William v. Colvin

Filing 18

MEMORANDUM AND ORDER. Signed by Magistrate Judge Noelle C. Collins on 09/29/2015. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANTHONY WILLIAMS, SR. o/b/o
A.W.,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:14CV1057NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of Carolyn W. Colvin (Defendant) denying the application for
Child’s Supplemental Security Income (SSI) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 401, 1381 et. seq., filed by Anthony Williams, Sr., (Mr.
Williams or Plaintiff) on behalf of his son, A.W. Plaintiff filed a brief in Support
of the Complaint. (Doc. 12). Defendant filed a Response. (Doc. 17). The parties
have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). (Doc. 9).
I.
PROCEDURAL HISTORY
A.W.’s application for Child’s SSI was filed on June 28, 2011, alleging a
disability onset date of January 1, 2011. (Tr. 124-30). The claim was denied and

1

Plaintiff filed a request for a hearing before an Administrative Law Judge (ALJ).
(Tr. 75-84). A hearing was held before an ALJ on December 20, 2012. (Tr. 4474). By decision, dated February 7, 2013, the ALJ found that A.W. was not
disabled as defined by the Act. (Tr. 13-32). On April 9, 2014, the Appeals
Council denied the request for review. (Tr. 1-6.) As such, the decision of the ALJ
stands as the final decision of the Commissioner.
II.
LEGAL STANDARD FOR CHILD DISABILITY CASES
20 C.F.R. § 416.906 (2000) provides the definition for disability in children.
That provision states:
If you are under age 18, we will consider you disabled if you have a
medically determinable physical or mental impairment or combination
of impairments that causes marked and severe functional limitations,
and that can be expected to cause death or that has lasted or can be
expected to last for a continuous period of not less than 12 months.
In determining disability, the ALJ must utilize a sequential evaluation
process set forth in 20 C.F.R. § 416.924. The ALJ first determines whether the
claimant is performing Asubstantial gainful activity.@ 20 C.F.R. § 416.924(a), (b).
If so, the claimant is not disabled. 20 C.F.R. § 416.924(a), (b). If not, the ALJ
considers the claimant’s physical or mental impairment(s) to determine whether he
or she has a medically determinable impairment(s) that is severe. 20 C.F.R. §
416.924(c). For an individual who has not attained the age of eighteen, if the
impairment(s) is not medically determinable or is a slight abnormality that causes
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minimal limitations, the ALJ will find that the claimant does not have a severe
impairment and is not disabled. 20 C.F.R. § 416.924(c). If the impairment(s) is
severe, the analysis proceeds to the third step of the sequential analysis. 20 C.F.R.
§ 416.924(s). At the third step, it must be determined whether the claimant has an
impairment which Ameet[s], medically equal[s], or functionally equal[s] the
listings.@ 20 C.F.R. § 416.924(d).
Further, when determining functional limitations, 20 C.F.R. § 416.926a(a)
provides that where a severe impairment or combination of impairments does not
meet or medically equal any listing, the limitations will Afunctionally equal the
listings@ when the impairment(s) Aresult in >marked= limitations in two domains of
functioning or an >extreme= limitation in one domain.@ A limitation is Amarked@
when it Ainterferes seriously with [a claimant=s] ability to independently initiate,
sustain, or complete activities.@

20 C.F.R. § 416.926a(e)(2).

A limitation is

Aextreme@ when it Ainterferes very seriously with [a claimant=s] ability to
independently initiate, sustain, or complete activities.@ 20 C.F.R. § 416.926a(e)(3).
The ALJ considers how a claimant functions in activities in the following six
domains: A(i) Acquiring and Using Information; (ii) Attending and Completing
Tasks; (iii) Interacting and Relating to Others; (iv) Moving About and
Manipulating Objects; (v) Caring for Yourself; and (vi) Health and Physical WellBeing.@ 20 C.F.R. § 416.926a(b)(1). Also, in assessing whether a claimant has

3

“marked” or “extreme” limitations, an ALJ must consider the functional limitations
from all medically determinable impairments, including any impairments that are
not severe.

20 C.F.R. § 416.926a(a).

Further, the ALJ must consider the

interactive and cumulative effects of the claimant’s impairment or multiple
impairments in any affected domain. 20 C.F.R. § 416.926a(c).
20 C.F.R. § 416.926a(e)(2) explains:
(i) We will find that you have a “marked” limitation in a domain when
your impairment(s) interferes seriously with your ability to
independently initiate, sustain, or complete activities. Your day-today functioning may be seriously limited when your impairment(s)
limits only one activity or when the interactive and cumulative effects
of your impairment(s) limit several activities. “Marked” limitation
also means a limitation that is “more than moderate” but “less than
extreme.” It is the equivalent of the functioning we would expect to
find on standardized testing with scores that are at least two, but less
than three, standard deviations below the mean.
20 C.F.R. § 416.926a(e)(3) further explains:
(i) We will find that you have an “extreme” limitation in a
domain when your impairment(s) interferes very seriously with
your ability to independently initiate, sustain, or complete
activities. Your day-to-day functioning may be very seriously
limited when your impairment(s) limits only one activity or
when the interactive and cumulative effects of your
impairment(s) limit several activities. “Extreme” limitation
also means a limitation that is “more than marked.” “Extreme”
limitation is the rating we give to the worst limitations.
However, “extreme limitation” does not necessarily mean a
total lack or loss of ability to function. It is the equivalent of
the functioning we would expect to find on standardized testing
with scores that are at least three standard deviations below the
mean.

