A. Medical documentation of a pervasive pattern of one or more of the

following:

1. Distrust and suspiciousness of others;

2. Detachment from social relationships;

3. Disregard for and violation of the rights of others;

4. Instability of interpersonal relationships;

5. Excessive emotionality and attention seeking;

6. Feelings of inadequacy;

7. Excessive need to be taken care of;

8. Preoccupation with perfectionism and orderliness; or

9. Recurrent, impulsive, aggressive behavioral outbursts.

AND

B. Extreme limitation of one, or marked limitation of two, of the following

areas of mental functioning (see 112.00F):

1. Understand, remember, or apply information (see 112.00E1).

2. Interact with others (see 112.00E2).

3. Concentrate, persist, or maintain pace (see 112.00E3).

4. Adapt or manage oneself (see 112.00E4).

An extreme limitation is a limitation that “interferes very seriously with [the] ability to

independently initiate, sustain, or complete activities” and is given only to “the worst

limitations.” 20 C.F.R. § 416.926a(e)(3)(i). A marked limitation is a limitation that

“interferes seriously with [the] ability to independently initiate, sustain, or complete

activities” and is “more than moderate.” 20 C.F.R. § 416.926a(e)(2)(i).

The parties agree that Plaintiff has satisfied the “A.” provision of the Listing. Doc.

10 at 7; Doc. 13 at 10, n.2. However, the ALJ determined that Plaintiff did not demonstrate

an extreme limitation of one, or marked limitation of two, of the areas of mental functioning

in the “B.” provision of the Listing. Accordingly, the ALJ determined that J.J. did not have

an impairment or combination of impairments that met or medically equaled the Listing.

Plaintiff argues that finding was erroneous. Specifically, Plaintiff argues that J.J. has an

extreme limitation in interacting with others or, at the very least, a marked limitation in

interacting with others; concentrating, persisting, or maintaining pace; and/or adapting or

managing himself. Doc. 10 at 7, 9.

In support of her claims, Plaintiff relies on a disability Teacher Questionnaire J.J.’s

kindergarten teacher completed on May 16, 2017. T. 205-213. In that questionnaire, J.J.’s

teacher opined, in part, that J.J. had “obvious” to “very serious” problems in several areas,

which Plaintiff argues demonstrates extreme or marked limitations in the above areas of

mental functioning.1 However, while the ALJ found the teacher’s opinion to be

“persuasive,” she determined that it was “not entirely consistent with the overall record”

because the record showed J.J.’s behavioral problems were merely sporadic; his behavior

improved significantly with behavior interventions and medication; and his periods of

increased behavior problems generally corresponded to periods where J.J. did not take his

medication appropriately. T. 26.

Plaintiff takes issue with the ALJ’s treatment of the Teacher Questionnaire.

Specifically, Plaintiff argues that, while J.J.’s “extensive treatment, including multiple

medications and behavioral therapy, resulted in some improvement . . . there is no evidence

that J.J. improved to a degree that conflicts with the opinions from [his] teacher.” Doc. 10

1 For instance, J.J.’s teacher opined in part that he had a serious problem waiting to take turns and changing

from one activity to another without becoming disruptive; a very serious problem working without

distracting himself or others; a serious problem asking permission; and a very serious problem expressing

anger appropriately, following rules, and respecting/obeying adults in authority. T. 207-208. However,

J.J.’s teacher also opined that J.J.’s instructional levels in reading, math, and writing were “average to high.”

T. 205. She observed “NO problems” in J.J.’s ability to acquire and use information, including

comprehending oral and written instructions, comprehending math problems, understanding and

participating in class discussions, expressing ideas, learning new material, and applying problem-solving

skills. T. 206. She found that he had no problems paying attention when spoken to, sustaining attention

during play/sports activities, and focusing long enough to finish assigned activities. T. 207. She noted,

“[J.J.] is capable of completing [tasks] with ease and completely independently. However, he doesn’t like

to do tasks that are work in nature.” Id. She found that he had no problems using appropriate language to

communicate, introducing and maintaining relevant and appropriate topics of conversation, and taking turns

in conversation. T. 208. She noted that J.J.’s anger problems “worsened when he doesn’t get his ADHD

medication” but his behavior improved when he took his medication. T. 208, 212. She stated, “[J.J.] was

on an ADHD medication for about a week. During that time, he didn’t have any angry tantrums or outbursts.

