Kelly v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 3/31/2014. (KAM, )
2014 Mar-31 AM 09:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
VERA KELLY, O/B/O U.L.F.C.,
CAROLYN W. COLVIN,
CIVIL ACTION NO.
On October 5, 2009, the claimant’s mother, Vera Kelly, applied for supplemental security
income on behalf of the claimant, a child under the age of eighteen, under Titles XVI of the
Social Security Act, alleging disability commencing on October 5, 2009. (R. 68, 117-19). The
Commissioner denied these claims initially on January 4, 2010. (R. 68-74).
The claimant timely filed a request for a hearing before an Administrative Law Judge, and
the ALJ held the hearing on March 5, 2010. (R. 75). In an opinion dated March 22, 2011, the
ALJ found that the claimant was ineligible for supplement security income benefits. (R. 21-34).
The Appeals Council subsequently denied the claimant’s request for review on August 17, 2012,
and the ALJ’s decision became the final decision of the Commissioner of the Social Security
Administration. (R. 1-5). As the claimant has exhausted her administrative remedies, this court
has jurisdiction pursuant to 42 U.S.C. §§ 1383(c)(3).
For the following reasons, the court reverses and remands the decision of the
II. ISSUES PRESENTED
Whether the ALJ failed to give the opinion of the claimant’s treating psychiatrist, Dr.
Elrefai, proper weight, when the ALJ gave Dr. Elrefai’s opinion little weight, but gave substantial
weight to the opinion of the consultative psychiatrist, Dr. Estock, dated two months before Dr.
Elrefai began treating the claimant.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham
v. Apfel, 129 F.3d 1420 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. But this court does not review the Commissioner’s factual determinations de novo.
The court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
The court must keep in mind that opinions, such as whether a claimant is disabled, are
“opinions on issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e, that would direct the determination or decision of disability.” 20
C.F.R. § 416.927(d). Whether the claimant meets the listing and is qualified for Social Security
disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the
ALJ about the significance of certain facts, the court has no power to reverse that finding as long
as substantial evidence in the record supports the finding.
This court must “scrutinize the record in its entirety to determine the reasonableness of
the [Commissioner’s] factual findings.” Walker, 826 F.2d at 999. A reviewing court must look
not only to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take into account evidence that detracts from the evidence on which the
ALJ relied. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
The Social Security Administration has established a three-step sequential evaluation
process to determine if an individual under the age of 18 is disabled. 20 C.F.R. § 416.924(a). At
step one, the ALJ must determine if the child is engaged in substantial gainful activity. If the
child is not engaged in substantial gainful activity, the ALJ then determines whether the child
suffers from a severe impairment or combination of impairments that cause more than minimal
functional limitations. Id. at § 416.924(a) & (c). If the child suffers from a severe impairment or
combination of impairments that has lasted or is expected to continue for a continuous period of
at least 12 months, then the ALJ must determine whether the child’s impairments meet,
medically equal, or functionally equal an impairment listed under Appendix I to Subpart P of Part
404. Id. at § 416.924(a).
Functional equivalence is dependent on the child’s impairments or combination of
impairments resulting in marked limitations in two broad categories of functioning or extreme
limitation in one broad category of functioning. 20 C.F.R. § 416.926a(a). A “marked” limitation
is one that is “more than moderate” but “less than extreme.” Id. at § 416.926a(e)(2)(I). The
Regulations list six broad areas of functioning: (1) acquiring and using information; (2) attending
and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating
objects; (4) caring for yourself; and (6) health and physical well-being. Id. at § 416.926a(b)(1)(ivi).
For attending and completing tasks, the ALJ should consider the claimant’s “ability to
filter out distractions and to remain focused on an activity or task at a consistent level of
performance.” Id. at § 416.926a(h)(1)(i)-(ii). The ALJ should also determine the claimant’s
ability to “look ahead and predict the possible outcomes of [her] actions before [she] acts.” Id.
As part of determining the claimant’s ability to attend and complete tasks, the ALJ should
consider whether the claimant is “unduly distracted by [her] peers or unduly distracting to them
in a school or work setting.” Id. The ALJ should determine the frequency at which the claimant
interrupts others. Id. at § 416.926a(h)(3)(iii).
For the domain of “caring for yourself,” the ALJ should consider a claimant’s ability to
show “consistent judgment about the consequences of caring for [herself],” and a claimant’s
ability to employ “effective coping strategies . . . to identify and regulate [her] feelings, thoughts,
urges, and intentions.” Id. § 416.926a(k)(1)(i)-(iv). In determining whether the claimant has a
marked limitation in this domain, the ALJ should consider whether the claimant follows safety
rules; whether she responds to her “circumstances in safe and appropriate ways”; and whether
she makes “decisions that do not endanger [herself] . . . .” Id. The ALJ should determine if her
impairment results in the claimant “engag[ing] in self-injurious behavior (e.g., suicidal thoughts
or actions . . .), or ignor[ing] safety rules.” Id. § 416.926a(k)(3)(iv).
