Opinion
Civil Action No: 00-3105, Section: "R"(1)
June 7, 2001
FINDINGS AND RECOMMENDATION
Plaintiff, Arthur Harris ("Harris") by and through his next friend, Regina Harris ("Harris"), seeks judicial review pursuant to Section 405(g) of the Social Security Act (the `Act') of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), denying his claim for supplemental security income benefits ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382 (a)(3). This matter is submitted pursuant to the minute entry of May 9, 2001. Rec. doc. 14.
PROCEDURAL HISTORY
Harris was born on July 3, 1991. R. 52. On June 12, 1993, he made application for SSI. R. 52-55. On the application his impairment was described as lead poisoning. R. 52. Regina Harris, the mother of the plaintiff, was a single mother with four other children in the household. R. 54. A second application with a filing date of June 12, 1993, but signed on May 19, 1994, described Harris' impairment as speech and language delay. R. 39-51.
Harris' mother completed a questionnaire dated May 16, 1993. R. 92-99. It showed Harris was not in school. R. 92. A similar questionnaire without any date showed that a blood test was administered to Harris to determine his blood lead level on February 14, 1994. R. 100-07. A third such questionnaire reported that Harris was not on any medication. R. 108-15. In a supplemental questionnaire Harris' mother reported the following problems: Harris woke up crying; his sleep and eating habits were poor; he was hyperactive; he kept his distance from other children; he was always fighting with other children; he did not say much; and when he did speak, he could not be understood. R. 116-17.
A medical history and disability report, prepared by Harris' mother dated April 8, 1993, described Harris' disabling condition as lead poisoning. R. 137-40. A second such report described Harris' disabling condition as speech problems and lead poisoning. R. 143-47. A third such report, dated July 3, 1991, referred to lead poisoning as Harris' disabling condition. R. 148-53.
On October 13, 1993, Harris' application was denied. R. 179-180. The determination was that: (1) the medical evidence did not show that Harris had a significant impairment due to lead poisoning; and (2) although the medical evidence showed that he had restrictions due to his speech condition, he was able to do most of the things children his age could do. R. 180. An individualized functional assessment ("WA") was completed at that time. It reported that Harris' speech limitation was not of comparable severity to an impairment that would disable an adult. R. 181-83.
On November 8, 1993, Harris sought reconsideration. R. 57. Harris' mother completed a child's daily activity report, where she reported speech and other problems with Harris. On April 18, 1994. an IFA was completed by Jean Cohen, Ph.D., with the conclusion that Harris showed a moderate cognitive impairment and a marked communicative impairment. R. 175-78. Harris' impairments substantially reduced his ability to function independently and effectively in an age appropriate manner. The impairments were comparable to that which would disable an adult. R. 178. On July 21, 1994, SSA notified Harris' mother that Harris became disabled on February 12, 1993, and that he was entitled to benefits from that date. At that time SSA sent Harris' mother more than $6,500, and Harris' mother began receiving monthly payments. R. 57-60.
On March 31, 1997, SSA notified Harris' mother that the issue of Harris' disability was being reviewed to determine if he was disabled under the new definition of disability. R. 61. Harris' mother completed a disability report on April 1, 1997. R. 118-36. Harris' mother described the disabling conditions as speech and language delays and asthma. R. 120. Harris was under the care of Dr. Patrick Dowling, who saw Harris less frequently than every two months. R. 121. Harris' mother reported that Prozac had been prescribed for depression along with medication to help Harris sleep and for asthma. R. 125. Harris' mother reported that Harris was attending special education classes at an elementary school. R. 129-30. On May 23, 1997, Harris's mother was notified that Harris no longer qualified for SSI because: (1) his speech and language problems had improved with therapy and his speech and language were age-appropriate; (2) he was no longer in special education classes but was in a regular classroom setting; and (3) there had been no severe asthmatic episodes during the past year requiring hospitalization. R. 62-65.
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has 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).
Harris' mother requested reconsideration on May 27, 1997. R. 66-74. On December 3, 1997, a disability hearing officer concluded that Harris' speech and language delays and asthma had a minimal effect on his ability to function on a daily basis. There was also no evidence of a behavior disorder. R. 78-81. On December 19, 1997, the SSA notified Harris' mother that her request for reconsideration was denied. R. 75-77.
Harris' mother requested a hearing before an ALJ. R. 83. Harris' mother said the asthma was worse and the behavior had not improved. R. 86. Harris had seen Dr. Cornett for asthma and Dr. Dowling had prescribed Prozac and other medication. R. 85-86.
On January 19, 1999, the ALJ continued the hearing until May 26, 1999, to give Harris' mother an opportunity to have an attorney present. R. 22 and 24. On May 26, 1999, there was a hearing where Harris was represented by counsel and he and his mother gave testimony. R. 24-38. The ALJ agreed to hold the record open to permit Harris' mother to secure medical records from Dr. Dowling, but they were never submitted. R. 13 and 37-38. On November 22, 1999, the ALJ issued a decision that Harris was not disabled after May, 1997. R. 10-17. Harris' mother requested that the Appeals Council review the ALJ's decision and pointed out that the ALJ did not have the records of Dr. Dowling before him. R. 5. On August 31, 2000, the Appeals Council denied the request for review of the ALJ's decision. R. 3-4.
On October 23, 2000, Harris filed a complaint to obtain judicial review of the final decision of the Commissioner. Rec. doc. 1. On February 8, 2001, the defendant filed an answer. Rec. doc. 8. On April 6, 2001, Harris filed a motion for summary judgment. R. 10. On April 6, 2001, Harris also filed a motion to supplement the record with documentation showing that Dr. Dowling is a psychiatrist. This documentation showed that after the hearing before the ALJ Harris' counsel also asked the ALJ to issue a subpoena for Dr. Dowling's records. Rec. doc. 11. On May 7, 2001, the defendant filed a cross motion for summary judgment. R. 12. The matter was taken under submission on briefs on May 9, 2001. Rec. doc. 14.
STATEMENT OF ISSUES
1. Whether the ALJ erred in determining that Harris' speech, cognitive functioning and depression impairments individually or any combination of them were not severe at step two of the sequential evaluation process?
2. Whether the ALJ erred in refusing to issue a subpoena duces tecum for the records of Dr. Patrick Dowling?
3. Whether the ALJ's determination that Harris did not meet or equal a listed impairment and was no longer disabled was supported by substantial evidence?
ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL
The ALJ made the following findings relevant to the issues on appeal:
1. The claimant is a minor child and has not worked.
2. The claimant has severe impairments: a history of asthma well controlled.
3. The claimant does not have an impairment or impairments which either singly or combination [sic], meet or equal an impairment listed in Appendix I, Subpart P Regulations 4.
