Kilpatrick v. Astrue
MEMORANDUM OF OPINION. Upon consideration of the record as a whole and the arguments of the parties, the court concludes that the decision of the Commissioner is supported by substantial evidence and proper application of the law and, accordingly, that it is due to be affirmed. A separate judgment will be entered. Signed by Honorable Judge Susan Russ Walker on 8/2/2013. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
YVONNA KILPATRICK o/b/o RLK,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 2:11CV652-SRW
MEMORANDUM OF OPINION
Plaintiff Yvonna Kilpatrick brings this action on behalf of her minor child, RLK,1
seeking judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of a decision by the
Commissioner of Social Security (“Commissioner”) denying her child’s application for
Supplemental Security Income under the Social Security Act. The parties have consented
to entry of final judgment by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Upon
review of the record and briefs submitted by the parties, the court concludes that the decision
of the Commissioner is due to be affirmed.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
The court refers to RLK as the “plaintiff” in this memorandum of opinion.
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). “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.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
Factual findings that are supported by substantial evidence must be upheld by the court. See
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)(“Even if the evidence
preponderates against the [Commissioner’s] factual findings, we must affirm if the decision
reached is supported by substantial evidence.”). The ALJ’s legal conclusions, however, are
reviewed de novo because no presumption of validity attaches to the ALJ’s determination of
the proper legal standards to be applied. Davis, 985 F.2d at 531. If the court finds an error
in the ALJ’s application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, the ALJ’s
decision must be reversed. Cornelius, 936 F.2d at 1145-46.
Plaintiff’s mother filed the present application for supplemental security income in
August 2009, a few weeks before plaintiff’s thirteenth birthday, alleging disability since
January 1, 2003, due to plaintiff’s problems concentrating, anger issues, problems getting
along with others, anxiety attacks, migraines, ADD, bipolar disorder, and a learning
disability. In a function report she completed at that time, plaintiff’s mother indicated that
plaintiff has limitations in understanding and using what she has learned, in her social
activities and behavior, in taking care of her person needs and safety, and in her ability to pay
attention and stick to a task. (Exhibits 1D, 1E and 2E).2 After plaintiff’s application was
denied at the initial administrative level, plaintiff requested an administrative hearing before
an administrative law judge. (Exhibits 1A, 2A, 3B, 4B, 5B). The ALJ conducted a hearing
on December 8, 2010, during which he heard testimony from plaintiff’s mother. (R. 29-41).
The ALJ issued a decision on February 17, 2011, in which he concluded that the claimant has
not been disabled as defined in the Social Security Act since June 24, 2009, the filing date
of her application. (R. 10-25). On June 16, 2011, the Appeals Council denied plaintiff’s
request for review. (R. 1-5). Plaintiff commenced the present action thereafter, seeking
review of the Commissioner’s final decision. (Doc. # 1).
“Federal regulations set forth the process by which the SSA determines if a child is
disabled and thereby eligible for disability benefits.” Shinn ex rel. Shinn v. Commissioner
of Social Sec., 391 F.3d 1276, 1278 (11th Cir. 2004)(citing 42 U.S.C. § 1382c(a)(3)(C)(I)
and 20 C.F.R. § 416.906). “The process begins with the ALJ determining whether the child
The court adopts the summary of the medical evidence filed by plaintiff on March 22,
2013. (Doc. # 17-2). Dr. McCleod performed mental status examinations on September 22, 2009
and October 28, 2009 that are not included in the summary; on both instances, the results were the
same as those for all of the mental status evaluations Dr. McCleod performed during plaintiff’s
office visits between August 2009 and September 2010. (Exhibit 4F).
is ‘doing substantial gainful activity,’ in which case she is considered ‘not disabled’ and is
ineligible for benefits.” Id. (citing 20 C.F.R. §§ 416.924(a), (b)). “The next step is for the
ALJ to consider the child’s ‘physical or mental impairment(s)’ to determine if she has ‘an
impairment or combination of impairments that is severe.’” Id. (citing 42 U.S.C.
§§ 416.924(a), (c)). “For an applicant with a severe impairment, the ALJ next assesses
whether the impairment ‘causes marked and severe functional limitations’ for the child.”
Shinn, 391 F.3d at 1278 (citing 20 C.F.R. §§ 416.911(b), 416.924(d)). This determination
is made according to objective criteria set forth in the Code of Federal Regulations (C.F.R.).
As the Eleventh Circuit has explained,
[t]he C.F.R. contains a Listing of Impairments [“the Listings”, found at 20
C.F.R. § 404 app.] specifying almost every sort of medical problem
(“impairment”) from which a person can suffer, sorted into general categories.