Regarding an ALJ’s discrediting of a treating psychiatrist, the ALJ must state with
particularity the weight given different medical opinions and the reasons therefor, and the failure
to do so is reversible error. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987); see also
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). Absent a showing of good cause to
the contrary, the ALJ must accord substantial or considerable weight to the opinions of treating
physicians. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). The ALJ must credit the
opinions of treating physicians over those of consulting physicians unless good cause exists for
treating the opinions differently. Lewis v. Callahan, 125 F.3d 1436, 1440-41 (11th Cir. 1997). An
ALJ must give more weight to a treating physician because this source is “likely to be the
medical professional most able to provide a detailed, longitudinal picture of [the claimant’s]
medical impairment(s) and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations . . . .” 20 C.F.R. § 404.1527(c)(2). Generally,
the longer a treating source has treated the claimant, the more weight an ALJ should give that
source’s opinion. Id. at § 404.1527(c)(2)(i).
The ALJ may discount a treating physician's report when it is not accompanied by
objective medical evidence or is wholly conclusory. Crawford v. Commissioner, 363 F.3d at
1159. Where the ALJ articulated specific reasons for failing to give the opinion of a treating
physician controlling weight but those reasons are not supported by substantial evidence, the ALJ
commits reversible error. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
The claimant was a fourteen-year-old female at the time of the administrative hearing and
was in the eighth grade. (R. 24, 50). The claimant alleges disability beginning October 5, 2009
because of attention deficit hyperactivity disorder (ADHD); oppositional defiant disorder (ODD);
schizophrenia with psychosis; and obesity.
On April 26, 2004, the claimant’s pediatrician, Dr. Susanne S. Matthews, diagnosed the
claimant with Attention Deficit Disorder with Hyperactivity. (R. 226). On May 2, 2007, during
an annual exam with Dr. Matthews, she noted that the claimant had psychological problems,
including anger, fighting, and pulling hair. (R. 220).
During 2008 and 2009, the record contains numerous school discipline records for the
following dates: September 11, 2008; November 20; 2008; January 29, 2009, August 19, 2009;
September 9 & 22, 2009; October 6, 2009; November 2 & 3, 2009; and December 8, 2009. The
claimant committed numerous disciplinary infractions on these dates, including skipping classes;
showing defiance toward teachers; refusing to follow directions in class; encouraging fighting
with disruptive behavior towards other students; fighting with other students; disrupting others
students by repeating every word of the teacher; disrupting the class by shouting across the room;
interrupting the “instructional process”; bullying another student by knocking his property to the
ground and threatening him; displaying a “pattern of intimidation and threats” toward other
students; kicking a broom that hit a teacher; and refusing to do work. (R. 191-206).
On February 13, 2008, the claimant began treatment with Dr. Arnold Mindingall, a
licensed psychologist with Child & Adolescent Associates, P.C. because she was experiencing
difficulties academically and behaviorally. The record shows that Dr. Mindingall treated the
claimant on twenty-two occasions from February 13, 2008 through April 28, 2010. (R. 293-306).
Although his treatment notes contained in the record are extremely difficult to decipher based on
illegible handwriting, his letters to the claimant’s pediatrician, Dr. Matthews, dated April 4, 2008
and November 21, 2008, reveal that his initial diagnosis of the claimant included ADHD and
ODD. He indicated that the claimant was a “candidate for medical intervention directed at her
difficulties with attention, focus and impulsivity,” and that she should continue family and
individual counseling “focusing on her issues with oppositionality and disruptive conduct.” He
also noted that he had prescribed her 18 mg of Concerta, but indicated that she may need an
increase. (R. 307-308).
The claimant’s mother completed a “Function Report—Child Age 12 to 18th Birthday”
on October 22, 2009 at the request of the Social Security Administration. In the report, the
claimant’s mother indicated that the claimant does go to school full-time, but that “she has
behavior problems and is not allowed [to] do a lot of things at school or home”; that she has
limitations in understanding, carrying out, and remembering simple instructions; that she has
problems making friends and getting along with others; and that she has limitations in her ability
to pay attention and stick with a task, including her failure to complete homework and chores. (R.
On November 12, 2009, the claimant’s mother completed another “Function Report” for
the claimant, indicating that the claimant “can’t complete a sentence”; that she has poor verbal
communication; that she cannot spell many words; and that she takes extra classes at school to
help her with her words. She also stated that the claimant goes to tutoring; has no friends and is a
loner; has problems reading and understanding what she reads; has problems adding,
subtracting, multiplying, and dividing numbers over 10; and has trouble with simple instructions.
According to the claimant’s mother, the claimant “is put out of class, cause she gives up on the
lessons”; gets angry and frustrated easily; and has to be told over and over again to do something.
Dr. Dan Lowery, a licensed psychologist, performed a mental examination of the claimant
on January 4, 2010 at the request of the Disability Determination Services. Dr. Lowery indicated
that he based his report on information provided by the claimant and her mother and recounted
what they had told him about the claimant’s history, including her defiant and oppositional
behavior towards her mother, siblings, teachers, and peers. He stated that he considered this
information reliable. (R. 240-241).
Based on his personal evaluation of the claimant on that date, Dr. Lowery indicated that
she was neatly groomed; was attentive, cooperative, and showed no signs of hyperactivity during
the interview, but noted that she had taken her Concerta before the interview; demonstrated
average to below average interpersonal skills; had mostly restricted affect; had a stable mood;
displayed normal speech; and had mostly intact concentration. He also stated that the claimant
correctly answered a simple change-making question; could perform basic math problems (i.e.,
2+3, 3+4, 10-2); could count backwards from 20 to 1; could repeat five digits forward and three
backwards; had normal recent and remote memory; incorrectly answered that a year has 12
weeks; and had logical, coherent thought processes with no “tangential thinking, loose
associations, confusion, or flight of ideas.” (R. 241-242).
