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Though this action is brought by the father, Andre M.

Carstarphen, Sr., on behalf of his son, this Court will refer to the

son as the Plaintiff.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANDRE M. CARSTARPHEN, SR., : 

on behalf of 

ANDRE M. CARSTARPHEN, JR., : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 05-0359-WS-M

JO ANNE B. BARNHART, : 

Commissioner of1

Social Security, : 

Defendant. : 

REPORT AND RECOMMENDATION

 In this action under 42 U.S.C. 1383(c)(3), Plaintiff seeks

judicial review of an adverse social security ruling which denied

a claim for Supplemental Security Income (hereinafter SSI). The

action was referred for report and recommendation pursuant to 28

U.S.C. § 636(b)(1)(B). Oral argument was heard on January 24,

2006. Upon consideration of the administrative record, the

memoranda of the parties, and oral argument, it is recommended

that the decision of the Commissioner be affirmed, that this

action be dismissed, and that judgment be entered in favor

Defendant Jo Anne B. Barnhart and against Plaintiff Andre M.

Carstarphen, Sr. on behalf of Andre M. Carstarphen, Jr.

This Court is not free to reweigh the evidence or substitute

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its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

Plaintiff was born January 27, 1996. At the time of the

administrative hearing, Carstarphen was eight years old, had

completed the first grade, and was taking special education

classes (Tr. 178). In claiming benefits, Plaintiff alleges

disability due to mental retardation and Attention Deficit

Hyperactivity Disorder (hereinafter ADHD (Doc. 10 Fact Sheet).

The Plaintiff filed a protective application for SSI on

March 6, 2003 (Tr. 46-51). Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that

Carstarphen was not disabled under the Social Security Listing

requirements (Tr. 8-22). Plaintiff requested review of the

hearing decision (Tr. 148-49A, 152) by the Appeals Council, but

it was denied (Tr. 4-7).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Carstarphen

alleges that he meets the requirements of Listing 112.05D (Doc.

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10). Defendant has responded to—and denies—this claim (Doc. 11).

The Court notes at the outset that there is evidence of

record which was submitted to the Appeals Council which was not

considered by the ALJ (see Tr. 154-72). Plaintiff has not urged

this Court to consider this evidence or argued that the Appeals

Council improperly discounted it. 

It should be noted that "[a] reviewing court is limited to

[the certified] record [of all of the evidence formally

considered by the Secretary] in examining the evidence." Cherry

v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985). However, “new

evidence first submitted to the Appeals Council is part of the

administrative record that goes to the district court for review

when the Appeals Council accepts the case for review as well as

when the Council denies review.” Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994). 

However, “when the [Appeals Council] has denied review, we will

look only to the evidence actually presented to the ALJ in

determining whether the ALJ’s decision is supported by

substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th

Cir. 1998), cert. denied, 525 U.S. 1124 (1999).

In examining the action at hand, the Court notes that the

Appeals Council denied review of the additional evidence (Tr. 4-

6). Furthermore, as previously noted, Carstarphen claims that

the ALJ’s decision is not supported by substantial evidence and

is not challenging the Appeals Council’s decision to deny review

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of the new evidence (Docs. 1, 10). Therefore, this Court need

not review the new evidence. Falge, 150 F.3d at 1324. The Court

will limit its review of the evidence to the same evidence that

the ALJ considered. That evidence is as follows. 

Plaintiff received speech therapy for a period of about four

months, while only one year old, to correct a significant delay

in language skills (Tr. 114-23). 

On May 20, 2003, a mental status evaluation was conducted by

Dr. Jeffrey J. Pappas who found Plaintiff to have a blunted

affect and disorganized thought content (Tr. 141-42). He was

anxious and oriented with average intelligence, judgment, and

insight; his memory was intact and his speech was normal. 

On May 27, 2003, Lucile T. Williams, Psy.D., conducted an

evaluation in which she found Carstarphen to have no loose

associations and did not appear confused; however, he had no

insight or understanding of himself (Tr. 124-27). “He generally

understood instructions readily. Attitude toward tasks was

oppositional. He maintained poor interest and effort. General

approach to assessment tasks was slow and haphazard” (Tr. 126). 

