Lee v. Astrue

Filing 21

Order entered that the decision of the Commissioner of Social Security, denying Plaintiff's claim for supplemental security income, be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/13/2013. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANITA SHUNTA LEE, o/b/o B.G.S.,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 11-00615-B

ORDER
Plaintiff, Anita Shunta Lee (“Plaintiff”), brings this action on behalf of her minor child,
B.G.S.,2 seeking judicial review of a final decision of the Commissioner of Social Security
denying her claim for a period of disability and child supplemental security income under Title
XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. (“SSI”). On October 12, 2012, the
parties consented to have the undersigned conduct any and all proceedings in this case. (Doc.
17). Thus, this case was referred to the undersigned to conduct all proceedings through entry of
judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Doc. 20). Oral
argument was waived.

Upon careful consideration of the administrative record and the

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit. No further action need be taken to
continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

2

Pursuant to the E-Government Act of 2002, as amended on August 2, 2002, the Court has
redacted the minor child’s name throughout this opinion and refers to him only by his initials,
“B.G.S.”

1

memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.
I.

Procedural History
Plaintiff protectively filed an application for supplemental security income benefits on

behalf of her son B.G.S. on December 6, 2007. (Tr. 58, 114). Plaintiff alleges that B.G.S. has
been disabled since March 1, 2000, due to attention deficit hyperactivity disorder (ADHD) and
borderline intellectual functioning. (Id.). Plaintiff’s application was denied at the initial stage,
and she filed a timely Request for Hearing before an Administrative Law Judge on April 11,
2008.

(Id. at 58, 82).

On August 26, 2009, Administrative Law Judge Linda J. Helm

(hereinafter “ALJ”) held an administrative hearing, which was attended by Plaintiff, her son
B.G.S., Plaintiff’s attorney, Gary Stout, and a vocational expert (“VE”).

(Id. at 36).

On

September 29, 2009, the ALJ issued an unfavorable decision finding that B.G.S. is not disabled.
(Id. at 31).

Plaintiff’s request for review was denied by the Appeals Council (“AC”) on

September 7, 2011. (Id. at 1).
The parties agree that this case is now ripe for judicial review and is properly before this
Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issue on Appeal
A.

III.

Whether the ALJ erred in rejecting the opinion of B.G.S.’ treating
physician?

Factual Background
Born on March 2, 1993, B.G.S. was 16 years old at the time of the hearing. (Tr. at 39).

At that time, he had been diagnosed with attention-deficit hyperactivity disorder (ADHD),
conduct disorder, borderline intellectual functioning, and adjustment disorder with mild
depression. (Tr. at 39, 114, 153, 289, 291). B.G.S. attended Compass Academy, an alternative
2

school for children with behavioral problems, for two years, and at the August 26, 2009
administrative hearing, his mother reported that he had not been in school since the preceding
April. (Id. at 46, 47, 54). B.G.S. testified that his mother took him out of Compass Academy
because he was “cutting school.” (Tr. at 41). His mother testified, however, that Compass
Academy “released” him from the program because they could no longer help him. (Id. at 5455). Both B.G.S. and his mother testified that the Conecuh County School Board would not
allow him to attend public school because of “his past in that school system.” (Tr. at 41, 55).
B.G.S. testified that he works with his uncle every day for five or six hours in his produce
stand, selling produce and carrying bags to customers’ vehicles. (Id. at 42-43). B.G.S. stated
that he takes medication for his “behavior” and “attitude” and that the medications help. (Id. at
44). According to B.G.S., when he does not take his medications, he “get[s] hyper.” (Id.). He
testified that he is thinking about joining the Navy and that he is trying to get back in school so
that he can finish his high school degree. (Id. at 44-45). He also testified that he has not been in
trouble with the law3 and that he does not have problems with drugs or alcohol. (Id. at 45).
At the hearing, B.G.S.’s mother testified that he has had behavioral problems since age
six. She stated that he has problems with his speech, reading, and understanding, and these
problems make him irritated and annoyed, and as a result, he might push a desk, knock paper on
the floor, or start crying. (Id. at 49). He is currently taking Concerta (for ADHD) and Lexapro
(for depression), and the medications help. (Id. at 50-51).
IV.

Analysis

3

B.G.S.’ mother testified that he was required to go to boot camp after he wrote on a wall at
school but that boot camp was not ordered by the courts. (Tr. at 55). B.G.S.’s medical records
reflect that notwithstanding B.G.S.’s testimony, he has been arrested three times. (Id. at 255,
289).

3

A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s role is a limited one. The Court’s
review is limited to determining 1) whether the decision of the Secretary is supported by
substantial evidence and 2) whether the correct legal standards were applied.4

Martin v.

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh
the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792
F.2d 1065, 1067 (11th Cir. 1986). The Commissioner’s findings of fact must be affirmed if they
are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991);
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is
defined as “more than a scintilla but less than a preponderance” and consists of “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”).

