Safford v. Commissioner of Social Security

Filing 22

OPINION AND ORDER reversing and remanding this action to the Commissioner. See Opinion and Order for details. Signed by Magistrate Judge Mac R. McCoy on 5/24/2019. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FELISHA ANN SAFFORD, O/B/O J.C.P.
(minor),
Plaintiff,
v.

Case No.: 2:18-cv-277-FtM-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Felisha Ann Safford o/b/o a minor J.C.P’s Complaint, filed
on April 24, 2018. (Doc. 1). 1 Plaintiff seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for child
supplemental security income benefits. The Commissioner filed the Transcript of the
proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed a joint legal memorandum detailing their respective positions. For the reasons set
out herein, the decision of the Commissioner is REVERSED and REMANDED pursuant to §
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.

Eligibility

A person under the age of eighteen (18) is considered disabled if he or she “has a
medically determinable physical or mental impairment, which results in marked and severe

1

For clarity, the Court refers to Felisha Ann Safford as “Plaintiff” and J.C.P. as the “Child” in
this Opinion and Order.

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.” Henry v. Barnhart, 156 F.
App’x 171, 173 (11th Cir. 2005) (citing 42 U.S.C. § 1382c(a)(3)(C)(i)). Social Security
regulations contain a three-step sequential evaluation process for determining whether a child is
disabled. Id. (citing 20 C.F.R. § 416.924(a); Wilson v. Apfel, 179 F.3d 1276, 1277 n.1 (11th Cir.
1999)). For the first step, the ALJ must determine whether the child engaged in substantial
gainful employment. Id. (citation omitted). If yes, then the child is not disabled. Id. If not,
then the ALJ moves to step two to determine whether the child has a severe impairment. Id. If
not, the child is not disabled. Id. If yes, then the ALJ considers whether the child has an
impairment or combination of impairments that medically equals or functionally equals the
Listings of impairments. Id. If the child satisfies the Listings, then the child is disabled. Id.
If the child’s impairments do not meet or medically equal a listed impairment, the fact
finder then must determine if the child’s impairments are functionally equivalent to the Listings.
20 C.F.R. §§ 416.924(d), 416.926a (discussing functional equivalence). For the child’s
impairments to functionally equal the Listings, the child’s impairment must result in “marked”
limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. §
416.926a(a). The ALJ must consider the child’s functioning in terms of six domains: (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 himself or herself; and (6)
health and physical well-being. 20 C.F.R. § 416.926a(b)(1).
B.

Procedural History

On July 24, 2015, Plaintiff filed an application for supplemental security income on
behalf of her minor son J.C.P. (Tr. at 43, 156-64). Plaintiff asserted an onset date of August 3,

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2014. (Id. at 156). Plaintiff’s application was denied initially on December 8, 2015, and on
reconsideration on January 23, 2016. (Id. at 43, 52). Administrative Law Judge William M.
Manico (the “ALJ”) held a hearing on November 21, 2016. (Id. at 28-41). The ALJ issued an
unfavorable decision on May 9, 2017. (Id. at 10-23). The ALJ found that the Child has not been
disabled since July 24, 2015, the application date. (Id. at 23).
On March 8, 2018, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-6).
Plaintiff filed a Complaint on April 24, 2018 in the United States District Court. (Doc. 1). This
case is ripe for review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (See Doc. 18).
C.

Summary of the ALJ’s Decision

The ALJ found that the Child was born on June 27, 2008, was a school-age Child on July
24, 2015, the date the application was filed, and was a school-age Child on the date of the
decision. (Tr. at 13). In evaluating Plaintiff’s claim, the ALJ utilized the three-step sequential
evaluation process to determine whether the Child was disabled. (Id. at 13-23). At step one, the
ALJ found that the Child had not engaged in substantial gainful activity since July 24, 2015, the
application date. (Id.). At step two, the ALJ determined that the Child had the following severe
impairments: “Tourette’s syndrome; asthma; attention deficit hyperactivity disorder (ADHD);
anxiety; developmental/speech language disorder; intellectual developmental disorder; and
learning disorder (20 [C.F.R. §] 416.924(c)).” (Id.).
At step three, the ALJ determined that the Child’s impairments did not meet or medically
equal the severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20
C.F.R. §§ 416.924, 416.925, and 416.926). (Id.). The ALJ also evaluated the Child under the
“whole child” approach in order to determine if the impairment functionally equaled the

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requirements of a listed impairment. (Id. at 14-23); see also 20 C.F.R. § 416.926a(b); Social
Security Ruling 09-1p. The ALJ determined that the Child does not have an impairment or
combination of impairments that functionally equals the severity of the Listings, 20 C.F.R. §§
416.924(d) and 416.925a. (Id. at 14-23).
The ALJ found that the Child had no limitations in moving about and manipulating
objects and had less than marked limitations in all other domains. (Id. at 17-23). As a result, the
ALJ concluded that the Child has not been disabled since July 24, 2015, the date the application
was filed. (Id. at 23).
D.

Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking

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into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.

Analysis
On appeal, Plaintiff raises one issue. As stated by the parties, the issue is: whether the

ALJ evaluated the medical opinion evidence consistent with the regulations, Agency authority,
and Eleventh Circuit precedent. (Doc. 21 at 16).
Plaintiff argues that the ALJ failed to provide good, specific, and supported reasons for
rejecting the opinion of Eric Leonhardt, D.O. (Id. at 18-19). Plaintiff claims that the ALJ
supported his conclusions with “only a handful of highly selective pieces of evidence that no
reasonable mind would accept as ‘substantial evidence.’” (Id. at 20-21). Plaintiff argues that the
ALJ did not consider the “whole child” in rendering his decision. (Id. at 21-22). Plaintiff also
argues that the ALJ relied on State agency reviewers’ opinions, but these reviewers did not have
the more recent medical evidence, including Dr. Leonhardt’s opinion when they rendered their
opinions. (Id. at 22-23).
The Commissioner claims that Plaintiff fails to meet her burden of proving that the Child
was disabled within the meaning of the Social Security Act. (Id. at 25). The Commissioner
argues that the ALJ provided good reasons, supported by substantial evidence, for giving Dr.
Leonhardt’s opinion little weight. (Id. at 26-27). Specifically, the Commissioner asserts that the
ALJ found Dr. Leonhardt’s opinion as to the Child’s marked and extreme limitations to be
inconsistent with Dr. Leonhardt’s own treatment notes and, this specific reason alone should be
sufficient to support the ALJ’s decision to give Dr. Leonhardt’s opinion little weight. (Id. at 27).

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Finally, the Commissioner argues that the ALJ gave weight to the state agency psychologists’
opinions, finding some of the opinions consistent with the other evidence of record. (Id. at 31).
Legal Authority
Weighing the opinions and findings of treating, examining, and non-examining
physicians is an integral part of the ALJ’s RFC determination at step four. See Rosario v.
Comm’r of Soc. Sec., 877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012). The Eleventh Circuit has
held that whenever a physician offers a statement reflecting judgments about the nature and
severity of a claimant’s impairments, including symptoms, diagnosis, and prognosis, what the
claimant can still do despite his or her impairments, and the claimant’s physical and mental
restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight
given to it and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79
(11th Cir. 2011). Without such a statement, “it is impossible for a reviewing court to determine
whether the ultimate decision on the merits of the claim is rational and supported by substantial
evidence.” Id. (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The opinions of treating physicians are entitled to substantial or considerable weight
unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2004). The Eleventh Circuit has concluded that good cause exists when: (1) the treating
physician’s opinion was not bolstered by the evidence; (2) the evidence supported a contrary
finding; or (3) the treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records. Id.
The Court examines Dr. Leonhardt’s treatment records and opinion, and then turns to the
ALJ’s decision concerning Dr. Leonhardt’s opinion.

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Dr. Leonhardt’s Treatment Notes and Opinion
Dr. Leonhardt treated the Child from February 18, 2016 through November 1, 2016. (Tr.
at 389-404, 451-469). On February 18, 2016, Dr. Leonhardt completed a psychiatric evaluation
of the Child. (Id. at 389-94). As to the history of the Child’s illness, Dr. Leonhardt noted that
the Child was in second grade and likely to be retained due to focus, reading, listening, and
comprehension problems. (Id. at 389). Dr. Leonhardt also noted that the Child goes to speech
therapy, is under the care of a neurologist, and is currently taking medications for his problems.
(Id.). Dr. Leonhardt noted that the Child was diagnosed with anxiety, Tourette’s Syndrome,
possible autistic spectrum disorder, sleep disturbance, poor fine-motor skills, and mood disorder.
(Id.). Dr. Leonhardt also noted that the Child is very attached to his mother and she must be in
his sight at all times or else he panics and may start crying, such as when the school bell rings.
(Id.). In addition, Dr. Leonhardt found that when in the mother’s presence, the Child must be
constantly holding on to her or be very close to her. (Id.). Further, Dr. Leonhardt noted the
Child has sleep issues, difficulty focusing, difficulty understanding what he reads or is told, is
not interested in playing with other children his own age, and usually plays with younger
children as long as his mother is present. (Id.). The Child also makes noises, blurts out words,
and is always worried. (Id.).
Dr. Leonhardt noted that the Child is under the care of a neurologist and goes to speech
therapy. (Id.). Dr. Leonhardt found that the Child was “[g]obally delayed with developmental
milestones, was anxious, had developmental articulations problems, dysphonic speech, and was
over all cooperative.” (Id. at 391-93).
On March 21, 2016, the Child returned to Dr. Leonhardt’s office for a follow-up visit, for
medication management and with a complaint that the Child was getting into trouble in the

