R.B. v. Astrue

Filing 20

MEMORANDUM OPINION. Signed by Honorable Wallace Capel, Jr on 7/22/09. (djy, )

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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 O B B IE JENKINS, for RB, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 2:08cv578 -WC M E M O R A N D U M OPINION I. INTRODUCTION B o b b ie Jenkins ("Plaintiff") applied for supplemental security income benefits under T itle XVI of the Social Security Act, 42 U.S.C. 1381 et seq. (2000), on behalf of her son, R .B . ("Claimant"), alleging he was disabled. Plaintiff's application was denied at the initial a d m in is tra tiv e level. Plaintiff then requested and received a hearing before an A d m in is tra tiv e Law Judge (ALJ). Following the hearing, the ALJ also denied the claim. T h e Appeals Council rejected a subsequent request for review. The ALJ's decision c o n se q u e n tly became the final decision of the Commissioner of Social Security (the C o m m iss io n e r).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is n o w before the Court for review pursuant to 42 U.S.C. 405(g). Pursuant to 28 U.S.C. Pursuant to the Social Security Independence and Program Improvements Act of 1 9 9 4 , Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and H u m a n Services with respect to Social Security matters were transferred to the C o m m is s io n e r of Social Security. 1 6 3 6 , both parties have consented to the conduct of all proceedings and entry of a final ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (D o c . #19); Def.'s Consent to Jurisdiction (Doc. #18). Based on the Court's review of the re c o rd and the briefs of the parties, the Court AFFIRMS the Commissioner's decision. II. STANDARD FOR CHILDHOOD DISABILITY U n d e r 42 U.S.C. 1382c(a)(3)(C)(I), a person under the age of 18 is disabled (and h e n c e entitled to disability benefits) if the person "has a medically determinable physical or m e n ta l impairment, which results in marked and severe functional limitations, and which can b e expected to result in death or which has lasted or can be expected to last for a continuous p e rio d of not less than 12 months." 2 In determining whether a child is disabled, the C o m m i s s io n e r employs the following three-step sequential evaluation process. See 20 C .F .R . 416.924 (2007). (1 ) Is the person presently not engaged in substantial gainful activity? (2 ) Is the person's impairment severe? ( 3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listing of Im p a irm e n ts" ), and also meet the twelve-month duration requirement? 3 A "physical or mental impairment" is one resulting from anatomical, p h ysio lo g ica l, or psychological abnormalities which are demonstrable by medically a c c e p ta b l e clinical and laboratory diagnostic techniques. P a rt A of the Listing of Impairments applies to children and adults; Part B applies to children only. In dealing with a child's case, the Commissioner looks first to Part B, th e n to Part A. 20 C.F.R. 416.925(b); Wilkinson v. Bowen, 847 F.2d 660, 661 (11th C ir. 1987). 2 3 2 I f the answer to each of the three questions is "yes," then the child is entitled to benefits. In order for a severe impairment to meet or equal one of the listed impairments, the im p a irm e n t must "cause[] marked and severe functional limitations" for the child claimant. 2 0 C.F.R. 416.911(b). A child's impairment is recognized as causing "marked and severe functional lim itatio n s" if those limitations meet[], medically equal[], or functionally e q u a l [ ] the [L]istings. A child's limitations "meet" the limitations in the L is tin g s if the child actually suffers from the limitations specified in the L istin g s for that child's severe impairment. A child's limitations "medically e q u a l" the limitations in the Listings if the child's limitations are at least of e q u a l medical significance to those of a listed impairment. S h in n ex rel. Shinn v. Comm'r of Soc. Sec., 391 F.3d 1276, 1278 (11th Cir. 2004) (internal q u o tatio n s and citations omitted). Even if the child's impairment does not meet or medically e q u a l a listing, it may still functionally equal a listing. In assessing functional equivalence, the ALJ considers the "degree to which the child's limitations interfere with the child's n o rm a l 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 (v i) Health and physical well-being." Id . at 1279. "The C.F.R. contains various `benchmarks' that children should have achieved b y certain ages in each of these life domains." Id. (citing 20 C.F.R. 416.926a(g)-(l)). "A 3 c h ild 's impairment is `of listing-level severity,' and so `functionally equals the listings,' if a s a result of the limitations stemming from that impairment the child has `marked' lim ita tio n s in two of the domains [above], or an `extreme' limitation in one domain." Id. (c itin g 20 C.F.R. 416.926a(d) and 416.925(a)). A marked limitation is one that interferes s e rio u s ly with the child's "ability to independently initiate, sustain, or complete activities." 