In

determining whether substantial evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the Commissioner’s decision.
Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS
10163, *4 (S.D. Ala. 1999).
B. Childhood Disability Law
The Personal Responsibility and Work Opportunity Act of 1996, which amended the
statutory standard for children seeking supplemental security income benefits based on disability,
became effective on August 22, 1996. See Pub. L. No. 104-193, 110 Stat. 2105 § 211(b)(2)
(1996) (codified at 42 U.S.C. § 1382c). The definition of “disabled” for children is:
An individual under the age of 18 shall be considered
disabled . . . if that individual has a medically determinable
4

This Court’s review of the Commissioner’s application of legal principles is plenary. See
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

4

physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in death
or which has lasted or can be expected to last for a continuous
period of not less than 12 months.
See 42 U.S.C. § 1382c(a)(3)(C)(i), 20 C.F.R. § 416.906.5 The regulations provide a three-step
sequential evaluation process for determining childhood disability claims.

20 C.F.R. §

416.924(a).
At step one, a child’s age/work activity, if any, are identified to determine if he has
engaged in substantial gainful activity. At step two, the child’s physical/mental impairments are
examined to see if he has an impairment or combination of impairments that is severe. Under the
regulations, a severe impairment is one that is more than “a slight abnormality or a combination
of slight abnormalities that causes no more than minimal functional limitations.” 20 C.F.R. §
416.924(c). To the extent the child is determined to have a severe impairment, at step three, the
Commissioner must then determine whether the impairment or combination of impairments
meets or is medically or functionally equal to an impairment listed in Appendix 1 of 20 C.F.R.
part 404, subpart P, and otherwise satisfies the duration requirement.6 20 CFR § 416.924.
A child’s impairment(s) meets the listings’ limitations if he actually suffers from
limitations specified in the listings for his severe impairment.

Shinn ex rel. Shinn v.

Commissioner of Soc. Sec., 391 F.3d 1276, 1279 (11th Cir. 2004). A child’s impairment(s)
medically equals the listings if his limitations are at least of equal severity and duration to the
5

On September 11, 2000, the Commissioner published Final Rules for determining disability
for a child under the age of 18. See 65 Fed. Reg. 54,747, corrected by 65 Fed. Reg. 80,307.
These rules became effective on January 2, 2001, and apply to Plaintiff’s claim. See 65 Fed.
Reg. at 54,751.

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In making this determination the ALJ considers the combined effect of all medically
determinable impairments, even those that are not severe. See 20 CFR 416.923, 416.924a(b)(4),
and 416.926a(a) and (c).

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listed impairment(s).

Id. (citing 20 CFR § 416.926).

Where a child’s impairment or

combination of impairments does not meet or medically equal any listing, then the
Commissioner must determine whether the impairment or combination of impairments results in
limitations that functionally equal the listings.7 20 CFR § 416.926a. To establish functional
equivalence in step 3, the claimant must have a medically determinable impairment or
combination of impairments that results in marked limitations in two functional domains or an
extreme limitation in one domain. 20 CFR § 416.926a(a). The six domains are: (1) acquiring
and using information; (2) attending and completing tasks; (3) interacting and relating to others;
(4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical
well-being. 20 CFR 416.926a.
C.

Discussion
1. ALJ’s Decision

In this action, the ALJ issued an unfavorable decision on September 29, 2009. (Tr. 31).
After setting forth the sequential evaluation process for evaluating child disability claims, the
ALJ determined that B.G.S. has not engaged in substantial gainful activity and that, while he has
the severe8 impairments of borderline intellectual functioning, attention deficit hyperactivity
disorder (ADHD) and conduct disorder, they do not meet, medically equal, or functionally equal
7

In making this assessment, the reports of the State Agency medical consultants, reports of other
treating, examining, and non-examining medical sources, and the claimant’s symptoms,
including pain and the extent to which these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence, are all taken into consideration. 20
C.F.R. §§ 416.927, 416.929; and SSR 96-5, 96-6p and 96-7p.

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The ALJ also considered the cumulative effects of all of B.G.S.’s impairments, including his
non-severe diagnoses of adjustment disorder with mild depression and Osgood Schlatter disease
(a painful swelling of the anterior tibial tubercleon on the upper part of the shinbone). (Tr. at 18,
20). See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002238/.

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the criteria for any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. (Id. at
16-21).
With respect to the functional equivalence domains, the ALJ found that B.G.S. has “less
than marked” limitations in the domains of acquiring and using information, attending and
completing tasks, and interacting and relating with others. (Id. at 26-27). The ALJ further found
that B.G.S. has “no limitation” in moving about and manipulating objects, caring for oneself, and
health and physical well-being. (Id. at 28-30). Accordingly, the ALJ concluded that, because
B.G.S. does not meet or medically equal any of listings set forth in 20 CFR Part 404, Subpart P,
Appendix 1, nor does he functionally equal the listings by having an impairment or combination
of impairments that results in either “marked”9 limitations in two domains of functioning or
“extreme” limitation in one domain of functioning, he is not disabled under the Act. (Id. at 23,
31).
2. Record Evidence
a. Academic Evidence
On October 18, 2006, B.G.S. began attending Compass Academy, an alternative school
for children with behavioral problems operated by Southwest Alabama Mental Health. (Id. at
54, 158, 225, 280). B.G.S. enrolled in Compass Academy after getting in trouble at his previous
school and being arrested for disorderly conduct. (Id. at 255). While at Compass Academy,
B.G.S. was diagnosed with ADHD and adjustment disorder with mild depression. (Id. at 153).
9