4. The testimony at the hearing was not fully credible and did not demonstrate disability.
5. The claimant has a less then marked limitation in motor functioning and no significant limitations in the other areas of functioning by Public Law 104-193.
6. The claimant does not have an impairment or impairments which are the functional equivalent of an impairment listed in Appendix I.
7. The claimant has not been disabled at least since May 1997.
R. 16-17.
ANALYSIS
a. Standards of Review
The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001); Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Newton, 209 F.3d at 452. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision. Johnson v. Bowen, 864 F.2d 340, 343.44 (5th Cir. 1988). This court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's. Id.; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The ALJ is entitled to make any finding that is supported by substantial evidence, regardless of whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022;Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
Before 1990, a child was "disabled" if he suffered from any medically determinable physical or mental impairment of "comparable severity" to an impairment that would prevent an adult from working. 42 U.S.C. § 1352c(a)(3) (1982). On February 20, 1990, the United States Supreme Court decided Sullivan v. Zebley, 110 S.Ct. 885 (1990). The Fifth Circuit recently described the ruling in Zebley as:
[T]he [Supreme] Court invalidated regulations requiring a medical "listings-only" approach to child SSI disability claims and held that, in addition to evaluating claims based on listed impairments, the Commissioner must adopt a functional approach to child disability claims, much like the system already in place to evaluate adult claims.Harris v. Apfel, 209 F.3d 413, 417 (Sth Cir. 2000). After Zebley, the Commissioner "substantially liberalized" the childhood SSI eligibility regulations to provide for an individualized functional analysis ("IFA"). See Haws v. Anfel, 61 F. Supp.2d 1266, 1272 (M.D. Fla. 1999).
Harris was awarded benefits under these "substantially liberalized" regulations in July, 1994. R. 57-60. If the current matter had come before an ALJ in 1994, the statutory and regulatory criteria in effect at that time would have required the ALJ to apply the four-step evaluation process to Harris' claim. See Harris v. Apfel, 209 F.3d at 418. First, the ALJ would have had to determine whether Harris was engaged in substantial gainful activity. See 20 C.F.R. § 416.924 (c). Second, if Harris was not engaged in substantial gainful activity, the ALJ would have had to determine whether he had a severe impairment. See 20 C.F.R. § 416.924 (d). Third, if Harris had a severe impairment, the ALJ would have had to determine whether that impairment met or equaled an impairment listed in 20 C.F.R. Part 404, subpt. P. app. 1 ["the Listings"]. See 20 C.F.R. § 416.924 (e). Fourth, the ALJ would have made an IFA to determine whether Harris had an impairment or impairments of comparable severity to that which would prevent an adult from engaging in substantial gainful activity. See 20 C.F.R. § 416.924 (f) and Haws v. Apfel, 61 F. Supp.2d at 1273.
In 1996 the Personal Responsibility and Work Opportunity Reconciliation Act, 42 U.S.C. 7 § 1382c(a)(3)(C), was signed into law. This statute and the regulations thereunder mandate a different three step analysis.
We follow a set order to determine whether you are disabled. If you are doing substantial gainful activity, we will determine that you are not disabled and not review your claim further. If you are not doing substantial gainful activity, we will consider your physical or mental impairment(s) first to see if you have an impairment or combination of impairments that is severe. If your impairment(s) is not severe, we will determine that you are not disabled and not review your claim further. If your impairment(s) is severe, we will review your claim further to see if you have an impairment(s) that meets, medically equals, or functionally equals in severity any impairment that is listed in appendix I of subpart P of part 404 of this chapter. If you have such an impairment(s), and it meets the duration requirement, we will find that you are disabled. If you do not have such an impairment(s), or if it does not meet the duration requirement, we will find that you are not disabled.20 C.F.R. § 416.924 (a).
A child is not disabled if his impairments do not meet, medically equal, or functionally equal in severity a listed impairment. 20 C.F.R. § 416.924 (d). Age, functioning, and other factors are evaluated in determining whether a child meets a listing. 20 C.F.R. § 416.924a-416.924c. If a child's impairments do not meet a listed impairment, the Commissioner will assess all functional limitations caused by the child's impairments to determine whether the functional limitations are disabling. 20 C.F.R. § 416.926a (functional equivalence for children). Individualized functional assessments for children, however, have been eliminated. See 20 C.F.R. § 416.924d and 416.924e (discontinued).Haws v. Apfel, 61 F. Supp.2d at 1276.
The defendant appears to suggest that the ALJ employed the four step analysis that was promulgated pursuant to Sullivan v. Zebley, 493 U.S. 521 (1990). Rec. doc. 12 at pp. 4-5. This is incorrect. The ALJ's decision of November 22, 1999, employed the three step analysis. R. 10-11. The defendant also argues that the 1996 Personal Responsibility and Work Opportunity Reconciliation Act provides a stricter standard for determining eligibility for Title XVI disability child's benefits than Zebley's four step analysis. The defendant states: "Because this new standard is more stringent than the former standard, any decision that could have been affirmed under the former standard may and should be affirmed by this court." Rec. doc. 12 at p. 4. Although this is a correct statement of law, the inference is that the ALJ denied Harris' claim for benefits under the former standard. Again this is incorrect. Because the ALJ correctly employed the current standard with its three step process, this court must review the decision under the current standard.
Harris v. Apfel, 209 F.3d at 419.
b. Testimony at the May 26, 1999. Hearing before the ALJ
Harris' attorney reported that the records of Dr. Patrick Dowling had been requested a few weeks before the hearing, but had not been received. The ALJ ruled that the record would be held open a few weeks. R. 26. Harris' attorney argued that Harris had marked limitations in the cognition and social areas, so Harris' condition, medically or functionally, met or equaled the severity of an Organic Mental Disorder found in § 112.02 of Part 404, Subpart P, App.1. R. 27.
The ALJ asked Harris his name, age, with whom he lived, where he lived and his school. Harris answered each of these questions either by providing the information or nodding. R. 27-28. In response to examination by his attorney, Harris said he did not have any friends in school or in his neighborhood. R. R. 31. He liked to play football and his hero was a boxer. R. 31. He wanted to be a football player when he grew up. R. 32.
The remainder of the hearing was testimony by Harris' mother in response to questioning by the ALJ and Harris' attorney. Harris' mother said that Harris had developed normally in physical terms. R. 29. He weighed about 48 pounds and was seven years old at the time of the hearing. R. 29. She reported that Harris had problems with his speech. R. 30. Harris' teacher told her that the teacher had problems understanding Harris. R. 30. Harris had asthma attacks about twice a week and used an inhaler. R. 33.
