Batise v. Commissioner of Social Security

Filing 22

OPINION AND ORDER. The decision of the Commissioner is reversed and the case remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Magistrate Judge Charles B Goodwin on 09/08/2017. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DIETRA BATISE, o/b/o T.M.B (minor), )
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the
)
Social Security Administration,
)
)
Defendant.
)

Case No. CIV-16-904-CG

OPINION AND ORDER
Plaintiff Dietra Batise brings this action on behalf of her minor son, T.M.B.,
pursuant to 42 U.S.C. § 405(g). Plaintiff seeks judicial review of the final decision of the
Commissioner of the Social Security Administration denying Plaintiff’s application, based
on T.M.B.’s alleged disability, for supplemental security income (“SSI”) benefits under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The parties have consented
to the jurisdiction of a United States Magistrate Judge. Doc. No. 13. The Commissioner
has answered and filed the administrative record (Doc. No. 11, hereinafter “R.__”). 1 The
parties have briefed their positions and the case is now ready for decision. For the reasons
set forth below, the Court reverses the Commissioner’s decision and remands for further
proceedings.

1

With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.

PROCEDURAL HISTORY
T.M.B. was born on December 30, 2005. R. 155. Plaintiff protectively filed an
application for SSI on September 21, 2012, which was ultimately alleged to be the
disability onset date. R. 34, 136-41, 155-64. Following denial of the application initially
and on reconsideration, an Administrative Law Judge (“ALJ”) held a hearing. R. 30-60,
61-85, 90-93. The ALJ issued an unfavorable decision on January 30, 2015. R. 12-25.
The SSA Appeals Council denied Plaintiff’s request for review, making the ALJ’s
unfavorable decision the final decision of the Commissioner. R. 4-6; see also 20 C.F.R. §
416.1481. Plaintiff then filed this action for judicial review.
THE ADMINISTRATIVE DECISION
As relevant here, “[a]n individual under the age of 18 shall be considered disabled
. . . 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.” 42 U.S.C. § 1382c(a)(3)(C)(i). The Commissioner uses a three-step sequential
evaluation process to determine a minor child’s entitlement to disability benefits. See 20
C.F.R. § 416.924(a). At step one, the ALJ found that T.M.B. had not engaged in substantial
gainful activity since the date the application was filed. R. 15. At step two, the ALJ found
that T.M.B. has the severe impairments of dysfunction of Eustachian tube with left-ear
hearing loss; speech and language impairment; and borderline intellectual functioning. R.
15.

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At step three, the ALJ found that T.M.B. did not have an impairment or combination
of impairments that met or medically equaled any of the presumptively disabling
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). R. 1516. The ALJ then considered T.M.B.’s ability to function in the six domains set forth in
the regulations. R. at 16-24; see 20 C.F.R. §§ 416.924(d), .926a. Specifically, the ALJ
assessed T.M.B.’s functioning as follows:
Acquiring and Using Information:

Marked limitation

Attending and Completing Tasks:

Less than marked limitation

Interacting/Relating with Others:

Less than marked limitation

Moving About/Manipulating Objects:

No limitation

Caring for Yourself:

No limitation

Health and Physical Well-Being:

No limitation

R. 19-24. Because a finding that a child’s limitations functionally equal the Listings
requires a marked limitation in two or more domains, or an extreme limitation in one
domain, the ALJ determined that T.M.B. did not have an impairment or combination of
impairments that functionally equaled any of the Listings. R. 24; see 20 C.F.R. §
416.926a(a).
Based on his step-three finding, the ALJ concluded that T.M.B. had not been under
a disability, as defined in the Social Security Act, since September 21, 2012. R. 24.
Accordingly, Plaintiff’s application for SSI was denied. R. 25.

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STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole and
whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th
Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th
Cir. 2003) (internal quotation marks omitted). “A decision is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla
of evidence supporting it.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)
(internal quotation marks omitted). The court “meticulously examine[s] the record as a
whole,” including any evidence “that may undercut or detract from the ALJ’s findings,”
“to determine if the substantiality test has been met.” Wall, 561 F.3d at 1052 (internal
quotation marks omitted). While a reviewing court considers whether the Commissioner
followed the applicable rules of law in weighing particular types of evidence in disability
cases, the court does not reweigh the evidence or substitute its own judgment for that of
the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ISSUE ON APPEAL
Plaintiff contends that the ALJ’s step-three finding that T.M.B. has less than marked
limitation in the domain of Attending and Completing Tasks is not supported by substantial
evidence. Pl.’s Br. (Doc. No. 15) at 14-18.

