IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

WARNDELLA WASHINGTON

o/b/o SWJ,

Plaintiff,

v. Case No. 1:11-cv-94-MP-GRJ

MICHAEL J. ASTRUE, 

Commissioner of Social Security,

Defendant.

 /

REPORT AND RECOMMENDATION

Warndella Washington, on behalf of her minor custodial granddaughter, appeals

to this Court from a final decision of the Commissioner of Social Security (the

“Commissioner”) denying her application for childhood supplemental security income

(“SSI”) benefits. (Doc. 1.) The Commissioner has answered (Doc. 11), and both parties

have filed briefs outlining their respective positions. (Docs. 20 & 21.) For the reasons

discussed below the Commissioner’s decision is due to be AFFIRMED.

I. BACKGROUND

Warndella Washington, on behalf of her minor custodial granddaughter, filed an

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application for children’s SSI benefits on March 13, 2007. (R. 109-112.) Plaintiff’s

application was denied initially and on reconsideration. (R. 70-73, 76-78.) On January

29, 2010, following a hearing, the ALJ issued a decision finding that the Plaintiff was not

disabled. The ALJ found that Plaintiff suffered from the severe impairments of attention

Even though this action is being brought by the mother on behalf of her minor custodial

1

granddaughter, the Court will refer to the minor granddaughter as the Plaintiff.

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deficit hyperactivity disorder, a depressive disorder, and an oppositional defiant

disorder. The ALJ considered medical records and school records from 2004-2009, as

well as two Childhood Disability Evaluation from 2007. The ALJ determined that

Plaintiff’s impairment or combination of impairments did not meet, medically equal, or

functionally equal the severity of an impairment in the listings, and therefore Plaintiff

was not disabled. (R. 16-33.) On March 18, 2011, the Appeals Council denied

Plaintiff’s Request for Review (R. 1-5), making the ALJ’s hearing decision the final

decision of the Commissioner.

II. STANDARD OF REVIEW

The Commissioner’s findings of fact are conclusive if supported by substantial

evidence. Substantial evidence is more than a scintilla, i.e., the evidence must do more 2

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. In reviewing the Commissioner’s decision, the district court must view the 3

evidence as a whole, taking into account evidence favorable as well as unfavorable to

the decision.4

See 42 U.S.C. § 405(g) (2003).

2

Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,

3

838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord, Edwards v. Sullivan,

937 F.2d 580, 584 n.3 (11th Cir. 1991).

Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding

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that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v.

Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court also must consider evidence detracting from

evidence on which the Commissioner relied).

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Congress has empowered the district court to affirm, modify, or reverse the

decision of the Commissioner, with or without remanding the cause. Where the 5

Commissioner’s decision is supported by substantial evidence, the district court will

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

even if the reviewer finds that the evidence preponderates against the Commissioner’s

decision. The district court will reverse a Commissioner’s decision on plenary review, 6

however, if the decision applies incorrect law, or if the decision fails to provide the

district court with sufficient reasoning to determine that the Commissioner properly

applied the law. Remand is unnecessary where all of the essential evidence was 7

before the Appeals Council when it denied review, and the evidence establishes without

any doubt that the claimant was disabled.

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The regulations set forth a three-part sequential test the Commissioner must

follow when determining disability in children. First, a child must show that the child is 9

not performing substantial gainful activity. Second, if the child is not working, the child 10

must show that the child suffers from an impairment or combination of impairments that

42 U.S.C. § 405(g) (sentence four).

5

Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991).

6

Keeton v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

7

Bowen v. Heckler, 748 F.2d 629, 631, 636-37 (11th Cir. 1994).

8

20 C.F.R. § 416.924(a) (2007).

9

20 C.F.R. § 416.924(b).

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is severe. Third, if there are severe impairments, the child must show that the child’s 11

impairments meet, medically equal, or functionally equal the severity of an impairment

in the listings. If the child does not meet all three criteria then the child is not disabled. 

