Jackson v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 12/4/2018. (TLM, )

FILED
2018 Dec-04 PM 02:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
QUENTINCE JACKSON
o/b/o Z.J.,

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]
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Plaintiff,
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v.
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COMMISSIONER, SOCIAL
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SECURITY ADMINISTRATION, ]
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Defendant.
]

Case No.: 4:17-cv-00733-ACA

MEMORANDUM OPINION
Plaintiff Quentince Jackson brings this action on behalf of her minor child,
Z.J. (“Claimant”), seeking judicial review of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”), denying her application
for Supplemental Security Income (“SSI”). (Doc. 1). Ms. Jackson argues that the
Administrative Law Judge (“ALJ”) erred by: (1) failing to find that Claimant
qualifies for listings 112.10 (“Autistic Disorder”) and 112.12 (“Attention Deficit
Disorder”); (2) failing to find that Claimant meets the functional equivalence of
these listings; (3) failing to accord proper weight to the report and opinion of
consulting psychologist Dr. Sizelove; (4) failing to properly evaluate all of
Claimant’s medically severe impairments in rendering its decision; and (5) failing
to support its denial of benefits with substantial evidence. (Doc. 10). Because the

ALJ did not state with particularity the weight it gave to Dr. Sizelove’s
Psychological Evaluation Report  or the reasons why it may have discredited his
opinion, the court WILL REVERSE and REMAND the Commissioner’s decision
for further proceedings.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Z.J. was seven years old at the time of the administrative hearing and in the

process of repeating the first grade. (R. at 15). Ms. Jackson claims that her
daughter became disabled due to: “Autism Spectrum Disorder, Oppositional
Defiant Disorder, Persistent Depressive Disorder, Attention Deficit Hyperactivity
Disorder, Accommodative Esotropia, strabismus (crossed eyes), and severe
headaches.” (R. at 152).
Ms. Jackson filed a Title XVI application for SSI on behalf of Z.J. (R. at
165–68). The Social Security Administration initially denied these claims. (R. at
104–07). Ms. Jackson then filed a written request for a hearing (r. at 152–64),
which was granted. (See R. at 56).

Thereafter, the ALJ issued an opinion

concluding Z.J. was not disabled as defined under the Social Security Act and
denied the application for SSI. (R. at 39–50).
Ms. Jackson, through her attorney, filed a timely request for review of the
ALJ’s decision. (R. at 6–8). However, the Appeals Council found no basis for
changing the ALJ’s decision and denied Ms. Jackson’s request. (R. at 1–3). As a
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result, the decision of the Appeals Council became the final decision of the
Commissioner for purposes of appeal.
After exhausting her administrative remedies, Ms. Jackson filed a complaint
with this court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the ALJ’s decision. (Doc. 1). The Commissioner answered on February
26, 2018. (Doc. 8). Ms. Jackson filed a brief in support of disability (doc. 10), and
the Commissioner responded with a brief in support of affirmance (doc. 11).
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a Social Security claimant may obtain judicial

review of the Commissioner’s final decision after exhausting all available
administrative remedies. On appeal, the court’s role is to determine whether the
Commissioner’s decision is based on substantial evidence and the application of
correct legal standards. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). 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). The Commissioner’s legal conclusions are reviewed de novo and
“no presumption of validity attaches to the Secretary’s determination of the proper
legal standards to be applied in evaluating claims.” Shalala, 985 F.2d at 531. “If
the court finds an error in the ALJ’s application of the law or that it fails to provide
sufficient reasoning to support its legal analysis, the ALJ’s decision must be
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reversed.” Ware v. Colvin, 997 F. Supp. 2d 1212, 1216 (N.D. Ala. 2014) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145–46 (11th Cir. 1991)).
III.

LEGAL FRAMEWORK
The Social Security Administration (“SSA”) applies a three-step sequential

evaluation when deciding whether a child is eligible for SSI benefits.

This

evaluation involves determining: (1) whether the child is engaged in “substantial
gainful activity;” (2) whether the child suffers from a “medically determinable
impairment(s) that is severe;” and (3) whether the child has an impairment or
combination of impairments that “causes marked and severe functional limitations
[that] meets or medically equals the severity of a set of criteria for an impairment
in the listings, or if it functionally equals the listings.” 20 C.F.R. § 416.924. If a
claimant does not meet the threshold requirements of any step, the ALJ will deny
disability benefits.
A medically determinable impairment “must result from anatomical,
physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques.”

