KDB Ex Rel. Bailey v. Social Security Administration , 444 F. App'x 365 ( 2011 )


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  •                                                                      [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________            FILED
    U.S. COURT OF APPEALS
    No. 11-10981         ELEVENTH CIRCUIT
    Non-Argument Calendar    SEPTEMBER 29, 2011
    ________________________        JOHN LEY
    CLERK
    D.C. Docket No. 2:09-cv-01673-RDP
    K D B,
    by and through her mother and next friend
    SHAWANDA BAILEY,
    llllllllllllllllllllllllllllllllllllllll                          Plaintiff-Appellant,
    versus
    SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
    llllllllllllllllllllllllllllllllllllllll                          Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (September 29, 2011)
    Before BARKETT, MARCUS and BLACK, Circuit Judges.
    PER CURIAM:
    KDB, a minor, by and through her mother, Shawanda Bailey, appeals from
    the district court’s order affirming the Social Security Commissioner’s
    (“Commissioner”) denial of Bailey’s protective application for supplemental
    security income (“SSI”) benefits on behalf of KDB, pursuant to 42 U.S.C.
    § 1383(c)(3). On appeal, KDB argues that the decision of the Administrative Law
    Judge (“ALJ”) that she was neither medically disabled due to her asthma nor
    functionally disabled due to her asthma and learning disability was not supported
    by substantial evidence. In addition, KDB argues that the ALJ erred by not fully
    developing the record because he did not arrange for a medical expert to testify at
    the hearing and because he did not order updated intelligence testing. We affirm.
    “Our review of the Commissioner’s decision is limited to an inquiry into
    whether there is substantial evidence to support the findings of the Commissioner,
    and whether the correct legal standards were applied.” Wilson v. Barnhart, 
    284 F.3d 1219
    , 1221 (11th Cir. 2002). “Substantial evidence is more than a scintilla
    and is such relevant evidence as a reasonable person would accept as adequate to
    support a conclusion.” Crawford v. Comm’r of Soc. Sec., 
    363 F.3d 1155
    , 1158
    (11th Cir. 2004).
    After a review of the record and consideration of the parties’ briefs, we
    conclude that the ALJ’s findings that KDB’s condition did not meet or medically
    2
    equal a listed impairment were made according to proper legal standards and were
    supported by substantial evidence. Each of KDB’s specific claims of error on this
    point lacks merit.
    First, the ALJ did not err in determining that KDB’s asthma failed to meet
    the requirements for the asthma impairment listing in 20 C.F.R. pt. 404, subpt. P,
    app. 1, § 103.03(B). To satisfy the requirements of this listed impairment, KDB
    must show her asthma caused “attacks . . . in spite of prescribed treatment and
    requiring physician intervention, occurring at least once every 2 months or at least
    six times a year.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 103.03(B). An inpatient
    hospitalization for longer than 24 hours counts as two attacks under this standard.
    
    Id. KDB identifies
    five specific episodes that she claims satisfy this standard;
    one of these involved a hospitalization of longer than 24 hours and would
    therefore count as two attacks. We note initially that there is considerable doubt
    as to whether the identified episodes meet the definition for a qualifying attack.
    Even assuming each of these episodes is a qualifying attack, however, we
    conclude that KDB failed to satisfy the requirements because the six alleged
    attacks did not occur once every two months or six times a year; instead, they
    3
    occurred over a period of 20 months, between March 27, 2007, and November 17,
    2008.
    Second, contrary to KDB’s argument that the ALJ rejected the treating
    physician’s opinion, the record demonstrates that the ALJ relied on this source and
    reached a conclusion consistent with it in determining KDB’s impairment did not
    medically equal the asthma listing. “The testimony of a treating physician must
    ordinarily be given substantial or considerable weight unless good cause is shown
    to the contrary.” MacGregor v. Bowen, 
    786 F.2d 1050
    , 1053 (11th Cir. 1986).
    Here, the KDB’s pediatrician stated KDB had “moderate persistent asthma,” and
    when she was last seen in the clinic, KDB’s asthma was “somewhat well
    controlled.” In addition, the ALJ appropriately considered the opinions of
    physicians who treated KDB at the hospital. Thus, the ALJ properly gave
    “substantial or considerable weight” to the opinion of the treating source. See
    
    MacGregor, 786 F.2d at 1053
    .
    Third, we conclude the ALJ addressed the school records in detail and did
    not reject them, and the records supported the ALJ’s conclusion that KDB was not
    disabled.
    Fourth, the ALJ did not inappropriately rely on the opinions of non-treating
    physicians. “[A]dministrative law judges must consider findings and other
    4
    opinions of State agency medical and psychological consultants and other program
    physicians, psychologists, and other medical specialists as opinion evidence” of
    non-examining sources. 20 C.F.R. § 404.1527(f)(2)(i); see also SSR 96-6p
    (requiring ALJs to consider and address the weight given to state consultants’
    opinions, which are treated as expert opinion evidence of non-examining sources).
    The ALJ complied with the regulations regarding non-examining expert evidence
    and did not give inappropriate weight to these opinions.
    As to KDB’s challenges to the ALJ’s assessment of her functional
    limitations and to the finding that her impairment or combination of impairments
    did not functionally equal the listings, we conclude KDB has waived these
    challenges because she did not raise these issues to the district court. See
    
    Crawford, 363 F.3d at 1161
    (providing that we will not address an issue on appeal
    when a claimant has failed to raise it to the district court). See 
    Crawford, 363 F.3d at 1161
    (providing that we will not address an issue on appeal when a claimant has
    failed to raise it to the district court). Even if this issue were properly before this
    Court on appeal, however, we conclude that the ALJ’s finding that KDB’s
    condition did not functionally equal a listed impairment was supported by
    substantial evidence.
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    Finally, we conclude the ALJ did not err in failing to arrange for a medical
    expert to testify at the hearing or in failing to order updated intelligence testing.
    “It is well-established that the ALJ has a basic duty to develop a full and fair
    record. Nevertheless, the claimant bears the burden of proving that [s]he is
    disabled, and, consequently, [s]he is responsible for producing evidence in support
    of [her] claim.” Ellison v. Barnhart, 
    355 F.3d 1272
    , 1276 (11th Cir. 2003)
    (citations omitted). “The administrative law judge has a duty to develop the
    record where appropriate but is not required to order a consultative examination as
    long as the record contains sufficient evidence for the administrative law judge to
    make an informed decision.” Ingram v. Comm’r of Soc. Sec. Admin., 
    496 F.3d 1253
    , 1269 (11th Cir. 2007).
    A review of the record reveals the ALJ was not required to order another
    intelligence test, nor was the ALJ required to arrange for an expert to testify at the
    hearing because the evidence in the record was sufficient to support an informed
    decision that KDB was not disabled. Thus, the ALJ fulfilled his duty and
    developed a full and fair record.
    Accordingly, we affirm.
    AFFIRMED.
    6