Regarding the claimant’s thought content, Dr. Lowery noted that the claimant reported
that she feels suicidal when angry; that she reported “hearing voices that tell her to do ‘bad
things’ to other people and herself”; that the voices tell her to “cut herself, choke herself, and cut
others with a knife”; and that she reports experiencing visual hallucinations. He also stated that
the claimant indicated that she does not trust anyone; “believes that her mother attempts to
poison her food”; and is paranoid and checks to be sure the doors are locked because she hears
“‘people on the side of the house.’” In terms of judgment and insight, Dr. Lowery noted that the
claimant has “below average insight related to her condition and future” and below average
judgment. In his prognosis section of the report, Dr. Lowery indicated that he believes that “her
paranoia and impaired state of reality is mostly responsible for her defiance and oppositional
behaviors.” (R. 242-243).
On January 4, 2010, Dr. Robert Estock, a consulting psychiatrist, assessed the claimant’s
records at the request of the Social Security Administration. He indicated that he suspected that
the claimant suffered from schizophrenia, paranoid type and ODD, but ruled out ADHD. He
found that the claimant’s impairments were severe, but that she did not meet, medically equal, or
functionally equal a Listing. He noted many of Dr. Lowery’s findings, including that the
claimant did not initiate conversation; showed average to below average interpersonal skills; had
mostly restrictive affect; had stable mood, normal speech, intact concentration and attention, and
normal memory; indicated that she felt suicidal when angry and hears voices; reported that her
mother “tries to poison her food”; and has below average judgment. Dr. Estock gave significant
weight to Dr. Lowery’s findings and found the sources of his information credible. Based on his
review of all the evidence before him, Dr. Estock concluded that the claimant had a marked
limitation in the area of interacting and relating to others; less than marked limitations in
acquiring and using information and attending and completing tasks; and no limitations in
moving about and manipulating objects, caring for herself, and health and physical well-being.
Because of the claimant’s disruptive behavior in school, she attended alternative school
from January 20 to February 17, 2010 for repeated incidents of fighting, showing disrespect to
others, and continually disrupting the class. The discipline note indicated that the school had
previously tried methods of discipline to no avail, such as referral to the counselor, detention,
referral to the Building Based Student Support Team, parent conferences, and suspensions. (R.
On March 18, 2010, Nyshetia Chapman, a licensed graduate social worker, at Western
Mental Health Center, completed a “Children’s Intake and Psychosocial Assessment” of the
claimant at the request of Dr. Lowery. Ms. Chapman indicated that Dr. Lowery made the referral
because he “feels that the diagnosis [the claimant] received from her current psychologist [Dr.
Mindingall] at Child & Adolescent Associates, P.C. is incorrect.” Ms. Chapman reported that
because Dr. Lowery felt that the most appropriate diagnosis for the claimant was Paranoid
Schizophrenia, he referred her to Western Mental Health Center for a psychiatric evaluation and
treatment. (R. 265).
In her assessment, Ms. Chapman reported the claimant’s family history of mental illness,
including the claimant’s older sister who had two imaginary friends in the 11th grade and
attempted suicide, and her paternal grandmother with a diagnosis of Paranoid Schizophrenia.
The claimant indicated to Ms. Chapman that she had suicidal and homicidal thoughts; that when
she is angry and alone, she hears a female voice that tells her to harm herself and/or others; that
the last time she was mad, the voice told her to take her mother’s heart medication and kill
herself; that she and her sister were arguing in the car and the voices told the claimant to “make
them crash so that her sister would die”; and that she does not “follow through” with what the
voices tell her to do. Ms. Chapman also noted that the claimant likes to talk on the phone and
listen to music. Ms. Chapman indicated that she would refer the claimant to Dr. Alaa Elrefai for
a psychiatric assessment. (R. 265-270).
On April 28, 2010, Dr. Elrefai began treating the claimaint for her psychiatric condition.
In her initial psychiatric assessment, Dr. Elrefai recounted the claimant’s history of problems in
school, including over “200 suspensions since kindergarten”, defiance toward teachers, and
paranoia about others talking about her at school. She also noted that the claimant reports
hearing voices “when upset, sad or emotional.” Dr. Elrefai also recounted the claimant’s past
treatment with Dr. Mindingall and Dr. Lowery. (R. 259).
During the assessment, Dr. Elrefai noted that the claimant “sat quietly and rocked slightly
in her seat”; had minimal verbal interaction; had flat mood; reported that she hears voices that
say different things to her each time that affects her perception; had goal-directed thought; was
mildly inattentive; was fully oriented “except for the situation”; had fair concentration; had
clinically low average intelligence; and possessed poor judgment and insight. Dr. Elrefai assessed
that the claimant presented with symptoms indicative of psychosis, “most likely schizophrenia.”
She noted that the claimant has reported homicidal and suicidal ideations and has “chronic
symptoms that interfere with her reality perception.” Dr. Elrefai assigned the claimant a GAF
score of 20; indicated that she would need treatment with the child & adolescent team at Western
Mental Health until at least the age of 18; and prescribed Invega for her psychosis. (R. 260-264).
