Wilkerson v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 7/16/2012. (KAM, )

FILED
2012 Jul-16 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LATANYA WILKERSON,
o/b/o R.S..,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner,
Social Security Administration,
Defendant.

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MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Latanya Wilkerson, on behalf of her son, R.S., appeals from the

decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her application for Child’s Supplemental Security
Income (“SSI”). Ms. Wilkerson timely pursued and exhausted her administrative
remedies and the decision of the Commissioner is ripe for review pursuant to
42 U.S.C. §§ 405(g), 1383(c)(3).

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R.S. was four years old at the time of the Administrative Law Judge’s
(“ALJ’s”) decision, and he was a preschooler. (Tr. at 17.) Ms. Wilkerson claims that
her son became disabled on May 20, 2008, due to cerebral palsy. (Tr. at 17, 135.)
When evaluating the disability of a child, the regulations prescribe a three-step
sequential evaluation process. See 20 C.F.R. § 416.924(a). The first step requires a
determination of whether the child is “doing substantial gainful activity.” Id. If he or
she is, the child is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner will consider the child’s physical or mental impairments to see if there
is an impairment or combination of impairments that is “severe.” Id. If the
impairments are not severe, the analysis stops. Id. However, if the impairments are
severe, the Commissioner will look to see if one of the impairments meets or equals
an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. If the child has
such an impairment and it meets the durational requirement, the Commissioner will
find that he or she is disabled. Id.
In step number three of the sequential evaluation, the ALJ initially evaluates the
evidence and determines whether the child’s severe impairment or combination of
impairments found in step two meets or medically equals a listed impairment. If they
do not meet the criteria for an impairment in the listings, the ALJ must decide

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whether the impairment or combination of impairments “functionally equals” the
severity of any listed impairment. See 20 C.F.R. § 416.924(d). When assessing
functional limitations, the Commissioner considers all the relevant factors, such as
how well the child can initiate and sustain activities, how much extra help he or she
requires, the effects of structures or supportive settings, how the child functions in
school, and the effects of medications or other treatments on the child’s health.
20 C.F.R. § 416.926a. To determine functional equivalence, the child’s limitations
must be evaluated in the following six functional areas, called domains: (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 himself; and (6)
health and physical well-being. See 20 C.F.R. § 416.926a(b)(1)(i-vi). An impairment
or combination of impairments functionally equals a listed impairment if it results in
either “marked” limitations in two of the previously mentioned domains or an
“extreme” limitation in one domain. See 20 C.F.R. § 416.926a(a).
Applying this sequential evaluation, the ALJ found that R.S. has not engaged
in substantial gainful activity since June 6, 2008. (Tr. at 17.) Based on the evidence
presented, the ALJ concluded that his cerebral palsy and history of ear infections with
tube placements are considered “severe” according to 20 C.F.R. § 416.924(c). Id.

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Nonetheless, the ALJ determined that these impairments, when considered in
combination, did not medically meet or equal the severity of any impairments listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. In evaluating functional equivalence,
the ALJ found that R.S. does not have an impairment or combination of impairments
that meets or medically equals the listings in 20 CFR §§ 416.924(d) and 416.926a. Id.
In the domain of health and physical well-being, the ALJ found a “marked limitation.”
(Tr. at 26.) In the domains of acquiring and using information and moving about and
manipulating objects, the ALJ found a “less than marked limitation.” (Tr. at 20-21,
23-24.) In the domains of attending and completing tasks, interacting and relating with
others, and caring for himself, the ALJ found “no limitation.” (Tr. at 21-25.) The ALJ
concluded by finding that R.S. “has not been disabled, as defined in the Social
Security Act, since June 6, 2008, the date the application was filed (20 C.F.R. §
416.924(a).” (Tr. at 26.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See

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Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). Indeed, even if this Court finds that the evidence preponderates against
the Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).

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III.

