Suggs v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/17/2014. (JLC)

FILED
2014 Dec-17 AM 11:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
APRIL A. SUGGS,
o/b/o E.C.S.,
Plaintiff,
v.
CAROLYN COLVIN,
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 5:13-CV-1781-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff April A. Suggs (“Suggs”) brings this action under 42 U.S.C. § 405(g),

Section 205(g) of the Social Security Act. She seeks review of a final adverse decision
of the Commissioner of the Social Security Administration (“Commissioner”), who
denied her application on behalf of her minor child (“E.C.S.”) for Childhood
Supplemental Security Income (“SSI”). Suggs timely pursued and exhausted her
administrative remedies available before the Commissioner. The case is thus ripe for
review under 42 U.S.C. § 405(g).1 The court has carefully considered the record and,
1

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.

for the reasons which follow, finds that the decision of the Commissioner is due to be
AFFIRMED.2
II.

FACTUAL AND PROCEDURAL HISTORY
ECS was six years old on her alleged onset date and nine years old on the date

the ALJ issued his final decision. (Tr. 160). E.C.S. has no past relevant work
experience and has never engaged in work. (Tr. 41). Suggs claims, on E.C.S.’s behalf,
disability since February 3, 2009, due to Attention Deficit Hyperactivity Disorder
(“ADHD”), oppositional defiant disorder (“ODD”), asthma and allergies. (Tr. 41,
193).
Suggs filed this application for Childhood Supplemental Security Income on
February 3, 2009. (Tr. 160-166). The state agency denied her application initially and
upon reconsideration. (Tr. 128-133). She timely requested a hearing before an
Administrative Law Judge (“ALJ”) on May 19, 2009. (Tr. 136). The hearing was held
before an ALJ on February 15, 2011. (Tr. 77-104). The ALJ issued a decision denying
her claim on March 4, 2011.3 The Appeals Council declined to grant review of the

2

The court notes that two decisions, by the same ALJ and for this same claim, are present
in the record: one on March 4, 2011 (Tr. 56-76), and one on July 29, 2011 (Tr. 35-55).
Perplexingly, neither party has explained why there are two decisions in the record, and both
parties cite to portions of both decisions without discussion. The two come to the same
conclusion on disability, and because the July 29, 2011, includes analysis of additional evidence
submitted posthearing (Tr. 38), the court will use that one for purposes of review.
3

See n. 2, supra, for discussion.
2

decision on July 24, 2013.
Suggs filed a Complaint with this court on September 25, 2013, seeking review
of the Commissioner’s determination. (Doc. 1). The Commissioner answered on
February 5, 2014. (Doc. 9). Garrard filed a supporting brief (doc. 11) on March 20,
2014, and the Commissioner responded with her own (doc. 12) on April 2, 2014.
III.

STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
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court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a period

of disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder. For children, the definition requires “marked
and severe functional limitations,” rather than (as for adults) the inability to do
substantial gainful activity. 42 U.S.C. 1382c(a)(3)(C)(i). To establish an entitlement
to disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
For children, there is a three-step evaluation process. 20 C.F.R. § 416.924(a).
The sequential analysis goes as follows:
First, the ALJ must determine whether the child is engaged in substantial and
gainful activity. Second, if the child is not engaged in substantial and gainful
activity, the ALJ must determine whether the child has an impairment or
combination of impairments that is severe. Finally, at step three, the ALJ must
determine whether the child’s impairment meets, medically equals, or
functionally equals the Listings.
4

Gray ex rel. Whymss v. Commissioner of Social Sec., 454 F. App’x 748, 750 (11th Cir.
2011) (unpublished) (citing to 20 C.F.R. § 416.924(a)); accord Encarnacion ex rel.
George v. Barnhart, 331 F.3d 78, 84 (2d Cir. 2003). At step three, the ALJ evaluates
the child’s degree of limitation, if any, in six functional areas, called domains:
(i)

acquiring and using information;

(ii)

attending and completing tasks;

(iii)

interacting and relating with others;

(iv)

moving about and manipulating objects;

(v)

caring for yourself; and

(vi)

health and physical well-being.

20 C.F.R. § 416.926a(b)(1). If there are marked limitations in two domains or an
extreme limitation in one domain, the child’s impairment, or combination of
impairments, is deemed functionally equivalent to a listed impairment. Id. at §
416.926a(d). A limitation is “marked” if it “interferes seriously” with the child’s
abilities in that domain. Id.
V.

ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

The claimant was born on July 19, 2002. Therefore, she was a school-age
child on February 3, 2009, the date the application was filed, and is
currently a school-age child.
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2.

3.

The claimant had the following severe impairments: ADHD;
oppositional defiant disorder; mood disorder NOS; hyperopia with
astigmatism; asthma and allergic rhinitis; and allergies, particularly food
allergies.