The mother reported that Harris had been on Prozac for about six to twelve months. R. 30. Dr. Dowling prescribed the Prozac. R. 30. Harris also received prescription medication to help him sleep, to help control himself so he did not aggravate others and to help control his bladder so he did not wet the bed. R. 32 and 33. Harris' mother related that she had to send extra clothes to school on account of his bladder control problem. R. 33.
Harris' mother worked and there were four other siblings at home. The ages of the siblings were 13, 10, 6 and 5. R. 29. Harris' mother said that most of the time the children got along. R. 30. Harris played and fought with his five year old brother. R. 30 and 36. Harris fought with his sister and on one occasion cut her arm with a knife. R. 37. Harris was aggressive around children and children did not want to come over to the house. R. 34. Harris did not have any friends in the neighborhood. R. 35. Harris' uncle had helped a lot with the children, including Harris, but he was murdered in 1996. R. 37.
Harris' mother said that Harris did not have any pets and did not like animals. R. 35. Harris was seen kicking a cat and throwing a stick at an adult neighbor. R. 35. Harris told his mother that he wanted to have a gun when he grew up. R. 37. Harris played under the house with matches and set fire to the carpet in the house. R. 35-36. Harris' mother could not send Harris to the store by himself R. 34. Harris did try to help her around the house, including taking out the garbage. R. 34.
Harris' mother reported that Harris was in the second grade at school and had not repeated any classes. R. 29. Harris had never been suspended at school. R. 30. Harris wrote neatly, but needed improvement with his reading skills. R. 34. Harris' memory was satisfactory. R. 34. Harris' attention span was short because he watched television. R. 38.
c. Medical and School Evidence
After he was born on July 3, 1991, Harris was seen by the New Orleans Department of Health. R. 213. When he was a week old, he was described as a well infant. R. 213-14. When he was two months old, his appearance was normal and no problems were noted. R. 209-10. At five months he was described as alert and active. He had a viral syndrome, so he was placed on a diet. R. 211-12. At twelve months he was described as alert, active and well groomed, but he had asthma. R. 208. At thirteen months he was described as alert and active, but he had diarrhea. R. 200-01. At fifteen months he was described as alert, active and well developed. His appearance was healthy. His history showed asthma and he was being followed for lead poisoning. R. 197. At eighteen months he was described as a happy and well child. R. 194-95. At twenty-two months he was described as alert and healthy. R. 185-86.
From Harris' second birthday in July, 1993, until September, 1996, there are no records of visits by Harris to a health care provider. There is a vaccine administration record from the General Practice Clinic that records vaccinations for Harris beginning in September, 1991, within two months of his birth and the last on January 9, 1997. R. 241.
On August 2, 1993, when Harris was about 25 months old, he was seen by Dr. Calvin Hoffpauir, a medical doctor, at the request of the Disability Determination Services ("DDS"). R. 225-27. Harris was described as a well developed, fairly well nourished male child. He was pleasant, alert and curious, but was quiet and did not speak. He made good eye contact and obeyed most commands. R. 227. The diagnosis was speech delay and lead poisoning by history only. R. 226-27.
On September 15, 1993, when Harris was about 26 months old, he was evaluated by Dr. Harold Dawley, a clinical psychologist, at the request of ("DDS"). R. 228-30. A Battelle Developmental Inventory test was administered. Harris showed strength in motor skills, functioning at the 23 month age level. His communication skills were weak, functioning at the 13 month age level. R. 229. The diagnosis was a speech development delay. R. 230.
On January 6, 1994, when he was 30 months old, Harris was evaluated by a multi-disciplinary team at the Orleans Parish Public School system. R. 232-38. The team included a school psychologist, speech language specialist and audiologist. R. 238. Harris exhibited deficits in perceptual/cognitive functioning as evidenced by delays in receptive and expressive language skills. He also exhibited deficits in preschool and conceptual skills. R. 232. A Bayley Mental Scale indicated that Harris was at a developmental age of 20.5 months compared to his chronological age of 30 months. R. 234. The evaluation indicated that Harris had the developmental and communication characteristics of a child with disabilities. R. 236. It was recommended that Harris receive special education services for a child with mildly impaired perceptual and cognitive functioning. R. 236.
The General Practice Clinic records from January 1, 1996, through April, 1997, were submitted. On September 19, 1996, Harris was taken to the clinic for asthma. R. 246. The record of this visit shows that Harris' previous visit was four years earlier in 1992. R. 246. On October 8, 1996, Harris was seen at the clinic for asthma and a cold. R. 245. On both occasions the medications for Harris were reported as "none." R. 245-46. Harris was not scheduled for a further visit. R. 245. On January 9, 1997, Harris returned to the clinic for vaccinations. Asthma was not noted as a problem at that time. R. 242. Harris was scheduled to return in two months. R. 242.
On January 29, 1997, when Harris was five and half years old, the Orleans Parish School system prepared an integrated report of an evaluation of Harris. R. 251-64. Among the persons participating in the evaluation were a registered nurse, speech pathologist, Harris' classroom teacher, a social worker and an educational diagnostician. R. 251 and 263. The report showed that. based on the January 6, 1994, evaluation, Harris was classified as "NonCategorical Preschool" and it was recommended that he be given speech therapy. R. 252. Harris was reported to be working toward the development of cognitive, academic communication skills. R. 252. Harris was receiving speech therapy. R. 252. The evaluation included an interview with Harris' teacher, classroom observation, an interview with Harris and an interview with Harris' mother. R. 253-54. The report of the classroom observation was as follows:
Arthur was observed in his special education class while engaged in a teacher directed activity. Arthur remained on task 90% of the time. Off task behaviors included looking around the room and playing with paper. Overall observed behavior appear [sic] to be appropriate to the instructional setting.
R. 253. The report of the interview with Harris was as follows:
An interview of Arthur was conducted by the Educational Diagnostician. Analysis of the information obtained through the interview indicated that Arthur enjoys school and that he likes being mainstreamed to a regular kindergarten class. Arthur appears to have good peer relationships. R. 253.
R. 253. A Woodcock-Johnson Psycho-Education Test was administered. It showed that Harris functioned in the average range in broad knowledge and basic skills. R. 256-57 and 260. Harris was described as having achieved all speech related objectives. R. 257. The observations of Harris in and out of speech therapy revealed he was capable of expressing his needs and was an effective communicator with peers and adults. R. 257. The report concluded that Harris no longer qualified for speech therapy. He did not have significant medical problems and he did not learn like a disabled student. R. 260-61.
On April 23, 1997, when Harris was nearly six years old, his teacher of three years, Rita Green, completed a school function form. She was with Harris Monday through Friday from 8:30 am. to 3:00 p.m. for September to June. R. 272. Green described Harris as attentive. He had achieved 90 to 100% of his January, 1994, integrated evaluation objectives. He was successfully mainstreamed into a regular kindergarten class. R. 272. Green said.
