McMillion v. Astrue

Filing 20

MEMORANDUM OF OPINION. Signed by Honorable Susan Russ Walker on 10/9/2009. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION B R E N D A McMILLON 1 o/b/o W.M., P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner o f Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:08cv169-SRW (W O )

M E M O R A N D U M OF OPINION B re n d a McMillon o/b/o W.M.2 brings this action pursuant to 42 U.S.C. §§ 405(g) and 1 3 8 3 (c )(3 ) seeking judicial review of a decision by the Commissioner of Social Security (" C o m m is s io n e r" ) denying her child's application for Supplemental Security Income under th e Social Security Act. The parties have consented to entry of final judgment by the M a g is tra te Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs s u b m itte d by the parties, the court concludes that the decision of the Commissioner is due to be reversed. BACKGROUND O n December 14, 2004 (protective filing date), plaintiff filed an application for S u p p le m e n ta l Security Income (SSI), alleging disability since November 1, 2004 on the basis

Plaintiff's name is spelled "McMillion" in plaintiff's pleadings in this court, but "McMillon," in the proceedings before the Commissioner. The court uses the spelling indicated in the administrative transcript.
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W.M. will be referred to as the "plaintiff" in this memorandum of opinion.

of asthma and anxiety. (R. 58, 63). On January 18, 2007, after the claim was denied at the in itia l administrative levels, an ALJ conducted an administrative hearing. The ALJ rendered a decision on February 15, 2007, in which he found that plaintiff was not under a disability a s defined in the Social Security Act at any time through the date of the decision. On January 1 0 , 2008, the Appeals Council denied plaintiff's request for review. STANDARD OF REVIEW T h e court's review of the Commissioner's decision is narrowly circumscribed. The c o u rt does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings. Davis v. S h a la la , 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (1 1 th Cir. 1991). "Substantial evidence is more than a scintilla, but less than a

p re p o n d e ra n c e . It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). F a c tu a l findings that are supported by substantial evidence must be upheld by the court. See M a r t i n v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)("Even if the evidence p re p o n d e ra te s against the [Commissioner's] factual findings, we must affirm if the decision re a c h e d is supported by substantial evidence."). The ALJ's legal conclusions, however, are re v ie w e d de novo because no presumption of validity attaches to the ALJ's determination of th e proper legal standards to be applied. Davis, 985 F.2d at 531. If the court finds an error

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in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient r e a s o n in g for determining that the proper legal analysis has been conducted, the ALJ's d e c is io n must be reversed. Cornelius, 936 F.2d at 1145-46 (emphasis added). D IS C U SS IO N " F e d e ra l regulations set forth the process by which the SSA determines if a child is d is a b le d and thereby eligible for disability benefits." Shinn ex rel. Shinn v. Commissioner o f Social Sec., 391 F.3d 1276, 1278 (11th Cir. 2004) (citing 42 U.S.C. § 1382c(a)(3)(C)(I) a n d 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 in e lig ib le for benefits." Id. (citing 20 C.F.R. §§ 416.924(a), (b)). In this case, the ALJ d e te rm in e d that plaintiff, a preschooler, has not engaged in substantial gainful activity. R. 25. "The next step is for the ALJ to consider the child's `physical or mental im p a irm e n t(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)). The ALJ found that plaintiff has the s e v e re impairments of asthma, anxiety, and speech problems. R. 25. " F o r an applicant with a severe impairment, the ALJ next assesses whether the im p a irm e n t `causes marked and severe functional limitations' for the child." Shinn, 391 F.3d a t 1278 (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