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Even if a court finds that there is a preponderance of the evidence against the
ALJ’s decision, the decision must be affirmed if it is supported by substantial
evidence. See Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial
evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.”

Krogmeier v.

Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007). In Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988),
the Eighth Circuit Court of Appeals held:
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court

5

must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari,
259 F.3d 707, 711 (8th Cir. 2001). “While the claimant has the burden of proving
that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him or her to reject the plaintiff’s

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complaints. See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See
id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.

See

Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner=s final determination that Plaintiff was not disabled. Onstead, 962
F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner=s position.
Krogmeier, 294 F.3d at 1022.
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The application for SSI, filed on behalf of A.W., alleged that he had severe
impairments of attention deficit hyperactivity disorder (ADHD), oppositional
defiant disorder (ODD), and a learning disorder. (Tr. 116). At the hearing, A.W.’s
father, Mr. Williams, testified that A.W. was currently learning to subtract; that he
was supposed to be in the third grade, but was behind after being held back in the
first grade; A.W. had been on medication for about one year; A.W. did not listen
and “constantly” got in trouble and received suspensions from school; A.W.
frequently got into fights with his sister, both at school and at home; and A.W. did
not play video games for very long because he would become frustrated. (Tr. 5658, 65, 70-71).
The ALJ found that A.W., who was born in May 2004, was a school aged
child on the date the application was filed, June 28, 2011; he had not engaged in
substantial gainful activity since the application date; A.W. had the severe
impairments of ADHD, ODD and a learning disorder; A.W. did not have an
impairment or combination of impairments that met or medically equaled the
severity of a listed impairment; and A.W. did not have an impairment or
combination of impairments that functionally equaled the severity of the listings.
Upon making these determinations, the ALJ considered the six functional
equivalence domains specified in the Regulations as set forth above. Based on the
evidence of record, including testimony, medical and school records, evaluations,

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and test results, the ALJ found that A.W. had “marked” limitations in the domain
of Acquiring and Using Information; A.W. had less than a “marked” limitation in
the domains of Interacting and Relating with Others and Caring for Yourself; and
A.W. had no limitation in the domains of Moving About and Manipulating Objects
and Health and Physical Well-Being. As such, the ALJ concluded that A.W. did
not have an impairment or combination of impairments that resulted in either
“marked” limitations in two domains of functioning or “extreme” limitations in
one domain of functioning and that, therefore, A.W. was not disabled within the
meaning of the Act.
Plaintiff contends that the ALJ=s decision is not supported by substantial
evidence because:

The ALJ failed to properly consider the six domains of

functioning as A.W. had a “significant impairment in his ability to attend and
complete tasks as well as acquire and use information”; the ALJ erred in finding
that A.W. did not functionally equal a listing; and the ALJ did not give proper
weight to the opinion of Anita Stiffelman, M.D., who treated and examined A.W.
on a number of occasions. For the following reasons, the court finds that the ALJ’s
determination that Plaintiff is not disabled is based on substantial evidence and is
consistent with the Regulations and case law.
A.

Credibility:
The court will first consider the ALJ=s credibility determination, as the ALJ=s

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evaluation of Plaintiff=s credibility was essential to the ALJ=s determination of
other issues. Cf. Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The
plaintiff] fails to recognize that the ALJ's determination regarding her RFC was
influenced by his determination that her allegations were not credible.@) (citing
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20 C.F.R. §§ 404.1545,
416.945 (2010). As set forth more fully above, the ALJ=s credibility findings
should be affirmed if they are supported by substantial evidence on the record as a
whole; a court cannot substitute its judgment for that of the ALJ. See Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750; Benskin,
830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of A.W.=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See

10

also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is
recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996). For the following reasons, the court finds that the
ALJ’s consideration of the credibility of allegations regarding the severity of
A.W.’s conditions is based on substantial evidence and consistent with the
Regulations and case law.
First, the ALJ considered the effect of A.W.’s medications on his conditions.
Conditions which can be controlled by treatment are not disabling. See Renstrom
v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012) (quoting Brown v. Astrue, 611 F.3d
941, 955 (8th Cir. 2010)); Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009);
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if an impairment
can be controlled by treatment, it cannot be considered disabling); Warford v.
Bowen, 875 F.2d 671, 673 (8th Cir. 1989) (holding that a medical condition that
can be controlled by treatment is not disabling). Additionally, the absence of side
effects from medication is a proper factor for the ALJ to consider when
determining whether a claimant’s complaints are credible.

See Depover v.

