Perry v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/23/2014. (AVC)

FILED
2014 Jun-23 PM 03:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

VERONICA PERRY o/b/o T.L.P.,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
2:12-cv-2189-AKK

MEMORANDUM OPINION
Plaintiff Veronica Perry (“Perry”) brings this action on behalf of her daughter,
T.L.P. (“Claimant”), pursuant to Section 205(g) of the Social Security Act (“the Act”),
42 U.S.C. § 405(g), seeking review of the final adverse decision of the Commissioner
of the Social Security Administration (“SSA”). This court finds that the Administrative
Law Judge’s (“ALJ”) decision - which has become the decision of the Commissioner is supported by substantial evidence. Therefore, for the reasons elaborated herein, the
court will affirm the decision denying benefits.
I. Procedural History
Perry protectively filed an application on behalf of her minor child T.L.P. for the
child’s Supplemental Security Income (“SSI”), alleging a disability onset date of

December 22, 1994, due to heart problems.1 (R. 16, 151). After the SSA denied her
claim, the Claimant requested a hearing before an ALJ. (R. 93-94). The ALJ
subsequently denied the Claimant’s claim, (R. 13-28), which became the final decision
of the Commissioner when the Appeals Council refused to grant review. (R. 1-6).
Perry then filed this action for judicial review pursuant to 42 U.S.C. § 1383(c)(3). Doc.
1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, See 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal
standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the
Commissioner’s “factual findings are conclusive if supported by ‘substantial
evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
court may not reconsider the facts, reevaluate the evidence, or substitute its judgment
for that of the Commissioner; instead, it must review the final decision as a whole and
determine if the decision is “reasonable and supported by substantial evidence.” See id.
(citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Substantial

1

Although SSI is not payable prior to the month following the month in which
the application was filed, see 20 C.F.R. § 416.335, the ALJ considered the complete
medical history in accordance with 20 C.F.R. § 416.912(d). (R. 16.)
2

evidence falls somewhere between a scintilla and a preponderance of evidence; “[i]t is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the court must affirm the
Commissioner’s factual findings even if the preponderance of the evidence is against
the Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges that judicial review of the ALJ’s findings is limited in scope, it notes that
the review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
A claimant under the age of eighteen is considered disabled if she has a
medically determinable physical or mental impairment which results in marked and
severe functional limitations, and which is expected to result in death, or which has
lasted or is expected to last for a continuous period of not less than 12 months. 42
U.S.C. § 1382c(a)(3)(C)(I). The regulations define the statutory standard of “marked
and severe functional limitations” in terms of “listing-level severity.” 20 C.F.R. §§
416.902, 416.906, 416.924(a), 416.926a(a); see 20 C.F.R. pt. 404, subpt. P, app. 1 (the
listings). The Commissioner has developed a specific sequential evaluation process for
determining whether a child claimant is disabled. 20 C.F.R. § 416.924. The three-step
process requires a child to show: (1) that she is not working; (2) that she has a “severe”
impairment or combination of impairments; and (3) that her impairment or combination
of impairments is of listing-level severity, that is, the impairments meet, medically
3

equal, or functionally equal the severity of an impairment in the listings. 20 C.F.R. §
416.924.
If a child claimant is not working and has a severe impairment, the ALJ must
determine if the child’s impairments meet or medically equal an impairment listed in
the listings. 20 C.F.R. § 416.924(a)-(d). An impairment medically equals a listing “if
it is at least equal in severity and duration to the criteria of any listed impairment.” If a
claimant’s impairments do not meet or medically equal a listed impairment, the ALJ
must then determine if the child’s impairments are, instead, functionally equivalent in
severity. 20 C.F.R. §§ 416.924(d), 416.926a(a). For the child’s impairments to
functionally equal a listed impairment, they must result in “marked” limitations in two
domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. §
416.926a(a). The ALJ considers the child’s functioning in terms of six 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 herself;
and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(I)-(vi). If the
impairments do not satisfy the duration requirements, or do not meet, medically equal,
or functionally equal one of the listings in the Regulations, a finding of not disabled is
reached and the claim is denied. See 20 C.F.R. § 416.924(d)(2).
IV. The ALJ’s Decision
In performing the three step analysis, initially, the ALJ determined that the
Claimant had not engaged in any substantial gainful activity since February 25, 2009,
4

