BRITT v. APFEL, (D.Neb. 2000)

JOSEPH F. BATAILLON, United States District Judge.

The plaintiff filed an application for Supplemental Security Income ("SSI") in June 1994 under Title II and Title XVI of the Social Security Act, with the Social Security Administration. The plaintiff claimed his minor son, Timothy Britt, was disabled and in need of benefits under the Social Security Act. The defendant ("the Commissioner") denied the plaintiff's application and benefits. After a hearing requested by the plaintiff, the Administrative Law Judge ("ALJ") denied the plaintiff's application for benefits in February 1996. The plaintiff now seeks judicial review of the decision pursuant to 42 U.S.C. § 405(g). The plaintiff argues that the ALJ's decision denying benefits to the plaintiff was not supported by substantial evidence.

The plaintiff claims that the ALJ's decision was not supported by substantial evidence for three reasons: 1) the ALJ failed to give proper weight to the treating physicians' reports; 2) the ALJ erred by finding that Kim Britt's testimony lacked sufficient credibility; and 3) the ALJ erred in determining that the plaintiff was not "disabled" under the applicable provisions of Code of Federal Regulations, specifically, the Listing of Impairments at Appendix 1 to Subpart (P) of 20 C.F.R. § 404. I have reviewed the record, the ALJ's evaluation and findings, the brief in support of the plaintiff's complaint, the defendant's answer brief, and the indexes of evidence. I find that the ALJ's finding that the plaintiff is not disabled within the meaning of the Social Security Act is supported by substantial evidence.

Plaintiff began this claim for disability benefits on June 2, 1994. The plaintiff was initially denied benefits by the Commissioner, on September 16, 1994. Then the plaintiff timely filed a Request for Reconsideration which was denied on January 30, 1995. Next, plaintiff requested and was granted a hearing on January 25, 1996. The Honorable Franklin Carroll, the ALJ, rendered his decision, denying plaintiff benefits on February 23, 1996. Plaintiff subsequently filed for a reconsideration with the Social Security Appeals Council, but his appeal was denied. Plaintiff then filed the present action requesting this court to review the decision of the ALJ.

The record indicates that plaintiff has had a difficult and unstable childhood up to this point in his life. The plaintiff was born in prison on May 21, 1987 (Record at 34 and 141) (hereinafter "R"). Plaintiff was allowed to stay with his mother for approximately one month after his birth (R at 141). Plaintiff was then transferred to foster care for nearly four years (R at 34). During plaintiff's period in foster care, he was physically and mentally abused (R at 141). Plaintiff currently is in the custody of his father Kim Britt (R at 32).

The plaintiff began psychological evaluations in July of 1994, at the age of seven. (R at 141-43). Plaintiff was diagnosed by Barbara C. Schuett, M.A., his first psychological examiner, as having a mild oppositional defiant disorder, and adjustment disorder with depressed mood (R at 141-43). Ms. Schuett opined that plaintiff's activities of daily living were restricted; that plaintiff had difficulties maintaining social functioning; and he had recurrent episodes of deterioration when stressed (R at 141-43). Ms. Schuett also said that plaintiff was capable of sustaining concentration, understanding, remembering and adapting to changes in environment (R at 141-43).

The plaintiff's second grade teacher, Mrs. Krejci, also made a statement for the record describing the plaintiff's behavior (R at 145-46). Mrs. Krejci stated that the plaintiff was cooperative with students and peers, "when he wants," but that he sometimes chose not to cooperate (R at 145-46). Mrs. Krejci also said that plaintiff is able to express himself, but that his communication with adults and peers was "affected by his attitude." (R at 145-46) Further, Mrs. Krejci opined that she believed that the plaintiff behaved poorly because he was "assured" that someone would pay attention to him (R at 145-46).

Plaintiff has also been evaluated by Drs. Nichols and Starr, the plaintiff's treating physicians, and diagnosed with oppositional defiant disorder (R at 163-64 and 171-72). Both doctors agreed that the plaintiff was in the range of average intelligence, and was able to express his intelligence through both verbal and nonverbal means (R at 163-64 and 171-72). In contrast, the doctors both opined that the plaintiff does show below average development in areas related to social reasoning, judgment skills and spatial reasoning (R at 163-64 and 171-72). The doctors also agree that the plaintiff should continue with outpatient treatment and possibly explore psychopharmacological treatment (R at 163-64 and 171-72).

