Davenport v. Astrue

Filing 29

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 03/15/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
N.R.R., by and through RYANN
DAVENPORT, as next friend,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 4:12CV54 CDP

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying plaintiff N.R.R.’s application for child’s
supplemental security income. Plaintiff’s mother, Ryann1 Davenport, brings this
action on behalf of her son, claiming that he is disabled because of attention deficit
hyperactivity disorder and learning difficulties. The Administrative Law Judge
concluded that N.R.R. was not disabled. Because I find that the overall decision
denying benefits was supported by substantial evidence, I will affirm.
Procedural History
On October 29, 2008, Davenport applied for child’s supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et

1

The various records alternatively spell Davenport’s first name as “Ryan” and “Ryann.” It is
unclear which is correct, but I have used the latter spelling because that is the spelling used in
plaintiff’s complaint.

seq., on her son’s behalf. The Social Security Administration denied the claims, and
Davenport filed a timely hearing request. Davenport appeared and testified at a
hearing held on April 22, 2010. The Administrative Law Judge issued an opinion on
June 24, 2010, upholding the denial of benefits. Davenport requested review by the
Appeals Council for the Social Security Administration, and on November 23, 2011,
the Council denied Davenport’s request. The ALJ’s determination thus stands as the
final determination of the Commissioner.
Evidence Before the ALJ
Testimony of Claimant’s Mother
Plaintiff’s mother, Davenport, testified before the ALJ on April 22, 2010.
Plaintiff did not testify at the hearing. Davenport testified that her son was ten years
old and in fourth grade at the time of the hearing. She testified that she had two other
children, both girls, aged three months and eleven years at the time of the hearing.
Davenport was unmarried and lived and cared for the three children on her own.
N.R.R. was diagnosed with attention deficit hyperactivity disorder. Davenport
testified that N.R.R.’s school day was split between regular and special education
classes. Davenport testified that the special education classes had three to five
children, and two teachers. The special education classes provided an opportunity for
the teachers to help the students with their general education assignments in a one-onone environment. Davenport testified that she talked to N.R.R.’s teachers once or
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twice a week when she went to the school, and otherwise on an as-needed basis.
Davenport testified that N.R.R.’s split between general and special education
classes did not seem to help his behavior or his learning. She said that he showed
disrespect, had a lack of communication with the teachers, and bothered the other
children. Regarding his academic abilities, Davenport testified that N.R.R.’s reading
and writing skills were either at or just below grade level, and that his mathematics
skills were just below level.
The ALJ asked Davenport about the school personnel who had filled out
reports regarding N.R.R. Davenport testified that Ms. Adams was the school
counselor, and knew N.R.R. because he was sent to her when he misbehaved. N.R.R.
would talk to Ms. Adams, and sometimes completed his work in her office.
Davenport indicated that Tiffany Jones was one of N.R.R.’s current general education
teachers, and saw N.R.R. for maybe ninety minutes daily. Davenport testified that
Wendy Stocker was a general education teacher of N.R.R.’s from the previous year.
Davenport further testified that N.R.R. was seeing Gerry Deschamps, M.D.,
who had been N.R.R’s doctor since birth. Davenport believed that N.R.R. visited Dr.
Deschamps every three months or so. At Dr. Deschamps’ direction, N.R.R. was
taking Daytrana for his ADHD. Davenport testified that the medication seemed to
work for a couple weeks but then N.R.R. “got immune” to it and it stopped working.
She testified that N.R.R. had previously taken Adderrall, but that also stopped
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working with time.
Davenport testified that N.R.R. was not very good at acquiring and using
information, and that he constantly had to be told to do the same thing. She also
stated that he refused to do chores when requested, but that it was because of his
inability to concentrate rather than purposeful misbehaving. Davenport testified that
N.R.R. could not concentrate on anything for two hours straight, including watching a
movie. She noted that N.R.R. tried karate but could not follow instructions, and was
kicked out of after-school summer programs and church programs because of his
behavior. Davenport testified that N.R.R. would fight with or bother other children,
sometimes becoming violent, and that he would not listen to adults including his own
