McClelland v. Commissioner of Social Security

Filing 29

MEMORANDUM OF DECISION: The Commissioner's final decision is REVERSED and REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment in favor of the Claimant and to close the case. Signed by Magistrate Judge Gregory J. Kelly on 5/1/2017. (DWG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KERRY MYERS MCCLELLAND,
Plaintiff,
v.

Case No: 6:16-cv-907-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Kerry McClelland, on behalf of her minor daughter, V.M. (the “Claimant”), appeals to the
District Court a final decision of the Commissioner of Social Security (the “Commissioner”)
denying her application for Supplemental Security Income (“SSI”). Doc. No. 8. Claimant argues
that the Commissioner erred by: 1) failing to consider new evidence submitted for the first time to
the Appeals Council; 2) not considering Claimant’s financial limitations when noting her lack of
medical treatment; 3) failing to properly consider Ms. McClelland’s testimony and Claimant’s
school records reflecting her mental performance; and 4) failing to develop the record by not
ordering a consultative medical examination at any point in the administrative process. Doc. No.
28 at 15-18, 20-22, 27-30, 33-35. Claimant requests that the Commissioner’s decision be reversed
for an award of benefits as of the alleged onset date or, in the alternative, be reversed and remanded
for further proceedings. Id. at 37. For the reasons set forth below, the Commissioner’s decision is
REVERSED and REMANDED for further proceedings.

I.

PROCEDURAL BACKGROUND
On October 19, 2012, Claimant filed an application for SSI. R. 168. Claimant alleges a

disability onset date of January 30, 2001. Id. On December 26, 2012, Claimant’s application was
denied. R. 117. On January 16, 2013, Claimant filed a request for reconsideration. R. 124. On
March 7, 2013, Claimant’s application was denied upon reconsideration. R. 126. On April 30,
2013, Claimant filed a request for a hearing before the Administrative Law Judge (the “ALJ”). R.
132. On September 29, 2014, Claimant attended a hearing before the ALJ. R. 51-88. On January
2, 2015, the ALJ issued an unfavorable decision. R. 31-46. On February 6, 2015, Claimant filed
a request for review of the ALJ’s decision. R. 27. On April 26, 2016, the Appeals Council denied
review. R. 1-5. On June 2, 2016, Claimant filed the operative complaint against the Commissioner
and initiated this appeal. Doc. No. 8.
II.

EVALUATION OF A MINOR’S DISABILITY
For a child under the age of eighteen to be entitled to SSI, that child must have “a medically

determinable physical or mental impairment, which results in marked and severe 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 [twelve] months.” Fontanez ex rel. Fontanez v.
Barnhart, 195 F.Supp.2d 1333, 1345 (M.D. Fla. 2002) (citing 42 U.S.C. § 1382c(a)(3)(C)(i)). In
making such a determination, the ALJ uses a three-step analysis. Espinoza ex rel. J.E. v. Astrue,
No. 8:07–cv–2003–T–HTS, 2009 WL 331600, at *1 (M.D. Fla. Feb. 10, 2009). A “child is
considered disabled if he or she: 1) is not engaged in substantial gainful activity; 2) has a medically
determinable impairment that is severe; and 3) the impairment meets, medically equals, or
functionally equals a [listed impairment].” Id. When considering whether an impairment
functionally meets a listed impairment at step three, the Commissioner considers six domains of

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functioning: 1) acquiring and using information; 2) attending to 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. Id. (citing 20 C.F.R. § 416.926a (b)(1)). An
impairment functionally equals a listed impairment if the child has “‘marked’ limitations in two
domains of functioning or an ‘extreme’ limitation in one domain.” Id. (citing 20 CFR §
416.926a(a)).
III.

THE ALJ’S DECISION
At step one, the ALJ found that Claimant has not engaged in substantial gainful activity

since the filing of her application. R. 34. At step two, the ALJ found that Claimant has the
following severe impairments: ADHD, asthma, mood disorder, psychotic disorder, headaches, and
gastroesophageal reflux disease. Id. At step three, the ALJ found that Claimant’s impairments (or
combination thereof) did not meet or medically equal the severity of any of the listed impairments.
R. 34-35. The ALJ also found that Claimant’s impairments (or combination thereof) did not
functionally equal the severity of any of the listed impairments. R. 35-45. Specifically, the ALJ
found that Claimant had less than marked limitations in five of the six domains of functioning. R.
39-45. The ALJ found that Claimant had marked limitations in the domain of health and physical
well-being. R. 45. Because the ALJ found that Claimant had marked limitations in only one of the
six domains of functioning, the ALJ determined that Claimant was not disabled. R. 46.
IV.

