Hicks v. Social Security Administration

Filing 11

MEMORANDUM AND ORDER affirming the final determination of the Commissioner and dismissing Plaintiff's complaint with prejudice. Signed by Magistrate Judge Beth Deere on 12/1/09. (hph)

IN THE UNITED STATES DISTRICT COURT E AS T E R N DISTRICT OF ARKANSAS E AS T E R N DIVISION X AH 1 v. C a s e No. 2:08CV00178 BD DEFENDANT PLAINTIFF

M I C H AE L J. ASTRUE, Commissioner, Social Security Administration, M E M O R AN D U M AND ORDER

P laintiff, XAH,2 has appealed the final decision of the Commissioner of the Social S e c urity Administration denying his claim for Supplemental Security Income ("SSI"). Both p a rties have filed appeal briefs and the case is ready for decision.3 Th e Court's function on review is to determine whether the Commissioner's decision is sup p o rte d by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Moore ex re l. Moore v. Barnhart, 413 F.3d 718, 721 (8th Cir. 2005); see Young ex rel. Trice v. S h a la la , 52 F.3d 200, 201-02 (8th Cir. 1995)(substantial evidence review in child benefits c a se ). Substantial evidence is such relevant evidence as a reasonable mind might accept as a d e q ua te to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Moore e x rel. Moore v. Barnhart, 413 F.3d at 721. In assessing the substantiality of the evidence, the Court must consider evidence that d e tra c ts from the Commissioner's decision as well as evidence that supports it; the Court may Plaintiff is a minor. (Tr. 20, 53, 309) In accordance with Fed.R.Civ.P. 5.2(a), only his initials sh o uld be used in Court filings. The application was filed on Plaintiff's behalf by his guardian grandmother. (Tr. 47-49, 132, 1 4 4 , 187, 308-09) The usual, and better, practice is for this appeal to be brought by the grandmother as plaintiff on behalf of the child. However, the Court is satisfied that it is not necessary to appoint a guardian ad litem under the circumstances of this case. See Fe d .R .C iv.P . 17(c).
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The parties have consented to the jurisdiction of the Magistrate Judge. (Docket #6)

not, however, reverse the Commissioner's decision merely because substantial evidence would h a ve supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); W o o lf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). Th e Commissioner found Plaintiff not disabled within the meaning of the Social S e c urity Act. The only issue before this Court is whether the Commissioner's decision that th e child was not disabled within the meaning of the Act is supported by substantial evidence. An individual under the age of 18 shall be considered disabled for the p urp o se s of this title if that individual has a medically determinable physical or me nta l impairment, which results in marked and severe functional limitations, a nd which can be expected to result in death or which has lasted or can be e x p e c te d to last for a continuous period of not less than 12 months. 4 2 U.S.C. § 1382c(a)(3)(C)(i) (1996). Afte r conducting an administrative hearing, the Administrative Law Judge 4 ("ALJ") c o nc lud e d that Plaintiff had not been under a disability within the meaning of the Social S e c urity Act at any time through June 1, 2007, the date of his decision. (Tr. 28) On August 1, 2 0 0 8 , the Appeals Council received and considered additional evidence and then denied P laintiff's request for a review of the ALJ's decision, thereby making it the final decision of th e Commissioner. (Tr. 5-8) P laintiff then filed his complaint initiating this appeal. (Docket #1) After consideration o f the record as a whole, the Court finds that the decision of the Commissioner is supported by substantial evidence. At the time of the administrative hearing, Claimant was eight years old, and a student in th e third grade. (Tr. 309) In determining whether an SSI claimant under the age of 18 is und e r a disability, a three-step sequential evaluation process is used which is comparable to th e five-step sequential evaluation process utilized for adults. 20 C.F.R. § 416.924(a) (2006).