Barnhart, 349 F.3d 563, 566 (8th Cir. 2003) (AWe [] think that it was reasonable for
the ALJ to consider the fact that no medical records during this time period

11

mention [the claimant=s] having side effects from any medication.@); Richmond v.
Shalala, 23 F.3d 1441, 1443-44 (8th Cir. 1994).
In particular, the ALJ considered that A.W. presented to Dr. Stiffelman, on
September 13, 2011, and, on this date, Dr. Stiffelman prescribed Vyvanse. (Tr. 16,
253). Subsequently, Dr. Stiffelman reported, on October 4, 2011, that A.W.’s
ADHD had a good response to medication and that his social issues were
correcting. Medication side effects were denied. (Tr. 16, 258). On February 13,
2012, Dr. Stiffelman reported that A.W. had increased “acting out” when he was
not on his medication; that Vyvanse helped with A.W.’s ADHD; that he had
decreased ODD symptoms while taking medication as well; and that A.W. denied
side effects from his medication

(Tr. 255).

On March 28, 2012, A.W.’s

prescription was refilled, without change. (Tr. 16, 255). When A.W. presented for
care with Jahmille Simon, P.N.P, B.C., on December 29, 2012, this provider noted
that A.W.’s Vyvanse, in the morning, was not working very well but he prescribed
this medication nonetheless. (Tr. 269-70).
Second, the ALJ considered that, in May 2012, A.W.’s prescription was not
picked up and that it was shredded. (Tr. 16, 255). Also, on August 28, 2012, Dr.
Stiffelman reported that A.W. was not compliant with his medication and that
A.W. frequently stayed with his uncle who forgot to give him his medication. (Tr.
16, 256). On August 28, 2012, Dr. Stiffelman noted that she had not written a

12

prescription since March 28, 2012, and that she restarted A.W. on Vyvanse. (Tr.
16, 256). A claimant’s non-compliance with prescribed medical treatment is a
factor which an ALJ may properly consider. See Eichelberger, 390 F.3d at 589
(holding that the ALJ properly considered that the A.W. cancelled several physical
therapy appointments and that no physician imposed any work-related restrictions
on her) (citing Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (claimant=s
failure to comply with prescribed medical treatment and lack of significant medical
restrictions is inconsistent with complaints of disabling pain). See also Wildman v.
Astrue, 596 F.3d 959, 968-69 (8th Cir. 2010) (it is permissible for ALJ to consider
claimant’s non-compliance with prescribed medical treatment). As noted by the
ALJ, as a child, A.W. was not responsible for his non-compliance; rather, it is
significant that the record reflects that when his caretakers properly administered
his medicine, A.W.’s symptoms improved.
Third, the court notes discrepancies between the severity of A.W.’s
symptoms, as alleged by Mr. Williams, and what Mr. Williams, A.W. and A.W.’s
teacher reported to Dr. Stiffelman. See Karlix v. Barnhart, 457 F.3d 742, 748 (8th
Cir. 2006) (contradictions between a claimant=s sworn testimony and what he
actually told physicians weighs against the claimant=s credibility). In this regard,
on February 13, 2011, Mr. Williams told Dr. Stiffelman that A.W. was “doing
good,” but he sometimes “jump[ed] up and r[a]n[] out.” (Tr. 16, 254-55). On

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August 28, 2012, Dr. Stiffelman reported that A.W. said he was doing “super
good” without medication, and that Mr. Williams said there had been no
complaints from A.W.’s teacher. (Tr. 16, 256). Notably, when A.W. presented to
Dr. Stiffelman, on October 4, 2011, Dr. Stiffelman reported that A.W.’s teacher
had reported that his participation had been “good,” and he had “increased
obeying,” and that the principal reported that he was “pretty good.” (Tr. 258).
Fourth, the ALJ considered that evidence suggested A.W.’s father
exaggerated A.W.’s symptoms and limitations. In particular, the ALJ noted that
A.W.’s father testified that A.W. was constantly in trouble at school and had
received multiple suspensions, but that the record indicated that A.W. had only one
in-school suspension for classroom disruption.

Additionally, there was no

evidence that A.W. was in trouble “all the time” or that his father was required to
come to school three times a week. To the extent A.W.’s father alleged A.W. had
problems hearing and seeing, there was nothing in the record to substantiate these
problems. (Tr. 22, 58, 137-45, 175-86). A[A]n ALJ may disbelieve a claimant=s
subjective

reports

of

[symptoms]

because

of

inconsistencies

or

other

circumstances.@ Eichelberger, 290 F.3d at 589.
B.

Dr. Stiffelman’s Opinion:
On September 25, 2012, Dr. Stiffelman completed an Individual Functional

Assessment For Ages 6 to 12, in which she opined as follows: In the domain of

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Acquiring and Using Information, Dr. Stiffelman stated that she could not assess
A.W., but that A.W. was slow to answer questions and that he probably had
learning disabilities, in addition to attention deficit disorder (ADD). In the domain
of Attending and Completing Tasks, Dr. Stiffelman opined that A.W. had extreme
limitations, and noted that this opinion was based mostly on history provided by
A.W.’s father.

In the domain of Interacting and Relating with Others, Dr.`

Stiffelman opined that A.W. had less than marked limitations. She did not assess
A.W. in the domain of Moving About and Manipulating Objects and the domain of
Caring for Yourself.

In the domain of Health and Physical Well-Being, Dr.