At the hearing, Dr. Muffly, a medical expert requested by the ALJ, testified as to his diagnosis of the plaintiff as the court's consulting physician (R at 50). Dr. Muffly stated that he believed that the plaintiff had moderate impairment of his personal behavioral development, which diminished the plaintiff's capacity to cooperate with others, respond appropriately to authority, take care of his personal needs, and to react properly to school rules (R at 62). Dr. Muffly also said that the plaintiff was less than moderately impaired in social development and function (R at 62). As a whole, Dr. Muffly did not believe that the plaintiff was severely disabled to meet a listed impairment, nor did he have the functional equivalent of a listed impairment (R at 54-55).

At the hearing, the ALJ was provided all of the doctors' reports, school reports, and testimony of the plaintiff's behavior (R at 17-21). Additionally, the ALJ heard from the plaintiff's father. Mr. Britt testified as to his son's impairments. Mr. Britt said that his son would only complete chores when closely supervised, and followed directions only with persistent monitoring (R at 42). The father also testified that he often broke household items, and he has begun playing with fire (R at 42-43). Mr. Britt further stated that his son frequently fought with his brother, physically and verbally, and used weapons such as sticks and a "hook." (R at 37-38) The ALJ believed that Mr. Britt was exaggerating his son's problems, and possibly has a pecuniary interest in the outcome of this hearing. (R at 19) The ALJ therefore found that Mr. Britt was not credible, and did not give great weight to the father's testimony (R at 20 and 21).

The ALJ reviewed all of the exhibits and testimony and found that the plaintiff was not disabled under the applicable provisions of Code of Federal Regulations, specifically, the Listing of Impairments at Appendix 1 to Subpart (P) of 20 C.F.R. § 404 (R at 21).

Title 42 of the Public Health and Welfare Act provides, "any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides." 42 U.S.C. § 405(g). The district court will affirm the Commissioner's decision to deny benefits if it is supported by substantial evidence in the record as a whole. Eback v. Chater, 94 F.3d 410, 411 (8th Cir. 1996). "Substantial evidence is that which a reasonable mind would find as adequate to support the ALJ's decision." Brown v. Chater, 87 F.3d 963, 964 (8th Cir. 1996) ( citing Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996)).

As an initial matter I must first address the issue of the correct standard to apply to the plaintiff's claim for disability. When this action initially came before the ALJ in February of 1996, the "1995 standard" for determining the disability of a child was applicable. The "1995 standard" provided that a child was considered disabled if the child "suffers from any medically determinable physical or mental impairment of comparable severity" to an impairment that would disable an adult. 42 U.S.C. § 1382c(a)(3)(A) (1995). However, since the ALJ made his determination, a new disability statute has been effected, the "1997 standard." The "1997 standard" provides "an individual under the age of 18 shall be considered disabled for the purposes of this sub-chapter 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(3)(C)(i) (1997).

The new standard is the standard applicable in this appeal pursuant to the statute. "The legislation applies to any individual who applies for, or whose claim is finally adjudicated with respect to, Social Security benefits after the date of the enactment of the Act." Briggs v. Callahan, 169 F.3d 606, 608 (8th Cir. 1998) ( quoting Pub.L. No. 104-193 § 211(d), 110 Stat. 2190(1996)). Since this action was still pending after August 22, 1996, the new legislation applies. I find the ALJ's decision to deny disability, is supported by substantial evidence, and although the "1997 standard" is applicable to the present review, this Court is not required to re-evaluate the plaintiff under the "1997 standard" for the reasons set out in Briggs v. Callahan, 139 F.3d 606, 56 Soc. Sec. Rep. Ser. 200 (8th Cir. 1998):

Legislative history indicates, however, that the new statutory definition imposes a standard for disability that is more stringent than the earlier standard for evaluating childhood disability claims. See generally, H.R. Conf. Rep. No. 104-725 (1996), reprinted in, 1996 U.S.C.C.A.N. 2649, 2716 (stating "severe" should be given its ordinary meaning, not "other than minor"); 142 Cong. Rec. S4095-05, S4099 (daily ed. April 25, 1996) (summary of centrist coalition budget — referring to "tightened definition of childhood disability"). Accordingly, if a claim had been properly denied under the old standard, it must also be denied under the new, more stringent, standard. We will thus analyze this action under the old standard, as did the ALJ. Because we find that Briggs is not disabled under the old, more lenient, standard, we need not evaluate her case under the new, more stringent, standard.