Immediately before and after her initial assessment with Dr. Elrefai, the claimant
continued to have serious issues in the school setting. Between April 8 and May 21, 2010, she
had five incidents of school discipline for “consistently screaming and talking loud in class”;
using profanity in the classroom; repeated incidents of skipping classes; refusal to attend
Saturday school; defiance and disrespectful behavior toward teachers; and throwing food in the
lunchroom. (R. 179-184).
On May 14, 2010, the claimant sought treatment again with Dr. Elrefai, who noted that
the claimant had chronic symptoms of a psychotic illness. Dr. Elrefai also indicated again a GAF
score of 20, showing that the claimant has “some danger of hurting herself, plan & means . . . or
some danger of hurting others, often violent, physical aggression without clear risk of serious
injury. . . or incapable of work or friendship.” (R. 256). In her notes, Dr. Elrefai noted that the
claimant had command and commentary auditory hallucinations; persecutory delusions;
irritability; regressed self-care; sleep problems; social withdrawal/dysfunction; and
educational/cognitive dysfunction. The goals established in the claimant’s treatment plan
included controlling hallucinations and delusions; normalizing social functioning; and
controlling violence and hostility; attending weekly individual counseling sessions; family
counseling monthly; and monthly medication monitoring. (R. 255-258).
The claimant saw Dr. Elrefai again on June 2, 2010 for a one-month follow-up. Her
notes indicated that the claimant started the Invega only one week prior to this visit, and that he
stressed the importance to the claimant’s mother of the claimant taking her medication correctly.
The claimant indicated no change in her condition. (R. 254).
When the claimant visited Dr. Elrefai on July 7, 2010 for her follow-up, the claimant’s
mother indicated that the claimant had improved some; that she does not talk to herself; gets
along better with others; was sleeping better; but still puts her hands on her ears. (R. 253). On
August 9, 2010, Cynthia Hood, the licensed counselor social worker in Dr. Elrefai’s office,
indicated that the claimant was making progress toward her objectives, but that she needed
continued participation in her treatment. (R. 258).
On September 10, 2010, after almost six months of treating the claimant for her
psychosis, Dr. Elrefai completed a Supplemental Questionnaire at the request of the claimant’s
attorney “to amplify” her medical records. On the questionnaire, Dr. Elrefai indicated that the
claimant had “marked” limitations in the following areas: ability to understand, carry out, and
remember simple instructions; ability to maintain attention for extended periods of time; ability
to use appropriate judgment; ability to make simple decisions; and ability to take necessary safety
precautions. She found that the claimant had “moderate” limitations in her ability to respond
appropriately to supervision and peers and ability to deal with changes in a school or work
routine. In the comments section of the questionnaire, Dr. Elrefai indicated that the claimant is
“psychotic, experience[s] auditory/visual hallucinations and paranoid ideas” and is “chronically
mentally ill.” (R. 272-273).
On October 6, 2010, the claimant saw Dr. Elrefai for a follow-up. Dr. Elrefai indicated
that she was compliant with her medication but was still hearing voices telling her to do things,
but was not acting on them. She also reported to Dr. Elrefai that she has “trouble going to sleep
at night.” The claimant’s mother indicated that “she’s not reacting like she used to” but that she
was still hearing the voices. Dr. Elrefai increased her Invega dosage from 6mg to 9mg, although
the claimant reported “slight sedation” as a side effect of the medication and prescribed 1mg of
Cogentin to help with the side effects. (R. 289).
The claimant’s mother called Dr. Elrefai’s office on October 12, 2014, indicating that the
pharmacy needed an “override” to increase the Invega from 6mg to 9mg. During the call, her
mother noted that the claimant has “more good days than bad.”
Dr. Elrefai treated the claimant again on December 1, 2010, and the claimant reported
that she continued to hear voices although she had been compliant with her medication. His
notes indicate that the claimant was attending anger management classes at school and continued
to take 9mg of Invega and 1mg of Cogentin.
After June 2010, when the claimant began to show slight improvement with her
medications, she continued to have serious issues with her behavior at school. The record
contains no school disciplinary notices for June, July, or August of 2010 because of the summer
break. However, beginning on September 1, 2010 and continuing until February 13, 2011, the
record contains six disciplinary notices for “consistently blurting out and making tappy noises in
class”; interrupting class with outbursts; disrupting other students; walking out of class without
permission; fighting; throwing a desk and chair down; engaging in a food fight, and disrespecting
staff and using profanity. (R. 172-178).
The ALJ Hearing
After the ALJ denied the claimant disability benefits, the claimant timely filed a request
for a hearing; the ALJ held a hearing on February 28, 2011. The claimant’s mother testified first,
and indicated that the claimant was in eighth grade, making D’s and C’s, with no special
education classes. She stated that Dr. Elrefai had treated the claimant for almost a year at the
time of the hearing and that the claimant sees Dr. Elrefai and the counselor monthly. (R. 50-51).
