1Though this action was actually filed by his godmother and legal

guardian, the Court will refer to the minor child as the Plaintiff

(see Doc. 16, p. 1 n.1). For privacy reasons, the Court will refer to

Plaintiff as Gulley.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DANELLE GULLEY, : 

o/b/o D.A., : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 09-0439-M 

: 

MICHAEL J. ASTRUE, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

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

Plaintiff1 seeks judicial review of an adverse social security

ruling which denied a claim for Supplemental Security Income for

children (hereinafter SSI) (Docs. 1, 15). The parties filed

written consent and this action has been referred to the

undersigned Magistrate Judge to conduct all proceedings and order

the entry of judgment in accordance with 28 U.S.C. § 636(c) and

Fed.R.Civ.P. 73 (see Doc. 21). Oral argument was waived in this

action (Doc. 20). Upon consideration of the administrative

record and the memoranda of the parties, it is ORDERED that the

decision of the Commissioner be AFFIRMED and that this action be

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 1 of 16
2

DISMISSED. 

This Court is not free to reweigh the evidence or substitute

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).

At the time of the administrative hearing, Plaintiff was

fourteen years old (Tr. 33) and had completed a seventh-grade

education (see Tr. 223). In claiming benefits, Plaintiff alleges

disability due to ADHD and depression (Doc. 15 Fact Sheet).

The Plaintiff filed an application for SSI on October 27,

2006 (Tr. 74-78). Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although

Gulley had severe impairments, they were not so severe that they

met or equaled the requirements to satisfy any of the Listed

Impairments (Tr. 9-29). Plaintiff requested review of the

hearing decision (Tr. 6-8) by the Appeals Council, but it was

denied (Tr. 1-3).

Plaintiff claims that the opinion of the ALJ is not

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 2 of 16
2Adderall is an amphetamine used for the treatment of Attention

Deficit Disorder with Hyperactivity. Physician's Desk Reference 2395-

96 (52nd ed. 1998). 

3

supported by substantial evidence. Specifically, Gulley alleges

that: (1) The ALJ did not properly consider the opinions and

conclusions of his treating physician; and (2) he meets, or

equals, the requirements of Listing 112.11 (Doc. 15). Defendant

has responded to—and denies—these claims (Doc. 16). The relevant

evidence of record follows.

Daphne Middle School records demonstrate that Plaintiff,

generally, performed poorly in his sixth-grade academic studies

(T. 104-25). Gulley was repeatedly subjected to on-campus

detentions, suspensions, and loss of privileges for horseplay and

other disruptive behavior (Tr. 106-07, 117). 

On October 18, 2006, Dr. Bernard Bergman, of Baldwin County

Mental Health, performed an initial assessment of Gulley and

diagnosed him to have a depressive disorder, generalized anxiety

disorder, attention deficit hyperactivity disorder, combined

type, and oppositional defiant disorder (Tr. 178-81; see Doc. 15,

p. 6). Bergman recommended individual psychotherapy and

prescribed Adderall.2

One of Plaintiff’s teachers, Tonya Chestang, completed a

questionnaire on November 3, 2006 in which she stated that she

had had Gulley in her sixth-grade English class for three months

and that his written language was only at a third grade level

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 3 of 16
4

(Tr. 139-46). In the questionnaire, Chestang indicated the

following: In the category of acquiring and using information,

Plaintiff had obvious problems in understanding school and

content vocabulary, comprehending and doing math problems,

expressing ideas in written form, learning new material and

applying problem-solving skills in class discussions; he had

serious problems in reading and comprehending written material

and providing organized oral explanations and adequate

descriptions (Tr. 140). Under the category of attending and

completing tasks, Gulley had obvious problems with changing from

one activity to another without being disruptive, completing

class/homework assignments, completing work accurately without

careless mistakes, and working at reasonable pace/finishing on

time; he had serious problems with organizing his own things or

school materials and working without distracting self or others

(Tr. 141). In the category of interacting and relating with

others, Plaintiff had obvious problems with playing cooperatively

with other children, making and keeping friends, seeking

attention appropriately, asking permission appropriately,

following rules in the classroom, in games, and in sports,

relating experiences and telling stories, introducing and

maintaining relevant and appropriate topics of conversation,

taking turns in a conversation, and interpreting meaning of

facial expression, body language, hints, and sarcasm; he had

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 4 of 16
5

serious problems in using language appropriate to the situation

and listener and using adequate vocabulary and grammar to express

thoughts/ideas in general, everyday conversation (Tr. 142). In

caring for himself, Chestang indicated that Gulley had obvious

problems in using good judgment regarding personal safety and

dangerous circumstances, identifying and appropriately asserting

emotional needs, and responding appropriately to changes in his

own mood; he had no serious problems (Tr. 144). The teacher

noted that Plaintiff took medication which changed his behavior

in that after he took it, he was respectful, did not constantly

make noise, and did his classwork (Tr. 145). 

