Mason v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER entered.. Oral argument was waived in this action (Doc. 21). 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 7/6/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LORINE MASON o/b/o
ELIZABETH LEE MASON,

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

CIVIL ACTION 10-621-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, 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. 22).
action (Doc. 21).

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

1

The Court will refer to the child, Elizabeth, as the Plaintiff

1

DISMISSED.
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 most recent administrative decision,
Plaintiff was ten years old and had completed a third-grade
special education (Tr. 396-97).

In claiming benefits, Plaintiff

alleges disability due to mild mental retardation, attention
deficit hyperactivity disorder (hereinafter ADHD), oppositional
defiant disorder, and seizure disorder (Doc. 13).
The Plaintiff filed an application for SSI on September 27,
2005 (see Tr. 350).

Benefits were denied following a hearing by

an Administrative Law Judge (ALJ) who determined that although

although this action was brought by her mother.

2

Mason suffered from severe impairments, she was not disabled
(Tr. 347-64).

Plaintiff requested review of the hearing

decision (Tr. 365) by the Appeals Council which determined that
the ALJ had not adequately evaluated the evidence regarding
Mason’s intellectual status (Tr. 371-74).

Following another

evidentiary hearing, the ALJ determined that although she had
severe impairments, Plaintiff was not mentally retarded and was
not disabled (Tr. 18-38).

Plaintiff requested review of the

hearing decision (Tr. 12-14) by the Appeals Council, but that
request was denied (Tr. 6-8).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Mason alleges

(1) The ALJ erred in finding that she did not have mild

mental retardation; (2) the ALJ erred in failing to find that
she did not meet the requirements of Listing 112.05C or 112.05D;
and (3) the ALJ did not provide any rationale for his findings
regarding medical equivalence (Doc. 14).

Defendant has

responded to—and denies—these claims (Doc. 17).

The relevant

evidence of record follows.2
School records from F. S. Ervin Elementary School show that
Mason scored mostly unsatisfactory scores in kindergarten; she

2

The Court will only summarize the evidence specifically relevant

3

was absent one out of every seven days (Tr. 86-88).

Third grade

records demonstrate satisfactory marks in all categories rated
excellent, satisfactory, or unsatisfactory for the first and
second grading periods (Tr. 95).

Mason received an A in health

(with a score of 90) and a C in spelling (with a score of 74) in
the first grading period while receiving a modified grade of C
in fourth grade reading (with a score of 73) and a B in Health
(with a score of 85) in the second grading period.
On October 4, 2006, a Psycho-Educational evaluation of
Mason was completed for the Wilcox County School System by a
Psychometrist; test results were considered valid and a reliable
estimate of Plaintiff’s cognitive skills and abilities (Tr. 10213).

On the Wechsler Intelligence Scale for Children-Fourth

Edition (WISC-IV), Mason had a verbal comprehension (VCI) score
of 63, a perceptual reasoning (PRI) score of 65, a working
memory (WMI) score of 91, a processing speed (PSI) score of 68,
and a full scale (FSIQ) score of 63 (Tr. 104); her FSIQ was in
the extremely low range of intelligence.

On the Comprehensive

Test of Nonverbal Intelligence (C-TONI), Plaintiff scored an
overall intelligence quotient of 80 which falls in the below
average range of nonverbal ability.

to the claims raised herein.

4

On the Woodcock-Johnson III

Test of Achievement (WJ-III), Mason was found to be low average
in her oral skills, academic skills, written language, broad
reading and written expression; her abilities in mathematics and
the ability to apply academic skills were very low as was her
overall level of achievement.

Plaintiff “demonstrated a

significant relative weakness in mathematics” (Tr. 109).

On the

Behavior Assessment System for Children-Second Edition (BASC-2)
Teacher/Parent Rating Scales, Plaintiff’s teacher indicated
significant concerns in the area of learning problems, adaptive
skills, adaptability, and social skills; Mason’s mother
indicated concerns in the area of depression and atypicality.
The Psychometrist interviewed the teacher stated that Plaintiff
is stubborn and rarely participates in class though she
“interacts and gets along with her peers and teacher well;” she
indicated that Plaintiff “received modifications and
accommodations such as an increased amount of time to complete
activities” (Tr. 112).

