Larkins v. Astrue

Filing 19

ORDER Affirming Commissioner. The conclusion of the Commissioner through theAdministrative Law Judge that M.D. was not disabled is AFFIRMED. By Judge Robert E. Blackburn on 4/18/2013. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01065-REB
AMANDA LARKINS, on behalf of M.D., a minor child,
Plaintiff,
v.
CAROLYN W. COLVIN,1 Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],2 filed April 20, 2012, seeking
review of the Commissioner’s decision denying her minor child’s claim for supplemental
security income childhood disability benefits under Title XVI of the Social Security Act,
42 U.S.C. § 401, et seq. I have jurisdiction to review the Commissioner’s final decision
under 42 U.S.C. § 405(g). The matter has been fully briefed, obviating the need for oral
argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is the mother of M.D, a minor child, who is allegedly disabled as a result
of post-traumatic stress disorder and a phonological (i.e., speech) disorder. After the
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013,
and thus her name is substituted for that of Michael J. Astrue as the defendant in this suit. FED. R. CIV. P.
25(d)(1). By virtue of the last sentence of 42 U.S.C. § 405(g), no further action need to taken to continue
this lawsuit.
2

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

application for supplemental security income childhood disability benefits was denied,
plaintiff requested a hearing before an administrative law judge. This hearing was held
on May 17, 2011. At the time of the hearing, M.D. was 8 years old.
The ALJ found that M.D. was not disabled and therefore not entitled to
supplemental security income childhood disability benefits. Although the medical
evidence established that M.D. suffered from severe impairments, the judge concluded
that the severity of those impairments neither met nor medically equaled, nor were they
functionally equivalent to, any impairment listed in the social security regulations.3 He
therefore found plaintiff not disabled at step three of the three-step sequential evaluation
applicable to claims of childhood disability. Plaintiff appealed this decision to the
Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A child is disabled within the meaning of the Social Security Act only if she has a
medically determinable physical and/or mental impairment which results in marked and
severe functional limitations that can be expected to result in death or last for a
continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). The
Commissioner has established a three-step sequential evaluation process for
determining whether a child is disabled:
1.

The ALJ must first ascertain whether the child is engaged in
substantial gainful activity. A claimant who is working is not
disabled regardless of the medical findings.

2.

The ALJ must then determine whether the child’s claimed

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Plaintiff does not appeal the ALJ’s further determination that M.D.’s alleged ADHD and bipolar
disorder were not severe impairments.

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impairment or combination of impairments are “severe.” An
impairment is not considered “severe” if it is a slight
abnormality or a combination of slight abnormalities that
causes no more than minimal functional limitations.
3.

The ALJ must then determine if the impairment meets or
medically equals in severity certain impairments described in
Appendix 1 of the regulations. If it is not, the ALJ also must
consider at this step whether the impairment is functionally
equivalent to a listed impairment.

20 C.F.R. § 416.924(b)-(d).
With respect to this final step of the sequential evaluation in childhood disability
cases, the ALJ first considers whether the child’s medically determinable impairments
satisfy the listings. See 20 C.F.R. Pt. 404, subpt. P., app. 1. If all the listed criteria for
that impairment are met, the child is presumptively disabled. See 20 C.F.R. §
416.925(c)(4). If not, the ALJ further must consider whether the child’s impairment is
medically equivalent or, alternatively, functionally equivalent, to a listed impairment.
See 20 C.F.R. §§ 416.925(c)(5) & 416.924(d).4 By contrast, functional equivalence, as
the name suggests, requires consideration of the functional limitations caused by the
child’s impairment. See 20 C.F.R. § 416.926a(a). Functional equivalence may be
found if the child’s impairment results in a “marked” limitation in at least two of six
specified domains of functioning, or “extreme” limitation in one domain.5 20 C.F.R. §

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Medical equivalence may be found if the child’s impairment “is at least equal in severity and
duration to the criteria of any listed impairment.” 20 C.F.R. § 416.926(a). The standards for determining
medical equivalence refer back to the listing itself. See id. § 416.926(b).
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A “marked” limitation in functioning will be found when the impairment
interferes seriously with [the child’s] ability to independently initiate,
sustain, or complete activities. [The child’s] day-to-day functioning may
be seriously limited when [his] impairment(s) limits only one activity or
when the interactive and cumulative effects of [his] impairment(s) limit

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416.926a(a) & (b)(1).6
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.

several activities. “Marked” limitation also means a limitation that is
“more than moderate” but “less than extreme.” It is the equivalent of the
functioning we would expect to find on standardized testing with scores
that are at least two, but less than three, standard deviations below the
mean.
20 C.F.R. § 416.926a(e)(2)(i). A standardized test score that is three or more standard deviations below
the mean would indicate an “extreme” limitation. See id. § 416.926a(e)(3).
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The 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)
self-care; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi).

