CHARLES B. GOODWIN, Magistrate Judge.
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.___").
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.
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.
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. 15-16. 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:
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.
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).
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.
The ALJ found that T.M.B. "has less than marked limitation in attending and completing tasks," and explained his analysis as follows:
R. 20-21.
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 the ALJ's misunderstanding of the source raises questions as to whether the opinion was properly weighed.
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. 358-62. 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.
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 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" limitation in "Attending and Completing Tasks." R. 66.
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 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:
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. 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:
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:
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:
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).
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).
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.
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.