See id. § 416.925(a). For each impairment, the Listings discuss various
limitations on a person’s abilities that impairment may impose. Limitations
appearing in these listings are considered “marked and severe.” Id. (“The
Listing of Impairments describes ... impairments for a child that cause[ ]
marked and severe functional limitations.”).
A child’s impairment is recognized as causing “marked and severe
functional limitations” if those limitations “meet[ ], medically equal[ ], or
functionally equal[ ] the [L]istings.” Id. § 416.911(b)(1); see also §§ 416.902,
416.924(a). A child’s limitations “meet” the limitations in the Listings if the
child actually suffers from the limitations specified in the Listings for that
child’s severe impairment. A child’s limitations “medically equal” the
limitations in the Listings if the child’s limitations “are at least of equal
medical significance to those of a listed impairment.” Id. § 416.926(a)(2).
Id. at 1278-79. “Finally, even if the limitations resulting from a child’s particular
impairment[s] are not comparable to those specified in the Listings, the ALJ can still
conclude that those limitations are ‘functionally equivalent’ to those in the Listings. In
making this determination, the ALJ assesses the degree to which the child’s limitations
interfere with the child’s normal life activities. The C.F.R. specifies six major domains of
(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
(vi) Health and physical well-being.”
Shinn, 391 F.3d at 1279 (citing 20 C.F.R. § 416.926a(b)(1)). “The C.F.R. contains various
‘benchmarks’ that children should have achieved by certain ages in each of these life
domains.” Id. (citing 20 C.F.R. §§ 416.926a(g)-(l)). “A child’s impairment is ‘of listing-level
severity,’ and so ‘functionally equals the listings,’ if as a result of the limitations stemming
from that impairment the child has ‘marked’ limitations in two of the domains [above], or
an ‘extreme’ limitation in one domain.” Id. (citing 20 C.F.R. § 416.926a(d) and
The ALJ’s Decision
The ALJ concluded that plaintiff has severe impairments of attention deficit
hyperactivity disorder, bipolar disorder, and obsessive compulsive disorder, but that she does
not have an impairment or combination of impairments that medically equals one of
impairments in the listings. (R. 13-16). The ALJ further determined that plaintiff does not
have an impairment or combination of impairments that functionally equals the listings. He
found that the plaintiff has no limitation in the domains of: moving about and manipulating
objects, caring for herself, and health and physical well-being. (R. 21-24). In the domains
of acquiring and using information, attending and completing tasks, and interacting and
relating with others, the ALJ found plaintiff to have “less than marked” limitations. (R. 1821).
Plaintiff argues that the Commissioner’s decision is not supported by substantial
evidence or proper application of the law because the ALJ erred by: (1) rejecting the opinion
set forth by her treating psychiatrist, Dr. McCleod, in a November 3, 2010, medical source
statement (Doc. # 12, pp. 5-6; see Exhibit 7F); (2) ignoring the opinion of plaintiff’s teacher,
expressed in a questionnaire sent to the Alabama Disability Determination Service on
October 15, 2009 (Doc. # 12, pp. 7-8; see Exhibit 7E); and (3) failing to develop the record
either by contacting the consultative examiner for a further explanation of his report of
evaluation or by obtaining an additional opinion from a medical expert (“ME”). (Doc. # 12,
As plaintiff notes, the Commissioner’s regulations expressly recognize school teachers
as among the “other sources” who can provide evidence regarding the limitations caused by
a claimant’s impairments. 20 C.F.R. 416.913(d). Exhibit 7E is a “teacher questionnaire”
completed at some point between mid-September 2009 and October 15, 2009, by an
unidentified person at Florala Middle School . (Exhibit 7E, R. 130-36).3 Plaintiff notes that
in the questionnaire, the teacher indicated very serious problems in the functional areas of
“acquiring and using information” and “attending and completing tasks.” (Doc. # 12, p.
7)(citing R. 132-33). She states that “the ALJ made no reference to the teacher’s opinion
(Exhibit 7E) in [his] decision” and argues that he erred by ignoring it. (Doc. # 12, p. 7).
However, the ALJ’s decision makes clear that he did consider the responses in the
teacher questionnaire. As the Commissioner points out, the ALJ cites the questionnaire
twice. (Doc. # 13, pp. 10-11; see R. 19, 21). The ALJ refers to the teacher’s responses in
reaching his finding as to plaintiff’s limitations in interacting and relating with others.