Social Security regulation 20 CFR 416.926a(e)(2) explains that a child has a “marked
limitation” in a domain when his impairment(s) “interferes seriously” with his ability to
independently initiate, sustain or complete activities. It means “more than moderate” but “less
than extreme.” Id. By way of contrast, an “extreme” limitation “interferes very seriously” with
the child’s ability to independently initiate, sustain, or complete activities.” 20 CFR
416.926a(e)(3). It is the rating given to the “worst limitations.” Id.

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His school records dated October 17, 2006 reflect goals of improving B.G.S.’s behavior,
increasing his appropriate expression of thoughts and feelings, and improving his basic living
skills. (Id. at 155). The barriers to his goals were identified as attitude, not following directions,
and “hold[ing] some things in.” (Id. at 154).
On February 28, 2008, the Compass Academy Coordinator, Elizabeth Godwin,
completed a questionnaire in which she stated that B.G.S. “sometimes needs extra assistance to
stay on task,” that he is easily distracted, that he does better with structured activities, that he gets
easily frustrated and adopts an “I don’t care” attitude, that he gets upset easily with others, that
his anger quickly turns to sadness at times, and that he has been sent to the office numerous
times for disrespecting staff. (Id. at 167-73).

With regard to B.G.S.’s ability to function, Ms.

Godwin opined that in the domain of acquiring and using information, B.G.S. had no problem or
only a “slight problem” in the listed activities. (Id. at 168). With respect to the domain of
attending and completing tasks, Ms. Godwin opined that B.G.S. had a very serious problem with
completing his work accurately without careless mistakes and had a serious problem with
sustaining attention during play/sports activities, completing class and homework assignments,
and working without distracting himself or others. (Id. at 169). She further opined that in other
areas within the domain, such as carrying out single-step instructions, B.G.S. had no problem,
and only a slight problem carrying out multi-step instructions, paying attention when spoken to
directly, changing from one activity to another without being disruptive, and organizing his own
things or school materials. (Id.). With respect to the domain of interacting and relating with
others, Ms. Godwin indicated that B.G.S. had a very serious problem expressing anger
appropriately and that he had a serious problem playing cooperatively with other children and
following rules. (Id. at 170). She found, however, that he had no problem, a slight problem, or

8

an obvious (but not serious) problem with respect to the remaining ten activities in that domain,
such as asking permission appropriately. (Id. at 170, 174). With respect to the domain of caring
for himself, Ms. Godwin opined that B.G.S. had a very serious problem with handling frustration
appropriately, being patient when necessary, identifying emotional needs, responding
appropriately to changes in his own mood, using appropriate coping skills to meet the daily
demands of school, and knowing when to ask for help. (Id. at 171). She also found that B.G.S.
had no problem taking care of personal hygiene. (Id.). With respect to the domain of moving
about and manipulating objects, Ms. Godwin found “no problems.” (Id. at 174). She also noted
that B.G.S. was grieving and suffering from depression after losing both of his grandfathers in
the preceding six months but that his medications made him “able to control [his] moods better.”
(Id. at 172).
The records also document instances in which B.G.S. was disciplined for school rule
violations. On February 22, 2008, he received a major rule violation for malingering, and on
February 29, 2008, he received a major rule violation for failure to follow directions/arguing
with staff.10 (Id. at 206, 280). On August 15, 2008, he received a “disciplinary” for “horseplay,
assault,” and on October 31, 2008, he received a disciplinary for “AWOL, disrespecting staff,
profanity, malingering, [and] failure to follow directions.” (Id. at 228, 231). In addition,
B.G.S.’s daily orientation sheets reflect a system of check marks for good behavior (“go” marks),
and bad behavior (“no go” marks). While there are instances of “no go” marks for behavior such
as being disruptive, being out of uniform, failing to follow directions, and disrespecting the staff,
the vast majority of marks are “go” marks. (Id. at 300-301, 303, 307-09).
The records also reflect that during the two years that B.G.S. attended Compass
10

It was also noted that he had a negative number of days earned in the program. (Tr. at 207).

