Chambers v. Commissioner of Social Security

Filing 15

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 10 Report and Recommendation in all respects. The Court AFFIRMS the decision of the Commissioner and DISMISSES this case from the Court's docket. Signed by Judge S Arthur Spiegel on 2/14/2012. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
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MARY CHAMBERS o/b/o M.V.T.,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
Defendant.

NO. 1:10-CV-593

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
August 29, 2011 Report and Recommendation (doc. 10), Plaintiff’s
Objections (doc. 13), and Defendant’s Response (doc. 14).
reasons

indicated

herein,

the

Court

ADOPTS

and

For the

AFFIRMS

the

Magistrate Judge’s Report and Recommendation and DISMISSES this
case from the Court’s docket.
I. Background
Plaintiff filed this action on September 1, 2010 seeking
a

judicial

Commissioner

review,
of

pursuant

Social

to

42

Security’s

U.S.C.

§

405(g),

(“Commissioner”)

of

denial

the
of

Plaintiff’s application for Supplemental Security Income (“SSI”)
childhood disability benefits (doc. 10).
Plaintiff’s

guardian

filed

an

application

for

SSI

childhood benefits on his behalf in January of 2007, alleging
disability due to attention deficit hyperactivity (“ADHD”) and
oppositional defiant disorder (“ODD”) (doc. 10).

His application

was denied initially and upon reconsideration (Id.).

Plaintiff

requested and was granted a de novo hearing before administrative
law judge (ALJ) Ronald M. Kayser.
requested

an

examination

psychologist.

of

After one hearing, the ALJ

Plaintiff

by

a

consultative

At a second hearing, Doug McKeown, Ph.D., testified

as a medical expert (Id.). On July 31, 2009, the ALJ issued a
decision denying Plaintiff’s SSI application (Id.).

The Appeals

Council denied Plaintiff’s request for review, making the decision
of the ALJ the final administrative decision of the Commissioner
(Id.).
An individual under the age of 18 is considered disabled
for SSI purposes “if that individual has a medically determinable
physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in
death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” (doc. 10 citing 42
U.S.C. §1382c(a)(3)(C)(I)). The Social Security Administration has
adopted a three-step analysis for determining whether a child is
disabled

for

purpose

of

SSI

benefits

(Id.

citing

20

C.F.R.

§416.924(a)-(d)). The ALJ determined that Plaintiff satisfied the
first two steps of this test (Id.). However, the ALJ determined
that

Plaintiff

did

not

satisfy

the

third

step,

which

is

to

determine whether the child’s impairments meet or equal any of the
Listing of Impairments in Appendix 1 of 20 C.F.R. pt. 404, subpt.

2

P (doc. 10 citing 20 C.F.R. §416.924(a)-(d)).
In determining whether a child’s impairment meets or
medically equals the Listings, the adjudicator must assess the
child’s

functioning

in

six

domains:

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.

(doc.

10 citing 20 C.F.R.§416.926a(b)(1)(i)-(vi)). To functionally equal
an impairment in the Listings, an impairment must result in
“marked” limitations in two domains or an “extreme” limitation in
one domain (doc. 10 citing 20 C.F.R. § 416.926a(d). In making this
evaluation, the relevant factors are: 1) how well the child
initiates and sustains activities, how much extra help he needs,
and the effects of structure or supportive settings; 2) how the
child functions in school; and 3) how the child is affected by his
medications

or

other

treatment

(doc.

10

citing

20

C.F.R.

§

416.926a(a)(1)-(3).
If the child’s impairment meets or equals the Listings
and the impairment satisfies the Act’s duration requirement, then
the child is considered disabled (doc. 10 citing 20 C.F.R. §
416.924(d)(1).

Both of these requirements must be satisfied for

the child to be considered disabled (doc. 10 citing 20 C.F.R. §
416.924(d)(2).
The ALJ concluded that Plaintiff was not engaged in any

3

substantial

gainful

activity,

and

had

the

following

severe

impairments: Attention Deficit Hyperactivity Disorder; opposition
defiance disorder; rule out conduct disorder; and rule out bipolar
disorder (doc. 10). However, the ALJ determined that Plaintiff did
not have an impairment that meets or is medically or functionally
equal to one of the impairments listed in 20 C.F.R. Part 404 (Id.).
Therefore, the ALJ determined that Plaintiff had not been
disabled, as defined in the Social Security Act, since January 19,
2007 (Id.).
Plaintiff appealed the Commissioner’s decision to this
Court, contending that the ALJ erred by giving more weight to the
opinion of Dr. McKeown, the medical expert who testified at the
hearing, than to Dr. Brewer, Plaintiff’s long-time treating primary
care physician, and Mr. Kroger, the consultative psychological
examiner (doc. 10).