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Circuit has explained, [ t]h e 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 (" im p a irm e n t" ) from which a person can suffer, sorted into general categories. S e e id. § 416.925(a). For each impairment, the Listings discuss various lim ita tio n s on a person's abilities that impairment may impose. Limitations a p p e a rin g in these listings are considered "marked and severe." Id. ("The L is tin g of Impairments describes ... impairments for a child that cause[ ] m a rk e d and severe functional limitations."). A child's impairment is recognized as causing "marked and severe f u n c tio n a l limitations" if those limitations "meet[ ], medically equal[ ], or f u n c tio n a lly equal[ ] the [L]istings." Id. § 416.911(b)(1); see also §§ 416.902, 4 1 6 .9 2 4 (a ). A child's limitations "meet" the limitations in the Listings if the c h ild actually suffers from the limitations specified in the Listings for that c h ild 's severe impairment. A child's limitations "medically equal" the lim ita tio n s in the Listings if the child's limitations "are at least of equal m e d ic a l significance to those of a listed impairment." Id. § 416.926(a)(2). Id . at 1278-79. In this case, the ALJ found that plaintiff did not have any impairment or c o m b in a tio n of impairments that met or medically equaled a listed impairment. R. 25. The A L J 's discussion of this issue is limited to his negative finding followed by two sentences: " N o treating or examining source has so concluded. In addition, I have examined the record, a n d I find that the evidence does not support such a conclusion." (Id.). "Finally, even if the limitations resulting from a child's particular impairment are not c o m p a ra b le to those specified in the Listings, the ALJ can still conclude that those limitations a re `functionally equivalent' to those in the Listings. In making this determination, the ALJ a s s e s se s the degree to which the child's limitations interfere with the child's normal life a c tiv itie s . The C.F.R. specifies six major domains of life: (i) Acquiring and using information; 4

(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 `b e n c h m a rk s ' that children should have achieved by certain ages in each of these life d o m a in s ." Id. (citing 20 C.F.R. §§ 416.926a(g)-(l)). "A child's impairment is `of listing-level s e v e rity,' and so `functionally equals the listings,' if as a result of the limitations stemming f ro m that impairment the child has `marked' limitations in two of the domains [above], or a n `extreme' limitation in one domain." Id. (citing 20 C.F.R. § 416.926a(d) and

§ 416.925(a)).3 The ALJ determined that W.M. has no limitation in any of the six domains. (R . 30-34). Thus, the ALJ concluded that the plaintiff is not disabled. (R. 34-35). P la in tif f argues that the Commissioner's decision should be reversed because the ALJ: (1 ) erred by implicitly finding that W.M.'s Attention Deficit Hyperactivity Disorder, C o m b in e d Type resulted in a non-severe impairment; (2) committed legal error at step three

" A `marked' limitation is defined as a limitation that `interferes seriously with [the] ability to independently initiate, sustain, or complete activities,' and is `more than moderate.'" Henry v. Barnhart, 156 Fed.Appx. 171, 174 (11th Cir. 2005) (unpublished) (citing 20 C.F.R § 416.926a(e)(2)(I)). "An `extreme' limitation is reserved for the `worst limitations' and is defined as a limitation that `interferes very seriously with [the] ability to independently initiate, sustain, or complete activities,' but `does not necessarily mean a total lack or loss of ability to function.'" Id. (citing 20 C.F.R. § 416.926a(e)(3)(I)). 5

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of the sequential evaluation process; (3) erred in rejecting the opinion expressed by Dr. D illo n after the consultative psychological examination that W.M. was "severely impaired in h e r ability to function in an age-appropriate manner socially, behaviorally, and in c o n c e n tra tio n , persistence, and pace" (see R. 137)(emphasis in original); (4) failed to issue a credibility finding in compliance with Eleventh Circuit law; and (5) failed to provide any ra tio n a le for rejecting the opinion of the state agency non-examining psychologist, Dr. F le e c e , that W.M. has a "marked" limitation in the domain of attending and completing tasks (s e e R. 143). The Commissioner agrees with plaintiff that the ALJ was required to make a specific c re d ib ility finding with regard to the testimony of W.M.'s mother, but argues that "[b]ecause th e ALJ's decision in its entirety clearly implied that he did not find the subjective complaints e n tire ly credible, this finding should not be disturbed." (Doc. # 16, p. 14). The Commissioner f u rt h e r "agrees that the ALJ here did not conduct full analyses at either the first or second tie rs [of step three of the disability evaluation procedure]." (Id., at p. 7). The Commissioner a rg u e s , however, that because the ALJ's analysis at the third tier of step three ­ i.e., the e v a lu a tio n of whether W.M.'s impairments functionally equals a listed impairment ­ is su p p o rte d by substantial evidence, his failure to analyze fully whether plaintiff's impairments m e e t or medically equal a listed impairment does not require reversal. Id. The Commissioner a rg u e s that the ALJ "properly found that [W.M.'s] ADHD was not one of her `severe'