He completed tasks with ease and seemed to be generally happier. Since that time, Mom decided to have

his dose changed [and J.J.] is not responding well to this change.” T. 212. As will be discussed below, the

ALJ considered all of this evidence in her January 11, 2019 decision.

at 8. Accordingly, Plaintiff argues the ALJ erred by “fail[ing] to cite to findings in the

record supporting her conclusion that the opinions from J.J.’s teacher are not consistent

with the record.” Id. at 9. In response, the Commissioner argues that the ALJ did cite to

evidence in the record supporting her conclusion and that her conclusion is supported by

substantial evidence. Doc. 13 at 10-12. Upon independent consideration of the ALJ’s

decision and the record, the Court agrees with the Commissioner and finds that (i) the ALJ

properly considered J.J.’s teacher’s May 2017 opinion and (ii) substantial evidence

supports the ALJ’s decision to deviate from that opinion.

i. The ALJ properly considered the May 16, 2017 Teacher

Questionnaire in her decision.

As an initial matter, the ALJ discussed J.J.’s teacher’s May 2017 opinion numerous

times throughout her decision. First, the ALJ found that the opinion conflicted with

Plaintiff’s report of her child’s abilities and behavior. T. 23. For instance, the ALJ found

Plaintiff’s report that J.J. had problems with reading, spelling, writing, math, explaining

himself, doing physical activities, and managing himself independently to be inconsistent

with the teacher’s opinion. Id. The ALJ further noted that:

The teacher did report obvious to very serious problems in interacting and

relating with others, caring for himself, and attending and completing tasks,

but she also noted that the child was quite capable of completing tasks “with

ease and completely independently.” However, he did not like to do “work”

like tasks and would become angry and throw tantrums. She said he was

angry almost all the time. She also noted, however, that the child’s anger was

worsened when he did not get his ADHD medication. She reported the child

had been on an ADHD medication for only about a week, during which time

he had no angry tantrums or outbursts. He completed tasks with ease and

seemed generally happier. However, since that time, “Mom decided to have

his dose changed” and the child did not respond well to the change.

T. 23-24. Finally, the ALJ stated that although she found the teacher’s opinion

“persuasive,” it was “not entirely consistent with the overall record.” T. 26. The ALJ stated:

Although I agree the child has some difficulty in interacting with others and

attending and completing tasks, the record does not show significant

limitations in the child’s ability to care for himself. Additionally, while the

teacher documents serious problems in attending and completing tasks and

interacting with others, with appropriate treatment these problems are better

controlled and only sporadic.[]

The record shows the child has some behavior problems that most

significantly impact his ability to interact and relate with others and his

ability to attend and complete tasks. However, the child is still able to do well

in school and makes good grades. Additionally, the behavior problems are

mostly sporadic and have improved significantly with behavior interventions

and medication. Periods of increased behavior problems generally

correspond to periods where the child did not take medicine appropriately.

Id. Thus, it is clear to the Court that the ALJ properly considered the teacher’s entire

opinion, including evidence that both supports and challenges the ALJ’s findings. See

Kilpatrick ex rel. RLK v. Colvin, No. 2:11cv652, 2013 WL 3994674, at *4 (M.D. Ala. Aug.

2, 2013) (finding no error in ALJ’s consideration of teacher questionnaire where ALJ cited

to the questionnaire twice and referred to the teacher’s responses in reaching his findings);

Courtney D. on behalf of M.B. v. Comm’r of Soc. Sec. Admin., No. 1:18cv3347, 2019 WL

5406552, at *2 (N.D. Ga. Sept. 10, 2019) (“The ALJ cited the teacher questionnaires

several times throughout her opinion and specifically explained why—based on when

Claimant started taking medication and his subsequent improvement—she accorded the

questionnaires only moderate weight.[] As such, the ALJ sufficiently explained the weight

she gave to the teacher questionnaires and her reasoning.”).

ii. Substantial evidence supports the ALJ’s finding that J.J. did not have

an impairment or combination of impairments that met or medically

equaled Listing 112.08.

Additionally, there is substantial evidence in the record, specifically addressed in

the ALJ’s decision, to support the ALJ’s finding that J.J. had only marked limitation in his

ability to interact with others; less than marked limitation in his ability to concentrate,

persist, and maintain pace; and no limitation in his abilities to understand, remember, or

apply information and adapt or manage himself. See T. 21-26 (the ALJ’s discussion of the

evidence in the record).

For instance, in June 2017, J.J. was promoted to the first grade after performing

satisfactorily in all subjects. T. 23, 145. His teachers consistently observed the following

behaviors: listening attentively and following directions; demonstrating fine motor skills;

completing projects in a timely manner; working independently with little assistance;

accepting responsibility for his own materials; and communicating with adults and peers.

