Edward v. Astrue
MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 8/12/11. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
AUDREY EDWARD o/b/o J.P.,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 2:10cv165-CSC
This is a child impairment case. On January 31, 2007, the plaintiff filed, pursuant to
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., an application for
supplemental security income on behalf of J.P.,1 her minor son. The application was denied
at the administrative levels of review, and the plaintiff requested a hearing before an
Administrative Law Judge (ALJ) which was held on May 7, 2009. The ALJ denied the
application for benefits, and the Appeals Council denied review. Thus, the ALJ’s decision
is the final decision of the Commissioner now properly before the court for review.
The parties have consented to the undersigned United States Magistrate Judge
rendering a final judgment in this lawsuit pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala.
LR 73.1. The court has jurisdiction over this lawsuit pursuant to 42 U.S.C. §§ 405(g) and
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 him only by his initials, J.P.
1383(c)(3). After careful consideration of the briefs of the parties and the record of the
administrative proceedings, the court concludes that the decision of the Commissioner should
be reversed and remanded for further proceedings.
II. Child Disability
An individual under 18 is considered disabled “if that individual has a medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and which can be expected to result in death or which has lasted or can be
expected to last for a continuous period 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 follows:
If the claimant is engaged in substantial gainful activity, she is not
If the claimant is not engaged in substantial gainful activity, the
Commissioner determines whether the claimant has a physical or
mental impairment which, whether individually or in combination with
one or more other impairments, is a severe impairment. If the
claimant’s impairment is not severe, she is not disabled.
If the impairment is severe, the Commissioner determines whether the
impairment meets the durational requirement and meets, medically
equals, or functionally equals in severity an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. If the impairment satisfies this
requirement, the claimant is presumed disabled.
See 20 C.F.R. § 416.924(a)-(d) (1997).
The Commissioner’s regulations provide that if a child’s impairment or impairments
are not medically equal, or functionally equivalent in severity to a listed impairment, the child
is not disabled. See 20 C.F.R. § 416.924(d)(2) (1997). In determining whether a child's
impairment functionally equals a listed impairment, an ALJ must consider the extent to
which the impairment limits the child's ability to function in the following six “domains” of
life: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting
and relating with others; (4) moving about and manipulating objects; (5) caring for oneself;
and (6) health and physical well-being. Shinn ex rel. Shinn v. Comm'r of Soc. Sec., 391 F.3d
1276, 1279 (11th Cir. 2004); 20 C.F.R. § 416.926a(b)(1). A child's impairment functionally
equals a listed impairment, and thus constitutes a disability, if the child's limitations are
“marked” in two of the six life domains, or if the child's limitations are “extreme” in one of
the six domains. Shinn, 391 F.3d at 1279; 20 C.F.R. § 416.926a(d).
In reviewing the Commissioner’s decision, the court asks only whether his findings
concerning the steps are supported by substantial evidence. Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005). Substantial evidence is “more than a scintilla,” but less than a
preponderance: it “is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th
Cir. 2004) (quotation marks omitted). The court “may not decide the facts anew, reweigh
the evidence, or substitute . . . [its] judgment for that of the [Commissioner].” Phillips v.
Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation marks
The court must, however, conduct an “exacting examination of the
[Commissioner's] conclusions of law.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
III. The Issues
As presented by the plaintiff, the issues2 before the court are as follows.
(1) The Commissioner’s decision should be reversed, because the ALJ’s
administrative finding of non-disability lacks the support of substantial
(2) The Commissioner’s decision should be reversed, because the ALJ
committed legal error at step three of the evaluation process. The court
pretermits discussion of the plaintiff's specific arguments because the court
concludes that the ALJ erred as a matter of law, and, thus, this case is due to
be remanded for further proceedings.
(Pl.’s Br., doc. # 13, at 6).
III. Discussion and Conclusion
The ALJ found that J.P. had severe impairments of attention deficit disorder with
hyperactivity (ADHD), oppositional defiant disorder (ODD) and learning disability with a
reading emphasis. (R. at 12) The ALJ further found that J.P. did not have an impairment or
combination of impairments that met or medically equaled an impairment in the Listing of
Impairments in 20 C.F.R. Part 404, Subpt. P, App. 1(Appendix 1). Id. The ALJ then found
that J.P.’s impairments also did not functionally equal a listing. Consequently, the ALJ found
J.P. was not disabled. In reaching these conclusions, the ALJ relied heavily on the opinion
In the order of procedure entered in this case, the court ordered as follows: “The plaintiff’s
brief shall contain a section titled ‘Statement of the Issues.’ In this section in numbered paragraphs, the
plaintiff shall state in a concise, specific manner each issue which the plaintiff presents to the court for
resolution. Issues not presented in the Statement of the Issues will not be considered.” (doc. # 4) In a
footnote, the court warned that “general statements of issues such as ‘the ALJ’s decision is not supported
by substantial evidence’ will not be considered by the court.” On this basis alone, the court could affirm
the Commissioner’s decision in this case because the plaintiff’s brief most certainly is in violation of
these proscriptions. In this instance, the court will not take that drastic action but counsel for the plaintiff
should take heed in the future.
of the medical expert who testified at the hearing.