Stiffelman opined that A.W. had marked limitations, noting that he had “[s]ocial
disadvantages”; that his “Mom [was] removed from his life”; that his father had
“limited ability”; and that A.W.’s uncle, who was in the home, would forget to
give A.W. his ADD medication. (Tr. 963). Plaintiff contends that the ALJ erred in
failing to give controlling weight to Dr. Stiffelman’s opinion that A.W. had an
extreme limitation in Attending and Completing Tasks and a marked limitation in
Health and Physical Well-Being. (Doc. 12 at 12). For the following reasons, the
court finds Plaintiff’s arguments without merit.
First, ALJ considered treatment records prepared by Dr. Stiffelman, who
was A.W.’s treating pediatrician, and that these records were inconsistent with Dr.
Stiffelman’s conclusions regarding the severity of A.W.’s symptoms. (Tr. 16).

15

See Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007) (holding that a treating
physician=s opinion does not automatically control or obviate the need to evaluate
the record as whole and upholding the ALJ=s decision to discount the treating
physician=s medical-source statement where limitations were never mentioned in
numerous treatment records or supported by any explanation); Chamberlain v.
Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) (citing Matthews v. Bowen, 879 F.2d
422, 424 (8th Cir. 1989) (holding that opinions of treating doctors are not
conclusive in determining disability status and must be supported by medically
acceptable clinical or diagnostic data).
Notably, the record reflects that A.W. presented for care with Dr. Stiffelman
on September 13, 2011. On this date, as discussed, in part, above, Dr. Stiffelman
diagnosed A.W. with ADHD symptoms, a possible learning disorder, and elements
of ODD, and she prescribed Vyvanse. (Tr. 253). When she saw A.W. on October
4, 2011, Dr. Stiffelman reported that A.W.’s teacher said A.W.’s participation had
been “good” and he had increased “obeying.”

She noted that A.W. was

cooperative but slow to answer questions; that, the next week, he was going to get
a “new individualized education plan (IEP) at school; and that A.W.’s ADHD was
responding well to medication and that his social issues were correcting. (Tr.
258). See Renstrom, 680 F.3d at 1066 (conditions which can be controlled by
medication are not disabling). When A.W. presented, on November 10, 2011, Dr.

16

Stiffelman reported that A.W.’s father reported that he was doing “good”; that his
father was a “vague historian”; that A.W.’s attitude was the same; and that he
“jump[ed] up” and ran “a lot.” (Tr. 254). On February 13, 2012, Dr. Stiffelman
reported that, if A.W. forgot to take his medicine, he acted out, see Wildman, 596
F.3d at 964-651; that his ADHD improved with medication; and that A.W. had
decreased ODD symptoms when taking medications for that condition, see
Renstrom, 680 F.3d at 1066. (Tr. 255). A.W. did not show up for his next
appointment, on August 2, 2012. (Tr. 256).
When Dr. Stiffelman saw A.W., on August 28, 2012, she reported that A.W.
had received an IEP for the new school year and that, so far, his teacher had not
reported any issues for the past two and a half weeks. She further reported that
A.W. had not been compliant with his medications; that A.W.’s father gave a
vague history of the situation; that A.W.’s mother was out of the picture; and that
A.W. frequently stayed with his uncle who would forget to give A.W. his
medications. Dr. Stiffelman continued to prescribe Vyvanse both on this date and
on October 12 and December 29, 2012. (Tr. 256-57, 266-67).
Thus, although Dr. Stiffelman opined that A.W. had a marked limitation in
the domain of Health and Well Being and an extreme limitation in the domain of
As stated above, the court stresses that A.W., as a young child was not
responsible for his non-compliance; rather, the court means to stress that when
A.W.’s caregivers were compliant with giving A.W. his medication, A.W.’s
conditions improved.

1

17

Attending and Completing Tasks, substantial evidence supports the ALJ’s
conclusion that her treatment notes do not support such findings.
Second, to the extent the ALJ did not give Dr. Stiffelman’s opinion
controlling weight, her checkmarks on the form were conclusory opinions, and, as
such, could be discounted by other objective medical evidence, as well as by Dr.
Stiffelman’s own treatment notes which fail to reflect the severity of her findings
in the domains of Attending and Completing Tasks and Health and Well-Being.
Stormo v. Barnhart, 377 F.3d 801, 805-06 (8th Cir. 2004); Hogan, 239 F.3d at 961;
Social Security Ruling (SSR) 96-2p, 1996 WL 374188 (July 2, 1996).
Third, upon declining to give Dr. Stiffelman’s opinion controlling weight,
the ALJ also noted that Dr. Stiffelman’s opinion was based “quite heavily on the
subjective report of symptoms and limitations provided by [A.W.’s] father.” (Tr.
23). Indeed, the ALJ was entitled to give less weight to Dr. Stiffelman’s opinion to
the extent it was based on subjective complaints rather than objective evidence.
See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007). Further, as discussed
above, the ALJ’s determination not to credit the testimony of A.W.’s father
regarding the severity of A.W.’s symptoms is based on substantial evidence. See
Eichelberger, 290 F.3d at 589.
Fourth, as discussed above in regard to Plaintiff’s credibility, Dr. Stiffelman
reported that A.W. did not regularly take prescribed medication, but that, when he