Arthur is well liked by his speech therapist, his regular kindergarten teacher, the other adults with whom he interacts. I am particularly fond of Arthur. He has made a great deal of progress and could function well in a regular education setting.
R. 272. Green emphasized that Harris never required disciplinary action. R. 272. She indicated that there had been no sudden worsening in Harris' behavior or functioning, such as becoming disruptive in class. R. 272. Green noted that Harris' mother had reported the loss of Harris' uncle, but Green said that Harris did not appear to manifest any symptoms or changes of behavior due to the incident. R. 273. Green responded in the negative to a question concerning whether Harris had physical problems, for example lack of bladder or bowel control. R. 273. On a scale of 1-7, where I meant no friends and excluded from activities, 4 meant got along with others and 7 meant very popular and well liked, Green placed Harris between 5 and 6. Green was asked if Harris took any medications and she replied: "If he does, it is given to him at home and I have not been aware of this. I have requested parent conf. but rec'd. no response." R. 273.
On September 23, 1998, when Harris was seven years old, he was evaluated by Dr. James Gay, a clinical psychologist, at the request of DDS. Some of Dr. Gay's observations were as follows:
[Harris] was initially reserved in his approach to the examiner but became more engaging as the session progressed. . . . He engaged in some play initially and then he was able to be productive with the testing presented to him. He was slightly reserved in his verbal statements but became more willing to talk as the session progressed. . . . Arthur seemed to understand directions presented to him and put forth increasing effort as the session progressed. . . . His speech is slow. . . . He was able to be understood most of the time, however, he did tend to make one or two word statements rather than complete sentences.
R. 288. The results of the WISC-III tests indicated that Harris functioned in the borderline range of cognitive skills. His full scale IQ was 74. The results of a mental status examination indicated that Harris appeared to function below average in terms of cognitive skills. Dr. Gay said: "He does appear to be functioning well below average cognitively." R. 290. No unusual behavior was noted at the time of the examination. R. 291. Dr. Gay said Harris could benefit from Special Education referral and evaluation. R. 291.
d. Plaintiffs Appeal Issue No. 1. Whether the ALJ erred in determining that Harris' speech, cognitive functioning and depression impairments individually or any combination of them were not severe at step two of the sequential evaluation process?
Harris contends that at step two of the three step analysis the ALJ found that Harris had only one severe impairment, asthma, and did not find any of the following to be severe impairments: borderline intelligence, psychiatric, or expressive speech. Harris argues that underStone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) and SSR 96-3P (1996 WL 374181 (S.S.A.)), the ALJ should have determined that these impairments were severe. SSR 96-3P provides in part:
For such an individual [under age 18], an impairment(s) is considered "not severe" if it is a slight abnormality(ies) that causes no more than minimal limitation in the individual's ability to function independently, appropriately, and effectively in an age-appropriate manner.
1996 WL 374181 at p. 1. Stone v. Heckler states:
An impairment can be considered as not severe only if it is a slight abnormality having such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.
752 F.2d at 1101. Harris argues that the impairments were severe for the following reasons: (1) Dr. Gay reported in 1998 that Harris had problems with his speech; (2) the court reporter was unable to record half of Harris' testimony; (3) Harris' teacher said she had difficulty understanding him; (4) a DDS non-examining physician identified speech and language delay as severe in 1997; (5) Harris was tinder treatment by a child psychiatrist; (6) the ALJ improperly discounted the testimony of Harris' mother; and (7) the ALJ did not reconcile the conflict between Dr. Gay's determination that Harris' intelligence functioned at the borderline level and the Orleans Parish Public School system's finding that Harris was doing well in terms of effective performance. Harris contends that the ALJ's errors of analysis at step two fatally marred the analysis at step three.
In Stone v. Heckler, the Fifth Circuit said,
[I]f a determination is made that a claimant's impairment is not severe, the consideration of the claim ends at that point. . . . The prevailing idea, then, among the courts and Congress, is that some impairments are so slight that the ability of the claimant to work can be decided without a full evaluation of vocational factors. The factfinder is entitled to follow a sequential process that disposes of those cases at an early stage.752 F.2d at 1102-03. The ALJ did not stop at step two of the three step process and find that Harris was not disabled. The ALJ found that Harris' asthma was severe and then proceeded to step three. Assuming arguendo that there was not sufficient evidence to support the ALJ's conclusion that Harris' expressive speech, borderline intelligence and psychiatric problems were not "severe," it is immaterial. The ALJ did not attempt to dispose of the case at step two of the process.
Issue No. 2. Whether the ALJ erred in refusing to issue a subpoena duces tecum for the records of Dr. Patrick Dowling?
After the Personal Responsibility and Work Opportunity Reconciliation Act became law on August 22, 1996, and prior to March 31, 1997, Harris' mother was notified that the SSA expected to review Harris' disability case to determine if he was disabled under the new definition of disability for children. R. 61. The exact date of such notice does not appear in the record. R. 61. The record shows that from 1992 through April, 1997, Harris was seen by a doctor for his asthma only on September 19 and October 8, 1996. R. 245-46. Between September 23, 1996, and January 24, 1997, the Orleans Parish School System conducted its evaluation and concluded that it was no longer necessary for Harris to remain in his special education classes for speech therapy. R. 252 and 260. On January 26, 1997, the Orleans Parish School system conducted a family interview as part of that evaluation. In that interview Harris' mother said that Harris had been referred to East Lake Hospital. Reportedly Harris was examined by a physician and Harris was scheduled to be seen for possible medication and therapy. R. 254. Harris' mother attributed the problems to the death of Harris' uncle. R. 254.
Haws v. Apfel, 61 F. Supp.2d 1266, 1274-75 (M.D. Fla. 1999).
Harris' mother prepared a disability report, where she identified both East Lake Hospital and the General Practice Clinic as health care providers. The report appears to have been prepared between April 1, 1997, and April 18, 1997. R. 121 and 125. Harris' mother indicated that Harris was taken to CPC East Lake Hospital (Metro Behavior Clinic) on 5650 Read Boulevard in New Orleans East, where he was seen by Dr. Patrick Dowling initially on February 25, 1997, and then on April 1, 1997. The next appointment was April 18, 1997. Harris' mother indicated that Harris would see Dr. Dowling less frequently than every other month. R. 121. Harris' mother reported that Prozac for depression and another medication for sleeping had been prescribed on April 1, 1997, but Harris had not yet started taking them. R. 125.
At the May, 26, 1999, hearing Harris' mother testified that Harris did not begin taking Prozac until six to twelve months before the hearing or between May and November, 1998. R. 30.
On May 13, 1997, CPC East Lake Hospital replied to the Department of Social Services that it had no records on Arthur Harris. R. 275. The request for information included Arthur Harris' date of birth and social security number. R. 240. The General Practice Clinic was also asked to provide information, which it did.