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impairments"4 because the ALJ's "detailed summary of the evidence of treatment with Dr. M c C le o d " show that the ALJ "relied on Dr. McCleod's notes that [W.M.'s behaviors im p ro v e d with the support of medication and the beahvioral modifications implemented by h e r mother." (Doc. # 16, pp. 5-6). The Commissioner further maintains that plaintiff was n o t prejudiced because the ALJ is required to consider the combined effect of all im p a irm e n ts, even non-severe impairments, and the ALJ continued the sequential evaluation b e yo n d step two. (Id., p. 6). Finally, the Commissioner argues that the ALJ "properly w e ig h e d the opinion of Dr. Dillon," finding that it was "not `well-supported.'" (Id., p. 1 0 )(c itin g ALJ opinion at R. 29). The Commissioner does not address plaintiff's argument th a t the ALJ was required ­ and failed ­ to explain the weight he gave to Dr. Fleece's o p in io n . T h e ALJ's discussion on the step two issue of severity of plaintiff's impairments, in its entirety, is as follows: 3 . The claimant has the following severe impairments: asthma, anxiety, a n d speech problems (20 C.F.R. 416.924(c)). D r. Patricia Block diagnosed the claimant with asthma in August 2003 (E x h ib it 7F). Dr. Audrey S. Hall diagnosed the claimant with anxiety on N o v e m b e r 10, 2004, in Psychiatric Evaluation (Exhibit 2F). Dr. Marnie S. D illo n related the claimant to have a speech articulation problem in evaluation o n April 14, 2005 (Exhibit 3F). ( R . 25). Plaintiff's treating psychiatrist, Dr. McCleod, repeatedly lists ADHD, Combined

This finding is implicit only. The ALJ did not explicitly make any conclusion about the severity of plaintiff's ADHD. 7

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Type, as plaintiff's "primary" diagnosis throughout her treatment of the plaintiff from F e b ru a ry through November 2006. (Exhibits 8F, 10F). In his summary of the evidence, the A L J references Dr. McCleod's diagnosis once (see R. 28)5 , but does not mention it further a t any point in his decision. He does not explicitly conclude that plaintiff's ADHD is not " s e v e re " or give any reason for not including it among plaintiff's severe impairments. It may b e ­ as the Commissioner argues ­ that the ALJ fully considered plaintiff's ADHD and f o u n d its effects to have been mitigated by medication. However, because there is absolutely n o analysis of the evidence regarding this impairment, the ALJ's decision does not d e m o n s tra te that he considered the impairment, either at step two or beyond.6 A t the administrative hearing, plaintiff's counsel concluded by arguing that plaintiff's c o n d itio n "either meets or medically equals listing 1[]12.04 or 1[]12.11." (R. 223). As the C o m m is s io n e r observes, the ALJ "did not conduct full analyses at either the first or second

