T. L. H. v. Colvin

Filing 15

MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Susan Russ Walker on 9/26/2017. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
T.L.H.,

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Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

CASE NO. 1:16cv277-SRW

MEMORANDUM OPINION AND ORDER
In this appeal, plaintiff T.L.H., a minor child, challenges the Commissioner’s final
decision2 denying his application for Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act. See Doc. 1; Doc. 12. In reviewing Administrative Law
Judge D. Burgess Stalley’s (“ALJ”) adverse decision, the court upholds factual findings
that are supported by substantial evidence. See Davis v. Shalala, 985 F.2d 528, 531 (11th
Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). However, no
presumption of validity attaches to the ALJ’s determination of the proper legal standards
to be applied. If the court finds an error in the ALJ’s application of the law, or if the ALJ
fails to provide the court with sufficient reasoning for determining that the proper legal

1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin, Acting
Commissioner of Social Security, as the defendant in this lawsuit. The Clerk of Court is DIRECTED to
take the appropriate steps to reflect this change on the docket sheet.
2

The Appeals Council denied the plaintiff’s request for review. See Doc. 14-2 at 2-4. Thus, “the ALJ’s
ruling must be considered the final decision of the Commissioner of the SSA.” Shinn, 391 F.3d at 1281
(citing Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
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analysis has been conducted, the ALJ’s decision must be reversed. See Cornelius, 936 F.2d
at 1145-46.
The parties have consented to entry of final judgment by the Magistrate Judge. See
28 U.S.C. § 636(c); Doc. 10; Doc. 11. For the reasons stated herein, and based upon its
review of the record, the court finds that the Commissioner’s decision is due to be affirmed.
BACKGROUND
I.

Child Disability

“Federal regulations set forth the process by which the SSA determines if a child is
disabled and thereby eligible for disability benefits.” Shinn ex rel. Shinn v. Commissioner
of Social Sec., 391 F.3d 1276, 1278 (11th Cir. 2004) (citing 42 U.S.C. § 1382c(a)(3)(C)(I)
and 20 C.F.R. § 416.906). “The process begins with the ALJ determining whether the child
is ‘doing substantial gainful activity,’ in which case [he] is considered ‘not disabled’ and
is ineligible for benefits.” Id. (citing 20 C.F.R. §§ 416.924(a), (b)). “The next step is for
the ALJ to consider the child’s ‘physical or mental impairment(s)’ to determine if [he] has
‘an impairment or combination of impairments that is severe.”’ Id. (citing 42 U.S.C. §§
416.924(a), (c)). “For an applicant with a severe impairment, the ALJ next assesses whether
the impairment ‘causes marked and severe functional limitations’ for the child.” Id. (citing
20 C.F.R. §§ 416.911(b), 416.924(d)). This determination is made according to objective
criteria set forth in the Code of Federal Regulations (“C.F.R.”).
As the Eleventh Circuit has explained,
[t]he C.F.R. contains a Listing of Impairments [“the Listings”, found at 20
C.F.R. § 404 app.] specifying almost every sort of medical problem
(“impairment”) from which a person can suffer, sorted into general
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categories. See id. § 416.925(a). For each impairment, the Listings discuss
various limitations on a person’s abilities that impairment may impose.
Limitations appearing in these listings are considered “marked and severe.”
Id. (“The Listing of Impairments describes ... impairments for a child that
cause [ ] marked and severe functional limitations.”).
A child’s impairment is recognized as causing “marked and severe functional
limitations” if those limitations “meet[ ], medically equal[ ], or functionally
equal[ ] the [L]istings.” Id. § 416.911(b)(1); see also §§ 416.902, 416.924(a).
A child’s limitations “meet” the limitations in the Listings if the child
actually suffers from the limitations specified in the Listings for that child’s
severe impairment. A child’s limitations “medically equal” the limitations in
the Listings if the child’s limitations “are at least of equal medical
significance to those of a listed impairment.” Id. § 416.926(a)(2).
Id. at 1278-79.
Finally, even if the limitations resulting from a child’s particular
impairment[s] are not comparable to those specified in the Listings, the ALJ
can still conclude that those limitations are ‘functionally equivalent’ to those
in the Listings. In making this determination, the ALJ assesses the degree to
which the child’s limitations interfere with the child’s normal life activities.
The C.F.R. specifies six major domains of life:
(i)

Acquiring and using information;

(ii)

Attending and completing tasks;

(iii)

Interacting and relating with others;

(iv)

Moving about and manipulating objects;

(v)

Caring for [one]self; and

(vi)

Health and physical well-being.

