Martha Perry v. Commissioner of Social Securit

Filing

OPINION filed : The district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. R. Guy Cole , Jr., Circuit Judge; Raymond M. Kethledge, Circuit Judge, Authoring and Amul R. Thapar, U.S. District Judge for the Eastern District of Kentucky.

Case: 12-5179

Document: 006111447539

Filed: 09/27/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1034n.06
No. 12-5179

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MARTHA PERRY, For G.D., Jr., a minor,

)
)
)
)
)
)
)
)
)
)

Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.

Sep 27, 2012
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
TENNESSEE

Before: COLE and KETHLEDGE, Circuit Judges; THAPAR, District Judge.*

KETHLEDGE, Circuit Judge. Martha Perry asks us to review a district court’s judgment that
substantial evidence supported the decision of an administrative law judge to deny her son, G.D.,
disability benefits under the Social Security Act. We affirm.
I.
G.D. was born May 23, 1995, the same day of the alleged onset of his attention deficit
hyperactivity disorder (ADHD) disability. In May 2005, G.D. underwent a psychological evaluation
by Kurt D. Openlander, Ph.D. Dr. Openlander’s examination noted that G.D. did not demonstrate
signs of ADHD, but did demonstrate oppositional behavior. R. 235. Six months later, Perry filed
an application for disability benefits.
*

The Honorable Amul Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

Case: 12-5179

Document: 006111447539

Filed: 09/27/2012

Page: 2

No. 12-5179
Perry v. Commissioner of Social Security
In January 2007, an ALJ ruled on the disability application. The ALJ initially determined
that G.D.’s “medically determinable impairments could reasonably be expected to produce the
alleged [ADHD] symptoms.” R. 81. But the ALJ then found that those impairments did not result
in “marked limitations” in “two domains of functioning,” as the regulations required. See 20 C.F.R.
§ 416.926a(a), (e)(2)(i). He discounted a report by Dr. Openlander that G.D. suffered severe
impairment in the domain of interacting and relating with others. See Id. § 416.926a(i)(3).
Moreover, he considered—but gave no weight to—the opinion of G.D.’s special education teacher,
Garrett Jackson. See Id. § 416.913. The ALJ concluded that G.D. did not suffer a marked limitation
in any of the six domains. See Id. § 416.926a(b)(1).
On January 25, 2008, Perry again filed an application for disability benefits on behalf of G.D.
The claim was denied initially and upon reconsideration. A hearing was held before an ALJ on
March 4, 2010, and a different ALJ concluded, on the basis of res judicata, that G.D. was not
disabled under the Act. R. 16. The Appeals Council denied Perry’s request for review and Perry
thereafter sought review in federal district court. The district court rejected all of Perry’s arguments
and affirmed the ALJ’s decision.
This appeal followed.
II.
Our review is limited to determining whether the ALJ applied the correct legal standard and
made findings supported by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572
F.3d 272, 281 (6th Cir. 2009). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.
-2-

Case: 12-5179

Document: 006111447539

Filed: 09/27/2012

Page: 3

No. 12-5179
Perry v. Commissioner of Social Security
Perry first argues the ALJ erred in finding that G.D. did not meet, medically equal, or
functionally equal the criteria of the listing for ADHD. More specifically, Perry argues that the
ALJ—in determining that G.D. did not have an impairment that met, medically equaled, or
functionally equaled the listing for ADHD—improperly discounted testimony of a school
psychologist, G.D.’s special education teachers, and a child psychologist, Dr. David Pickering,
Ph.D., hired by Perry’s attorney. As for the school psychologist, Dr. Steven Way, we (like the ALJ)
find nothing in his report indicating G.D. meets, medically equals, or functionally equals the criteria
of a listing other than his suggestion that “George meets the ADHD/Other Health Impaired criteria
. . . provided a physician attest to the severity of his condition.” R. 410.
Nor do we find Pickering’s opinion compelling. Pickering concluded that G.D. suffered
marked or severe impairments in four of the six domains. The ALJ also gave no weight to Dr.
Pickering’s opinion. An ALJ need not “give good reasons” for the weight he assigns opinions from
physicians who, like Dr. Pickering, have examined but not treated a claimant. See 20 C.F.R.
§ 416.927(c)(2); Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010). Here, the ALJ
instead relied on the opinions of Dr. William Sewell, Ph.D. a consultative examiner, and two other
State agency medical consultants. And, as the ALJ noted, all three gave opinions consistent with the
evidence as a whole, which showed no change in G.D.’s condition since the prior ALJ decision of
January 2007. R. 24. That conclusion is supported by substantial evidence.
Also without merit is Perry’s reliance on G.D.’s special education teachers’ opinions. As the
ALJ and district court explained, G.D.’s teachers are not acceptable medical sources for purposes
of establishing an impairment. See 20 C.F.R. § 416.913(a). True, a medical source may rely on
-3-

Case: 12-5179

Document: 006111447539

Filed: 09/27/2012

Page: 4

No. 12-5179
Perry v. Commissioner of Social Security
information a claimant’s teacher provides. See Id. § 416.924a(a)(1)(i). But a teacher’s opinion
cannot establish the existence of an impairment and if an ALJ is to consider a teacher’s opinion, it
must be consistent with other evidence. See SSR 06-03P. The ALJ concluded that G.D.’s special
education teachers’ assessments were entirely inconsistent with the evidence as a whole. Thus, the
ALJ’s decision to deny Perry’s claim was proper.
Perry next argues the ALJ erred in applying res judicata to the prior ALJ decision. The
principles of res judicata apply to administrative proceedings. Drummond v. Comm’r of Soc. Sec.,
126 F.3d 837, 841 (6th Cir. 1997). An ALJ adjudicating a subsequent disability claim “arising under
the same title of the [Social Security] Act as the prior claim” must adopt the original ALJ’s final
decision unless “new and material evidence” shows a change in claimant’s condition. AR 98-4(6).
Perry concedes that both claims—that is, the claims pertaining to the 2007 and 2010 ALJ
decisions—arise under the same title of the Act. Perry asserts, however, that the second ALJ failed
to consider new evidence of G.D.’s changed condition. But the ALJ did just that: He considered
the new reports from G.D.’s special education teachers and Dr. Pickering, G.D.’s medical records,
and G.D.’s witnesses’ testimony. In the end, the ALJ found none of this new evidence to be
material. Substantial evidence supports that finding.
Finally, Perry argues the Appeals Council erred in denying review of the ALJ’s decision. We
reject this argument for the same reasons the district court did.
The district court’s judgment is affirmed.

-4-