McCall v. Astrue (CONSENT)

Filing 16

MEMORANDUM OPINION. Signed by Honorable Wallace Capel, Jr on 9/30/2009. (cc, )

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 M E R A McCALL, for WM, 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. 2:08cv853 -WC

M E M O R A N D U M OPINION I. INTRODUCTION T a m e r a McCall ("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 b roth er and legal dependent, W.M. ("Claimant"), alleging he was disabled. Plaintiff's a p p lic a tio n was denied at the initial administrative level. Plaintiff then requested and re c eiv e d a hearing before an Administrative Law Judge (ALJ). Following the hearing, the A L J also denied the claim. The Appeals Council rejected a subsequent request for review. T h e ALJ's decision consequently became the final decision of the Commissioner of Social S ec u rity (the Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). T h e case is now before the Court for review pursuant to 42 U.S.C. § 405(g). Pursuant to 28

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.

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U .S .C . § 636(c), both parties have consented to the conduct of all proceedings and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to J u ris d ic tio n (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #8). Based on the Court's review o f the record 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 is 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 Cir. 1 9 8 7 ). 2
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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, or an `extreme' limitation in one domain." Id. (citing 20 C .F .R . § 416.926a(d) and § 416.925(a)). A marked limitation is one that interferes seriously w ith the child's "ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(I). An "extreme limitation" is one that "interferes very seriously with [the c h ild 's ] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 4 1 6 .9 2 6 a (e )( 3 )( I) . III. S C O P E OF REVIEW T h e Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 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). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. 4

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, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). IV. ADMINISTRATIVE PROCEEDINGS T h e claimant was twelve years old at the time of Plaintiff's application for s u p p le m e n ta l security income. Tr. 49. Following the administrative hearing, the ALJ found th e claimant had not engaged in substantial gainful activity at any time during the period u n d e r adjudication (Step 1). Tr. 18. The ALJ also found the claimant had two severe im p a irm e n ts under Step 2: attention deficit hyperactivity disorder and borderline intellectual f u n c tio n in g . Tr. at 19. Nonetheless, the ALJ concluded that these impairments do not meet o r equal in severity the criteria for any impairment in the Listing of Impairments, and that the c la im a n t did not have an "extreme" limitation in any areas of functioning or "marked" lim ita tio n in two areas of functioning.4 Tr. 19-26. Consequently, the ALJ found the claimant w a s not disabled. Tr. 26. V. P L A I N T I F F ' S CLAIM P la in tif f presents one issue for review: whether the ALJ's decision should be reversed

Indeed, the ALJ found that the claimant suffers either "less than marked" or n o limitations in all of the domains of functioning. Tr. 22-26. 5

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b e c au s e "the ALJ failed to state with particularity the weight he gave the medical opinions e x p re ss e d by Dr. DeMuth and the reasons therefor." Pl.'s Brief (Doc. #13) at 3. V I. A N A L Y SIS P la in tif f contends that, in denying benefits, the ALJ improperly failed to articulate the w e ig h t he attributed to the opinion rendered by Dr. DeMuth in a consultative examination. P l.'s Brief (Doc. #13) at 4-7. Plaintiff asserts that "the ALJ's decision completely ignores D r. DeMuth's evaluation and examination findings." Id. at 5 (emphasis in original). Plaintiff co n tend s that the ALJ's failure to properly describe the weight afforded Dr. DeMuth's o p in io n , as well as the reasoning supporting that decision, violates applicable law and req u ires reversal.5 While conceding that the ALJ does not expressly discuss Dr. DeMuth's u ltim a te opinion, Defendant contends that the ALJ implicitly rejected Dr. DeMuth's opinion a n d that such rejection is supported by substantial evidence. Def.'s Brief (Doc. #14) at 9. D e f en d a n t also asserts that any error in failing to specifically address Dr. DeMuth's opinion w a s harmless, as it is clear from the ALJ's opinion that the ALJ would not have reached a d if f e re n t decision. Id. at 10. D r. DeMuth conducted a consultative disability examination of the claimant on March 1 8 , 2005. Tr. 182. Based on his evaluation of the claimant, Dr. DeMuth opined that the c laim a n t "appears to be severely impaired in his ability to function in an age appropriate

Notably, Plaintiff does not contend that the ALJ's ultimate decision denying P la in tif f 's disability claim is not supported by substantial evidence. 6