Id. § 416.908.

Moreover, such impairments “must be established by medical evidence consisting
of signs, symptoms, and laboratory findings, not only by [a claimant’s] statement
of symptoms.” Id.

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To establish that an impairment functionally equals a listing, the child’s
impairment or combination of impairments must result “in ‘marked’ limitations in
two domains of functioning or an ‘extreme’ limitation in one domain.”

Id.

§ 416.926a(a). A “marked” limitation is defined as an impairment that “seriously
interferes” with a child’s “ability to independently initiate, sustain, or complete
activities.” Id. § 416.926a(e)(2)(i). The SSA describes an “extreme” limitation as
“more than marked” but “does not necessarily mean a total lack or loss of ability to
function.” Id. § 416.926a(e)(3)(i). The domains used by the SSA to determine
whether a child’s impairment(s) functionally equal a listed impairment are: (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 yourself;” and (6) “health and physical well-being.” Id.
§ 416.924a(b)(1)(i)-(vi).
IV.

FINDINGS OF THE ALJ
At Step One of the instant case, the ALJ found that Z.J. had not engaged in

substantial gainful activity since October 4, 2013, the application date, and
qualified as a school-age child under § 416.92a(g)(2). (R. at 15). At Step Two, the
ALJ found that Z.J. had the following severe impairments: “attention deficit
hyperactivity disorder (ADHD); combined type autism spectrum disorder, with

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intellectual impairment; persistent depressive disorder; and overanxious disorder of
childhood.” (Id.).
Turning to Step Three, the ALJ found that Z.J. did not have an impairment
or combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15–
16). In making this finding, the ALJ considered listings: 112.01 (“Category of
Impairments, Mental Disorders”); 112.04 (“Depressive, bipolar and related
disorders”); 112.05 (“Intellectual disorder”); 112.06 (“Anxiety and obsessivecompulsive disorders”); 112.10 (“Autism spectrum disorder”); and 112.11
(“Neurodevelopmental disorders”). (R. at 15). The ALJ also determined that Z.J.
did not have an impairment or combination of impairments that functionally
equaled the severity of one of the listed impairments.

(Id.).

Thus, the ALJ

concluded that Z.J. was not “disabled” for purposes of eligibility for SSI under
§ 1614(a)(3)(C) of the Social Security Act. (R. at 26–27).
The ALJ’s determination that Z.J. lacked an impairment or combination of
impairments that functionally equaled the requisite severity was derived from the
ALJ’s finding that, although Z.J.’s impairments could produce the reported
symptoms, statements concerning the intensity, persistence, and limiting effects of
these symptoms were not entirely credible. (R. at 18). The ALJ gave partial
weight to the opinion of the state agency non-examining physician, Robert Estock,
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M.D., because the evidence established that his opinion was based primarily on
Ms. Jackson’s own testimony and he was not provided questionnaires prepared by
Z.J.’s first grade teacher. (R. at 18–19). The ALJ determined that the two teacher
questionnaires in the record were highly probative of Z.J.’s “true functioning”
because Z.J.’s teachers, both of whom were financially disinterested professionals,
had daily contact with her at the time the questionnaires were completed. (R. at
19). Lastly, the ALJ afforded little weight to the Medical Source Statement of
licensed counselor Rosa Statom because her opinions were not those of a
recognized medical source under Social Security Ruling 06-03p.

(R. at 19).

Notably, the ALJ did not state with particularity the weight given to the
Psychological Evaluation Report of Dennis Sizelove, Ph.D, the psychologist who
examined Z.J. (R. at 12–27).
V.

ANALYSIS
A.

