Gaston v. Commissioner of Social Security

Filing 19

OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/25/2016. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DARLENE GASTON on behalf of J.A.G., a minor,
Plaintiff,
v.

Case No. 8:15-cv-91-T-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
______________________________/
OPINION AND ORDER
Plaintiff, Darlene Gaston, on behalf of her minor daughter J.A.G., seeks judicial review of
the final decision of the Commissioner of the Social Security Administration (“SSA”) denying her
claim for Child’s Supplemental Security Income (SSI). 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 memoranda setting forth their respective positions. For the reasons
explained below, the Court finds that the decision of the Commissioner is due to be 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
As in all Social Security disability cases, a claimant bears the burden of proving he is
disabled within the meaning of the Social Security Act. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R.
§ 416.912(a), (c) (2010); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). This burden of proof on the claimant also exists for
childhood SSI disability claims. The definition of childhood SSI disability provides that a claimant

under the age of eighteen years shall be considered disabled if the claimant has a medically
determinable physical or mental impairment which results in "marked and severe functional
limitations," and that can be expected to result in death, or that 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. The regulations define the statutory standard of "marked and severe functional
limitations" as "a level of severity that meets, medically equals, or functionally equals the listings."
20 C.F.R. § 416.902; 20 C.F.R. §§ 416.906, 416.924(a), 416.926a(a); and 20 C.F.R. pt. 404, subpt.
P, app. 1 (the Listing of Impairments).
The Commissioner has established a specific sequential evaluation process for determining
whether a child claimant is disabled or not disabled. 20 C.F.R. § 416.924. The three-step process
requires a child (or his guardian) to show: (1) that he is not working; (2) that he has a "severe"
impairment or combination of impairments; and (3) that his impairment or combination of
impairments is of listing level severity, that is, the impairment(s) meets or medically equals the
severity of a set of criteria for an impairment in the listings, or functionally equals the listings. 20
C.F.R. § 416.924.
If a child claimant is not working and has a severe impairment, the fact finder must
determine if the child’s impairment(s) meets or medically equals an impairment in the listings. 20
C.F.R. § 416.924(a)-(d). If the child’s impairment(s) does not meet or medically equal a listed
impairment, the fact finder then must determine if the child's impairment(s) is functionally
equivalent to the listings. 20 C.F.R. §§ 416.924(d), 416.926a (discussing functional equivalence).
For the child's impairment(s) to functionally equal the listings, the child's impairment(s) 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 fact finder considers the child's functioning in terms of six

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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; and
(6) health and physical well-being. 20 C.F.R. § 416.926a(d)(1).
B. Procedural History
On March 28, 2011, Plaintiff, on behalf of her minor daughter J.A.G., filed an application
for child’s Supplemental Security Income (SSI) alleging disability due to hyproplex heart complex
and attention deficit/hyperactivity disorder (ADHD). (Tr. 64, 212). The claim was denied initially
on June 21, 2011, and denied upon reconsideration on September 14, 2011. (Tr. 64, 65). Plaintiff
thereafter filed a written request for a review hearing before an Administrative Law Judge, which
was granted and held on April 9, 2013. (Tr. 43-63).
The ALJ issued an unfavorable decision that found J.A.G. had not been disabled within the
meaning of the Social Security Act since the date of filing the application. (Tr. 36). Plaintiff sought
review of the ALJ’s decision which was denied by the Appeals Council. (Tr. 1-4). Thus, the ALJ’s
decision is the final decision of the Commissioner of Social Security in the present case. Plaintiff
now seeks judicial review of the ALJ’s decision in the United States District Court for the Middle
District of Florida.
C. Summary of the ALJ’s Decision
The ALJ found that Plaintiff was born on April 23, 1998, was a school-aged child on March
28, 2011, the date which the application was filed, and was currently an adolescent on the date of
his decision. (Tr. 24). In evaluating Plaintiff’s claim, the ALJ utilized the three-step sequential
evaluation process to determine whether an individual under the age of eighteen is disabled. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the
application date. (Tr. 24).

At step two, the ALJ determined that Plaintiff had the severe

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impairments of hyproplastic left heart syndrome (HLHS) and ADHD. (Tr. 24). At the third step,
the ALJ determined that J.A.G.’s impairment was not one that met or medically equaled one of
the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. (Tr. 24).
The ALJ also evaluated Plaintiff under the “whole child” approach in order to determine if
the impairment functionally equaled the requirements of a listed impairment. (Tr. 24). See 20
C.F.R. § 416.926a(b), (c); Social Security Ruling 09-1p. The ALJ found that J.A.G. had less than
marked limitation in acquiring and using information, in attending and completing tasks, in
interacting and relating with others, in the ability to care for herself, and in her health and physical
well-being.

