1

Although this action was brought by his mother on his behalf,

the Court will refer to Gregory Brown as the Plaintiff.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

REGINA BROWN, on behalf of

GREGORY L. BROWN, : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 05-0661-CG-M

JO ANNE B. BARNHART, : 

Commissioner of

Social Security, : 

Defendant. : 

REPORT AND RECOMMENDATION

 In this action under 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). The action was referred for report and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral

argument was heard on July 31, 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 of Defendant Jo Anne B. Barnhart and against

Plaintiff Regina Brown on behalf of Gregory L. Brown.

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human SerCase 1:05-cv-00661-CG-M Document 18 Filed 08/02/06 Page 1 of 8
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The Court notes that this is the second opinion rendered by this

ALJ as the Appeals Council, on first review, remanded the action back

for further consideration (see Tr. 19-20). The Court has not included

a discussion of those decisions as they are irrelevant here.

2

vices, 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 December 2, 1988. At the time of the

most recent administrative hearing, Brown was sixteen years old

and had completed a tenth-grade education (Tr. Doc. 11 Fact

Sheet). In claiming benefits, Plaintiff alleges disability due

to juvenile rheumatoid arthritis, Attention Deficit Hyperactivity

Disorder (hereinafter ADHD), depression, and anxiety (id.).

The Plaintiff protectively filed an application for SSI on

October 24, 2001 (Tr. 83-89). Benefits were denied following a

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

although Brown had severe impairments, he was not disabled (Tr.

15-34).2 Plaintiff requested review of the hearing decision (Tr.

13) by the Appeals Council, but it was denied (Tr. 7-12).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Brown alleges

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that the ALJ improperly gave evidentiary weight to the opinions

of two consultative examiners because they did not comply with

the requirements of the social security regulations (Doc. 11). 

Defendant has responded to—and denies—these claims (Doc. 14).

Plaintiff has stated that the two consultative examiners did

not meet the requirements of social security regulation 20 C.F.R.

§ 416.919p in performing their evaluations. The pertinent part

of that regulation states as follows:

(a) We will review the report of the

consultative examination to determine whether

the specific information requested has been

furnished. We will consider the following

factors in reviewing the report:

(1) Whether the report provides evidence

which serves as an adequate basis for

decisionmaking in terms of the

impairment it assesses;

(2) Whether the report is internally

consistent; Whether all the diseases,

impairments and complaints described in

the history are adequately assessed and

reported in the clinical findings;

Whether the conclusions correlate the

findings from your medical history,

clinical examination and laboratory

tests and explain all abnormalities;

(3) Whether the report is consistent

with the other information available to

us within the specialty of the

examination requested; Whether the

report fails to mention an important or

relevant complaint within that specialty

that is noted in other evidence in the

file (e.g., your blindness in one eye,

amputations, pain, alcoholism,

depression)[.]

20 C.F.R. § 416.919p (2005). Brown has specifically referenced

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While the content of the examination record clearly demonstrates

that an orthopedic examination was conducted, there is no evidence in

the record to indicate that Dr. Hunte had any special expertise in

this area of medicine; his report, in two places, states that he has a

family practice (Tr. 303-08). 

4

the examinations of Davis and Hunte.

Dr. Eyston A. Hunte, a family practitioner, performed an

orthopedic exam of Brown on October 18, 2004 (Tr. 303-08).3 The

Court will not set out herein the results of that examination as

Plaintiff’s objection is not to the report itself, but that Dr.

Hunte did not have access to certain medical information which

came into being within three months after he saw Brown (Doc. 11,

pp. 8-9; cf. Tr. 338-51). The newer evidence was that Plaintiff

had spinal spondyloarthropathy which was to be treated with

medication.

The ALJ noted the diagnosis and noted that there had been

“no corresponding elevations in [Brown’s] sedimentation rate; and

his rheumatoid factor and ANA blood test results have remained

consistently negative” (Tr. 30). The ALJ further noted that Dr.

Lawrence, Plaintiff’s treating physician, found only moderate

tenderness in the sacroiliac joints with full range of motion. 