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The Honorable Larry B. Creson.
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The first step is a determination whether the child is engaged in substantial gainful a c tivity. Id., § 416.924(b). If so, benefits are denied; if not, the evaluation continues to the ne x t step. Th e second step involves a determination whether the impairment or combination of imp a irm e nts is severe, i.e., more than a slight abnormality that causes no more than minimal func tio na l limitations. Id., § 416.924(c). If not, benefits are denied; if so, the evaluation c o ntinue s . Th e third step involves a determination whether the child has one or more impairments th a t meet, medically equal, or functionally equal in severity a Listed impairment. Id., § 4 1 6 .9 2 4 (d ). If so, and if the duration requirement is met, benefits are awarded; if not, benefits a re denied. Th e ALJ found that Claimant had never engaged in substantial gainful activity. (Tr. 20) He determined that he did have "severe" impairments, i.e., attention deficit hyperactivity d iso rd e r and a mood disorder, but that he did not have any impairment or combination of imp a irm e nts that met or medically equaled a Listing or that functionally equaled a Listed imp a irm e nt. (Tr. 20-22) Consequently, he found that Plaintiff was not disabled. (Tr. 28) Th e Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the W e lfa re Reform Act), P.L. 104-193, 110 Stat. 2105 (codified in scattered sections of 42 U.S .C .), required implementing regulations. One significant change that the final regulations ma d e from the interim final regulations is the manner of determining functional equivalence. There is now a single method of evaluating functional equivalence based only on domains of func tio ning . Under this regulation, an impairment is functionally equivalent to a Listing when th e impairment results in "marked" limitations in two domains of functioning or an "extreme" lim ita tio n in one domain of functioning. 20 C.F.R. § 416.926a(a) (2006). A "marked" limitation in a domain seriously interferes with a child's ability to
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independently initiate, sustain or complete activities. Id. at § 416.926a(e)(2). It also means a lim ita tio n that is "more than moderate" but "less than extreme." Id. It is the equivalent of func tio ning expected on standardized testing with scores that are at least two, but less than th re e , standard deviations below the mean. Id. An "extreme" limitation in a domain seriously interferes with a child's ability to ind e p e nd e ntly initiate, sustain or complete activities. Id. at § 416.926a(e)(3). "Extreme" lim ita tio n also means a limitation that is "more than marked." Id. It is the rating given to the mo s t serious limitations. Id. It is the equivalent of functioning expected on standardized te s ting with scores that are at least three standard deviations below the mean. Id. Th e domains of functioning are: 1 ) Acquiring and using information; 2 ) Attending and completing tasks; 3 ) Interacting and relating with others; 4 ) Moving about and manipulating objects; 5 ) Caring for oneself; and 6 ) Health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i-vi) (2006). These domains are described in greater detail, with e x a mp les , in the regulations. See 20 C.F.R. § 416.926a(g)-(l) (2006). Firs t, Plaintiff argues that the ALJ should have given controlling weight to the opinion o f James Moseley, M.D., his treating psychiatrist. (Br. 5-7) On August 25, 2006, Dr. M o se ley completed a medical and functional capacity assessment (child) in which he checked line s indicating that Plaintiff had "extreme" limitations in the domains of acquiring and using info rm a tio n, attending and completing tasks, and interacting and relating with others; "m o d e ra te " limitations in the domains of moving about and manipulating objects and in caring fo r himself; and "marked" limitation of functioning in health and physical well-being. (Tr.
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203-07) Th e re is at least some question whether Dr. Moseley can correctly be characterized as a treating physician.5 The record reveals that he first saw Plaintiff for 15 minutes on October 2 8 , 2005. (Tr. 144) He next saw Plaintiff August 16, 2006, for ten minutes. (Tr. 249) He d id not see Plaintiff again before offering his opinions concerning his limitations. See R a n d o lp h v. Barnhart, 386 F.3d 835, 840 (8th Cir. 2004) (doctor had only met with patient o n three occasions when she filled out checklist). "Generally, the longer a treating source has tre a te d [a claimant] and the more times [the claimant] [has] been seen by a treating source, the mo re weight [to be given] to the source's medical opinion." 20 C.F.R. § 416.927(d)(2)(i) (2008). The treating physician rule is premised, at least in part, on the no tio n that the treating physician is usually more familiar with a claimant's medical condition th a n are other physicians. Thomas v. Sullivan, 928 F.2d 255, 259 n.3 (8th Cir. 1991). In general, checklists, although admissible, are entitled to little weight. See Holmstrom v . Massanari, 270 F.3d 715, 721 (8th Cir. 2001)(checklist format's generality and inc o mp lete ne s s of assessments limit their evidentiary value). Most importantly, Dr. Moseley's opinions of extreme limitations of function are c o ntra d icte d by all other evidence, including his own treatment notes. For instance, in October o f 2005, when he first saw Plaintiff, Dr. Moseley wrote, "Mrs. Selvy reports that the 54-mg d o s a g e of Concerta has been very helpful for him and he is doing much better since being on th a t dosage." (Tr. 144) After interviewing Plaintiff, Dr. Moseley observed: H e was cooperative and appropriate. He reports that he is doing much better in sc h o o l. His grades are going well. His behavior is going well. He is sleeping w e ll and eating well, although he has lost some weight. His mood is happy. He