2 0 C.F.R. 416.926a(e)(2)(I). An "extreme limitation" is one that "interferes very seriously w ith [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. 416.926a(e)(3)(I). III. S C O P E OF REVIEW T h e standard of review of the Commissioner's decision is a limited one. This Court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of the re c o rd which support the decision of the ALJ, but instead, must view the record in its entirety a n d take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The Court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, 4 in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W alke r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). IV . ADMINISTRATIVE PROCEEDINGS T h e claimant was nearly twelve years old at the time of the hearing before the ALJ. T r. 17. Following the administrative hearing, the ALJ found the claimant had not engaged in substantial gainful activity at any time during the period under adjudication (Step 1). Tr. 1 7 . The ALJ also found the claimant had two severe impairments under Step 2: borderline in t e lle c tu a l functioning and asthma. Tr. at 18. Nonetheless, the ALJ concluded that these im p a i r m e n ts do not meet or equal in severity the criteria for any impairment in the Listing o f Impairments, and that the claimant did not have an "extreme" limitation in any areas of f u n c tio n in g or "marked" limitation in two areas of functioning. Tr. 17-25. Consequently, th e ALJ found the claimant was not disabled. Tr. 25. V. P L A I N T I F F 'S CLAIMS P la in tif f presents four issues for review: (1) whether the final decision of the C o m m is s io n e r denying benefits is supported by substantial evidence; 2) whether the C o m m i s s io n e r erred as a matter of law in failing to accord adequate weight to the opinion o f Dr. David Monsky, the claimant's "treating source;" 3) whether the Commissioner erred a s a matter of law in evaluating the severity of the claimant's learning disability; and 4) w h e th e r the ALJ erred as a matter of law in failing to seek further medical review, and thus 5 f a ilin g to fully and adequately develop the record. See Pl.'s Brief (Doc. #10) at 1. V I. A N A L Y SIS 1. W h eth er the Commissioner's treatment of the opinions of the claimant's tr e a tin g sources, teacher, and mother deprive his final decision of the s u p p o r t of substantial evidence. P la in tif f contends that, in denying benefits, the ALJ used "improper legal standards [ a n d ] . . . . failed to show good cause why the opinion of the claimant's treating sources, his teac h ers[ ,] and his mother should not be given substantial or considerable weight." Pl.'s B rie f (Doc. #10) at 3. Thus, Plaintiff asserts that the ALJ's decision to give greater weight to state DDS examiners, rather than the claimant's "treating sources," teachers, and mother, d e p riv e s the ALJ's decision of the support of substantial evidence. Defendant maintains that th e ALJ properly evaluated the record evidence and gave appropriate deference to both the o p in i o n of the claimant's true treating source and the state agency physicians who also re n d e re d opinions. Plaintiff does not explain how the ALJ failed to give appropriate weight to the c laim a n t's "treating sources" or his mother and teachers. Plaintiff also fails to tie this p u rpo rted failure of the ALJ to proof of a particular impairment alleged by Plaintiff. Further, P lain tiff fails to point to any objective evidence in the record which illustrates that the ALJ's f in d in g that the claimant is not disabled is not supported by substantial evidence. Thus, a p p re h e n d in g the essence of Plaintiff's claim is somewhat difficult. 