On November 14, 2006, Susan McNair, M.S., with the Baldwin

County Mental Health Center, examined Plaintiff and administered

several tests, including the WISC-IV on which Gulley scored a

Full Scale IQ score of 83, which was considered to be low average

(Tr. 183-87). Results from the Wechsler Individual Achievement

Test demonstrated that Plaintiff read at a third grade level,

performed mathematics at a mid-fourth grade level, and could

spell at just under the fourth grade level. McNair stated that

“[t]est data was indicative of significant symptoms of ADHD as

well as depression, anxiety, and PTSD. He acknowledged thoughts

of self-harm and he should be carefully monitored for suicide

risk” (Tr. 186). 

On February 9, 2007, Teacher Chestang completed a disability

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 5 of 16
3The Court notes that one page of the evaluation is missing (see

Tr. 150-51). Because of this, the Court is unsure how Chastang rated

Plaintiff’s limitations with regard to moving about and manipulating

objects. See 20 C.F.R. § 416.926a(b)(1)(iv) (2009). 

6

evaluation in which she indicated that Gulley had less than

marked limitations in acquiring and using information, attending

and completing tasks, interacting and relating with others,

caring for himself, and health and physical well-being (Tr. 149-

51).3 In written statements, the teacher noted that Plaintiff

had deficits but that he had shown improvement with his

medications; it was her belief that he would continue to improve.

On July 3, 2007, Dr. Greg Cummings, with the Baldwin County

Mental Health Center, completed a Depression Questionnaire in

which he indicated that Plaintiff had a major depressive syndrome

characterized by the following: depressed or irritable mood,

markedly distinguished interest or pleasure in almost all

activities, appetite or weight increase, sleep disturbance,

psychomotor agitation or retardation, feelings of worthlessness

or guilt, and difficulty thinking or concentrating (Tr. 195; see

generally Tr. 195-96; see Tr. 203). His depression was also

characterized by marked impairment in the following: age

appropriate cognitive/communicative function, age-appropriate

social functioning, personal/behavioral function, and

deficiencies of concentration, persistence or pace resulting in

frequent failure to complete tasks in a timely manner (Tr. 195). 

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 6 of 16
7

Dr. Cummings also completed an ADHD questionnaire in which he

indicated that Gulley suffered from marked inattention, marked

impulsiveness, marked hyperactivity, and marked impairment in the

following: age-appropriate cognitive/communication function,

age-appropriate social functioning, age-appropriate

personal/behavioral function; the doctor also indicated that

Plaintiff had frequent deficiencies of concentration, persistence

or pace resulting in failure to complete tasks in a timely manner

(Tr. 196). Cummings indicated that he had only treated Gulley

once, five months prior to the completion of these two

questionnaires (Tr. 196).

A disability evaluation was completed by Beth Craft, M.S.,

on July 3, 2007 which indicated that Plaintiff had marked

limitations in acquiring and using information, attending and

completing tasks, interacting and relating with others, caring

for himself, and in his health and physical well-being (Tr. 197-

200). The Social Worker also completed an ADHD questionnaire on

that same date which found Gulley to have marked inattention,

impulsiveness, and hyperactivity, as well as marked limitations

in age-appropriate cognitive/communication function, ageappropriate social functioning, age-appropriate

personal/behavioral function and that he had frequent

deficiencies of concentration, persistence or pace resulting in

failure to complete tasks in a timely manner (Tr. 201). Craft

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 7 of 16
8

indicated that she had treated Gulley five times over the course

of nine months (Tr. 201). 

On July 17, 2007, Dr. Cummings examined Plaintiff who

indicated that he was compliant with his medication which had

improved his concentration and attention span; however, he was

still oppositional and defiant at home (Tr. 203; see generally

Tr. 203-04). Gulley had gone to summer school, passed two

courses, and would be advancing to the eighth grade. Cummings

noted that Plaintiff was in no apparent distress, was

cooperative, had good eye contact, and was euthymic; thought

processes were fairly logical but not goal-oriented. “He was

very oppositional and defiant throughout the interview” (Tr.

203). The doctor’s assessment was that Gulley “continue[d] to

experience chronic symptoms related to ADHD and childhood abuse

with a high level of anxiety” (Tr. 204). 

