v. Astrue

Filing 19

MEMORANDUM. Signed by Magistrate Judge Paul W. Grimm on 8/15/11. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
PAUL W. GRIMM
CHIEF UNITED STATES MAGISTRATE JUDGE

101 W. LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
[phone] FAX

August 15, 2011
Robert G. Skeen, Esq.
Skeen Goldman LLP
11 E. Lexington Street, 4th Fl.
Baltimore, MD 21202
Alex S. Gordon, AUSA
36 South Charles Street
4th Floor
Baltimore, MD 21201
Re: Julia Fogle o/b/o RDF v. Michael J. Astrue,
Commissioner of Social Security, PWG-09-3155
Dear Counsel:
Pending before this Court, by the parties’ consent, are
Cross-Motions for Summary Judgment concerning the Commissioner’s
decision denying minor child RDF’s claim for Children’s
Supplemental Security Income (“SSI”). (ECF Nos. 11,14,18). This
Court must uphold the Commissioner’s decision if it is supported
by substantial evidence and if proper legal standards were
employed. 42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987).
A hearing is unnecessary.
Local Rule 105.6.
For the
reasons that follow, this Court DENIES the Plaintiff’s Motion
and GRANTS the Commissioner’s Motion.
Julia Fogle, on behalf of her son, “RDF” (sometimes
referred to as “Claimant” or “RDF”) applied for childhood SSI on
September 16, 2002, alleging that he was disabled due to
attention deficit hyperactivity disorder (“ADHD”). (Tr. 70, 83,
180).
His
claim
was
denied
initially,
and
upon
reconsideration.(Tr. 24). After a hearing was held before an
Administrative Law Judge (“ALJ”), the Honorable William B.
Harmon, the ALJ issued an unfavorable decision on May 24, 2006.
The Appeals Council denied Claimant’s request for review and an
appeal was filed with this Court (JKB-06-2677).
On August 8,
2008 the Honorable James K. Bredar entered an Order vacating the
ALJ’s decision, and remanding the case back to the Agency for

further proceedings.(Tr. 201-203).
A second hearing was held
before a different ALJ, the Honorable Robert J. Brown, on
February 12, 2009. On July 28, 2009, the ALJ issued a decision
in which he evaluated RDF’s claim for children’s SSI benefits
using the three-step sequential process set forth in 20 C.F.R. §
416.924. The ALJ’s findings at steps one and two were favorable
to Claimant and the ALJ found RDF had the following severe
impairment: ADHD.(Tr. 183).
At step three, however, the ALJ
found that the Claimant did not have an impairment or
combination of impairments that met any listed impairment. (Tr.
185).
Additionally, the ALJ determined that Claimant did not
have an impairment or combination of impairments that would be
functionally equivalent1 to any listed impairment.(Tr. Id.).
Therefore, the ALJ determined that the Claimant was not disabled
for purposes of children’s SSI benefits. (Tr. 180-193).
The
Appeals Council denied RDF’s request for review, making his case
ready for judicial review.
RDF alleges that the ALJ made one substantial error.
He
maintains the ALJ failed to give proper weight to evidence which
demonstrates that he has “marked” and “extreme” limitations in
all the pertinent domains of functioning which, he contends,
establishes that his condition is functionally equated to a
Listing.
The Commissioner argues that the ALJ’s findings that
RDF did not have any “marked” or “extreme” limitations is
supported by substantial evidence. See Defendant’s Memorandum,
pp. 9-14.
As explained below, after careful review of the
entire record and the ALJ’s decision, I conclude that
substantial evidence supports the ALJ’s decision and therefore
will DENY the Plaintiff’s Motion for Summary Judgment, and GRANT
the Commissioner’s Motion.
First, Claimant argues that the ALJ failed to give proper
weight to the evaluation of the consultative examiner, Dr.
Kraft. Exhibit 6-F. (Tr. 251-256). Claimant argues that this
report supports a finding that RDF has extreme difficulty in
areas such as interacting with others. In particular, he argues
that Dr. Kraft’s notation that RDF had altercations in class,
and had feelings of anger support a finding that he had marked
limitation interacting with others. However, the ALJ discussed
Dr. Kraft’s opinions, including the testing he completed and his
1

Functional equivalence is determined by rating a child’s
abilities with respect to six “domains.” 20 C.F.R. § 416.926a
2

findings that RDF was fidgety during testing but, was able to be
redirected and his insight and judgment were actually rated as
“fair”. Dr. Kraft’s ultimate opinion was that RDF had ADHD, a
GAF of 65, and his academic skills were in the low to average
range. (Tr. 252-254). The ALJ found Dr. Kraft’s opinions
regarding
RDF’s
intelligence
and
psychological
evaluation
persuasive, and the ALJ ultimately rejected the opinions of Drs.
Nissar, Shaikh, and Barash which Claimant also argues was
improper. (Tr. 184).
A treating physician’s opinion is given controlling weight
when two conditions are met: 1) it is well-supported by
medically acceptable clinical laboratory diagnostic techniques
and 2) it is consistent with other substantial evidence in the
record. See Craig v. Chater, 76 F.3d 585 (4th Cir. 1996); see
also 20 CFR §404.1527(d)(2). While treating source opinions on
issues reserved to the Commissioner--such as determining whether
a Claimant meets a Listing--are not entitled to controlling
weight, the ALJ still must evaluate all of the evidence in the
case record to determine the extent to which the opinion is
supported by the record.
In this case, I find that the ALJ
fulfilled this duty.
The ALJ discussed Dr. Shaikh’s & Dr.
Barash’s opinions that Claimant had “marked” impairments in all
of the domains listed in 20 CFR §416.926(d) which if accepted
would support a finding that RDF met a Listing. (Tr. 147).
However, the ALJ found that their opinions were not fully
supported by the evidence of record. (Id.). I agree.
For
example,
Dr.
Barash
stated
that
RDF’s
memory,
concentration comprehension and social skills all appeared to be
“fair”. (Tr. 113). This is not consistent with Dr. Shaikh’s
finding of “marked” limitations in these areas. (Tr. 148). When
viewed in its entirety, as is required, the evidence in the
record supports the ALJ’s determination to afford little weight
to Dr. Shaikh’s opinion.
The ALJ discussed the evidence that
contradicted Dr. Shaikh’s opinions, including the opinions of
state agency physicians but more importantly, the ALJ discussed
the test results from Dr. Kraft and RDF’s school records which
were inconsistent with his opinions. (Tr. 124, 184-185).
For example, Ms. Gallagher, a speech language pathologist,
found that RDF had only a “mild” weakness in the areas of
associations and sentence imitation and that his overall
language score was within normal limits. (Tr. 138).
This
evidence is not consistent with Dr. Shaikh’s findings of
3

“marked” impairments statement that RDF “cannot identify or
write simple alphabet and numbers”. In sum, the ALJ’s decision
to reject the reports of Dr. Shaikh and Dr. Barash, and the
ALJ’s determination that RDF had less than marked limitations is
supported by substantial evidence. (Tr. 148).

Thus, for the reasons given, this Court DENIES
Claimant’s
Motion
for
Summary
Judgment
and
GRANTS
Commissioner’s Motion. A separate Order shall issue.
Sincerely,
/s/
Paul W. Grimm
United States Magistrate Judge

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