Robinson v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 1/16/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHELIA ROBINSON, o/b/o D.R.,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commission of Social Security,:
:
Defendant.
:

CIVIL ACTION 12-0356-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff1
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income for Children
(hereinafter SSI) (Docs. 1, 13-14).

The parties filed written

consent and this action has been referred to the undersigned
Magistrate Judge to conduct all proceedings and order the entry
of judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73 (see Doc. 21).
action (Doc. 20).

Oral argument was waived in this

Upon consideration of the administrative

record and the memoranda of the parties, it is ORDERED that the
decision of the Commissioner be AFFIRMED and that this action be
DISMISSED.

1

Although this action was actually brought by his Mother, the
Court will refer to the Child as the Plaintiff.

1

This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the administrative hearing, Plaintiff was
nine years old and had completed a third-grade education (Tr.
31).

In claiming benefits, Plaintiff alleges disability due to

Attention Deficit Hyperactivity Disorder (hereinafter ADHD),
(Doc. 13).
The Plaintiff filed an application for SSI on March 25,
2009 (Tr. 88-91; see also Tr. 10).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although Robinson suffered from ADHD, he was not
disabled (Tr. 10-22).

Plaintiff requested review of the hearing

decision (Tr. 84-86) by the Appeals Council, but it was denied
(Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence.
alleges that:

Specifically, Robinson

(1) The ALJ did not properly consider the

opinions of the examining psychologist; and (2) the ALJ
improperly determined that he did not have marked impairments in
at least two of the functional equivalence domains (Doc. 14).
Defendant has responded to—and denies—these claims (Doc. 16).
The evidence of record follows.
On May 18, 2009, a questionnaire was completed by
Robinson’s second-grade teacher, Carolyn Powe (Tr. 155-22).

The

Teacher noted that she had spent seven hours a day, five days a
week for nine months with him; he had been absent a lot, going
to the Alternative School and seeing his doctor for ADHD.

She

noted that he had a slight problem with acquiring and using
information and stated that he is constantly moving around,
having a hard time staying focused (Tr. 116).

Powe indicated

that Plaintiff has a serious problem with attending and
completing tasks and with interacting and relating with others;
she has had him removed from the classroom, moved him around
within the classroom, sent him to the principal’s office,
arranged for student-teacher conferences, and other things to
combat the problem (Tr. 117-18).
did not work independently.

The Teacher stated that Davis

Plaintiff has no problems with

moving about and manipulating objects (Tr. 119).

Although

Robinson can take care of his personal and physical needs, he

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has serious problems with being patient, handling frustration,
and dealing with his emotional needs (Tr. 120).

Powe noted that

Plaintiff was calmer after taking his medication (Tr. 121).
Third grade school records show that Robinson scored B-’s
in language, math, science, and social studies, and a D+ in
reading for the year (Tr. 156).
Treatment records show that Dr. Huey Kidd treated Plaintiff
for coughs, sore throats, and an instance of lymphadenopathy
from December 2007 through March 2009 (Tr. 157-66).
Records from Southwest Alabama Mental Health (hereinafter
SAMH) show that Robinson was first examined on November 19, 2008
for hyperactivity and getting into trouble at school (Tr. 16785).

On March 2, 2009, Plaintiff was diagnosed with ADHD,

impulsive type, with a GAF of 402 (Tr. 181).

His treatment plan

included individual therapy, family support, medications, and
diagnostic testing (Tr. 174).

On April 24, it was noted that

medications were changed due to continued problems at school
(Tr. 170).

On May 15, 2009, Robinson’s mother said that he was

doing better in school and at home; his teachers reported that
he was more focused and less active (Tr. 168).

2“A GAF score indicates serious symptoms (e.g., suicidal

ideation, severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job).” http://www.gafscore.com/

4

On May 26, 2009, William H. Simpson, Ph.D.,3 a non-examiner
for the Social Security Administration, completed a Childhood
Disability Evaluation Form, in which he indicated that Robinson
suffered from ADHD, impulsive/hyperactive type (Tr. 186-91).
Simpson went on to find that Plaintiff had less than marked
limitations in his ability to acquire and use information,
attend and complete tasks, and interact and relate with others,
and that he had no limitations in moving about and manipulating
objects, caring for himself, and health and physical well-being.
These determinations were made based on the evidentiary record
in existence at that time.
On June 18, 2009, records from SAMH show that Plaintiff’s
Mother reported that he was only presenting behavioral problems
occasionally (Tr. 198).