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In addition to the three-part test, the Commissioner must find that the child’s

impairment meets the duration requirement, which means the impairment must be

expected to result in death or to last longer than 12 months. If the child meets all three

criteria and the duration requirement, then the child is disabled.

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III. DISCUSSION

Plaintiff’s sole argument is that the ALJ failed to fully and fairly develop the

record. Plaintiff, who is represented by counsel and who had a non-attorney

representative appear at her hearing, contends that the ALJ failed to procure a medical

assessment of Plaintiff on or about the time of the hearing in 2009. (Doc. 20.) 

An ALJ has a clear duty to fully and fairly develop the administrative record. 

Brown v. Shalala, 44 F.3d 931, 934 (11 Cir. 1995); 20 C.F.R. § 416.912(d) (stating that th

“before we make a determination that you are not disabled, we will develop your

complete medical history for at least the 12 months preceding the month in which you

file your application.”) Nevertheless, the claimant bears the burden of proving that he or

she is disabled, and consequently, is responsible for producing evidence in support of

his claim. See 20 C.F.R. § 416.912(a). The ALJ was obligated only to insure that

20 C.F.R. § 416.924(c).

11

20 C.F.R. § 416.924(d).

12

20 C.F.R. § 416.924(d)(1).

13

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there was a sufficient record for at least the 12 month period preceding the March 2007

date the application was filed. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11 Cir. th

2003) (rejecting claimant’s argument that the ALJ had a duty to develop the medical

record for the time period after his application for benefits).

Plaintiff filed her application for benefits on March 13, 2007 and, thus, the ALJ

was required to develop her medical history for the 12 months prior to March 2007. The

ALJ reviewed the medical evidence from 2004-2009 – a period of time that not only

includes the 12 months before the application was filed but goes well beyond the

application date – and then concluded that Plaintiff was not disabled. (R. 209-489.) 

Notably, the ALJ even issued subpoenas to the Plaintiff’s school “in order to obtain

more current evidence” but apparently the school failed to respond. It also appears that

Plaintiff’s representative also unsuccessfully requested additional records from the

school. (R. 28.)

The ALJ had the benefit of school records, including teacher questionnaires from

2007, the child’s testimony, medical records from Meridian Behavioral Health Care,

treatment notes from the on-site school counseling, and two Childhood Disability

Evaluations completed by medical consultants in 2007. The state agency medical

consultants – who had the benefit of Plaintiff’s records for the period prior to her

application date – each concluded that the Plaintiff did not have any listing-level

impairment and that the Plaintiff did not have any marked or extreme deficits in any of

the six functional domains relevant to a child disability case. Notably, at least one of the

medical consultants had available and considered evidence about the Plaintiff’s

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behavior after she began taking psychotropic medication as well as additional school

records. Thus, the record considered by the ALJ contained more than sufficient

information to assess properly whether the Plaintiff was disabled. There is nothing in

the record to suggest a reason or necessity for obtaining a further medical assessment

of Plaintiff at the time of the 2009 hearing. 

In sum, the ALJ developed the medical history for the required period of 12

months prior to the application date as well as for the period beyond that time period.

(R. 16-29.) The ALJ fully analyzed the relevant school records, medical evidence, and

child disability evaluations utilizing the correct legal standards for determining childhood

disability and there is nothing the Plaintiff points to and nothing in the record that

suggests the ALJ failed to fulfill her duty to develop the record by not obtaining another

medical assessment at the time of the 2009 hearing. Accordingly, the Court

concludes that the ALJ did not fail to develop the record and applied the correct legal

standards in finding that Plaintiff was not disabled.

IV. RECOMMENDATION

For the foregoing reasons, it is respectfully RECOMMENDED that the decision of

the Commissioner should be AFFIRMED.

IN CHAMBERS at Gainesville, Florida, this 19 day of March, 2012.

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of

this report and recommendation. A party may respond to another party’s objections within

14 days after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

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