Glenn v. Astrue (CONSENT)

Filing 21

MEMORANDUM OPINION. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 9/22/09. (sl, )

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 T A N G E L A D. GLENN, fo r T.L.G. 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. ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:08cv700-WC

M E M O R A N D U M OPINION
I. IN T R O D U C T IO N P la in tif f Tangela D. Glenn filed this lawsuit on behalf of her daughter, T.L.G (" T L G " ),1 to review a final judgment by defendant Michael J. Astrue, Commissioner of S o c ia l Security, in which he determined that TLG is not "disabled" and therefore, not entitled to supplemental security income benefits. 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 co n seq u en tly became the final decision of the Commissioner.2 See Chester v. Bowen, 792

Pursuant to the E-Government Act of 2002, as amended on August 2, 2002, and M.D. Ala. General Order No. 2:04mc3228, the court has redacted the plaintiff's minor child's name throughout this opinion and refers to her as TLG. Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to
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F .2 d 129, 131 (11th Cir. 1986). The parties have consented to the undersigned United States M a g is tra te Judge rendering a final judgment in this lawsuit pursuant to 28 U.S.C. § 636(c)(1) a n d M.D. Ala. LR 73.1. The court has jurisdiction over this lawsuit pursuant to 42 U.S.C. §§ 4 0 5 (g) and 1383(c)(3). F o r the reasons that follow, the Court concludes that the Commissioner's decision d e n yin g TLG supplemental security income benefits should be AFFIRMED. II. S T A N D A R D OF REVIEW T h e Personal Responsibility and Work Opportunity Reconciliation Act of 1996 in c lu d e s the standard for defining child disability under the Social Security Act. See PUB. L . NO. 104- 193, 110 Stat. 2105, 2188 (1996). The statute provides that an individual under 1 8 shall be considered disabled "if that individual 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." 42 U.S.C. § 1382c(a)(3)(C)(I) (1999). The sequential analysis for determining whether a child claimant is disabled is as f o l lo w s : 1 . If the claimant is engaged in substantial gainful activity, he is not disabled. 2 . If the claimant is not engaged in substantial gainful activity, the C o m m is s io n e r determines whether the claimant has a physical or mental im p airm en t which, whether individually or in combination with one or more o th e r impairments, is a severe impairment. If the claimant's impairment is not s e v e re , he is not disabled.

Social Security matters were transferred to the Commissioner of Social Security.

3. If the impairment is severe, the Commissioner determines whether the im p a irm e n t meets the durational requirement and meets, medically equals, or f u n c tio n a lly equals in severity an impairment listed in 20 C.F.R. Part 404, S u b p a rt P, Appendix 1. If the impairment satisfies this requirement, the c la im a n t is presumed disabled. S e e 20 C.F.R. § 416.924(a)-(d) (1997). T h e Commissioner's regulations provide that if a child's impairment or impairments a re not medically equal, or functionally equivalent in severity to a listed impairment, the child i s not disabled. See 20 C.F.R. § 416.924(d)(2) (1997). In reviewing the Commissioner's d e c is io n , the court asks only whether the ALJ's findings concerning the steps are supported b y substantial evidence. See Brown v. Callahan, 120 F.3d 1133 (10th Cir. 1997). III. S T A T E M E N T OF THE ISSUES P l a in tif f raises three issues for this Court's review: (1) whether the ALJ committed le g a l error at step three of the evaluation process; (2) whether the ALJ erred by rejecting the m e d ic a l opinions expressed by Dr. McCleod; and (3) whether the ALJ erred by determining that TLG's mental impairments imposed no limitation in the domain of self-care. The Court w ill address each of these issues in turn. IV . DISCUSSION A. W h e th e r the ALJ committed legal error at step three of the evaluation process.

Plaintiff argues that "the Commissioner's decision should be reversed, because the ALJ committed legal error at step three of the evaluation process that prevents the support of substantial evidence." Pl.'s Brief (Doc. #15) at 10. Plaintiff identifies two specific errors in the ALJ's e v a lu a tio n process: (1) the "ALJ should [have] obtain[ed] an updated medical opinion from

a medical expert where additional medical evidence [was] received that could modify the sta te agency medical consultant's finding that the impairment(s) was not equivalent in se v e rity to any impairments in the Listing of Impairments;" and (2) the ALJ failed "to p ro v id e meets or medically equals rationale." Id. at 12-13. 1. U p d a t e d Medical Opinion