On April 23, 1997, Rita Green, Harris' teacher of three years, said that if Harris was given any medication, it was given to him at home and she was not aware of it. The Orleans Parish School System January, 1997 evaluation included a report on Harris' current medical data. It included the report that Harris was treated for asthma in October, 1996. R. 260. It did not refer to any treatment by Dr. Dowling or East Lake Hospital, except by reference to the report from Harris' mother that such treatment was sought. R. 254 and 260. Although Harris' mother reported to the Orleans Parish School system evaluation team that she was experiencing behavior problems with Harris at home, there were no such problems observed in school. R. 272-74. Dr. Gay examined Harris in September, 1998, and he found no unusual behavior at that time. R. 291.
At the May 26, 1999, hearing Harris' attorney reported that Dr. Dowling's records had been requested. R. 37-38. The ALJ agreed to hold the record open to permit Harris' mother to secure Dr. Dowling's records (R. 37-38), but they were never submitted. R. 13. After the hearing Harris' attorney asked the ALJ to subpoena the records of Dr. Dowling, but the ALJ took no action on this request. Rec. doc. 11.
Harris argues that the ALJ's failure to act on the request for a subpoena violated the ALJ's obligation to fully and fairly develop the record and provide a fair hearing and due process. Harris cites 20 C.F.R. § 416.1450 (d), which provides that, "When it is reasonably necessary for the full presentation of a case, 865" an ALJ may issue a subpoena. It also provides that when a party wishes to subpoena documents the party must file a written request for issuance of the subpoena at least five days before the hearing. 20 C.F.R. § 416.1450 (d)(2). Harris did not make her request for a subpoena until after the hearing. Rec. doc. 11.
In Kane v. Heckler, 731 F.2d 1216 (5th Cir. 1984), following a five minute hearing at which the claimant was not represented by counsel, the ALJ concluded that the claimant was not disabled and terminated her SSI benefits. Id. at 1218. The Fifth Circuit concluded that the ALJ failed to adequately develop the facts and inquire into the claimant's complaint that she was unable to work because of her pain, for which there was an objective medical basis. Id. at 1218. Where the claimant was unrepresented, the ALJ's basic obligation to develop a full and fair record rose to a special duty. Id. at 1219. Even if the ALJ failed to develop an adequate record, the claimant must show she was prejudiced, that is the evidence might have altered the result. Id. at 1220.
Harris was represented by counsel at the hearing, so the special duty described in Kane v. Heckler was not present with Harris. The defendant sought the medical records from East Lake Hospital based upon the information provided by Harris' mother. The hospital replied that it had no records on Harris. Harris was given an opportunity to supplement the record, but did not. The ALJ fulfilled his obligation to develop the record.
Harris has not shown that the records from Dr. Dowling would have made any difference. Whatever depression Harris' mother believed was affecting Harris was not observed by either Harris' teacher or by the others involved in the Orleans Parish School system's evaluation. R. 251-64 and R. 272-73. It was also not observed by Dr. Gay in his examination of Harris. R. 291.
Issue No. 3. Whether the ALJ's determination that Harris did not meet or equal a listed impairment and was no longer disabled was supported by substantial evidence?
At the third step the ALJ was required to determine if Harris had an impairment or any combination thereof that met, medically equaled, or functionally equaled in severity any impairment that is listed in appendix 1 of subpart P of part 404. 20 C.F.R. § 416.924.
An impairment(s) causes marked and severe functional limitations if it meets or medically equals in severity the set of criteria for an impairment listed in the Listing of Impairments in appendix I of subpart P of part 404 of this chapter, or if it is functionally equal in severity to a listed impairment.20 C.F.R. § 416.924 (d). To determine whether a child is disabled, the SSA will consider all relevant evidence, including medical evidence, school records, information from people who know the claimant and can provide evidence about the claimant's functioning, such as parents, care-givers, and teachers. 20 C.F.R. § 416.924 (f).
At step one of the three step analysis the ALJ determined that Harris was a minor, so there was no evidence of work activity. R. 13. At step two the ALJ found that Harris' had a "severe" impairment with his asthma, but he did not have a "severe" speech impairment. R. 13-14. As a result of the finding that Harris' asthma was a "severe" impairment, the ALJ was required to go to step three. At step three Harris could be disabled for the following: (1) Harris met the listing for an impairment identified by the regulations; (2) Harris' condition medically equaled a listing; or (3) Harris functionally equaled a listing.
At the hearing Harris' attorney said that Harris had marked limitations in the cognition and social areas, so Harris' condition medically or functionally met or equaled the severity of an Organic Mental Disorder found in § 112.02 of Part 404, Subpart P. App.1. R. 27. Harris' motion for summary judgment states:
The record in its entirety shows that Arthur does in fact meet or equal the criteria of several listings, including 112.01, 112.04, and 112.05(D), (E) and (F) (Subpart P. App. 1, Part B). 112.02 is met or equaled by the child's disturbances in personality and mood; his impaired cognitive functioning; and his impairment in social functioning. 112.04 is met or equaled by the evidence that his depression, despite appropriate treatment, persists with the usual attendant symptoms. 112.05 is met or equaled by the valid IQ scores of 74 (FS), 81(V), 73(P) (given the accepted range of statistical error); the secondary criteria of each listing is met by the clear evidence of the child's marked impairment in social functioning, his depression, his maladaptive behaviors, and his speech impairment. (Emphasis in original).
Rec. doc. 10 at pp. 12-13. It must be assumed that Harris contends that either he met these listings or he medically equaled these listings. The Childhood Disability Evaluation Forms show that the reviewers concluded Harris did not meet or medically equal any of the listings. R. 276, 280 and 284. Presumably the ALJ did likewise.
Sub-issue no. 3A. Did Harris meet or medically equal the listings for Organic Mental Disorder, Mood Disorders or Mental Retardation?
In order to meet the required level of severity for an Organic Mental Disorder it is necessary that there first be medically documented persistence in at least one often categories. Id. at 112.02A. Harris urges that such persistence was present in four of the ten categories: (1) disturbance in personality (e.g., apathy, hostility); (2) disturbance in mood (e.g., mania, depression); (3) impairment of impulse control (e.g., disinhibited social behavior, explosive temper outbursts); and (4) impairment of cognitive function, as measured by clinically timely standardized psychological testing.
There is no medically documented persistence of any disturbance in Harris' personality. Indeed the evidence from the Orleans Parish School System and Dr. Gay is to the contrary. The only evidence of disturbance of personality was provided by Harris' mother.