The claimant’s mother testified that the claimant’s current medications do help, but that
she still has delusions or hallucinations, but not as much as before the medications. She
explained that the claimant is violent toward her sister and wanting to kill her “because her friend
[told] her to do so.” She stated that the claimant’s “friend” does not exist, but is known by the
name “Kim.” According to the claimant’s mother, “Kim” has told the claimant to cut stuff up
and knock down a Playstation. Her mother indicated that the claimant had not had a bad incident
in about three months, but that her misconduct had started again at school. (R. 52-53).
When asked about her activities, the claimant’s mother testified that the claimant
sometimes goes to the movies, and sometimes shops with her mom. She also stated that the
claimant has to clean her room and wash dishes, but does not complete those tasks with typical
reminders. (R. 56-57, 65).
When asked about how the claimant reacts to situations, her mother indicated that she
overreacts. She also stated that the claimant has difficulty maintaining friendships over time; that
she does homework but that she has to stay on her to do so; that she has difficulty concentrating
and gets to the point where “she’s not functional, that she won’t go to school, that she won’t do
anything”; that she still has behavior problems in school; and that despite the medication, the
claimant is still having “pretty severe problems.” (R. 54-56).
The claimant also testified at the hearing and indicated that she does not like most of her
teachers because they are mean, and she feels “a bad vibe with them.” She stated that her
teachers just do not like her. She also testified that she does not have many friends because she
does not trust any of them and worries about “backstabbing.” She said that when she gets really
angry, she fights at school. (R. 59-60).
She indicated that she talks to a friend named “Kim” that no one else can see, and that
Kim is with her “all the time.” She described Kim as “really short,” overweight, with long, curly
hair and “brown skinned.” The claimant testified that Kim talks to her and tells her to do things;
she stated that “the last time [she] could remember she told [her] to try to stab [her] sister
because [they] were fighting.” When asked by her attorney if she knew that she should not do
those things, the claimant responded “I try.” (R. 61-62, 63-64).
She stated that she has no hobbies and that nothing makes her really happy. She said she
wanted to be a pediatrician, but that her sixth grade teacher told her that “dump people don’t be
pediatricians.” She testified that she takes PE every day at school. (R. 62, 65).
The ALJ’s Decision
On March 22, 2011, the ALJ found that the claimant was not eligible for disability
benefits. The ALJ found that under the three-part analysis for determining child disability status,
the claimant had not engaged in substantial gainful activity since October 5, 2009. The ALJ also
found that the claimant suffered from the severe impairments of ADHD, ODD, psychosis not
otherwise specified, and obesity. However, he concluded that the claimant did not have an
impairment or combination of impairments that meets or medically equals a listing. (R. 21-24).
In assessing whether the claimant met a listing under §§ 112.03 or 112.11, the ALJ found
that she had a marked impairment in age-appropriate social functioning, but that she did not have
a marked limitation in any other category to meet the listing. Specifically, the ALJ found that the
claimant had no marked limitations in the following areas: (1) cognitive/communicative function
because her mother testified she had no problems seeing, hearing, or communicating and her
school testing showed she was average academically; (2) personal functioning because her
mother stated that she has no limitations in her ability to care for her personal needs or safety and
a January 2010 consultative examination indicated she had good hygiene and neatly groomed
hair; and (3) concentration, persistence, or pace because a January 2010 consultative exam noted
that her “concentration and attention were mostly intact” and she could “complete serial sevens,
perform basic arithmetic, and count backwards from twenty.” (R. 24). As such, the ALJ
concluded that the claimant’s ADHD and psychosis did not meet or medially equal a listing
under §§ 112.03 or 112.11.
Next, the ALJ addressed whether the claimant’s severe impairments, either singly or in
combination, met a listing under “paragraph B” of listing § 12.03. The ALJ found that the
claimant has marked difficulties in maintaining social functioning. However, he found that the
claimant only had moderate limitations regarding concentration, persistence, and pace. The ALJ
explained that the claimant’s mother indicates that she does not complete her homework; does
not finish what she starts; and is unable to understand, carry out, and remember simple
instructions. However ALJ stated that “clinically, the claimant’s concentration and attention are
mostly intact and her memory is normal.” (R. 25). The ALJ also found that the claimant had
mild limitations in activities of daily living because she attends school full-time; reports no
difficulty in taking personal care of herself; attends an after-school program each day; enjoys
watching television, talking on phone, playing video games, and going to the movies; and is
responsible for cleaning her room and washing dishes. The ALJ indicated that the record
contained no evidence of any episodes of decompensation of extended duration. As such, he
concluded the claimant did not meet a listing under “paragraph B” because she did not have two
marked limitations or one marked and repeated episodes of decompensation of extended
durations. (R. 25).
The ALJ then assessed that the claimant did not meet a listing under “paragraph C”
because the record contains no evidence of decompensation, or that a minimal increase in mental
demands or change in environment would cause episodes of decompensation. The ALJ noted
that the claimant attends school full-time and has changed schools with no decompensation. (R.
After finding that the claimant did not have a severe impairment that meets or medically
equals a listing, he next discussed whether her impairments functionally equal a listing. The ALJ
discussed all six domains of limitations and found that the claimant had a marked limitation only
in the domain of interacting and relating with others, and, thus, did not functionally meet a
listing. (R. 31, 33). In discussing the other five domains, the ALJ found that the claimant had a
less than marked limitation in acquiring and using information because she attends school fulltime with some behavioral difficulties; has average scores in standardized testing; can read and
understand stories; can do basic math; make correct change; can tell time; can count backwards
from twenty; and can spell “world” backwards. (R. 29).