Shinn, 391 F.3d at 1279 (citing 20 C.F.R. § 416.926a(b)(1)). “The C.F.R. contains various
‘benchmarks’ that children should have achieved by certain ages in each of these life
domains.” Id. (citing 20 C.F.R. § § 416.926a(g)-(l)). “A child’s impairment is ‘of listing3

level severity,’ and so ‘functionally equals the listings,’ if as a result of the limitations
stemming from that impairment the child has ‘marked’ limitations in two of the domains
[above], or an ‘extreme’ limitation in one domain.” Id. (citing 20 C.F.R. § 416.926a(d) and
§ 416.925(a)).
II.

The ALJ’s Findings

Plaintiff alleged a disability onset date of October 1, 2010 (approximately two
weeks prior to his third birthday), due to attention deficit disorder with hyperactivity
(“ADHD”), unspecified episodic mood disorder, oppositional defiant disorder, and asthma.
See Doc. 14-6 at 14. As indicated in the administrative record, plaintiff has a history of
medical and psychiatric treatment. See Doc. 14-7; Doc. 14-8. In a written decision issued
on September 8, 2014, the ALJ found that the plaintiff (1) has not engaged in substantial
gainful activity since the application date; (2) has severe impairments of mild bilateral genu
valgum (knock-knee misalignment), ADHD, mood disorder, and oppositional defiant
disorder; and (3) does not have an impairment or combination of impairments that meets,
medically equals, or functionally equals the severity of the listings.3 See Doc. 14-2 at 1617. Therefore, she concluded that plaintiff has not been disabled, as defined in the Social
Security Act, since the application filing date of October 23, 2012. See id. at 13, 28.

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The ALJ held hearings on the plaintiff’s application for SSI benefits on March 19, 2014 and August 5,
2014. See Doc. 14-2 at 33-47. The first hearing was adjourned to allow for supplementation of the
evidentiary record with a medical expert’s evaluation and a teacher’s assessment. See id. The plaintiff was
represented by an attorney at both hearings before the ALJ. See id. at 13.
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DISCUSSION
Plaintiff contends, inter alia, that the ALJ erred by failing to (1) develop the record
adequately by not ordering a consultative medical examination for the purpose of having
expert testimony specific to the issue of whether plaintiff’s impairments medically equal a
Listing; (2) state good cause for assigning less than substantial weight to plaintiff’s treating
physician, Dr. Jerlyn C. McCleod; and (3) accept the opinion of an evaluating medical
source, Dr. Randall Green Jordan, PSYD, regarding the severity of plaintiff’s ADHD,
oppositional defiant disorder, and mood disorder. See Doc. 12 at 9-10.
I.

The ALJ properly developed the record with expert medical testimony.

As to the plaintiff’s first argument, the Commissioner correctly asserts that expert
medical evidence material to whether the plaintiff’s impairments meet or equal a Listing
was of record at the time that the ALJ made her disability determination. See Doc. 13 at 910. “[L]ongstanding policy requires that the judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence on the evidence before the
administrative law judge or the Appeals Council must be received into the record as expert
opinion evidence and given appropriate weight.” SSR 96-6P, 1996 WL 374180, at *3
(S.S.A. July 2, 1996). “The signature of a State agency medical or psychological consultant
on an SSA-831-U5 (Disability Determination and Transmittal Form) … ensures that
consideration by a physician (or psychologist) designated by the Commissioner has been
given to the question of medical equivalence at the initial and reconsideration levels of
administrative review.” Id. Dr. Robert Heilpern, M.D., found that the plaintiff is “not
disabled” and signed a Disability and Transmittal Form on January 10, 2013. Doc. 14-3 at
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2. Thus, as a matter of both fact and law, the administrative record is sufficiently developed
with expert medical evidence specific to the plaintiff’s impairments and the Listings.
II.

The ALJ articulated good cause for assigning plaintiff’s treating
physician less than substantial weight.