He appeared to give up easy on the tasks assigned him. The WISCIII was administered, but Williams was unable to score the test,

stating that Plaintiff’s effort was “an invalid estimate of his

current level of intellectual functioning due to poor motivation,

lack of interest and effort, and haphazard approach to testing”

(id.). The tester’s diagnostic impression was oppositional

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defiant disorder.

On June 4, 2003, Mark A. Havard, a speech-language

pathologist, examined Carstarphen and found him to have normal

articulation, fluency, and oral motor skills (Tr. 128-29). 

However, “[h]is language testing was judged inaccurate due to his

lack of responsiveness during the latter half of subtests. The

therapists believes [sic] that he functions at a normal level if

not above normal” (Tr. 129). 

On June 17, 2003, Plaintiff underwent another mental

examination, this time by Annie L. Formwalt, Psy.D., who noted

that he appeared oppositional (Tr. 130-32). More specifically,

the tester stated that “[h]e generally understood instructions

readily but chose to act contrary to the directions given until

redirected. Attitude toward tasks ranged from adequate to

oppositional. He refused to attempt the Object Assembly Subtest. 

He maintained fair to poor interest and effort. General approach

to assessment tasks was slow and haphazard” (Tr. 131). The WISCIII was again administered and Carstarphen achieved a verbal

score of 73, a performance score of 74, and a full scale score of

71. Formwalt suggested that Plaintiff was malingering.

Two days after this evaluation, Carstarphen was again

evaluated, this time by a psychologist with the Mobile County

School Board, because he had failed every graded subject area in

the first semester of the previous school year (Tr. 105; see

generally, Tr. 104-10). One of the tests Plaintiff took was the

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“Ritalin is a mild central nervous system stimulant” used to

treat Attention Deficit Disorders in Children. Physician's Desk

Reference 1896-98 (52nd ed. 1998). 

6

Vineland Adaptive Behavior Scale which showed that he was

“significantly dependent upon others for accomplishment of tasks

which his non-disabled peers can typically manage alone” (Tr.

107). Another test taken was the Comprehensive Test of Nonverbal

Intelligence on which Carstarphen “obtained a Nonverbal

Intelligence Quotient of 69 which classifies him in the Very Poor

range of intelligence and ranks him at the 2nd percentile for

children his age” (Tr. 108). This result indicated that his

“cognitive abilities [were] severely delayed relative to that of

his typical peers and suggest that his potential for acquiring

typical school skills may be substantially limited” (Tr. 108-

09). These tests led to Plaintiff’s being placed in special

education classes (see Tr. 97-98). 

Records from the treating physician, Dr. Mark McDaniel, show

that Carstarphen received all of his immunizations so that he

could go to school (Tr. 145). On August 28, 2003, Plaintiff

began taking five milligrams of ritalin2 to help him in school at

the request of his father (Tr. 139, 144). Two months later,

McDaniel noted that Carstarphen was doing better in school but

was still easily distracted, so his prescription was increased to

twenty milligrams (Tr. 144). On that same date, the doctor

completed a form which indicated that Plaintiff suffered from

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marked inattention, impulsiveness, and hyperactivity as well as a

marked impairment in age-appropriate social functioning and

deficiencies of concentration, persistence or pace resulting in

frequent failure to complete tasks in a timely manner (Tr. 138). 

On March 2, Dr. McDaniel continued the twenty-milligrams-ofritalin-per-day prescription (Tr. 144).

School records indicate that during the week of August 29,

2003, Plaintiff scored a 30/E in reading, a 20/E in spelling/

language, a 62/D in math and a D in behavior (Tr. 90). On

November 14, Carstarphen received an AA on his behavior report

(Tr. 91). On November 19, 2003, Plaintiff received a B in both

reading and math and was noted to have “demonstrated usually” in

social studies, science, and language arts while “demonstrating

consistently” in social development and work skills (Tr. 92). 

During the week of January 5, 2004, received a 50/E in reading,

but an 80/B in math (Tr. 88). A report card from January 12,

2004 showed that Plaintiff had improved from a C to an A in

reading while maintaining a B average in math in the first and

second quarters of the second grade; he also showed improvement

in language arts, social studies, and science though his social

development/work-related skills showed less consistency (Tr. 93).