It was the teacher’s opinion that

Plaintiff did not need special education services so much as
one-on-one assistance.
On March 25, 2008, Plaintiff’s school teacher, Gladys P.
Witherspoon, completed a questionnaire in which she stated that
Mason performed below grade level compared to other children,
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indicating that she could not work independently and went to the
special education classroom; she was not, however, a behavior
problem and had no problems with social skills (Tr. 98-101).
Witherspoon indicated that Plaintiff had extreme limitation in
her ability to acquire and use information and attend and
complete tasks; extreme limitation was defined as “a limitation
that interferes very seriously with the ability to independently
initiate, sustain or complete activities” (Tr. 101).
School records show that in the fourth grade, Plaintiff
scored satisfactory in all classes and an A in health (with a
score of 100) for the first and second grading periods (Tr.
115).

On the Stanford Achievement Test, Plaintiff scored in the

low range for reading and mathematics, while scoring middle
range in language (Tr. 116).
On January 24, 2005, Dr. Timothy S. Baltz, at the Cahaba
Center for Mental Health, examined Plaintiff and noted that she
was very alert but was very quiet; he further noted that she
“[s]huts down, and doesn’t talk anymore after a period of time”
(Tr. 274-75).

The Psychiatrist’s diagnosis was ADHD combined

type, oppositional defiant behavior, seizure disorder, enuresis,

6

and constipation; he prescribed Metadate.3

On June 13, Baltz

noted that Mason’s “teacher was bragging on the big improvement
in her behavior at the end of the school year” in kindergarten
(Tr. 273).

Plaintiff’s mother said that she was behaving a

little better at home as well.

On November 14, Baltz saw Mason

and added probable borderline IQ to her diagnosis (TR. 290).

On

March 8, 2006, the Psychiatrist did a mental status exam and
noted that Plaintiff gets confused on her ABC’s and in counting
to twenty; he prescribed Focalin4 and discharged the Metadate
prescription (Tr. 289).

On May 10, Baltz noted that Mason talks

to herself, but knew her ABC’s and could count to twenty (Tr.
288).

On September 19, the Psychiatrist noted that Plaintiff

was doing much better in school, though she was in special
education (Tr. 321).
On January 22, 2007, Neuropsychologist John Goff examined
Plaintiff and noted that she was shy, had logical and coherent
discourse though sparse, but seemed slow in her motor movements
(which may be because of medications) (Tr. 309-14).

Mason was

given the WISC-IV and obtained a full scale IQ score of 52, the

3

Metadate is a central nervous system stimulant used in the
treatment of ADHD. Error! Main Document Only.Physician's Desk
Reference 3261-64 (62nd ed. 2008).
4
Focalin is used in the treatment of Attention Deficit
Hyperactivity Disorder in patients six and older. Error! Main
Document Only.Physician's Desk Reference 2239 (62nd ed. 2008).

7

lower end of the mildly retarded range of psychometric
intelligence; all of her index scores fell within the mildly
retarded range with particularly low scores on the memory
subscales.

Her expressive vocabulary skills were better.

On

the Reitan-Indiana Aphasia Screening Test for Children, she had
particular difficulties with math and its symbols.

On the Wide

Range Achievement Test (WRAT-IV), Plaintiff’s word reading and
spelling scores were at the beginning-first grade level while
her sentence comprehension and math computation scores were at
the beginning-kindergarten level; Mason was in the second grade.
It was Goff’s impression that Plaintiff would be classified as
educable mentally retarded; “she did not function at an age
appropriate manner in terms of her cognition or communication”
(Tr. 312).

The Neuropsychologist further noted that Mason “has

some minor difficulties with motor coordination and [] needs
assistance in dealing with her daily activities skills, such as
dressing, eating and grooming and such” (id.).

Goff’s diagnosis

was “rule out Cognitive Disorder, NOS, Associated with a Seizure
Disorder [and; low-mild mental retardation” (id.).

The

Neuropsychologist completed a Broad Functional Limitations Form
in which he indicated that Plaintiff had extreme limitation in
her ability to acquire and use information and marked limitation
8

in her ability to attend and complete tasks and interact and
relate to others.
On February 20, 2007, Dr. Baltz noted that Plaintiff had
made all A’s and B’s, though in special education; she knew her
ABC’s (Tr. 320).

On the same date, the doctor dropped the

probable in Mason’s diagnosis of probable borderline IQ (Tr.
319).

Baltz saw Plaintiff on July 17 and October 16, 2007, and

on the latter date, noted that Plaintiff was making B’s and C’s
in school; she was restless throughout the examination (Tr.
318).

On February 19, 2008, Mason’s mother reported that she

was acting better at home; Baltz noted that she was restless
during the examination (Tr. 339).

On June 17, the Psychiatrist

noted that Plaintiff was not so restless (Tr. 338).