(R. 21)(citing Exhibit 7E).4 He also discusses the teacher’s observations relating to the
The person who completed the form did not answer the questions relating to his or her
opportunity to observe the plaintiff (R. 131, no responses to questions 1-4). Additionally, the form
includes ratings for only five of the six domains; it does not include the page for rating limitations
in the domain of health and physical well-being or the signature page. (Exhibit 7E). The DDS cover
letter transmitting the form to Florala Middle School is dated September 10, 2009; the exhibit bears
a fax legend showing that it was transmitted from “Florala City Middle” on October 15, 2009.
The ALJ states:
With regard to interacting and relating with others, the claimant’s teacher reported
that the claimant had a slight problem using language appropriate to situation and
listener and that she had an obvious problem using adequate vocabulary and grammar
to express thoughts or ideas in general everyday conversation (Exhibit 7E). She did
not report any difficulty in getting along with others or respecting and obeying adults.
domain of acquiring and using information. (R. 19)(citing Exhibit 7E). He states:
In a questionnaire submitted on October 15, 2009, one of the claimant’s
teachers reported that the claimant had obvious problems comprehending oral
instructions, reading and comprehending written material, and understanding
and participating in class discussions (Exhibit 7E). She reported serious or
very serious problems in providing organized oral explanations and adequate
descriptions, expressing ideas in written form, learning new material, recalling
and applying previously learned material, and applying problem-solving skills
in class discussions.
(R. 19). The ALJ concludes that plaintiff has “less than marked” limitations in this functional
area, however, noting plaintiff’s “average scores on tests of intelligence and academic
achievement[,]” and that – although she made poor grades in the first nine-week reporting
period of the 2010-11 school year – “her grades have generally been average[,]” and “[i]n
spite of her difficulties, the claimant has made adequate progress in regular classes.” (R.
19)(citing Exhibits 8F, 8E, 11E); see R. 129 (report of contact indicating that plaintiff was
in regular classes in seventh grade); R. 138 (report for grades K-6, showing that plaintiff was
promoted to the next grade each year and including no notation in the portion of the form
designated for recording special education services).
The ALJ’s discussion of plaintiff’s limitations in “attending and completing tasks”
immediately follows this analysis. In this section of his decision, however, the ALJ does not
refer to the teacher’s ratings. (See R. 19-20; see R. 133). He observes that plaintiff’s ADHD
“results in significant limitations in ability to attend and concentrate, and the claimant has
had some difficulties in the past in establishing an effective treatment regimen as a result of
insurance coverage issues and medication side effects.” (R. 20). He points to Dr. McCleod’s
progress notes as “indicat[ing] that the claimant’s symptoms are quite amenable to her
current medication, and the condition is under good control with treatment.” (Id.). The ALJ
was aware that the teacher questionnaire was “submitted on October 15, 2009” (R. 19) and
acknowledged the “significant limitations” caused by plaintiff’s ADHD before the “good
control” resulting from her “current medication” (R. 20). At the administrative hearing,
plaintiff’s mother testified that plaintiff was then taking Adderall, Seroquel, and Zoloft; there
is no indication in the record that plaintiff’s prescribed medications changed before the ALJ
issued his decision. (R. 35; see also R. 224 (Dr. George’s statements that plaintiff’s “last
visit [at the Dothan Behavioral Health Clinic] was September 13, 2010” and that her
medications include Adderall, Seroquel, and Zoloft); Doc. # 17-2 (final entry on plaintiff’s
evidentiary summary is Dr. George’s report)). As the Commissioner argues, Dr. McCleod’s
notes demonstrate that plaintiff did not begin her medication regimen of Seroquel, Adderall,
and Zoloft until October 28, 2009 – two weeks after the Middle School faxed the form to
DDS – and, therefore, that the teacher’s opinion did not address plaintiff’s functioning on her
current medications. (See Doc. # 17-2, treatment described at ## 13-18, 20-23; Exhibit 4F).
The ALJ’s decision as a whole reflects that he did not ignore the teacher’s opinion as
plaintiff contends, and the court finds no reversible error in the ALJ’s consideration of that
Treating Physician’s Opinion
A month before the administrative hearing, Dr. McCleod, plaintiff’s treating
psychiatrist, completed a “Medical Source Statement (Mental)” form, in which she expressed
her opinion that plaintiff has “marked” limitations in her ability to interact appropriately with
the general public; get along with co-workers or peers; understand, remember, and carry out
simple instructions; understand, remember and carry out complex instructions; maintain
attention and concentration for extended periods; sustain a routine without special
supervision; complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without and
unreasonable number and length of rest periods; and respond appropriately to supervision.
(Exhibit 7F, R. 216-17). She further indicated that plaintiff has a “marked” degree of
constriction of interests and “moderate” limitations in all the remaining functions she rated.