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ANALYSIS
The ALJ found that T.M.B. “has less than marked limitation in attending and
completing tasks,” and explained his analysis as follows:
As to the claimant’s degree of limitation in this domain, the undersigned
concurs with and adopts the findings and opinions of Dr. LaCroix, Dr.
Hartley, Dr. Smith, and Dr. Holloway, as set forth in the record, as per their
rationale therein set forth (Exhibits 2A; 4A). In November 2012, his teacher
opined he was average at following oral instructions; however, in September
2013, Dr. Coyle noted the claimant had poor attention and concentration
(Exhibits 6E; 8F).
R. 20-21.
1. Report of average ability to follow instructions
The ALJ cites the opinion of T.M.B.’s teacher that T.M.B. “was average at
following oral instructions.” R. 21. Certainly, task-related functioning (such as following
instructions) at an average level would counterindicate a marked limitation. The ALJ was
incorrect in his description of the evidence, however. It was not T.M.B.’s teacher who
opined that T.M.B.’s ability to follow oral instructions was average—as discussed below,
the teacher reported that T.M.B. had substantial difficulty in maintaining attention and
completing tasks.

See R. 176-83.

Rather, the statement regarding following oral

instructions was made by a speech pathologist who had examined T.M.B. See R. 174-75
(reflecting that an evaluation was done on September 12, 2012; twice-weekly treatment
began October 4, 2012; and the form was completed on November 1, 2012). That opinion
provides some support for the ALJ’s determination of a less than marked limitation, but

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the ALJ’s misunderstanding of the source raises questions as to whether the opinion was
properly weighed.

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2. Opinion of Examining Psychologist Dr. Coyle
The ALJ also states in his explanation, “”[I]n September 2013, Dr. Coyle noted the
claimant had poor attention and concentration.” R. 21.

The record shows that on

September 18, 2013, Edward Coyle, PhD, conducted a psychological examination of
T.M.B. at the request of T.M.B.’s pediatrician. R. 358. Dr. Coyle observed that T.M.B.’s
attention span was brief and he appeared to lose interest in most activities quickly. R. 35862. Dr. Coyle opined that T.M.B., due to global cognitive delays causing poor attention
and concentration ability, would likely have problems completing many of the tasks
children his age could handle easily. R. 360-61.
These observations and opinions indicate that T.M.B. was substantially limited in
his ability to attend to and complete tasks. To the extent that the ALJ found that Dr. Coyle’s
remarks support a determination of a less than marked limitation in that domain, the ALJ
did not adequately explain the basis for such a finding.
3. Opinions of the Reviewing Consultants
The ALJ’s finding of a less than marked limitation in the domain of attending to and
completing tasks is primarily supported by the ratings given by two sets of reviewing
consultants. In December 2012 and February 2013, Zane LaCroix, LSP (Speech-Language
2

Defendant states that the speech pathologist also opined that T.M.B. “had a ‘superior’
ability to comprehend classroom discussions.” Def.’s Br. (Doc. No. 21) at 3, 8 (citing R.
175). This is incorrect; the speech pathologist marked that she had “not observed”
T.M.B.’s ability to comprehend classroom discussion. See R. 175.
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Pathology), and Deborah Hartley, PhD (Psychology), completed a “Disability Evaluation.”
R. 66-67. In that document, Dr. Hartley rated T.M.B. as having a “Less Than Marked”
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limitation in “Attending and Completing Tasks.” R. 66. In April and May 2013, Alvin
Smith, PhD (Speech-Language Pathology), Joan Holloway, PhD (Psychology), and Dr.
Sen, DO (Pediatrics), completed a “Disability Evaluation” upon reconsideration of
Plaintiff’s application. R. 76-78. In that document, Dr. Holloway rated T.M.B. as having
a “Less Than Marked” limitation in “Attending and Completing Tasks.” R. 77.

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These ratings by the reviewing consultants facially support the ALJ’s finding.
Plaintiff asserts, however, that the consultants’ ratings are themselves inconsistent with the
medical evidence.
Neither Dr. Hartley nor Dr. Holloway (or the other listed reviewing consultants)
examined T.M.B. in person. Therefore, the ALJ could credit their opinions “only insofar
as they are supported by evidence in the case record.” SSR 96-6p, 1996 WL 374180, at *2
(July 2, 1996) (“The regulations provide progressively more rigorous tests for weighing
opinions as the ties between the source of the opinion and the [claimant] become weaker”);
see also Lee v. Barnhart, 117 F. App’x 674, 678 (10th Cir. 2004) (“It follows that if the

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In the “Evaluation” section for the “Attending and Completing Tasks” category, there is
no entry for Speech-Language Pathology, indicating that Mr. LaCroix did not participate
in the evaluation for this domain. R. 66. There is an entry for Psychology, indicating that
Dr. Hartley determined the rating. See id.
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In the “Evaluation” section for the “Attending and Completing Tasks” category, there are
no entries for Speech-Language Pathology or Pediatrics, indicating that Dr. Smith and Dr.
Sen did not participate in the evaluation for this domain. R. 77. There is an entry for
Psychology, indicating that Dr. Holloway determined the rating. See id.
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ALJ relies heavily on [opinions of agency medical consultants] . . . the opinions must
themselves find adequate support in the medical evidence.”). The weight the ALJ may
place on the opinions of nonexamining sources “depend[s] on the degree to which [these
sources] provide supporting explanations for their medical opinions” and “the degree to
which these medical opinions consider all of the pertinent evidence in [the record],
including medical opinions of treating and other examining sources.”

