Farr v. Commissioner of Social Security
Filing
15
OPINION AND ORDER reversing the Commissioner's decision and remanding with instructions. Signed by Magistrate Judge Monte C. Richardson on 1/17/2017. (MEH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL FARR o/b/o T.F.,
Plaintiff,
v.
CASE NO. 3:16-cv-108-J-MCR
CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant.
_______________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and supplemental
security income. Plaintiff alleges she became disabled on April 15, 2010.2
Plaintiff’s application was denied initially and on reconsideration. A hearing was
held before the assigned Administrative Law Judge (“ALJ”) on October 4, 2013,
at which Plaintiff was represented by an attorney. (Tr. 38-60.) The ALJ found
Plaintiff not disabled since January 24, 2012, the date the application was filed.3
(Tr. 22-33.)
1
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. (Doc. 9.)
2
Although technically the “Plaintiff” in this instance is the representative filing on
behalf of the minor child, the undersigned refers to the minor child in this opinion as
“Plaintiff.”
3
Plaintiff was ineligible for supplemental security income benefits prior to filing her
application. 42 U.S.C. § 1382(c)(7); 20 C.F.R. § 416.335.
Plaintiff is appealing the Commissioner’s decision that she was not
disabled during the relevant time period. Plaintiff has exhausted her available
administrative remedies and the case is properly before the Court. The
undersigned has reviewed the record, the briefs, and the applicable law. For the
reasons stated herein, the undersigned determines that the Commissioner’s
decision is due to be REVERSED AND REMANDED.
I.
Child Disability Law and Standard of Review
In order for an individual under the age of eighteen to be entitled to SSI
disability payments, the claimant must have “a medically determinable physical or
mental impairment, which results in marked and severe functional limitations, and
. . . which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i); 20 C.F.R. § 416.906.
Under the applicable Regulations, the Commissioner employs a three-step
evaluation process. First, the Commissioner determines whether the child
claimant is engaged in substantial gainful activity. If not, the next determination is
whether the child claimant has a severe impairment or combination of
impairments. If so, the Commissioner must then determine whether the
impairment or combination of impairments meet, or is medically or functionally
equal to, an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P, and
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otherwise satisfy the duration requirement.4 Where the claimant fails to satisfy
any of the criteria, he or she will be found not disabled. Where each of these
requirements is satisfied, the claimant will be found disabled. 20 C.F.R. §§
416.924 -416.926a; Wilson v. Apfel, 179 F.3d 1276, 1277 n.1 (11th Cir. 1999).
The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). 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 into
4
To establish functional equivalence in step three, the claimant must have a
medically determinable impairment or combination of impairments that results in marked
limitations in two functional domains or an extreme limitation in one domain. 20 C.F.R. §
416.926a(a). The six domains 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).
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account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.
Discussion
Plaintiff argues one general point on appeal. Plaintiff contends that
substantial evidence fails to support the ALJ’s determination that her mental
impairments did not functionally equal any listed impairment. Specifically, Plaintiff
argues that the ALJ erred in failing to assign weight to the opinions of state
agency doctors William Prather, M.D. and Theodore Weber, Psy.D., who opined
that Plaintiff had “marked” limitations in the domain of acquiring and using
information. Plaintiff also argues that the ALJ failed to properly evaluate the
opinions of state agency physician Paul Berger, M.D., who opined that Plaintiff
had “marked” limitations in the domain of interacting and relating with others.
Defendant responds that the ALJ sufficiently evaluated the state agency
doctors’ opinions and adequately accounted for Plaintiff’s limitations. Defendant
alternatively asserts that any error committed by the ALJ in the evaluation of the
state agency doctors would be harmless.
A.
The ALJ’s Decision
The ALJ determined that Plaintiff had severe impairments, including
Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and
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borderline intellectual functioning. (Tr. 21.) The ALJ then determined that
Plaintiff did not have an impairment or combination of impairments that
functionally equals the severity of the listings. (Tr. 21-33.)