Dr. Sizelove

Ms. Jackson argues that the ALJ erred in finding that Z.J. does not qualify
for listings 112.10 (“Autistic disorder”) and 112.12 (“Attention Deficit Disorder”)
or, alternatively, meet the functional equivalence of these listings. Ms. Jackson’s
argument relies primarily on the report of consulting psychologist Dr. Sizelove,
which she contends was not afforded proper weight by the ALJ in its decision
denying SSI.
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Z.J. saw Dr. Sizelove for a psychological evaluation in September 2018. (R.
at 289). Dr. Sizelove administered the Kaufman Brief Intelligence Test, Second
Edition (KBIT-2), the Behavioral Assessment System for Children, Second Edition
(BASC-2), Parent Rating Scales-Preschool (PRS-P), and Behavior Rating
Inventory of Executive Function (BRIEF). (R. at 289–30). Among other things,
Dr. Sizelove reported a significant difference in Z.J.’s verbal and performance
scores, which he found indicative of Z.J. having a greater ability to complete
visuospatial tasks than those requiring verbal fluency.

(R. at 295–96).

Dr.

Sizelove further determined that Z.J.’s scores on the KBIT-2 reflected below
average intellectual functioning when compared to others her age. (Id.). Dr.
Sizelove concluded that Z.J.’s results were consistent with the diagnostic criteria
for both autism spectrum disorder with accompanying intellectual impairment as
well as attention deficit/hyperactivity disorder. (R. at 295).
Weighing the opinions and findings of treating, examining, and nonexamining physicians is essential in determining whether a claimant is disabled.
Rosario v. Commr. of Soc. Sec., 490 Fed. Appx. 192, 194 (11th Cir. 2012). It is
clear that the ALJ considered portions of Dr. Sizelove’s evaluation when
determining that Z.J. suffered from several severe impairments at Step Two, citing
the report in support. However, the ALJ’s decision conflicts with the report as to
the severity and intensity of Z.J.’s impairments and fails to clearly articulate either
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the weight given to Dr. Sizelove’s Report or the reasons why it may have
discounted his opinion.1 In Winschel v. Commissioner of SSA, 631 F.3d 1176 (11th
Cir. 2011), the Eleventh Circuit held that whenever a physician offers a statement
reflecting judgments about the nature and severity of a claimant’s impairments, the
ALJ must state with particularity the weight given to opinions and the reasons
therefor. Id. at 1178–79. In the absence of clearly articulated grounds for which
portions of the evaluation were discounted or rejected, the court cannot determine
whether the ALJ’s conclusions were supported by substantial evidence. Winschel,
631 F.3d at 1178–79 (finding that an ALJ may not “implicitly discount” or ignore
any medical opinion). Accordingly, because the ALJ neither explained the weight
that it gave to Dr. Sizelove’s report nor why it may have discredited his opinion the
court WILL REVERSE and REMAND this matter with instruction that the ALJ
make these determinations.
B.

The ALJ’s Evaluation of Z.J.’s Impairments

Additionally, Ms. Jackson argues that the ALJ erred in failing to consider all
of Z.J.’s impairments in rendering its decision denying SSI. After reviewing the
record, the court finds that this contention is without merit.

When an ALJ

recognizes at least one severe impairment and proceeds to Step Three of the

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The court notes that Dr. Sizelove’s opinion appears to be based in large
measure, on the functional limitations opinion of Z.J.’s mother only. Dr.
Sizelove’s report references Z.J.’s “rater” in the singular and predates the Teacher
Questionnaires. (See R. at 208–17, 225–31).
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sequential evaluation process, it is not required to identify additional impairments
if the decision demonstrates that the ALJ properly considered all impairments at
subsequent steps. Tuggerson-Brown v. Comm’r of Soc. Sec., 572 Fed. Appx. 949,
951 (11th Cir. 2014).

Indeed, the Eleventh Circuit recognizes that an ALJ’s

comprehensive statement that it “has considered all of Claimant’s impairments” is
sufficient. Id. Here, the ALJ stated at Step Three, that it “assessed the interactive
and cumulative effects of all of the Claimant’s medically determinable
impairment(s), including any impairments that are not ‘severe.’” (Doc. 8-3 at 16–
17). Therefore, the ALJ did not err by failing to consider all of Z.J.’s impairments
and symptoms.
VI.

CONCLUSION
Based on the evidence in the record and the parties’ submissions, the court

concludes that the ALJ committed reversible error in failing to state with
particularity the weight it gave to Dr. Sizelove’s Psychological Evaluation Report
or the reasons why it may have discredited his opinion. Accordingly, the court
WILL REVERSE and REMAND the Commissioner’s decision by separate order.
DONE and ORDERED this December 4, 2018.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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