T. 23, 146. He achieved expectations for all physical skills. T. 23, 148. He demonstrated

“exemplary” behavior in the areas of willing participation; consideration of self, others,

and equipment; ability to listen and follow directions; and staying on task. T. 23, 149. J.J.’s

teacher reported that he was “very smart”; that she saw progress in his attitude and

behavior; that he had made a friend who was a good role model; that she could count on

J.J. to help her around the classroom; and that he seemed to enjoy the sense of

responsibility. T. 23, 362.

In August 2017, Plaintiff reported to Dr. Patel, J.J.’s treating physician, that J.J. was

doing “okay” on his current medication but the effect wore off by 1:00 p.m. T. 24, 475.

Thus, Dr. Patel prescribed J.J. Adzenys so that it would work the whole day. Id. Also, in

August 2017, Dr. Robert Estock, a psychiatrist and state agency medical consultant,

reviewed J.J.’s record and opined that J.J. had marked limitation in interacting and relating

with others; less than marked limitation in attending and completing tasks; and no

limitations in the remaining functional domains. T. 27, 67-68.

Notably, gaps in pharmacy records indicate that J.J.’s medication was not picked up

every month, including in September and October 2017. T. 24, 370. Medication was

dispensed in November 2017. Id. That month, Plaintiff told Dr. Patel that J.J. was “doing

much better,” with only “some” bad days. T. 477. He had reportedly been doing very well

until three weeks prior, when he regressed a little bit and acted out at school and home. Id.

However, he had continued making good grades in school. Id. Dr. Patel noted that J.J. was

cooperative and that he sustained attention and concentration throughout their session. Id.

Dr. Patel assigned J.J. a Global Assessment of Functioning rating of 70, indicating only

mild symptoms. T. 478.

Medication was again not picked up in December 2017, at which time J.J. had a

behavioral issue at school. T. 24, 314-316. The medication was dispensed again in January

2018 (T. 24, 370), at which time J.J. had a follow-up appointment with Dr. Patel. T. 24,

479-483. During their meeting, Dr. Patel noted that J.J.’s behavior was cooperative and

pleasant; he was conversational and made good eye contact; his speech was fluent,

articulate, and regular in rate, rhythm, and volume; his memory was grossly intact; he had

good insight and judgment; and he was oriented with organized, logical, linear, and goal-

oriented thought processes. T. 24, 482.

In February 2018, J.J. attempted to play with his iPad during an appointment with

Dr. Patel, and he made faces when Dr. Patel made him turn it off. T. 24, 484. Dr. Patel told

Plaintiff that she needed to be strict with J.J. and should not have allowed him to bring his

iPad to the appointment. Id. Dr. Patel also noted that, although J.J. reportedly experienced

no side effects from his medications, Plaintiff was undecided and kept changing her mind

about J.J.’s medications and the doses she wanted for him. Id. During his evaluation, J.J.

was cooperative; his speech was clear, coherent, and goal-oriented; his affect was

constricted but appropriate; and he was oriented and sustained concentration and attention

throughout the session. Id. Dr. Patel made no changes to J.J.’s medications. Id.

In February and March 2018, J.J. was generally able to listen, follow directions, and

maintain a positive attitude. T. 25, 266-290. He demonstrated “good manners,” was a “very

hard worker,” and was a “good friend to others.” Id. Although J.J. had behavior problems

intermittently, he generally had good days, and he managed to calm down, control his

anger, and avoid tantrums on numerous occasions. Id. J.J.’s first grade teacher reported that

his behavioral problems were “sporadic” and inconsistent and that interventions had proven

effective. T. 25, 309.

In April 2018, Dr. Patel noted that J.J.’s anxiety, attention, hyperactivity, and

behavior were all well controlled with medication and that J.J. had no side effects from his

medication. T. 25, 485-489. J.J. had a euthymic mood; he had organized, logical, linear,

and goal-oriented thoughts; he was oriented; his memory was grossly intact; he had good

insight and judgment; he was cooperative, pleasant and conversational; he made good eye

contact; and his dress and hygiene were appropriate. Id.

J.J.’s 2017-2018 first grade report card, issued in or around June 2018, demonstrated

good to excellent grades in all subjects. T. 25, 294. His teacher indicated that he had an

“excellent 4th quarter” and had exhibited “great improvements in behavior.” Id. J.J. was

promoted to the second grade. Id.