Discussion
Plaintiff alleges that the ALJ’s decision should be reversed or remanded because

the ALJ improperly accorded minimal weight to the opinion of R.S.’s treating
physician, Dr. Rosalyn Morgan. (Doc. 8 at 9-12.) In reviewing an ALJ’s decision to
discount the opinion of a treating physician, the Court considers whether the decision
is supported by substantial evidence. See Phillips v. Barnhart, 357. F.3d 1232, 1240-41
(11th Cir. 2004). “The testimony of a treating physician must ordinarily be given
substantial or considerable weight unless good cause is shown to the contrary.”
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). An ALJ is required to
specify “what weight is given to a treating physician’s opinion and any reason for
giving it no weight.” Id.; Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985).
An ALJ must have “good cause” to discount the opinion of a treating physician.
Phillips, 357 F.3d at 1240; Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
“[G]ood cause exists when the: (1) treating physician’s opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips, 357 F.3d at 1241. Furthermore, “[a] treating physician’s report may be
discounted when it is not accompanied by objective medical evidence or is wholly

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conclusory.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)
(citing Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)).
Here, substantial evidence supports the ALJ’s decision to discount Dr.
Morgan’s form assessment of R.S.’s limitations. (Tr. at 19-26.) On a form drafted by
Plaintiff’s counsel, Dr. Morgan completed an assessment in September 2008
indicating that R.S. had marked and extreme limitations. (Tr. at 19, 213-14.) In the
domains of health and physical well-being, acquiring and using information, and
attending and completing tasks, Dr. Morgan opined that R.S.’s limitations were
“extreme.” (Tr. at 213-14.) In the domains of interacting and relating to others,
moving about and manipulating objects, and caring for self, Dr. Morgan noted that
R.S.’s limitations were “marked.” (Tr. at 214.). The ALJ considered all of the
medical evidence contained in the record, including Dr. Morgan’s form assessment,
but gave that assessment minimal weight. (Tr. at 19-20.)
Although Dr. Morgan was one of R.S.’s treating pediatricians, the ALJ had
good cause to discount her opinion. First, the form report completed by Dr. Morgan
and submitted by Plaintiff’s counsel consisted of a series of conclusory “check-offs”
devoid of any objective medical findings. Id. As noted by the ALJ, “[f]orm reports,
in which a medical source merely enters a series of check-offs without supplying any

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supporting objective findings, are less than optimally useful in the disability
determination process.” (Tr. at 19.) Dr. Morgan failed to provide medical findings to
support and qualify her opinion that R.S. suffered marked and extreme limitations. Id.
In fact, Dr. Morgan did not provide any basis for her September 2008 assessment or
during the relevant period after R.S.’s June 2008 application date. (Tr. at 19-20, 17999, 230-35.) Dr. Morgan, instead, offered notations of either extreme or marked
limitations in the six domains of functioning on a form submitted by Plaintiff’s
counsel. (Tr. at 19, 213-14.) The ALJ properly accorded little weight to Dr. Morgan’s
form assessment because it was conclusory and lacked objective medical evidence. See
Phillips, 357 F.3d at 1240-41.
Additionally, Dr. Morgan’s September 2008 form assessment was contradicted
by her own pre and post-opinion medical findings. (Tr. at 19, 20, 179-99, 230-35.) On
a patient progress sheet dated October 25, 2007—prior to R.S.’s application
date—Dr. Morgan or her assistant listed “running, jumping, climbing, [and] talking
in sentences” under R.S.’s development. (Tr. at 181.) On another patient progress
sheet dated June 5, 2008, Dr. Morgan or her assistant did not provide any details
regarding R.S.’s claimed disability or limited mobility. (Tr. at 180.) From October
2008 through November 2009—after Dr. Morgan completed the form