20 C.F.R. §

416.927(c)(3); accord SSR 96-6p, 1996 WL 374180, at *2.
In explaining their evaluations, Dr. Hartley and/or Dr. Holloway cited the following
evidence:
 a questionnaire completed by T.M.B.’s teacher, indicating that T.M.B. “does
not think for himself,” “copies others[’] work,” and “gets side-tracked easily”
(R. 66, 77; see also R. 153, 171, 178); and
 the report of an examining consultant, indicating that T.M.B. “is able to
perform[] most age-appropriate grooming and dressing tasks,” “has
functional limitations in his learning abilities but his motor functioning
appears normal,” and has a working memory score of 71 (R. 66, 77; see
also R. 276, 277, 278).
Some of the cited observations—including that that T.M.B. “is able to perform[]
most age-appropriate grooming and dressing tasks” and “his motor functioning appears
normal”—more reasonably relate to T.M.B.’s functioning in the domains of “Moving
About and Manipulation of Objects” and “Caring for Yourself.” R. 67, 78. In those
domains, the reviewing consultants assessed T.M.B. as having “No Limitation.” See id.
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These observations do not reasonably appear to be relevant to T.M.B.’s ability to attend
and complete tasks, however, and Dr. Hartley and Dr. Holloway did not explain how this
evidence supports a rating of less than marked limitation in that domain. Id.
On the other hand, the cited observations that are clearly relevant to the domain of
attending to and completing tasks—specifically, that T.M.B. “does not think for himself,”
“copies others[’] work,” “gets side-tracked easily,” “has functional limitations in his
learning abilities,” and has a poor working memory—indicate a substantial limitation in
T.M.B.’s ability in that domain. Dr. Hartley and Dr. Holloway did not explain how this
evidence supports a rating of less than marked limitation in that domain. See R. 66, 77; cf.
20 C.F.R. § 416.926a(e)(2)(i) (prescribing that a “marked” limitation will be found in a
domain “when your impairment(s) interferes seriously with your ability to independently
initiate, sustain, or complete activities”).
Moreover, Dr. Hartley’s and Dr. Holloway’s rating of less than marked limitation
in attending to and completing tasks is contradicted by other evidence in the record,
including:
 the report from T.M.B.’s teacher, indicating that T.M.B. has difficulty
focusing, completing work without careless mistakes, and working without
distracting himself or others (R. 178);
 two function reports completed by T.M.B.’s mother, in which she identified
limitations in T.M.B.’s ability to pay attention and stick with tasks (R. 153,
171);

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 the report of examining psychologist Dr. Coyle, who as described above
determined that T.M.B.’s global cognitive delays resulted in poor attention
and concentration ability (R. 360-61).
Of particular relevance here is the ALJ’s consideration of the questionnaire
completed by T.M.B.’s teacher. As summarized by the ALJ, the teacher reported:
[T]he claimant had a very serious problem with understanding school and
content vocabulary, reading and comprehending written material,
understanding and participating in class discussions, providing organized
oral explanations and adequate descriptions, and applying problem solving
skills in class discussions. It was also reported the claimant had an obvious
problem with focusing long enough to finish an assigned activity or task,
carrying out multi-step instructions, completing work accurately without
careless mistakes, working without distracting himself or others, relating
experiences and telling stories, using language appropriate to the situation
and listener, introducing and maintaining relevant and appropriate topics of
conversation, and using adequate vocabulary and grammar. It was also
reported he had an obvious problem with knowing when to ask for help,
appropriately asserting emotional needs, and using appropriate coping skills;
however, he had no problem with moving about and manipulating objects.
Moreover, it was reported the claimant had speech problems and was slow
in cognition.
R. 18-19 (citation omitted); see also R. 176-83. The ALJ gave “little weight” to the
teacher’s opinion because “it is not signed or dated.” R. 19.
Social Security Ruling 06-3p provides guidance on consideration of opinions from
nonmedical sources, including teachers. SSR 06-3p, 2006 WL 2329939, at *1, 2, 5-6 (Aug.
9, 2006). In weighing such opinions, the ALJ is to consider factors including:
 How long the source has known and how frequently the source has seen the
individual;
 How consistent the opinion is with other evidence;

