Taylor v. Commissioner of Social Security Administration

Filing 17

Memorandum Opinion and Order affirming Commissioner's final decision. Magistrate Judge Nancy A. Vecchiarelli(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JHOVONNE TAYLOR for T.J.T.,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CASE NO. 5:14-CV-2704

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Defendant.
Plaintiff, Jhovonne Taylor (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Commissioner of Social Security (“the Commissioner”), denying the
application of Plaintiff’s daughter, T.J.T. (“Claimant”), for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (“the Act”).
This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the
undersigned United States Magistrate Judge pursuant to the consent of the parties
entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below,
the Commissioner’s final decision is AFFIRMED.
I.

PROCEDURAL HISTORY

On July 7, 2011, Plaintiff filed an application for SSI on behalf of Claimant
alleging a disability onset date of June 1, 2001. (Transcript (“Tr.”) 19, 27, 151.) The
application was denied initially and upon reconsideration, and Plaintiff requested a
hearing before an administrative law judge (“ALJ”). (Id.) On June 28, 2013, an ALJ
conducted Claimant’s hearing. (Id.) Claimant was represented by an attorney. (Id.)
On August 27, 2013, the ALJ found Claimant not disabled. (Tr. 38.) On November 3,

2014, the Appeals Council declined to review the ALJ’s decision, and the ALJ’s decision
became the Commissioner’s final decision. (Tr. 1-6.)
On December 11, 2014, Plaintiff filed a complaint on behalf of Claimant, a minor,
challenging the Commissioner’s final decision. (Doc. No. 1.) The parties have
completed briefing in this case. (Doc. Nos. 13, 15, 16.)
Plaintiff asserts the following assignments of error: (1) the ALJ erred in finding
that Claimant did not meet Listing 112.05 or, alternatively, did not have marked
impairments in the domains of acquiring and using information, attending and
completing tasks, and interacting and relating with others; (2) the ALJ erred in relying
on the opinions of the state agency reviewing physicians and psychologists; and (3) the
ALJ erred in discrediting Plaintiff’s testimony.
II.
A.

EVIDENCE

Personal and Vocational Evidence
Claimant was born in December 2000, and was a school-age child on the date

her application was filed and on the date of the administrative hearing. (Tr. 30.)
Claimant had not engaged in substantial gainful activity at any time relevant to the
disposition of her application. (Id.)
B.

Medical Evidence and School Reports
On August 16, 2010, Trevor Bullock, D.O, treated Claimant due to concerns over

behavioral issues, which included hitting and yelling at smaller children, a short
attention span, and failing to follow directions. (Tr. 337.) Dr. Bullock noted that
Claimant did her homework when she was told and did “well” when she applied herself.

2

(Id.) The doctor instructed Plaintiff to seek counseling for Claimant’s anger issues and
to return forms that would help determine if Claimant had attention deficit hyperactivity
disorder (ADHD). (Id.)
Claimant returned to Dr. Bullock on November 17, 2010. (Tr. 335.) Plaintiff had
not returned the forms for ADHD. (Id.) Since Claimant’s last visit, she had been placed
in an ADHD class and her grades had improved. (Id.) She achieved mostly A’s, B’s,
and C’s, and had recently received an award at school for her grades. (Id.) Plaintiff
reported that Claimant was doing well with her homework. (Id.) Claimant told Dr.
Bullock that she felt more focused and her new class was a better learning
environment. (Id.) Claimant was working with a behavioral counselor. (Id.)
Around May 31, 2011, school psychologist Brad Falkenberg, Ph.D., conducted
an evaluation of Claimant as part of an Evaluation Team Report (ETR). (Tr. 286-301.)
Dr. Falkenberg noted that in June 2008, Claimant had qualified for special education
services due to a learning disability. (Tr. 287.) In 2008, Claimant was tested using the
Wechsler Intelligence Scale for Children (WISC-IV) and obtained a full scale IQ score
of 73, verbal comprehension and perceptual reasoning scores of 77, and a working
memory score of 65. (Id.) These results showed that Claimant’s intellectual abilities
were within the borderline range. (Id.) In 2008, in addition to learning disabilities,
Plaintiff also exhibited hyperactivity, verbal and physical aggression, somatization,
inattention, and poor study and social skills. (Id.) Dr. Falkenberg noted that Claimant
had stopped attending speech services due to success, but continued to receive
special instruction in reading, writing, and math. (Tr. 287.)