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
in 20 C.F.R. Pt. 404, Subpt. P., Appx. 1 (20 C.F.R. 416.924, 416.925 and
416.926).

5.

The claimant does not have an impairment or combination of
impairments that functionally equals the listings (20 C.F.R. 416.924(d)
and 416.926(a))

6.

VI.

The claimant had not engaged in substantial gainful activity since
February 3, 2009, the application date.

The claimant has not been disabled, as defined in the Social Security
Act, since February 3, 2009, the date the application was filed.

ANALYSIS
The court may only reverse a finding of the Commissioner if it is not supported

by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).4 However, the court “abstains from reweighing the evidence or

4

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Suggs does not contend that the ALJ was incorrect in finding that E.C.S. did not
meet a listed impairment, but disputes the ALJ’s determination that E.C.S. did not
have an impairment or combination of impairments that functionally equals the
listings. (Doc. 11 at 4). Suggs argues that the ALJ’s decision failed to accord proper
weight to the opinion of E.C.S.’s treating psychiatrist, Dr. Kirk. (Doc. 11 at 5-10). On
that basis, she contends that the decision was not supported by substantial evidence.
(Id. at 10-12). Following review of the entire record, the court finds substantial
evidence for the ALJ’s decision to give no weight to Dr. Kirk’s opinion.
The ALJ found that E.C.S. had no limitations in moving about and
manipulating objects and less than marked limitations in the other five domains:
acquiring and using information; attending and completing tasks; interacting and
relating with others; moving about and manipulating objects; caring for yourself; and
health and physical well-being. (Tr. 44-50). In his determinations, the ALJ gave no
weight to the opinion of her treating psychiatrist, Dr. Kirk, who opined that she had
marked limitations in four of the six functional domains. (Tr. 583-85).The ALJ made
this decision on the grounds that Dr. Kirk’s opinion was inconsistent with other
evidence. He noted that testing had indicated that her intelligence was average to lowaverage. (Tr. 44). The ALJ also pointed to the Teacher Questionnaire filled out by her
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kindergarten teacher, which noted only one “obvious problem” in Interacting and
Relating With Others, no problems in all other activities included in that domain, and
only slight problems in her other domains. Id. Finally, he stated that Dr. Kirk’s
opinion was not supported by the medical records or the remainder of the evidence.
The opinion of a treating physician “must be given substantial or considerable
weight unless good cause is shown to the contrary.” Phillips v. Barnhard, 357 F.3d
1232, 1240 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997)) (internal quotation marks omitted). “Good cause” exists when:
•

the treating physician’s opinion is not bolstered by the evidence;

•

the evidence supports a contrary finding; or

•

the treating physician’s opinion is conclusory or inconsistent with his or
her own medical records.