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afternoons at school. (Id. at 395-99). Dr. Leonhardt found the Child’s mood was “ok,” but his
affect was anxious and he was quiet. (Id. at 397). Dr. Leonhardt adjusted the Child’s
medications for anxiety and mood (Id. at 398). On April 14, 2016, the Child saw Dr. Leonhardt
and the mother reported that the Child’s anxiety is much reduced, he is more active socially, and
he is not as clingy to his mother, but continues to have sleep issues. (Id. at 403).
In a June 7, 2016 psychiatric medication management note, Dr. Leonhardt found that
generally the Child’s mood and affect were good, but the Child was more irritable over the past
few weeks and struck out at his younger sister. (Id. at 454). In addition, the Child was to repeat
the second grade due to academic difficulties. (Id,). Dr. Leonhardt also noted that the Child had
difficulty with sleep. (Id.). Dr. Leonhardt adjusted the Child’s medications. (Id.). On July 26,
2016, the Child returned with a complaint that the Child was very busy and easily distracted. (Id.
at 456). Although the Child’s mood and affect were generally good, Dr. Leonhardt found that
the Child was easily distracted and decided to try to improve the Child’s level of anxiety by
increasing his medications. (Id. at 459). At a September 8, 2016 visit, Dr. Leonhardt found the
Child’s mood and affect were generally good, but if the Child’s tics continue to worsen, then Dr.
Leonhardt would consider adding additional medications to the Child’s medication regimen. (Id.
at 464).
Based upon this treatment history, on November 1, 2016, Dr. Leonhardt completed a
Medical and Functional Capacity Assessment (Child) form. (Id. at 466-69). Dr. Leonhardt
diagnosed the Child with Tourette’s Disorder, generalized Anxiety Disorder, and Attention
Deficit Hyperactivity Disorder. (Id. at 466). Dr. Leonhardt found the following objective signs
supported these diagnoses: (1) separation anxiety – fear of strange situations; (2) motor and
vocal tics; and (3) poor focus/attention. (Id.). In the domains of functioning, Dr. Leonhardt

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concluded that the Child had: (1) extreme limitations in interacting and relating with others; (2)
marked limitations in acquiring and using information, attending and completing tasks, and
health and physical well-being; and (3) moderate limitations in moving about and manipulating
objects, and caring for yourself. (Id. at 467-69). Dr. Leonhardt commented that these
impairments are “chronic disorders requiring on-going therapies to help maintain functioning
level.” (Id. at 469).
ALJ’s Consideration of Leonhardt’s Opinion
The ALJ afforded Dr. Leonhardt’s opinion little weight. (Id. at 17). The ALJ found the
following as to Dr. Leonhardt’s treatment records and opinion:
In November 2016, Eric Leonhardt, D.O., completed a Medical Source Statement
after treating the claimant from February to November 2016. He opined that the
claimant has marked limitation in acquiring and using information; attending and
completing tasks; moving about and manipulating objects; caring for yourself; and
extreme limitation in interacting with others (See Exhibit 13F/2-3). The record
does not support the extreme limitations noted by the doctor. For example, in
acquiring and using information, on examination, during examination, the claimant
was able to respond to a why question by giving an answer. He was able to repair
semantic absurdities, complete similes, and retell a story with a logical conclusion,
which is not indicative of a person with marked limitations in that area (See Exhibit
6F/5). Regarding interacting with others, during some examinations, the claimant
was friendly, outgoing, and content. He spoke when spoken to, and he spoke in
complete sentences (See Exhibit 2F/9). Moreover, the claimant was engaging in
conversation. The claimant had good eye contact, and while he made some noises
during examination, he was not aware or bothered by them. His speech was clear,
without stuttering/stammering, all of which indicates that he does not have extreme
limitations in interacting with others (See Exhibit 2F/9). Accordingly, the doctor’s
opinions receive little weight.
(Tr. at 17).
Analysis
Dr. Leonhardt is the Child’s treating psychiatrist and, thus, his opinion is entitled to
substantial or considerable weight unless good cause is shown to the contrary. Phillips, 357 F.3d
at 1240). An ALJ may establish good cause if the treating physician’s opinion is not supported