9

Academy, his grades varied from semester to semester. For example, in October 2006 when he
started, B.G.S. had A’s in Geography, PE, and Life Skills, a B in Science, and an incomplete in
English. (Id. at 158). In March 2007, he had A’s in PE and Life Skills, a B in Math, a C in
Civics, a D in Science, and an incomplete in English. (Id.). In May of 2007, he had A’s in PE
and Life Skills, B’s in Math and Science, an incomplete in Civics, a D in Literature, and an F in
English. (Id. at 158). In the summer of 2007, he had all A’s in Civics, English, PE, and Life
Skills. (Id. at 158). In October 2007, he had A’s in PE and Basic Skills, a B in Math, a C in
Science, and D’s in Reading/English and Social Studies. (Id. at 156). In December 2007,
B.G.S. had incompletes in all subjects.11 (Id. at 157). Notwithstanding the fluctuations in his
grades, in February 2008, Ms. Godwin noted that B.G.S. was working on grade level (eighth
grade) in math, reading, and language.12 (Id. at 167).
The record reflects that B.G.S. withdrew from Compass Academy in April 2009 when he
was in the ninth grade,13 although, as noted above, it is unclear whether the withdrawal was
voluntary. (Id. at 41, 336). At the administrative hearing conducted on August 26, 2009, B.G.S.
testified that he wants to join the Navy and that he is trying to get back in school to obtain his
high school diploma. (Id. at 44-45). Both B.G.S. and his mother testified that his medications
11

Although the record does not contain any reports of B.G.S.’s grades after December 2007, Dr.
West’s January and February 2008 treatment records reflect that B.G.S.’s “[g]rades are good.”
(Id. at 330-31). In March 2008, Dr. West noted that B.G.S.’s grades “just recently started falling
and he is getting in a lot of trouble again.” (Id. at 330). In April and May of 2008, Dr. West
noted that B.G.S. was “doing well” and “not having any problems.” (Id. at 329).

12

The record shows that B.G.S. repeated the first grade. (Tr. at 289).

13

B.G.S. would have been in the tenth grade in August 2009. (Tr. at 41-42). At a hearing
conducted on August 6, 2009, the Conecuh County Board of Education denied B.G.S. readmission to Conecuh County schools. The Board “encourage[d]” B.G.S.’s mother “to seek
alternative schooling for [B.G.S.]” or enroll him “in the GED program at Reid State College”
and offered their assistance in helping him get in school. (Id. at 237).

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were helping with his behavior, attitude, and depression.14 (Id. at 44, 50-51).
b. Medical Evidence
The relevant medical evidence of record shows that B.G.S. began receiving outpatient
therapy from Southwest Alabama Mental Health (“SAMH”) some time in late 2004, when he
was eleven years old and in the fifth grade. (Id. at 166). On December 7, 2004, B.G.S. was seen
by a nurse practitioner at SAMH for a follow up visit and evaluation of his medications.15 (Id.).
B.G.S.’s mother reported that he was “[d]oing good so far” and that he does well “as long as he’s
medicated.” (Id.). In addition, the nurse practitioner noted that his mood was “good,” that he
was alert, oriented, and cooperative, that his affect was appropriate, that his grooming was good,
that his speech, thought process, insight, and judgment were normal, that he was having no
delusions or suicidal thoughts, and that his appetite and sleep were good. (Id.). She continued
his medications according to previous orders. (Id.). On March 1, 2005, B.G.S. returned for a
follow up visit and his mother reported that he was “doing good” in school and had no problems
to report. (Id. at 165). The nurse practitioner noted that his mood was “improved,” and she
continued his treatment with medication. (Id.).
On August 21, 2006, when B.G.S. was thirteen years old, he was seen by Dr. Stephen
West at Barnes Family Medical Associates for a refill of his ADHD/ADD medication.16 (Id. at
252). B.G.S.’s physical examination was normal, and Dr. West refilled his prescriptions for

14

B.G.S.’s mother testified that when the doctor increased his ADHD medication, “it helped a
whole lot.” (Tr. at 51).

15

The record does not reflect which medications B.G.S. was taking at the time.

16

The record reflects that B.G.S. has been treated by Dr. West since at least August 1998. (Tr.
250).

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Metadate and Lexapro.17 (Id.). Dr. West noted, “there is some question about him having
problems with it wearing off in the afternoon and we will just have to see how he does.” (Id.).
On September 21, 2006, B.G.S. returned for a refill of his medication, and Dr. West noted that
the Metadate “has absolutely done wonderful (sic).” (Id. at 253). On October 18, 2006, the
same day that B.G.S. began attending Compass Academy, Dr. West noted, “[t]he child has been
doing well other than his ADD and depression.”18 (Id. at 158, 256). Dr. West conducted an
EPSDT screening19 on this date and noted that B.G.S. shows self-confidence and pride in school,
has a few friends, participates in group activities, understands and complies with rules at home,
and communicates and interacts with the physician. (Id. at 254). From November 2006 through

17

Metadate (or Methylphenidate) is in a class of medications called central nervous system
stimulants and is used to control symptoms of attention deficit hyperactivity disorder (ADHD).
See http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682188.html. Lexapro (or Escitalopram) is an antidepressant. See http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.
html.

18

In addition to seeing Dr. West, B.G.S. was receiving mental health treatment from SAMH at
this time. His records from SAMH dated October 31, 2006, show that he had a GAF score of 60.
(Tr. at 153). GAF (Global Assessment of Functioning) is a numeric scale (0 through 100) used
by mental health clinicians that measures a patient’s overall level of psychological, social, and
occupational functioning on a hypothetical continuum. A GAF score of 41-50 indicates serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious
social dysfunction (e.g., no friends, unable to keep a job). A GAF score of 51-60 suggests
moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers). A GAF score of 61-70 is indicative of mild symptoms (e.g., depressed
mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well, has
some meaningful interpersonal relationships. See http://www.gafscore. com/.