In July 2018, Brent Smith, P.A., observed that J.J.’s interaction with his mother was

normal and that he interacted well with other adults. T. 25, 491. Plaintiff reported to Smith

that J.J. was involved in school and community activities and completed self-care tasks

like brushing his teeth, exercising, and sleeping appropriately. Id.

In August 2018, Plaintiff reported to medical personnel that medication had

improved J.J.’s behavioral issues, including his attentiveness and anger management. T.

25-26, 500. She reported that she had not given J.J. his medication as prescribed because

it made him groggy. Id. She reported that J.J. had received some school-based services that

helped with anger management. Id. The counselor encouraged Plaintiff to try a different

medication to assist with anger management. T. 503. Two weeks later, Plaintiff reported

that J.J. had experienced only one angry outburst at school, and his teacher had intervened.

T. 26, 512.

The above evidence, discussed by the ALJ in her decision, indicates that J.J. had

more good days than bad days with regard to his behavior; that he was often cooperative

and pleasant at school and medical appointments; that he had learned or was learning to

control his anger and avoid tantrums; and that he had friends. Thus, there is substantial

evidence in the record to support the ALJ’s findings that J.J.’s behavioral problems were

sporadic, rather than consistent; that his behavior improved significantly with behavior

interventions and medication; and that his periods of increased behavioral problems

generally corresponded to periods where J.J. did not take his medication as prescribed.

Accordingly, substantial evidence supports the ALJ’s finding that J.J. had a marked, rather

than extreme, limitation in interacting with others.

Furthermore, the above evidence indicates that J.J. is intelligent; that he consistently

makes good grades; that his mental status is generally normal; and that he is perfectly

capable of independently completing tasks, particularly when he takes his ADHD

medication as prescribed. Thus, there is substantial evidence in the record to support the

ALJ’s findings that J.J. had no limitation in his ability to understand, remember, or apply

information; no limitation in his ability to adapt or manage himself; and less than marked

limitation in his ability to concentrate, persist, or maintain pace. Accordingly, substantial

evidence supports the ALJ’s determination that J.J. did not have an impairment or

combination of impairments that met or medically equaled Listing 112.08. Therefore, that

determination was not erroneous.

Plaintiff cites to and argues that there is evidence in the record that supports a

contrary finding. However, this Court’s review “is limited to an inquiry into whether there

is substantial evidence to support the findings of the Commissioner, and whether the

correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002) (citations omitted). In this case, as addressed above, the Court finds that substantial

evidence supports the findings of the Commissioner and that the correct legal standards

were applied. Thus, although there may also be some evidence in the record supporting a

contrary finding, the Court is not entitled to decide the facts anew, reweigh the evidence,

or substitute its judgment for that of the Commissioner. See Winschel, 631 F.3d at 1178.

This is true even if the evidence preponderates against the ALJ’s findings. See Gibbs v.

Comm’r, Soc. Sec. Admin., 686 F. App’x 799, 800 (11th Cir. 2017).

B. The ALJ similarly did not err in finding that J.J. did not have an

impairment or combination of impairments that functionally equaled

the severity of a Listing.

As discussed above, a child may also be found disabled for purposes of SSI if he

has a severe impairment or combination of severe impairments that are functionally

equivalent to a Listing. 20 C.F.R. § 416.924(d). To demonstrate functional equivalence of

a Listing, the claimant must demonstrate one area of extreme limitation or two areas of

marked limitation in the following domains of functioning:

i. Acquiring and using information;

ii. Attending and completing tasks;

iii. Interacting and relating with others;

iv. Moving about and manipulating objects;

v. Caring for yourself; and

vi. Health and physical well-being.

20 C.F.R. § 416.926a(b)(1). Plaintiff argues that J.J. should have been found to have an

extreme, rather than marked, limitation in interacting and relating with others; a marked

limitation in concentration, persistence, or pace, which is the equivalent of attending and

completing tasks; and a marked limitation in caring for himself. Doc. 10 at 10-11.

However, for the same reasons set forth above, the Court finds that the ALJ sufficiently

explained her reasoning and that substantial evidence supports the ALJ’s findings.

Although Plaintiff vaguely argues that “[t]he ALJ certainly did not consider all the

relevant evidence relating to” these areas of functioning, see Doc. 10 at 10, Plaintiff fails

to cite to any specific evidence not addressed in the ALJ’s decision that she believes should

have been considered. See N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th

Cir. 1998) (“Issues raised in a perfunctory manner, without supporting arguments and

citation to authorities, are generally deemed to be waived.”) (citing Continental Tech. Serv.,

Inc. v. Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991)). The argument, if not

waived, is nevertheless unpersuasive. The Eleventh Circuit has made clear that “there is no

rigid requirement that the ALJ specifically refer to every piece of evidence in [her]

decision” so long as the decision enables the Court to conclude that the ALJ properly

considered the claimant’s condition as a whole. Mitchell v. Comm’r, Soc. Sec. Admin., 771

F.3d 780, 782 (11th Cir. 2014) (citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.