The Commissioner must specify what weight is given to a treating physician’s
opinion and any reason for giving it no weight at all. MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (citing Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985)
and Wiggins v. Schweiker, 679 F.2d 1387, 1389-90 (11th Cir. 1982)). Failure to do so is
reversible error. Id. (citations omitted). The opinion of a treating physician “must be given
substantial or considerable weight unless good cause is shown to the contrary.” Phillips v.
Barnhard, 357 F.3d 1232, 1240 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)) (internal quotation marks omitted). “Good cause” exists
when:
•

the treating physician’s opinion was not bolstered by the evidence,

•

the evidence supported a contrary finding; or

•

the treating physician’s opinion was conclusory or inconsistent with his or her
own medical records.

Id. at 1241 (citation omitted).
The ALJ must clearly articulate his or her reasons for disregarding a treating
physician’s opinion, and the failure to do so is reversible error. Lewis, 125 F.3d at 1440
(citation omitted); see also 20 C.F.R. § 404.1527(c)(2) (“We will always give good reasons
in our notice of determination or decision for the weight we give your treating source’s
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opinion.”). However, when the ALJ adequately states specific reasons for doing so, and
those reasons are supported by substantial evidence, there is no error. Moore v. Barnhart,
405 F.3d 1208, 1212 (11th Cir. 2005) (per curiam).
The ALJ’s written decision meets both criteria. With respect to Dr. McCleod’s
evidence and testimony, the ALJ wrote that
On August 13, 2013 Dr. McCleod completed and signed a medical status
letter (Exhibit 14F). Dr. McCleod stated, “This letter is in support of my
recommendation that [plaintiff] meets criteria for having a condition that is
disabling.” (Exhibit 14F). Dr. McCleod stated that the [plaintiff] has a variety
[of] diagnoses of ADHD, OCD, mood disorder and oppositional defiant
disorder (Exhibit 14F). Additionally, Dr. McCleod stated that the [plaintiff’s]
“illness continues to markedly impair his ability to function socially,
emotionally and educationally.” (Exhibit 14F). Additionally, Dr. McCleod
completed and signed a Medical Source Statement (Exhibit 14F and 17F).
Dr. McCleod stated that the [plaintiff] had marked limitations in all of the
domains, other than personal functioning. The [ALJ] finds little weight to the
opinions of Dr. McCleod in Exhibits 14F and 17F. Dr. McCleod apparently
relied quite heavily on the subjective report of symptoms and limitations
provided by the [plaintiff’s] mother, and seemed to uncritically accept as true
most, if not all, of that the [plaintiff] reported. Yet … [there are] good reasons
for questioning the reliability of the [plaintiff’s] subjective complaints. For
example, the [plaintiff’s] grandmother stated that the [plaintiff] is a “very
sweet and loving child” when he is medicinal compliant (Exhibit 5E).
Moreover, the [plaintiff’s] teacher in Exhibit 6E stated that the [plaintiff] has
no limitations in all of the domains. The opinions of Dr. McCleod are quite
conclusory, providing very little explanation of the evidence relied on in
forming that opinion.
Doc. 14-2 at 20 (emphasis supplied).
Elsewhere in the written decision, the ALJ discusses medical evidence of record to
support her decision to assign “little weight” to Dr. McCleod’s expert opinion evidence.
See id. at 19-21. For example, the ALJ explains that Dr. Ann McDowell, M.D., an
examining medical source, noted on November 1, 2013, that the plaintiff was refusing to
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take his medication and that his “appearance, speech, mood, thought process, thought
content, insight, judgment, memory, and intelligence were all normal.” Id. (citing Doc. 148 at 31-32). Furthermore, Dr. Jordan, whose opinion the ALJ assigned significant weight,
found on April 8, 2014, that the plaintiff has mild or less than marked limitation in
completing tasks and physical well-being and marked limitations in interacting and relating
with others. See id. (citing Doc. 14-8 at 37-42). There is substantial evidence of record in
the form of medical source opinions, treatment notes, and records to support the ALJ’s
decision to afford less than substantial weight to Dr. McCleod’s opinion evidence.
In addition, the court has reviewed Dr. McCleod’s records and the medical evidence
in the administrative record. See Doc. 14-8 at 18-30, 33-36, 43-51; see also Doc. 14-7;
Doc. 14-8. The ALJ’s finding that Dr. McCleod relied heavily upon subjective reports of
symptoms and limitations, as well as the ALJ’s determination that Dr. McCleod provides
“very little explanation” for the basis of the opinions, are based on substantial evidence.
Doc. 14-2 at 20. The ALJ accurately explains that Dr. McCleod’s opinion that the plaintiff
is disabled and due to be awarded SSI benefits contrasts with treatment notes that, as of
October 10, 2014, the plaintiff “states that he is doing well. He is eating and sleeping
without complaint. He is not having any side effects.” Id. at 19 (citing Doc. 14-8 at 33-34).
A more recent treatment note from Dr. McCleod, on July 8, 2014, indicates that the plaintiff
stated that he was not doing well and that he “has been lying, controlling, [and] possessive
of family members,” but that the plaintiff had stopped taking some of his medication two
weeks prior to the office visit. Id. (citing Doc. 14-8 at 46-49). The latest treatment note
from Dr. McCleod is dated September 17, 2014, and it showed that the plaintiff was doing
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better in school; that his physical aggression with his mother “decreased”; and he has no
depression, no “high stress level,” and no “eating disorder.” Doc. 14-8 at 50-51. Plaintiff’s
“suicidal ideation” and “statements” were recorded as “none recently.” Id. At the
September 17, 2014, office visit, Dr. McCleod noted that the plaintiff was taking his
medications as prescribed. See id.
The record reflects that the ALJ articulated reasons that are sufficient to constitute
“good cause” for failing to give Dr. McCleod’s testimony “substantial or considerable
weight,” which is in accordance with the ALJ’s obligation under existing law. See Phillips,
357 F.3d at 1240. Moreover, the court has carefully scrutinized the record, and it concludes
that the ALJ’s decision with regard to Dr. McCleod’s testimony is based on substantial
evidence. See, e.g., Doc. 14-7; Doc. 14-8. While the plaintiff disagrees with the ALJ’s
factual findings, this court cannot reweigh the evidence and is limited to determining
whether there is substantial evidence to support the Commissioner’s decision. See Dyer,
395 F.3d at 1210.
III.

