Goldman v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION, JUDGMENT in favor of Commissioner of Social Security against Tiffany Goldman. CASE CLOSED. Signed by Magistrate Judge David A. Sanders on 9/19/22. (def)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
TIFFANY NICOLE GOLDMAN,
on Behalf of J.D.W.
V.

PLAINTIFF
CIVIL ACTION NO. 4:21cv-160-DAS

KILOLO KIJAKAZI,
ACTING COMMISSIONER OF SOCIAL SECURITY1
DEFENDANT
MEMORANDUM OPINION AND JUDGMENT
This cause is before the court on the plaintiff’s complaint for judicial review of an
unfavorable final decision of the Commissioner of the Social Security Administration regarding
her application for supplemental security income on behalf of JDW, a minor. The parties have
consented to entry of final judgment by the United States Magistrate Judge under the provisions
of 28 U.S.C. § 636(c), with any appeal to the Fifth Circuit Court of Appeals. The court, having
reviewed the administrative record, the briefs of the parties, the applicable law and having heard
oral argument, finds the decision of the Commissioner of Social Security should affirmed.
FACTS
The plaintiff, Tiffany Nicole Goldman, (Goldman), filed for benefits for her son JDW on
April 29, 2019 alleging onset of disability commencing on February 8, 2019. The Social
Security Administration denied the claim initially and on reconsideration. Following the

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The clerk of the court is directed to amend the style of the case to reflect that the defendant is the Acting
Commissioner as reflected above.

hearing, the ALJ issued an unfavorable decision on February 2, 2021. (Dkt. 10 p. 21-32).2 The
Appeals Council denied the request for review, and this timely appeal followed.
The ALJ determined JDW had the following severe impairments: autism spectrum,
oppositional defiant disorder, and selective mutism. The ALJ found JDW did not have an
impairment that met or medically equaled Listing 112.20 and 112.08 due to either his autism or
defiant oppositional disorder. The ALJ found, in reviewing the “B” criteria that JDW has
moderate limitations in understanding, remembering, and applying information; in social
functioning; in concentrating, persisting, and maintaining pace; and in his ability to adapt or
manage himself. He did not meet the listing for 111.09 for selective mutism because he did not
have a documented speech impairment that significantly impacted the clarity and content of his
speech or a comprehension deficit that caused ineffective verbal communication, nor a hearing
impairment.
The ALJ also determined that JDW did not have an impairment or combination of
impairments that functionally equaled a listing, considering the six domains of functioning: (1)
acquiring and using information; (2) attending and completing tasks; (3) interacting with others;
(4) moving about and manipulating objects; (5) caring for himself and others; and (6) health and
physical well-being. The ALJ found that JDW had no limitations in moving about and
manipulating objects or in health and physical well-being. JDW has less than marked limitations
in other areas of functioning. Because JDW did not have either marked limitations in two areas
of functioning or an extreme limitation in one domain, the ALJ found he was not disabled.

All references are to the administrative record, using the court’s numbering system, rather than the
administrative numbering.
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STANDARD OF REVIEW
This court’s review of the Commissioner’s decision is limited to an inquiry into whether
there is substantial evidence to support the findings of the Commissioner, Richardson v. Perales,
402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. § 405
(g.); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021
(5th Cir. 1990). Substantial evidence has been defined as “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)).
The Fifth Circuit has further held that substantial evidence “must do more than create a suspicion
of the existence of the fact to be established, but ‘no substantial evidence’ will be found only
where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’”
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162,
164 (5th Cir. 1983)). Conflicts in the evidence are for the Commissioner to decide, and if
substantial evidence is found to support the decision, the decision must be affirmed even if there
is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court
may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the
Commissioner, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the
evidence preponderates against the Commissioner’s decision. Bowling v. Shalala, 36 F.3d 431,
434 (5th Cir. 1994); Harrell, 862 F.2d at 475. If the Commissioner’s decision is supported by
the evidence, then it is a conclusive and must be upheld. Richardson, 402 U.S. at 390.
ANALYSIS