3

Dr. Falkenberg additionally recounted the results of Claimant’s intellectual testing
on the WISC-IV administered in May 2011. (Tr. 291.) He reported that during the test,
Claimant had exhibited poor work habits, often voiced complaints, exhibited a lack of
consistent effort, worked very quickly, was fidgety, refused to try some basic math and
spelling items, tried to write on the dry erase board, made wild guesses on some word
problems just to be finished, and was careless. (Id.) As a result, the psychologist
warned that the results of the test “must be interpreted with caution.” (Id.) Claimant
obtained a full scale I.Q. of 66, which was in the extremely low range of functioning. (Tr.
291, 302.) She had a verbal comprehension index score of 65, in the extremely low
range of functioning, and a perceptual reasoning index score of 75, in the borderline
range. (Id.) Claimant’s working memory score was in the extremely low range, but her
processing speed score was average for children her age. (Id.) Dr. Falkenberg
cautioned that the validity of the current test results could be suspect, explaining that
the results “should be interpreted with caution due to inattentive, impulsive, and
sometimes uncooperative behaviors exhibited during the assessment.” (Tr. 292, 296.)
In May 2011, Claimant also took the Woodcock-Johnson Psychoeducational
Battery (WJ-III). (Tr. 293.) Dr. Falkenberg indicated that “as previously alluded to, all
WJ-III results should be interpreted with caution due to careless work habits, inattentive
and impulsive behavior, and a lack of concern for accuracy.” (Tr. 293.) The test
showed that Claimant’s academic skills were in the extremely low range in all areas,
including basic reading, math, spelling, and writing. (Id.)
Along with intellectual testing, Dr. Falkenberg considered reports from Claimant’s
teachers, which indicated that Claimant usually completed her homework, but seldom
4

finished classroom work in math. (Tr. 289.) One teacher noted that Claimant had made
large strides in paying attention, following directions, and completing work. (Id.)
Claimant, however, still acted immature and was easily distracted. (Id.) Dr. Falkenberg
observed that despite special instruction, Claimant remained well below grade level in
all subjects. (Id.) Teachers also indicated that when taking a test, Claimant’s reading
skills were so poor that she “just cop[ied] from the test” rather than answer the
questions. (Tr. 290.) During the past two school years, Claimant violated the behavior
code three times, resulting in one in-school and one out-of-school suspension. (Tr.
289.)
Dr. Falkenberg recommended that Claimant continue to receive regular support
from an intervention specialist in reading, language arts, and math. (Tr. 297.) Claimant
would also benefit from intervention targeting her behavioral and social-emotional
needs that could be obtained through community counseling and structuring the
classroom to address these issues. (Id.) Dr. Falkenberg opined that Claimant was not
mentally retarded or emotionally disturbed. (Tr. 299.) He concluded that her poorly
developed skills in reading, writing, and math appeared to be adversely impacting her
performance across the curriculum. (Id.) Her inattentive, impulsive, and immature
behaviors negatively affected her academic performance, but the psychologist believed
they were secondary to learning disabilities. (Id.)
On her fourth grade report card, Claimant received D’s in math, but B’s and C’s
in all other subjects. (Tr. 361.) Prior school transcripts showed that Claimant received
primarily D’s in the third grade, but A’s, B’s, and C’s in the second grade. (Tr. 362.)

5

On November 30, 2011, Colin Drolshagen, M.D., completed a medical source
opinion form addressing Claimant’s functioning.1 (Tr. 353.) He wrote that Claimant had
eczema and a learning impairment, but no psychological impairment as of an October
2011 evaluation. (Id.) Claimant was not taking medication. (Id.) With regard to
acquiring and using information, the doctor noted that Claimant performed below
average in school, despite being enrolled in an individualized education program. (Id.)
As to attending and completing tasks, Dr. Drolshagen stated that Claimant had “trouble
staying still.” (Id.) Under interacting and relating with others, the doctor reported that
Claimant had interacted appropriately at her last appointment. (Id.)
In April 2012, Claimant received an updated individualized education program
(IEP). (Tr. 207-21.) The program report indicated that Claimant had “done well” since
arriving at a new school in January 2012. (Tr. 209.) She had adjusted to her new
classroom and made positive peer relationships. (Id.) Claimant’s classroom teacher
described Claimant as a quiet student who attempted to do all work given to her. (Id.)
An intervention specialist indicated that Claimant worked hard when assignments
interested her, but could be noncompliant when she found work difficult or unenjoyable.
(Id.) Although Claimant was in the fifth grade, her scores on standardized tests in the
areas of reading, math, language, and science showed that she performed at the
second grade level. (Id.) The IEP also indicated that Claimant took the WJ-III in 2011
and scored in the very low range in reading and math. (Tr. 212-13.) Claimant, however,
was currently receiving an A in her modified reading curriculum and a B in her modified
1

