VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Diann Ware, on behalf of her minor son J.P., brings this action pursuant to Title XVI of the Social Security Act. She seeks review of a final adverse decision of the Commissioner of the Social Security Administration ("Commissioner"), who denied her application for Supplemental Security Income ("SSI").
J.P. was nine years old at the time of the second administrative hearing before the Administrative Law Judge ("ALJ") and had completed the third grade.
Alice Ware, Ms. Ware's mother, protectively filed a Title XVI application for SSI on behalf of J.P. on August 30, 2007. (Tr. 188). On December 5, 2007, the Commissioner initially denied these claims. (Tr. 101). Ms. Ware then filed a written request for a hearing on January 2, 2008. (Tr. 104-06). An ALJ, Geoffrey S. Casher, held a hearing on April 24, 2009. (Tr. 40). He issued a decision denying Ms. Ware's application on July 8, 2009. (Tr. 91).
On August 17, 2009, Ms. Ware, through her attorney, requested a review of the decision to address additional evidence. (Tr. 132). The Appeals Council remanded the case back to an ALJ on October 26, 2009. (Tr. 92). Another ALJ, Charles A. Thigpen, conducted a hearing on the matter on July 28, 2010. (Tr. 53). On September 17, 2010, he issued an opinion concluding J.P. was not disabled and denying benefits. (Tr. 35). Ms. Ware timely petitioned the Appeal Council to review the decision on October 25, 2010.
On October 22, 2012, Ms. Ware filed a Complaint with this court. (Doc. 1). The Commissioner answered on January 28, 2013. (Doc. 6). Ms. Ware filed a supporting brief (Doc. 8) on March 14, 2013, and the Commissioner responded with her own brief (Doc. 9) on April 15, 2013. With the parties having fully briefed the matter, the court has carefully considered the record and reverses the decision of the Commissioner.
The function of this court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.1988); Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir.1986); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). This court must "scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial
To qualify for SSI benefits an individual under age 18, defined as a child under the Social Security Act, must be disabled as defined by the Social Security Act and the Regulations promulgated thereunder.
In determining whether a child is disabled, the Regulations provide a three-step process. 20 C.F.R. § 416.924(a). The Commissioner must determine in sequence: (1) whether the child is engaged in substantial gainful activity, (2) whether the child has an impairment or combination of impairments that is severe; and (3) whether the child has an impairment that meets, medically equals, or functionally equals the Listing of Impairments. Id.; see also Henry v. Barnhart, 156 Fed.Appx. 171, 173 (11th Cir.2005) (citing 20 C.F.R. § 416.924(a); Wilson v. Apfel, 179 F.3d 1276, 1277 n. 1 (11th Cir.1999)). A medically determinable impairment "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 416.908. Further, the impairment "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a claimant's] statement of symptoms." Id.
Functional equivalence is found if the child's impairment or combination of impairments results "in `marked'
First, the ALJ found that J.P. was a school-age child and had not engaged in substantial gainful activity since August 30, 2007, the application date. (Tr. 18). He then found that J.P. had the following severe impairments: ADHD and headaches. Id. However, he concluded that J.P. did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Next, the ALJ determined that J.P. did not have an impairment or combination of impairments that functionally equaled one of the listed impairments. Id. Thus, the ALJ ultimately determined that J.P. had not been under a disability, as defined in the Social Security Act, since August 30, 2007, through the date of the decision. (Tr. 35).
The court may reverse a finding of the Commissioner if it is not supported by substantial evidence. 42 U.S.C. § 405(g). "This does not relieve the court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial evidence supports each essential administrative finding." Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir.1980)).
The Commissioner may also be reversed if the record shows that she has failed to follow the proper legal framework. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.1997) ("[The court] review[s] the Commissioner's decision to determine if it is supported by substantial evidence and based on proper legal standards.") (emphasis added). Moreover, in contrast to the substantial evidence standard, "[n]o similar presumption of validity attaches to the [Commissioner's] legal conclusions, including determination of the proper standards to be applied in evaluating claims." Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.1987) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).