(Id.).5 Plaintiff argues that – while her former attorney gave Dr. McCleod the form intended
for rating adult claimants – the functions Dr. McCleod rated as “marked” translate to the
domains of acquiring and using information, relating with others, and attending and
completing tasks. Plaintiff contends that the ALJ erred by according “little weight” to this
opinion. (Doc. # 12, pp. 5-6).
“If a treating physician’s opinion on the nature and severity of a claimant’s
impairments is well-supported by medically acceptable clinical and laboratory diagnostic
The introductory language on the form requests that the physician rate the nineteen listed
functions “[i]n addition to the information provided in your narrative report.” (R. 216). While her
treatment notes are in Exhibits 1F and 4F, Dr. McCleod attached no narrative report to the medical
source statement in Exhibit 7F.
techniques, and is not inconsistent with the other substantial evidence in the record, the ALJ
must give it controlling weight.” Roth v. Astrue, 249 Fed. Appx. 167, 168 (11th Cir.
2007)(citing 20 C.F.R. § 404.1527(d)(2)). “If the treating physician’s opinion is not entitled
to controlling weight, . . . ‘the testimony of a treating physician must be given substantial or
considerable weight unless “good cause” is shown to the contrary.’” Id. (citing Crawford v.
Commissioner, 363 F.3d 1155, 1159 (11th Cir. 2004)). “If the ALJ finds such good cause
and disregards or accords less weight to the opinion of a treating physician, he must clearly
articulate his reasoning, and the failure to do so is reversible error.” Pritchett v.
Commissioner, Social Security Admin, 315 Fed. Appx. 806 (11th Cir. 2009)(citing
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). “When the ALJ articulates
specific reasons for not giving the treating physician’s opinion controlling weight, and those
reasons are supported by substantial evidence, there is no reversible error. Schuhardt v.
Astrue, 303 Fed. Appx. 757, 759 (11th Cir. 2008)(citing Moore v. Barnhart, 405 F.3d 1208,
1212 (11th Cir. 2005)). The Eleventh Circuit has found good cause for discounting treating
physicians’ opinions that are “inconsistent with their own medical records.” Roth, supra
(citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997)). “The ALJ may reject the
opinion of any physician when the evidence supports a contrary conclusion. Carson v.
Commissioner of Social Sec., 373 Fed. Appx. 986, 988 (11th Cir. Apr. 20, 2010)(citing
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)).
The ALJ addresses Dr. McCleod’s medical source statement as follows:
I have considered the mental residual functional capacity assessment of Dr.
McCleod (Exhibit 7F) and find that it is entitled to little weight. In her initial
examinations of the claimant, Dr. McCleod herself estimated no more than
moderate symptoms or functional limitations (Exhibit 1F). All the progress
notes generated since the commencement of treatment reflect that the
claimant’s symptoms have improved with treatment and remain wellcontrolled as long as she takes her medications. The treatment records suggest
that the claimant’s overall functioning is good. There is no indication
whatsoever of the marked limitations described by Dr. McCleod in the form.
(R. 17). In her initial visit to Dr. McCleod, plaintiff (who was then twelve years old) and her
mother complained of numerous symptoms (see R. 166-69), including, as plaintiff’s mother
told Dr. McCleod:
She is having irritability and mood swings. She acts a lot like me - which is
bad. It’s getting to the point that she’s not getting with nobody, yelling,
screaming, throwing things, hurting brother and sister by hitting and fighting
and not getting along with peers at school. She has a really bad mouth. At time
she has problems paying attention. She was a totally different child on Focalin.
She went off the medications due to insurance issues.
(R. 166). In her mental status examination, Dr. McCleod observed that plaintiff’s mood was
constricted and her judgment “poor” but otherwise noted no abnormalities. (R. 169). Dr.
McCleod assessed a number of disorders – bipolar disorder, ADHD, premenstrual dysphoric
disorder, overanxious disorder of childhood and adolescence, panic disorder without
agoraphobia with moderate panic attacks, specific phobia (spiders), sleep disturbance,
impulse control disorder, and conduct disorder (adolescent onset type). She also made a “rule
out” diagnosis of learning defect, and assessed “sibling relational problem.” (R. 170). Dr.
McCleod started plaintiff on medications for bipolar disorder and ADHD, planned to
schedule her for IQ and achievement testing to assess the learning defect further, and
suggested family therapy for the other problems. (Id.). In a follow-up appointment two weeks
later, plaintiff’s mother told Dr. McCleod that the Seroquel was “working fine and seems to
be helping her sleep” but that plaintiff was unable to take the Concerta due to side effects and
was having a hard time with focusing on her homework. Dr. McCleod again noted
“constricted” mood and “poor” judgment upon mental status evaluation. (R. 164). She
continued plaintiff on Seroquel, discontinued the Concerta, and started her on Focalin.