19

The EPSDT (Early and Periodic Screening, Diagnosis, and Treatment) program is a mandatory
set of medical services and benefits for all individuals under age twenty-one who are enrolled in
Medicaid. See http://mchb.hrsa.gov/epsdt/overview.html. The purpose of the EPSDT program
is “to discover, as early as possible, the ills that handicap . . . children and to provide continuing
follow up and treatment so that handicaps do not go neglected.” Id. (internal quotation marks
omitted).

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January 2007, Dr. West noted that the medicine was “absolutely working great,” that B.G.S. was
not having any problems at school, that his grades were improving, and that he was “feeling a lot
better.” (Id. at 256, 258).
On March 7, 2007, when B.G.S was fourteen years old, he was examined by Dr. Lorna
Bland, a psychiatrist at SAMH. Dr. Bland diagnosed B.G.S. with oppositional defiant disorder
(“ODD”) and post-traumatic stress disorder (“PTSD”). (Id. at 163). At the time, B.G.S.’s
mother reported that B.G.S. was having problems at the Compass School and was talking about
killing himself. (Id.). Dr. Bland’s notes reflect that B.G.S. was alert, cooperative, and oriented.
The notes also reflect that B.G.S. had no perceptual disturbances, had good grooming, and his
speech, reaction time, thought process, insight, and judgment were normal. B.G.S. was not
having any delusions, suicidal thoughts, homicidal thoughts, or obsessions. His appetite was
good, and his sleep was fair. (Id.). During his therapy session, B.G.S. told Dr. Bland that he had
nine more weeks added to his program at the Compass School “for talking out in class” and that
he felt guilty about this. (Id. at 164). He also told Dr. Bland that “he really doesn’t want to die.”
(Id.). Dr. Bland formulated a treatment plan which included counseling and a continuation of his
medication therapy. (Id. at 163).
On March 28, 2007, B.G.S.’s mother reported to Dr. Bland that he was not having any
problems. (Id. at 162). Dr. Bland observed that B.G.S. “smiles easily,” that his grooming was
good, that his speech, reaction time, thought process, insight, and judgment were normal, that his
appetite was fair, and that his sleep was good. (Id.). B.G.S. reported that he was not having any
thoughts about killing himself and that he was trying to stop thinking about all the people that he
knows dying. (Id.). He also reported wanting to go to the Navy. (Id.).
On March 29, 2007, B.G.S. returned to Dr. West for a follow up visit. Dr. West’s notes

13

reflect that “[h]e is doing fairly well” and that his “grades are better.” (Id. at 259). From May
through July of 2007, Dr. West continued to note that B.G.S. was “doing well” on his
medications, although he had become “over sedated” on Metadate and was sleeping during
class. (Id. at 259-60). Dr. West discontinued the Metadate, prescribed Adderall, and continued
the Lexapro. (Id. at 259). In Dr. West’s treatment notes for June and July of 2007, he noted that
B.G.S.’s medications were working “wonderful[ly],” that he was “more outgoing,” that he was
“not depressed at all,” that his “grades have been great,”20 that he is doing well in school, and
that he is not having any problems. (Id. at 260). In the treatment notes for the period September
through November of 2007, Dr. West noted that B.G.S. was having “a lot of problems at the
Compass School with his attitude”21 but that his grades were doing “good.” (Id. at 261).

He

also noted that the Lexapro was controlling B.G.S.’s depression. (Id. at 263). In January and
February of 2008, Dr. West noted that B.G.S. was “doing really well,” that his “[g]rades [were]
good,” that the medicine was helping, and that B.G.S. stated that “things are going great and he
is doing great.” (Id. at 330-31).
On March 16, 2008, when B.G.S. was fifteen years old and in the eighth grade at
Compass Academy, Dr. W.G. Brantley conducted a consultative mental examination for the
Agency. (Id. at 289). Dr. Brantley found that B.G.S. had a full scale IQ of 71 on the WISC III
scale and that his adaptive skills were much higher than his cognitive skills. (Id. at 289-90). Dr.
Brantley found no evidence of anxiety or depression and noted that B.G.S. reported that
20

B.G.S.’s school records from Compass Academy at this time show that he had all A’s in
Civics, English, PE, and Life Skills. (Tr. at 158).

21

B.G.S.’s records from SAMH dated October 1, 2007, show that he had a GAF score of 45,
which indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or serious social dysfunction (e.g., no friends, unable to keep a job). See http://www
.gafscore.com/. (Tr. at 276).