grandmother. She also testified that he bit his clothes, and would sometimes wander
off on his own.
Davenport testified that N.R.R.’s problems made it difficult for her to attend to
her other children since he required so much extra attention. He fought with his older
sister, and Davenport was scared to let him around her baby.
School Records
On November 21, 2008, a teacher questionnaire was completed by N.R.R.’s
general education teachers, Amanda Bush and Wendy Stocker. They indicated that
they had known N.R.R. for four months, and saw him in class for several hours each
day. They reported that N.R.R. had problems in acquiring and using information, and
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attributed the issues to a lack of focus. In particular, they noted obvious problems in
comprehending and following oral instructions and understanding and participating in
class discussions. They marked N.R.R. as having serious or very serious problems in
almost every facet of attending and completing tasks. Serious problems were also
noted in regard to N.R.R.’s ability to interact and relate with others, and they
indicated that they had tried multiple behavior modification strategies. Some
problems were also noted as to N.R.R.’s ability to care for himself, particularly in
appropriately handling patience and frustration. Ms. Bush and Ms. Stocker indicated
no problems as to N.R.R.’s ability to move about and manipulate objects. Ms.
Stocker completed another school activities questionnaire on February 28, 2009. Her
responses again noted marked or extreme limitations in attending and completing
tasks, and interacting and relating with others.
Ms. Bush and Ms. Stocker completed another questionnaire on January 9,
2009. They indicated that N.R.R. was easily distracted, had many issues with
interpersonal skills, and had daily or hourly occurrences of disruptive, impulsive, or
inappropriate behavior.
On April 3, 2009, a diagnostic report was compiled in preparation for N.R.R.’s
upcoming individualized education program meeting. The report reflected the
school’s concerns over N.R.R.’s abilities in reading, math, written expression, and
task related behaviors. Teacher questionnaires referenced in the report noted
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N.R.R.’s difficulties managing his behavior and emotions, planning and organizing,
and inhibiting impulsive responses. School psychological examiner Bruce Gamble
observed N.R.R. in class, and noted that he had difficulty monitoring his own
behavior and sustaining attention to the task at hand. In a progress report for the
2008-2009 school year, Ms. Bush noted that N.R.R.’s behavior had improved from
the first quarter, although he still struggled to stay focused on the task at hand.
N.R.R. had his initial IEP meeting on April 24, 2009. Participants at the IEP
meeting included N.R.R.’s father; N.R.R’s teachers, Ms. Bush and Ms. Stocker;
school counselor Ms. Adams; assistant principal Ms. Turner; and special education
teacher Ms. Taylor. The IEP noted N.R.R’s diagnosis of Other Health Impaired and
ADHD, with limitations to his rate of processing, weak grammar, poor time
management and organization, poor participation, and poor organization of lengthy
written work. The IEP also noted that N.R.R.’s grades consisted of one A, one B
plus, four Cs, and one D. Although the IEP did not contain a behavior intervention
plan, it noted that N.R.R.’s behavior needed monitoring. His IEP goals included
increasing his time on task and increasing his social skills. The IEP also called for
N.R.R. to be placed inside a regular class at least 80 percent of the time.
On May 29, 2009, a progress report indicated N.R.R. was making progress on
both of his goals with 40 percent accuracy. On November 24, 2009, N.R.R. was
involved in a fight with another student and suspended for three days.
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On December 4, 2009, Ms. Jones completed a school activities questionnaire
for N.R.R. She indicated that she was N.R.R.’s general education teacher and had
known him since August. Ms. Jones indicated that N.R.R. had some moderate and a
few marked limitations in acquiring and using information, marked and extreme
limitations in both attending and completing tasks and interacting and relating with
others, and few or no limitations in moving about and manipulating objects and
caring for self. She remarked that his impulsivity and behavior greatly impacted the
classroom environment, and that he required redirection or intervention to
successfully complete tasks.
On December 8, 2009, Chrissie Messina also submitted a school activities
questionnaire. She indicated that she was N.R.R.’s classroom teacher and had known
him for two months. Ms. Messina noted marked or extreme limitations in all areas of
functioning except for moving about and manipulating objects. She also reported that
N.R.R. had a difficult time controlling his behavior and anger.