At her next two-week follow-up appointment, plaintiff and her mother reported that
plaintiff was not taking the Focalin. Plaintiff stated it “makes her fuzzy and where she
doesn’t understand the teacher.” Plaintiff’s mother claimed that plaintiff’s mood was “mean
and hateful,” but plaintiff disagreed. Plaintiff reported anxiety, increased irritability and “a
little” depression, but denied sleep disturbances, high stress level, suicidal ideation, eating
disorder, and mental or physical abuse. She reported daily headaches and painful menstrual
cycles. (R. 162). Dr. McCleod recorded no abnormal observations in her mental status
evaluation. (Id.). She continued plaintiff on the Seroquel, stopped the Focalin, started her
on Vyvanse, and scheduled her for follow up in two months. (R. 163). The following week,
on September 10, 2009, plaintiff returned to Dothan Behavior Health for her evaluation by
Beth Handal, a licensed professional counselor. Handal noted no abnormalities upon mental
status evaluation. (R. 160). She observed:
[RLK] arrived for her appointment accompanied by her mother. An interview
was conducted to gather information regarding her academic problems. She
attends Florala Middle School and is in the 7 th grade. No grade failures or
retentions are reported. [RLK] has never received an educational assessment
of special accommodations within the school system. She reportedly
experiences the most difficulty in Math and reading. [RLK] reportedly does
pretty well in school if she has a teacher who will take up extra time with her.
No problems with speech or language are reported. Auditory, visual and motor
skills are within normal limits. [RLK] currently takes medication for ADHD
with moderate effectiveness reported. She is having stomach discomfort and
a decrease in appetite. This will be further discussed with her psychiatrist.
Today the WI[SC]-IV and WIAT-II were administered. [RLK] entered the
room freely with minimal interaction noted. She remained cooperative and
had a quiet disposition. Effort and motivation remained stable. She was able
to easily understand all instructions provided. No overt signs of inattention or
distractible behaviors were observed. [RLK] was on her current medication
regimen for testing.
(R. 160; see Exhibit 8F (testing results)). On the WIAT-II, Plaintiff scored in the “Average”
range in mathematics and spelling, and in the “Low Average” range in reading. (R. 221).
On the WISC-IV, she scored in the “Average” range in verbal comprehension and processing
speed, and in the “Low Average” range in perceptual reasoning and working memory. Her
Full Scale IQ result was 91, in the “Average” range. (R. 220). Handel reported that
plaintiff’s working memory score indicates that, “[i]n general, her skills in attention,
concentration, and mental reasoning are in the Low Average range[,]” and her processing
speed score indicates that, “[i]n general, her skills in speed of mental problem-solving,
attention, and eye-hand coordination are in the Average range.” (Id.).
Plaintiff returned to Dr. McCleod on September 22, 2009, to discuss the test results.
At that time, plaintiff’s mother reported that plaintiff was having stomach problems and had
stopped taking the Vyvanse because it irritated her stomach. Dr. McCleod dropped the “rule
out” diagnosis of learning defect and added obsessive-compulsive disorder, noting that
plaintiff will not turn in her school work unless it is “perfect” and will do “the whole thing
over” if she makes a mistake rather than making a correction. (R. 193-94). Dr. McCleod
continued plaintiff on Seroquel for the bipolar disorder and started her on Adderall for her
ADHD. (R. 194). On October 28, 2009, plaintiff’s mother told Dr. McCleod that plaintiff
“‘does pretty well when she takes her medicine[,]’” and that she was attending an afterschool program that was “really helping.” Plaintiff’s mother stated again that plaintiff would
not turn in her school work unless it was “‘neat and perfect,’” and said that she “‘wonder[ed]
if [plaintiff] might have some OCD problems.’” (R. 196). Plaintiff told Dr. McCleod that
she took her medications “sometimes” and that her grades were “a little better.” (Id.). Dr.
McCleod again observed no abnormalities in her mental status examination. (Id.). She
continued plaintiff on Seroquel and Adderall, started her on Zoloft for the obsessivecompulsive disorder, and scheduled her for follow-up in two months. (R. 197).
On January 7, 2010, plaintiff’s mother told Dr. McCleod, “‘She does good as long as
she takes her medicine, but she forgets to take it a lot.’” Plaintiff stated, “‘As long as I take
it I can get along with everyone. It’s major drama if I don’t take it.’” Plaintiff “denie[d] any
adverse reactions to the current medication regimen’” but said that “‘maybe the focus
medicine needs to be increased.’” (R. 198). Dr. McCleod noted no abnormalities upon mental
status examination. (Id.). She continued plaintiff on the same medications, and scheduled
her for follow-up in two months. In plaintiff’s March 8, 2010, appointment with Dr.