On the form, Dr. Drolshagen did not indicate what degree of impairment
Claimant exhibited in the domains.
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math curriculum. (Id.)
On January 10, 2013, Dennette Waters completed a teacher questionnaire in
which she described Claimant’s functioning. (Tr. 226-33.) Ms. Waters was Claimant’s
intervention specialist, who provided assistance in language arts and math. (Tr. 226.)
Ms. Waters had known Claimant for four months. (Id.) Ms. Waters opined that
Claimant had a “serious” to “very serious” problem2 with regard to every activity in the
domain of acquiring and using information. (Tr. 227.) She explained that Claimant
received help in all classes from adult or peer tutors and that directions needed to be
read to Claimant several times with step-by-step delivery. (Id.) If left by herself to
complete assignments, Claimant would “simply copy words from a book or text.” (Id.).
Ms. Waters indicated that Claimant had a number of serious and very serious problems
in the domain of attending and completing tasks. (Tr. 228.) Ms. Waters again explained
that Claimant generally pulled “passages from the text to complete assignments.” (Id.)
Claimant also needed to be refocused constantly and rarely completed tasks, even with
extra time. (Id.) With regard to interacting and relating with others, Ms. Waters
endorsed mostly serious to very serious problems. (Tr. 229.) Claimant was “easily
influenced, especially by her cousin.” (Id.) Claimant was normally respectful, but there
were times when she was disrespectful and refused to participate in activities. (Id.)
In April 2013, Ms. Waters completed a second teacher questionnaire. (Tr. 26974.) Unlike her prior report, Ms. Waters opined that Claimant had only “slight” to

2

The teacher questionnaire included a rating key with the following range
of ratings: no problem, a slight problem, an obvious problem, a serious
problem, a very serious problem. (Tr. 227.)
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“obvious” problems with acquiring and using information, apart from one “serious”
problem in the activity of expressing ideas in writing. (Tr. 270.) Ms. Waters explained
that Claimant’s performance was inconsistent and she exhibited behavior problems,
which prevented her from performing academic tasks. (Id.) Claimant also fought help
when it was offered. (Id.) Ms. Waters indicated that Claimant had problems of mixed
severity with regard to attending and completing tasks and interacting and relating with
others. (Tr. 271-72.)
On her 2013 report card, Claimant received C’s and D’s in language arts as well
as a D in math. (Tr. 235.) She had B’s and A’s in science, health, phy sical education,
and music. (Id.)
C.

State Agency Reports
On October 13, 2011, consultative examiner Joseph Perry, Ph.D. performed a

psychiatric examination of Claimant. (Tr. 347-50.) At the time, Claimant was ten-yearsold and in the fifth grade. (Tr. 347-48.) Plaintiff reported her concerns about Claimant’s
behavioral and learning problems. (Tr. 347.) She also reported that Claimant had
symptoms of ADHD, but had never been diagnosed with the condition by a medical
professional. (Id.) Plaintiff explained that Claimant had learning difficulties, received
special education services since the first grade, and had difficulty focusing and
concentrating. (Id.) According to Plaintiff, Claimant’s school attendance had been
excellent and her grades were satisfactory with her adjusted curriculum. (Tr. 348.)
Dr. Perry wrote that during a mental status examination, Claimant did not exhibit
difficulty with attention or focus. (Tr. 348.) In addition, Claimant had no difficulties with

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speech and provided relevant responses in a clear, coherent fashion; had no symptoms
of mood disorders; exhibited no anxiety; and her word knowledge was at an average
level. (Id.) Claimant had below average short-term auditory memory for digits, but
satisfactory auditory memory for words. (Id.) In terms of activities of daily living,
Claimant was assigned chores and needed reminders to do them. (Id.) She could pour
drinks, prepare cereal, make a sandwich, and dress herself. (Id.). Claimant enjoyed
playing with dolls, reading, riding her bicycle, and watching television. (Id.) She got
along with immediate family and had several friends. (Id.)
Dr. Perry opined that Claimant did not present remarkable symptoms for
diagnoses of learning or mental health conditions. (Tr. 349.) He diagnosed no mental
impairments and assigned a Global Assessment of Functioning (GAF) score of 70.3
With regard to Claimant’s functioning, Dr. Perry issued the following opinions:
•