6 In any event, it is first appropriate to disabuse Plaintiff of the notion that the claimant h as multiple "treating sources." The only treating source revealed in the records is Dr. B e rn a rd o . See Pettus v. Astrue, 226 Fed. App'x 946, 949 (11th Cir. 2007) ("A treating s o u rc e is defined as the claimant's own physician or psychologist who has provided the c laim a n t with medical treatment and evaluation, and who has had an ongoing relationship w ith the claimant."). It does not appear that the claimant maintained an ongoing relationship w ith Dr. Monsky or his clinic, as he was referred to Dr. Monsky's clinic for a one-time e v a lu a tio n . (Tr. 109). Likewise, the claimant was referred to Linda Weems for a one-time " In d iv id u a l Intellectual Achievement" evaluation by his school. (Tr. 83). Thus, the ALJ was n o t required to consider the opinions rendered by Dr. Monsky's clinic or Ms. Weems as those o f treating sources. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (finding that o p in io n s of one-time examiners "are not entitled to [treating source] deference because as o n e -tim e examiners they were not treating physicians."). Dr. Bernardo never opined that the claimant's mental functioning or asthma rendered h im disabled. As the ALJ found (Tr. 18-20, 25), Dr. Bernardo's treatment notes reveal that h is asthma was controlled with prescribed medication. (Tr. 159, 161). Plaintiff does not p o in t to any evidence - whether objective medical, anecdotal, or purely subjective - that re f u te s the ALJ's findings with respect to the claimant's asthma. Thus, it is apparent that the A L J properly considered Plaintiff's treating source opinion in making his disability d e te rm in a tio n . 7 W ith respect to the ALJ's treatment of the opinions of the claimant's mother and te a ch e rs , Plaintiff has again failed to demonstrate reversible error by the ALJ. The ALJ was o n ly obligated to consider these subjective, non-medical source opinions to the extent they w e re credible and consistent with objective evidence in the record. See, e.g., 20 C.F.R. 4 1 6 .9 2 9 (a ) ("statements about your pain or other symptoms will not alone establish that you a re disabled; there must be medical signs and laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or other s ym p t o m s alleged . . . ."); see also SSR 06-03p ("Information from these `other sources' [ in c l u d in g , explicitly, school teachers] cannot establish the existence of a medically d e te rm in a b le impairment. Instead there must be evidence from an `acceptable medical so u rce ' for this purpose."). The ALJ meticulously reviewed the teacher questionnaire c o m p l e te d by Mrs. Beachem and, where appropriate, relied upon her observations.4 H o w ev er, to the extent Mrs. Beachem's observations about claimant's "serious" or "very s e rio u s " problems in "Acquiring and Using Information" or "Attending to and Completing T a sk s" are undermined by objective testing in the record and evidence of the claimant's daily a c tiv i tie s , the ALJ rightfully did not defer entirely to Mrs. Beachem's observations. Thus, e v id e n c e in the record that the claimant's intelligence quotient and "cognitive ability" tested a s high as the average range (Tr. 83, 87) dulled the impact of Mrs. Beachem's subjective 4 For instance, given Mrs. Beachem's observations about the claimant's " se rio u s " and "very serious" problems in areas related to "Attending to and Completing T a sk s ," the ALJ found that the claimant suffers "marked limitation" in that domain of f u n c tio n in g . (Tr. 22). 8 o b s e rv a tio n s about the severity of his "problems" with certain activities encompassed by the g iv e n domains. Likewise, evidence of the claimant's daily activities, including that he plays c o m p u te r games, is responsible for feeding the family dog, keeps busy on his own, works on a rts and craft projects, completes his homework, and likes to work on his bicycle (Tr. 83, 73, 1 0 9 ) diminishes the severity of the "problems" observed by Mrs. Beachem in certain f u n c tio n a l areas. Thus, the ALJ gave appropriate weight and consideration to the nonm ed ical opinion of the claimant's teacher in assessing the severity of the claimant's im p a ir m e n ts . Regarding the ALJ's treatment of the opinion expressed by the claimant's mother, the A L J properly took note of her testimony at the hearing and her observations recorded at other p o in ts in the record. However, for the reasons