14

“‘[g]ood’ is how he feels most days.” (Id. at 290). Dr. Brantley detected no fidgeting or
hyperactive talk and found that B.G.S.’s concentration, attention, memory, and fund of
information were normal and that his understanding and thought processing were consistent with
a borderline IQ. (Id.). He observed no psychomotor agitation or retardation, no flight of ideas or
loose association, no distractibility, and no impulsivity or hyperactivity. (Id.). He found B.G.S.
to be medication compliant with no ADHD features which were not controlled. (Id.). He noted
that B.G.S. spends time with his peer group, plays basketball, attends church, sings in the choir,
enjoys football, and helps his mother with chores, although his mother reported that he does
require some degree of legal supervision because he “associate[es] with gang members,” which
has led to “some juvenile legal indiscretions,” arrests, and probation.22 (Id. at 290-91). Based on
his findings, Dr. Brantley concluded that B.G.S. had a residual minimal expressive language
disorder,23 conduct disorder, ADHD in full remission, and borderline intellectual functioning.
(Id. at 291).

Dr. Brantley set forth the following prognosis: “Difficult to predict.

He is

cognitively and emotionally stable, but has behavioral problems related to a Conduct Disorder
and is on probation. He certainly will benefit from continued schooling and eventual vocational
training. Cooperation was excellent.” (Id.).
The record reflects that on March 31, 2008, B.G.S. was seen by Dr. West, who noted that
B.G.S. was “still having a lot of problems with his grades and they just recently started falling
and he is getting in a lot of trouble again. He has also had to go to a detention center a couple of
times.” (Id. at 330). In April and May of 2008, Dr. West’s notes reflect that B.G.S. had no signs
22

Dr. Brantley noted that B.G.S. had been arrested three times and was under juvenile probation
in Conecuh County. (Tr. at 289).

23

B.G.S. was in speech therapy until the fourth grade. (Tr. at 290).

15

of depression or fatigue, that he was outgoing, that the Lexapro was working, that he had been
experiencing no suicidal or homicidal ideations, and that B.G.S. stated that he was doing well
and not having any problems. (Id. at 329).
On April 1, 2008, State Agency medical and psychological consultants, Francis W.
Sullivan, M.D., and Donald Hinton, Ph.D., reviewed B.G.S.’s records and completed a childhood
disability evaluation.

They opined that even with his impairments of ADHD, depression,

borderline intellectual functioning, conduct disorder, and adjustment disorder with mild
depression, B.G.S. has “less than marked” limitations or “no limitation” in the six domains of
functioning. (Id. at 292-95).
On June 16, 2008, Dr. West completed a childhood disability evaluation form and opined
that B.G.S.’s ADHD24 has caused “marked” impairments in the domains of acquiring and using
information and attending and completing tasks. (Id. at 319). Dr. West opined that B.G.S. had
only “mild” impairments in the domains of interacting and relating with others and moving about
and manipulating objects and a “moderate” impairment in the domain of health and physical
well-being. (Id.).
In a report dated the following day, June 17, 2008, Ms. Godwin, who had been B.G.S.’s
therapist at SAMH for almost two years, observed that despite his diagnoses of ADHD and
adjustment disorder with mild depression, B.G.S. “does well with the medicine prescribed by his
primary doctor” and “continues to work on his impulse control, decision making, and expressing
feelings and thoughts in appropriate ways.” (Id. at 205).

She further noted that B.G.S. “does

still struggle with his attitude and behavior on occasion” and that he would remain at Compass
Academy for several more months. (Id.) (emphasis added).
24

Dr. West based his opinion on the impairment of ADHD. (Tr. at 320).

16

On June 30, 2008, B.G.S. saw Dr. West for a follow up visit. Dr. West’s notes reflect
that B.G.S. was “having a lot of anger issues from where he is in compass school. He wants to
go ahead and be referred to a psychiatrist.” (Id. at 327). Dr. West refilled B.G.S.’s prescriptions
for Adderall and Lexapro and referred him to a psychiatrist. (Id.). On February 10, 2009, when
B.G.S. was almost sixteen years old, Dr. West conducted another EPSDT screening which he
found to be “[a]bnormal . . . secondary to ADD and behavioral problems.” (Id. at 335). Dr.
West noted that B.G.S. was “still having a lot of problems with behavior and . . . still seeing the
pediatric psychiatrist for his ADD.” (Id.).
On July 7, 2009, B.G.S. returned to SAMH for medication monitoring and follow up.
The nurse’s note reflects that B.G.S.’s mother reported no problems and stated that he “is much
better” since she took him out of the Compass School. (Id. at 336). The nurse’s notes also
reflect that B.G.S. was alert, cooperative, and oriented, that his grooming was good, that his
speech, reaction time, thought process, mood, insight, and judgment were normal, that he had no
suicidal thoughts or delusions, and that his appetite and sleep were good. (Id.). In addition, the
psychiatrist25 who treated B.G.S. noted that “there continues to be conflict” between B.G.S.’s
mother and Compass School. (Id.). The psychiatrist further noted, “[B.G.S.] continues to grow
appropriately. His mom says he has a better attitude and has been more respectful so she never
had to start Lexapro.” (Id.). The psychiatrist discontinued Prozac, continued Concerta, and
instructed B.G.S. to return in two to three months. (Id.). On August 26, 2009, B.G.S. and his
mother testified at his administrative hearing that he is still taking Concerta and Lexapro for his
“behavior” and “attitude” and that the medications are helping. (Id. at 44, 50-51).