•

3

Acquiring and using information: Claimant functioned with an average
range of intellectual ability during the mental status examination,
evidencing average vocabulary and general language skills. While
Plaintiff’s reports that Claimant received tutoring at school for learning
problems would suggest a below average ability in this domain, no
specific information regarding Claimant’s academic progress was
available to confirm Plaintiff’s report. (Tr. 349.)
Attending and completing tasks: Claimant had no limitations. During the
examination, Claimant had no unusual problems with focus,
The GAF scale rates an individual’s overall psychological functioning from
0 for inadequate information to 100 for superior functioning. See Kornecky
v. Comm’r of Soc. Sec., 167 F. App’x 496, 503 n.7 (6th Cir. 2006). A GAF
score between 61 and 70 represents some mild symptoms or some
difficulty in social or school functioning, but generally functioning pretty
well and having some meaningful interpersonal relationships. See
Diagnostic and Statistical Manual of Mental Disorders 34 (American
Psychiatric Association, 4th ed. rev., 2000).
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concentration, attention, or persistence. She had not receiv ed mental
health services and took no psychotropic medications. (Id.)
•

Interacting and relating with others: Claimant had no limitations. She
evidenced no problems when interacting with the examiner. She could be
aggressive with her sister, but had friends in the community and at school.
Claimant had no reported remarkable behavior problems at school that
required services for students with social behavioral problems. (Tr. 350.)

At the beginning of November 2011, state agency pediatrician Louis Goorey,
M.D., and psychologist Melanie Bergsten, Ph.D., reviewed the record. (Tr. 93-95.) They
opined that Claimant had a less than marked limitation in acquiring and using
information, attending and completing tasks, and health and physical well-being. (Tr.
93-94.) Drs. Goorey and Bergsten found that Claimant had no limitations in interacting
and relating with others. (Tr. 94.)
At the end of January 2012, state agency pediatrician Rachel Rosenfeld, M.D.,
and psychologist Robyn Hoffman, Ph.D., conducted a second review of the record. (Tr.
104-06.) They concluded that Claimant exhibited less than marked limitations in the
domain of interacting and relating with others. (Id.) Their assessment otherwise
affirmed Drs. Goorey and Bergensten’s opinions.
D.

Plaintiff’s Hearing Testimony
During the administrative hearing, Plaintiff testified that the Claimant had

memory problems. (Tr. 55-56.) Claimant also had issues interacting with students at
school, and had been disciplined for throwing rocks, along with her cousin, at other
students. (Tr. 56-57, 63.) Some time after the rock throwing incident, Claimant
transferred schools to be separated from her cousin. (Tr. 63-64.) Claimant had bullied
a kindergarten student. (Tr. 57.)
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At home, Claimant fought with her three siblings, but not with her mother. (Tr.
57.) She shared a room with her younger sister, and they got along off-and-on. (Tr. 62.)
Claimant struggled to complete her homework and became easily frustrated. (Tr. 58.)
Claimant’s friends at school were negative behavioral influences. (Tr. 59-60.) Outside
of school, Claimant interacted with only her siblings. (Tr. 60.)
At the time of the hearing, Claimant was not receiving medical treatment
because her “doctor just switched.” (Tr. 60.) Before the change in physicians, Claimant
had not received treatment because medical providers had not recommended any. (Id.)
Claimant had not seen a doctor in approximately one year. (Id.) When asked why
Claimant had not received medical care in the past year in light of her problems at
school, Plaintiff responded, “I have no idea.” (Tr. 62.)
III.

