Peck v. Commissioner of Social Security

Filing 17

ORDER AFFIRMING DECISION OF COMMISSIONER. Signed by Judge James D. Todd on 4/22/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

TENISHA PECK,
For AB, a minor,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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No. 12-1240-T

ORDER AFFIRMING DECISION OF COMMISSIONER

Plaintiff, through her mother, has filed this action to obtain judicial review of
Defendant Commissioner's final decision denying her application for child’s supplemental
security income benefits (“SSI”) under the Social Security Act (“Act”). The application and
the request for reconsideration were denied. Plaintiff then requested a hearing before an
administrative law judge (“ALJ”), which was held on February 15, 2011.
On March 28, 2011, the ALJ issued a decision, finding that Plaintiff was not entitled
to benefits. The appeals council affirmed the ALJ's decision. This decision became the
Commissioner's final decision. Plaintiff has filed this action, requesting reversal of the
Commissioner's decision. For the reasons set forth below, the decision of the Commissioner
is AFFIRMED.

Pursuant to 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final
decision made by the Commissioner after a hearing to which he was a party. “The court shall
have the power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with
or without remanding the cause for a rehearing.” Id. The court's review is limited to
determining whether or not there is substantial evidence to support the Commissioner's
decision, 42 U.S.C. § 405(g); Drummond v. Commissioner, 126 F.3d 837, 840 (6th Cir.
1997), and whether the correct legal standards were applied. Landsaw v. Secretary, 803 F.2d
211, 213 (6th Cir. 1986). When the record contains substantial evidence to support the
Commissioner's decision, the decision must be affirmed. Stanley v. Secretary, 39 F.3d 115,
117 (6th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Substantial
evidence” is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson, 402 U.S. at 401(quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
Plaintiff was born on November 10, 1996. She alleges a disability onset date of
February 1, 2009, due to anxiety and depression. R. 19, 118. She attended regular classes at
school.1 Due to Plaintiff’s young age, she has no work history.

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In the lower grades, Plaintiff earned mostly Cs, with a few Bs. R. 201, 398. She received proficient scores
in standardized testing for math, science, social studies, and reading and language arts in third and fourth grades. R.
198-99, 399. Although her grades declined in fifth grade, R. 200, she received proficient scores in math, social studies,
and reading and language arts. R. 193-96, 397. In sixth grade, she earned mostly Cs and one B, R. 396, and received
proficient scores in reading and language arts, math, science, and social studies. R. 397. In the seventh grade, she was
disciplined several times between October 2009 and January 2010. R. 150, 152-53. In the eighth grade, she earned two
Cs and two Ds for the first semester, R. 388, and was disciplined several times. R. 389-91.