In the attending and completing tasks domain, the ALJ found that the claimant had a less
than marked limitation in this category. The ALJ did acknowledge that the claimant’s mother
reported that the claimant does not complete household chores and does not complete homework.
However, the ALJ pointed to Dr. Lowery’s consultative exam notes indicating that the claimant
had mostly intact concentration and attention; logical and coherent thought process; and showed
no signs of tangential thinking, loose associations, confusion, or flight of ideas. The ALJ also
noted Dr. Elrefai’s evaluation indicating that the claimant had fair concentration and was only
“mildly inattentive.” (R. 30).
The ALJ concluded that the claimant had no limitation in the moving about and
manipulating objects domain. The ALJ reasoned that the record contained no evidence that the
claimant has any limitation in this area and noted that she participates in physical education and
band. (R. 32).
In the caring for yourself domain, the ALJ found that the claimant has no limitation in
this area and pointed to the October 2009 Function Report in which the claimant’s mother stated
that she “is not limited in her ability to care for her personal needs or her safety.” The ALJ also
noted medical providers’ notes that indicate the claimant was “neatly groomed with good
hygiene.” (R. 33).
In the last domain, the ALJ found that the claimant has no limitation in health and
physical well-being, explaining that, although the claimant is “mildly obese,” no evidence exists
in the record to show her obesity limits her health or well-being. The ALJ also indicated that the
record “contains no evidence that the claimant’s mental impairments cause difficulties in this
area.” (R. 33).
The ALJ also stated that the “evidence of record partially supports” the claimant’s
allegations that her impairments cause symptoms “such as difficulty getting along with others,
hallucinations, paranoia, depressed mood, and fatigue.” The ALJ discussed at length the medical
evidence in the record indicating that the claimant’s symptoms have improved, including Dr.
Lowery’s January 2010 assessment indicating the claimant showed no signs of hyperactivity,
stable mood, and logical thought process; Dr. Elrafai’s statements that the claimant “was getting
along better with others,” was not talking to herself anymore, and was sleeping better; and her
mother’s statements to Dr. Elrefai and testimony at the hearing that “medications have
significantly improved the claimant’s behavior.” The ALJ also noted that the claimant has
received only conservative treatment for her impairments, including medication, anger
management group counseling, and individual counseling, but no hospitalization. (R. 27).
The ALJ discussed her impressions of the claimant at the hearing and indicated that she
“did not appear to be psychotic at the hearing. In fact, although she appeared somewhat
withdrawn and sullen, [she] answered all questions in a clear, logical, and coherent manner. As
such, she did not appear to be markedly different than a typical fourteen year-old-child.” (R. 28).
In assessing the weight to give the medical opinions in the record, the ALJ gave
“significant weight” to Dr. Estock’s January 2010 consultative mental assessment of the claimant
indicting that the claimant had marked limitations in interacting and relating to others, but no
limitations in any other area. The ALJ explained that Dr. Estock’s findings “are well supported
by the record as a whole, particularly in light of the claimant’s apparent improvement on
medications.” (R. 28).
The ALJ gave “little weight” to the treating psychiatrist Dr. Elrefai’s opinion that the
claimant has marked limitations in areas such as using appropriate judgment, understanding and
carrying out simple instructions, and taking necessary safety precautions. The ALJ stated that
Dr. Elrefai’s opinion is not support by the objective medical evidence, particularly her own notes
that indicate that the claimant “significantly improved” with the use of medications. The ALJ
indicated that Dr. Elrefai’s September 2010 questionnaire “is more appropriate to an adult
disability case, as it does not give an opinion as to the claimant’s limitations in the six functional
equivalence domains.” (R. 28).
As such, the ALJ concluded that the claimant was not disabled under § 1614(a)(3)(C) of
the Social Security Act.
Substantial evidence does not support the ALJ’s giving the claimant’s treating
psychiatrist Dr. Elrefai’s opinion little weight, but assessing the consultative psychiatrist Dr.
Estock’s opinion substantial weight, when his assessment is dated two months before Dr. Elrefai
began treating the claimant.
The claimant argues that the ALJ improperly gave the treating psychiatrist Dr. Elrefai’s
opinion regarding claimant’s mental limitations “little weight,” while giving the consulting
psychiatrist Dr. Estock’s opinion “substantial weight.” The court agrees and finds that
substantial evidence does not support the ALJ’s discrediting of the treating psychiatrist Dr.
Elrefai’s assessment of the claimant’s mental limitations.
The ALJ must give the opinions of treating physicians greater weight than those of
consulting physicians unless good cause exists for treating the opinions differently. Lewis v.
Callahan, 125 F.3d 1436, 1440-41 (11th Cir. 1997). An ALJ must give more weight to a treating
physician because this source is “likely to be the medical professional most able to provide a
detailed, longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative examinations . . . .” 20
C.F.R. § 404.1527(c)(2). The ALJ must consider the length of treatment, and the longer a
treating source has treated the claimant, the more weight an ALJ should give that source’s
opinion. Id. at § 404.1527(c)(2)(i).