STANDARD FOR DISABILITY

An individual under the age of 18 shall be considered disabled if he 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.
See 42 U.S.C. § 1382c(a)(3)(C)(i); Miller ex rel. Devine v. Comm’r of Soc. Sec., 37 F.
App’x 146, 147 (6th Cir. 2002) (per curiam). There is a three-step analysis for
determining whether a child-claimant is disabled. First, the Commissioner must
determine whether the child is engaged in substantial gainful activity. See 20 C.F.R. §
416.924(a); Miller ex rel. Devine, 37 F. App’x at 148. Second, if the child is not
engaged in substantial gainful activity, the Commissioner must determine whether the

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child suffers impairments or a combination of impairments that are “severe” and that are
expected to result in death or have lasted or are expected to last for a continuous
period of not less than 12 months. See 20 C.F.R. § 416.924(a); Miller ex rel. Devine,
37 F. App’x at 148. Third, if the child suffers a severe impairment or combination of
impairments that meet the Act’s durational requirement, the Commissioner must
determine whether they meet, medically equal, or functionally equal an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). See 20 C.F.R. §
416.924(a); Miller ex rel. Devine, 37 F. App’x at 148. If the child’s severe impairment or
combination of impairments meets, medically equals, or functionally equals an
impairment in the Listings, the child will be found disabled. See 20 C.F.R. §
416.924(a); Miller ex rel. Devine, 37 F. App’x at 148.
To determine whether a child’s impairment functionally equals the Listings, the
Commissioner assesses the functional limitations caused by the impairment in six
domains of functioning: (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 oneself; and (6) health and physical well-being. 20
C.F.R. § 416.926a. An impairment functionally equals the Listings if the child has a
“marked” limitation in two domains, or an “extreme” limitation in one domain. 20 C.F.R.
§ 416.926a(a). A “marked” limitation is one that “interferes seriously with [a child’s]
ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i). An “extreme” limitation is one that “interferes very seriously with [a
child’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i).
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IV.

SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:
1.

The claimant was born on December 6, 2000. Therefore, she was a
school-age child on July 7, 2011, the date the application was filed,
and is currently a school-age child.

2.

The claimant has not engaged in substantial gainful activity since July
7, 2011, the application date.

3.

The claimant has the following severe impairments: borderline
intellectual functioning and learning disorder.

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. 404, Subpart P, Appendix 1.

5.

The claimant does not have an impairment or combination of
impairments that functionally equals the severity of the listings.

6.

The claimant has not been disabled, as defined in the Social Security
Act, since July 7, 2011, the date the application was filed.

(Tr. 30-37.)
V.
A.

LAW & ANALYSIS

Standard of Review

Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
13

evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.

Plaintiff’s Assignments of Error
1.

Whether the ALJ Erred in Finding that Claimant Failed to Meet,
Medically Equal, or Functionally Equal a Listed Impairment

2.

Whether the ALJ Erred in Discrediting Plaintiff’s Testimony

Plaintiff argues the ALJ erred in finding that Claimant’s impairments did not meet
or equal Listing 112.05, the listing for intellectual disability. Plaintiff also maintains that
the ALJ erred in concluding that Claimant did not have marked limitations in the
domains of acquiring and using information, attending and completing tasks, and
interacting and relating with others. Plaintiff contends that the ALJ improperly
discounted her credibility and that this affected the ALJ’s determination that Claimant
did not have marked limitations. As these assignments of error are interrelated, they
will be discussed together. For the following reasons, Plaintiff’s allegations of error are
not well taken.
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At the third step in the disability evaluation process, a claimant will be found
disabled if his impairment meets or medically equals one of the impairments in the
Listings. Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011) (citing
20 C.F.R. §§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii)). An ALJ must compare the
claimant’s medical evidence with the requirements of listed impairments when
considering whether the claimant’s impairment or combination of impairments is
equivalent in severity to any listed impairment. Id. at 415; Hunter v. Astrue, No. 1:09-cv2790, 2011 WL 6440762, at *3 (N.D. Ohio Dec. 20, 2011); May v. Astrue, No.
4:10-cv-1533, 2011 WL 3490186, at *8-9 (N.D. Ohio June 1, 2011). Nevertheless, it is
the claimant’s burden to show that he meets or medically equals an impairment in the
Listings. Evans v. Sec’y of Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987)
(per curiam).
To meet the level of severity required by Listing 112.05, a claimant must satisfy
at least one of six criteria set out in sections 112.05(A) through (E) and must have
significantly subaverage general intellectual functioning with deficits in adaptive
functioning. 20 C.F.R Part 404, Subpart P, Appendix 1, 112.05. Plaintiff contends that
Claimant meets the requirements of subsection 112.05(E). Under 112.05(E), based on
her age, Claimant must show a valid verbal, performance, or full scale I.Q. of 60
through 70. 20 C.F.R. Part 404, Subpart P, Appendix 1, 112.05(E). For an accurate
assessment under Listing 112.05, I.Q. test results must be sufficiently current. 20
C.F.R. Part 404, Subpart P, Appendix 1. Test results obtained between ages 7 and 16
should be considered current for two years when the I.Q. is 40 or above. Id. Finally, a