P la in tif f argues that the ALJ was required to get updated medical information upon re c e i v i n g Dr. McCleod's (TLG's treating psychiatrist) opinions of 22 August 2006, c o n c ern in g the limitations imposed by TLG's mental impairments, which were received by the ALJ after the non-examining DDS physician (Dr. Simpson) reviewed the evidentiary re c o rd . Pl.'s Brief (Doc. #15) at 12. Plaintiff relies on SSR 96-6p. to argue that the ALJ was re q u ire d to order an updated medical opinion when he received the additional medical e v id e n c e . S S R 96-6p requires an ALJ to obtain an updated medical opinion from a medical e x p e rt "[w]hen additional medical evidence is received that in the opinion of the a d m in is tra tiv e law judge or the Appeals Council may change the State agency medical or p s yc h o lo g ic a l consultant's finding that the impairment(s) is not equivalent in severity to any im p a irm e n t in the Listing of Impairments." Thus, the requirement to order an updated m e d ic a l opinion in this case was subject to whether the additional evidence, in the opinion o f the ALJ, would have changed Dr. Simpson's findings. It is clear from his opinion that the ALJ did in fact review and consider the updated

medical opinions and found them insufficient to warrant an updated medical opinion.3 As th e Commissioner rightly argues, "Dr. McCleod's subsequent treatment records contained little new information." Comm.'s Brief (Doc. #18) at 10 ("For instance, Dr. McCleod a ss ig n e d GAF scores of 65 before and after Dr. Simpson issued his opinion (Tr. 154, 156, 1 6 0 ). Her diagnoses also did not change (Tr. 157, 163). From May through August 2006, Dr. M c C leo d consistently observed that Plaintiff was cooperative and oriented, with appropriate in s ig h t, good judgment, intact memory, average intelligence, and no unusual thought content (T r. 155, 157, 159, 161, 163)."). T h u s , because the ALJ was not of the opinion that the additional medical evidence m i g h t change Dr. Simpson's findings, he was not required to "obtain an updated medical o p in io n from a medical expert." SSR 96-6p. The Court finds the ALJ's determination is s u p p o rte d by substantial evidence and, thus, no error occurred. 2. M e e ts or medically equals rationale.

P la in tif f argues the ALJ erred at step three of the evaluation process "by neglecting to provide meets or medically equals rationale." Pl.'s Brief (Doc. #15) at 12. Plaintiff c o n c ed e s the ALJ provided rationale with respect to the functionality findings, but argues the A L J failed to evaluate each tier of step three individually. Plaintiff relies on Ellington v. A s tr u e , 2008 WL 1805435, *8 (M.D. Ala. April 18, 2008 ) (Coody, J.), in which the court sta ted "[s]tep three's three-tiered approach requires the ALJ to evaluate each tier individually

The ALJ discussed Dr. McCleod's treatment notes of 22 August 2006 and their seeming inconsistencies. (Tr. 20); see also, (Tr. 21) (ALJ discussing Dr. Mcleod's treatment notes of late 2006 and early 2007).

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to determine whether [claimant] meets, medically equals, or functionally equals the Listings." T h e Court agrees with Plaintiff that is was error for the ALJ to fail to discuss the in d iv id u a l analysis required under step three. The Commissioner stops short of admitting erro r, but insists that remand is unnecessary because the error did not effect the ALJ's u ltim a te decision. Comm'r. Brief (Doc. #18) at 10. The Court agrees with the

C o m m is s io n e r that remand is unnecessary. In Ellington, the plaintiff put forth multiple listings which she believed applied to her c h ild 's condition. Ellington, 2008 WL 1805435 at *8. The court in Ellington agreed with p la in tif f , based on the evidence in the record, that her child may have met or equalled one of t h e Listings. Id. Because it appeared the child in Ellington met or equaled one of the L isting s, and the ALJ had failed to articulate his reasons for finding that she did not, the court w a s unable to review the decision to determine whether the ALJ's decision was supported b y substantial evidence. Id. Furthermore, in Ellington the court held that even if the ALJ h a d properly completed the first two tiers of the three-step analysis, that "at a minimum, the A L J 's analysis at the third tier of step three that [claimant] does not `functionally equal' the L is tin g s is flawed and not supported by substantial evidence." Ellington, 2008 WL 1805435 a t *8. Thus the court determined remand was necessary. Id. T h e present case is distinguishable because substantial evidence supports the ALJ's f u n c tio n a lity findings. Further, a review of the record reveals that, unlike Ellington, the r e c o rd evidence does not support a finding that TLG met or equaled any of the Listings. In d e e d , Plaintiff does not even suggest a Listing that TLG may meet, and Plaintiff's only