The ALJ can discredit a treating physician's report when it is not accompanied by
objective medical evidence or is wholly conclusory. Crawford v. Commissioner, 363 F.3d at
1159. Where the ALJ articulated reasons to discredit a treating doctor’s opinion are unsupported
by substantial evidence, the ALJ commits reversible error. Moore v. Barnhart, 405 F.3d 1208,
1212 (11th Cir. 2005).
The ALJ gave “little weight” to Dr. Elrefai’s September 10, 2010 assessment, given after
almost six months of treating the claimant. Her assessment stated that the claimant has “marked”
limitations in the following areas: ability to understand, carry out, and remember simple
instructions; ability to maintain attention for extended periods of time; ability to use appropriate
judgment; ability to make simple decisions; and ability to take necessary safety precautions. In
giving Dr. Elrefai’s opinion “little weight,” the ALJ articulated two reasons for doing so: (1) Dr.
Elrefai’s opinion is not supported by the objective medical evidence in the record, particularly
her own notes that indicate that the claimant has “significantly improved”; and (2) the
questionnaire form that Dr. Elrefai used for her assessment “is more appropriate to an adult
disability case, as it does not give an opinion as to the claimant’s limitations in the six functional
equivalence domains.” (R. 28).
As to the ALJ’s first reason, the ALJ stated that Dr. Elrefai’s assessment of the claimant’s
limitations conflicts with the objective medical evidence in the record; but, the only conflict the
ALJ cited was that Dr. Elrefai’s assessment conflicts with her own notes that the claimant’s
condition had “significantly improved.” Although the court agrees that the claimant’s chronic
psychotic condition had improved somewhat while taking an anti-psychotic medication, the ALJ
failed to discuss or apparently take into account the claimant’s continued hallucinations and
hearing of auditory voices despite the slight improvement and her continued problems at school.
The ALJ failed to note or discuss anywhere in his opinion Dr. Elrefai’s notes of October 6, 2010,
indicating that, although the claimant was compliant taking her medication, she was still hearing
voices telling her to do things, but was not acting on them. (R. 289). Dr. Elrefai’s notes on that
same date also indicate that the claimant continued to have problems sleeping at night, although
she had reported earlier in July 2010 that her sleep had improved on the medication. (R. 258,
289). Also, the doctor increased the claimant’s Invega dosage from 6mg to 9mg on October 6,
2010 because she was still hearing voices. Moreover, the ALJ failed to mention the claimant’s
December 1, 2010 follow-up with Dr. Elrefai, where the claimant reported that she continued to
hear voices, even with the increase to 9mg of Invega.
Despite her slight improvement and increased medication, the claimant also continued to
have serious issues with her behavior at school even while taking her anti-psychotic medication.
The ALJ statement that the claimant has had “some” behavior problems at school is certainly an
understatement, to say the least. (R. 29). Dr. Elrefai’s April 28, 2010 notes indicated that the
claimant has had an extensive history of problems in school, including over “200 suspensions
since kindergarten.” (R. 259). Also, from September 1, 2010 through February 13, 2011, even
after Dr. Elferai’s assessment, the record contains six discipline notices for the claimant’s defiant
behavior, such as disruptive outbursts in class; fighting; throwing a desk and chair down;
disrespecting teachers and staff; and engaging in a food fight. (R. 172-178). These poor choices
at school certainly indicate the claimant’s continued lack of good judgment about how to handle
situations even on her medication.
Additionally, the claimant’s mother, whom the doctors and ALJ deemed credible,
testified at the hearing on February 28, 2011 that, although the medications do help some, the
claimant continues to have delusions and hallucinations, although not as much as before the
medication. The claimant’s mother did indicate the last “bad” episode where the claimant acted
on what her imaginary friend “Kim” told her to do was about three months before the hearing.
However, she also indicated that the bad episodes had started again at school when she indicated
“but it started again at school”—a statement certainly corroborated by the school records
discussed above. (R. 52-53). According to her mother’s testimony at the hearing, despite the
claimant’s medications, she is still having “pretty severe problems.” (R. 56). Yet, the ALJ
referred to the claimant’s mother as indicating that the claimant has substantially improved,
without mentioning the continued “severe problems,” such as continued hallucinations and
hearing of voices.
Moreover, the claimant testified at the hearing in February 2011 that she continues to hear
voices and talks to her imaginary friend “Kim,” who tells the claimant to do bad things.
Although she did not give a specific time frame as to when, the claimant indicated that “the last
time [she] could remember she told [her] to try to stab [her] sister because [they] were fighting.”
(R. 61-62). Also, when asked by her attorney at the hearing if she knew that she should not do
those things, the claimant indicated that “I try.” (R. 62). Again, these statements are telling as to
the claimant’s continued altered perception and impaired judgment regarding reality even on her
Given the facts that the claimant continued to have hallucinations, continued to hear
voices that told her to do bad things, and continued to exhibit defiant behavior and poor
judgment at school, this court cannot accept the ALJ’s decision to give Dr. Elrefai’s opinion
“little weight” based on the claimant’s “substantial improvement,” when evaluating the record as
Moreover, the ALJ’s only other reason for discrediting the treating psychiatrist’s opinion
was that the form used by Dr. Elrefai was more suited for an adult assessment, as it did not
contain a specific assessment of the six functional equivalence domains. Although Dr. Elrefai’s
assessment of the claimant did not contain the magic language of every domain, it did include
specific language that certainly would fit the “marked” limitations finding in two of the domain
categories: (1) attending and completing tasks; and (2) caring for yourself. Dr. Elrefai’s finding
that the claimant has marked limitations in her ability to maintain attention for extended periods
of time, ability to use appropriate judgment, and ability to make simple decisions would
correspond to a finding of a marked limitation in the domain of attending and completing tasks.