ANALYSIS
A. Duty to Develop
Central to Claimant’s appeal is the issue of whether the ALJ failed to develop the record.

Doc. No. 28 at 33-36. Claimant argues that the ALJ failed to develop the record by not ordering a
consultative examination for any of Claimant’s alleged impairments. Id. at 34. The Commissioner

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argues that a consultative examination is not needed because “the ALJ determined [that] the record
contained sufficient evidence for him to reach an informed decision on Claimant’s claim.” Id. at
35. Thus, the parties agree that no consultative examination was ordered. Id. at 33-36.
The Supreme Court in Sims v. Apfel, 530 U.S. 103, 110-11, 120 S.Ct. 2080, 2085, 147
L.Ed.2d 80 (2000), held that “[s]ocial security proceedings are inquisitorial rather than adversarial”
and that the ALJ has a duty “to investigate the facts and develop the arguments both for and against
granting benefits.” Id. (citing Richardson v. Perales, 402 U.S. 389 (1971)). The ALJ’s duty
includes ordering a consultative examination if one is needed to make an informed decision.
Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984) (citations omitted). Nevertheless, an
ALJ is not required to order a consultative examination provided that the record contains sufficient
evidence for the ALJ to make an informed decision. Ingram v. Commissioner of Soc. Sec. Admin.,
496 F.3d 1253, 1269 (11th Cir. 2007) (“[t]he administrative law judge has a duty to develop the
record where appropriate but is not required to order a consultative examination as long as the
record contains sufficient evidence for the administrative law judge to make an informed
decision”); Good v. Astrue, 240 Fed. Appx. 399, 404 (11th Cir. 2007) (“the ALJ need not order an
additional consultative examination where the record was sufficient for a decision”).1
The Commissioner argues that the ALJ determined the record to be sufficient to make an
informed decision on this issue. Doc. No. 28 at 35. The ALJ’s own statements, however, prove
otherwise. In an exchange with Ms. McClelland (and her counsel) the ALJ noted Claimant’s lack
of psychological treatment:
ALJ:

Now, besides going to Tri-County a few times, has
[Claimant] had any other psychological treatment?

In this circuit, “[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive
authority.” 11th Cir. R. 36-2.
1

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CMT: No, because we’ve been trying to get the insurance
[company] to approve her for [a] psychological evaluation.
ALJ:

Okay.

CMT: -- because of not being able to remember things. But TriCounty has been the primary person for her. They diagnosed
her, I think, with ADD and mood disorder, so.
ALJ:

Right, they did … Unfortunately, and I’m looking to see if I
missed the record, but the record that I saw was kind of
vague as to the --- yeah, there’s only one for Tri-County at
7F, right, counsel?

CMT: They’re not very thorough there.
ATTY: Yes, sir. It’s -CMT: I have to be honest.
ALJ:

And that’s the difficulty, I…

ATTY: And it says unspecified, so.
ALJ:

Yeah, that’s the thing .… I can see that there’s obvious
physical problems … but the mental evaluation … is kind of
lacking .… And I think the [state agency reviewing
physicians], counsel, gave her a marked [limitation] in health
and physical wellbeing—

ATTY: Right.
ALJ:

-- in that domain. So what I was primarily looking at is some
additional evidence to show that … in maybe [domain] one
or perhaps, you know, one of the other psychological
domains…that we have some evidence to show marked
[limitations].

CMT: Yeah, I can get those for you.
ALJ:

That, that would be good .… That’s what we need in this
case.

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R. 75-77 (emphasis added).2 Thus, the ALJ recognized that the current evidence of record was
lacking with regard to Claimant’s mental impairments. Id. Specifically, the ALJ noted the lack of
evidence that would aid him in his consideration of the six domains of a child’s functioning. Id.
The ALJ made a similar statement in his decision, when he found no credibility in Claimant’s
allegations regarding her mental impairments:
Turning to her brief treatment for a mood disorder, the record
remains rather vague with respect to this issue. There is some
suggestion that the significant psychosocial stressors faced by
[Claimant] played a part in her depressive symptoms. [Claimant] has
also been non-compliant with treatment and there does not appear
to be any follow-up treatment since October 2014. Despite the lack
of treatment, [Claimant] has not been admitted for inpatient
psychiatric care and she had yet to follow through on the referral for
a neuropsychologist.
R. 39 (emphasis added). Thus, the ALJ found Claimant’s allegations regarding her mental
impairments not credible because: 1) there is some suggestion that significant psychosocial
stressors played a part in Claimant’s depressive symptoms; 2) Claimant was non-compliant with
treatment; 3) there does not appear to be any follow-up treatment since October 2014; and 4)
Claimant has not been admitted for inpatient psychiatric care and has yet to follow through on a
referral for a neuropsychologist. Id. Yet, before making these findings, the ALJ admitted that the
“record remains rather vague with respect to this issue.” Id.
It is well established that “while the ALJ is entitled to make credibility determinations, the
ALJ may not substitute his judgment for the judgments of experts in their field of expertise.”
Matthews v. Barnhart, 347 F.Supp.2d 1093, 1101 (M.D. Ala. 2003). At the hearing, the ALJ