15

claimant must demonstrate a marked limitation in one of the following areas: social
functioning; personal functioning; or maintaining concentration, persistence, or pace. 20
C.F.R. Part 404, Subpart P, Appendix 1, 112.02(B)(2)(b)-(d), 112.05(E)(2).
Here, Plaintiff argues that the ALJ did not consider Claimant’s full scale I.Q.
score of 66 from testing conducted in May 2011. According to Plaintiff, the I.Q. score
meets the requirement of the Listing. The Commissioner counters that this I.Q. score
would not have been considered “valid,” as the Listing necessitates. The
Commissioner points to Dr. Falkenberg’s statement that the May 2011 score should be
interpreted “with caution” due to Claimant’s uncooperative behavior during the test. (Tr.
292, 296.) While there may be grounds to find that the May 2011 I.Q. score was
invalid, the ALJ did not make a finding about the validity of the score nor did he discuss
the score in his opinion. “[T]he courts may not accept appellate counsel’s post hoc
rationalizations for agency action. It is well-established that an agency’s action must be
upheld, if at all, on the basis articulated by the agency itself.” Berryhill v. Shalala, 4 F.3d
993, *6 (6th Cir. Sept. 16, 1993) (unpublished opinion) (quoting Motor Vehicle Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (citation omitted)).
Even if the ALJ erred with regard to Claimant’s I.Q. score, the error would be
harmless unless Plaintiff can show that the ALJ erred in finding that Claimant did not
have a marked limitation in social functioning; personal functioning; or maintaining
concentration, persistence, or pace. To establish marked limitations is these areas,
Plaintiff cites to the opinions of school intervention specialist Ms. Waters and Plaintiff’s

16

testimony.4 Plaintiff relies on this same evidence to support her argument that Claimant
had marked limitations in the functional domains of acquiring and using information,
attending and completing tasks, and interacting and relating with others. The ALJ,
however, adequately assessed Ms. Waters’ opinions and Plaintiff’s testimony, and
reasonably discounted their opinions as there was substantial contradictory evidence in
the record.
With regard to opinions and other evidence from educational personnel, like Ms.
Waters, Social Security Ruling (S.S.R.) 06-3p explains:
Since there is a requirement to consider all relevant evidence in an
individual’s case record, the case record should reflect the consideration
of opinions from medical sources who are not “acceptable medical
sources” and from “non-medical sources” who have seen the claimant in
their professional capacity. Although there is a distinction between what
an adjudicator must consider and what the adjudicator must explain in the
disability determination or decision, the adjudicator generally should
explain the weight given to opinions from these “other sources,” or
otherwise ensure that the discussion of the evidence in the determination
or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the
outcome of the case.
S.S.R. 06-03p, 2006 WL 2329939, at *6 (S.S.A.). Because Ms. Waters was an “other
source,” the ALJ was required only to consider the teacher’s opinion and to ensure that
4

Plaintiff also cites to discrete pieces of evidence, including a sixth grade
report card (Tr. 235.), a sixth grade discipline record (Tr. 236.), and a
school psychologist’s assessment that teacher responses were “clinically
significant” for inattention (Tr. 314.) This evidence is not sufficient to
establish marked limitations. Even if this evidence constituted substantial
evidence of marked limitations, remand would not be necessary, as the
ALJ cited to substantial evidence showing less than marked limitations,
which will be discussed further in this opinion. See Ealy, 594 F.3d at 512
(“If the Commissioner’s decision is based upon substantial evidence, we
must affirm, even if substantial evidence exists in the record supporting a
different conclusion.”).
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his discussion of the evidence allows the Court to follow his reasoning. A review of the
ALJ’s decision indicates that the ALJ considered and discussed Ms. W aters’ opinions.
(Tr. 32.) Additionally, the ALJ’s opinion shows that the ALJ relied more heavily upon
medical sources in the record, specifically, consultative psychological examiner Dr.
Perry and the state agency reviewing psychologists and physicians. (Id.) These
sources contradicted Ms. Waters’ opinions5 and found that Claimant did not exhibit
marked limitations in any of the functional domains. (Tr. 349-50, 93-95, 104-06.) In
addition, as the ALJ indicated, the state agency reviewers concluded that Claimant did
not meet the severity of the Listing. (Tr. 30, 93-95, 104-06.) Contrary to Plaintiff’s
argument, educational personnel are not entitled to the def erence accorded to treating
physicians. The ALJ was not required to provide good reasons for rejecting Ms.
Waters’ opinion or further elaborate upon his decision. No treating source in the record
opined that Claimant had marked limitations and the ALJ’s opinion in this regard is
substantially supported.
Even if this Court were to assume that Plaintiff’s testimony would support a
finding of a marked limitation, it would not affect the outcome of this case as the ALJ
did not find Plaintiff completely credible and provided adequate reasons for discrediting
5