Continuing on with this evaluation, the ALJ determined that Plaintiff had
“marked” limitations in the domain of attending and completing tasks, but had
“less than marked” limitations in the domains of acquiring and using information,
interacting and relating with others, and no limitations in the domains of moving
about and manipulating objects, caring for yourself, and health and physical wellbeing. (Id.) In making this determination, the ALJ assigned great weight to
examining psychologist Peter Knox, but assigned some weight to examining
psychologist Allison Keiter. With respect to evaluating the state agency
consultants, the ALJ presented the following discussion:
I have also considered the opinions of the State agency
medical and psychological consultants. At the initial level, it
was determined that the claimant had marked limitation in
interacting and relating with others; less than marked limitation
in acquiring and using information, attending and completing
tasks, caring for yourself and health and physical well-being;
and no limitation in moving and manipulating objects (Exhibit
1A). At the reconsideration level, the State agency
psychological consultant noted that the claimant’s conduct was
satisfactory and opined that the claimant has less than marked
limitation in interacting and relating with others (rather than the
initial level opinion of marked limitation). It was also opined
that the claimant has less than marked limitation in acquiring
information, attending and completing tasks, caring for yourself
and health and physical well-being, and no limitation in moving
about and manipulating objects (Exhibit 3A). Significant
weight has been accorded to these opinions to the extent they
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are consistent with Dr. Knox’s opinions. However, after
considering the claimant’s school records, the medical
evidence of record and Dr. Knox’s evaluation, I have given
little weight to the opinions that the claimant has less than
marked limitation attending and completing tasks, caring for
yourself and health and physical well-being, as well as the
initial level determination that the claimant had marked
limitation in interacting and relating with others.
(Tr. 28-29)
Because the ALJ found “marked” limitations in only one domain, the ALJ
concluded that Plaintiff has not been disabled since January 24, 2012, the
application date. (Tr. 33.)
B.
The ALJ Failed to Discuss a Relevant State Agency Opinion
According to Social Security Ruling 96-6p, findings of fact made by state
agency medical and psychological consultants regarding the nature and severity
of an individual’s impairments must be treated as expert opinion evidence of a
nonexamining source at the ALJ and Appeals Council levels of administrative
review. Although ALJs are not bound by the findings of state agency doctors,
“they may not ignore these opinions and must explain the weight given to the
opinions in their decisions.” SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996).
“Numerous courts have recognized this duty to address the opinions of state
agency doctors.” Wilkerson v. Colvin, No. CV 114-100, 2015 WL 3827105, at *4
(S.D. Ga. June 18, 2015) (listing cases).
Here, when considering Plaintiff’s functional equivalence to the severity of
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a listing, the ALJ found less than marked limitations in the domains of acquiring
and using information and interacting and relating with others. The ALJ found no
limitations in three other domains. The ALJ found marked limitations in the
domain of attending and completing tasks. Absent an extreme limitation in one
domain or marked limitations in two domains, Plaintiff was found not disabled. In
making these findings, the ALJ considered the state agency opinions of Paul
Berger, M.D., rendered at the initial level on April 19, 2012, and considered the
state agency opinions of William Prather, M.D., rendered at the reconsideration
level on July 2, 2012. (Tr. 27-27, 75-87, 89-100.) The ALJ gave those opinions
“significant weight” to the extent that they were consistent with Dr. Knox’s
opinions, including the opinion that Plaintiff had less than marked limitations in
the domain of acquiring and using information. (Id.)