2005)). Here, the ALJ’s comprehensive discussion of the evidence in the record and

consideration of evidence both strengthening and weakening her position enables the Court

to make such a conclusion.2

Finally, Plaintiff briefly argues that the ALJ should have obtained a psychiatric or

psychological evaluation to assess J.J.’s mental functioning under McCall v. Bowen, 846

F.2d 1317 (11th Cir. 1988). In McCall, the Eleventh Circuit stated that, under 42 U.S.C. §

2 Plaintiff states in her brief that, “[i]n concluding that J.J. does not have an impairment or combination of

impairments that functionally equals a . . . Listing the ALJ relied primarily on findings from a non-

examining state agency medical consultant.” Doc. 10 at 12. Plaintiff argues that reliance on the consultant

was inappropriate and that “[t]he ALJ failed to explain why she concluded that the nearly year-and-a-half

of treatment records submitted after August 2017 contradicted the opinions from the non-examining

consultant.” Id. However, upon review, the Court finds neither that the ALJ relied “primarily” on the

medical consultant’s opinion nor that she concluded treatment records rendered after August 2017

contradicted that opinion. To the contrary, the ALJ discusses—at length—treatment and other records

rendered after August 2017 and simply remarks that the medical consultant’s opinion “is persuasive as it is

consistent with the overall evidence.” T. 27.

421(h), “in any case where there is evidence which indicates the existence of a mental

impairment the [Commissioner] may determine that the claimant is not under a disability

only if the [Commissioner] has made every reasonable effort to obtain the opinion of a

qualified psychiatrist or psychologist.” Id. at 1320. However, as the Commissioner

indicates, the plain language of § 421(h) appears to apply only to initial determinations,

not to decisions made by an ALJ. See 42 U.S.C. § 421(h) (stating that the rule applies to

“[a]n initial determination”); see also Sneed v. Barnhart, 214 F. App’x 883, 886 (11th Cir.

2006) (recognizing that “[t]he Third Circuit has held that the normal requirement to order

a psychiatric consult pursuant to § 421(h) does not apply to . . . cases heard by an ALJ.”)

(citations omitted).

Regardless of its applicability, the ALJ complied with § 421(h) in this case because

Dr. Estock, a qualified psychiatrist and state agency medical consultant, reviewed the

record and provided an opinion regarding Plaintiff's mental impairments and functioning.

See T. 67-71; see also Westphal v. Berryhill, No. 4:16cv59, 2017 WL 2172021, at *7 (N.D.

Ala. May 17, 2017). The opinion of Dr. Estock, as a non-examining state agency medical

consultant, is entitled to consideration as a relevant expert opinion. Westphal, 2017 WL

2172021, at *7 (citing 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i)). Indeed, this Court

and numerous other courts have previously concluded that an ALJ’s reliance on a state

agency medical consultant’s review is appropriate to satisfy any requirement imposed by

§ 421(h) even where the ALJ did not order a consultative psychological examination.3

Accordingly, the ALJ’s failure to order a consultative psychological examination in this

case was not erroneous.

VI. CONCLUSION

For the reasons set forth above, the Court finds that substantial evidence supports

the findings of the Commissioner and that the correct legal standards were applied.

Accordingly, it is ORDERED that:

1. The decision of the Commissioner is AFFIRMED.

2. A final judgment will be entered separately.

DONE this 31st day of March, 2021.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE

3 See, e.g., Westphal, 2017 WL 2172021, at *7; Fernandez v. Saul, No. 3:19cv458, 2020 WL 3259174, at

*5, n.5 (M.D. Ala. June 16, 2020) (holding record was sufficient without consultative examination by a

qualified psychiatrist or psychologist where Dr. Estock, as a non-examining state agency medical

consultant, reviewed the record and provided an opinion regarding plaintiff’s mental impairments and

functioning); Parker v. Colvin, No. 3:15cv269, 2016 WL 1092237, at *4 (M.D. Ala. Mar. 21, 2016) (same);

Thomas v. Colvin, No. 11-00569, 2015 WL 4458861, at *15 (S.D. Ala. July 21, 2015) (same).