An IEP meeting was held for N.R.R. on April 16, 2010. At the time of the
meeting, N.R.R.’s grades consisted of one A, four Bs, one C, and one D. As to
N.R.R.’s goal of increasing his time on task by completing given assignments with
prompts in a structured setting 3/5 days with 75 percent accuracy, it was noted that he
was currently at 60 percent. In regard to his goal of decreasing inappropriate
behavior during independent time to 65 percent with no more than two prompts, it
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was noted that N.R.R. was only at 5 percent.
Another IEP meeting was held for N.R.R. on April 18, 2011. At the time of
the meeting, N.R.R.’s grades consisted of four Cs and two Ds. The IEP report noted
that N.R.R.’s goals of increasing his time on task and decreasing inappropriate
behavior were not met, and that he would benefit from a behavior chart to help
monitor his behavior. It was concluded at the meeting that N.R.R. was not able to
comply with adult directions and had difficulty with peer relationships, and his
service minutes were increased from 150 to 300.
Medical Records
On October 21, 2005, Davenport took N.R.R. to Dr. Deschamps because he
could not sit still and was having behavior problems in school. Davenport told Dr.
Deschamps that N.R.R. did well with school-work but could not follow directions
and needed redirection while in class. On October 25, 2005, Dr. Deschamps
diagnosed N.R.R. with ADHD and prescribed Concerta. The following week, on
November 2, 2005, Dr. Deschamps doubled N.R.R.’s dosage of Concerta. Davenport
reported on November 9, 2005, that N.R.R. was doing better on the increased dosage
and was able to concentrate on his homework.
On December 12, 2005, N.R.R. was examined by a psychologist, Joan
Nicholson. Ms. Nicholson described N.R.R. as restless and indicated that he needed
to be redirected multiple times before completing assigned tasks. She suspected
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learning delays, and noted that his behavior interfered with his learning progress. Ms.
Nicholson noted diagnoses of ADD, probable personality disorder, and impaired
social and educational functioning.
On October 29, 2008, Dr. Deschamps noted that N.R.R. was not doing well
and that his behavior and attitude were worsening. He switched N.R.R.’s medication
to Daytrana. On January 12, 2009, Dr. Deschamps noted that N.R.R. was doing well
on Daytrana, and was at an adequate dosage.
On January 21, 2009, Martin Rosso, Ph.D., conducted an evaluation of N.R.R.
that included a clinical interview and the Wechsler Intelligence Scale for ChildrenIV. Dr. Rosso reported that N.R.R. was polite and his social behaviors were normal,
although he tended to act impulsively. N.R.R. told Dr. Rosso that he was taking
medication for his behavior and the medication helped him feel calm and do better in
school. According to the WISC-IV, N.R.R. had a full scale IQ of 82. Dr. Rosso
concluded that N.R.R. had low average cognitive ability, and that his behavior and
test results were consistent with a diagnosis of ADHD.
On December 16, 2009, N.R.R. was examined by Robert Schlitt, Ph.D.
Davenport and N.R.R. both reported to Dr. Schlitt that N.R.R. often lost his temper,
would argue with adults, was easily bored and distracted, and had difficulty
organizing his work. Dr. Schlitt noted that N.R.R. was hyper and had difficulty
sitting still. Dr. Schlitt administered the WISC-IV, which revealed a full scale IQ of
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76. The test also showed weaknesses in visual abstract reasoning, visual information
processing, and vocabulary. Dr. Schlitt completed a questionnaire, indicating that
N.R.R. had some marked limitations in acquiring and using information and caring
for self, marked and extreme limitations in attending and completing tasks and
interacting and relating with others, and few limitations in moving about and
manipulating objects.
On February 3, 2010, Dr. Deschamps noted that N.R.R. was not taking his
Daytrana, but that Davenport reported that she was not interested in restarting the
medication and that N.R.R. was doing fine at school.
Legal Standard
Title 42 U.S.C. § 1382c(a)(3)(C)(I) provides that “[a]n individual under the age
of 18 shall be considered to be disabled for purposes of [SSI] 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.” The Commissioner’s decision denying a child SSI benefits is reviewed by
this Court to determine whether it is supported by substantial evidence. Rucker v.
Apfel, 141 F.3d 1256, 1259 (8th Cir. 1998); Clark v. Apfel, 141 F.3d 1253, 1255 (8th
Cir. 1998); Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might
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accept it as adequate to support a decision.” Cox v. Apfel, 160 F.3d 1203, 1206-07
(8th Cir. 1998). To determine whether the decision is supported by substantial
evidence, the court is required to review the administrative record as a whole to
consider:
(1)