The latter two offered opinion evidence

indicating Plaintiff’s impairments were functionally equivalent to
a listed impairment. However, the ALJ found these opinions to have
little probative value.
testimony

concluding

Instead, the ALJ found Dr. McKeown’s

that

Plaintiff

had

“less

than

marked”

limitations in each of the six functional domains both persuasive
and highly probative (Id.).
The Magistrate Judge determined the ALJ’s non-disability
finding was supported by substantial evidence and recommended that
it be affirmed (doc. 10). Plaintiff filed his Objections (doc. 13)

4

on September 23, 2011, and Defendant filed its Responses (doc. 14)
on October 7, 2011, such that this matter is now ripe for the
Court’s review.
II. Discussion
The Court reviews this matter de novo because Plaintiff
filed

objections

Recommendation.

to

the

Magistrate

Fed. R. Civ. P. 72(b).

Judge’s

Report

and

Rule 72(b) states that

“[t]he district judge to whom the case is assigned shall make a de
novo determination upon the record, or after additional evidence,
of any portion of the magistrate judge’s disposition to which
specific written objection has been made in accordance with this
rule”

(Id.).

The Rule further indicates that “[t]he district

judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions”

(Id.).

The Court’s review of the Commissioner’s determination is
limited by 42 U.S.C. § 405(g), and as such, the Court’s sole
function is to determine whether the record as a whole contains
substantial evidence to support the Commissioner’s decision (doc.
10).

Substantial

evidence

is

“such

relevant

evidence

as

a

reasonable mind might accept as adequate to support a conclusion.”
(Id., citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
A. The Magistrate Judge’s Report and Recommendation (doc. 10)
In her Report and Recommendation, the Magistrate Judge
5

thoroughly reviewed the evidence in the record and concluded that
the ALJ identified sufficient evidence to support his decision
(doc. 10).

The Magistrate Judge then reviewed Plaintiff’s two

arguments on appeal, that 1) the ALJ’s reliance on the opinion of
Dr. McKeown to determine Plaintiff’s conditions does not meet or
equal any listing is contrary to law because he never examined the
Plaintiff, and 2) that the ALJ erred by not crediting the evidence
in favor of a disabled finding from Plaintiff’s treating physician
Dr. Brewer and SSA examining psychologist Mark. D. Kroger, M.S.
(Id.).
The Magistrate Judge determined that this case turns on
the nature of Plaintiff’s oppositional defiant disorder and the
severity of Plaintiff’s functional limitations resulting from the
ODD and ADAD (doc. 10).

The Magistrate Judge noted that Plaintiff

is generally correct that the opinion of a treating physician is
entitled to controlling weight if the opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the] case record” (doc. 10,

quoting Blakely v. Commissioner of

Social Sec., 581 F.3d 399, 406 (6th Cir. 2009)(internal quotations
omitted).

However, the Magistrate Judge found the ALJ thoroughly

explained why he determined that Plaintiff’s functional limitations
were not as marked or extreme as claimed by Dr. Brewer and Mr.
Kroger (doc. 10).

6

The Magistrate Judge cited four reasons why the ALJ
relied on the opinion of the medical expert Dr. McKeown over
Plaintiff’s treating and examining physicians (doc. 10).

First,

the medical expert testified Plaintiff’s ODD diagnosis reflects a
lack of cooperation or a deliberate behavior rather than a lack of
ability to control behavior (Id.).

The medical expert opined that

such a behavioral disorder is not a mental disease or defect, but
is fully controllable with appropriate supervision and treatment
(Id.).

Second, the medical expert testified that Plaintiff’s

behavior was not reflective of a more serious mental problem,
citing the lack of intensive therapeutic intervention that would be
expected if Plaintiff’s functional impairments were as severe as
the treating and examining physicians suggested (Id.).
medical

expert

explained

there

was

insufficient

Third, the
evidence

to

indicate a level of severity for a bipolar disorder diagnosis
(Id.).

Fourth, the medical expert disagreed with the examining

physician’s assessment of “marked” and “extreme” limitations in two
of the functional domains, noting that Plaintiff’s impairments were
not so severe that he is in inpatient treatment or kicked out of
school (Id.).
The Magistrate Judge determined that the ALJ’s adoption
of the medical expert’s opinions and reasoning was based on
evidence that “a reasonable mind might accept as adequate to
support a conclusion” (doc. 10, citing Rogers v. Comm’r of Soc.