25

The name of the treating physician on this date is illegible. (Tr. at 336).

17

3.

Whether the ALJ erred in rejecting the opinion of B.G.S.’s
treating physician?

In her brief, Plaintiff argues that the ALJ erred in failing to properly consider the opinion
of B.G.S.’s treating physician, Dr. West, that B.G.S. has “marked” limitations in the domains of
acquiring and using information and attending and completing tasks. (Doc. 14 at 4). Plaintiff
maintains that the ALJ failed to consider the nature and extent of the treating relationship
between B.G.S. and Dr. West, as well as the length of time of the relationship. (Id.). Contrary
to Plaintiff’s assertion, the record reflects that the ALJ found Dr. West’s treatment records to be
persuasive and assigned them significant evidentiary weight. The ALJ declined however to
accord determinative or controlling weight to the opinions contained in Dr. West’s June 16, 2008
childhood disability evaluation because she found the opinions to be inconsistent with Dr.
West’s own treatment records, as well as B.G.S.’s school records and the remaining medical
evidence in the case. (Tr. at 22).
“It 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. Commissioner
of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (citations and internal quotations omitted).
However, the ALJ may discount the treating physician’s report where it is not accompanied by
objective medical evidence, is wholly conclusory, or is contradicted by the physician’s own
record or other objective medical evidence. Id.; see also Green v. Social Sec. Admin., 223 Fed.
Appx. 915, 922-23 (11th Cir. 2007) (unpublished) (ALJ had good cause to devalue a treating
physician’s opinion where it was inconsistent with the medical evidence and plaintiff’s
testimony). “When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless weigh the medical opinion based on the: (1) length of the treatment
relationship and the frequency of examination; (2) the nature and extent of the treatment
18

relationship; (3) the medical evidence and explanation supporting the opinion; (4) consistency
with the record as a whole; (5) specialization in the pertinent medical issues; and (6) other factors
that tend to support or contradict the opinion.” Weekley v. Commissioner of Soc. Sec., 486 Fed.
Appx. 806, 808 (11th Cir. 2012) (citing 20 C.F.R. § 404.1527(c)). Although the ALJ must
evaluate the treating physician’s opinion “in light of the other evidence presented,” “the ultimate
determination of disability is reserved for the ALJ.” Green, 223 Fed. Appx. at 922-23 (citing 20
C.F.R. §§ 404.1513, 404.1527, 404.1545)).
The evidence in the present case shows that while B.G.S. had a lengthy doctor-patient
relationship with Dr. West, which included regular treatment for ADHD, depression, and various
other childhood ailments, Dr. West’s opinion that B.G.S.’s ADHD caused “marked” limitations
in the domains of acquiring and using information and attending and completing tasks is
unsupported by his own treatment records and the record as a whole. From 2006 to 2009, Dr.
West prescribed either Metadate, Adderall, or Lexapro for B.G.S.’s ADHD and depression, and
his treatment notes are replete with comments that B.G.S. was doing “well,” “great,” and
“wonderful[ly]” on his medication. (Id. at 253, 256, 258-60, 330-31). Dr. West also conducted
periodic EPSDT screenings and, with one exception in February 2009 (id. at 335), he noted that
B.G.S. shows self-confidence and pride in school, has friends, participates in group activities,
understands and complies with rules at home, and communicates and interacts with the
physician. (Id. at 254, 262). Likewise, the vast majority of Dr. West’s office notes reflect that
B.G.S. was not having problems at school, that his grades were “good,” and that he was “feeling
a lot better.” (Id. at 256, 258-60, 329-31). Although there are references in the record to B.G.S.
having behavioral or school performance problems, those instances are the exception, not the
rule. (Id. at 261, 330, 335). When considered in toto, Dr. West’s opinion that B.G.S.’s ADHD

19

left him with “marked” impairments in his ability to acquire and use information and in his
ability to attend and complete tasks is not supported by his own treatment records.
Dr. West’s opinion is also inconsistent with the remaining medical evidence in the case,
including the opinion of consultative examining psychologist, Dr. Brantley, who opined that
although B.G.S. has an IQ of 71, his adaptive skills are much higher than his cognitive skills, and
his concentration, attention, memory, and fund of information are normal. (Id. at 290). Dr.
Brantley also found B.G.S. to be medication compliant, with no ADHD features which were not
controlled, and found no evidence of anxiety or depression. (Id. at 289-90). Dr. Brantley stated
that B.G.S.’s understanding and thought processing were consistent with his IQ. (Id. at 290).
B.G.S. told Dr. Brantley that “[g]ood” is how he feels most days. (Id. at 290). Although Dr.
Brantley opined that B.G.S.’s prognosis was “difficult to predict,” he explained that B.G.S. “is
cognitively and emotionally stable, but has behavioral problems related to a Conduct
Disorder[.]” (Id. at 291). Dr. Brantley opined that B.G.S. would “certainly . . . benefit from
continued schooling and eventual vocational training,” noting that B.G.S.’s “[c]ooperation was
excellent.” (Id.).
Similarly, Dr. West’s opinion is inconsistent with that of SAMH therapist Elizabeth
Godwin that B.G.S. has no more than a “slight problem” with respect to the domain of acquiring
and using information and that he has a serious or a very serious problem with only four (out of
thirteen) activities listed under the domain of attending and completing tasks. (Id. at 168-69). In
addition, Dr. West’s opinion is inconsistent with the opinions of State Agency medical and
psychological consultants, Francis W. Sullivan, M.D., and Donald Hinton, Ph.D., who concluded
that, even with the impairments of ADHD, depression, borderline intellectual functioning,
conduct disorder, and adjustment disorder with mild depression, B.G.S. has “less than marked”