the date of her application. (R. 19). Next, in satisfaction of Step Two the ALJ noted
that the Claimant suffers from the severe impairments of “congenital heart disease,
depression, DiGeorge Syndrome, and borderline intelligence.” Id. Finally, at Step
Three, the ALJ concluded that the Claimant’s impairments did not meet, medically
equal, or functionally equal any of the listed impairments and, therefore, found that the
Claimant was not disabled. (R. 20, 28).
V. Analysis
The court now turns to Perry’s contentions that the ALJ erred in (1) rejecting the
opinions of the consultative psychological examiner; (2) failing to consider whether the
Claimant’s impairments medically equaled a listing; and (3) failing to develop the
record. See doc. 11 at 6-10. The court addresses each contention in turn.
A.

The ALJ committed no reversible error in rejecting the opinions of the
consultative psychological examiner.

Perry contends the ALJ erred in rejecting the opinions of Dr. H. Randall
Griffith, Ph.D., a clinical neuropsychologist, who examined the Claimant after her ALJ
hearing at the request of the Commissioner. (R. 338-345). Dr. Griffith described the
Claimant’s past medical history as follows:
DiGeorge syndrome (chromosome 22 deletion associated with
multi-organ abnormality, growth delay, developmental delay, intellectual
impairment, and congenital heart defects, among other abnormalities),
Teratology of Fallot,2 and cleft palate. She underwent several procedures

2

Tetralogy of Fallot is a rare condition caused by a combination of four
heart defects that are present at birth. These defects, which affect the
5

for repair of her heart defects at three weeks of age. [The Claimant] was
reportedly born on time and there were no complications with her birth.
She was described by her mother as being a “blue baby” at three weeks of
age and was acutely ill. She also was experiencing seizures in her sleep
at this age, but has not experienced any such seizures since that time.
Developmental milestones were delayed in her speech, which reportedly
began at age 3. All other developmental milestones were described as
being on time.
(R. 338). In conjunction with his examination, Dr. Griffith completed a form
indicating the Claimant had “marked” impairments in the domains of “Interacting and
Relating with Others” and “Caring for Self.” (R. 343-45). These findings conflict with
the ALJ’s finding of a less than marked limitation in interacting and relating with
others, and no limitation in the ability to care for herself. (R. 25-27).
In assessing Dr. Griffith’s opinions, the ALJ gave Dr. Griffith’s opinions no
weight, in part, because Dr. Griffith “based [them] on a single examination and it is not
apparent that Dr. Griffith had the benefit of the medical evidence of record in making
his determination.”3 (R. 23). The regulations permit an ALJ to reject an opinion from

structure of the heart, cause oxygen-poor blood to flow out of the heart and
into the rest of the body. Infants and children with tetralogy of Fallot
usually have blue-tinged skin because their blood doesn't carry enough
oxygen.
http://www.mayoclinic.org/diseases-conditions/tetralogy-of-fallot/basics/definition/con-2
0043262
3

Plaintiff’s counsel acknowledged that Dr. Griffith did not appear to have access
to much of the relevant evidence when performing his evaluation: “It is not clear what
records if any were provided to [Dr. Griffith] whose assessment was based apparently on
claimant[’s] and her mother’s reports of events and history. He expressly noted the lack
of the most recent evaluation at Children’s Hospital and school records.” (R. 207).
6

a physician who does not have a treating relationship with the claimant.4 See 20 C.F.R.
§ 416.927(c). Moreover, the ALJ also rejected Dr. Griffith’s opinions because they
were inconsistent with Dr. Griffith’s own notes:
In addition, Dr. Griffith’s opinion that the claimant is marked in the
functional equivalence domain of interacting and relating with others is
inconsistent with his own notes from his examination where he reported
the claimant’s social and adaptive functioning were only mildly age
inappropriate in that she has friends with whom she engages in activities.
Id. The ALJ committed no error here because even a treating physician’s opinion may
be rejected if it is inconsistent with the doctor’s own medical records. See Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (good cause exists to reject a treating
physician’s opinion when it is inconsistent with his own medical records).
Based on the court’s review of the record, the ALJ properly applied the
regulations and articulated good cause for rejecting Dr. Griffith’s opinions. Therefore,
substantial evidence supports the ALJ’s decision and there is no reversible error.
B.

The ALJ did not err in finding the Claimant’s impairments did not
medically equal a listing.

Perry next contends the ALJ “did not recite or apply the medical equivalence
standard,” Doc. 8 at 8, and asserts the ALJ should have “considered medical
equivalence on the basis of a chronic condition affecting multiple areas of functioning

4

In addition to considering whether a treating relationship exists, in determining
how much weight to give to each medical opinion, the ALJ must also consider whether
the doctor (1) is a specialist; (2) has examined the claimant; (3) presented medical
evidence and explanation supporting his opinion; and (4) provided an opinion that is
consistent with the record as a whole. 20 C.F.R. § 416.927(c).
7

and body systems, including DiGeorge syndrome.” Id. at 9. Contrary to Perry’s
contention, the ALJ specifically stated that he “evaluated the claimant’s impairments
under the multiple body system listings, 110.00 et seq., cardiovascular system, 104.00
et seq., organic mental disorders, 112.02, and mood disorders, 112.04, and found that
the claimant’s impairments do not meet or equal the criteria of any of the impairments
described [in those listings].” (R. 20) (emphasis added). The ALJ further found that
“there are no opinions in the record from medical experts or any other type of medical
or psychological consultants designated by the Commissioner, which indicate that the
claimant’s impairments alone or in combination equal a listing.” Id. Indeed, one of the
Commissioner’s medical consultants, Dr. Richard Whitney, who is a specialist in
pediatrics,5 reviewed the evidence and concluded the Claimant’s impairments did not
medically equal a listing. (R. 248).
Ultimately, the Claimant bears the burden of presenting medical evidence
showing her impairments equal a listing:
For a claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is “equivalent” to a listed
impairment, he must present medical findings equal in severity to all the
criteria for the one most similar listed impairment.
Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original). Unfortunately,
here, Perry points to no medical evidence or opinion that shows the Claimant’s

5

Dr. Whitney’s specialty code is 32, (R. 249), which signifies he is a specialist in
pediatrics. Program Operations Manual System, DI 26510.090, Sec. D, Code 32,
available at https://secure.ssa.gov/poms.nsf/lnx/0426510090.
8

impairments equal a listing. Therefore, Perry failed to meet her burden of establishing
that the ALJ committed reversible error by finding the Claimant’s impairments did not
equal a listing.
C.

The ALJ did not err in failing to develop the record.

Finally, Perry contends the ALJ erred by failing to develop the record after
rejecting the opinions of Dr. Griffith. Doc. 8 at 8. However, before remanding a case
for further development, a reviewing court must consider “whether the record reveals
evidentiary gaps which result in unfairness or ‘clear prejudice.’” Smith v. Schweiker,
677 F.2d 826, 830 (11th Cir.1982) (quoting Ware v. Schweiker, 651 F.2d 408, 413 (5th
Cir. Unit A July 1981). Consequently, “there must be a showing of prejudice before [a
reviewing court] will remand for further development of the record.” Robinson v.
Astrue, 365 F. App’x 993, 995 (11th Cir. 2010) (unpublished) (citing Brown v. Shalala,
44 F.3d 931, 935 (11th Cir. 1995). Remand is not warranted here because the record
contains extensive treatment notes documenting the Claimant’s impairments, school
records, and a consultative examination by Dr. Decontee Jimmeh, which includes an
opinion as to the Claimant’s physical limitations. (R. 244-47). Moreover, Perry failed
to identify the existence of any evidentiary gaps that prevent the ALJ from making an
informed decision on the Claimant’s application for benefits. To the contrary, the
current record contains sufficient medical and other evidence to allow the ALJ to make
a determination on whether the Claimant was disabled. As such, no additional

9

development was required, see 20 C.F.R. § 416.913(e), and Perry’s contention to the
contrary is unavailing.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
the Claimant is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance with
the memorandum of decision will be entered.
Done the 23rd day of June, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

10