The Court notes that Dr. Lawrence did not indicate that

Brown was disabled because of the spondyloarthropathy;

furthermore, he did not state what limitations, if any, would be

associated with this impairment. Dr. Hunte’s evaluation is,

basically, uncontradicted as of the time it was given;

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Prozac is used for the treatment of depression. Physician's

Desk Reference 859-60 (52nd ed. 1998). Zyprexa is used for the

“management of the manifestations of psychotic disorders.” 

Physician's Desk Reference 1512 (52nd ed. 1998). 

5

furthermore, the new evidence does not cast doubt on Hunte’s

findings. As the new evidence was considered and discussed, the

Court finds that the ALJ’s reliance on Dr. Hunte’s opinion—

although it preceded the evidence—provides no basis for error.

Plaintiff has also questioned the ALJ’s reliance on the

evaluation performed by Psychologist John W. Davis on November 2,

2004 (Doc. 11, pp. 7-8; cf. Tr. 309-19). The reason asserted for

Brown’s claim is that the Psychologist’s most recent report fails

to discuss ADHD and Oppositional Defiant Disorder although other

medical sources had made these diagnoses as did Davis himself in

a prior examination of February 28, 2002 (cf. Tr. 218-20). 

Other medical evidence of record demonstrates that Brown was

diagnosed to have ADHD on July 3, 2001 by Dr. Michael Gomez with

Alabama Psychiatric Services; the doctor also noted major

depression and a Global Assessment Functioning (hereinafter GAF)

score of 50 (Tr. 205). Dr. Gomez treated Plaintiff with Prozac

and Zyprexa.4 A note from Mobile Mental Health, dated July 18,

2001, provided a diagnosis of Oppositional Defiant Disorder (Tr.

160); the Court notes, though, that later records from Mobile

Mental Health did not make this diagnosis (see Tr. 290-302, 325-

26, 334-35) though there is one note about Brown’s having

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The Court also notes that Plaintiff did not list Oppositional

Defiant Disorder as one of his impairments on the Fact Sheet provided

to this Court (see Doc. 11).

6

Adderall is an amphetamine used for the treatment of Attention

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

96 (52nd ed. 1998). 

7

“A GAF of 85 indicates absent or minimal symptoms (e.g., mild

anxiety before an exam), good functioning in all areas, interested an

involved in a wide range of activities, socially effective, generally

satisfied with life, no more than everyday problems or concerns (e.g.,

an occasional argument with family members). [Diagnostic and

Statistical Manual of Mental Disorders-IV], 32 [4th ed].” Doc. 14, p.

7 n.4).

6

continuing severe anger management problems (Tr. 337).5 On

October 22, 2001, Dr. Stephen Andrews noted that Brown had

depression and ADHD for which he was being treated with Prozac

and Adderall (Tr. 213).6 A progress note dated May 14, 2004 from

Dr. V. Dillon at Mobile Mental Health indicated a diagnosis of

ADHD, combined type, and Dysthymic Disorder NOS for which Brown

was taking Prozac and Adderall (Tr. 295). 

In the recent examination by Psychologist Davis, he noted

that Brown was taking bother Adderall and Prozac (Tr. 309); he

also stated that he had reviewed and considered the medical

evidence provided by the Social Security Administration (Tr.

312). Although Brown’s mother reported her son’s suffering from

ADHD, Davis reported that it was not evident at that time. The

Court also notes that on February 14, 2005, Dr. Dillon completed

an ADHD questionnaire in which he stated that Plaintiff did not

suffer marked limitations in any area as his problems had been

corrected with medications; he also indicated a GAF of 857 (Tr.

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140). 

The Court finds no error in the ALJ’s reliance on Davis’s

most recent evaluation. The February 2005 questionnaire

completed by Dr. Dillon indicates that the medications that Brown

takes were working; Davis’s examination verifies that report. 

Plaintiff’s claim otherwise is without merit.

Plaintiff has raised a single claim in this action; that

claim is 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 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 Regina Brown on behalf of Gregory L. Brown.

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

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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

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 2nd day of August, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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