On August 21, Robinson was reported to

be doing well and that no problems had been reported at school;
he was noted to be stable (Tr. 195-96).

On October 16, the

Mother said that Plaintiff was doing ok though he was getting
hyper at school in the afternoons; his medications were adjusted
(Tr. 193-94).

On December 18, 2009, Robinson was characterized

as stable (Tr. 210).

On January 22, 2010, Plaintiff’s Mother

said that he was doing well and had improved grades in school;

3

Neither Simpson nor the Social Security Administration provides
any indication of his educational experience or profession. As he is
providing a mental health evaluation, the Court will presume he is a
Psychologist.

5

the increased medication dose in the afternoon helped with
hyperactivity (Tr. 209).
stable (Tr. 208).

On March 19, Robinson was noted to be

On May 4, Plaintiff’s Grandmother reported

that he was doing well in school and had not gotten into trouble
in a long time (Tr. 207).

Robinson was said to be doing well on

June 15 and characterized as stable several days later (Tr. 20506).
On July 7, 2010, Plaintiff was seen by Psychologist John R.
Goff who noted that he had access to other evidentiary evidence
of record (Tr. 213-19).

On examination, Robinson’s discourse

was logical and coherent and he put forth adequate effort.

On

the WISC-IV, Plaintiff received a full scale IQ score of 76,
signaling borderline range of psychometric intelligence; this
score was incompatible with scores from the Otis-Lennon School
Ability Index which indicated average scores.

The Reitan-

Indiana Aphasia Screening Test demonstrated that he could, at
least, read at the second grade level and that he was having
trouble reading at the fourth grade level; he could perform
simple math problems on paper, but could not do them in his
head.

On the WIAT-II, Robinson received scores in the average

range though his comprehension was at the third grade level;
other scores were at the fourth grade level.
spelling.

He did well in

The Quotient ADHD System showed that Plaintiff was in

motion a good deal, but was still able to maintain his focus,

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maybe explaining why his grades had not been affected by his
hyperactivity.

Goff noted no thought or mood disorders and

stated that Robinson functioned in an age appropriate manner in
cognition and communication; the Psychologist noted deficits in
concentration, persistence, and pace.

Goff’s diagnosis was ADHD

of the hyperactive/impulsive type; he ruled out Oppositional
Defiant Disorder.

Goff went on to give his opinion that

Plaintiff had marked limitations in his ability to attend and
complete tasks and in interacting and relating with others (Tr.
218).
At the evidentiary hearing, Robinson’s Mother testified
that he does not do the things around the house that she asks
him to do; he gets distracted and starts to play (Tr. 35).

The

Mother testified that her son had been sent to the Alternative
School three or four times and had had four or five in-school
suspensions in the previous year (Tr. 36).

Robinson cannot sit

and watch a thirty-minute cartoon; he cannot stand in line and
wait with others (Tr. 37).

Plaintiff would not share with

others, but would fight with them (Tr. 37-38).
In her decision, the ALJ determined that Robinson suffered
from ADHD, but that he was not disabled (Tr. 10-22).

In

reaching this decision, the ALJ summarized all of the evidence
of record and then determined that great weight was to be given
to the conclusions of non-examiner Simpson; less weight was

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given to the opinions of Psychologist Goff (Tr. 16).

Little

weight was given to the Teacher Questionnaire completed by Powe
(id.).

The ALJ found that Plaintiff’s symptoms “are controlled

with medication and that he has no ‘marked limitation in any of
the functional equivalence domains,’” stating that the “finding
is supported by the testimony of the claimant’s mother” (Tr.
16).

This concludes the relevant evidence of record.
In bringing this action, Robinson has asserted that the ALJ

did not properly consider the opinions of the examining
Psychologist.

More specifically, Plaintiff asserts that the ALJ

improperly rejected the opinions of Psychologist Goff and
Teacher Powe (Doc. 14, pp. 7-9).

Plaintiff has also expressed

concern that the ALJ accepted the opinion of a non-examining
physician over that of an examining physician.