Problematically, however, the ALJ ignored the opinions of state agency
consultants William Prather, M.D., and Theodore Weber, Psy.D., rendered in
December 2010. Drs. Prather and Weber reached different conclusions in 2010
than the opinions rendered in 2012. Namely, Drs. Prather and Weber opined in
December 2010 that Plaintiff had marked limitations in the domain of acquiring
and using information. (Tr. 362.) As support for their opinions, Drs. Prather and
Weber noted that Plaintiff was required to repeat first grade, that her teachers
noted that she was functioning low in the subjects of Reading, Math, and Writing,
and that her problems were “mainly serious.” (Tr. 365.) Drs. Prather and Weber
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also noted that Plaintiff “is of borderline ability with comparable achievement
skills,” and that Plaintiff has “a severe language delay.” (Tr. 366.) The ALJ failed
to acknowledge this assessment in her decision or explain why she chose to
disregard this report in favor of the 2012 reports, and the failure to do so
constitutes reversible error. SSR 96-6p, 1996 WL 374180, at *1 (stating that
ALJs “may not ignore th[e opinions of state agency doctors regarding the nature
and severity of an individual’s impairments] and must explain the weight given to
these opinions in their decisions.”); cf. Wilkerson v. Colvin, 2015 WL 3827105, at
*5-6 (reversing the Commissioner’s decision that child claimant was not disabled
in part because the ALJ failed to discuss a prior report of state agency
consultants that reached different conclusions than the report of subsequent state
agency consultants); Perez-Rosario ex rel. A.G.J. v. Comm’r of Soc. Sec., No.
6:07-cv-774-Orl-DAB, 2008 WL 1776569, at *5 (M.D. Fla. April 17, 2008)
(emphasizing that “the regulations with respect to childhood disability require
particularly meticulous review of all of the evidence of record and particularly
clear explanation as to the ALJ’s reasons for each finding, due to the requirement
of specific findings in each domain.”) (emphasis added).
The Commissioner correctly concedes that the ALJ failed to discuss the
December 2010 state agency opinions of Drs. Prather and Weber, but argues
that the error was, at most, harmless. (Doc. 14 at 5.) The undersigned
disagrees. As pointed out by Plaintiff, because the ALJ found marked limitations
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in the domain of attending and completing tasks, a finding of marked limitations in
the domain of acquiring and using information, as found by Drs. Prather and
Weber, would result in a finding of disability. Thus, the ALJ’s error in this regard
cannot be considered harmless.
The Commissioner further argues, without referencing any supporting
authority, that because Dr. Prather authored the 2012 report considered by the
ALJ, the 2010 report (which Dr. Prather co-authored and which predates
Plaintiff’s application), was rendered stale. However, the Court cannot accept the
Commissioner’s post hoc rationalization here. See, e.g., Baker v. Comm’r of Soc.
Sec., 384 F. App’x 893, 896 (11th Cir. 2010) (“[A] court may not accept appellate
counsel’s post hoc rationalizations for agency actions. If an action is to be
upheld, it must be upheld on the same bases articulated in the agency’s order.”)
(internal citations omitted).
Therefore, this case will be reversed and remanded with instructions to the
ALJ to reconsider the December 2010 opinions of Drs. Prather and Weber,
explain what weight they are being accorded, and the reasons therefor. If the
ALJ rejects any portion of these opinions, she must explain her reasons for doing
so. In light of this conclusion and the possible change in the RFC assessment,
the Court finds it unnecessary to address Plaintiff’s second argument regarding
the ALJ’s evaluation of Plaintiff’s limitations in the domain of interacting and
relating with others. See Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir.
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1986) (per curiam); Freese v. Astrue, 2008 WL 1777722, at *3 (M.D. Fla. Apr. 18,
2008); see also Demenech v. Sec’y of the Dep’t of Health & Human Servs., 913
F.2d 882, 884 (11th Cir. 1990) (per curiam). However, on remand, the ALJ will
be directed to re-consider this domain.
Accordingly, it is ORDERED:
1.
The Commissioner’s decision is REVERSED pursuant to sentence
four of 42 U.S.C. § 405(g) and REMANDED with instructions to the ALJ to: (a)
reconsider the opinions of Drs. Prather and Weber, explain what weight they are
being accorded, and the reasons therefor; (b) reconsider Plaintiff’s limitations in
the other domains, if necessary, including the domain of interacting and relating
with others; and (c) conduct any further proceedings deemed appropriate.
2.
The Clerk of Court is directed to enter judgment consistent with this
Order and close the file.
3.
Plaintiff’s counsel is advised that, in the event benefits are awarded
on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the
parameters set forth by the Order entered in Case No.: 6:12-124-Orl-22 (In re:
Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
1383(d)(2)). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
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DONE AND ENTERED at Jacksonville, Florida, on January 17, 2017.
Copies to:
Counsel of Record
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