On January 8, 2008, Dr. Cummings examined Plaintiff and

noted that he had begun an educational program, the SOAR Program,

to help him with his concentration; he had also undergone some

medication changes (Tr. 223-24). The doctor noted that Gully was

in no apparent distress, was euthymic, and that he denied

depression or suicidal thoughts. Thought processes were normal

but not clearly goal-oriented; he was less oppositional and

defiant than in the previous examination. It was Dr. Cummings’

opinion that Plaintiff was still experiencing chronic symptoms of

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 8 of 16
9

ADHD and anxiety. A month later, the doctor noted that the SOAR

Program and medicinal changes were bringing about improvement

(Tr. 222). On March 11, Dr. Cummings noted that Gulley had

reported having “significant problems with his concentration and

attention span and [was having] a difficult time staying on task

while requiring frequent redirection” (Tr. 220). The doctor

found Plaintiff to be in no apparent distress, cooperative, with

good eye contact; he was euthymic with fairly logical thought

processes, consistent with his age and level of development. He

was never oppositional or defiant.

On July 10, 2008, Psychologist C. Van Rosen examined

Plaintiff and administered the WISC-IV on which he received a

Full Scale IQ score of 83, the low average range of intellectual

functioning; Rosen noted that he had an extremely low processing

speed though all other measures were average (Tr. 206-17). 

Gulley reported that he wanted to play football and was lifting

weights toward that end; he had also recently helped his uncle

repair some homes in Daphne which Plaintiff found satisfying. 

Van Rosen’s impression was as follows:

[Plaintiff] appears to be best diagnosed with

Attention-Deficit/Hyperactivity Disorder,

Predominantly Inattentive Type and Major

Depressive Disorder with Atypical Features. 

He also appears to have symptoms of

Disruptive Behavior Disorder, Not Otherwise

Specified. He is viewed as currently having

moderate difficulty functioning in an ageappropriate manner, communicatively,

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 9 of 16
4Defendant has asserted that Rosen “used the form for adults

instead of the form for children” (Doc. 16, pp. 6-7). This would

appear to be correct as the abilities evaluated are work-related.

10

socially, adaptively, behaviorally, and

similarly in concentration, persistence, and

pace. Psychologically, he appears to have a

moderate restriction of activities, and

moderate constriction of interests. He

appears to have severe impairment in his

ability to relate to others interpersonally.

Based on the psychological aspects of

this evaluation, [Plaintiff] appears

moderately hindered in his ability to

understand, remember, and carry out

instructions in an age-appropriate

educational situation and would be moderately

to severely hindered in his capability to

respond appropriately to supervision, peers,

or academic related stress in a traditional

teaching environment.

(Tr. 213). Rosen discounted the previous diagnosis of Post

Traumatic Stress Disorder; the Psychologist noted Gulley’s

improvement in academic performance and the reduction in ADHD

symptoms. Rosen completed a Mental Source Opinion Form4 in which

he indicated that he thought that Plaintiff was markedly limited

in the following abilities: to respond appropriately to

supervisors, co-workers, customers or other members of the

general public; use judgment in detailed or complex work-related

decisions; deal with changes in a routine work setting;

understand, remember, and carry out detailed or complex

instructions; maintain attention, concentration or pace for

periods of at least two hours; and maintain social functioning

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 10 of 16
11

(Tr. 216-17). 

The ALJ faithfully reviewed all of the submitted evidence

and determined that although Gulley had severe impairments, they

were not so severe that they met or equaled the requirements to

satisfy any of the Listed Impairments (Tr. 9-29). In reaching

this decision, the ALJ assigned “significant evidentiary weight

to the opinion of Greg Cummings, M.D., that the claimant is

getting better” (Tr. 23). The ALJ rejected the opinions of

Social Worker Craft and Psychologist Rosen whose conclusions that

Gulley had marked limitations “are far too drastic for a claimant

who is digging his way out of abuse issues and trying to connect

with other peers through football” (id.). The ALJ went on to

find that Plaintiff had less than marked limitations in the

following domains: acquiring and using information, attending

and completing tasks, interacting and relating with others, and

caring for himself; he found no limitations in the domains of

moving about and manipulating objects and health and physical

well-being (Tr. 23-28).

Plaintiff's first claim is that the ALJ did not accord

proper legal weight to the opinions, diagnoses and medical

evidence of Plaintiff's physicians. Gulley has referred to Dr.

Cummings as the treating physician (Doc. 15, p. 4). It should be

noted that "although the opinion of an examining physician is

generally entitled to more weight than the opinion of a nonCase 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 11 of 16
5The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

12

examining physician, the ALJ is free to reject the opinion of any

physician when the evidence supports a contrary conclusion." 

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);5 see

also 20 C.F.R. § 404.1527 (2009).

As noted, the ALJ gave substantial weight to Dr. Cummings’s

conclusions (Tr. 23). Though the doctor initially indicated that

Gulley had marked impairments (Tr. 195-96), he had only examined

Plaintiff once at that time. His more recent notes indicate that

although Gulley was still suffering deficits, he had shown

improvement, both academically and in attitude (Tr. 222). The

Court finds that the ALJ has properly considered Dr. Cummings’s

notes and rendered a decision substantially supported by them.