On November

18, Dr. Baltz examined Mason but noted nothing new (Tr. 344).
On November 5, 2008, Psychologist Nina E. Tocci examined
Plaintiff whose affect was appropriate, normal, and stable; she
spoke without impediment (Tr. 332-37).

She was oriented to

time, place, and person and demonstrated fair attention and
scattered concentration; she had a poor fund of information and
comprehension.

Thought content was appropriate but she had

little insight into her behavior and poor social judgment; Tocci
thought that she was functioning within the mentally retarded
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range of intellectual ability.

On administration of the WISC-

IV, Plaintiff a Full Scale composite score of 50; her “overall
performance is classified in the mentally retarded range,”
though Tocci indicated the results were questionable (Tr. 334).
In summarizing, the Psychologist noted that Mason was
functioning within the mentally retarded range of intellectual
ability, though she noted, based on the previous testing records
in the file, that the diagnosis of mental retardation was not
appropriate.

Tocci completed a medical source statement in

which she indicated that Plaintiff was extremely limited in her
ability to understand, remember, carry out, and make judgments
on complex instructions; Mason was markedly limited in her
ability to make judgments on simple work-related decisions and
respond appropriately to usual work situation and to changes in
a routine work setting.
At the evidentiary hearing, Plaintiff’s mother testified
that her daughter would be ten years old the next month and that
she was in the fourth grade in special education (Tr. 393-403).
Mason was doing better in the special education classes; she has
problems with memory.
Psychologist Doug McKeown testified at the hearing, as a
medical expert (hereinafter ME), that he was familiar with
10

Plaintiff’s medical record and summarized the evidence on the
record (Tr. 404-09).

The ME noted that the testing suggested

that Mason had significant cognitive limitations, but that Dr
Baltz had consistently found her to have borderline intellectual
function; the medications seemed to have stabilized and Mason
was doing better in school and other activities as a result.
Though testing consistently suggested mild mental retardation,
her achievements demonstrated higher functioning.

He suggested

that she had less than marked limitations in the domains of
acquiring and using information, attending and completing tasks,
and interacting and relating with others.

It was McKeown’s

opinion that Mason was functioning in the 60-to-70 IQ range and
that that would be a lifelong level.

When questioned by

Plaintiff’s attorney, the ME stated that he had noted that
Psychologist Goff and Mason’s teacher had both indicated that
Plaintiff was extremely limited in her ability to acquire and
use information, but that he had a problem with that conclusion
because that was her highest area of functioning.

McKeown noted

that Dr. Baltz had given Mason a GAF score of 50.
In his determination, the ALJ first summarized all of the
medical evidence of record (Tr. 18-38).

He then found that

Plaintiff’s ADHD is controlled with medication.
11

The ALJ found

that Plaintiff’s testimony was not credible in that the
limitations were inconsistent with the record evidence.

In

reaching his determination that Mason was not disabled, the ALJ
“relied heavily upon the opinion of the impartial medical
expert,” gave substantial weight to Dr. Baltz’s assessment and
opinions, and gave little weight to Psychologist Goff’s opinion
regarding Plaintiff’s mental functioning.

The ALJ further

indicated that the opinions of Dr. Freij and Tocci were of
considerable probative value; although the teacher’s opinion was
of considerable probative value, he gave little weight to her
opinion of Mason’s extreme limitations.

The ALJ went on to find

that Plaintiff had less than marked limitations in acquiring and
using information, attending and completing tasks, and
interacting and relating with others while she had no
limitations in her ability to move about and manipulate objects,
care for herself, and in her health and physical well-being.
This concludes the relevant medical evidence of record.
Plaintiff has raised three claims in bringing this action.
Those claims are that (1) the ALJ erred in finding that she did
not have mild mental retardation; (2) that the ALJ erred in
finding that she did not meet the requirements of Listing
112.05C or 112.05D; and (3) that the ALJ did not provide any
12

rationale for his findings regarding medical equivalence (Doc.
14).

Because the Court finds these claims to be intertwined,

the Court will examine them together rather than breaking them
into their component parts.
Mental Retardation is a disorder “characterized by
significantly subaverage intellectual functioning (an IQ of
approximately 70 or below) with onset before age 18 years
and concurrent deficits or impairments in adaptive
functioning.”

Diagnostic and Statistical Manual of Mental

Disorders, 4th ed. Text Revision (hereinafter DSM-IV-TR or
Manual), p. 39.