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 The degree to which the source presents relevant evidence to support an opinion;
 How well the source explains the opinion;
 Whether the source has a specialty or area of expertise related to the individual's
impairment(s); and
 Any other factors that tend to support or refute the opinion.
Id. at *4-5. “Not every factor for weighing opinion evidence will apply in every case.” Id.
at *5. An ALJ is not required to expressly discuss the factors in his decision; rather, the
“ALJ’s decision is sufficient if it permits [the Court] to ‘follow the adjudicator’s
reasoning.’” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012) (quoting SSR
06-3p, 2006 WL 2329939, at *6).
Here, the ALJ did not consider any of these factors when discounting the teacher’s
opinion but relied solely upon the fact that the questionnaire was not signed or dated. R.
19. SSA procedures, however, specify that although a name is necessary, a signature is not
required on a teacher questionnaire. See SSA’s Program Operations Manual System
(“POMS”) DI 25205.030(C)(3) (Aug. 9, 2012).

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Thus, the ALJ’s assignment of little

Even if a signature were required, the SSA—which appears to have requested and
obtained the teacher questionnaire directly from T.M.B.’s teacher—would have had a
responsibility to recognize that the questionnaire was incomplete and contact the source to
complete it. See SSA’s Hearings, Appeals and Litigation Law Manual (“HALLEX”) I-25-62, 1994 WL 637389, *1 (Sept. 28, 2005) (discussing evidence from nonmedical sources
and stating that “[t]he ALJ . . . must review all of the evidence in the record before the
hearing to determine whether it is sufficient for a full and fair inquiry into the matters at
issue” and further stating that SSA staff “must undertake appropriate development” if the
review indicates that additional evidence is needed); HALLEX I-2-5-28(C) (Aug. 29,
2014) (discussing when evidence requested by the SSA is incomplete and stating that SSA
staff “will contact the source again to determine if additional evidence is available”).
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weight to the opinions in the teacher questionnaire is legally flawed in that it relies on an
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irrelevant issue and does not reflect proper consideration of the required factors.

The rationale provided for Dr. Hartley’s and Dr. Holloway’s opinions that T.M.B.’s
limitation in attending to and completing tasks is less than marked does not “find adequate
support in the medical evidence.” See Lee, 117 F. App’x at 678. Such opinion is not
squarely supported by the information those doctors cite and is inconsistent with other
evidence that neither they nor the ALJ distinguishes. As such, the opinions themselves are
lacking and do not provide substantial evidence for the ALJ’s determination regarding
T.M.B.’s ability to attend and complete tasks. See McGoffin v. Barnhart, 288 F.3d 1248,
1253-54 (10th Cir. 2002) (finding that consulting physician’s opinion that was not
supported by the record as a whole did not provide substantial evidence for the ALJ’s
decision).

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Moreover, the ALJ’s finding is otherwise not supported by substantial evidence. The
questionnaire states that the person who completed it was T.M.B.’s teacher for reading,
language arts, social studies, science, math, and art, and taught T.M.B. from 7:45 to 10:20,
11:10 to 12:25, and 1:15 to 2:45 each school day. See R. 176. The questionnaire further
reflects that at the time it was completed, the teacher had been teaching T.M.B. for at least
9 weeks. See R. 183 (teacher referencing “this past 9 weeks of school”); 18 (ALJ noting
that the teacher questionnaire was completed on November 13, 2012), 176 (teacher stating
that she had known T.M.B. “since August 19, 2012”). And, in addition to marking ratings,
the teacher provided explanations for the ratings. See e.g., R. 178. The ALJ’s stated reason
for discounting the teacher’s opinion demonstrates a lack of substantial evidence for that
aspect of his determination. See Martinez v. Astrue, 422 F. App’x 719, 726 (10th Cir.
2011) (“To be sure, the ALJ’s failure to mention [the relevant ruling or factors] is not
necessarily fatal; what is fatal however, is that the evidence cited by the ALJ in giving [the
counselor’s] opinion ‘little weight’ reveals that he did not have the relevant factors in mind,
and more to the point, his findings are not supported by substantial evidence.” (citation
omitted)).
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4. Conclusion
In sum, the ALJ articulated three reasons for his determination that T.M.B. has less
than marked limitation in attending and completing tasks. Each of those three reasons,
however, was faulty. Accordingly, substantial evidence does not support the ALJ’s stepthree finding that T.M.B. has less than marked limitation in the domain of Attending and
Completing Tasks.
CONCLUSION
Based on the foregoing analysis, the decision of the Commissioner is reversed and
the case remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
Judgment will issue accordingly.
ENTERED this 8th day of September, 2017.

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