McCleod, plaintiff’s mother stated: “‘She’s doing ok except that she still has attitude
sometimes. It will make you crazy. She doesn’t get the concept that taking stuff that doesn’t
belong to her without asking is stealing. She has taken jewelry out of my jewelry box. She
has my engagement ring and I still haven’t gotten it back. She is having to pay for it. We
had to go get her from her boyfriend’s house the other day. She thinks that she’s grown.’”
(R. 200). Dr. McCleod again noted no abnormalities in her mental status examination. (Id.).
She continued plaintiff on the same medications. (R. 201). On May 3, 2010, plaintiff’s
mother told Dr. McCleod, “‘It works good when she takes it. She says that it is to keep her
from killing somebody at school. There’s a little girl that’s starting rumors all the time.
We’ve already been to the gynecologist twice. She started the rumor that [RLK] was
pregnant. I get a call almost every week from the principal about something that has been
said. I don’t think that any of the medicine is causing it. She just has to keep things settled
down.’” (R. 202). Dr. McCleod observed no abnormalities upon mental status examination
(R. 202) and she continued plaintiff on her medications (R. 203).
On July 19, 2010, plaintiff saw Dr. Jeffers rather than Dr. McCleod. Plaintiff’s mother
told the doctor that “‘She’s doing good as long as she takes it’” and that plaintiff was
compliant with her medications. Plaintiff denied any problems or medication side effects,
and told Dr. Jeffers that she has good sleep with Seroquel. Dr. Jeffers noted no abnormalities
in his mental status examination of the plaintiff (R. 204); he continued her on the same
medications. (R. 205). On September 13, 2010, plaintiff’s mother told Dr. McCleod, “‘She
is good as long as she takes the medication. I can tell when she doesn’t. She still has some
attitude and temper sometimes related to school[.] She is still having problems with this one
girl. Grades are better than what they used to be, but they still could be better. She has a D
in math. She is doing fairly well for now.’” (R. 206). Dr. McCleod noted no abnormalities
upon mental status evaluation, and she continued plaintiff on the same medications. (R. 20607).
Several weeks thereafter, on November 3, 2010, Dr. McCleod completed the medical
source statement form, indicating moderate or marked limitations in all rated functions.
(Exhibit 7F). The ALJ found the degree of limitation expressed by Dr. McCleod in the form
to be inconsistent with her own treatment records and, therefore, accorded the opinion little
weight. (R. 17). The ALJ’s stated reason constitutes good cause for according the opinion
little weight, and it is supported by substantial evidence. Plaintiff’s allegation of error as to
the ALJ’s consideration of Dr. McCleod’s opinion is without merit.
Duty to Develop the Record
On December 21, 2010 – two weeks after the administrative hearing and just over
three months after plaintiff’s last visit of record with Dr. McCleod – Dr. Fred George
conducted a consultative psychological examination at the ALJ’s request. (Exhibit 10F; see
R. 31-32). Dr. George concluded that plaintiff “is functioning at an age-appropriate level in
her cognitive, communication, and social skills, and her adaptive behavior. She has
significant impairment in her self-control, concentration, and persistence.” (R. 225). He
recommended that plaintiff and her mother “discuss with Dr. McCleod her continued
difficulties with focusing and sustaining attention and her school performance difficulties in
light of her current ADHD medication.” (Id.). In assigning weight to Dr. George’s report,
the ALJ states:
I give substantial weight to Dr. George’s assessment (Exhibit 10F), which
reflects that the claimant’s functioning is generally age-appropriate. While he
reported “significant impairment in her self-control, concentration, and
persistence,” his objective clinical findings reflect merely that her activity level
was “somewhat accelerated” and that attention and concentration were
“somewhat impaired.” He described the claimant as cooperative, but did not
comment specifically on the reliability of the self-reported history. In any
event, his clinical findings do not suggest the presence of marked impairments
in any area. Overall, Dr. George’s opinion is well supported by his own
clinical examinations and testing, as discussed above, and is generally
consistent with the record as a whole.