There is no medically documented persistence of depression. Ms. Harris argues that she has been denied the right to present such evidence, because the ALJ refused to subpoena the records from Dr. Dowling. As discussed above, Harris has not shown that these records would have made any difference. Based upon the evaluation by the Orleans Parish School system, Ms. Green's report and Dr. Gay's examination, whatever depression or social behavior problem Harris experienced was controlled.
While Dr. Gay's testing presents evidence of impairment of cognitive function, the Orleans Parish School system's testing did not. What Harris wants this court to do is weigh the evidence, but it is enjoined from doing so. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
In order to meet the required level of severity for a Mood Disorder it is necessary that there first be medically documented persistence, either continuous or intermittent, of one of the following: (1) major depressive syndrome; (2) manic syndrome; or (3) bipolar or cyclothymic syndrome.Id. at 112.04A. Only the major depressive syndrome is at issue. Such a syndrome must be characterized by at least five of the ten following symptoms: (a) depressed or irritable mood; (b) markedly diminished interest or pleasure in almost all activities; (c) appetite or weight increase or decrease, or failure to make expected weight gains; (d) sleep disturbance; (e) psychomotor agitation or retardation; (f) fatigue or loss of energy; (g) feelings of worthlessness or guilt; (h) difficulty thinking or concentrating; (i) suicidal thoughts or acts; or (j) hallucinations, delusions, or paranoid thinking. One of the five symptoms must either be depressed or irritable mood or markedly diminished interest or pleasure. Id. at 112.04A.1.a.-j.
The credibility of the testimony of Harris' mother is discussed below, but even if her testimony is fully credited Harris did not demonstrate at least six of the ten symptoms. Harris' mother did not offer any testimony to support the following: (1) markedly diminished interest or pleasure in almost all activities; (2) appetite or weight increase or decrease, or failure to make expected weight gains; (3) psychomotor agitation or retardation; (4) fatigue or loss of energy; (5) feelings of worthlessness or guilt; and (6) suicidal thoughts or acts Harris would argue that if the ALJ had subpoenaed the records of Dr. Dowling, the evidence would be present. Harris ignores that much of what would appear in Dr. Dowling's notes would simply report what he was told by Harris' mother. This is insufficient to meet or medically equal the listing requirements for a Mood Disorder.
Harris' mother said Harris liked to play football, and Harris was in the second grade and had not repeated any classes. R. 29 and 31.
Harris' mother said that Harris had developed normally in physical terms and weighed 48 pounds at the time of the hearing when he was seven years old. R. 29-30.
Harris' mother did not offer any testimony on this issue, but other testimony from her is inconsistent with the conclusion that Harris suffered from psychomotor agitation. Harris wrote neatly (R. 34), helped with household chores (R. 34), and was in second grade (R. 29).
Harris' mother testified that Harris went to school and played or fought with his siblings. R. 29, 30 and 36. This is not evidence of a child suffering from fatigue or loss of energy.
Harris' mother reported to the Orleans Parish School system that Harris experienced behavioral problems after his uncle's death, but these were not described as feelings of worthlessness or guilt. R. 282. Harris did relate to Dr. Gay that occasionally he saw his dead uncle in the sky and told him to be good, but Harris denied any unusual or bizarre ideations and Dr. Gay did not notice any in his behavior during the evaluation. R. 291.
Harris also argues that he met or medically equaled the listing requirements for 112.05 Mental Retardation. One of the requirements is a valid verbal, performance, or full scale IQ of 60 through 70. Dr. Gay's test results showed Harris with verbal scale of 81, performance scale of 73 and full scale IQ of 74. R. 290. Dr. Gay stated that he believed that the test results reflected Harris' current level of functioning. R. 288. Although these are higher scores than are provided in the listing requirements for Mental Retardation, Harris argues that given the range of statistical error the scores would be at 70 or below. Harris cites no authority for considering the issue of statistical error. Harris also offers no reason why it is more appropriate to consider the low end of the statistical error rather than the high end. Harris did not meet or medically equal the listing requirements for 112.05 Mental Retardation.
Sub-issue no. 3B. Were Harris' impairments functionally equal in severity to a listed impairment?
If your impairment or combination of impairments does not meet or is not medically equivalent in severity to, any listed impairment in appendix 1 of subpart P of part 404 of this chapter, we will assess all functional limitations caused by your impairment(s) . . .20 C.F.R. § 416.926a(a). The regulations permit the ALJ to look at broad areas of development or functioning, such as social functioning, motor functioning, or personal functional, and determine if the functional limitations are equivalent in severity to the disabling functional limitations in listing 112.02. Id. at § 416.926a(a)(2) and (c). Instead of referring to the areas of development in that listing, the regulations direct the ALJ to refer to the following areas: (1) cognitive/communicative development; (2) motor functioning; (3) social functioning; (4) personal functioning; and (5) concentration, persistence, or pace. Id. at § 416.926a(c)(4). The ALJ followed this procedure. R. 14. If a claimant has a marked limitation in two of these areas of development or functioning, or extreme limitation in one area, the ALJ is to find that the impairment or combination of impairments are functionally equivalent to an Organic Mental Disorder (112.02). A marked limitation is more than moderate and less than extreme. "It may arise when several activities or functions are limited or even when only one is limited as long as the degree of limitation is such as to interfere seriously with the child's functioning." Id. at § 416.926a(c)(3)(i). An extreme limitation means no meaningful functioning in a given area. Id. at § 416.926a(c)(3)(ii). The ALJ employed these definitions. R. 14-15.
The listing requirements for both Organic Mental Disorders and Mood Disorders require that in addition to showing medically documented persistence in the categories discussed in Issue no. 3A above, a claimant must show at least two of the following: (a) marked impairment in cognitive/communicative function; (b) marked impairment in social functioning; (c) marked impairment in personal functioning; and (d) deficiencies of concentration, persistence, or pace. If the ALJ properly found that Harris did not have a marked limitation in the five broad areas of development or functioning, then Harris could not meet the listing requirements for Organic Mental Disorders or Mood Disorders, even if Harris made the showing of medically documented persistence discussed in Issue no. 3A.
Marked and extreme limitations may be shown by reference to standardized test scores. For example, a marked limitation is present when there is a valid score on a standardized test that is two standard deviations or more below the norm for the test. Harris does not contend that there was such a score for him.
Sub-issue no. 3B.1. The credibility of Harris' mother.
Harris' mother provided testimony concerning the broad areas of development or functioning. The ALJ described Harris' mother's testimony as unsubstantiated and not fully credible. R. 16. Before considering each of the broad areas of development or functioning individually, it is necessary to determine whether the ALJ's finding on the credibility of Harris' mother is supported by substantial evidence.