7

Sec., 486 F.3d 234, 241 (6th Cir. 2007)(internal quotation marks
and citation omitted)).

The ALJ was faced with conflicting

evidence as to the severity of Plaintiff’s functional limitations
and their cause, and the ALJ was permitted to consider the expert
testimony to assist in understanding and reconciling the medical
evidence of the record (doc. 10, citing Massey v. Comm’r of Soc.
Sec., 409 F. App’x 917, 921 (6th Cir. 2011)(finding ALJ did not err
in failing to give controlling weight to a treating physician where
ALJ relied on a medical expert’s hearing testimony, which cast
doubt on treating physician opinion)).
The Magistrate Judge found that in weighing the medical
opinions, the ALJ was entitled to consider that Dr. McKeown is a
specialist with a doctoral degree in psychology in comparison to
Dr. Brewer, who was a general practitioner, and Mr. Kroger, who had
a master’s degree in psychology (doc. 10, citing Johnson v. Comm’r
of Soc. Sec., 652 F.3d 646, 2011 WL 2652192, at *5 (6th Cir. July
8, 2011)(opinion of a specialist with respect to medical condition
at issue is given more weight than that of a non-specialist)(citing
20 C.F.R. § 404.1527(d)(5)). The Magistrate Judge noted that under
certain

circumstances,

the

opinions

of

non-examining

state

psychological consultants may be given greater weight than the
opinions of treating or examining sources (doc. 10, citing Social
Security Ruling 96-6p, 1996 WL 374180, *3 (July 2, 1996).
In addition, the Magistrate Judge noted that Dr. McKeown

8

was the only expert to review the entire case file (doc. 10, citing
Blakely, 581 F.3d at 409)(ALJ may rely on non-examining source
opinion over treating source opinion when non-examining source
bases the assessment on a review of the complete medical record).
Furthermore, Dr. McKeown based his opinion on his professional
experience with mentally impaired youth, opining that Plaintiff’s
behavior was a deliberate choice and not the product of a mental
disease that could impose the marked and extreme limitations found
by Dr. Brewer and Mr. Kroger (doc. 10). Dr. McKeown noted that
Plaintiff’s treatment was not commensurate with the level of
severity the other doctors indicated.

In contrast, Mr. Kroger

relied heavily on reports from Plaintiff’s guardian (Id.).
In sum, the Magistrate Judge concluded that the ALJ fully
considered the opinions of Dr. Brewer and Mr. Kroger and reasonably
relied on the reasons given by Dr. McKeown for discounting their
opinions (doc. 10).

Accordingly, the Magistrate Judge found the

ALJ’s decision must be affirmed because the inferences reasonably
drawn from the record are supported by substantial evidence (Id.).
B. Plaintiff’s Objections (doc. 13)
Plaintiff argues in his objection that 1) the ALJ had a
preconceived notion about the outcome of Plaintiff’s hearing, 2)
that the Magistrate Judge and ALJ erred in crediting Dr. McKeown’s
testimony as substantial evidence that Plaintiff is not disabled
and 3) that the ALJ erred by failing to provide Plaintiff with an

9

opportunity to cross-examine Dr. McKeown about his qualifications
(doc. 13).
First, Plaintiff contends that the outcome of the hearing
on the basis of Dr. McKeown’s testimony was a foregone conclusion.
(Id.). In support of this contention, Plaintiff cites the ALJ’s
statements that he could have made a decision when Plaintiff
refused to cooperate with Mr. Kroger’s exam and that there was no
voir dire qualification of Dr. McKeown as an expert witness or an
opportunity to challenge his qualifications. (Id.).
Secondly, Plaintiff argues the ALJ improperly credited
Dr. McKeown’s testimony over that of Dr. Brewer and Mr. Kroger.
(Id.). Plaintiff points out that the ALJ and the Magistrate Judge
did not apply the criteria in 20 C.F.R. §§ 404.1527 and 416.927 to
evaluate the opinions of physicians and psychologists.

(Id.).

Plaintiff contends these criteria support the opinions of Dr.
Brewer and Mr. Kroger.

Plaintiff also discounts Mr. Kroger’s

reliance on the 2004 intellectual testing, which the ALJ had
referred

to

as

“out

of

date”

when

ordering

Mr.

Kroger’s

consultative evaluation. (Id.). In addition, Plaintiff questions
Dr. McKewon’s distinction between mental disorders and behavioral
disorders, arguing there is no such distinction in the Listing of
Impairments. (Id.).
Finally,
credentials.

Plaintiff

casts

doubt

on

Dr.