Her inability to maintain focus, use good judgment, or make simple decisions would certainly
affect her ability to “filter out” distractions and remain focused on a task at a consistent level of
performance, as evidenced in the attending and completing tasks domain. See 20 C.F.R. §
Also, Dr. Elrefai’s assessment that the claimant has marked limitations in her ability to
use proper judgment and ability to take necessary safety precautions would equate to a marked
finding in the domain of caring for yourself. For that domain, the ALJ must consider a
claimant’s inability to show “consistent judgment about the consequences of caring for
[herself]”; inability to respond to her “circumstances in safe and appropriate ways”; and inability
to make “decisions that do not endanger [herself} . . . .” See Id. at § 416.926a(k)(1)(i)-(iv). The
court finds that Dr. Elrefai’s assessment of the claimant’s marked limitations in using good
judgment and taking the necessary safety precautions would show the claimant’s inability to
make good judgments in caring for herself and responding to events in safe and appropriate
ways. Even though Dr. Elrefai did not use a specific form with the magic language of each
domain, her findings of marked limitations in certain areas clearly correspond to findings of
marked limitations in two of the domains. If the ALJ had given Dr. Elrefai’s opinion substantial
or controlling weight, such a finding of marked limitations in two domains would have been
sufficient to find that the claimant met a listing.
The Commissioner in her brief argues that Dr. Elrefai’s September 2010 assessment
finding marked limitations in these areas was “conclusory.” The court disagrees. Dr. Elrefai’s
findings were consistent with her medical notes and were based on her knowledge gained from
almost six months at that time of continued treatment of the claimant. Dr. Elrefai, as the treating
psychiatrist, had the foundation in treating the claimant to assess that she is “psychotic,
experience[s] auditory/visual hallucinations and paranoid ideas” and is “chronically mentally ill.”
(R. 273). As the treating physician, Dr. Elrefai was in the best position to determine and assess
the claimant’s long term prognosis and mental limitations given her chronic psychosis. If the
ALJ was unclear as to what domains Dr. Elrefai’s marked findings corresponded to, the ALJ
should have re-contacted Dr. Elrefai for clarification, given the fact that she was the claimant’s
treating psychiatrist with the most knowledge about the claimant’s mental limitations.
But instead of giving Dr. Elrefai’s assessment the weight it deserved or re-contacting Dr.
Elrefai, the ALJ gave the consultative examiner Dr. Estock’s opinion “significant weight.” Dr.
Estock, after only reviewing Dr. Lowery’s consultative opinion and the medical evidence in the
record at that time, determined that the claimant had a marked limitation in only one area,
interacting and relating to others, but no limitations in any other domain. The ALJ specifically
indicated that he gave Dr. Estock’s findings “significant weight” because they “are well
supported by the record as a whole, particularly in light of the claimant’s apparent improvement
on medication.’ (R. 28). This court takes issue with the ALJ’s finding that Dr. Estock’s opinion
is supported by the record as a whole. At the time of Dr. Estock’s opinion in January 2010, the
claimant had not even begun her treatment with Dr. Elrefai or began taking Invega to help control
her symptoms. The court is baffled as to how the opinion of Dr. Estock, who did not treat or
examine the claimant or have the treating psychiatrist Dr. Elrefai’s notes from almost six months
of treatment before him, would be entitled to considerably more weight than the psychiatrist who
consistently treated the claimant, made the determination to treat the claimant’s psychosis with
anti-psychotic medications, monitored and had to increase the claimant’s medications, and
documented continued hallucinations and auditory voices, symptoms of a chronic psychosis,
even after increasing the claimant’s Invega from 6mg to 9mg. Such an award of significant
weight to one who merely reviewed incomplete medical records cannot be supported by
Moreover, Dr. Estock himself gave Dr. Lowery’s consultative assessment of the claimant
dated January 4, 2010, great weight, including Dr. Lowery’s findings that the claimant has below
average judgment; hears voices that tell her to do bad things like “cut herself, choke herself, and
cut others with a knife; and believes that her mother is trying to poison her.” The court notes that
Dr. Lowery was the psychologist who pursued securing a psychiatric evaluation of the claimant
in March 2010, after Dr. Estock’s January 2010 assessment, because Dr. Lowery believed that
the claimant was Paranoid Schizophrenic and needed further assessment and treatment for her
psychotic condition. The ALJ ignored Dr. Lowery’s concerns.
This court finds that substantial evidence does not support a good cause for the ALJ to
discredit the treating physician Dr. Elrefai’s assessment of the claimant and give the consultive
assessment of Dr. Estock “significant weight.” Therefore, this court finds that the ALJ’s decision
must be reversed and remanded to the ALJ for further action consistent with this opinion.
For the reasons stated, this court finds that the decision of te Commissioner of Social
Security denying disability benefits to the claimant is due to be REVERSED and REMANDED.
The court will enter a separate Order in conformity with this Memorandum Opinion.
DONE and ORDERS this 31st day of March, 2014.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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