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The Welfare Reform Act amended certain provisions of the Social Security Act
relating to SSI applications by children as follows:
An individual under the age of 18 shall be considered disabled for purposes of
this title 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.
Welfare Reform Act, Title II, Subtitle B, § 211(a)(4) (1996), 42 U.S.C. § 1382c(a)(3)(C)(i).
The Social Security Administration (“SSA”) promulgated final rules implementing this
provision. The rules establish a three step sequential evaluation for determining childhood
disability such that the SSA considers (1) whether the child is working; (2) whether the child
has a medically determinable severe impairment which is expected to result in death, has
lasted or is expected to last for a continuous period of not less than twelve months and, if so,
(3) whether the impairment or combination of impairments meets, medically equals, or
functionally equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (2000) (the “Listings”). 20 C.F.R. § 416.924 (2000). A child will be found
disabled if she has an impairment or combination of impairments which meet, equal, or
functionally equal any impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1, Listing of
Impairments.
Methods that may be used to determine whether an impairment is functionally
equivalent to a listing include consideration of whether the child's impairment effects “broad
areas of development or functioning” set forth in the regulations. 20 C.F.R. §
416.926a(b)(1)-(b)(4) (2000). The SSA will find an impairment functionally equivalent to a
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listing if the child has an extreme limitation in one area of functioning or a marked limitation
in two areas of functioning. 20 C.F.R. § 416.926a(b)(2). For children over three years of age,
the areas of development or functioning (domains) that may be addressed in considering
functional equivalence are: acquiring and using information; attending and completing tasks;
interacting and relating with others; moving and manipulating objects; caring for yourself;
and, health and well-being. 20 C.F.R. § 416.926a. Determination of functional equivalence
to a listing entails determination as to whether a child meets the criteria for “marked”
limitation in any two of the six domains, without comparison to any specific childhood listing.
Id.
When standardized tests are used as a measure of functional abilities, an “extreme
limitation” is a valid score that is three standard deviations or more below the norm for the
test 20 C.F.R. § 416.926a, while a “marked limitation” is a valid score that is two standard
deviations or more below the norm for the test. 20 C.F.R. § 416.926a(c)(3). A marked
limitation is “more than moderate” and “less than extreme.” Marked limitations may arise
when several activities or functions are limited or even when only one is limited, as long as
the degree of limitation interferes seriously with the child’s functioning. Id.
The burden of proof at the listing level of the sequential evaluation is on the plaintiff.
In order for a plaintiff to show that her impairment matches a listing, the impairment must
meet all specified medical criteria. See Zebley v. Sullivan, 493 U.S. 521, 530 (1990). In the
present case, the ALJ determined that Plaintiff has a severe impairment of history of conduct
disorder but does not have an impairment or combination of impairments that meet or
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medically equal one of the listed impairments and Plaintiff does not functionally equal the
listings. The ALJ also found that Plaintiff’s impairments have not caused an “extreme”
limitation in any domain of functioning or a “marked” limitation in any two domains of
functioning. Therefore, Plaintiff was not disabled as defined in the Social Security Act since
March 24, 2009, the date of the application. In reaching his decision, the ALJ considered all
of Plaintiff’s medically determinably impairments, including any that were not found to be
severe in all of the affected domains.
Subjective complaints alone cannot establish disability. The record must include
medical signs and findings showing the existence of a medical impairment that, when
considered with all the other evidence, would lead to a conclusion the claimant is disabled.
See 42 U.S.C. §§ 423(d)(5)(A), 1382(a)(3)(H)(I); 20 C.F.R. § 416.929(a); Buxton v. Halter,
246 F.3d 762, 773 (6th Cir. 2001).
Here, the ALJ properly determined that the mother’s testimony did not establish
disability because it was not consistent with the following evidence: (1) Plaintiff did not
require special education classes and was never retained at any grade level. R. 28, 200, 278,
396. (2) Plaintiff’s verbal, performance, and full-scale IQ scores were 118, 105, and 113. R.
282. (3) Opinions from providers at Pathways Behavioral Health Services stated that
Plaintiff’s strengths included good physical health, good social skills, good verbal skills, and
independence in her activities of daily living skills. R. 218, 268. (4) The mother reported that
Abilify was working well in October 2010, R. 357, and that Plaintiff had no recent problems
at school in November 2010. R. 368. (5) Dr. Paul Brown, a psychologist, observed that
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Plaintiff was mostly polite and well-mannered, did not exhibit any strange or unusual
behavior, had no apparent difficulty comprehending, understanding, or responding to
questions and taking part in the interview, and was limited only mildly in understanding and
remembering instructions and moderately in sustaining concentration and persistence,
interacting with others, and adapting to changes and requirements. R. 23, 240. (6) Dr. Ronald
Lynn, a neurologist, observed that Plaintiff had normal speech, followed instructions, had no
alteration of consciousness, and was only “perhaps a bit” distractable. R. 275. (7) Dr. Robert
Kennon opined that Plaintiff was dissimulating and assigned her a GAF score of 90. R. 280.2
The ALJ also considered that Plaintiff’s mother was not a disinterested third party in finding
that her testimony was not credible.
Plaintiff argues that the ALJ should have considered follow-up testing from Memphis
Neurology. This evidence includes intelligence testing and a Connors’ Assessment of ADHD.
R. 282-99. The ALJ cited this exhibit (11F) when considering Plaintiff’s varying diagnoses.
The ALJ explained that he declined to accept the diagnoses Plaintiff received after this testing
because Plaintiff had received varying diagnoses, R. 249, 276, 280, 315, and treatment notes
showed that she was making progress. Plaintiff has not explained how this testing undermines
the ALJ’s decision. R. 284-99.