The ALJ wrote, "The claimant's mother described symptoms of fidgeting, talking excessively, often `driven by a motor,' often interrupts others, difficulty waiting her turn and remaining seated, runs or climbs excessively, difficulty doing activities quietly, and answers questions before completely asked, which were interpreted as signs of attention deficit hyperactivity disorder, combined type, and she was prescribed Focalin and Tenex. The claimant's mother further described behavior of defying adults, easily annoyed by others, often annoying others, often losing her temper, irritability, restlessness, and sleep disturbance, which Dr. McCleod interpreted as mood disorder, not otherwise specified, and overanxious disorder. The mother further described the claimant's previous behavior of pulling out her hair and eating her hair, which was reportedly better, and also picking at her mouth which was interpreted by Dr. McCleod as trichotillomania, resolved pica, and resolved obsessional compulsive disorder, for which she was continued on Lexapro." (R. 28-29). Dr. McCleod actually listed both trichotillomania and pica as "resolved," and obsessivecompulsive disorder as a "Rule Out" diagnosis. (See, e.g., R. 240). The court does not intend to suggest that every diagnosis in every disability claim requires discussion. As noted above, however, plaintiff's ADHD is her primary diagnosis from her treating psychiatrist. 8
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tiers." (Doc. # 16, p. 7). The ALJ did not refer to the listings identified by counsel pertaining to mood disorders and ADHD, nor did he refer to the listing for anxiety disorders (112.06). He merely stated his conclusion that "plaintiff does not have an impairment or combination o f impairments that meets or medically equals one of the listed impairments[,]" followed by th is two-sentence analysis: "No treating or examining source or medical expert has so c o n c lu d e d . In addition, I have examined the record, and I find that the evidence does not s u p p o r t such a conclusion." (R. 25, Finding No. 4). See Ellington v. Astrue, 2008 WL 1 8 0 5 4 3 5 , 8 (M.D. Ala. 2008)(finding error where the ALJ "conflated the analysis which must b e made in step three"). T h e ALJ found plaintiff's mother's statements regarding plaintiff's symptoms to be " n o t entirely credible." (R. 26). However, instead of articulating reasons for discounting her c re d ib ility, the ALJ simply noted that his assessment of credibility must be based on the e n tire case record, and summarized the medical evidence, leaving the court to guess at his s p e c if ic reasons for finding the plaintiff's mother's statements to be less than fully credible. If a credibility determination was required ­ as is apparently conceded by the Commissioner ­ ALJs in this circuit must articulate specific and adequate reasons for the determination. See Walker v. Bowen, 826 F.2d 996, 1004 (11th Cir. 1987)("Where the claimant's testimony is critical, the fact finder must articulate specific reasons for questioning a claimant's c r e d ib ility. Disregard of such complaints without articulating the reason is inappropriate b e c a u s e it deprives the reviewing court of the ability to determine the validity of that action.

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When rejecting the credibility of a claimant's testimony, an ALJ must articulate the grounds f o r that decision.")(citations omitted)7 ; see also Holloway v. Astrue, 2009 WL 3063343 (M .D . Ala. Sep. 22, 2009)("Rote recitation of the medical evidence is not a substitute for a rtic u la tin g clear reasons for discrediting the plaintiff.").8 A s noted previously, the ALJ found plaintiff to suffer from no limitations in any of th e six functional domains. Dr. Fleece, a non-examining agency psychologist, assessed p la in tif f to have a marked limitation in attending and completing tasks, a less than marked lim ita tio n in the domains of interacting and relating with others and caring for herself, and n o limitation in acquiring and using information or health and physical well-being. (Exhibit 5 F ). The ALJ included Dr. Fleece's assessment in his summary of the evidence (R. 27) but d id not further mention Dr. Fleece's opinion. However, the ALJ was required to explain the

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See also Social Security Ruling 96-7p, 61 Fed. Reg. 34483-01 (July 2, 1996):

When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements. The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision. It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. The court notes that, on the record before this court, plaintiff's mother's testimony ­ even accepted as true ­ does not dictate an award of benefits. 10
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weight he gave to this opinion. See SSR 96-6p ("Administrative law judges . . . may not ig n o re these opinions [of State agency medical and psychological consultants . . . regarding th e nature and severity of an individual's impairment(s)] and must explain the weight given to these opinion in their decisions."). Dr. Dillon, the consultative examining psychologist, f o u n d plaintiff to be "moderately impaired in her ability [to] function in an age-appropriate m a n n e r cognitively, communicatively, and adaptively," and "severely impaired in her ability to function in an age-appropriate manner socially behaviorally, and in concentration, p e rs is te n c e and pace." (R. 137)(emphasis in original). The ALJ found Dr. Dillon's evaluation to be entitled to "little weight." The ALJ's stated reasons for assigning little weight to Dr. D illon's opinion include plaintiff's cooperative behavior with other physicians and examiners o n three occasions in November 2004, April 2005 and February 2006. However, the first re a s o n identified by the ALJ is that Dr. Dillon's assessment "is evidently based on the c la im a n t's mother's subjective allegations." (R. 29). It is apparent from Dr. Dillon's report th a t she based her assessment in part on the mother's report, but also on her own observation o f the plaintiff during the evaluation. Dr. Dillon wrote: D u rin g today's evaluation, Ms. McMillon reported that [W.M.] engages in s u s ta in e d and prolonged tantrums which are characterized by screaming "all d a y, all the time. She's never happy about anything." When denied her way, [ W .M .] screams, jumps up and down, bites herself, bites her brothers, and hits h e r mother. During today's evaluation, [W.M.] told her mother that she wanted ic e cream. When her mother refused, [W.M.] began crying, screaming, ju m p in g , and struck her mother on several occasions. She maintained these b e h a v io rs throughout the remainder of the evaluation. She was unable to be s o o th e d . It is noted that these behaviors were evident even when [W.M.] was o n current medication regimen. [W.M.] exhibits prominent mood symptoms, 11

