Jennifer Dunlop v. Commissioner of Social Security

Case: 11-15627 Date Filed: 05/02/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15627
Non-Argument Calendar
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D.C. Docket No. 9:10-cv-80631-KMW
JENNIFER DUNLOP,
as legal Representative of CWS, a minor,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 2, 2013)
Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.
PER CURIAM:
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Jennifer Dunlop, as legal representative of her minor daughter CWS, appeals
the district court’s order affirming the Commissioner’s denial of CWS’s
application for supplemental security income benefits. Dunlop contends that the
administrative law judge erred by finding that CWS was not disabled within the
meaning of the Social Security Act.
CWS was born with a missing middle finger on her right hand and had
mental impairments that were characterized as separation anxiety and an
adjustment disorder. Dunlop applied for supplemental security income benefits on
behalf of CWS, but the application was denied. Dunlop requested a hearing before
an ALJ, who found that CWS was not disabled and was not entitled to benefits.
She then filed a complaint in federal district court, where a magistrate judge
recommended affirming the ALJ’s decision. The district court adopted the
magistrate judge’s report and recommendation. This is Dunlop’s appeal.1
1
Dunlop initially filed a pro se appeal on behalf of her minor daughter CWS. We sua
sponte entered a stay and ordered the parties to show cause why Dunlop, a non-lawyer, could
appear before us in a representative capacity. After receiving the parties’ responses to the order
to show cause, a single judge of this Court ordered the following issue to be carried with the
case: “Whether this Circuit should, in cases involving a minor child’s claim for Supplemental
Social Security disability benefits, recognize an exception to the general rule that a non-attorney
parent may not represent a minor child in federal court.” In that same order, however, the single
judge appointed counsel to represent Dunlop. That made the issue of whether Dunlop may
proceed without counsel moot, and we therefore do not address it. See Al Najjar v. Ashcroft,
273 F.3d 1330, 1336 (11th Cir. 2001) (“Any decision on the merits of a moot case or issue would
be an impermissible advisory opinion.”) (quotation marks omitted).
As appointed counsel, Eric M. Cohen of Miami has performed admirably and rendered a
service to appellant and to this Court.
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“We review the ALJ’s decision to determine if it is supported by substantial
evidence and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436,
1439 (11th Cir. 1997)). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. (quoting Lewis, 125 F.3d at1439).
To determine whether a minor child is disabled, the ALJ must follow a
three-step sequential process, considering whether the child: (1) is engaged in
“substantial gainful activity”; (2) has a medically determinable “severe”
impairment or combination of impairments; and (3) has an impairment or
combination of impairments that meets, medically equals, or functionally equals
the severity of an impairment listed in the Code of Federal Regulations. 20 C.F.R.
§ 416.924. The ALJ applied that three-step process, concluding that CWS had not
engaged in substantial gainful activity, her impairments were “severe,” but her
combination of impairments did not meet, medically equal, or functionally equal
the severity of a listed impairment.
Dunlop contends that the ALJ erred by finding that: (1) CWS’s mental
impairment was not medically equal to a listed impairment; and (2) CWS’s
combination of impairments was not functionally equal to a listed impairment. As
to the first contention, substantial evidence supports the ALJ’s determination that
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CWS’s mental impairment was not medically equal to a listed impairment.
Various medical reports noted that CWS behaved appropriately for her age and
two physicians concluded that her impairments, although severe, did not meet or
medically equal the severity of a listed impairment. Dunlop points to the report of
a social worker and a physician who conducted a mental health evaluation of CWS
in support of her contention that the ALJ’s conclusion was erroneous. But the
existence of evidence that is arguably inconsistent with the ALJ’s conclusion is not
grounds for reversal. See Crawford, 363 F.3d at 1158–59 (“Even if the evidence
preponderates against the ALJ’s decision, we must affirm the decision so long as it
is supported by substantial evidence.”)
As to Dunlop’s second contention, to determine whether CWS’s
impairments functionally equal a listed impairment the ALJ must assess how CWS
functions in six “domains”: (1) acquiring and using information; (2) attending and
completing tasks; (3) interacting and relating with others; (4) moving about and
manipulating objects; (5) caring for self; and (6) health and physical well-being.
20 C.F.R. § 416.926a(b)(1). The ALJ evaluated the six domains and concluded
that CWS had “no limitation” in four of them and “a less than marked limitation”
in two of them: (1) moving about and manipulating objects; and (2) health and
physical well-being.
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Dunlop contends that the ALJ erred by failing to conclude that CWS had
“marked” or “extreme” limitations in four of the domains: (1) attending and
completing tasks; (2) moving about and manipulating objects; (3) caring for self;
and (4) health and physical well-being. In support of her contention, Dunlop
points to statements in medical reports and assessments by CWS’s teachers that
she claims suggest that CWS actually had significant limitations in those four
domains. The ALJ’s conclusion, however, is supported by substantial evidence
that showed that CWS’s mental impairments did not prevent her from functioning
similarly to a normal child of her age and that despite the physical limitations of
her right hand, she was able to use her left hand to perform most of the functions
that an unimpaired child of her age is able to perform. 2
Regardless of the evidence that might suggest that CWS’s impairments were
more severe than the ALJ concluded, the record as a whole contains sufficient
evidence for a reasonable person to accept the ALJ’s conclusion that CWS’s
impairments did not meet, medically equal, or functionally equal a listed
2
Dunlop also contends that CWS’s hand impairment functionally equals a listed
impairment because it is a “condition that is disabling at the time of onset, requiring continuing
surgical management within 12 months as a life-saving measure or for salvage or restoration of
function, and such major function is not restored or is not expected to be restored within 12
months after onset of this condition.” See 20 C.F.R. § 416.926a(m)(2) (giving examples of
impairments that functionally equal the listed impairments). That contention is not supported by
the record because although CWS’s surgeries improved the function of her right hand, there is no
evidence that surgery was required to restore function.
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impairment. Accordingly, substantial evidence supports the ALJ’s decision and
we affirm. See Crawford, 363 F.3d at 1158–59.
AFFIRMED.
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