There is no legal error in the ALJ’s assessment of Dr. Jordan’s opinion
evidence.

Plaintiff argues, in two sentences, that Dr. Jordan’s finding that plaintiff’s “Axis V”
Global Assessment Function rating of “50” constitutes a “severe” impairment or
impairments. Doc. 12 at 10 (citing SSR 85-15). The plaintiff implies that the ALJ
committed legal error by failing to classify the plaintiff’s psychological impairments as
severe. Notably, SSR 85-15 does not contain language to support the plaintiff’s position

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that an Axis V rating of 50 is “severe.” See SSR 85-15, 1983-1991 Soc. Sec. Rep. Serv.
343 (Jan. 1, 1985).
Nevertheless, and contrary to the plaintiff’s assertion, the ALJ found that the
plaintiff’s psychological impairments which were assessed by Dr. Jordan – i.e., ADHD,
mood disorder, and oppositional defiant disorder – are severe impairments. See Doc. 14-2
at 16-17; Doc. 14-8 at 37-42. Thus, the plaintiff was not denied a finding in his favor that
the impairments examined by Dr. Jordan are severe. As explained above, the ALJ assigned
Dr. Jordan’s opinion evidence “significant weight.” Doc. 14-2 at 21. Dr. Jordan noted that
the plaintiff’s “Daily Living Skills are generally age appropriate. Psychiatric function does
not interfere with these tasks.” Doc. 14-8 at 39. The plaintiff’s daily living tasks included
going to school (kindergarten), doing his school work, attending regular classes, bathing,
and grooming. See id. at 38-39. Moreover, according to Dr. Jordan, plaintiff’s development
was not stunted. Dr. Jordan found that “[n]o developmental milestones were late (indeed,
he was precocious).” Id. at 38.
The ALJ met her obligation to identify the plaintiff’s severe impairments, which are
identified and assessed in Dr. Jordan’s medical source evidence. See Shinn, 391 F.3d at
1278 (citations omitted). Furthermore, the ALJ’s conclusions are based upon substantial
evidence.
CONCLUSION
Upon consideration of the parties’ briefs and the record, the Commissioner’s
decision is based on substantial evidence and is in accordance with controlling law. The
Commissioner’s decision will be AFFIRMED by a separate judgment.
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DONE, on this the 26th day of September, 2017.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

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