Ellis v. Astrue(CONSENT)

Filing 18

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 4/22/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION S A N D R A D. ELLIS, o/b/o J. P. E., P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C IV I L ACTION NO. 3:08cv143WC

M E M O R A N D U M OPINION I. INTRODUCTION S a n d ra D. Ellis (Ellis) 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 d a u g h te r, J.P.E., alleging that J.P.E. was disabled. Her application was granted on 3 May 2 0 0 0 . (Tr. 16). On 3 March 2004, Ellis was notified that the Social Security A d m in is tra tio n would perform a continuing disability review (Tr. 40-41). After a review, o n 10 July 2004, Ellis was notified that as of July 2004, J.P.E. was no longer disabled as d e f in e d in the Act (Tr. 37-38). Ellis filed a request for reconsideration (Tr. 49-50). After a hearing before a State disability hearing officer, Plaintiff was notified that the d e te rm in a tio n to cease her SSI benefits was affirmed (Tr. 39, 51-78). Ellis then requested a n d received a hearing before an Administrative Law Judge (ALJ). Following the h e a rin g , the ALJ rendered a decision finding that J.P.E. no longer met the disability r e q u ir e m e n t s for SSI. (Tr. 16-25). The Appeals Council rejected a subsequent request

f o r review. The ALJ's decision consequently became the final decision of the C o m m issio n er of Social Security (the Commissioner).1 See Chester v. Bowen, 792 F.2d 1 2 9 , 131 (11th Cir. 1986). The case is now before the Court for review pursuant to 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all p ro c e e d in g s and entry of a final judgment by the undersigned United States Magistrate Ju d g e. Plf.'s Consent to Jurisdiction (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #8). B ase d on the Court's review of the record and the briefs of the parties, the Court A F F I R M S the Commissioner's decision. II. STANDARD OF REVIEW 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 o r mental impairment, which results in marked and severe functional limitations, and w h ic h 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." 2 In determining whether to continue a c h i ld ' s disability payments, the ALJ employs the following sequential evaluation process:
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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. A "physical or mental impairment" is one resulting from anatomical, p h y sio 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. 2
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(1 ) Has there been medical improvement? (2 ) Does an impairment or combination of impairments meet or equal the s e v e rity of one set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listing o f Impairments"), that it met or equaled at the time of the most recent f a v o ra b le decision? (3 ) Is the claimant currently disabled? See 20 C.F.R. § 416.994a (2007). T h e standard of review of the Commissioner's decision is a limited one. This C o u rt must find the Commissioner's decision conclusive if it is supported by substantial e v id e n c e . 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such re lev a n t evidence as a reasonable person would accept as adequate to support a c o n c lu s io n ." Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may n o t look only to those parts of the record which support the decision of the ALJ, but in ste a d , must view the record in its entirety and take account of evidence which detracts f ro m the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1 9 8 6 ). [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 re su m p tio n of validity attaches to the [Commissioner's] . . . legal c o n c lu s io n s , including determination of the proper standards to be applied in evaluating claims.

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W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). III. DISCUSSION A. Introduction

The claimant was approximately 9 years-old at the time of the hearing before the A L J . (Tr. 90). Following the administrative hearing, the ALJ determined that there had b e e n medical improvements in the impairments present at the time of J.P.E.'s most recent f a v o ra b le decision (Step 1). (Tr. 18). Under Step 2, the ALJ determined that the severity o f J.P.E.'s impairment for communication problems no longer met or equaled the Listings o f Impairments. (Tr. 19). Pursuant to Step 3, the ALJ determined that, while J.P.E. s u f f ere d from the severe impairments of pervasive developmental disorder, history of p a re n t child relational problems, low average/borderline intellectual functioning, and h is to ry of mild delay of speech/language, such impairments did not result in "marked or sev ere " functional limitations and did not functionally equal any listed impairment. (Tr. 2 0 -24 ). Consequently, the ALJ found J.P.E. was not disabled. (Tr. 24). B. Ellis's Claims

T h e claimant presents only one issue for review: Whether the ALJ failed to accord p ro p e r weight to J.P.E.'s treating psychologist. C. Analysis

Ellis argues the ALJ improperly discounted treating psychologist Dr. Barnes's

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d ia g n o sis , and that the medical evidence in the record did not conclusively counter her o p in io n . Ellis also appears to argue that the ALJ improperly gave controlling weight to n o n -ex am in in g psychologist, Dr. Garner. The opinion of the claimant's treating psychologist3 must be afforded substantial a n d considerable weight by the ALJ unless "good cause" is shown to the contrary. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). "`[G]ood cause' e x is ts when the: (1) treating physician's opinion was not bolstered by the evidence; (2) ev iden ce supported a contrary finding; or (3) treating physician's opinion was conclusory o r inconsistent with the doctor's own medical records." Phillips v. Barnhart, 357 F.3d 1 2 3 2 , 1240-41 (11th Cir. 2004). "The ALJ must clearly articulate the reasons for giving les s weight to the opinion of a treating physician, and the failure to do so is reversible e rro r." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). "Where the ALJ a rtic u la te d specific reasons for failing to give the opinion of a treating physician c o n tro llin g weight, and those reasons are supported by substantial evidence," a reviewing c o u rt may not "disturb the ALJ's refusal to give the opinion controlling weight." Carson v . Comm'r of Soc. Sec., 300 Fed. App'x 741, 643 (11th Cir. 2008). Here, the ALJ did clearly articulate his reasons for giving less weight to the o p in io n of J.P.E.'s treating psychologist, and those reasons are supported by substantial