(R. 17; see also R. 14-15 (ALJ’s summary of Dr. George’s report)). As the ALJ observed,
Dr. George did not comment on the reliability of the history reported by plaintiff and her
mother. (See R. 223-25).6 As further noted by the ALJ, Dr. George described plaintiff’s
Dr. George noted the following history reported by plaintiff and her mother:
[RLK] indicated she doesn’t get along with people; she gets in a lot of fights and has
bad mood swings. She stated one minute she is “kinda happy” and the next minute
she is throwing things. There are other times when she stays in her room and doesn’t
want to be around people. She reported during her happy moods she is overly happy,
giddy, talks fast, her thoughts are racing, she is very distractible and needs less sleep,
which she indicated lasts two to three days. She indicated she does not become
grandiose or do dangerous things and does not become overly focused. Her elevated
moods, which last from 20 to 30 minutes to two days, are followed by depressed
moods, which last days to weeks, when she indicates she is “mean.”
Her mother indicates [RLK] has problems getting along with people to the degree
that she yells and curses at them. At times she completely refuses to do her school
work and at other times when she does it she does not get completely finished and
activity level as “somewhat elevated” (she moved her feet “off and on” throughout the
evaluation and touched her thumb to her fingers one at a time), and he stated that “[h]er
attention and concentration during the evaluation appeared somewhat impaired” (she
performed five of five correct serial 7s and was able to spell the word “world” backwards,
but took eight seconds to subtract 7 from 93, and forty seconds to subtract 7 from 86).
(R. 224). Plaintiff contends that the ALJ erred by “extrapolat[ing] [Dr. George’s] observation
does not pay attention for long periods of time. She has fights with her brother and
sister and has mood swings. When she does not get her way, she says she wishes she
Her mother reports [RLK] was sexually abused at age five and is hyperalert,
hypervigilant, and has an exaggerated startle response. [RLK] indicates she has
nightmares and flashbacks to these events around two times a week and reacts at
times emotionally as if the trauma is happening again.
[RLK] and her mother also reported she engages in compulsive behavior including
cleaning three to four hours [a] day and redoing whole homework assignments if she
makes one mistake for one to two hours per day. At times, [RLK] takes so much
time redoing her work she does not finish it and hand it in.
[RLK’s] mother reports she has difficulties understanding what she reads, expressing
her ideas in writing, memory problems, spelling difficulties, arithmetic problem
solving, and difficulties organizing her work and homework.
(R. 223). Dr. George notes that “[RLK] is currently being prescribed Adderall 10 mg in the morning,
Zoloft 50 mg in the morning, and Seroquel 40 mg at night by Dr. McCleod. (R. 224). In the very
next paragraph, however, he observes that plaintiff’s most recent visit to Dothan Behavioral Health
Clinic was on September 13, 2010, and that her medications at that time were “Seroquel XR 300 mg
orally at 6:00 p.m., Adderall XR 5 mg a.m., and Zoloft 25 mg in the morning.” (R. 224). The latter
dosages are reflected in Dr. McCleod’s treatment notes for the September 13, 2010 office visit. (R.
207). He does not indicate whether plaintiff had taken her medications (at either of the two sets of
dosages) at the time of his evaluation. (R. 223-25). He noted plaintiff’s mother’s report that plaintiff
had frequent disciplinary problems in the past, “but currently is having only minor difficulties.” (R.
that R’s attention and concentration during the evaluation appeared ‘somewhat’ impaired
(R. 224) to his overall conclusion” that plaintiff has “significant” limitations in this area.
(Doc. # 12, pp. 9-10). She argues that ‘“somewhat’ does not readily translate to ‘significant’
in terms of quantifying the degree of impairment” and that the ALJ could have developed the
record on this point either by contacting Dr. George for clarification of his opinion or by
obtaining review by a medical expert. (Id.)(citing 20 C.F.R. §§ 416.912, 416.927(f)(2)(iii)).
The Commissioner’s regulations require that the ALJ seek more evidence from a
consultative examiner only if his or her report “is inadequate or incomplete.” 20 C.F.R.
§ 416.919p(b)(“If the report is inadequate or incomplete, we will contact the medical source
who performed the consultative examination, give an explanation of our evidentiary needs,
and ask that the medical source furnish the missing information or prepare a revised report.”).
In determining whether the consultative report is adequate and complete, the Commissioner
considers factors including “[w]hether the report provides evidence which serves as an
adequate basis for decisionmaking in terms of the impairment it assesses.” 20 C.F.R.
§ 416.919p(a)(1); see also id., subsections (2) - (5)(listing other factors). In order to reach
his conclusion on functional equivalence, the ALJ was required to quantify plaintiff’s level
of limitation – for each domain as to which her to have limitations – as “less than marked,”
“marked,” or “extreme.” 20 C.F.R. § 416.926a(a). While an assessment of plaintiff’s
limitations in these precise terms (assuming their usage in accordance with the
Commissioner’s definitions) might well have been more helpful to the ALJ, the court cannot
conclude that Dr. George’s report was inadequate or incomplete so as to give rise to a duty
to seek more information from him. See 20 C.F.R. §416.919n(c)(6)(consultative examination
report should “describe the opinion of the medical source about your functional limitations
compared to children your age who do not have impairments in [the six functional domains].