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The plaintiff has raised three arguments in support of her appeal. First, she argues the
ALJ erred in his evaluation of the opinions of Dr. Michael Whelan, a consulting examiner. She
next argues that he failed to resolve the contradictions he found in two reports by a school-based
counselor, Ms. Topps. The plaintiff finally argues but at the ALJ failed to resolve contradictions
between Exhibit 14 E, JDW’s school records, and the school’s individual educational program
(IEP). The court finds that each argument is in fact an invitation for the court to reweigh the
evidence and substitute its judgment for that of the ALJ. As the ALJ acknowledged, and the
plaintiff argues, this case presents sharply conflicting, contradictory evidence. One
The record viewed in the light most favorable to the plaintiff presents a compelling case
for finding JDW is disabled. There is IQ testing on the Reynolds Intellectual Assessment Scales
which found a composite IQ of 68. He had been diagnosed as being on the autism spectrum; had
few friends and reported being teased and bullied at school. Dr. Whelan characterized his social
difficulties as moderately severe. JDW reported that he got along with only two of his seven
teachers and the school record noted multiple episodes of JDW causing classroom disruption
with multiple angry outbursts and defiant behavior directed at teachers. While JDW was not in
special education, he received accommodations and special assistance at school, yet continued to
struggle academically. He has significant problems with reading and reported he did not like
reading. He reported he liked math and was good at it but received a failing grade in the subject
right after the hearing.
But the contrary view of the record amply supports the ALJ’s findings. Dr. Whelan
produced the testing that showed low achievement levels in multiple subjects but found that
JDW tested within the average range of intelligence, though his language development was not
as developed as his non-language skills. The Reynolds Intellectual Scales, he added, did not

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correctly measure JDW’s intellectual functioning. Dr. Whelan noted the earlier diagnosis of
Asperger’s syndrome but did not find signs of this during a brief mental status exam. He noted
his socially withdrawn behavior might be an emotional issue from the reported bullying and
teasing. Whelan found JDW had a guarded prognosis “because he is apparently prone to give up
on certain tasks and not try as hard as he is capable of performing.” R. 380.
The state agency doctors after reviewing the records, reported “less than marked”
limitations in the four domains noted in the RFC and no limitations in the other two domains.
The schools IEP noted JDW was showing great improvement and maturation in the last year.
They said he had improved tremendously in his social skills and begun speaking with his peers
and expressing his feelings appropriately with some of the teachers and staff. He was dealing
better with issues that had previously caused him to shut down. He readily finished assignments
when offered a reward such as free to time to play on a computer or read. The IEP noted he
enjoyed reading and particularly excelled in math. This report noted he was on grade level in
math and slightly behind in reading.
The ALJ was correct when he noted: “This case is perplexing because school and mental
health records are contradictory, making it difficult to discern when the claimant’s poor
performance is the result of impairment or lack of effort.” R. 28 The ALJ found there was no
question that the JDW’s impairments caused some limitations, but the penultimate issue was
whether those impairments were so debilitating as to rise to the level of marked or extreme
limitations. The ALJ decided that those impairments did not rise to that level and in a detailed
opinion explained why he reached those findings.
He accepted Dr. Whelan’s testing results as the accurate measurement of JDW’s
intellectual capability. The plaintiff points to the bad grades JDW received after the hearing,

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including failing in math, his best subject. But the ALJ lists his grades over a longer time. The
grades varied but showed that JDW achieved grades in an average range in all subjects at one
time or another, excepting only social studies which would reflect his relative weakness in
language skills. He looked at Topps’ conflicting reports issued a year apart. He agreed with the
earlier of the two assessments that indicated less impairment. He noted JDW was prescribed a
very low dose of Risperdal that was not indicative of a debilitating impairment, and even so, it
was reported to Whelan that JDW was not taking any medications.
Clearly this unfavorable result was not the only one that could be reached on this record,
but it was the ALJ’s decision to make on the conflicting evidence. Because the decision is both
supported by ample evidence and the judge’s reasoning and rationales aptly set out in the
decision, this court must affirm.
The Individual Grounds
Having addressed the overall merits of the appeal the court addresses the specific
arguments raised by the plaintiff.
1. Evaluation of the Opinion of Dr. Michael Whelan
Dr. Michael Whelan evaluated JDW on August 14, 2019. Dr. Whelan’s report was two
pages long The ALJ spent virtually the same amount of space addressing the report and did not
omit any significant facts or findings from the doctor’s report. The ALJ found Dr. Whelan’s
report to be persuasive based on the objective medical evidence, Whelan’s personal evaluation,
his expertise, and the reports rational and persuasive discussion and conclusions based on the
medical record. R.30.
The plaintiff does not challenge the persuasiveness decision but instead suggests that the
ALJ failed to completely evaluate Whelan’s opinion and to consider certain aspects of his