Id. at 1241 (citation omitted). The ALJ must clearly articulate his or her reasons for
disregarding a treating physician’s opinion, and the failure to do so is reversible error.
Lewis, 125 F.3d at 1440 (citation omitted); see also 20 C.F.R. § 404.1527(c)(2) (“We
will always give good reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.”). However, when the ALJ adequately
states specific reasons for doing so, and those reasons are supported by substantial
evidence, there is no such error. Moore v. Barnhart, 405 F.3d 1208, 1212-13 (11th
Cir. 2005) (per curiam).
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Here, the ALJ articulated several specific reasons for discrediting Dr. Kirk’s
opinion in his Assessment Form. (Tr. 44). As discussed above, the ALJ concluded that
Dr. Kirk’s opinion that E.C.S. was functionally disabled was not supported by the
medical records and other evidence. He noted that her test results showed average to
low-average intelligence and that her teacher noted only one obvious problem in any
aspect of the six functional domains. The ALJ was thus adequately specific in
outlining his reasons for discrediting Dr. Kirk.
After reviewing the record, the court finds that substantial evidence supports
his reasons. The Questionnaire filled out by E.C.S.’s kindergarten teacher indicated
only a few academic and social shortcomings: specifically, problems in her math
skills, trouble waiting her turn in class, a tendency not to follow the rules during
games, and taking things from the classroom. (Tr. 201-206). The only problem her
teacher indicated to be more than “slight” was following rules, which was rated as an
“obvious problem.” (Tr. 204). As to the question of her intellectual limitations, her
test results show that she was average to low-average. (Tr. 549-553, 653-54).
Furthermore, on her report card for the 2009-2010 academic year, E.C.S. received a
C in math but As in spelling and reading (Tr. 588). She also made the A/B honor roll
in December, 2010. (Tr. 605). On December 3, 2010, her school guidance counselor
also reported that she was doing well in class and “has had no problems.” (Tr. 604).
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Reports from other medical professionals also contradict the opinions of Dr.
Kirk. In March and June of 2011, following referrals by E.C.S.’s pediatrician and
psychiatrist, Dr. Erin Smith, a licensed clinical psychologist, conducted a
psychological evaluation. (Tr. 653). During the mental status examination, Dr. Smith
judged E.C.S.’s interactions with her to be normal. (Tr. 653). Following questioning
designed to test memory, intelligence, and other cognitive functions, E.C.S.’s
cognition was found to be average to low-average to average. Id. Dr. Smith
administered a standardized achievement test and found E.C.S. to be: within the
average range of her age group in academic skills and fluency with academic tasks;
high average in reading skills; average in math calculation skills; and low average in
mathematics. (Tr. 655). Dr. Smith also administered a standardized test (“the CPT-2")
designed to measure attention, impulsivity, and vigilance, on which E.C.S. scored
within normal limits. (Id.). In her summary, Dr. Smith opined,
“It is likely that [E.C.S.’s] academic and behavioral difficulties were related to
poorly managed ADHD symptoms in the past. Based upon her performance on
the CPT-2, [E.C.S.’s] current medication regimen is adequately controlling her
ADHD symptoms at this time. It is likely that academic and behavioral issues
will improve.”
(Tr. 655).
After a consultative examination, Dr. John Haney, a licensed psychologist, on
April 20, 2009, came to similar conclusions. (Tr. 490). Dr. Haney found E.C.S.’s
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memory to appear intact and estimated her intelligence as “low average.” (Tr. 490).
He predicted that “with successful treatment, this youngster should be able to achieve
at a level consistent with her aptitude.” (Tr. 490-91).
In arguing that Dr. Kirk’s opinion was supported by the record, Suggs points
specifically to Dr. Kirk’s treatment notes. (Doc. 11 at 8-9). However, as noted in the
Commissioner’s brief, much of Dr. Kirk’s treatment notes appear to be based on
statements from Suggs, E.C.S.’s mother, which are often inconsistent with the rest of
the record. (See, e.g., Tr. 431, 434, 605, 660). For instance, Suggs told Dr. Kirk on
December 1, 2010, that E.C.S. was doing poorly on tests, but E.C.S. was currently on
the A/B honor roll. (Tr. 605). Additionally, during three visits to E.C.S.’s school in
the surrounding period (in October, November , and December, 2010), her therapist
was told by the school guidance counselor and E.C.S. herself that she was doing well
in school. (Tr. 604, 610, 616). Suggs also testified before the ALJ that E.C.S. did not
make friends easily and did not have friends come to their house. (Tr. 88, 90).5
However, on two different occasions, E.C.S. said that she has friends at school and
plays with friends at her house. (Tr. 88, 102, 490). Also, her kindergarten teacher’s
February 3, 2009, Questionnaire reported that she had no problems in “playing

5

Relatedly, the court observes that Dr. Kirk’s notes on September 30, 2009, report that
she “has been having difficulties . . . in her interactions with her peers.” (Tr. 562).
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cooperatively with other children” and “making and keeping friends.” (Tr. 204).
A second reason that Dr. Kirk’s treatment notes do not support findings of
marked limitations has to do with the contents of the notes themselves. The most
recent treatment notes by Dr. Kirk — from January 20, 2011, and February 24, 2011
— mention that she had “shown mild improvement” and “improved academically (Tr.
660, 668). Furthermore, Dr. Kirk’s own observations of E.C.S., as opposed to
statements based on reports from her mother, consistently noted little problems other
than that her insight and judgment “at times [are] felt to be poor,” and she “was mildly
oppositional.” (See, e.g., Tr. 434-35, 644, 661)
Having considered the entire record, substantial evidence supports the ALJ’s
findings that there were no marked limitations in any of the six domains. The evidence
is the least clear-cut regarding Interacting and Relating With Others; a physician for
the state agency opined that she had a marked limitation in that domain (Tr. 494), and
her teacher stated that she had an “obvious problem” in following rules. (Tr. 204).
However, these problems were limited to cheating during classroom games and
attempting to take small classroom toys home. (Tr. 204, 494). In other activities
falling under the Interacting and Relating with Others domain, E.C.S. showed no
problems. (Id.). In her hearing before the ALJ and in her examination by Dr. Haney,
E.C.S. said that she has friends at school and plays with friends at her house. (Tr. 88,
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102, 490). Therefore, the court concludes that substantial evidence supports the ALJ’s
finding of a less than marked limitation in this domain.
VI.

CONCLUSION
For the foregoing reasons, the decision of the Commissioner is due to be, and

hereby is, AFFIRMED. A separate final judgment will be entered.
DONE and ORDERED this the 17th day of December, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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