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III. LEGAL ANALYSIS
After concluding that M.D.’s impairments were not medically equivalent to any of
the listings,7 the ALJ considered the question of functional equivalence, analyzing each
of the domains of functioning in turn. (Tr. 14-21.) See 20 C.F.R. § 416.926a(b)(1)(i)
-(vi). Concluding that M.D. exhibited less than marked limitations in all six domains, the
ALJ concluded that she was not disabled. In a series of interrelated arguments, plaintiff
maintains that this determination must be reversed because the ALJ erroneously
weighted the various treating and other medical and non-medical source opinions of
record in reaching her disability determination. Perceiving no reversible error in the
ALJ’s decision, however, I affirm.
In concluding that M.D. had less than marked limitations in all six domains, the
ALJ clearly discounted the opinion of Dr. Sara Crowder, a psychiatrist who had treated
M.D. since 2009. Dr. Crowder opined that M.D. had extreme limitations in the domains
of attending and completing tasks, interacting and relating to others, and caring for
herself. She further suggested that M.D. had “at least marked” limitations in the domain
of acquiring and using information, but qualified her opinion by stating that this area was
“better evaluated at school.” (Tr. 271-272.) In an accompanying report, Dr. Crowder
suggested that while there had been “some improvement” in M.D.’s condition since she
first began treatment, the child’s prognosis was “poor.” (Tr. 269-270.)
The opinion of a treating source is generally entitled to controlling weight so long
as it is “well-supported by medically acceptable clinical and laboratory diagnostic

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Plaintiff presents no argument premised on the ALJ’s findings regarding medical equivalence.

5

techniques and is not inconsistent with other substantial evidence in the case record.”
20 C.F.R. § 404.1527(d)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir. 2003). Even if a treating source opinion is not given controlling weight, it is still
entitled to deference “and must be weighed using all of the factors provided in 20 C.F.R.
404.1527 and 416.927.” Social Security Ruling 96-2p, 1996 WL 374188 at *4 (SSA
July 2, 1996). See also Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).8 In
either event, a treating source opinion may not be rejected absent good cause for
specific, legitimate reasons clearly articulated in the hearing decision. Watkins, 350
F.3d at 1301; Goatcher v. United States Department of Health & Human Services,
52 F.3d 288, 290 (10th Cir. 1995); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
Plaintiff argues that the ALJ did not adequately describe the weight she assigned
to Dr. Crowder’s opinions or why she failed to adopt them, and improperly discounted
the opinion for lack of a narrative explanation. I am unconvinced that any error that may
have occurred in these respects was harmful. See Bernal v. Bowen, 851 F.2d 297,
303 (10th Cir. 1988). First, plaintiff misreads the record to suggest that the ALJ gave Dr.
Crowder’s opinions some weight. Instead, the ALJ specifically noted that she afforded
those opinions “little weight.” (Tr. 15.) In the context of the ALJ’s decision as a whole,

8

These factors include:
1.
2.
3.
4.
5.
6.

the physician’s length of treatment of the claimant;
the physician’s frequency of examination;
the nature and extent of the treatment relationship;
the support of the physician’s opinion afforded by the medical evidence of
record;
the consistency of the opinion with the record as a whole; and
the specialization of the treating physician.

20 C.F.R. § 416.927(d)(2).

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which clearly demonstrates that the ALJ did not rely on Dr. Crowder’s assessment at all,
this court reads that turn of phrase as equivalent to a rejection of Dr. Crowder’s
opinion.9
Instead, the ALJ afforded “greater weight” to the opinion of the state agency
psychologist, who opined that M.D. had “less than marked” limitations in four of the
domains and “no limitation” in the other two. (Tr. 44-50.) Contrary to the thrust of
plaintiff’s argument, “[i]n appropriate circumstances, opinions from State agency
medical and psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or examining sources.”
Social Security Ruling 96-6p, 1996 WL 374180 at *3 (SSA July 2, 1996). Although
these opinions are weighed under stricter standards, accounting for the circumstances
under which they are rendered, they may still outweigh treating source opinions if, for
example, they are better supported by the medical evidence of record and/or the
source’s explanation of the reasons for her opinion. See id. at *2.
This is precisely what happened here. The ALJ discounted Dr. Crowder’s
suggestion of extreme and/marked limitations because she did not provide a narrative
explanation supporting those opinions. Plaintiff points out that Dr. Crowder did fill out a