given above, the ALJ properly gave only lim ite d weight to her subjective observations given the weight of available objective medical e v i d e n c e and her own observations about the claimant's daily activities. F in a lly, to the extent Plaintiff faults the ALJ for giving "more weight to a DDS e x a m in e r who simply reviewed the patient file than the Plaintiff's treating sources, school tea c h e rs and his own mother," Pl.'s Brief (Doc. #10 at 3-4), Plaintiff has failed to d e m o n stra te error. The ALJ was required to consider the state agency's Childhood Disability E v a lu a tio n Form (Tr. 151-157) as expert opinion from a non-examining source, see SSR 966 p , and did so accordingly. (Tr. 21). Further, as demonstrated above, the ALJ did not im p ro p e rly elevate the state agency examiner's opinion above that of Plaintiff's treating 9 s o u rc e , Dr. Bernardo. Rather, Dr. Bernardo simply did not render any opinion which c o n f lic ts with the findings of the state agency. Thus, the ALJ did not err in relying upon the s ta te agency disability evaluation and his decision that claimant is not disabled is supported b y substantial evidence. 2. W h eth er the Commissioner erred in failing to accord adequate weight to th e opinion of Dr. Monsky. Plaintiff appears to claim that the ALJ improperly "excluded from evidence" the o p in io n of the clinicians at Dr. Monsky's clinic, did not inquire into the factual basis for the o p in io n , and provided no reason for discounting such "treating source" opinion. Pl.'s Brief ( D o c . #10 at 4-5). Defendant maintains that the ALJ properly considered the opinion and th a t his ultimate findings do not conflict with the opinion in pertinent aspects. A s discussed above, Dr. Monsky's clinic was not a treating source. Plaintiff visited th e clinic one time on a referral basis. Such is simply not sufficient to establish an ongoing trea tm en t relationship. See McSwain, 814 F.2d at 619. Nevertheless, even if Dr. Monsky's c lin ic were considered a treating source, the ALJ's findings do not conflict with the opinion re n d e re d by the clinic such that the ALJ can be said to have improperly substituted his ju d g m e n t for that of the treating source. First, it must be noted that Plaintiff points to no s p e c if ic finding in the Monsky clinic's opinion which was purportedly ignored by the ALJ. R a t h e r, it is apparent the ALJ concurred with the Monsky clinic's assessment that the claim an t suffers borderline intellectual functioning and deemed the condition a severe 10 im p a irm e n t. (Tr. 17). However, it is the ALJ's responsibility to determine disability, and n o th in g in the Monsky clinic's opinion suggests a finding that Plaintiff's intellectual f u n c tio n in g renders him disabled. Indeed, the Monsky clinic's ultimate opinion appears to b e that the claimant's achievement scores do not correspond with predictions based on his a ss e ss e d abilities, and that, therefore, the claimant "would benefit from interventions aimed a t improving these skills at home and at school." (Tr. 112). A finding that the claimant is n o t performing at a level commensurate with his abilities and that he is a candidate for im p ro v e m e n t with appropriate "intervention" simply does not dictate a finding of disability. A c c o rd in g ly, the ALJ did not err in his treatment of the opinion rendered by the Monsky c lin ic . 3. W h e th e r the Commissioner erred as a matter of law in evaluating the s e v e r ity of Plaintiff's learning disability. Plaintiff appears to claim that the claimant's learning disability is so severe that it " f u n ctio n a lly equals" the listing and that the ALJ substituted his own "hunch or intuition for th e diagnosis of a psychiatrist" in concluding otherwise. Pl.'s Brief (Doc. #10) at 5-6. P lain tiff cites to no medical evidence establishing that his impairment meets or functionally e q u a ls a listing in the listing of impairments. Rather, he relies upon Mrs. Beachem's teacher q u e stio n n a ire and her comment that she provides additional help to the claimant for "all of th e reading activities as well as tests." (Tr. 92). Defendant maintains that the ALJ properly d e te rm in e d that the claimant's impairment of borderline intellectual functioning does not 11 m e e t or functionally equal a listing. It is evident from the record that the claimant's impairment does not meet or medically