McKeown’s

(Id.). Plaintiff questions the legitimacy of Dr.

10

McKeown’s professional experience as a clinical director of an
adolescent facility and expresses doubt as to whether Dr. McKeown
in fact reviewed the entire record. (Id.).
C. Defendant’s Response (doc. 14)
Defendant Commissioner responds that the Plaintiff had an
opportunity to question Dr. McKeown about his qualifications when
Plaintiff

cross-examined

Dr.

McKeown.

(doc.

14).

Defendant

contends that Plaintiff has not shown the ALJ was unreasonable in
accepting that Dr. McKeown was a legitimate expert. (Id.).
Secondly, Defendant argues that the ALJ was reasonable in
giving the most weight to Dr. McKeown’s opinions. (Id.). Defendant
contends

the

Magistrate

Judge’s

Report

and

Recommendation

thoroughly indicate the ALJ reasonably weighed the medical and
other evidence relating to Plaintiff’s impairments and that the
ALJ’s

findings

are

supported

by

substantial

evidence.

(Id.).

Specifically, Defendant points out that Dr. McKeown reviewed more
evidence than Mr. Kroger, that Mr. Kroger largely relied on
uncorroborated statements by the Plaintiff’s guardian, and that Dr.
Brewer was not a mental health specialist. (Id.). Defendant further
notes that the record did not contain any evidence of treatment
commensurate with the severity of Plaintiff’s behavior as opined by
Dr. Brewer and Mr. Kroger.

(Id.).

D. Analysis
Having reviewed and considered this matter de novo, the
11

Court

finds

the

Magistrate

Judge’s

thorough, well-reasoned, and correct.

Report

and

Recommendation

The Court therefore adopts

and affirms in all respects the opinions expressed in the Report
and Recommendation (doc. 10), and denies Plaintiff’s Objections
(doc. 13).
In spite of Plaintiff’s objections to the Magistrate
Judge’s Report, the Court finds sufficient evidence in the record
to substantiate the ALJ’s findings. 42 U.S.C. § 405(g); Richardson
v. Perales, 402 U.S. 389, 401 (1971). Specifically, the Magistrate
Judge did not err in finding that the ALJ reasonably relied on the
opinion of Dr. McKeown over that of Mr. Kroger and Dr. Brewer.

The

Magistrate Judge also did not err in determining that the ALJ’s
decision was substantially supported by the record.

The Court

agrees with the Magistrate Judge that the ALJ provided good reasons
for discounting the opinions of Dr. Brewer and Mr. Kroger in
conformance with the regulations and Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541 (6th Cir. 2004). The Court notes that the ALJ also
considered the opinions of state agency psychologists who opined
that Plaintiff did not functionally equal any listed impairment
(doc. 10).

In sum, Plaintiff has failed to support his contention

that the ALJ’s decision is not supported by substantial evidence.
Thus, the ALJ’s determination must stand.

(Kinsella v. Schweiker,

708 F.2d 1058, 1059 (6th Cir. 1983)).
As

for

Plaintiff’s

allegation

12

that

the

ALJ

had

a

preconceived notion that he would deny Plaintiff’s claim, the Court
agrees with the Magistrate Judge that the ALJ’s statements do not
support Plaintiff’s contention (doc. 10).

The ALJ’s written

decision reflects that he based his decision on Dr. McKeown’s
testimony and not on his own preconceived notion of Plaintiff’s
behavior (doc. 10).
As

for

Plaintiff’s

contention

that

Dr.

McKeown’s

qualifications were untested, the Court agrees with the Defendant
that

if

Plaintiff

qualifications,

had

Plaintiff

any
had

doubts
an

about

opportunity

Dr.
to

McKeown’s

question

Dr.

McKeown about his qualifications at the hearing (doc. 14).
For these reasons, the Court does not find Plaintiff’s
objections well-taken.

The Court finds the ALJ’s decision to deny

Plaintiff’s application for Supplemental Security Income childhood
disability benefits is supported by substantial evidence in the
record, and thus the Commissioner’s decision is not reversible. 42
U.S.C. § 405(g).
III. Conclusion
The

Court
not

concludes

Plaintiff

was

entitled

childhood

disability

that

to

benefits

the

ALJ’s

Supplemental
was

supported

decision

Security
by

that

Income

substantial

evidence. Accordingly, the Court ADOPTS and AFFIRMS the Magistrate
Judge’s Report and Recommendation (doc. 10) in all respects,
AFFIRMS the decision of the Commissioner, and DISMISSES this case

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from the Court’s docket.
SO ORDERED.
Date: February 14, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States District Senior Judge

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