Expanding this definition, the Manual goes

on to state:
The essential feature of Mental Retardation
is significantly subaverage general
intellectual functioning (Criterion A) that
is accompanied by significant limitations in
adaptive functioning in at least two of the
following skill areas: communication, selfcare, home living, social/interpersonal
skills, use of community resources, selfdirection, functional academic skills, work,
leisure, health, and safety (Criterion B).
The onset must occur before age 18 years
(Criterion C).

DSM-IV-TR, p. 41.

The Manual states, though, that “Mental

Retardation would not be diagnosed in an individual with an IQ
lower than 70 if there are no significant deficits or
13

impairments in adaptive functioning.”

DSM-IV-TR, p. 42.

“Adaptive functioning refers to how effectively individuals cope
with common life demands and how well they meet the standards of
personal independence expected of someone in their particular
age group sociocultural background, and community setting.”
DSM-IV-TR, p. 42.
The social security listing of impairments for children
essentially tracks the language of the DSM-IV-TR.

Specifically,

Listing 112.05 is “[c]haracterized by significantly subaverage
general intellectual functioning with deficits in adaptive
functioning.”

20 C.F.R. Part 404, Subpart P, Appendix 1,

Listing 112.05 (2010).

Listing 112.05C requires “[a] valid

verbal, performance, or full scale IQ of 59 or less” while
Listing 112.05D requires “[a] valid verbal, performance, or full
scale IQ of 60 through 70 and a physical or other mental
impairment imposing additional and significant limitation of
function.”

20 C.F.R. Part 404, Subpart P, Appendix 1, Listings

112.05C and D (2010).

The Eleventh Circuit Court of Appeals has

held that “a valid I.Q. score need not be conclusive of mental
retardation where the score is inconsistent with other evidence
in the record of the claimant’s daily activities and behavior.”
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citing
14

Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986).
In this action, the ALJ credited Dr. Baltz’s assessment and
opinions, doing so because the Psychiatrist is a medical doctor
and Mason’s treating physician.
determinations.

These are reasonable

While Plaintiff is correct in asserting that

Dr. Baltz did not have objective criterion, i.e., IQ tests, in
reaching his determination that she functioned within the
borderline range of intelligence, he did have more than three
years of personal interaction with her through his examinations.
The ALJ rejected Psychologist Goff’s opinion, finding that
he had only a one-time examination and that he was not as
qualified to make a determination as the Psychiatrist.

While a

Neuropsychologist is a specialist, the ALJ felt that a
Psychiatrist was more qualified; the Court is in no position to
find otherwise.

Furthermore, while the Court agrees with Mason

that it was inappropriate for the ALJ to have remarked that
Goff’s opinion was purchased (“It is emphasized that the
claimant underwent the examination that formed the basis of the
opinion in question not in an attempt to seek treatment for
symptoms, but rather, through attorney referral and in
connection with an effort to generate evidence for the current
appeal.

Further, the doctor was presumably paid for the
15

report”), it is not reversible error in light of the other
evidence of record (Tr. 32).

The Court further notes that

Baltz’s opinion that Plaintiff was not mentally retarded was
also the independent conclusion of Psychologist Tocci (Tr. 335).
In addition, ME McKeown reached the same conclusion (see Tr. 40409).
With regard to the assertion that Plaintiff satisfied the
listing requirements, the IQ tests would seem, at first blush,
to support a conclusion of disability.

However, school reports

and Mason’s Mother’s reports to the Psychiatrist indicated that
Plaintiff functions well in the school setting from time-totime; though her grades were not consistently at peak
performance—and, yes, the Court is aware that Plaintiff is in a
special education curriculum—she did perform well on more than
one occasion.

The Court further notes that one teacher even

ventured the opinion that Mason did not need to be in special
education so much as have one-one-one instruction (Tr. 112).
As far as Plaintiff’s claim that the ALJ did not provide
any rationale for his findings regarding medical equivalence,
the Court finds that the ALJ’s determination could have been
better written.

His failure to point to specific facts to

support his conclusions regarding each of the six domains in
16

that section of the determination left the reader to look for
the evidence in the balance of the opinion.

While the Court

finds that support for his conclusions could be found in the
balance of the opinion, it certainly made the determination less
coherent for the reader.

This was not reversible error.

Plaintiff has raised three claims in this action.

While

the evidence could support a determination contrary to the one
reached by the ALJ, the Court cannot say that the ALJ’s decision
is not supported 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),
that this action be DISMISSED.

and

Judgment will be entered by

separate Order.
DONE this 6th day of July, 2011.

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

17