compulsive behaviors, sleep disturbance, and behavioral disturbances. (R. 137).9 Accordingly, the first reason stated by the ALJ for rejecting Dr. Dillon's

a s s e s sm e n t is not, supported by the evidence.1 0 Additionally, in the absence of clearly a rtic u la te d reasons for discounting Ms. McMillon's credibility, this stated reason for rejecting D r. Dillon's opinion is inadequate. A consultative psychological examiner's opinion, in the c o u rt's experience, is most often based on a claimant's subjective complaints and the expert e x a m in e r's observations of the claimant during the evaluation. Further, while the other re a s o n articulated by the ALJ ­ that plaintiff was cooperative in three office visits with other p ra c titio n e rs ­ is supported by the evidence, it is not clear to the court that this reason p ro v id e s an adequate basis for entirely rejecting the opinion of the consultative psychologist re g a rd in g plaintiff's functional limitations.1 1 C O N C L U S IO N

The ALJ did recognize ­ again, in his summary of the evidence ­ that claimant's reported tantrums were "illustrated in the evaluation," and that "Dr. Dillon noted the claimant's behavior to be irritable, noncompliant, and argumentative." (R. 27). The Commissioner argues, in part, that the ALJ was not required to give Dr. Dillon's opinion more weight than that of plaintiff's treating physicians. The court agrees. However, except to the extent that Dr. McCleod assigned a GAF score ­ which the Commissioner has previously declined to credit as determinative of functional limitations ­ the court found no opinion from a treating physician regarding the severity of plaintiff's functional limitations. See 65 FR 50746, 50764-65 (August 21, 2000)(Commissioner declined to include reference to GAF scores in introductory paragraphs of Listing 12.00D, noting that the GAF scale "does not have a direct correlation to the severity requirements in our mental disorders listings"). The court notes that the record may support other adequate reasons not articulated by the ALJ; for instance, plaintiff's mother reported to Dr. McCleod in two office visits in November 2006 that plaintiff has no problems in school. (See R. 202, 204). 12
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After careful review of the arguments of the parties, the evidence, and the decision o f the ALJ, the court finds that the ALJ's written decision does not set forth his reasoning s u f f ic ie n tly to permit the court to conclude that the ALJ conducted a proper legal analysis. See Cornelius, 936 F.2d at 1145-46. The court emphasizes that each of the errors raised by th e plaintiff would likely ­ standing alone ­ be found to be harmless. However, the c u m u la tiv e effect of the deficiencies in the ALJ's opinion is such that the court is unable to c o n c lu d e that the ALJ gave the evidence in plaintiff's case the consideration required by law. The ALJ's decision in this case amounts to little more than a recitation of the applicable law, a summary of the evidence, and his conclusory findings. There is little in the way of analysis, le a v in g the court to guess the basis for the ALJ's decision. The Commissioner's brief, boiled d o w n to its essence, asks the court to excuse the defects in the decision because the evidence o f record, accompanied by a more thorough analysis, would have supported denial of the p la in tif f 's claim for benefits. However, it is the ALJ who must conduct this analysis, and his w ritte n decision must include sufficient reasoning to permit the court to determine that he has d o n e so. Because the court cannot conclude that the ALJ considered the case in accordance w ith applicable law, the decision of the Commissioner is due to be REVERSED, and this c a s e REMANDED to the Commissioner for further proceedings. A separate judgment will b e entered.

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Done, this 9th day of October, 2009.

/s / Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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