It should be noted that "although the opinion of an

examining physician is generally entitled to more weight than
the opinion of a non-examining physician, the ALJ is free to
reject the opinion of any physician when the evidence supports a
contrary conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084

(5th Cir. 1981);4 see also 20 C.F.R. § 404.1527 (2012).

The

Court further notes that the opinion of a non-examining doctor

4

The Eleventh Circuit, in the en banc decision Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent
decisions of the former Fifth Circuit rendered prior to October 1,
1981.

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“is entitled to little weight and taken alone does not
constitute substantial evidence to support an administrative
decision.”

Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir.

1990) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir.
1985)).

The Court first notes that there is very little evidence in
this record.

The Court further notes that the evidence

available to Simpson, at the time he completed his report, was
even smaller.

Since he did not examine Robinson himself, he had

to rely on the records submitted by Plaintiff’s Mother, the
Teacher Questionnaire contributed by Powe, and seven months of
notes from Southwest Alabama Mental Health.

The Court cannot

say that Simpson’s conclusions are supported by the evidence he
cites.
However, the Court finds that the medical evidence from the
record, as a whole, supports the ALJ’s conclusions, which happen
to be the same as Simpson’s.

Specifically, the ALJ found that

“[w]hile [Powe’s] assessment may have been completely accurate,
it was not completed at a time when the claimant’s medication
had been fully optimized.

[L]ater medical records show that the

claimant’s mother reported that his behavior improved at school
and that there were far fewer problems in the third grade” (Tr.
16).

The Court finds the ALJ’s determination, in rejecting

Powe’s findings, to be supported by SAMH’s later records.

9

Plaintiff has asserted, in connection with this claim, that
the ALJ stated that Simpson’s report was supported by Robinson’s
Mother’s testimony; Plaintiff goes on to point out testimony
that contradicts the ALJ’s finding (Doc. 14, p. 7; cf. Tr. 3338).

The Court notes that records from SAMH clearly show that

Robinson’s Mother and Grandmother stated that the Child had
shown improvement with changes in his medication and was doing
much better.

Although not clearly stated by the ALJ, her

decision implicitly finds that the statements made to SAMH by
the Mother are the statements she believed.
As for Psychologist Goff, the ALJ found that less weight
was to be given to his opinion that Plaintiff had marked
limitations in the domains “Attending and Completing Tasks” and
“Interacting and Relating with Others” (Tr. 16).

The ALJ went

on to specifically note that the
opinion is not consistent with the treatment
notes of the claimant’s therapist or
psychiatrist. It is also inconsistent with
Dr. Goff’s own examination notes. He
reported that the claimant’s social skills
were fine on the day of examination in spite
of not having taken his medication, that
this claimant reported having many friends,
and that adequate rapport was established.
He also reported that objective testing of
the claimant’s attention showed normal
results.
(Tr. 16).

10

The Court finds substantial support for the ALJ’s
conclusions in rejecting Psychologist Goff’s conclusions.
Plaintiff has also claimed that the ALJ improperly
determined that he did not have marked impairments in at least
two of the functional equivalence domains, “Attending and
Completing Tasks” and “Interacting and Relating with Others”
(Doc. 14, pp. 9-11).

In making this claim, Robinson relies on

the evidence provided in Powe’s Questionnaire and the testimony
given at the evidentiary hearing by his Mother.
The Court has already found substantial support for the
ALJ’s conclusion in giving little weight to the Teacher’s
evaluation, as evidence from SMAH over the course of the year
following that evaluation showed much improvement with the
adjustment of medications.

The Court has also already noted

that the Mother’s testimony at the hearing is at odds with
statements made to SAMH and that the ALJ, in her decision,
implicitly credited the SAMH testimony over the other.
Court can find no error in that decision.

The

The Court also finds

no error in the ALJ’s finding that Goff’s determinations were
not supported by the evidence.
Plaintiff has raised two claims in bringing this action.
The Court finds no error in the ALJ’s reasoning with regard to
these two claims.

Although the Court cannot say that the ALJ’s

decision is supported by overwhelming evidence, it is supported

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by substantial evidence.
Upon consideration of the entire record, the Court finds
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."

Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the Secretary's decision be
AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.
1980), and that this action be DISMISSED.

Judgment will be

entered by separate Order.
DONE this 16th day of January, 2013.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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