The ALJ took issue with the mother's description of Harris' social, personal and behavior functioning. For example, Harris did not have any friends in the neighborhood. R. 35. Ms. Green, Harris' teacher for three years, placed Harris between 5 and 6 on a scale of 7 with 7 being very popular and well liked. R. 273. Ms. Green said relationships were not a problem. Harris was described by Ms. Green as well liked by his teachers and other adults. Ms. Green stated she was particularly fond of Harris. R. 272. Harris' mother described discipline problems at home (R. 35), but Ms. Green answered "NEVER!!!" to the question of whether disciplinary actions were necessary because of Harris' behavior. R. 272. Harris' mother described having to bring fresh clothes to school for Harris because of his inability to control his bladder or bowels (R. 33), but Ms. Green stated that Harris had no such physical problems. R. 273.
Harris argues that if the ALJ had subpoenaed the records of Dr. Dowling, there would have been evidence to corroborate the mother's testimony. Harris misses the point. The ALJ did not accept the testimony by Harris' mother at the hearing or what she told Dr. Gay. What she told Dr. Dowling would have been subject to the same infirmity as her testimony and her comments to Dr. Gay. Harris' mother said Harris first saw Dr. Dowling on February 28, 1997, and again on April 1, 1997, with a further appointment set for April 17, 1997. R. 121. At approximately the same time that Harris was seen by Dr. Dowling, the Orleans Parish School system made its evaluation on January 29, 1997, and Ms. Green completed her school function form on April 27, 1997. The school system, including Ms. Green, did not observe behavior problems before or after Harris reportedly began seeing Dr. Dowling.
While Dr. Gay said that Harris presented himself with a somewhat flat affect and mildly depressed mood, no unusual behavior was noted. R. 290-91. The mother's depiction of Harris is not supported by the evidence in the record. There is substantial evidence in the record to support the ALJ's finding that Harris' mother was not credible.
Once the issue of the credibility of Harris' mother is resolved against Harris, the remaining relevant evidence is the medical evidence and school records. 20 C.F.R. § 416.924 (f). Unless Harris is able to show that there was not substantial evidence to support the ALJ's determination with respect to the broad areas of development and functioning, the ALJ's decision must be affirmed.
Sub-issue no. 3B.2. Harris' cognitive development.
The ALJ found no significant limitation in cognitive development. This finding rested on the evidence provided by the evaluation for the Orleans Parish School system that Harris' performance in school was adequate and the testing in the system's evaluation placed Harris in the average range. Harris was mainstreamed into a regular classroom. Ms. Green said Harris was doing well in class. R. 15. All of this is found in the evaluation performed by the Orleans Parish School system and the report by Ms. Green. R. 251-64 and R. 272-74. By the time of the hearing Harris' mother reported that Harris was in the second grade and had not been required to repeat a grade. R. 29. Dr. Gay found that Harris functioned in the borderline range of cognitive skills, and the results of the mental examination indicated that Harris functioned below average in terms of cognitive skills. R. 290. Harris contends that the ALJ should have ordered additional testing, because the ALJ noted that it was unclear why Dr. Gay's measurement of Harris' intelligence placed Harris in the borderline range, but his effective performance in school indicated he was doing well. R. 15. Harris cites 20 C.F.R. § 41 6.919a. This refers to the circumstances when the Commissioner will order a consultative examination. Dr. Gay's examination was a consultative examination. There was no basis for ordering a second consultative examination.
In the regulations cognitive development and communicative development are treated as one. The regulations for school age children (age 6 to 12) describe this as:
Your ability or inability to learn, understand, and solve problems through intuition, perception, verbal and non-verbal reasoning, and the application of acquired knowledge; the ability to retain and recall information, images, events, and procedures during the process of thinking, as in formal learning situations (e.g., reading, class discussions) and in daily living (e.g., telling time, making change). Your ability or inability to comprehend and produce language (e.g., vocabulary, grammar) in order to communicate in social conversation (e.g. to express feelings, meet needs, seek information, describe events, share stories) and in learning situations (e.g., to exchange information and ideas with peers and family or with groups such as your school classes) in a spontaneous, interactive, sustained, and intelligible manner, using increasingly complex vocabulary and grammar.20 C.F.R. § 416.926a(c)(5)(iv)(A).
The Orleans Parish School System evaluation found that Harris functioned in the average range in broad knowledge and basic skills. R. 256-57. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.Johnson v. Bowen, 864 F.2d 340, 34344 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). There was substantial evidence from the Orleans Parish School system to support the ALJ's determination that Harris did not have a significant limitation in cognition.
Sub-issue no. 3B.3. Harris' communicative development.
The ALJ found that Harris had no limitation in speech. R. 14. The issue again raised by Harris is whether there is substantial evidence to support this finding. On September 15, 1993, when Harris was about 26 months old, a clinical psychologist found that Harris' communication skills were weak, because he was only at the 13 month age level. R. 229. On January 6, 1994, when Harris was 30 months old, the Orleans Parish School system evaluation found that Harris had the communication characteristics of a child with disabilities. R. 236. On April 18, 1994, when Harris was 33 months old, Jean Cohen, Ph.D., completed an IFA and concluded that Harris showed a marked communicative impairment. R. 175-78. When Harris was three years old he had an expressive speech problem.
When Harris was five and a half years old the Orleans Parish School systems' multidisciplinary team, including a speech pathologist, found:
A communication deficit no longer interferes with Arthur's educational program. Arthur should be dismissed from speech therapy. Speech and language skills are appropriate for his chronological age.
R. 260. The evaluation also found that Harris was capable of expressing his needs and was an effective communicator with peers and adults. R. 257. On April 23, 1997, when Harris was nearly six years old, his teacher of three years said Harris could function in a regular education setting. R. 272.
Childhood Disability Forms were completed in August and November, 1997, by the DDS physicians. R. 276-87. The first of these only described asthma as an impairment and found no evidence of limitation. R. 284-87. The second found that the impairments were not severe and referred to the evaluation by the Orleans Parish School system. R. 280-83. The third referred to both asthma and speech and language delays as impairments. It described the impairments as severe but found that they did not meet or equal the severity of a listing. R. 276. The explanation for the finding showed that the speech and language problem had improved with therapy. Harris was no longer in special education. R. 279.
Based upon reports from the DDS physicians, the Orleans Parish School system and Ms. Green, there was substantial evidence on which to conclude that Harris' earlier speech and language delays were resolved through speech therapy and the special education program at the Orleans Parish Public Schools.
At the hearing on May 26, 1999, Harris' mother testified that Harris still had problems with his speech. She reported that Harris' teacher (unidentified) said that she, the teacher, had problems understanding Harris and that Harris should have help with his speech. R. 30. The ALJ did not find that the testimony of Harris' mother was credible, and, for the reasons already discussed, there was substantial evidence to support this finding.