Plaintiff concedes that Ms. Waters’ second report, issued in April 2013,
changed from her earlier January 2013 opinion and noted only one
serious problem in the domain of acquiring and using information.
(Plaintiff’s Reply Brief at 2.) Thus, Ms. Waters’ April 2013 opinion
regarding Claimant’s ability to acquire and use information actually
coincides with the ALJ’s and the state agency medical sources’
conclusion that Claimant was not markedly limited in this particular
domain. Plaintiff also maintains that Ms. Waters’ opinions demonstrate
marked limitations in attending and completing tasks and interacting and
relating with others.
18

her statements. Credibility determinations regarding a claimant’s subjective complaints
rest with the ALJ, are entitled to considerable def erence, and should not be discarded
lightly. See Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.
1987); Villarreal v. Sec’y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987).
However, the ALJ’s credibility determinations must be reasonable and based on
evidence from the record. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th
Cir. 2007); Weaver v. Sec’y of Health & Human Servs., 722 F.2d 313, 312 (6th Cir.
1983). The ALJ also must provide an adequate explanation for his credibility
determination. The determination “must contain specific reasons for the finding on
credibility, supported by evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reason for that weight.” S.S.R. 96-7p, 1996
WL 374186 at *4 (S.S.A.).
Here, the ALJ’s opinion included specific reasons for finding that Plaintiff’s
testimony was not fully credible as to the intensity, persistence, and limiting effects of
Claimant’s alleged symptoms. These reasons included:
•

The unexplained gap in Claimant’s medical treatment. Specifically, the
ALJ highlighted Plaintiff’s inability to explain why the Claimant had not
received any medical treatment for the entire year preceding the
administrative hearing. (Tr. 31.)

•

The inconsistency between the Claimant’s level of activity and interaction
and the degree Plaintiff claimed. For example, the ALJ recounted
Plaintiff’s testimony that Claimant did not get along with others and did not
have friends. (Tr. 31.) However, the ALJ observed that the evidence
showed Claimant shared a room with her sister; played with her four
siblings; spent time with her cousin, though her cousin’s influence on
Claimant’s behavior was at times inappropriate; and enjoyed playing
19

hopscotch and basketball. 6 (Id.)
•

The contradiction between Plaintiff’s statements that Claimant had a short
attention span and problems with learning, and the fact that Claimant had
never been diagnosed with or treated for ADHD. (Tr. 31-32.)

Moreover, even if Plaintiff did provide evidence to support her argument of
marked limitations, the existence of such evidence alone would not be an appropriate
reason to reverse the ALJ’s decision: An ALJ’s decision supported by substantial
evidence will not be overturned even though substantial evidence supports the opposite
conclusion. Ealy, 594 F.3d at 512. Other portions of the ALJ’s opinion 7 provide
substantial support for the ALJ’s conclusion that Claimant did not have marked
limitations:
•

The ALJ assessed that Claimant engaged in a range of activities without
issue: she had no sleep problems, attended school daily, completed
household chores with reminders, could fix herself a snack and dress
herself, looked at books, and rode a bicycle. (Tr. 32.)

•

The ALJ observed that following a psychological examination, Dr. Perry
did not advance a diagnosis of any disorder for Claimant. (Tr. 32.) Dr.
Perry opined that Claimant had no difficultly with concentration,
persistence, and attention; interacting with others; or self-care. (Id.)

6

Although Plaintiff challenges the conclusions that the ALJ draws from
Claimant’s activities, the ALJ was not unreasonable in drawing such
conclusions and evaluating how the evidence shed light on Claimant’s
functional limitations.

