J.M. v. Social Security Administration

Filing 24

ORDER AND REASONS declining to the adopt REPORT AND RECOMMENDATIONS 21 : Plaintiff's 16 MOTION for Summary Judgment is GRANTED, the ALJ's decision is REVERSED, and Plaintiff's claim is REMANDED to the Commissioner of Social Security for further consideration. Defendant's 18 MOTION for Summary Judgment is DENIED. Signed by Judge Jane Triche Milazzo. (cc: SSA)(ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J.M.

CIVIL ACTION

VERSUS

NO. 14-79

SOCIAL SECURITY ADMINISTRATION

SECTION "H"

ORDER AND REASONS
Before the Court are cross motions for summary judgment (R. Docs. 16,
18), the Magistrate Judge's Report and Recommendation on the resolution of
these motions (R. Doc. 21), and Plaintiff's objections thereto. This Court declines
to adopt the Report and Recommendations. For the following reasons, Plaintiff's
Motion is GRANTED, the ALJ's decision is REVERSED, and Plaintiff's claim is
REMANDED to the Commissioner of Social Security for further consideration
in accordance with this opinion. Defendant's Motion is DENIED.
BACKGROUND
Plaintiff, a minor child, filed an application for supplemental security
1

income ("SSI") on April 26, 2011, alleging a disability onset date of July 1, 2010.1
Plaintiff alleges disability due to attention deficit hyperactivity disorder
("ADHD") and borderline intellectual functioning.2 Plaintiff, born on September
5, 2004, was five years old on the date on which he alleged disability and eight
years old at the time of the final administrative decision.3 Plaintiff has no past
work experience.
Defendant, the Commissioner of Social Security, initially denied Plaintiff's
application on August 12, 2011.4 Plaintiff sought an administrative hearing,
which Defendant held on May 30, 2012.5 Plaintiff and his mother testified at the
hearing. On October 26, 2012, the administrative law judge ("ALJ") issued a
decision in which she found that Plaintiff had not been disabled through the date
of the decision.6 In the decision, the ALJ concluded that Plaintiff has the severe
impairments of ADHD and borderline intellectual functioning.7 She found that,
as a school-age child, Plaintiff had not engaged in substantial gainful activity.8
The ALJ then held that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed

1

Adm. Rec. at 13, 82–87.

2

Id. at 46.

3

Id.

4

Id. at 13, 55–58.

5

Id. at 30–44.

6

Id. at 13–26.

7

Id. at 16.

8

Id.

2

impairments under the regulations.9 Lastly, she concluded that Plaintiff does
not have an impairment or combination of impairments that functionally equals
the severity of any listing.10
Plaintiff asked the Appeals Council to review the ALJ's conclusion that he
is not disabled.11 On November 7, 2013, the Appeals Council denied Plaintiff's
request.12 Plaintiff then timely filed this action pursuant to 42 U.S.C. § 405(g)
for review of the final decision of the Commissioner denying his claim for SSI
under Title XVI of the Social Security Act ("SSA").
STANDARD OF REVIEW AND APPLICABLE LAW
The function of a district court on judicial review is limited to determining
whether there is "substantial evidence" in the record, as a whole, to support the
final decision of the Commissioner as trier of fact and whether the Commissioner
applied the appropriate legal standards to evaluate the evidence.13 If the
Commissioner's findings are supported by substantial evidence, this Court must
affirm them.14
"Substantial evidence" is that which is relevant and sufficient for a

9

Id.

10

Id.

11

Id. at 6–7.

12

Id. at 1–5.

13

See 42 U.S.C. § 405(g); Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir. 1995); Carriere v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991).
14

Martinez, 64 F.3d at 173.