the credibility findings made by the ALJ;

(2)

the education, background, work history, and age of the claimant;

(3)

the medical evidence given by claimant’s treating physicians;

(4) the subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) the corroboration by third parties of the claimant’s physical
impairment;
(6) the testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment;
and
(7)

the testimony of consulting physicians.

Brand v. Sec’y of Dept’ of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980). When reviewing the record to determine whether the Commissioner’s
decision is supported by substantial evidence, however, the court must also take into
account evidence in the record that fairly detracts from that decision. Warburton v.
Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999); Baker v. Apfel, 159 F.3d 1140, 1144 (8th
Cir. 1998); Bryant v. Apfel, 141 F.3d 1249, 1250 (8th Cir. 1998). The court may not
reverse the decision merely because substantial evidence would also support an
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opposite conclusion. Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999); Pyland v.
Apfel, 149 F.3d 873, 876 (8th Cir. 1998). See also Reed v. Sullivan, 988 F.2d 812,
815 (8th Cir. 1993) (“[T]he possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.” (internal quotations omitted)).
Under the Act, the ALJ inquires first into whether the child is currently
engaged in substantial gainful activity and next into whether the child has an
impairment or a combination of impairments that is severe. Walker v. Apfel, 141
F.3d 852, 854 (8th Cir. 1998); Bryant, 141 F.3d at 1251. If the ALJ finds at step two
of the evaluation that a child’s impairments are severe, as in the instant case, then the
question at step three is whether those severe impairments meet or medically equal
the severity of a set of criteria for an impairment listed in the regulations, or are
functionally equivalent to the listings. 20 C.F.R. § 416.924(a) (2008); 20 C.F.R. pt.
404, subpt. P, app. 1, pt. B. See also Walker, 141 F.3d at 854 (finding last step of
evaluation process to be whether the impairment or combination if impairments is of
comparable severity to impairments that would disable an adult). To determine
functional equivalence, the ALJ must decide whether the impairments cause “marked
and severe functional limitations” and whether they meet the duration requirement of
at least one year. Walker, 141 F.3d at 854; 20 C.F.R. § 416.924(d). To determine
functional equivalence, the Commissioner considers the child’s functioning in six
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areas or domains. 20 C.F.R. § 416.926a(b)(1). Those domains are: 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 yourself; and 6)
health and physical well-being. Id.
A child’s impairments will be found to “functionally equal” the impairments
listed in the regulations if they cause the child to have “marked” limitations in at least
two of the domains or an “extreme” limitation in at least one domain. 20 C.F.R. §
416.926a(d). A child has a “marked” limitation in one of these domains when his or
her “impairment(s) interferes seriously with his ability to independently initiate,
sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i); see also Garrett ex
rel. Moore v. Barnhart, 366 F.3d 643, 651 (8th Cir. 2004) (quoting § 416.926a).
Likewise, a child has an “extreme” limitation when his or her “impairment(s)
interferes very seriously with his ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(3). There may be “marked” or “extreme”
limitations in only one activity or in several activities as a result of the interactive and
cumulative effects of the child’s impairments. 20 C.F.R. § 416.926a(e)(2)–(3).
To determine whether the child is experiencing “marked” or “extreme”
limitations in the domains, the ALJ must review all the evidence in the record and
compare the child’s functioning to “the typical functioning of children [the child’s]
age who do not have impairments.” 20 C.F.R. § 416.926a(f)(1). See also 20 C.F.R. §
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416.924a(b)(5)(ii); 20 C.F.R. § 416.926a(b). The ALJ considers “the effects of
structured or supportive settings,” how the child functions in school, and the effects
of the child’s medications, if any. 20 C.F.R. § 416.926a(a)(1)–(3). Finally, in
determining a child’s disability, the Commissioner must consider all relevant
evidence, which may include medical evidence and information from people who
know the child – such as parents and teachers – and can provide evidence about his
functioning. 20 C.F.R. § 416.924a(a).
ALJ’s Findings
The ALJ found that plaintiff was not disabled, issuing the following specific
findings:
1.
The claimant was born on October 5, 1999. Therefore, he was a schoolage child on October 29, 2008, the date application was filed, and is currently a
school-age child (20 CFR 416.926a(g)(2)).
2.
Obviously, at his age, the claimant has not engaged in substantial gainful
activity since October 29, 2008, the application date (20 CFR 416.924(b) and 416.971
et seq.).
3.
The claimant has the following severe impairment: attention-deficit
hyperactivity disorder. (20 CFR 416.924(c)).
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5.
The claimant does not have an impairment or combination of
impairments that functionally equals the listings (20 CFR 416.924(d) and
416.926(a)).
6.