18

did take his medication, his ADHD and ODD were better. (Tr. 16, 253, 255, 258).
Fifth, Dr. Stiffelman’s conclusions are inconsistent with what A.W.’s teacher told
her, and what Mr. Williams told her, on occasion. (Tr. 16, 254-56).
Fifth, the ALJ considered the report prepared by Allison Burner, M.A., who
saw A.W., on September 9, 2011, pursuant to a referral from the State agency for a
psychological consultative examination for purposes of determining A.W.’s
eligibility for Social Security benefits. (Tr. 21). Ms. Burner noted that A.W., who
was seven years old at the time of the examination, was brought by his uncle, and
that the uncle reported that A.W.’s father was mentally retarded; that when A.W.’s
father was awarded custody of A.W., two years prior, the uncle moved in to the
home to help care for the children; that A.W. was not receiving special education
at the time; that A.W. had never been evaluated for ADHD; and that he had an
appointment the next week for an evaluation. (Tr. 233-34).
Ms. Burner observed that A.W. was cooperative with the interview and
testing; his affect was within normal limits; he had “significant psychomotor
agitation”; his speech was intelligible; and his social language functioning was
within normal limits. Ms. Burner reported that the Wechsler Intelligence Scale for
Children –IV (WISC-IV) established that A.W. had a full scale I.Q. of 92, which
was in the average range; that A.W.’s profile suggested average ability in the area
of Verbal Comprehension, which measures verbal reasoning, auditory

19

comprehension, verbal expression, verbal concept formation, fund of knowledge,
long term memory, abstract thinking, and social judgment and reasoning. Ms.
Burner further reported that A.W.’s score in the Perceptual Reasoning portion of
the test she administered measured in the average range. She additionally reported
that A.W. tested in the average range in the area of Working Memory, which
measures the use of visual and verbal strategies for information storage, retrieval,
and recall, and which involves, among other things, mental control, attention, and
concentration. A.W. tested in the low average range in regard to the Processing
Speed, which area evaluates visual motor coordination, discrimination, scanning,
and memory and “graphomotor speed.” (Tr. 235-36).
A mental status examination administered by Ms. Burner showed A.W. was
oriented; he did not have perceptual disturbances; A.W.’s mental calculations and
control were adequate and age appropriate in that he could count to 100 and do
some simple addition and subtraction; his information was within normal limits for
his age; and his insight and judgment were average as evidenced by his responses
to comprehension questions when tested.

Ms. Burner reported no deficits in

adaptive functioning, and normal social functioning. (Tr. 236). Based on her
evaluation, Ms. Burner concluded that A.W. did not meet the criteria for any
psychiatric diagnosis other than ADHD; that he would benefit from treatment; that
with appropriate medical intervention, A.W. should be able to obtain a “high

20

diploma”; that his ability to relate “socially, occupationally, and adaptively,
appear[ed] to be intact”; and that A.W. had a Global Assessment of Functioning
(GAF)2 of 70. The court notes that a GAF of 70 indicates the high end of mild
symptoms, and that, to the extent the ALJ gave Ms. Burner’s opinion greater
weight that Dr. Stiffelman’s opinion, Ms. Burner’s opinion was based on objective
test results. Indeed, an ALJ may Adiscount or even disregard the opinion of a
treating physician where other medical assessments are supported by better or
more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.@ Prosch v.

2

Global assessment of functioning (GAF) is the clinician=s judgment of the
individual=s overall level of functioning, not including impairments due to physical
or environmental limitations. See Diagnostic and Statistical Manual of Mental
Disorders, DSM-IV, 30-32 (4th ed. 1994). Expressed in terms of degree of
severity of symptoms or functional impairment, GAF scores of 31 to 40 represent
Asome impairment in reality testing or communication or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or
mood,@ 41 to 50 represents Aserious,@ scores of 51 to 60 represent Amoderate,@
scores of 61 to 70 represent Amild,@ and scores of 90 or higher represent absent or
minimal symptoms of impairment. Id. at 32. See also Brown v. Astrue, 611 F.3d
941, 955 (8th Cir. 2010) (A[A] GAF score of 65 [or 70] . . . reflects >some mild
symptoms (e.g. depressed mood or mild insomnia) OR some difficulty in social,
occupational, or school functioning . . . but generally functioning pretty well, has
some meaningful interpersonal relationships.=@) (quoting Kohler v. Astrue, 546
F.3d 260, 263 (2d Cir. 2008) (quoting Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed. 2000) (alterations in original).
See also Goff, 421 F.3d at 791, 793 (affirming where court held GAF of 58 was
inconsistent with doctor’s opinion that claimant suffered from extreme limitations;
GAF scores of 58-60 supported ALJ’s limitation to simple, routine, repetitive
work).