3

reasonable mind to accept as adequate to support a conclusion.15 It is more than
a scintilla but may be less than a preponderance.16 A finding of no substantial
evidence is appropriate only if no credible evidentiary choices or medical findings
exist to support the Commissioner's decision.17 A district court may not try the
issues de novo, re-weigh the evidence, or substitute its own judgment for that of
the Commissioner.18 The Commissioner is entitled to make any finding that is
supported by substantial evidence, regardless of whether other conclusions are
also permissible.19 Conflicts in the evidence are for the Commissioner to resolve,
not the courts.20 Any of the Commissioner's findings of fact that are supported
by substantial evidence are conclusive.21 Despite this Court's limited function
on review, the Court must scrutinize the record in its entirety to determine the
reasonableness of the decision reached and whether substantial evidence exists
to support it.22
Plaintiff's

Objections

correctly

noted

that

in

his

Report

and

Recommendation the magistrate judge cited the analysis for the determination
15

Richardson v. Perales, 402 U.S. 389, 401 (1971); Masterson v. Barnhart, 309 F.3d 267,
272 (5th Cir. 2002).
16

Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).

17

See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2002).

18

Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000); Ripley v. Chater, 67 F.3d 552, 555
(5th Cir. 1995); Spellman, 1 F.3d at 360.
19

See Arkansas v. Oklahoma, 503 U.S. 91, 112–13 (1992).

20

Carey, 230 F.3d at 135.

21

Ripley, 67 F.3d at 555.

22

Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Villa v. Sullivan, 895 F.2d
1019, 1022 (5th Cir. 1990).

4

of disability for an adult, rather than a child as is required in this case. The
record reveals, however, that the ALJ applied the appropriate analysis, and the
magistrate judge's error was therefore harmless. The appropriate analysis is as
follows. An individual under the age of 18, like Plaintiff, is considered disabled
if that individual “has 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 12 months.”23 A three-step analysis is used
to evaluate claims for SSI benefits for children: "(1) Is the claimant engaged in
substantial gainful activity? (2) Does the claimant have a severe impairment or
combination of impairments? (3) Does the claimant's impairment meet,
medically equal, or functionally equal in severity a listed impairment in
Appendix 1?"24 To determine whether the claimant's impairment is functionally
equivalent to a listed impairment, the Commissioner will consider how the
claimant functions 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 one's self, and (6) health
and physical well-being.25 A claimant's impairments functionally equal the
listings if they are of listing-level severity.26 Impairments are of listing-level
severity if the claimant has marked limitations in two domains, or an extreme
23

42 U.S.C. § 1382c(a)(3)(C)(I).

24

Dunn ex rel. K.D. v. Colvin, No. 13-408-JJB, 2015 WL 1476806, at *2 (M.D. La. Mar.
31, 2015); 20 C.F.R. § 416.924(a)–(d).
25

20 C.F.R. § 416.926a(b)(1)(I)–(vi).

26

20 C.F.R. § 416.926a(d).

5

limitation in one domain.27 Limitation in a domain is "marked" when the
claimant's "impairment(s) interferes seriously with [his] ability to independently
initiate, sustain, or complete activities."28 "Extreme" limitations in a domain
occur when a claimant's "impairment(s) interferes very seriously with [his]
ability to independently initiate, sustain, or complete activities."29
LAW AND ANALYSIS
Plaintiff raises two issues in this appeal of the ALJ's decision to deny SSI.
First, Plaintiff argues that the ALJ erred when she failed to assign controlling
weight to Plaintiff's treating physician or give good cause why controlling weight
was not appropriate. Second, Plaintiff argues that there is not substantial
evidence to support the ALJ's conclusion that Plaintiff does not meet or
medically equal any listing.
In his Motion for Summary Judgment, Plaintiff argued that the ALJ
should have given controlling weight to the opinion of his treating physician,
Lolita Gonzales, M.D., who saw Plaintiff on approximately four occasions.
Plaintiff contended that the opinion of Gonzales, which stated that Plaintiff has
a marked limitation in acquiring and using information and attending to and
completing tasks, is consistent with the reports of other physicians and the
testimony of Plaintiff's mother. Gonzales offered this opinion on a check-box
form at the request of Plaintiff more than a month after the ALJ issued her
27

Id.