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m a n n e r cognitively, communicatively, socially, adaptively, behaviorally, and in co n ce n tratio n , persistence, and pace." Tr. 184-85.6 In his opinion, the ALJ did cite to Dr. D e M u th 's report in recounting prior diagnoses of the claimant's severe impairments, Tr. 19, b u t indeed did not further elaborate upon Dr. DeMuth's opinion that the claimant is "severely im p a ire d " in the areas described by Dr. DeMuth. However, the ALJ did give "significant w e i g h t " to the "State agency medical opinions," specifically the opinion of the physician e x a m in e r, Dr. Rankart, see Tr. 21, who, in reviewing all of the medical evidence, found Dr. D e m u th 's opinion "not adequately supported by collective evidence." Tr. 193. W h e n deciding a claim of disability, the ALJ is "required to state with particularity t h e weight he gave the different medical opinions and the reasons therefor." Sharfarz v. B o w e n , 825 F.2d 278, 279 (11th Cir. 1987).7 "In the absence of such a statement, it is im p o s s ib le for a reviewing court to determine whether the ultimate decision on the merits of th e claim is rational and supported by substantial evidence." Cowart v. Schweiker, 662

Dr. DeMuth reached this conclusion after relating a number of observations a b o u t the claimant's demeanor, affect, and behavior, as well as the results of the " se n so riu m " Dr. DeMuth administered to the claimant. While Dr. DeMuth's observations sp ea k for themselves, it is noteworthy that he never described any of the claimant's lim ita tio n s or difficulties as "severe" until he gave his summary opinion. Indeed, c re d itin g Dr. DeMuth's own observations, the claimant presented as essentially normal in se v e ra l aspects of his behavior and demeanor, and also gave correct or appropriate re s p o n s e s to some of the problems posed in the "sensorium." Tr. 183-84. The Eleventh Circuit has recognized that the obligation to discuss probative m e d ic a l opinion evidence is not satisfied where, as here, the ALJ simply mentions the p h ys ic ia n 's report in some capacity but fails to address the physician's ultimate opinion. Luckey v. Astrue, 2009 WL 1362988 at *6 (11th Cir. 2009). 7
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F e d .2 d 731, 735 (11th Cir. 1981). However, in certain circumstances, the ALJ's failure to s tric tly comply with this requirement may be deemed harmless error. Caldwell v. Barnhart, 2 6 1 Fed. App'x 188, 190 (11th Cir. 2008) ("An ALJ's failure to state with particularity the w e ig h t given different medical opinions is reversible error. When, however, an incorrect a p p lica tio n of the regulations results in harmless error because the correct application would n o t contradict the ALJ's ultimate findings, the ALJ's decision will stand.") (citations o m itte d ). Courts have generally found that an ALJ's failure to state what weight is accorded a particular piece of medical opinion evidence is harmless when the ALJ has relied upon o th e r opinion evidence which is consistent with the omitted evidence or the omitted opinion is consistent with the ALJ's ultimate findings. See, e.g., id. at 191; Wright v. Barnhart, 153 F ed . App'x 678, 684 (11th Cir. 2005). Other courts have recognized that the ALJ's failure to specify the weight given particular medical evidence might be considered harmless when " th e Commissioner has met the goal of [20 C.F.R.] § [404.]1527(d)(2) - the provision of the p ro c e d u ra l safeguard of reasons - even though she has not complied with the terms of the re g u la tio n ." Nelson v. Comm'r of Soc. Sec., 195 Fed. App'x 462, 470 (6th Cir. 2006). Under th is rationale, the ALJ achieves the goal established by the regulations, without formal c o m p l ia n c e, by providing sufficient reasons for the rejection of the omitted opinion by in d ire c tly attacking its "supportability" or "consistency" with the record as a whole. Id. Under circumstances similar to those inhering in this case, the Eleventh Circuit a p p e a rs to have recognized that such "implicit" rejection of medical opinion evidence is