Although we will ordinarily request, as part of the consultative examination process, a
medical source statement about what you can still do despite your impairment(s), the absence
of such a statement in a consultative examination report will not make the report
The ALJ was not required to view Dr. George’s assessment of a “significant
impairment in [plaintiff’s] self-control, concentration, and persistence” (R. 225) in isolation.
In determining where it fell on the regulatory spectrum set forth in § 416.926a, the ALJ did
not err by evaluating Dr. George’s conclusion in the context of his observations upon clinical
examination. The ALJ reasoned that Dr. George’s “clinical findings do not suggest the
presence of marked impairments” (R. 17) and that Dr. George’s description of plaintiff’s
attention and concentration during the evaluation as “somewhat” impaired indicate a degree
of limitation that is no more than moderate. Id.; see R. 20 (finding “a less than marked
limitation in attending and completing tasks”); 20 C.F.R. § 416.926a(e)(2)(i)(a “marked”
limitation is “more than moderate” but “less than extreme”). The ALJ’s analysis of Dr.
George’s opinion – viewing the consultative examination report as a whole – is reasonable,
and the ALJ did not err by failing to contact Dr. George for additional information.
Plaintiff argues that “[t]he ALJ could also have developed the record by obtaining
review by a medical expert (ME)[.]”(Doc. # 12, p.10)(citing 20 C.F.R. § 416.927(f)(2)(iii)).
While the regulation plaintiff cites gives the ALJ the authority to seek the assistance of a
medical expert, he was not required to develop the record further unless the evidence before
him was insufficient to allow him to make an “informed decision” on plaintiff’s claim. See
KDB. ex rel Bailey v. Social Security Administration, Commissioner, 444 Fed. Appx. 365,
368 (11th Cir. 2011)(finding no error in ALJ’s failure to obtain ME testimony or order
additional IQ testing “because the evidence in the record was sufficient to permit an informed
decision that KDB was not disabled”). Because the evidence before the ALJ was sufficient
to allow an “informed decision” as to plaintiff’s disability, the ALJ had no duty to further
develop the record by obtaining an opinion from an additional medical expert.
Even if the ALJ erred by failing to contact Dr. George or by failing to seek another
medical expert opinion, any such error does not require reversal in the absence of an
“evidentiary gap” demonstrating unfairness or clear prejudice. See Smith v. Comissioner of
Social Security, 501 Fed. Appx. 875 (11th Cir. 2012)(“[A] claimant must demonstrate that
she was prejudiced by the ALJ’s failure to develop the record before a due process violation
will justify remand. In making this determination, we are ‘guided by whether the record
reveals evidentiary gaps which result in unfairness or “clear prejudice.”’”)(citing Graham v.
Apfel, 129 F.3d 1420, 1423 (11th Cir.1997)). The court finds no such “evidentiary gap”
here. Plaintiff’s argument that the ALJ failed in his duty to develop the record pertains only
to the ALJ’s evaluation of plaintiff’s limitations in concentration and persistence – i.e., her
limitations in a single functional domain. (See Doc. # 12, pp. 8-10). Plaintiff would be
entitled to a finding of disability only if the additional evidence would have demonstrated an
“extreme” limitation in this domain, since the ALJ found no “marked” or greater limitations
in any other functional area. See 20 C.F.R. § 916.926a(a)(functional equivalence requires
“marked” limitations in two domains or an “extreme” limitation in one domain). Even Dr.
McCleod (in the medical source statement properly given no weight by the ALJ) assessed no
“extreme” functional limitations. (See Exhibit 7F, R. 216-17). There is nothing in Dr.
George’s report to indicate that by “significant” he might have meant “extreme,” and nothing
in the record suggests that a different medical expert might so conclude upon reviewing Dr.
George’s report and the other evidence of record. Thus, plaintiff has not demonstrated that
she was prejudiced by the ALJ’s failure to develop the record by seeking clarification from
Dr. George or the opinion of an additional medical expert. Even if the ALJ erred in this
regard, plaintiff has not demonstrated that the error requires that the Commissioner’s decision
Upon consideration of the record as a whole and the arguments of the parties, the
court concludes that the decision of the Commissioner is supported by substantial evidence
and proper application of the law and, accordingly, that it is due to be affirmed. A separate
judgment will be entered.
DONE, this 2nd day of August, 2013.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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