2

The exhibit referred to above are treatment notes from Tri-County Psychiatric Associates. R. 406-415. Tri-County
Psychiatric Associates provides mental health care to children. R. 70. The treatment notes state that Claimant is
diagnosed with unspecified psychosis, unspecified episodic mood disorder, and other and unspecified episodic mood
disorder. R. 407. The ALJ also refers to two opinions from state agency reviewing physicians, noting that Claimant
has marked limitations in the domain of health and physical well-being. R. 97, 110.

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recognized that the record lacked sufficient evidence regarding Claimant’s mental limitations. R.
75-77. Furthermore, after reviewing the record in its entirety, the ALJ noted that the record was
still unclear as to that issue. R. 39. Based on the foregoing, the ALJ “should have concluded that
it was necessary to secure additional evidence regarding the [claimant’s] intellectual functioning
before rendering a decision regarding [her] disability.” Kelly v. Colvin, CIVIL ACTION NO.
2:15cv380-CSC, 2016 WL 2983503, at *5 (M.D. Ala. May 23, 2016). However, the ALJ did not
order a consultative mental examination. Doc. No. 28 at 34. Without a more thorough assessment
of Claimant’s mental abilities and limitations, the Court cannot determine that the ALJ’s decision
was based on substantial evidence. See Kelly, 2016 WL 2983503 at *6 (finding that “by failing to
refer [the claimant] for a consultative psychological examination, the ALJ improperly substituted
her judgment for that of a psychologist”). Accordingly, remand is necessary for the ALJ to order
a consultative mental examination detailing Claimant’s mental abilities and limitations.3
B. Award of Benefits
Since reversal is necessary, the undersigned must address Claimant’s request that the case
be reversed for an award of benefits. Doc. No. 28 at 37. Reversal for an award of benefits is only
appropriate when either: 1) the Commissioner has already considered the essential evidence and it
establishes disability beyond a doubt; or 2) where the Claimant has suffered an injustice. Davis v.
Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (disability beyond a doubt warrants award of benefits).
Here, the matter is being reversed because the ALJ failed to obtain a consultative examination
regarding Claimant’s mental impairments. See supra, pgs. 3-7. Without any results from such
consultative examination, the undersigned cannot determine whether Claimant is disabled beyond

Because such issue is dispositive, there is no need to address Claimant’s other arguments. See Diorio v. Heckler,
721 F.2d 726, 729 (11th Cir. 1983) (on remand the ALJ must reassess the entire record); McClurkin v. Soc. Sec.
Admin., 625 F. App’x 960, 963 n.3 (11th Cir. 2015) (per curiam) (no need to analyze other issues when case must be
reversed due to other dispositive errors).
3

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doubt. Davis, 985 F.2d at 534. Furthermore, the record before the Court does not establish that
Claimant is disabled beyond a doubt or that Claimant has suffered an injustice. Id. Accordingly,
Claimant's request for reversal for an award of benefits is not well-taken, and the matter shall be
remanded for further proceedings.
V.

CONCLUSION
For the reasons stated above, it is ORDERED that:
1.

The final decision of the Commissioner is REVERSED and REMANDED
for further proceedings pursuant to sentence four of Section 405(g); and

2.

The Clerk is directed to award judgment in favor of Claimant and to close
the case.

DONE and ORDERED in Orlando, Florida on May 1, 2017.

The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
Paul J. Morgan
1099 W Morse Blvd
Winter Park, FL 32789
John F. Rudy, III
400 N Tampa St - Suite 3200
Tampa, FL 33602-4798
Mary Ann Sloan, Regional Chief Counsel
Dennis R. Williams, Deputy Regional Chief Counsel
Susan Kelm Story, Branch Chief
Christopher G. Harris, Assistant Regional Counsel
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia 30303-8920

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The Honorable Michael Calabro
Administrative Law Judge
c/o Office of Disability Adjudication and Review
Desoto Building #400
8880 Freedom Crossing
Jacksonville, FL 32256-1224

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