It does not appear that, at the time that he sent the request, Plaintiff's lawyer thought D r. Moseley was Plaintiff's treating physician. He addressed the request to Lita Brown, Ph.D. (Tr. 203) Actually, she was also an M.D. (Tr. 154)
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denies having sad mood. He denies having thoughts about harming himself or o th e rs and there is no evidence of psychosis. Id . When he next saw Plaintiff, only days before he completed the medical and functional c a p a c ity assessment, Dr. Moseley indicated: Fo r the most part [name redacted] has been doing well. He has not had p ro blems with the medication. He has had no side effects. H is moods have been stable and euthymic. He denies having any depression. He denied having thoughts about harming himself or others, and for the most p a rt, he has done well. (Tr. 249) When the doctor next saw Plaintiff, for ten minutes on January 25, 2007, he recounted, "H e is doing quite well at this point. He is having significant improvement in his grades. He is sleeping and eating well. He is not having problems with depressed mood and he has no th o ug h ts of harming himself or others." (Tr. 222) On March 14, 2007, after having seen P laintiff for eight minutes, he recorded: Fo r the most part, he is doing quite well, both behaviorally and academically at sc h o o l. He is not having any difficulties with his medication. He has not had a ny problems with mood. He denies any problems with having thoughts about h a rm ing himself or others. He is gaining weight . . . . (Tr. 213) Th e conclusory opinion of a treating physician, especially if it contradicts other o p inio ns by the same physician, is entitled to little weight. Woolf v. Shalala, 3 F.3d at 1214. P laintiff's second grade teacher, who observed him five days a week for four months, ind ica te d that he had no problems in the domains of acquiring and using information, moving a bo ut, or manipulating objects. (Tr. 96-99) She saw slight problems interacting and relating w ith others. (Tr. 98) She observed slight and some obvious (but less than serious) problems in the domains of attending and completing tasks and caring for himself. (Tr. 97, 100)
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Disability Determination Services physicians, who review all available medical records, d e te rm ine d that Plaintiff had no limitations in the domains of acquiring and using information, mo ving about and manipulating objects, caring for himself, or health and physical well-being; th e y found less than marked limitations in the domains of attending and completing tasks and inte ra c ting and relating with others. (Tr. 135-142A) The ALJ is entitled to rely on the o p inio ns of reviewing physicians when considering whether the claimant meets the re q uire me nts of a listed impairment. Ostronski v. Chater, 94 F.3d 413, 417 (8th Cir. 1996). The ALJ gave proper weight to the opinion of Dr. Moseley; under the circumstances, it was no t entitled to controlling weight. P laintiff also argues that the ALJ should have re-contacted Dr. Moseley. (Br. 7-8) The ALJ is permitted to issue a decision without obtaining additional evidence as long as the re c o rd is sufficient to make an informed decision, as it was in this case. E.g., Haley v. M a ss a n a r i, 258 F.3d 742, 749 (8th Cir. 2001); Anderson v. Shalala, 51 F.3d 777, 779 (8th C ir. 1995). Plaintiff bears a heavy burden in showing the record has been inadequately d e ve lo p e d ; he must show both a failure to develop necessary evidence and unfairness or p re jud ice from that failure. Combs v. Astrue, 243 Fed.Appx. 200, 204 (8th Cir. 2007). He d id not meet that burden. It is not the task of this Court to review the evidence and make an independent d e c ision. Neither is it to reverse the decision of the ALJ because there is evidence in the re c o rd which contradicts his findings. The test is whether there is substantial evidence on the re c o rd as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F.3d 2 5 9 , 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). Th e Court has reviewed the entire record, including the briefs, the ALJ's decision, the tra ns c rip t of the hearing and the medical and other evidence. There is ample evidence on the re c o rd as a whole that "a reasonable mind might accept as adequate to support [the]
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conclusion" of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401; see also Reutter e x rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's decision is not based on legal error. TH E R E FO R E , the Court hereby affirms the final determination of the Commissioner a nd dismisses Plaintiff's complaint with prejudice. IT IS SO ORDERED, this 1st day of December, 2009.

_____________________________________ UNITED STATES MAGISTRATE JUDGE

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