challenge to the functionality finding is to make the unsupported assertion that the ALJ's d e te rm in a tio n lacks substantial evidence. Pl.'s Brief (Doc. #15) at n. 3. It is not the job of th e Court to suppose an argument on Plaintiff's behalf. If Plaintiff believed TLG met, m e d ic a lly equalled, or functionally equaled one of the Listings, then she should have put f o rth the Listing and arguments in support. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (1 1 t h Cir. 2003) ("[C]laimant bears the burden of proving that [s]he is disabled, and, c o n s e q u e n tly, [s]he is responsible for producing evidence in support of h[er] claim."). This Court has reviewed the determination by the ALJ and consulted the Listings and f in d s that, although the ALJ failed to specify the Listings he considered, because substantial re c o rd evidence supports the ALJ's finding that TLG did not meet or medically equal a L is tin g , remand is improper. See Turberville ex rel. Rowell v. Astrue, 316 Fed. App'x 891, 8 9 3 (11th Cir. 2009) (finding that "though the ALJ did not explicitly discuss why [Claimant] d i d not actually meet Listing 112.05 - substantial record evidence supports that [Claimant's] c o n d itio n did not actually or functionally meet Listing 112.05 and, therefore, supports the A L J's ultimate conclusion that [Claimant] was not disabled," making remand unnecessary). B. W h e th e r the ALJ erred by rejecting medical opinions expressed by Dr. M c C le o d .

P la in tif f argues the ALJ's rejection of Dr. McCleod's opinion "that TLG's mental im p a irm e n ts imposed marked limitation of function in the domain areas of interacting and re la tin g with others and caring for herself" was reversible error. Pl.'s Brief (Doc. #15) at 13. T h e opinion of a treating physician "`must be given substantial or considerable weight u n le ss 'good cause' is shown to the contrary.'" Phillips v. Barnhart, 357 F.3d 1232, 1240-41

(11th Cir. 2004)(substantial evidence supported ALJ decision to give less weight to opinion o f treating physician; remanded on other grounds) (quoting Lewis v. Callahan, 125 F.3d 1 4 3 6 , 1440 (11th Cir. 1997)). "`Good cause' exists when the: (1) treating physician's o p in io n was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) tre a tin g physician's opinion was conclusory or inconsistent with the doctor's own medical re c o rd s ." Id. (citing Lewis, 125 F.3d at 1440). "When electing to disregard the opinion of a treating physician, the ALJ must clearly articulate its reasons." Id. (citing Lewis, 125 F.3d a t 1440). In this case, the ALJ articulated "good cause" for affording Dr. McCleod's opinion little weight. Specifically, the ALJ stated that he afforded McCleod's opinion little weight b e c a u s e it was inconsistent with her own treatment records (Tr. 17, 21), and was not su p p o rted by the record (Tr. 17, 24). As the Commissioner correctly notes, despite Dr. M c C le o d 's opinion that TLG suffered from marked limitations, her treatment notes reveal th a t : TLG's behavior was "appropriate" or "appropriate, cooperative," (Tr. 151, 153, 155, 1 5 7 , 159, 161, 163); she exhibited "appropriate" judgment, "good" insight, and "average" intelligen ce (Tr. 153, 155, 157, 159, 161, 163); and her GAF scores of 65 (Tr. 154, 156, 160), w e r e consistent with mild symptoms and not marked limitations. See Comm'r Brief (Doc. # 1 8 ) at 14. Further, the ALJ also noted that there was no medically acceptable evidence to s u p p o rt Dr. McCleod's opinion and that Dr. McCleod's conclusions were based on "clinical h isto ry" rather then her own observations. (Tr. 22, 24). T h is Court agrees with the ALJ that Dr. McCleod's opinions are inconsistent with her

o w n treatment notes and contrary to the medical record evidence in this case. The ALJ p ro p e rly articulated"good cause" for affording Dr. McCleod's opinion little weight, and his d e c is io n is supported by substantial evidence. C. W h eth er the ALJ erred by determining that TLG's mental impairments im p o s e d no limitation in the domain area of self-care.

P la in tif f argues that the ALJ's "obvious" error in finding that TLG suffered no marked lim ita tio n s in the domain of self-care requires reversal. Plaintiff relies on what she claims to be record evidence of TLG's suicidal tendencies, violence towards others, and other such b e h a v io ra l problems. See Pl.'s Brief (Doc. #15) at 16. In discussing this domain, the ALJ stated "there was no allegation of a limitation in th is area, and no medical findings based on medically acceptable clinical or diagnostic te c h n iq u e s that would warrant a finding that a limitation exists." (Tr. 24). The allegations th a t Plaintiff now asserts are not medical findings, but are based on her own reporting that T L G exhibited suicidal ideation. (Tr. 167). However, the ALJ did not find Plaintiff to be e n tire ly credible.4 See (Tr.16). Even Plaintiff's reporting of the threats of suicide reveal that s u c h threats were only made when TLG "gets mad and doesn't get her way" (Tr. 167). Additionally, these threats, and those of physical violence are not corroborated by the m e d ica l evidence in the record. In fact, the record of self-care in this case led the ALJ to c o n c lu d e that "the evidence does not indicate that the claimant was anything but independent in her activities of daily living." (Tr. 24).

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Plaintiff makes no discrete challenge to the ALJ's credibility determination.

Accordingly, Plaintiff has failed to show any error in the ALJ's determination that T L G does not show limitations in the domain of self-care. VI. CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 22nd day of September, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE