TRC v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 4/30/13. (ASL)

FILED
2013 Apr-30 AM 11:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
T.R.C., through her mother and
next friend, Towana Boyd,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,

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Civil Action Number
2:12-cv-3494-AKK

Defendant.
MEMORANDUM OPINION
Plaintiff Towana Boyd (“Plaintiff”) brings this action on behalf of her
daughter, T.R.C. (“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”). Doc. 1. This
court finds that the Administrative Law Judge’s (“ALJ”) decision - which has
become the decision of the Commissioner - is supported by substantial evidence,
and, therefore, AFFIRMS the decision denying benefits.

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I. Procedural History
Plaintiff protectively filed an application on behalf of her minor child
T.R.C. for the child’s Supplemental Security Income (“SSI”), alleging a disability
onset date of June 23, 2009, due to a learning disability. (R. 130, 134). After the
SSA denied her application, Plaintiff requested a hearing. (R. 65-68, 99-101). At
the hearing on January 26, 2011, the Claimant was 10 years old. (R. 31-62, 120).
The ALJ denied Plaintiff’s claims, which became the final decision of the
Commissioner when the Appeals Council refused to grant review. (R. 1-6, 7-24).
Plaintiff then filed this action 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)
and 1383(c) mandate 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
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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 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 the claimant
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
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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 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 the 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
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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 himself; 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 has not engaged in any substantial gainful activity since her alleged
disability onset date. (R. 13). Next, in satisfaction of Step Two the ALJ noted that
the Claimant suffers from the severe impairments of “borderline intellectual
functioning; learning disorder.” Id. Finally, at Step Three, the ALJ concluded that
the Claimant’s impairments did not meet or medically equal any of the listing
requirements and therefore found that the Claimant was not disabled. (R. 13, 21).
V. Analysis
The court turns now to Plaintiff’s contentions that the ALJ erred by failing
to (1) find that Claimant met Childhood Impairment listing 112.05 for Mental
Retardation, (2) give greater weight to the opinions of Claimant’s treating sources,
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the consultative examiner, and Claimant’s mother, and (3) develop the record by
re-contacting the expert who provided the psychological evaluation and obtaining
an updated IQ test. See doc. 8 at 6-13. The court addresses each contention in
turn.
A.

Alleged failure to determine that Claimant meets the Childhood
Impairment Listing 112.05 for Mental Retardation

Plaintiff’s first contention of error is that the ALJ failed to find that
Claimant met the Childhood Impairment Listing 112.05 for Mental Retardation,
which is “[c]haracterized by significantly subaverage general intellectual
functioning with deficits in adaptive functioning.” See 20 C.F.R. pt. 404, subpt. P,
appx. 1, Part B, 112.05. Specifically, 112.05 states that “[t]he required level of
severity for this disorder is met when the requirements in A, B, C, D, E, or F are
satisfied,” which state:
A. For older infants and toddlers (age 1 to attainment of age 3),
resulting in at least one of the appropriate age-group criteria in
paragraph B1 of 112.02; or, for children (age 3 to attainment of
age 18), resulting in at least two of the appropriate age-group
criteria in paragraph B2 of 112.02; OR
B. Mental incapacity evidenced by dependence upon others for
personal needs (grossly in excess of age-appropriate
dependence) and inability to follow directions such that the use
of standardized measures of intellectual functioning is precluded;
OR

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C. A valid verbal, performance, or full scale IQ of 59 or less; OR
D. A valid verbal, performance, or full scale IQ of 60 through 70
and a physical or other mental impairment imposing an
additional and significant limitation of function; OR
E. A valid verbal, performance, or full scale IQ of 60 through 70
and:
1. For older infants and toddlers (age 1 to attainment of age 3),
resulting in attainment of development or function generally
acquired by children no more than two-thirds of the child's
chronological age in either paragraphs B1a or B1c of 112.02; or
2. For children (age 3 to attainment of age 18), resulting in at
least one of paragraphs B2b or B2c or B2d of 112.02; OR
F. Select the appropriate age group:
1. For older infants and toddlers (age 1 to attainment of age 3),
resulting in attainment of development or function generally
acquired by children no more than two-thirds of the child's
chronological age in paragraph B1b of 112.02, and a physical or
other mental impairment imposing an additional and significant
limitation of function; OR
2. For children (age 3 to attainment of age 18), resulting in the
satisfaction of 112.02B2a, and a physical or other mental
impairment imposing an additional and significant limitation of
function.
See id.
In reviewing these requirements, while Plaintiff did not specify which
specific criteria under listing 112.05 she is contending that Claimant meets, the
evidence shows that Claimant does not satisfy any of these requirements. In
reaching this determination, the court notes that Plaintiff presented no evidence or

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argument that Claimant satisfies listing 112.02 - Organic Mental Disorders which
is associated with 112.05 (A), (E), and (F). Moreover, there is no evidence
Claimant is dependent on others for her personal needs, as required by (B). To the
contrary, the evidence shows that Claimant performs most daily functions
independently, including feeding, dressing, and bathing, and helps with chores
around the house. (R. 140-149). Consequently, Plaintiff presumably relies on
112.05(C) or (D) since she refers to Claimant’s full scale IQ which is also
referenced in those sections. See doc. 8 at 6. However, Claimant’s full scale IQ
was documented in 2009 as 71 and in 2010 as 87, whereas 112.05(C) requires an
IQ of 59 or less and (D) requires an IQ of 60 to 70. See (R. 176, 199, 217). Thus,
Claimant does not meet 112.05(C) or (D).
In short, based on the court’s review of the record as a whole, Claimant does
not meet any of the requirements for Childhood listing 112.05. Moreover,
ultimately Plaintiff has the burden of proving that Claimant is disabled. See 20
C.F.R. § 416.912(c). To the extent Plaintiff claims Claimant is disabled due to
mental retardation as defined under listing 112.05, Plaintiff failed to make that
showing here. In fact, Claimant’s school performed a psychological evaluation on
Claimant in May 2009 to evaluate her eligibility for special education services and
determined that Claimant had a “Specific Learning Disability” but ruled out
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mental retardation as the primary cause of the impairment. (R. 176-77). In other
words, the substantial evidence supports the ALJ’s determination that Claimant
does not meet the requirements for listing 112.05.
B.

Alleged failure to give proper weight to the opinions of
Claimant’s treating sources, the Consultative examiner, and
Claimant’s mother’s testimony