Plaintiff has next argued that he meets, or equals, the

requirements of Listing 112.11, Attention Deficit Hyperactivity

Disorder, the requirements of which are as follows:

Manifested by developmentally

inappropriate degrees of inattention,

impulsiveness, and hyperactivity.

The required level of severity for these

disorders is met when the requirements in

both A and B are satisfied.

A. Medically documented findings of all

three of the following:

1. Marked inattention; and

2. Marked impulsiveness; and

3. Marked hyperactivity;

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 12 of 16
13

AND

B. For older infants and toddlers (age

1 to attainment of age 3), resulting in at

least one of the appropriate age-group

criteria in paragraph B1 of 112.02; or, for

children (age 3 to attainment of age 18),

resulting in at least two of the appropriate

age-group criteria in paragraph B2 of 112.02.

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 112.11 (2009). The

criteria of paragraph of B2 of Listing of 112.02 are:

a. Marked impairment in age-appropriate

cognitive/communicative function, documented

by medical findings (including consideration

of historical and other information from

parents or other individuals who have

knowledge of the child, when such information

is needed and available) and including, if

necessary, the results of appropriate

standardized psychological tests, or for

children under age 6, by appropriate tests of

language and communication; or

b. Marked impairment in age-appropriate

social functioning, documented by history and

medical findings (including consideration of

information from parents or other individuals

who have knowledge of the child, when such

information is needed and available) and

including, if necessary, the results of

appropriate standardized tests; or

c. Marked impairment in age-appropriate

personal functioning, documented by history

and medical findings (including consideration

of information from parents or other

individuals who have knowledge of the child,

when such information is needed and

available) and including, if necessary,

appropriate standardized tests; or

d. Marked difficulties in maintaining

concentration, persistence, or pace.

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 112.02B2 (2009).

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 13 of 16
14

Again, as previously noted, the ALJ found that Plaintiff did

not meet or equal these Listing requirements. The Court notes

that “[t]he law defines disability as the inability to do any

substantial gainful activity by reason of any medically

determinable physical or mental impairment 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.” 20 C.F.R. §

404.1505(a) (2009). Plaintiff has not demonstrated twelve

continuous months of inability. 

With regard to Listing 112.11, the Defendant concedes that

Gulley meets the requirements of subsection A (Doc. 16, p. 11). 

(“The Commissioner recognizes that [Plaintiff] has serious

impairments that affected his ability to function”). However,

the Government argues that Gulley has not met the entire Listing

because the requirements of subsection B have not been met (Doc.

16, pp. 11-13). The Court finds that the evidence supports that

argument.

With regard to age-appropriate cognitive/communicative

functioning (Listing 112.02B2a), the Court notes that two

different IQ tests demonstrated that Gulley had only a low

average range of intellectual functioning. Even though Dr.

Cummings noted some difficulties in his ability to communicate,

he noted that Plaintiff had completed two courses in summer

school to advance to the eighth grade.

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 14 of 16
15

With regard to age appropriate social functioning (Listing

112.02B2b), though initial reports indicated multiple instances

of disciplinary action being taken against Gulley at school, more

recent reports of such do not exist in the record. Additionally,

Plaintiff took up football in school over a year ago; football is

a team sport, necessitating his cooperation, i.e., social

functioning, to have any success. 

With regard to age appropriate personal functioning (Listing

112.02B2c), Gulley has been taking his medications, has shown

improvement in school, taken up weight training to aid his goal

of being a football player, and helped his uncle do some repair

work on several houses, from which he received great personal

satisfaction. There is no demonstration of marked impairment.

The final requirement is difficulties in maintaining

concentration, persistence, or pace (Listing 112.02B2d). The

evidence demonstrates that although Plaintiff has consistently

had problems with his concentration, his medications have

decreased the impact. Though Gulley may be behind other students

his own age, he has persisted in his efforts and has managed to

advance his studies and his personal growth.

Plaintiff has not demonstrated that he meets or equals the

requirements of subsection B of Listing 112.11 as he has not

shown that he has marked impairments in two of the four criteria.

Based on the improvement noted by Dr. Cummings, the Court

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 15 of 16
16

finds substantial evidence to support the ALJ’s determination

that Gulley does not meet the requirements of any of the

Listings. Though Gulley has referenced other medical records

besides those of Dr. Cummings, the ALJ specifically rejected the

conclusions of Social Worker Craft and Psychologist Rosen; noting

that those opinions were each rendered after a single

examination, the Court finds that the ALJ’s decision in this

regard to be supported by substantial evidence as well. 

Plaintiff has raised two different claims in bringing this

action. Both are without merit. 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 ORDERED

that the Secretary's decision be AFFIRMED, see Fortenberry v.

Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action

be DISMISSED. Judgment will be entered by separate Order.

DONE this 1st day of March, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00439-M Document 22 Filed 03/01/10 Page 16 of 16