21

Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000). See also Travis v. Astrue, 477 F.3d
1037, 1041 (8th Cir. 2007) (AIf the doctor=s opinion is inconsistent with or contrary
to the medical evidence as a whole, the ALJ can accord it less weight.@).
Sixth, upon determining not to give controlling weight to Dr. Stiffelman’s
opinion, the ALJ considered the opinion of A.W.’s Special School District
Resource Teacher, Maggie A. Lofton, as expressed in a September 2012 Domain
Evaluation. As relevant, Ms. Lofton opined that A.W. had less than marked
limitations in the domain of Acquiring and Using Information, explaining that he
read at the kindergarten level; that his math was at least the second grade level;
and that he had low vocabulary skills, was unable to spell words, and had difficulty
retaining information.3 (Tr. 22, 24, 191-92).
Seventh, the ALJ considered the opinion of Robert Cottone, Ph. D., who
completed a Childhood Disability Evaluation Form, on September 16, 2011. After
reviewing A.W.’s records, Dr. Cottone opined that Plaintiff did not have an
The ALJ also considered that Ms. Lofton further opined that A.W. had marked a
marked limitation in the Domain of Attending and Completing Tasks, explaining
that an adult had to sit with A.W. in order for him to complete a task, and that he
required many prompts and reminders to remain seated and to switch activities.
Ms. Lofton also opined that A.W. had marked limitations in the Domain of
Interacting and Relating to Others, no limitations in the Domain of Moving About
and Manipulating Objects, marked limitations in the Domain of Caring for
Yourself, and less than marked limitations in the Domain of Health and Physical
Well Being. (Tr. 22, 192). The ALJ gave “some weight” to Ms. Lofton’s opinion
but noted that there “was a significant issue with [A.W.’s] compliance with his
medication and it [was] likely that this reflected periods of non-compliance.” (Tr.
23).
3

22

impairment or combination of impairments which met or medically equaled or
functionally equaled the Listings. (Tr. 239). In particular, Dr. Cottone noted that
he reviewed the medical opinion evidence, and evaluated A.W.’s physical and
mental symptoms before reaching his conclusion.

See 20 C.F.R. §§

404.1527(f)(2)(i), 416.927(f)(2)(i) (State agency medical consultants are highly
qualified experts in Social Security disability evaluation; therefore, ALJs must
consider their findings as opinion evidence.); Roberson v. Astrue, 481 F.3d 1020,
1025 (8th Cir. 2007) (moderate limitations do not prevent an individual from
functioning Asatisfactorily@).
Eighth, Dr. Stiffelman’s opinion was not entitled to controlling weight
simply because she was A.W.’s treating doctor. Myers v. Colvin, 721 F.3d 521,
525 (8th Cir. 2013). Rather, upon determining that Dr. Stiffelman’s opinion was
not to be given controlling weight, the ALJ was fulfilling his role to resolve
conflicts among the various medical providers of record. Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002).
Finally, as discussed above, and below, the ALJ considered all of the
evidence of record, including testimony, doctor’s observations and examination
notes, and objective testing results, upon determining the weight to be given Dr.
Stiffelman’s opinion, as well as other opinion evidence of record. To the extent
A.W. contends that the ALJ’s decision is not supported by substantial evidence

23

because it does not completely mirror Dr. Stiffelman’s opinion, in reaching his
conclusion regarding the severity of a claimant’s impairments, an “ALJ is not
required to rely entirely on a particular physician’s opinion or choose between the
opinions of any of the claimant’s physicians.” Martise v. Astrue, 641 F.3d 909,
927 (8th Cir. 2011). In conclusion, the court finds that the ALJ gave proper weight
to Dr. Stiffelman’s opinion, as well as all other opinions of record, and that the
ALJ’s decision, in regard to opinion evidence, is based on substantial evidence and
consistent with the Regulations and case law.
B.
ALJ’s Consideration of the Functional Domains and Whether A.W.’s
Conditions Functionally Equaled a Listing:
As discussed above, in regard to the applicable legal standard, to find a child
disabled within the meaning of the Act, an ALJ must determine whether the child
has a medically determinable physical or mental impairment which results in
marked and severe functional limitations. Specifically, to qualify for benefits, the
child’s impairments must result in “marked” limitations in two domains of the five
functioning domains or an “extreme” limitation in one of the domains. 20 C.F.R.
§§ 416.906, 416.926a. As further discussed above, the ALJ found that A.W. had
less than a marked limitation in the domain of Acquiring and Using Information,
Attending and Completing Tasks, Interacting and Relating with Others, and Caring
for Yourself, and no limitations in the domain of Moving About. A.W. contends
the ALJ should have found “marked” or “extreme” limitations in the domains of
24

Acquiring and Using Information and Attending and Completing Tasks (Doc. 12
at 7-11).
1.

Domain of Acquiring and Using Information:

As relevant, 20 C.F.R. 416.926a provides, in regard to the domain of
Acquiring and Using Information:
(g) Acquiring and using information. In this domain, we consider
how well you acquire or learn information, and how well you use the
information you have learned.
(1) General.
(i) Learning and thinking begin at birth. You learn as you explore the
world through sight, sound, taste, touch, and smell. As you play, you
acquire concepts and learn that people, things, and activities have
names. This lets you understand symbols, which prepares you to use
language for learning. Using the concepts and symbols you have
acquired through play and learning experiences, you should be able to
learn to read, write, do arithmetic, and understand and use new
information.
(ii) Thinking is the application or use of information you have learned.
It involves being able to perceive relationships, reason, and make
logical choices. People think in different ways. When you think in
pictures, you may solve a problem by watching and imitating what
another person does. When you think in words, you may solve a
problem by using language to talk your way through it. You must
also be able to use language to think about the world and to
understand others and express yourself; e.g., to follow directions, ask
for information, or explain something.
(2) Age group descriptors—
....
(iv) School-age children (age 6 to attainment of age 12). When you
are old enough to go to elementary and middle school, you should be
25