J.P. argues that the ALJ erred when he based his findings “upon the medical opinions
received by the non-examining testifying expert of record.” (Pl. Br. at 6) The plaintiff
contends that under the law of this circuit the opinion of a non-examining physician cannot
constitute substantial evidence to support an administrative decision.
The Commissioner's regulations require that "more weight [be given] to the opinion
of a source who has examined [the claimant] than to the opinion of a source who has not
examined [the claimant]." 20 C.F.R. § 404.1527(d)(1); accord Broughton v. Heckler, 776
F.2d 960, 962 (11th Cir. 1985); Swindle v. Sullivan, 914 F.2d 222, 226 n. 3 (11th Cir. 1990).
Moreover, "[t]he opinions of nonexamining, reviewing physicians, ... when contrary to those
of the examining physicians, are entitled to little weight, and standing alone do not constitute
substantial evidence." Lamb v. Bowen, 847 F.2d 698 (11th Cir. 1988); Sharfarz v. Bowen,
825 F.2d 278, 280 (11th Cir. 1987); accord Spencer on Behalf of Spencer v. Heckler, 765
F.2d 1090, 1094 (11th Cir. 1985) (“‘[t]o attempt to evaluate disability without personal
examination of the individual and without evaluation of the disability as it relates to the
particular person is medical sophistry at best’”). In Edwards v. Sullivan, 937 F.2d 580, 58485 (11th Cir. 1991), the court found that the ALJ did not err in relying on the opinion of a
nonexamining physician where the physician's opinion was consistent with the opinions of
One of the interpretive difficulties with this seemingly straightforward principle of
law arises from cases such as Swindle v. Sullivan, 914 F.2d 222, 226 n. 3 (11th Cir. 1990), in
which the court stated, albeit in a footnote, that the opinion of a nonexamining physician “is
entitled to little weight and taken alone does not constitute substantial evidence to support
an administrative decision.” In isolation, Swindle seems to suggest that the opinion of a
nonexamining physician cannot be substantial evidence under any circumstances. Swindle
cites Broughton as authority, but that case “held that the opinion of a nonexamining
physician is entitled to little weight if it is contrary to the opinion of the claimant's treating
physician.” Broughton, 776 F.2d at 962 (emphasis added). That formulation of the law is
consistent with Lamb and Sharfarz. Thus, the court concludes that the opinion of a
nonexamining physician who has reviewed medical records may be substantial evidence if
it is consistent with the well-supported opinions of examining physicians or other medical
evidence in the record.
The problem in this case is that the ALJ ignored what the medical expert said about
other medical evidence that he needed in order to proffer an opinion. During the hearing
which was held on May 7, 2009, the medical expert asked J.P.’s mother when J.P. last saw
Dr. Palmer, the treating psychiatrist. (R. at 34) The mother replied that her son saw Dr.
Palmer every two months, “frequently and regularly.” Id. The medical expert then stated,
“Then his [Dr. Palmer’s] records are outdated, judge.” Id. After a discussion about obtaining
those records, the medical expert interjected this.
If I may add, judge. Those records would be very helpful because there is an
inconsistency in the last exhibit, which is Dr. Palmer's overall MRFC
evaluation and the treating records that we have thus far from him. The
treating records we have thus far as a year, we're missing the most current year
of treatment. Teacher questionnaires would also certainly be very helpful.
Unless I'm missing that, I don’t see any in the file.
(R. at 34)
Near the conclusion of the hearing, the ALJ asked the medical expert whether based
on his review of the record the claimant's impairments individually or in combination meet
or medically equal the requirements of a listing. In response, the medical expert said
Based on the record as it stands, in my opinion they would not meet or
equal. It would not meet or equal 112.11 for the ADHD. Dr. Palmer's
indications in his records indicate that the claimant has a very positive
response to the Concerta. He notes that when the claimant is taking his
medication his mood is stable and that he has improved concentration. That
is up until the records we have, again, that end May 2008. The record would
indicate that there is some significant behavioral problems in my opinion,
judge, that would cause marked impairments in his interacting and relating
with others. With the record as is at this point I would say less than marked
impairments acquiring and using information, less than marked impairments
attending and completing tasks when adequately medication, less than marked
impairments caring for self, no impairments manipulating objects, no
impairments with health and physical well -being.
(R. at 36)
It is painfully obvious that the medical expert carefully qualified his opinion based on
the record before him while again noting that the records were not current. An ALJ plays a
“crucial role in the disability review process” and has a duty to “develop a full and fair
record” and to “carefully weigh the evidence, giving individualized consideration to each
claim.” Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir. 1996) (per curiam). As already noted,
the ALJ heavily relied on the medical expert but remarkably ignored that expert’s entreaties
about needing updated records. The ALJ’s failure to secure the updated medical records and
provide them to the medical expert for his review and opinion was error.
The Commissioner argues that reliance on the medical expert was not error because
his opinion was congruent with other medical evidence. This argument is beside the point.
The medical expert noted several times that he needed updated information to form a
reasoned opinion. The ALJ failed to get that information, and on remand, this error must be
The court will enter a final judgment reversing and remanding this case to the
Commissioner for further proceedings consistent with this opinion.
Done this 12th day of August, 2011.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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