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findings such as the fact that JDW was repeating the sixth grade, had an IQ test score of 68, was
socially withdrawn and would sometimes shut down and not do what his teachers requested. She
argues the ALJ did not properly consider the fact that JDW tested at the third grade and fourth
grade levels in several subjects.
Not only are each of the matters the plaintiff points to specifically mentioned in the
discussion of Whelan’s report, but the decision mentions Whelan’s findings several times during
the analysis of the evidence. The court finds no error in the analysis of Whelan’s report. Nothing
in the decision suggests the ALJ did not fully consider all aspects of the doctor’s report in the
decision-making process.
2. The Topps Reports
As mentioned above, there are two reports from Kynesha Topps, a school-based
therapist. Topps routinely counseled with JDW and his family concerning his behavior issues,
including defiant and angry behaviors. She counseled him in working toward not being
disruptive and listening, not talking in class. As noted by the ALJ, her treatment records showed
improvement in his classroom behavior, completing his work, not getting in trouble for talking
and getting along with his peers. She also noted a teacher’s report of improved behavior. She
repeatedly described JDW as oriented, cooperative, with euthymic mood, normal affect, and
appropriate eye contact. The ALJ also noted Topps found his motor activity, speech, thought
content, thought processes, and perception were all within normal limits. R. 27-28
In the first of her two reports in November 2019 Topps noted the diagnoses of autism,
oppositional defiant disorder, and selective mutism. He was prescribed Risperdal and seen for
therapy on a weekly basis. The family received bi-monthly therapy. She said he had fair ability
to comprehend oral instructions, understand and participate in discussion and apply problem-

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solving skill, but poor ability to provide verbal explanations and descriptions. She thought he had
fair to good ability to pay attention when spoken to directly, carry out single-step instructions,
focus long enough to finish assigned tasks and refocus and work at a reasonable pace. She thought
he would have poor ability to complete tasks without distracting himself or others. He exhibited
fair ability to maintain his appearance, respect and obey family, and show adequate manners,
patience, and concern for others. He could use good judgment in matters of safety. JDW showed
poor ability to interact cooperatively with other children and in respecting and obeying teachers
and other adults. The ALJ, after considering Topps persistent care and treating relationship, found
this report to be persuasive because supported by her records.
Topps prepared a second report in November 2020, completing a mental impairment
questionnaire. She thought JDW had marked limitations in understanding, remembering, and
applying information; in social interaction; and in maintaining concentration, persistence, and
pace. She found he had moderate limitations in self-care, but no limitations in movement and
manipulating objects. The ALJ found this report was not persuasive because 1) not supported by
her own treatment records; 2) strongly at odd with the schools August 2020 report in Exhibit 14E,
R. 17-37; and 3) directly contrary to the findings and opinions she offered in November, 2019.
The plaintiff makes several arguments under this assignment. First, she argues there is no
real conflict between the reports, but rather just a difference in the language used in the reports to
describe the same limitations. She argues the ALJ should have found JDW disabled under either
report. She asserts the ALJ though finding first report persuasive, did not incorporate its findings
into the decision. But Goldman is equating the findings of poor ability in some areas of this first
report with a marked impairment. While the ALJ could have interpreted these “poor” ability
findings as equivalent to a marked impairment, the “poor” findings were mingled with findings

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noting milder impairment, sometimes within the same domains of functioning as the “poor”
findings. The ALJ found these opinions as showing a less than marked impairment. This
interpretation is supported by the evidence in the record. The ALJ’s decision that these
impairments were not “marked” is also generally supported by the opinions of Dr. Whelan and
specifically supported by the state agency opinions.
The plaintiff also argues, given the extent of conflict between the reports, the ALJ was
obliged to contact Topps to resolve the conflict between the reports, or alternatively to resolve the
conflicts by employing a medical expert. The ALJ, Goldman argues either cherry picked the
record or relied on his lay opinion instead of expert opinion. The two reports do in fact directly
and substantially contradict one another. The later report was found to be not persuasive, and the
decision explained appropriately by the ALJ.
The ALJ resolved the opinion and other evidentiary conflicts in deciding the claim. The
court finds no abuse of his discretion in deciding he had sufficient information to resolve those
conflicts and reach a decision. The court cannot disturb that decision.
3. The School Records
The plaintiff argues the school records were improperly considered and the ALJ failed to
resolve all the contradictions between the school records and the school’s 2020 IEP. She argues
that the records show JDW was repeatedly reported for disruptions and defiant behavior and
arguing the school disciplinary records conflict with the IEP assessment. The report noted he was
showing strides in maturation over the prior year. It bears noting that a continuation of some
behavioral problems is not necessarily inconsistent with a report of improvement. But just as the
ALJ is not required to address every piece of evidence, there can be no requirement that every
potential factual dispute be resolved within the decision. These arguments seek a different

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evaluation and weighing of the evidence. There is evidence in the record to support a favorable
decision, but because substantial evidence also supports the denial, the decision must be affirmed.
IT IS ORDERED that the decision of the Commissioner should be, and it is hereby
affirmed.
SO ORDERED this the 19th day of September, 2022.

/s/ David A. Sanders
U.S. MAGISTRATE JUDGE

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