McCall v. Astrue (CONSENT)

Filing 16

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

Download PDF
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. 1 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 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, 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 4 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 5 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 7 6 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 8 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, 9 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 9 8 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 10 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 12

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?