Plaintiff contends next that the ALJ “failed to show good cause why the
opinion[s] of the [Claimant’s] treating sources, the agency’s Consultative
Examiner, and [Claimant’s] mother should not be given substantial or
considerable weight.” Doc. 8 at 6. The court notes that “[i]t is well-established
that ‘the testimony of a treating physician must be given substantial or
considerable weight unless “good cause” is shown to the contrary.’” Crawford v.
Comm’r of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (emphasis
added) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); see
also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, here, the Claimant
had no actual evidence of seeing treating physicians. Instead, the evidence
consists solely from referrals to state examiners through the Claimant’s disability
application, diagnostic testing conducted by a pyschometrist at the request of her
school when she applied for special education services, and a psychological report
and speech/language evaluation conducted by the University of Alabama at
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Birmingham Civitan-Sparks Clinic. See (R. 169-182, 202-203, 215-228). None of
these entities qualify as a treating source under the Act, i.e.,
[a claimant’s] own physician, psychologist, or other acceptable
medical source who provides [the claimant], or has provided [the
claimant], with medical treatment or evaluation and who has, or has
had, an ongoing treatment relationship with [the claimant].
Generally, we will consider that [the claimant has] an ongoing
treatment relationship with an acceptable medical source when the
medical evidence establishes that [the claimant] see[s], or ha[s] seen,
the source with a frequency consistent with accepted medical practice
for the type of treatment and/or evaluation required for your medical
condition(s). We may consider an acceptable medical source who has
treated or evaluated [the claimant] only a few times or only after long
intervals (e.g., twice a year) to be your treating source if the nature
and frequency of the treatment or evaluation is typical for [the
claimant’s] condition(s). We will not consider an acceptable medical
source to be your treating source if [the claimant’s] relationship with
the source is not based on [her] medical need for treatment or
evaluation, but solely on [the claimant’s] need to obtain a report in
support of your claim for disability. In such a case, we will consider
the acceptable medical source to be a nontreating source.
20 C.F.R. § 416.902 (emphasis added). In fact, according to the record, the
Claimant visited each of the medical sources on single occasions. In other words,
there are no “ongoing treatment relationships,” and, as such, none of the medical
sources are entitled to the controlling weight of a treating physician.
However, the medical sources are “acceptable medical sources” who can
provide evidence to establish an impairment. See 20 C.F.R. § 416.913. In fact,
the ALJ reviewed each opinion and provided reasons for the weight he accorded
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each. For instance, the ALJ gave “little weight” to the school psychometrist
Marilyn H. Wisely’s opinion “that the claimant was easily frustrated, had some
trouble with reading comprehension, and noticeable trouble reading and filling out
tests.” (R. 15). According to the ALJ, Wisely’s opinion was inconsistent with her
findings because her “observations and the other evidence of record do not support
Ms. Wisely’s conclusion that, in light of these impediments, the claimant’s test
results nevertheless reflect her actual abilities. As discussed above, the claimant’s
poor scores on diagnostic tests, based on poor effort and easy frustration, negates
the accuracy of these tests and does not show the claimant has a disabling
impairment.” (R. 15). The Act provides that, generally, an ALJ must consider the
opinions of “[l]icensed or certified psychologists[,] [i]nclud[ing] school
psychologists, or other licensed or certified individuals with other titles who
perform the same function as a school psychologist in a school setting, for
purposes of establishing mental retardation, learning disabilities, and borderline
intellectual functioning only.” 20 C.F.R. § 416.913. However, when evidence,
including opinion evidence, is inconsistent, the ALJ has no duty to consider it.
See 20 C.F.R. § 416.920b. Based on the court’s review of the evidence, the court
finds no error in the ALJ’s assessment of Wisely’s opinion.
The ALJ gave the consultative examiner, a licensed psychologist, Dan
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Lowery, Ph.D’s opinion “some weight.” (R. 15). Dr. Lowery performed a
Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV) on Claimant
in August 2009 and determined the following IQ: Claimant’s Verbal
Comprehension Index - 73 - Borderline, Perceptual Reasoning Index - 79 Borderline, Working Memory Index - 62 - MMR, and Processing Speed Index - 83
- Low Average. (R. 199-200). While Plaintiff argues that the ALJ should have
given Dr. Lowery’s evaluation results greater weight, the ALJ noted correctly that
Dr. Lowery found that “the claimant put marginal effort into taking the test and
found the claimant’s results likely underestimated her intellectual function.” (R.
14, 199-200). However, the ALJ gave Dr. Lowery’s opinion some weight since it
supported that Claimant does not have a marked impairment in any functional
domain. (R. 14).
Generally, when considering an examining, non-treating medical opinion,
“[t]he more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for an opinion, the more
weight we will give that opinion.” 20 C.F.R. § 404.1527(c)(3). Additionally, “the
more consistent an opinion is with the record as a whole, the more weight we will
give to that opinion.” Id. at § 404.1527(c)(4). Based on the court’s review of the
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record, the court finds no error in the ALJ’s assessment of Dr. Lowery’s findings.
In fact, given Dr. Lowery’s findings and opinion that “Claimant put marginal
effort into taking the test,” the court is confounded by Plaintiff’s contention that
giving Dr. Lowery’s opinion greater weight would help her. After all, giving Dr.
Lowery’s finding more weight would result in a conclusion that Claimant’s IQ
scores “underestimated her intellectual function,” i.e., that Claimant is more
intelligent than her scores showed.
The rest of the record also does not help Plaintiff’s contentions. For
example, state examiner, Dr. Robert Estock, M.D. reviewed Claimant’s records in
September 2009 and opined that Claimant is not disabled and that she has no
marked impairments in any domain of function. (R. 202-08). Dr. Estock noted
that Claimant had “[n]o problems paying attention or sticking to a task...no
problems talking clearly..no communication problems [...though Claimant’s]
ability to learn is limited,” that Claimant’s “mother reports no problems with
behavior or attention,” and that Claimant’s “WISC scores which are considered
invalid fell within the low average to borderline range of IF.” (R. 207). The ALJ
gave Dr. Estock’s opinion the “greatest weight” finding that “his medical opinions
are well-supported by the evidence of record, are based on [his] full access to the
claimant’s medical record, and reflects his experience providing medical opinions
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in the context of disability review.” (R. 15). The court finds no error in the ALJ’s
assessment of Dr. Estock’s findings.
Perhaps because of the lack of medical evidence in favor of her claim,
Plaintiff also contends that the ALJ erred by giving “very little weight to [the
Claimant’s mother’s] testimony.” Doc. 8 at 9. According to Plaintiff, the ALJ
“fail[ed] to note any specific inconsistency between the mother’s testimony,
[Claimant’s] testimony, [Claimant’s] school records, [Claimant’s] own treating
sources and the report of the Consultative Examiner.” Id. The court disagrees
because the ALJ gave the Claimant’s mother’s testimony “some weight.” (R. 15).
Moreover, a child’s mother is clearly not an “acceptable medical source” as
defined in 20 C.F.R. § 416.913(a), and, thus, is not entitled to the automatic
substantial or considerable weight given to treating physicians or the weight given
to other medical professionals. See SSR 06-03p. Instead, a claimant’s mother is
categorized as “other non-medical source” that the ALJ “may also use...to show
the severity of [the claimant’s] impairments(s) and how it affects [the claimant’s
ability to work, or if [the claimant is] a child, how [the claimant] typically
function[s] compared to children [his] age who do not have impairments.” 20
C.F.R. § 416.913(d)(4) (emphasis added). Significantly, a mother’s testimony,
along with other non-medical sources, cannot establish the existence of a
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medically determinable impairment, but may only provide insight into the severity
of a claimant’s impairment or how it affects his ability to function. See SSR 0603p; 20 C.F.R. §§ 416.913(d) and 404.1513(d).
After reviewing the evidence, the ALJ determined that “[t]he allegations of
the claimant’s mother are generally credible, but do not prove that the claimant has
a marked limitation in any of the domains of functioning.” (R. 15). For instance,
regarding the “acquiring and using information” domain, the ALJ found that “[t]he
claimant’s mother stated the claimant has problems learning and receives
additional help in school. At the hearing, the claimant stated she received
additional help but does not have any trouble in school. . . I also find the testimony
of the claimant and her mother support my finding and Dr. Estock’s opinion that
the claimant’s impairment in this area is less than marked.” (R. 16). The ALJ
made similar findings regarding the claimant’s mother’s testimony in each of the
other domains. See (R. 17-20). Accordingly, it is clear the ALJ reviewed and
considered the claimant’s mother’s testimony and found that it did not support the
Claimant’s contention that she had a disabling impairment.
Having reviewed the entire record, the court finds no error with the weight
the ALJ gave to the various opinions. Moreover, Plaintiff failed to show how
giving a greater weight to any of the opinions would have changed the ultimate
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result. Therefore, the substantial evidence supports the ALJ’s determinations
regarding the weights given to the opinions.
C.