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assessment—Dr. Morgan met with R.S. and treated him for childhood illnesses and
sinusitis on six different occasions (Tr. at 20, 230-35.) During this period of claimed
disability, Dr. Morgan does not provide any medical records of the marked and
extreme limitations to support her September 2008 assessment. (Tr. at 19-20, 230-35.)
Accordingly, based upon the inconsistencies in the objective medical evidence, the
ALJ had good cause to give minimal weight to Dr. Morgan’s September 2008 form
assessment opinion.
Finally, the ALJ’s decision to afford little weight to Dr. Morgan’s form
assessment was substantially supported by the weight of the record. In making his
determination, the ALJ considered the examinations performed by Dr. Charles Law,
and gave Dr. Law’s opinion greater weight than Dr. Morgan’s form assessment. (Tr.
at 19-26, 202-04, 221-23.) In May 2008, Dr. Law noted no definitive abnormalities in
an MRI of R.S.’s head, and described R.S.’s development as “on time.” (Tr. at 19,
203.) Dr. Law found that R.S.’s cerebral palsy was “very mild,” and recommended
casting, botox, and physical therapy as treatment. Id. In January 2009, Dr. Law noted
that R.S. was “an alert, happy little boy” and “[i]ntellectually, he appears to be on
track.” (Tr. at 221.) Dr. Law injected R.S. with botox and placed him in an intensive
physical therapy program. Id. A follow-up was planned for six months later; however,

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the record does not indicate whether or not Dr. Law treated R.S. again. However, the
ALJ reviewed the available physical therapy records, which showed improvement in
toe pattern, balance, and ambulation as well as age-appropriate motor skills for R.S.
(Tr. at 19, 215-20, 237-39.) The ALJ’s decision is further supported by R.S.’s high
scores on tests of motor skills, cognition, language, and behavior after Dr. Law’s
treatment and physical therapy. (Tr. at 19-20, 263-97.)
Other medical records and evidence contained in the record further support the
ALJ’s decision to give Dr. Morgan’s assessment little weight. Dr. Doris Phillips, a
state agency medical consultant, found a marked limitation in the health and physical
well-being domain, a less-than-marked limitation in the moving about and
manipulating objects domain, and no limitation in the other four domains. (Tr. at 20510.) Dr. Phillips concluded that R.S.’s impairments were severe, but do not meet,
medically equal, or functionally equal the listings. (Tr. at 205.) The ALJ’s decision,
along with the opinions of Dr. Law and Dr. Phillips, are also reinforced by the findings
of V. Harper, a speech and language specialist, who found no impairment with R.S.’s
language or speech. (Tr. at 211.)
The ALJ’s decision is further supported by the record of R.S.’s daily activities.
(Tr. at 19, 121-30.) In a function report completed by Ms. Wilkerson, she specifically

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listed that R.S. could ride a bicycle/tricycle, play games like tag and hide-and-seek,
and feed himself. Id. Although Ms. Wilkerson testified that R.S. had some limitations,
she admitted that R.S. doodled, played computer games, and ran, despite his inability
to keep up with other children. (Tr. at 18-19, 39-54.) R.S. corroborated Ms.
Wilkerson’s testimony when he stated at the hearing that he played basketball,
watched television, played tag, and had a best friend. (Tr. at 19, 24, 37-39) The hearing
testimony contradicts R.S.’s claims of disability and Dr. Morgan’s opinion of extreme
and marked limitations. Based upon the hearing testimony regarding R.S.’s activities,
the ALJ had good cause to accord little weight to Dr. Morgan’s form assessment. See
Crawford, 636 F.3d at 1159. Based upon the medical and hearing evidence, the ALJ
had good cause to give minimal weight to Dr. Morgan.
Plaintiff’s counsel argues that the ALJ should have at least awarded benefits for
a closed period of disability from June 6, 2008, to August of 2009. (Doc. 8 at 9.)
However, the weight of the record supports the ALJ’s finding that R.S. “has not been
disabled, as defined in the Social Security Act, since June 6, 2008, the date the
application was filed.” (Tr. at 26.) As mentioned above, the ALJ properly considered
the hearing testimony and the medical records from R.S.’s treating physicians before

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and after the period of claimed disability. Therefore, the findings of the ALJ are
supported by substantial evidence in the record. See Wilson, 284 F.2d at 1221.
IV.

Conclusion.
Upon review of the administrative record, and considering all of Plaintiffs’

arguments, the Court finds that the ALJ had good cause to disregard Dr. Morgan’s
opinion. The Commissioner’s decision is supported by substantial evidence and in
accord with the applicable law. A separate order will be entered.
Done this 16th day of July 2012.

L. Scott Coogler
United States District Judge
167458

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