At the hearing before the ALJ, Plaintiff’s father testified

that the medications had helped his son (Tr. 179, 182);

Carstarphen was taking special education classes in reading,

math, and science (Tr. 180). 

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A medical expert (hereinafter ME), Dr. Peter Bertucci,

testified that he had studied all of the evidence of record and

had determined that Plaintiff was not disabled (Tr. 186-89). The

doctor noted that there was no diagnosis of mental retardation,

that Carstarphen had a learning disability, and that tester

Formalt had indicated that the IQ tests did not reflect

Plaintiff’s true abilities; Bertucci further stated that the test

results obtained by the school board were “about the same” as

those obtained by Formalt (Tr. 188). It was also his opinion,

based on the evidence, that Carstarphen did not have a marked

impairment in acquiring and using information, one of the domain

analysis categories, and that he would be less than marked to

marked in attending and completing tasks, a second domain

category (Tr. 189). 

The ALJ faithfully summarized the medical evidence of record

before giving “controlling weight to medical expert Peter S.

Bertucci” (Tr. 21). The ALJ further stated that his findings

were supported by the testimony of Carstarphen’s father (id.). 

After performing domain analysis and finding that he was, at

most, markedly limited in one of the six categories, the ALJ

concluded that Plaintiff was not disabled under the Listings. 

Plaintiff claims that he meets the requirements of Listing

112.05D. That listing requires “[a] valid verbal, performance,

or full scale IQ of 60 through 70 and a physical or other mental

impairment imposing additional and significant limitation of

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function.” 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing

112.05D (2005). Carstarphen’s argument is that the Nonverbal

Intelligence Quotient of 69 scored on the Comprehensive Test of

Nonverbal Intelligence given by the School Psychologist satisfies

the first prong of the Listing. The argument continues that the

finding by the ALJ that he had a severe impairment, ADHD, which

the ME classified as a marked impairment, supplies the second

prong of the Listing, leading to the conclusion that Plaintiff

must be disabled. 

The Court notes, however, that the ME stated that there was

no real difference in the IQ scores among the tests and that the

two State examiners specifically noted that Plaintiff had not

provided his best effort during the evaluations. The ALJ

specifically gave controlling weight to the ME. Though he did

not explicitly find the 69 IQ to be equivalent to the other

score, the ALJ implicitly reached that conclusion. This

conclusion is further supported by the fact that the two tests

were taken a mere two days apart. 

Plaintiff has further argued that the ME—and ultimately, the

ALJ—improperly concluded that he was only markedly limited in one

of the six domains of functioning. Though the ALJ found him to

be markedly limited in the “attending and completing tasks”

domain, Carstarphen has argued that he should have been found as

limited in the “acquiring and using information” domain. 

Plaintiff attributes the ALJ’s wrong conclusion to a failure to

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consider the opinions of his school teachers. 

Without going through the specific domain analysis which the

ALJ has performed, the Court notes that it has reviewed and

summarized the school records previously. Those records show

that Plaintiff has had problems but that his grades and behavior

have improved with the ritalin prescription. Plaintiff’s father

also testified to this improvement. The Court finds that the

ALJ’s conclusion that Carstarphen is not markedly limited in

acquiring and using information to be supported by substantial

evidence. 

In reaching its decision, the Court notes that there is

evidence suggesting that Plaintiff has a disability. However,

there is also evidence, on which the ALJ has based his decision,

that he is not disabled. The Court finds substantial evidence

for the ALJ’s decision; though it is not a preponderance of the

evidence, Brady, 724 F.2d at 918, there is substantial evidence.

Upon consideration of the entire record, the Court finds

"such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Perales, 402 U.S. at 401. 

Therefore, it is recommended that the Secretary's decision be

affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.

1980), that this action be dismissed, and that judgment be

entered in favor of Defendant Jo Anne B. Barnhart and against

Plaintiff Andre M. Carstarphen, Sr. on behalf of Andre M.

Carstarphen, Jr.

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MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

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this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 26th day of January, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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