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by the evidence or the evidence supports a contrary finding. Id. Basically, in the instant case,
ALJ afforded little weight to Dr. Leonhardt’s opinion asserting that the record does not support
Dr. Leonhardt’s findings of extreme limitations. (Tr. at 17).
To support this determination, the ALJ cited to an instance in the record when the Child
was able to respond to “a why question, by giving an answer. [The Child] was able to repair
semantic absurdities, complete similes, and retell a story with a logical conclusion which is not
indicative of a person with marked limitation in [the area of acquiring and using information].”
(Id.). This citation refers to a Speech and Language Evaluation dated November 20, 2015
completed by Alain Lopez, SLP, D., CCC, a Bilingual Speech-Language Pathologist. (Id. at
359-64). The ALJ cited to a portion of this record. (Id. at 362). The speech pathologist also
found that “[w]hen compared to same age peers, claimant demonstrated difficulties retelling a
story with introduction, using irregular plurals, and using time/sequence concepts.” (Id.). In
addition, when compared to his peers, the Child “demonstrated difficulties identifying the main
idea, making a prediction, identifying words that rhyme, following multistep directions, making
grammaticality judgements, demonstrating emergent literacy through book handling and print
awareness, identifying a word that does not belong in a semantic category, and understanding
prefixes.” (Id.).
Although the speech pathologist is able to assess the Child regarding his speech, the
Child’s psychiatrist, Dr. Leonhardt, evaluated more than just the Child’s speech to reach his
opinion regarding the Child’s limitations as to acquiring and using information. Further, Dr.
Leonhardt treated the Child from February 2016 to November 2016, and his treatment notes
support a finding that the Child has chronic disorders that require treatment, including
medications to help maintain a level of functioning. In addition, the speech pathologist found

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that some of the Child’s receptive and expressive language abilities fell short of the Child’s peer
group, but the ALJ failed to mention these shortcomings. (Id. at 362). Further, the Speech and
Language Evaluation was only one medical record in the entire transcript and not sufficient to
establish that Dr. Leonhardt’s opinion is not supported by the evidence of record as to his finding
that the Child had marked limitations in the area of acquiring and using information.
The ALJ also found that in the area of interacting with others, “during some
examinations,” the Child was friendly, outgoing, and content, and spoke when spoken to and
spoke in complete sentences. (Id.. at 17). The Child also engaged in conversation, had good eye
contact, and even though he made some noises, the noises did not bother the Child. (Id.). In
addition, the ALJ determined that the Child’s speech was clear without stammering or stuttering
and this indicates that the Child does not have extreme limitations in interacting with others.
(Id.).
The ALJ cites to one medical record from March 10, 2015 completed by Pamela Papola,
M.D. to support his decision that the Child does not have an extreme limitation in interacting and
relating with others. (Id. at 257-262). At that visit, the Child was friendly, outgoing and content.
(Id. at 261). While playing during the visit, the Child made unintentional sounds, he engaged in
conversation, made fairly good eye contact, his speech was fairly clear but notable for some
articulation errors, and had no stammering or stuttering. (Id.). This treatment note also contains
noted behavioral problems, including inattention, high activity level, poor impulse control, and
disruptive behavior. (Id.). Dr. Papola found that some of these behaviors may be attributable to
the Child’s language deficits and tics. (Id.). In addition, Dr. Papola discussed the Child’s
developmental speech and language disorder and learning difficulties. (Id. at 261-62).

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The Court finds that this one treatment note where the Child engaged in conversation
does not constitute substantial evidence to afford a treating psychiatrist’s opinion little weight in
the finding of extreme limitation in interacting and relating with others. Within this same
treating note, Dr. Papola found the Child to have behavior problems including disruptive
behavior and poor impulse control. (Id. at 261). In addition, Dr. Leonhardt found at times that
the Child was extremely attached to his mother and needed her present, was not interested in
playing with children his own age, struck out at his sister, and was irritable and easily distracted.
(Id. at 389, 454). At most visits, Dr. Leonhardt considered and changed the Child’s medications
to attempt to maintain or improve the Child’s functioning levels. (Id. at 395, 400, 451, 456,
461). Upon review, the Court finds that citing to a portion of Dr. Papola’s treatment notes does
not constitute good cause to discount Dr. Leonhardt’s opinion.
Accordingly, after consideration of the entire record, the Court finds that the ALJ did not
establish good cause in affording little weight to Dr. Leonhardt’s opinion and, further, that
substantial evidence does not support the ALJ’s findings in this record.
III.

Conclusion
Upon consideration of the submission of the parties and the administrative record, the

Court finds that the decision of the Commissioner is not supported by substantial evidence.
Accordingly, it is hereby ORDERED:
(1)

The decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g) for the Commissioner to reconsider the
weight afforded the treating physicians’ opinions in light of all of the medical
evidence of record.

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(2)

If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order
(Doc. 1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.

(3)

The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.

DONE AND ORDERED in Fort Myers, Florida on May 24, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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