able to learn to read, write, and do math, and discuss history and
science. You will need to use these skills in academic situations to
demonstrate what you have learned; e.g., by reading about various
subjects and producing oral and written projects, solving
mathematical problems, taking achievement tests, doing group work,
and entering into class discussions. You will also need to use these
skills in daily living situations at home and in the community (e.g.,
reading street signs, telling time, and making change). You should be
able to use increasingly complex language (vocabulary and grammar)
to share information and ideas with individuals or groups, by asking
questions and expressing your own ideas, and by understanding and
responding to the opinions of others.
....
(3) Examples of limited functioning in acquiring and using
information. The following examples describe some limitations we
may consider in this domain. Your limitations may be different from
the ones listed here. Also, the examples do not necessarily describe a
“marked” or “extreme” limitation. Whether an example applies in
your case may depend on your age and developmental stage; e.g., an
example below may describe a limitation in an older child, but not a
limitation in a younger one. As in any case, your limitations must
result from your medically determinable impairment(s). However, we
will consider all of the relevant information in your case record when
we decide whether your medically determinable impairment(s) results
in a “marked” or “extreme” limitation in this domain.
(i) You do not demonstrate understanding of words about space, size,
or time; e.g., in/under, big/little, morning/night.
(ii) You cannot rhyme words or the sounds in words.
(iii) You have difficulty recalling important things you learned in
school yesterday.
(iv) You have difficulty solving mathematics questions or computing
arithmetic answers.
(v) You talk only in short, simple sentences and have difficulty
explaining what you mean.
When determining that A.W. had “less than marked” limitations in the

26

domain of “Acquiring and Using Information,” the ALJ considered that Dr.
Stiffelman offered no opinion regarding the limitations in this domain upon her
completing an Individual Functional Assessment – Ages 6 to 12 (Tr. 24, 262), and
that A.W.’s teacher, Maggie Lofton, opined that A.W. has “less than marked”
limitations in this domain (Tr. 24, 191). Notably, as considered by the ALJ, Ms.
Lofton opined that A.W.’s math skills were at the appropriate level. (Tr. 191). As
discussed above in regard to the ALJ’s credibility analysis, the ALJ also noted that
Ms. Burner reported, pursuant to her September 2011 consultive examination of
A.W., that A.W. demonstrated an age-appropriate ability to maintain mental
calculations and control information. Specifically Ms. Burner noted A.W. could
count to 100, perform simple addition and subtraction, and that he knew his ABCs
and days of the week. (Tr. 21, 236). The ALJ also considered that on the WISCIV administered by Ms. Burner, A.W. tested in the average range with a full-scale
IQ of 92. (Tr. 20-21, 234).
As relevant to the domain of Acquiring and Using Information, the ALJ also
considered a December 13, 2011 Psychological-Educational Assessment
completed by teachers and psychologists at A.W.’s school. (Tr. 20, 195-210). It
was noted, in this Assessment, that, on the Wechsler Nonverbal Scale of Ability
(WNV), which is designed “to measure general ability with test activities that
minimize or eliminate verbal requirements,” A.W. scored in the average range.

27

(Tr. 198). This test score indicated that A.W. scored higher than approximately 32
of 100 individuals his age (Tr. 201), and that his overall use of language was
appropriate, including his variety of sentence structures, his use of detail and
elaboration, and his vocabulary. (Tr. 204-205). It was noted, in regard to an
informal language assessment, that when A.W. did not understand a query, he
requested repetition, and when the examiner did not understand A.W.’s “message,
[he] was able to repair/revise it. He provided detail and elaboration when counting
personal experiences.” (Tr. 204).
Additionally, as noted by the ALJ, although A.W. was placed on an IEP, he
spent eighty percent of his time in a regular classroom. (Tr. 24, 73-74, 184, 220).
According to February and November 2012 IEP records, A.W. functioned “in the
average range of cognitive ability.” (Tr. 176, 214). A.W.’s February 2012 IEP
also reflects that A.W.’s ability to apply academic skills was in the low-average
range; his written expression was average; and his reading comprehension, math
calculation skills, math reasoning, and written language were low-average. (Tr.
176).
Significantly, A.W.’s second grade report card reflected that A.W. was
making basic progress in regard to using effective organizational strategies,
completing assigned tasks, completing homework, using details from text in
written responses, listening attentively and critically for information, using

28

standard English in spoken language, reading, writing, and comparing numbers,
and “developing fluency with basic addition facts to 20.” As such, the court finds
that substantial evidence supports the ALJ’s determination that A.W. had “less
than marked” limitations in the functional domain of “Acquiring and Using
Information.”
2.

Domain of Attending and Completing Tasks:

As relevant, 20 C.F.R. 416.926a provides:
(h) Attending and completing tasks. In this domain, we consider how
well you are able to focus and maintain your attention, and how well
you begin, carry through, and finish your activities, including the pace
at which you perform activities and the ease with which you change
them.
(1) General.
(i) Attention involves regulating your levels of alertness and initiating
and maintaining concentration. It involves the ability to filter out
distractions and to remain focused on an activity or task at a consistent
level of performance. This means focusing long enough to initiate
and complete an activity or task, and changing focus once it is
completed. It also means that if you lose or change your focus in the
middle of a task, you are able to return to the task without other
people having to remind you frequently to finish it.
(ii) Adequate attention is needed to maintain physical and mental
effort and concentration on an activity or task. Adequate attention
permits you to think and reflect before starting or deciding to stop an
activity. In other words, you are able to look ahead and predict the
possible outcomes of your actions before you act. Focusing your
attention allows you to attempt tasks at an appropriate pace. It also
helps you determine the time needed to finish a task within an
appropriate timeframe.