The claimant has not been disabled, as defined in the Social Security
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Act, since October 29, 2008, the date the application was filed (20 CFR 416.924(a)).
The ALJ stated that he evaluated the “whole child” in making his findings
regarding functional equivalence. In concluding that N.R.R. did not have an
impairment that functionally equaled the listings, the ALJ gave significant weight to
the reports of Dr. Deschamps and to the findings made by the State Agency
psychological consultant, Kyle DeVore, Ph.D. He gave little weight to Dr. Schlitt’s
assessment because Dr. Schlitt did not have a treating relationship with N.R.R. and
his opinion was not consistent with the overall evidence of record. The ALJ
discussed the school records, including the questionnaires completed by N.R.R.’s
teachers, but gave them little weight because they were inconsistent with the
treatment notes of Dr. Deschamps and because N.R.R. had not required any
specialized mental health treatment or psychiatric hospitalizations.
The ALJ found that N.R.R. had no limitations in moving about and
manipulating objects, or in health and physical well-being, and less than marked
limitations in all remaining areas.
In the area of acquiring and using information, the ALJ noted that N.R.R. was
placed in special education because of behavior, not aptitude, and his teachers
indicated that any limitations were due to lack of focus rather than lack of ability. In
deciding N.R.R. had less than marked limitations in attending and completing tasks,
the ALJ relied on Dr. Rosso’s report that N.R.R. was able to put forth effort on
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assigned tasks. Additionally, N.R.R. reported feeling calm on his medications,
played outside and with video games, and was able to remain in his regular classes at
least 80 percent of the time.
The ALJ also found less than marked limitations in interacting and relating
with others. Despite reports from N.R.R.’s teachers and mother indicating difficulties
in interacting cooperatively with others, the ALJ noted that N.R.R.’s mother reported
he had friends and talked with family, and that Dr. Rosso noted he was friendly and
cooperative and denied problems with peer relationships. Finally, the ALJ found that
N.R.R. had less than marked limitations in caring for himself. His teachers noted
serious problems with handling frustration and his mother noted difficulties accepting
criticism and choosing clothing. However, N.R.R. was able to button his clothes, tie
his shoes, and complete personal hygiene tasks without assistance.
Discussion
Plaintiff argues that the ALJ’s findings and conclusions were not supported by
substantial evidence because he failed to follow the “Whole Child” approach in
evaluating N.R.R.’s claims. Specifically, plaintiff argues that the ALJ failed to fully
consider the daily effects of N.R.R.’s impairments in a school setting, and failed to
consider non-medical evidence including the pre-IEP comprehensive evaluation, the
IEP, teacher evaluations, and school records.
The ALJ discussed the teacher questionnaires, IEP, and discipline problems
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noted in the record, and the fact that Social Security Ruling 06-3p indicates that
professionals such as teachers are good sources of information. He acknowledged
that N.R.R. was suspended for fighting, required an IEP, and that his teachers noted
“numerous extreme and very serious problems.” However, the ALJ assigned minimal
weight to this evidence because he found it to be inconsistent with the treatment notes
of Dr. Deschamps and the fact that N.R.R. required no specialized mental health
treatment or psychiatric hospitalizations. In discounting the school evidence, the ALJ
further noted that although N.R.R. at times required medications, he was doing “fine”
without them and was able to remain in his regular classroom at least 80 percent of
the time.
Plaintiff argues that this discussion of the school evidence was too “brief and
vague” to satisfy the “Whole Child” analysis. However, there is no requirement that
this particular evidence be discussed with any set amount of detail. In fact, an ALJ’s
failure to cite specific evidence altogether is not necessarily indicative of whether it
was considered. See England v. Astrue, 490 F.3d 1017, 1022 (8th Cir. 2007) (quoting
Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). Here, not only did the ALJ cite
the school evidence, he provided his reasons for the weight he assigned it.
When adequately explained and supported, credibility determinations are for
the ALJ to make, Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000), and an ALJ is not
required to credit assessments by teachers over assessments by treating doctors. See
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England v. Astrue, 490 F.3d 1017, 1022 (8th Cir. 2007). It is proper for an ALJ to