Alleged failure to fully develop the record by re-contacting the
expert who provided the psychological evaluation and obtaining
an updated IQ test

Plaintiff’s last contention of error is based on her claim that the ALJ erred
by “failing to fully develop the record by seeking further medical review,” “recontact[ing] the expert who provided the Psychological Evaluation for any
question(s) regarding the validity of the IQ score,” “hav[ing] a Medical Examiner
provide testimony at the hearing,” and obtaining an updated IQ test. Doc. 8 at 1013. Generally, an ALJ has “a basic obligation to develop a full and fair record.”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). However, the ALJ is
not obligated to automatically obtain testimony from a medical expert. Rather, the
ALJ “may ask for and consider the opinion of a medical . . . expert concerning
whether ...[a claimant’s] impairment(s) could reasonably be expected to produce
[his or her] alleged symptoms.” 20 C.F.R. § 404.1529 (emphasis added).
Critically, the ALJ is not required to order additional medical opinion when, as
here, the record contains sufficient evidence for the ALJ to make a disability
determination. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir.
2007) (citation omitted). Indeed, the ALJ considered the Claimant’s entire record,
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as discussed supra, to reach a finding that Claimaint is not disabled. Moreover,
based on this court’s review of the record, the ALJ committed no error by failing
to obtain another IQ test since the record contained two recent tests and there was
no indication that another test would return a different result.
The ALJ also committed no error by failing to re-contact the experts that
facilitated the psychological evaluations and IQ tests. The ALJ is only obligated
to obtain a clarification when a consultative physician’s report is “inadequate or
incomplete” such that the ALJ cannot make an informed decision regarding
whether a claimant is disabled. See Davison v. Astrue, 370 Fed.App’x 995, 997
(11th Cir. 2010); Vesty v. Astrue, 353 Fed.App’x 219, 225 (11th Cir. 2009); 20
C.F.R. § 416.919p(a)-(b). In such a case, the ALJ must attempt to develop the
record further by contacting the treating physician to determine whether the
required information is available. See id. Again, here, there was no indication the
ALJ needed clarification or that the consultative examiner’s report was inadequate
or incomplete. As such, the court finds no error. The findings the ALJ made
concerning his evaluation of the medical reports were sufficiently extensive for the
ALJ to make a determination that Claimant is not disabled. Finally, there is no
requirement that the ALJ have a medical examiner testify at the disability hearing.
See generally, 20 C.F.R. § 416.101 et seq. Therefore, the ALJ committed no error
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by failing to include such testimony.
In the final analysis, Plaintiff failed to show how obtaining additional
medical expert testimony, a new IQ test, or re-contacting the experts would have
aided the ALJ to make an informed decision, and how the purported failure to
develop the record prejudiced the Claimant. See 20 C.F.R. § 416.912(c).
Therefore, the substantial evidence supports the ALJ’s determination that
Claimant is not disabled.
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 30th day of April, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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