2

The GAF is a 100–point scale divided into ten numerical ranges, which permits clinicians to assign a single
ranged score to a person's psychological, social, and occupational functioning. See American Psychiatric Ass'n,
Diagnostic and Statistical Manual of Mental Disorders 32, 34 (Text Revision 4th ed.2000). GAF scores are situated
along the following “hypothetical continuum of mental health [and] illness”: 81–90: “Absent or minimal symptoms (e.g.,
mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially
effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with
family members).”

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Plaintiff complains of the weighing of the medical evidence. The ALJ gave great
weight to the opinions of Dr. Larry Welch, a psychologist, and Dr. Brad Williams, a
psychiatrist that Plaintiff’s impairments were not disabling. He gave less weight to the
opinions of Dr. David Pickering, a psychologist, and Rodger Chinery, a licensed professional
counselor (“LPC”), that Plaintiff’s impairments caused marked limitations in several domains.
The ALJ rejected the diagnoses of Dr. Ronald Lynn, neurologist.
The weight afforded a physician's opinion on the issue(s) of the nature and severity of
a claimant's impairments depends upon the examining relationship or treating relationship the
physician may have had with the claimant, the evidence the physician presents to support her
opinion, how consistent the physician's opinion is with the record as a whole, the physician's
specialty, and other factors. See 20 C.F.R. § 416.927(d). Generally, a treating physician's
opinion is entitled to more weight, and an ALJ must give good reasons for rejecting a treating
physician's opinion. See 20 C.F.R. § 416.927(d)(2); Wilson v. Commissioner, 378 F.3d 541,
544 (6th Cir. 2004). However, the Commissioner “is not bound by the treating physician's
opinions, and that such opinions receive great weight only if they are supported by sufficient
clinical findings and are consistent with the evidence.” Bogle v. Sullivan, 998 F.2d 342,
347-48 (6th Cir. 1993).
Dr. Welch reviewed the evidence and determined that Plaintiff did not have an
impairment that met, medically equaled, or functionally equaled a listed impairment. R.
252-57. Dr. Welch opined that Plaintiff’s impairments caused less than marked limitations in
the domain of acquiring and using information, attending and completing tasks, interacting
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and relating with others, moving about and manipulating objects, and caring for yourself, and
no limitations in the domain of health and physical wellbeing. R. 254-55. As noted by Dr.
Welch, Plaintiff attended school in regular classes and did not have special education services.
R. 257. Dr. Welch concluded that Plaintiff’s mental impairments caused only moderate
limitations at most. R. 257.3
Dr. Williams also reviewed the evidence and determined that Plaintiff did not have an
impairment that met, medically equaled, or functionally equaled a listed impairment. R.
300-05. Dr. Williams opined that Plaintiff’s impairments caused less than marked limitations
in the domain of acquiring and using information, attending and completing tasks, interacting
and relating with others, moving about and manipulating objects, and caring for yourself, and
no limitations in the domain of health and physical wellbeing. R. 302-05. Dr. Williams
pointed out that Dr. Kennon’s consultative examination revealed evidence of malingering and
opined that Plaintiff apparently had been coached to present herself as less capable. R. 300.4
Because Dr. Welch and Dr. Williams explained and supported their opinions, the ALJ
could properly give them great weight. See 20 C.F.R. § 416.927(c)(3) (permitting ALJ to
weigh opinion based on how much its source explains or supports the opinion).

3

Dr. Welch also relied on the opinion of Dr. Paul Brown that Plaintiff’s limitations were moderate or mild
and his GAF score suggesting only moderate symptoms or difficulties. R. 249, 257.
4

Dr. Kennon examined Plaintiff in November 2009. R. 277. Dr. Kennon stated that Plaintiff’s presentation
showed “marked evidence of dissimulation.” R. 278. Dr. Kennon considered the mother’s reports that Plaintiff urinated
and defecated on herself “on a daily basis” and was “concerned whether these issues are actually occurring.” R. 278. He
concluded that Plaintiff’s presentation was “[q]uite obviously . . . suggestive of dissimulation.” R. 280.