20

limitations in the domains of acquiring and using information and attending and completing
tasks. (Id. at 294).
Finally, Dr. West’s opinion is inconsistent with B.G.S.’s school records and the evidence
of his activities of daily living. For example, while B.G.S.’s grades varied from semester to
semester, the fact that he was periodically able to earn high and even excellent marks in math,
science, geography, English, and social studies and stay on grade level reflects an ability to
acquire and use information and to attend and complete tasks. (Id. at 156, 158-59, 167).
Likewise, although B.G.S.’s mother reported that he has trouble getting along with teachers,
playing team sports, understanding, carrying out, and remembering simple instructions,
understanding stories in books, studying and doing homework, accepting criticism or correction,
keeping out of trouble, obeying rules, avoiding accidents, finishing things he starts, and
completing homework and chores (id. at 131-34), she also reported that he can take care of
personal hygiene, wash and put away his clothes, help around the house, get to school on time,
take needed medication, use public transportation by himself, ask for help when needed, answer
and talk on the telephone, read and understand sentences, spell words of more than four letters,
tell time, add and subtract numbers over ten, multiply and divide numbers over ten, make correct
change, make friends, get along with adults and siblings, and keep busy on his own. (Id. at 13034). In the most recent medical entry in the record dated July 7, 2009, an attending psychiatrist
at SAMH noted that “[B.G.S.] continues to grow appropriately. His mom says he has a better
attitude and has been more respectful so she never had to start Lexapro.” (Id. at 336). This
evidence, as well as the evidence set forth above, is inconsistent with Dr. West’s opinion that
B.G.S. has a “marked” limitation in his ability to acquire and use information and to attend and
complete tasks.

21

As discussed above, the ALJ articulated specific reasons for declining to give controlling
weight to Dr. West’s opinion. (Tr. at 22). In addition, the ALJ articulated specific reasons for
assigning significant weight to the opinions of consultative examining psychologist Dr. Brantley
and non-examining26 State Agency medical and psychological consultants, Francis W. Sullivan,
M.D., and Donald Hinton, Ph.D., stating that their opinions were consistent with the other
credible record evidence. (Id.).
When an ALJ articulates specific reasons for declining to give a treating physician’s
opinion controlling weight, and the reasons are supported by substantial evidence, there is no
reversible error. See Forrester v. Commissioner of Social Sec., 455 Fed. Appx. 899, 902 (11th
Cir. 2012) (unpublished). Indeed, an ALJ “may reject any medical opinion, if the evidence
supports a contrary finding.” Id., 455 Fed. Appx. at 901. Moreover, an ALJ may rely upon and
credit the opinions of non-treating sources over those of a treating physician if the evidence
supports the opinions of the non-treating sources but not the opinions of the treating physician.
Id., 455 Fed. Appx. at 902. Having reviewed the ALJ’s analysis and all of the evidence in this
case, the Court finds that the ALJ did not err by not according controlling weight to the opinions
expressed in Dr. West’s childhood disability evaluation dated January 16, 2008.

Indeed,

substantial evidence, including the treatment records of Dr. West, the evaluation by Dr. Brantley,
and the SAMH records, support the ALJ’s determination that B.G.S. does not meet or equal a
26

Defendant is correct that the ALJ was “required to consider the opinions of non-examining
state agency medical and psychological consultants because they ‘are highly qualified physicians
and psychologists who are also experts in Social Security disability evaluation.’” Milner v.
Barnhart, 275 Fed. Appx. 947, 948 (11th Cir. 2008) (unpublished) (quoting 20 C.F.R. §
404.1527(f)(2)(i)). “The ALJ may rely on opinions of non-examining sources when they do not
conflict with those of examining sources.” Id. In this case, the opinions of non-examining
medical and psychological consultants, Drs. Sullivan and Hinton, were supported by substantial
evidence in the record, including Dr. West’s treatment records, B.G.S.’s school records, and the
opinions and conclusions of consultative psychologist, Dr. Brantley.

22

listing and does not have marked limitations in at least two domains or an extreme limitation in
one domain so as to functionally equal a listing. (Tr. at 23, 31). Thus, B.G.S. is not disabled
under the Act.
V.

Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative

record and memoranda of the parties, it is hereby ORDERED that the decision of the
Commissioner of Social Security, denying Plaintiff’s claim for supplemental security income, be
AFFIRMED.
DONE this 13th day of March, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

23