9

Plaintiff also complains that the ALJ did not specify what weight she assigned to Dr. Crowder’s
opinion regarding each specific domain other than the first. I am not persuaded that the regulations or
caselaw require such a hypertechnical interpretation of the ALJ’s obligation to weigh and consider medical
and other source opinions. It is clear both from the text and the context of the ALJ’s opinion that she relied
on the state agency psychologist’s opinion, and not Dr. Crowder’s assessment, in reaching her
conclusions.
Nor is there any support for plaintiff’s contention that the ALJ was required to specify how much
less than marked she found M.D.’s limitations to be, either overall or in any particular domain. Once the
ALJ concluded that M.D. had no marked limitations in any domain, she was not required to specify the
degree of limitation further.

7

“Child Disability Report” (Tr. 269-270), but the narrative there provided merely explains
in broad terms M.D.’s history and prognosis. Plaintiff fails to explain how Dr. Crowder’s
statements therein relate to her specific opinions quantifying the degree of limitation she
felt M.D. exhibited in any of the domains. Therefore, any error in failing to address this
report specifically was undoubtedly harmless. Bernal, 851 F.2d at 303.
Moreover, the ALJ concluded that Dr. Crowder’s opinions did not jibe with the
other evidence of record, including reports from M.D.’s first and second grade teachers
and Dr. Crowder’s own treatment notes, all of which suggested that M.D. had improved
on medication, despite discrete episodes of continued difficulties. This reading of the
evidence finds ample support in the record. Although there is evidence to the contrary,
it is entirely the province of the ALJ, and not of this court, to resolve such conflicts in the
evidence. Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988); Gleason v. Apfel,
1999 WL 714172 at *4 (D. Kan. Sept. 1, 1999). I therefore find no basis for reversal in
this respect.
Plaintiff suggests that it was error to rely on the state agency psychologist’s
opinion because his assessment was based on an incomplete record, having been
authored without the benefit of M.D.’s second grade teachers’ evaluations. However,
the ALJ herself considered the varying opinions of all three of M.D.’s teachers who
offered opinions on her functional abilities in the six domains, which the ALJ
acknowledged did not always comport with one another.10 She noted further that both
the first- and second-grade teachers reported that M.D.’s behavior was more of a

10

In general, it appears that M.D.’s regular second-grade classroom teacher noted more “serious”
or “very serious” issues than either her first or second-grade special education teachers.

8

problem when she was not taking her medications, and her review of the treatment
records supports the conclusion that M.D.’s condition was improved as her medication
regimen evolved. Given these circumstances, any purported “staleness” in the state
agency psychologist’s opinion undoubtedly was harmless.
Nor can I fault the ALJ for failing to state what weight she assigned to the
opinions of M.D.’s teachers. The Commissioner’s regulations provide that the ALJ will
“consider” evidence from “other sources” such as teachers, see 20 C.F.R. §§
416.913(d)(3) & 416.924a(b)(7), but they do not require the ALJ to specifically assign
any particular weight to those opinions. The Commissioner has recognized that “there
is a distinction between what an adjudicator must consider and what the adjudicator
must explain in the disability determination or decision” in this particular regard, and that
the ALJ’s opinion is sufficient if it “the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning.”
Social Security Ruling 06-03p, 2006 WL 2329939 at *6 (SSA Aug. 9, 2006). See also
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012). The ALJ’s decision
here adequately meets that standard.
Finally, I do not credit plaintiff’s assertion that the ALJ erred in failing to more
particularly assess her credibility or the credibility of M.D., both of whom testified at the
hearing. While the ALJ noted that this testimony “indicates [M.D.] might meet the
disability requirements” (Tr. 13 (emphasis added)), the regulations make clear that a
claimant’s “statements (or those of another person) alone are not enough to establish
that there is a physical or mental impairment,” 20 C.F.R. § 416.928(a). Moreover, the

9

ALJ’s citation to specific references in the treatment notes showing plaintiff’s reports of
M.D.’s symptoms demonstrate that she in fact did not credit plaintiff’s testimony fully.
Her failure to articulate more particularly the link between these reports and any
credibility assessment clearly was harmless. See Doyal v. Barnhart, 331 F.3d 758,
761 (10th Cir. 2003) (“[T]he form of words should not obscure the substance of what the
ALJ actually did.”).
THEREFORE, IT IS ORDERED the conclusion of the Commissioner through the
Administrative Law Judge that M.D. was not disabled is AFFIRMED.
Dated April 18, 2013, at Denver, Colorado.
BY THE COURT:

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