29

....
(iv) School-age children (age 6 to attainment of age 12). When you
are of school age, you should be able to focus your attention in a
variety of situations in order to follow directions, remember and
organize your school materials, and complete classroom and
homework assignments. You should be able to concentrate on details
and not make careless mistakes in your work (beyond what would be
expected in other children your age who do not have impairments).
You should be able to change your activities or routines without
distracting yourself or others, and stay on task and in place when
appropriate. You should be able to sustain your attention well enough
to participate in group sports, read by yourself, and complete family
chores. You should also be able to complete a transition task (e.g., be
ready for the school bus, change clothes after gym, change
classrooms) without extra reminders and accommodation.
....
(3) Examples of limited functioning in attending and completing
tasks. The following examples describe some limitations we may
consider in this domain. Your limitations may be different from the
ones listed here. Also, the examples do not necessarily describe a
“marked” or “extreme” limitation. Whether an example applies in
your case may depend on your age and developmental stage; e.g., an
example below may describe a limitation in an older child, but not a
limitation in a younger one. As in any case, your limitations must
result from your medically determinable impairment(s). However, we
will consider all of the relevant information in your case record when
we decide whether your medically determinable impairment(s) results
in a “marked” or “extreme” limitation in this domain.
(i) You are easily startled, distracted, or overreactive to sounds, sights,
movements, or touch.
(ii) You are slow to focus on, or fail to complete activities of interest
to you, e.g., games or art projects.
(iii) You repeatedly become sidetracked from your activities or you
frequently interrupt others.
(iv) You are easily frustrated and give up on tasks, including ones you
are capable of completing.
30

(v) You require extra supervision to keep you engaged in an activity.
When determining that A.W. had “less than marked” limitations in the
domain of “Attending and Completing Tasks,” the ALJ considered that, although
the evidence demonstrated that A.W. had some limitations within this domain, the
evidence also demonstrated that these limitations were less than marked. (Tr. 2425). Thus, the ALJ concluded that A.W.’s limitations did not seriously interfere
with his ability to independently initiate, sustain, or complete activities. 20 C.F.R.
§ 416.926a(e)(2).

Upon reaching this conclusion, the ALJ rejected Dr.

Stiffelman’s opinion that A.W. had extreme limitations in this domain (Tr. 262),
and considered that Ms. Burner reported that A.W. could count to 100, do simple
addition and subtraction, and that he scored in the average range on the WISC-IV
IQ test (Tr 25, 233-36). The ALJ also considered that A.W.’s December 2011
Psychological-Educational Assessment noted that A.W. was “compliant, focused,
[] calm,” and “always followed directions given to him.” (Tr. 20, 197) (emphasis
added).

The ALJ also considered that, during a November 2011 classroom

observation, it was noted that, despite some off-task behaviors, including getting
out of his seat and walking around, A.W. was able to refocus after the teacher
“initiated verbal contact with [him].” (Tr. 20, 200-201). Records reflect that
during this classroom observation, “there were about 5 other students that were
also having difficulty in class,” and that, therefore, A.W.’s behavior was not

31

atypical form that of other peers in the class.” It was also noted that during another
November 2011 classroom observation, A.W. “needed redirection just as others in
the class did. Others in the class were redirected 13 times by the classroom teacher
and [A.W.] was redirected 2 times.” (Tr. 201). See Moore ex rel. Moore v.
Barnhart, 413 F.3d 718, 723024 (8th Cir. 2005) (claimant did not have “marked”
limitations where she “had no other difficulties that were any different from those
common among children”).
While a December 2011 Speech and Language Evaluation showed that A.W.
demonstrated some difficulty with task focus, concentration, and following
directions, the examiner described A.W.’s behavior as only a “mild” difficulty and
noted that he responded well to redirection; he was “responsive to the examiner
and the tasks presented.”

“Rapport was easily established and maintained

throughout the testing situation.”

(Tr. 20, 202).

Additionally, Mr. Williams

testified that A.W. played video games, although he did not do so for very long;
that he watched complete programs on television; and that he played basketball.
(Tr. 68-69).

Thus, the court finds substantial evidence supports the ALJ’s

determination that A.W. had “less than marked” limitations in the domain of
Attending and Completing Tasks. In conclusion, the court finds that the ALJ’s
determination that A.W. did not have marked limitations in two domains or a
severe limitation in one domain and that he was, therefore, not entitled to benefits,

32

is based on substantial evidence and consistent with the Regulations and case law.
IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on
the record as a whole supports Commissioner’s decision that A.W. is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by Plaintiff Anthony
Williams, Sr., o/b/o A.W., in his Complaint and Brief in Support of Complaint
(Docs. 1, 12) is DENIED;
IT IS ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
Dated this 29th day of September 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

33