28

20 C.F.R. § 416.926a(e)(2)(i).

29

20 C.F.R. § 416.926a(e)(3)(i).

6

decision. The Appeals Council evidently considered the form and made it a part
of the record but ultimately determined, without explanation, that it did not
provide a basis for reversing the ALJ's decision. The Appeals Council is required
to review new evidence presented by the claimant if it relates to the period on
or before the ALJ review.30 The Appeals Council "will then review the case if it
finds that the administrative law judge's action, findings, or conclusion is
contrary to the weight of the evidence currently of record."31
The Fifth Circuit has "long held that ordinarily the opinions, diagnoses,
and medical evidence of a treating physician who is familiar with the claimant's
injuries, treatments, and responses should be accorded considerable weight in
determining disability."32 However, "when good cause is shown, less weight,
little weight, or even no weight may be given to the physician's testimony. The
good cause exceptions [that the Fifth Circuit has recognized] include
disregarding statements that are brief and conclusory, not supported by
medically acceptable clinical laboratory diagnostic techniques, or otherwise
unsupported by the evidence."33
In his Report and Recommendation, the magistrate judge opined that the
text of the Appeals Council's decision made it clear that it had considered
Gonzales's form opinion when it decided that the ALJ's decision was supported
by the record. The magistrate judge stated that Gonzales's check-the-box form
30

20 C.F.R. § 404.970.

31

Id.

32

Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994); Ramirez v. Colvin, No.
14-20563, 2015 WL 1607346, at *4 (5th Cir. Apr. 10, 2015).
33

Greenspan, 38 F.3d at 237.

7

was a conclusory statement and was thus entitled to little weight.34 In his
objections to the Report and Recommendations, however, Plaintiff correctly
argues that neither the ALJ nor the Appeals Council gave good cause for failing
to give considerable weight to the treating physician's opinion. Plaintiff argued
that "it is not within the Magistrate Judge's scope of review to provide this good
cause reason where the ALJ has provided none."35 This Court agrees.
The Fifth Circuit has stated that an "ALJ cannot reject a medical opinion
without an explanation."36 "SSA Regulations provide that the SSA 'will always
give good reasons in [its] notice of determination or decision for the weight [it
gives the claimant's] treating source's opinion'"37 The SSA Regulations list the
following factors that an ALJ must consider in determining whether to give a
treating physician's opinion less than controlling weight: the length and
frequency of treatment; the nature and extent of treatment; the amount of
evidence and explanation supporting the opinion; and the physician's
specialization. The Fifth Circuit has held that an "ALJ is required to consider
each of [these] factors before declining to give any weight to the opinions of the
claimant's treating specialist."38 Neither the ALJ nor the Appeals Council
considered these factors in this matter, yet neither gave weight to the treating
physician's opinion.
Accordingly, the Appeals Council, the ALJ, and the Commissioner have
34

R. Doc. 21, p. 8.

35

R. Doc. 22-1, p. 5.

36

Loza v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000).

37

Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000) (quoting 20 C.F.R § 404.1527(c)(2)).

38

Id.

8

committed reversible error by failing to give considerable weight to the medical
reports and opinions of Plaintiff's treating physician or provide good cause why
such weight was not given.39 On remand, the ALJ should discuss what weight
Gonzales's opinion deserves in light of the factors discussed above. Of note, this
Court makes no findings as to whether Gonzales's opinion is entitled to
controlling weight or how its consideration will affect the ALJ's ultimate denial
of benefits. It merely holds that the ALJ and the Appeals Council erred in
failing to give Plaintiff a carefully considered reason for declining to give weight
to his treating physician's opinion. Without such a determination, this Court
cannot decide if the ALJ's decision is supported by substantial evidence.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion is GRANTED, the ALJ's
decision is REVERSED, and this matter is REMANDED to the Commissioner
for further consideration consistent with this opinion. Defendant's Motion is
DENIED.

New Orleans, Louisiana, this 29th day of June, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
39

Loza, 219 F.3d at 395.

9