(Tr. 31-36).

The ALJ found J.A.G. had no limitation in moving about and

manipulating objects. (Tr. 34). The ALJ found that Plaintiff was not under any disability during
any time from the date of the application through the date of the decision. (Tr. 36). See 20 C.F.R.
§ 416.924(a).
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)
and Richardson, 402 U.S. at 401).

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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 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. Issues on Appeal
On appeal, Plaintiff raises two issues: (1) whether the ALJ properly evaluated the opinion
evidence, including the opinions of the Agency examining psychologist and school psychologist,
and (2) whether substantial evidence supports the ALJ’s assessment of Plaintiff’s limitations in
three of the functional equivalence domains. The Court will address each issue in turn.
As to the first issue raised, Plaintiff argues the ALJ erred by failing to consider any of the
factors set forth in 20 C.F.R. § 416.927 in analyzing the opinion evidence. (Doc. 18 p. 15).
Plaintiff contends that this failure alone constitutes grounds for remand because it is not possible,
as a matter of law, for the ALJ to have properly rejected medical opinions in the absence of the
consideration of these factors. (Doc. 18 p. 15). In addition, Plaintiff contends that the ALJ erred
by failing to state the weight he accorded to the opinions of agency examining specialist Gregory
C. Landrum, Psy.D. and school psychologist Sherry J. Scott, M.S., Ed.S. (Doc. 18 p. 16). In
response, Defendant argues that the ALJ properly assessed the evidence of record, including the
opinion evidence, in assessing whether Plaintiff functionally equaled the severity of the listings.
(Doc. 18 p. 16).

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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. Commissioner of
Social Security, 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. Shweiker, 662 F.2d
731, 735 (11th Cir. 1981)).
In this case, the Court finds that the ALJ erred by failing to explain his reasoning in
weighing the medical opinion evidence. In his decision, the ALJ noted that he accorded “great
weight” to the opinions of four psychologists employed by the State Disability Determination
Services who each found that the J.A.G. had only “less than marked limitations” and “no
limitations” in each of the six functional equivalence domains. The only explanation the ALJ gives
for his finding is that “[t]he undersigned notes that while there were many statements in the record
concerning the child and her behavior, he is more persuaded by the expert medical assessment
given in these exhibits.” (Tr. 31). Notably, the ALJ provides no explanation for why he is more
persuaded by the expert medical assessments, merely states that he is so. Presumably, the ALJ
found that the opinions of these agency evaluators were supported by the medical evidence of
record, but the ALJ fails to even provide a boilerplate explanation to this affect. The Court,
reviewing the ALJ’s opinion on appeal, declines to engage in a post hoc reasoning to justify the
ALJ’s decision. See 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.”).

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The ALJ’s error is compounded by the ALJ’s failure to state the weight he accorded the
opinion of Dr. Lundrum who conducted a consultative psychological evaluation of Plaintiff on
May 16, 2011. While the ALJ did thoroughly summarize Dr. Lundrum’s findings and opinion in
the administrative decision, the ALJ failed to state the weight he accorded Dr. Lundrum’s opinion.
By failing to do so, the ALJ again ran afoul of Winschel’s directive to state the weight accorded to
physician’s opinions.
The ALJ, however, committed no error by failing to state the weight he accorded the
opinion of school psychologist Ms. Scott. As Defendant correctly notes, school psychologists are
acceptable medical sources for purposes of establishing impairments of intellectual disability,
learning disabilities, and borderline intellectual functioning only. 20 C.F.R. § 416.913(a)(2); see
also Brown v. Comm’r of Soc. Sec., 2015 WL 1125375, at *4 (M.D. Fla. Mar. 12, 2015). Here,
Ms. Scott assessed none of the impairments set forth in § 416.913(a)(2), her opinion was not an
acceptable medical source, and the ALJ did not err by failing to state the weight he accorded it.
Upon remand, the Court will require the ALJ to explain his reasoning for the weight he
accorded the opinion evidence of record, specifically noting the weight accorded to Dr. Lundrum’s
opinion and the reasons therefore. As the ALJ’s explanation of the weight accorded these opinions
may alter the ALJ’s analysis as to his findings concerning the areas of functional equivalence, the
Court defers from considering the second issue raised at this time.
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the
Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.

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DONE and ORDERED in Fort Myers, Florida on February 25, 2016.

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