e q u a l the listing for Mental Retardation, (Listing 112.05). As the ALJ noted, and Plaintiff d o e s not refute, the claimant's performance on IQ tests do not fall withing the range m a n d a te d by Listing 112.05. (Tr. 18). Regarding functional equivalence, the Court first n o te s that Plaintiff fails to identify in which domain(s) the claimant's functioning is so lim ited that Plaintiff believes the impairment functionally equals the listing. Plaintiff's re lia n c e on Mrs. Beachem's completion of the questionnaire, and her commentary on one p a rt of the questionnaire, suggests that Plaintiff believes the ALJ erred in his assessment of o n ly "marked" limitations to the claimant's functioning in the domain of Attending to and C o m p l e tin g Tasks. However, as discussed above, the anecdotal evidence provided by Mrs. B e a ch e m was balanced by other evidence of the claimant's daily activities and task-oriented f u n c tio n in g , including that he does arts and crafts, keeps himself occupied, is responsible for fe ed ing the dog, completes his homework, and likes to work on his bicycle. (Tr. 83, 73, 109). T h u s , substantial evidence, that is, more than a scintilla even if less than a preponderance, su p p o rts the ALJ's determination that Planitiff's functioning in the domain of Attending to a n d Completing Tasks is only markedly limited. Plaintiff's claim that the ALJ reversibly e rre d in failing to find that claimant's impairment functionally equals the listing is without m e ri t. 4. W h e th e r the ALJ erred as a matter of law in failing to seek further m e d ic a l review and thus failing to fully and adequately develop the 12 reco rd . Plaintiff asserts that the ALJ "erred in failing to seek a Consultative Exam which in c lu d e d an IQ section and in failing to have a Medical Examiner provide testimony at the h e a rin g . . . ." Pl.'s Brief (Doc. #10) at 6. Plaintiff also claims that the IQ testing conducted b y the Monsky clinic was too aged at the time of the ruling in this case under federal re g u la tio n s . Defendant maintains that the ALJ had before him sufficient medical evidence to assess the claimant's disability status, and that any perceived lack of evidence stems from P la in tif f 's failure to sustain her burden of proving disability. " E v e n though Social Security courts are inquisitorial, not adversarial, in nature, c la im a n ts must establish that they are eligible for benefits. The administrative law judge has a duty to develop the record where appropriate but is not required to order a consultative e x a m in a tio n as long as the record contains sufficient evidence for the administrative law ju d g e to make an informed decision." Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1 2 5 3 , 1269 (11th Cir. 2007). As noted above, the ALJ had sufficient evidence before him t o accurately assess the claimant's disability status.5 The ALJ had before him numerous s o u rc e s of evidence, including lay observations, expert opinion, and testing data, all of which h e evaluated in reaching his decision. (Tr. 17-18, 20-25). Thus, further development of the The ALJ was clearly cognizant of his duty to further develop the record, w h e re appropriate. For example, the ALJ attempted to collect hospital records pertaining to the claimant's asthma but found that such records were unavailable. (Tr. 20). Thus, th e ALJ was not inattentive to his duty to develop the record. 13 5 r e c o rd , including ordering a consultative examination and additional IQ testing was not n e c e s s a r y. P lain tiff 's allegation that the age of the claimant's IQ tests rendered them unreliable f o r purposes of the ALJ's disability determination is also unavailing. The IQ scores, r e n d e r e d in March of 2005, were valid and current at the time of the hearing before the ALJ. M o re o v e r, Plaintiff has not alleged that the claimant's IQ appreciably changed in the period b etw ee n the hearing and the ALJ's rendering of his decision. Thus, the scores were s u f f ic ie n tly current to permit the ALJ to assess Plaintiff's disability. IV. CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c isio n of the Commissioner is AFFIRMED for further proceedings consistent with this o p in io n . A separate order will issue. D O N E this 22nd day of July, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 14

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