7

The ALJ’s explanation under the Listing and the domains was not
elaborate, but the ALJ’s opinion, taken as a whole, evaluates the evidence
and indicates the weight the ALJ gave it. Before evaluating the domains,
the ALJ provided a discussion of the testimony, medical evidence, and
school records. (Tr. 31-33.) The ALJ’s discussion of the evidence was not
merely a rote recitation of Claimant’s longitudinal history; rather, the ALJ
analyzed the evidence and explained how it supported his ultimate
disability determination. (Id.) This affords the Court the opportunity to
meaningfully review the ALJ’s opinion.
20

•

The ALJ explained that Claimant’s treating physician Dr. Drolshagen
observed that Claimant followed commands and interacted appropriately.
(Tr. 32.) Although Dr. Drolshagen stated that Claimant exhibited some
hyperactivity, the ALJ noted that Claimant had not received treatment for
ADHD. (Id.)

•

The ALJ observed that Claimant was able to achieve grades in school that
ranged from below average to above average. (Tr. 33.) As her sixth grade
report card reflected, Claimant received D’s and C’s in some classes, but
B’s and A’s in other courses. (Tr. 235.) When Claimant was in the fifth
grade, she achieved an A and a B in her modified curriculum reading and
math classes. (Tr. 211-12.) On her fourth grade report card, Claimant had
D’s in math, but B’s and C’s in all other subjects. (Tr. 361.)

Had the ALJ discussed the aforementioned evidence while making the Listing
determination, within his analysis of the individual domains, or immediately following his
statement that Plaintiff’s testimony was not entirely credibly, there would be no question
that the ALJ provided substantial support for his findings. The fact that the ALJ did not
analyze this evidence in multiple sections of his opinion, or refer back to this evidence,
does not necessitate remand of Claimant’s case. “No principle of administrative law or
common sense requires us to remand a case in quest of a perfect opinion unless there
is reason to believe that the remand might lead to a different result.” Shkabari v.
Gonzales, 427 F.3d 324, 328 (6th Cir. 2005) (quoting Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir.1989)). See also Kobetic v. Comm’r of Soc. Sec., 114 F. App’x 171, 173
(6th Cir. 2004) (When “remand would be an idle and useless formality,” courts are not
required to “convert judicial review of agency action into a ping-pong game.”) (quoting
NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766, n.6 (1969)). Accordingly, Plaintiff has
not presented a basis for remand based on the ALJ’s listing, functional equivalence, or
credibility analyses and conclusions.
21

3.

Whether the ALJ Erred in Relying on the Opinions of the State
Agency Reviewing Physicians and Psychologists

In January 2012, state agency physician Dr. Rosenfeld and psychologist Dr.
Hoffman opined that Claimant had less than marked limitations in the domains of
acquiring and using information, attending and completing tasks, and interacting and
relating with others. (Tr. 104-06.) The ALJ assigned great weight to these portions of
Drs. Rosenfeld and Hoffman’s opinions. (Tr. 32-33.)
Plaintiff maintains that the ALJ erred in giving great weight to Drs. Rosenfeld and
Hoffman’s opinions because the record was incomplete at the time they rendered their
opinions. Specifically, Plaintiff argues that the reviewers “did not have the benefit of
seeing any of the evidence added to the record subsequent to their opinions, which
included [Ms. Waters’] teacher assessment form, subsequent school testing (Tr. 207221), and behavior reports. (Tr. 279-81.)” (Plaintiff’s Brief at 14.) Plaintiff’s argument is
without merit.
Plaintiff has failed to provide any legal support for her argument that the ALJ
could not properly rely on the opinions of Drs. Rosenfeld and Hoffman because the
record was not complete at the time they rendered their opinions. The responsibility for
deciding functional equivalence rests with the ALJ. See 20 C.F.R. 416.926a(n). Here,
the ALJ determined Claimant’s functional equivalence while considering the opinions of
examining and non-examining medical sources, teacher reports, school records, and
Plaintiff and Claimant’s testimony, and included evidence that developed after the

22

reviewers issued their opinions, including Ms. Waters’ reports.8 (Tr. 31-35.) Accordingly,
substantial evidence supports the ALJ’s determination.
VI.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: October 5, 2015

8

Ms. Waters is an “other source,” whose opinion was entitled to no special
deference. The ALJ’s decision showed that the ALJ discounted Ms.
Waters’ opinions because there was contradictory evidence in the record.
23