consider whether a claimant’s impairments can be treated with medication when
determining whether a claimant has an impairment in a functional equivalence
domain. See 20 C.F.R. § 416.926a(a)(3); 20 CFR § 416.924a(b)(9)(i)(D)-(E) (stating
that the Commissioner will consider “changes in [a child’s] medication or the way
[the child’s] medication is prescribed; and [a]ny evidence over time of how
medication helps or does not help [the child] to function compared to other children
your age who do not have impairments”) ; Collins ex rel. Williams v. Barnhart, 335
F.3d 726, 729-30 (8th Cir. 2002) (finding that denial of benefits is supported when a
child’s hyperactivity can be controlled through properly administered medication).
Furthermore, a treating physician’s opinion is generally given more weight than other
sources in a disability proceeding. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir.
2012) (citing 20 C.F.R. § 404.1527(c)(2)).
The ALJ did not ignore N.R.R.’s school performance, as plaintiff argues;
rather, he credited Dr. Deschamps’ assessment of N.R.R.’s school performance over
that of the teachers. The ALJ cited Dr. Deschamps’ report from November of 2005
that on an increased does of Concerta, N.R.R. was doing better, able to concentrate
on his homework, and that Davenport was comfortable with his progress. Similarly,
Dr. Deschamps reported that in January of 2009, N.R.R. was continuing treatment
with Daytrana and “doing well.” In February of 2010, Dr. Deschamps noted that
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even though N.R.R. had stopped taking Daytrana, he was still “doing fine at school,”
and Davenport was uninterested in restarting the medication.
The ALJ also relied on the findings of Dr. Rosso, a consultative examiner. The
ALJ cited Dr. Rosso’s report that N.R.R. had normal social behaviors, and that
N.R.R. reported that his medications helped keep him calm, that he had friends at
school with no significant peer relation problems, and that after school he played
outside or played video games. Dr. Rosso assigned a GAF of of 65, indicating mild
symptoms. Plaintiff argues that, “Accepting the observation of the child’s behavior
or performance in an unusual setting, like a [consultative examination], without
considering the rest of the evidence could lead to an erroneous conclusion about the
child’s overall functioning.” SSR 09-2p. However, the ALJ’s findings make it clear
that he did not rely solely on Dr. Rosso’s report, but considered it in light of the rest
of the evidence.
The ALJ also gave significant weight to the opinion of the State Agency
psychological consultant, Kyle DeVore, Ph.D. Findings of fact made by State
Agency medical consultants and other program physicians regarding the nature and
severity of an individual’s impairments must be treated as expert opinion evidence of
nonexamining sources to be considered and weighed along with the medical evidence
from other sources. SSR 96-6p. Dr. DeVore found that N.R.R. did not have severe
impairments that met or equaled a listing. The ALJ stated that although Dr. DeVore
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did not examine N.R.R., he was a specialist familiar with the regulations, provided a
narrative explaining his findings, and his opinion was consistent with the overall
evidence of record.
I find that the ALJ’s decision was supported by substantial evidence, and that
he properly used the “Whole Child” approach and considered the non-medical
records. The ALJ’s opinion discusses both medical and non-medical records,
including the teacher reports, N.R.R.’s IEP, and other school records. The ALJ has
not failed to consider this evidence; rather, he failed only to give it the weight
plaintiff desired. In attempting to resolve the various conflicts and inconsistencies in
the record in accordance with the applicable standards, the ALJ did “precisely what
an ALJ is instructed to do.” Hudson ex rel. Jones v. Barnhart, 345 F.3d 661, 666-67
(8th Cir. 2003).
Although the school records provide some evidence contrary to the ALJ’s
decision, this alone is insufficient to support a reversal. The court may not reverse
the ALJ’s decision merely because substantial evidence would also support an
opposite conclusion. Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999); Pyland v.
Apfel, 149 F.3d 873, 876 (8th Cir. 1998). See also Reed v. Sullivan, 988 F.2d 812,
815 (8th Cir. 1993) (“[T]he possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.” (internal quotations omitted)).
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I will therefore affirm the ALJ’s finding that N.R.R. was not disabled within
the meaning of the Social Security Act.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 15th day of March, 2013.

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