The Court of Appeals for the Eleventh Circuit treats psychologists like physicians f o r purposes of according weight to their opinions. See, e.g., Crawford v. Comm'r Of S o c . Sec., 363 F.3d 1155 (11th Cir. 2004). 5

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e v id e n c e. Specifically, the ALJ articulated that Dr. Barnes's opinions were not consistent w ith her treatment notes and were not supported by other evidence in the record. Dr. Barnes opined that Plaintiff had "marked" limitations of her ability to interact a n d relate to others and care for herself (Tr. 20). She also indicated that J.P.E. had " m a rk e d " inattention and impulsiveness and "moderate" hyperactivity. Id. However, Dr. B a rn e s's Child Development and Functioning Rating Form, completed 18 October 2006, f o u n d J.P.E. to have a less than "marked" limitation in development and functioning. The record evidence in this case is replete with evidence contradictory to Dr. B a rn e s's findings. In his opinion, the ALJ articulated many such instances of c o n tra d ic to ry evidence. For example, the ALJ found it significant that J.P.E.'s school te a ch e r reported that: (1) J.P.E. was tested for special education classes in 2000 and 2002 a n d did not qualify; (2) J.P.E. was a "great student" with great academic skills; and (3) J.P .E . suffered from no restrictions in the development or functioning areas. (Tr. 22). S im ilarly, the other medical evidence in this case did not support Dr. Barnes's fin d ing s. Dr. Gardner, a non-examining psychologist testified at the hearing that Dr. B a r n e s 's notes were not consistent with her own opinion. (Tr. 20). Dr. Gardner also te s tif ie d that J.P.E. did not meet or equal any listings and had no marked limitations. Id. Dr. Clark, an examining psychologist, found J.P.E. to be mildly impaired in

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c o n c en tra tio n , persistence, and pace.4 (Tr. 21). Dr. Warren, a non-examining physician, f o u n d that J.P.E. had a less than marked limitation in intellectual functioning and no lim ita tio n in behavioral functioning. Id. On 9 July 2004, after reviewing J.P.E.'s medical r e c o rd s , he opined that J.P.E. was medically improving and her only limitation was a less th a n marked limitation in acquiring and using information. (Tr. 20). The ALJ also articulated inconsistencies in Dr. Barnes's treatment notes versus her d ia g n o sis . For example, on 18 October 2006, Dr. Barnes completed a Child Development f o rm and Attention Deficit Hyperactivity Disorder (ADHD) form. The ALJ found the o p in io n s given in those forms relating to J.P.E.'s development and functional levels to be in c o n sis te n t with each other. (Tr. 22). The ALJ also found them inconsistent with the a ss e ss m e n t of J.P.E.'s school teacher, who stated that J.P.E.'s performance and behavior w e re consistent with her grade level. Id. Further, although Dr. Barnes's opinion was that J.P .E . had marked limitations in her ability to care for herself and interact with others, Dr. B a r n e s 's treatment notes indicate that J.P.E. was able to help out with chores and dress h e rs e lf , was progressively becoming a better communicator at home, and was not having b e h a v io ra l problems at school. (Tr. 23). Thus, the ALJ's clear articulation of his reasons for giving less weight to the

Dr. Clark noted that Plaintiff only acted out in the presence of her mother and o p in e d that the behavioral difficulties exhibited at home were indicative of a parent-child relatio n al problem (Tr. 22). As the Commissioner noted in his brief, J.P.E.'s "teachers ra te d [her] behavior as `above average' and `superior,' but her mother reported symptoms co n sisten t with `severe autism' (Tr. 16)." Def. Brief (Doc. #16 at 7). 7

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o p in io n of Dr. Barnes, because her opinions were not consistent with her treatment notes a n d not bolstered by other evidence in the record, is supported by substantial evidence. Further, Plaintiff's claim that the ALJ improperly substituted Dr. Gardner's o p in io n for that of Dr. Barnes is not supported by the record. As demonstrated above, the A L J considered many sources other than Dr. Gardner's opinion, including examining p h ysician s and psychologists, non-examining psychologists, J.P.E.'s teacher,5 J.P.E.'s m o th e r's testimony, and the medical record evidence. A c c o r d in g ly, the ALJ did not error when he properly accorded Dr. Barnes less w e ig h t. IV . CONCLUSION P u r s u a n t to the findings and conclusions detailed in this Memorandum Opinion a n d Order, the Court concludes the ALJ's non-disability determination and denial of b e n e f its is supported by substantial evidence. It is, therefore, ORDERED that the d e c i sio n of the Commissioner is AFFIRMED. A separate judgment is entered herewith. DONE this 22nd day of April, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

Social Security Ruling (SSR) 06-03p, provides that opinions from non-medical sources, such as teachers, can be entitled to significant weight. 8

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