Harris also argues that Harris' responses to the questioning at the hearing show that Harris had a speech problem. Harris was asked seven questions by the ALJ. R. 27-28. Harris gave an audible response to all but one of these questions. On one question Harris nodded his head to indicate "Yes." R. 27-28. The ALJ explained to Harris that he had to answer for the record and Harris answered the question in the affirmative. R. 28. Harris' attorney asked Harris eleven questions. R. 31-32. The record shows that Harris did not provide an audible response to five of these questions. It is clear however that Harris was nodding his head in response to the questions. Unlike the ALJ, the attorney did not request that Harris provide an audible response. In one question Harris was asked to identify his heros. The attorney could not hear Harris' response. The question was repeated and the court reporter recorded the name of a boxer. Harris' testimony at the hearing did not show a speech and language problem. A witness, particularly a seven year old, who speaks softly and nods in responses to questions is not unusual.
On September 23, 1998, when Harris was seven years old, Dr. Gay, found that Harris' speech was slow. Harris was slightly reserved in his verbal statements, but became more willing to talk as the session progressed. He was able to be understood most of the time, however, he did tend to make one or two word statements rather than complete statements. R. 288.
There was substantial evidence to support the ALJ's finding that Harris' had no limitation in speech. Under the regulation any speech limitation would have had to interfere seriously with Harris' functioning before it could be considered a "marked limitation." 20 C.F.R. § 41 6.926a(c)(3)(i).
Sub-issue no. B.4. Harris' social functioning.
The ALJ found that Harris did not have a significant impairment in social functioning. R. 15. The ALJ said that, "While she (Harris' mother) alleges decreased social interaction, it is contrary to the school records." R. 16. In her interview with the school social worker on January 26, 1997, Harris' mother attributed the change in Harris' behavior to the death of his uncle. R. 254. Harris' mother reported to Dr. Gay that Harris' uncle died around September, 1996. R. 283. The Orleans Parish School system evaluation noted in January, 1997, only a few months after the death of the uncle, that Harris' mother reported significant behavior problems at home, but "no behavior difficulties have been observed in the school setting." R. 253. A few months later in April. 1997, Ms. Green was asked about any changes in the behavior of Harris due to the death of a family member, and she replied: "Parent reports loss of a family member — an uncle. In school Arthur does not appear to manifest symptoms or changes in behavior due to this incident." R. 273. Ms. Green also denied that peer relationships were a problem for Harris and placed him toward the high end of the scale of peer relationships. R. 273. There is substantial evidence to support the ALJ's finding that the mother's reports of Harris' alleged decreased social interaction was contrary to the school records.
For age 6 to 12 the regulations describe social functioning as:
Your ability or inability to play alone, with another child, and in a group; to initiate and develop friendships; to respond to your social environments through appropriate and increasingly complex interpersonal behaviors, such as empathizing with others and tolerating differences; and to relate appropriately to individuals and in group situations (e.g., siblings, parents or caregivers, peers, teachers, school classes, neighborhood groups).
20 C.F.R. § 41 6.926a(c)(5)(iv)(C).
Sub-issue no. B.5. Harris' personal functioning
The ALJ found that Harris did not demonstrate the existence of a severe impairment in personal and behavioral functioning. R. 15. The ALJ relied upon the evidence provided by the Orleans Parish Public school system and the report from Harris' teacher, Ms. Green. R. 251-64 and R. 272-74. The ALJ did not credit the testimony of Harris' mother or what she reported to Dr. Gay. R. 15. Ms. Green reported that Harris never presented a discipline problem in school. R. 272. Dr. Gay did not note any unusual behavior during his evaluation of Harris. R. 291. There was substantial evidence to support the decision of the ALJ with respect to the issue of Harris' personal functioning.
The regulations for children ages 6 to 12 describe personal functioning as follows:
Your ability or inability to help yourself and to cooperate with others in taking care of your personal needs, health, and safety (e.g. eating, dressing, maintaining personal hygiene, following safety precautions).20 C.F.R. § 416.926a(c)(5)(iv)(D).
Sub-issue no. 3B.6. Harris' motor functioning.
The ALJ found that Harris had a history of asthma that was controlled with medication. Prior to the May 26, 1999, hearing, Harris' last report of a visit to a physician for his asthma was in September and October of 1996. R. 245-46. The notes at that time do not show that Harris was on on any medication. These same notes also show that Harris' last visit was in 1992. R. 246. The Orleans Parish School system evaluation reported on Harris' medical records and said that Harris had a history of asthma which was controlled by medication and there was no need for school based intervention. R. 260. Dr. Gay's report said Harris took medication for his asthma as needed. R. 283. There is substantial evidence to support the ALJ's finding with respect to Harris' asthma. The ALJ further concluded that Harris may be precluded from performing strenuous physical activity, such as prolonged running, but the asthma imposed a less than marked impairment of motor functioning. R. 15.
For a child age 6 to 12 the regulations define motor functioning as:
Your ability or inability to use fine and gross motor skills in order to engage in the physical activities involved in normal mobility, school work, play, physical education, sports, and other physically related daily activities other than self-care.20 C.F.R. § 416.926a(c)(5)(iv)(B)
Sub-issue no. 3B.7. Harris' concentration, persistence, or pace.
Although the ALJ described concentration, persistence or pace as areas of development or functioning to which consideration would be given (R. 14), there is no discussion of them. R. 14-15. Harris does not raise this as an issue. Harris only discusses cognitive/communicative development, social functioning and motor functioning in his memorandum in support of his motion for summary judgment. Rec. doc. 10 at pp. 14-16. In the regulations for children age 6 to 12 concentration, persistence, or pace are described as: "Your ability or inability to engage in an activity, and to sustain the activity for a period of time and at a reasonable pace." 20 C.F.R. § 416.926a(c)(5)(iv)(E). Dr. Gay found that Harris was able to be productive with the testing presented to him and put forth adequate effort on the testing. R. 288. Ms. Green reported that Harris attended to tasks the same as other students. R. 274. The Orleans Parish School system evaluation showed that in the classroom Harris remained on task 90% of the time. R. 253. Had the issue been raised, there was substantial evidence to support the conclusion that Harris was able to engage in an activity and to sustain the activity for a period of time at a reasonable pace.
CONCLUSION
There is substantial record evidence to support the ALJ's decision that Harris was not tinder a disability within the meaning of the Social Security Act after May, 1997, through the date of the ALJ's decision, November 22, 1999. Harris is therefore not eligible for supplemental security income benefits for that period of time.
RECOMMENDATION
Accordingly, IT IS RECOMMENDED that defendant's cross motion for summary judgment be GRANTED, and Harris' motion for summary judgment it is DENIED.
OBJECTIONS
A party's failure to file written objections to the proposed findings, conclusions and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).