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Substantial evidence supports the ALJ’s decision to give less weight to the opinions
of Dr. Pickering and Mr. Chinery concerning whether Plaintiff’s impairments caused marked
limitations in acquiring and using information.. Dr. Pickering, a psychologist, examined
Plaintiff and opined that she had marked impairments in acquiring and using information,
attending and completing tasks, and interacting and relating with others, moderate limitations
in caring for herself, and no or slight limitations in the remaining domains. R. 404. Mr.
Chinery opined that Plaintiff had “none to slight” limitations in acquiring and using
information and “marked” limitations only in attending and completing tasks and interacting
and relating with others. R. 380. The ALJ declined to accept these opinions because they were
unsupported by the medical evidence and inconsistent with the record. See 20 C.F.R. §
416.927(c)(4).5 Furthermore, Plaintiff did not require special education classes and had never
been retained at any grade level. R. 28, 278.
Substantial evidence also supports the ALJ’s decision that Plaintiff’s impairments
caused less than marked limitations in interacting and relating to others. The mother reported
that Plaintiff had no problems with recreational activities and played outside on the
trampoline, hung out with friends, and talked on the phone. R. 211. In September 2009,
Plaintiff reported she attended a church picnic and spoke with “a bunch of people” and that
her medications were fine. R. 325.

5

The ALJ also considered that Mr. Chinery is not an acceptable medical source. Acceptable medical sources
are physicians and (when evaluating impairments related to their specialty) psychologists, optometrists, podiatrists, and
speech-language pathologists. 20 C.F.R. § 404.1513(a)(1)-(5). See Pendleton v. Astrue, 2012 WL 1571296, at *6 (E.D.
Ky. May 3, 2012) (ALJ properly rejected nurse’s opinion that Plaintiff was disabled and noting a nurse “is not an
acceptable medical source”).

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Additionally, Stephanie Williams and Shaun Pilkington of Pathways determined that
Plaintiff had good physical health, good social skills, good verbal skills, and was independent
in her activities of daily living skills. R. 218, 268. And, Dr. Brown observed that Plaintiff was
mostly polite and well-mannered and did not exhibit any strange or unusual behavior. R. 23,
240. Her personal appearance was appropriate, neat, and well groomed, presentation was
cooperative and appropriate, affect and mood were appropriate, voice level and tone were
appropriate, and speech articulation was appropriate. R. 24, 244. Dr. Brown opined that she
was limited only moderately in interacting with others. R. 23, 240.
Substantial evidence also supports the ALJ’s decision that Plaintiff’s impairments
caused less than marked limitations in attending and completing tasks. Dr. Lynn observed that
Plaintiff’s speech seemed normal and that she followed instructions. R. 275. Plaintiff was “a
bit” distractable, but Dr. Lynn did not note any alteration of consciousness. R. 275. Plaintiff’s
presentation was alert, concentration was focused and adequate, attention and focus appeared
adequate, motivation appeared adequate, reasoning ability appeared intact, fund of general
information appeared slightly below average, and judgment and insight appeared good. R. 24,
244. He also opined that she was limited only moderately in sustaining concentration and
persistence. R. 23, 240.
Dr. Lynn, a neurologist, diagnosed Plaintiff with possible attention-deficit
hyperactivity disorder (“ADHD”), impulse control disorder, behavior problems, probable
depression, and headaches. R. 276. The ALJ declined to accept these diagnoses because
Plaintiff had received varying diagnoses, R. 249, 276, 280, 315, and treatment notes showed
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that Plaintiff’s mental status was generally intact. R. 23. See 20 C.F.R. § 416.927(c)(4)
(permitting ALJ to weigh opinion based on its consistency with the other evidence).
The ALJ also found that Plaintiff’s treatment notes did not support Dr. Lynn’s
diagnoses. Ms. Williams repeatedly observed that Plaintiff’s insight was fair, intellect was
average, and thought process was organized. R. 216. She also described Plaintiff’s thought
content as appropriate in March, February, June, and August 2009. R. 264. Similarly, Mr.
Pilkington observed that Plaintiff was attentive, talkative, and respectful in July 2009,
talkative and respectful despite not feeling well in August 2009, R. 265-66, and talkative and
respectful in October, R. 331-32, and November 2009. R. 333, 338. This evidence showing
that Plaintiff was “making progress and had a responsive participation level” supports the
ALJ’s decision not to accept the diagnoses suggested by Dr. Lynn.
Because substantial evidence supports the ALJ’s decision that Plaintiff is not entitled
to benefits, the decision of the Commissioner is AFFIRMED, and the clerk is DIRECTED to
enter judgment.
IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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