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v i a b le provided that the ALJ articulates the reasons for affording the omitted opinion less w e ig h t and such reasons are supported by the record. Snyder v. Comm.'r of Soc. Sec., 2009 W L 1492653 at *4 (11th Cir. 2009) ("Here, the ALJ did not specify expressly the weight g iv e n to Dr. Oliverio's opinion. The most the ALJ said is that he was giving greater weight to Dr. Bhatia's opinion. If that implicitly meant that he gave less weight to Dr. Oliverio's o p in io n , then the ALJ failed to articulate clearly the reasons for giving less weight to his o p inion . This problem alone requires reversal."). In this instance, given Dr. Rankart's sta tem e n t that Dr. DeMuth's opinion is not supported by all of the medical evidence, it a p p e ars the omitted medical evidence is inconsistent with the relied-upon medical opinion ev iden ce and, hence, the ALJ's ultimate findings. Thus, this Court must determine whether, d e sp ite failing to specify what weight he afforded Dr. DeMuth's opinion and the reasons th e re f o r, the ALJ nevertheless provided clear and adequate reasons for his apparent decision to afford less weight to such opinion. T h e Court concludes that the ALJ did adequately state the reasons supporting his im p licit decision to afford Dr. DeMuth's opinion less weight and that those reasons are s u p p o rte d by substantial evidence. It should first be noted that Dr. DeMuth's opinion, though in s tru c tiv e , is not specifically tailored toward resolving the inquiry before the ALJ, i.e., the s e v e rity of the claimant's limitations in the discrete domains of functioning identified in the re g u latio n s. Thus, Dr. DeMuth's opinion that the claimant is "severely impaired in his ability to function in an age appropriate manner cognitively, communicatively, socially, adaptively,

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b e h a v io ra lly, and in concentration, persistence, and pace" is of questionable relevance due t o its generality and strained compatibility with the mandated test. On the other hand, Dr. R a n k a rt's Childhood Disability Evaluation Form specifically addresses each of the domains o f functioning and provides a detailed overview of the then-available evidence before co n clud ing that Dr. DeMuth's opinion is not wholly supported by the evidence.8 More im p o rta n tly, the ALJ cites to substantial evidence in the record supporting his finding that, w h ile the claimant suffers severe impairments, such impairments do not functionally equal th e listings. In particular, the ALJ cites to the following: objective intellectual functioning testing administered in 2007 which indicates "average" noverbal ability functioning (Tr. 2 2 2 )9 ; a January, 2005, intake evaluation by Montgomery Area Mental Health Authority w h ic h , as reported by Plaintiff, indicates that claimant makes As and Bs in school, has e s s e n tia lly normal mental status and average intelligence, and that the claimant has a GAF

For example, Dr. Rankart's report makes note of the SSA Function Reports w h ic h indicate, inter alia, that the claimant has unlimited communication skills (Tr. 69), th a t he can make friends and has friends his own age and generally gets along with adults a n d school teachers (Tr. 71). Tr. 191. While these reports also reinforce some of the c la im a n t's limitations regarding concentration and intellectual functioning, it is apparent that, in other aspects, they conflict with Dr. DeMuth's opinion about the claimant's p u rp o rte d limitations in some areas of functioning. As part of an earlier-administered "behavioral evaluation," the claimant's " c o g n itiv e ability" was tested. Tr. 231. In this testing, the claimant scored in the " E x tre m e ly Low range" in "reasoning abilities on verbal tasks," "while his nonverbal re a so n in g abilities are significantly higher and in the Low Average range." Tr. 231. The p re v a ilin g impression from this round of testing is that the claimant's performance does n o t correspond with his overall abilities (Tr. 232-35), and that addressing the claimant's " a tte n tio n and behavioral needs" may ameliorate some of the claimant's demonstrated lim ita tio n s in learning and intellectual functioning. Tr. 232. 10
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o f 61, denoting "moderate" symptoms or limitations (Tr. 174-75, 178); a 2000 evaluation w h ic h concluded that the claimant's overall functioning is in the "Mid to Uppermost Range o f Borderline Intellectual Functioning with adaptive capabilities being higher than co g n itive/ac ad em ic capabilities" (Tr. 170); and various reports from the claimant's teachers w h o present, at best, a mixed picture of the claimant's limitations in the given domains (Tr. 1 2 4 -1 6 5 ).1 0 In sum, there is substantial evidence in the record relied upon by the ALJ in his im p l ic i t rejection of Dr. DeMuth's opinion. This circumstance, combined with the

q u e stio n a b le probative value of Dr. DeMuth's opinion, renders any failure by the ALJ to s p e c if ic a lly discount Dr. DeMuth's opinion harmless. VII. 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.

The record before the ALJ contains numerous teacher evaluations of the c la im a n t 's functional capacities in the given domains. Tr. 125-165. In their earnest a ss e ss m e n ts of the claimant's functioning in the given domains, the teachers present d if f erin g views on the claimant's limitations. For example, some teachers view the claim an t's difficulties in aspects of acquiring and using information as "serious" or "very s e rio u s ," while others consider them less serious. In sum, the evaluations reinforce what is apparent from a global view of the evidence - the claimant suffers from limitations due to the severe impairments found by the ALJ, but substantial evidence supports the ALJ's c o n c lu s io n that the claimant's limitations are not functionally equivalent to the listings. 11

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D O N E this 30th day of September, 2009.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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