Briggs at 608.

Briggs states that because the "1997 standard" is more strict, I am not required to re-evaluate the plaintiff under the new standard. This is true because if the plaintiff is considered not disabled under the "1995 standard," the plaintiff will necessarily not be considered disabled under the "1997 standard." Id.

The ALJ properly weighed the testimony of plaintiff's second grade teacher, Ms. Krejci, and the treating physicians, Drs. Starr and Nichols' testimony, with the testimony of Dr. Muffly, the consulting physician, and the record of the plaintiff's prior conduct. After review of the record it is clear that the ALJ had substantial evidence to find the plaintiff not disabled under the Social Security Act. The ALJ did not dismiss the treating physicians' testimony, as claimed by the plaintiff; instead, the ALJ considered the teacher's testimony, the treating physicians' testimony, and the consulting physician's testimony in concert together to reach his decision. The ALJ read Dr. Nichols' assessment of the plaintiff which said that the plaintiff was in the average range of intelligence, and could communicate effectively (R at 163). Dr. Nichols further stated the plaintiff had some behavioral and judgment problems but that these could be treated (R at 163-64). Dr. Nichols also said that the plaintiff should continue in school but needed academic monitoring (R at 164). Dr. Starr opined that the plaintiff had the ability to learn in school (R at 172). Dr. Starr believes that the plaintiff simply gets frustrated at school with academics and subsequently acts out (R at 172). The ALJ also considered testimony from the plaintiff's second grade teacher, Ms. Krejci, who stated that the plaintiff was able to understand, but that his attitude controlled his behavior (R at 145). Finally, the ALJ heard the testimony of Dr. Muffly, the consulting physician. Dr. Muffly stated that the plaintiff has "severe" impairments, but was not disabled withing the definition of the Social Security Act (R at 19). The ALJ therefore did not simply dismiss the treating physicians' testimony. Instead, the ALJ used the treating physicians' assessment in conjunction with the teacher's observations, and the consulting physician's testimony to come to a conclusion, which I believe is supported by substantial evidence.

The plaintiff urges the Court to give greater weight to the testimony of Kim Britt. The plaintiff contends that the ALJ had enough outside information to support the father's testimony, and therefore the reasoning used by the ALJ to discredit the father's testimony is invalid. The trier of fact may discredit testimony when the trier of fact gives good reason for doing so. Dixon v. Sullivan, 905 F.2d 237 at 238 (8th Cir. 1990). The ALJ analyzed the testimony of Mr. Britt under the proper standard established in Polaski v. Heckler, 739 F.2d 1320-22 (8th Cir. 1984). Polaski states:

The absence of an objective medical basis which supports the degree of severity of subjective complaint alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the Claimant's prior work record, and observation by third parties and treating and examining physicians relating to such matters as:

1. The claimant's daily activities;

2. The duration, frequency and intensity of pain;

3. Precipitating and aggravating factors;

4. Dosage, effectiveness and side effects of medication;

5. Functional restriction.

The adjudicator is not free to accept or reject the Claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.

In the decision before me, the ALJ has shown that it is possible that the father had exaggerated his son's problems, when you consider other inconsistent evidence. This evidence includes the fact that the plaintiff's grades are improving, his in-class performance has improved, the fact that the plaintiff has no physical impairments, and that the plaintiff participates well in extracurricular activities. This is clearly substantial evidence to allow the trier of fact to draw a conclusion that he had valid reasoning to discredit, at least to some extent, Mr. Britt's testimony.

The ALJ also considered the fact that the plaintiff had never been medicated. The record shows that Dr. Nichols suggested treating the plaintiff with medication consistent to treat depression and anxiety (R at 164). The ALJ stated that because Mr. Britt did not treat the plaintiff's problems with medication, his testimony was less credible because Mr. Britt was claiming that his son is totally disabled, yet Mr. Britt has not placed his son on medication. The ALJ's reasoning is supported by Wilson v. Chater, 76 F.3d 238 (8th Cir. 1996), where the court stated that the failure to seek medical treatment or take medication is not consistent with a severe or disabling condition. Id. at 241.

After reviewing the ALJ's reasoning, in conjunction with the record, I find that the ALJ had substantial evidence to determine that the plaintiff was not disabled because plaintiff did not meet the requirements for disability as mandated by the Code of Federal Regulations (hereinafter "C.F.R."). The C.F.R. and specifically, the Listing of Impairments at Appendix 1 to Subpart (P) of 20 C.F.R. § 404, has prescribed impairments and combinations of impairments which define disability. The Eighth Circuit, in Rucker v. Apfel, has cited the C.F.R. in helping to define the disability of a child under the "1995 standard," "A four-part test requires the ALJ to inquire into: (1) whether the child was currently engaged in substantial gainful activity; (2) whether the child suffered severe impairments or a combination of severe impairments; (3) whether the child's impairments met or equaled any listed impairment; and (4) if no listed impairment is met, the child may still be found disabled if the child's physical or mental impairments so limited his ability to function independently in an age-appropriate manner that they are "of comparable severity' to those that disable adults." ( citing 20 C.F.R. § 416.924(b)-(f) (1995)). Rucker v. Apfel, 141 F.3d 1256, 1259, 56 Soc. Sec. Rep. Ser. 484 (8th Cir. 1998).

The same regulation also refers to developmental or functional "domains" which may be identified during childhood and observed into adulthood. These "domains" describe the child's major areas of growth and activity; they include, physical, cognitive, communicative, personal/behavioral and social/emotional (R at 16-17). To meet the qualifications for disability the plaintiff must be markedly limited in one domain and moderately limited in at least one other; or moderately limited in three or more domains (R at 17). The ALJ used these standards to judge the plaintiff's claim of disability, and determined that the plaintiff has a moderate limitation in personal/behavioral development function, and a less than moderate limitation in the social domain (R at 22).

The ALJ had substantial evidence to find that the plaintiff did not "have an impairment or impairments that so interfere with his ability to function effectively, appropriately, and independently in an age-appropriate manner that they are comparable to ones that would prevent an adult from performing substantial gainful activity," as mandated by the C.F.R.'s Listing of Impairments (R at 21). First, the ALJ considered the treating physician, Dr. Starr's, evaluation, which stated that the plaintiff has a behavioral problem which contributed to the plaintiff's problems with peer relations, school work and social judgment (R at 171-72). Dr. Starr corroborates the ALJ's opinion because this statement establishes the plaintiff's problem of behavior is a single problem which affects many areas of the plaintiff's life. Although the plaintiff has a significant behavioral problem, only one domain of development and function is affected.

Second, the ALJ weighed the testimony of the plaintiff's third grade teacher, Ms. Dieter. Ms. Dieter stated the plaintiff's "work habits have improved so has his performance" (R at 18). Also, the fact that during the 1995-96 school year the plaintiff improved in emotional and social development, study skills, and effort in mathematics (R at 18) seems to be substantial evidence that the plaintiff is not significantly limited in concentration, persistence and pace because the plaintiff is improving in this "domain."

Finally, Dr. Muffly substantiated the ALJ's determination through his evaluation. Dr. Muffly opined that the plaintiff had no significant limitation in the cognitive domain or the communicative domain (R at 20). Dr. Muffly further opined that the plaintiff has a less than moderate limitation in social development and function (R at 20). Lastly, Dr. Muffly believed that the plaintiff has no significant limitation of concentration, persistence and pace (R at 21). The ALJ found Dr. Muffly very credible, and gave great weight to his opinions (R at 21).

For the foregoing reasons, the Court finds the Administrative Law Judge's decision that the plaintiff is not disabled within the meaning of the Social Security Act is supported by substantial evidence.