The court agrees with Ms. Ware's contentions that (1) the Commissioner's decision is not supported by substantial evidence and (2) the ALJ failed to consider whether J.P. met the requirements for Listing 112.05D.
In his decision, the ALJ adopted nonexamining, medical expert Dr. Doug
The ALJ's credibility findings demonstrate the lack of substantial evidence to support the functional domain analysis. Additionally, J.P.'s academic records do not provide substantial evidence to support the ALJ's decision.
After discussing the evidence, the ALJ first gave the testimony of Dr. McKeown "substantial weight." (Tr. 28). Next, the ALJ afforded the opinion of Dr. Donald W. Blanton, the consultative examiner, substantial weight because he was "qualified to offer an opinion regarding the claimant's mental status[,] and his opinion is generally consistent with Dr. McKeown's opinion and the record." (Tr. 29). It is not clear whether the ALJ then gave the state agency consultant's opinion "some" weight or "substantial" weight. Id. ("The undersigned [ALJ] gives some substantial [sic] to the opinion of [the] state agency consultant."). The ALJ justified this decision because the consultant's opinion was "generally consistent with Dr. McKeown's opinion and the record." Id.
Finally, the ALJ determined that the opinions of examining physicians Drs. Melissa F. Jackson and John R. Goff were entitled to little weight. He rejected Dr. Goff's opinion because "[h]is evaluation is not totally consistent with the medical evidence and the opinion of Dr. McKeown." Id. He similarly discredited Dr. Jackson's evaluation because it was "not totally consistent with Dr. McKeown." Id.
"Generally, [the Commissioner] give[s] more weight to the opinion of a source who has examined [the claimant] than to the opinion of a source who has not examined [the claimant]." 20 C.F.R. § 404.1527(c)(1). The Commissioner will also consider other factors, such as supportability and consistency with the record, in determining the weight to give a medical opinion. See 20 C.F.R. § 404.1527(c)(3)-(6). She may then reject a medical opinion if the evidence supports a contrary finding. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.1985). However, "[t]he opinions of nonexamining, reviewing physicians, ... when contrary to those of examining physicians are entitled to little weight in a disability case, and standing alone do not constitute substantial evidence." Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.1988) (quoting Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir.1987)).
First, the court notes the ALJ's outright adoption of Dr. McKeown's functional assessment and specific reference to his testimony in every physician credibility determination. (Tr. 28-29). This strongly suggests that the ALJ erred by relying solely on Dr. McKeown's opinion to discredit the two examining physicians' reports and to make his functional domain findings. See Lamb, 847 F.2d at 703. Regardless, substantial evidence does not support these determinations.
On August 10, 2009, Ms. Prince — J.P.'s school counselor — referred him to
Id. J.P.'s IQ and Total Achievement score were "equal to or better than 1% of his same-aged peers." (Tr. 418, 419). Dr. Jackson diagnosed J.P. with mild mental retardation
In his testimony, Dr. McKeown does not specifically discuss Dr. Jackson's evaluation. He does cite a "school evaluation that was done, apparently in July of 2009 that indicated an IQ of 67." (Tr. 63). Presumably, he is referring to Dr. Jackson's examination at the WAMHC. However, despite Dr. Jackson's mental retardation diagnosis, he testified that "for his long-term treatment at West Alabama Mental Health, the only diagnosis they have for him is ... [ADHD]."
The ALJ also noted other "objective evidence" supported discrediting Dr. Jackson's opinion. (Tr. 29). Specifically, he noted J.P.'s functional abilities, academic performance, and Individualized Educational Program ("IEP") placement established a higher level of adaptability functioning. However, as discussed below, this evidence does not provide substantial evidence to support the ALJ's findings.
On April 22, 2009, Dr. Goff performed a psychological evaluation on J.P. J.P. "obtained a full scale IQ score of 68. That score falls within the mildly retarded
(Tr. 409-10). Dr. Goff diagnosed J.P. with Attention-Deficit Hyperactivity Disorder, moderate to severe expressive language disorder and "[d]eferred" a diagnosis of intellectual disability under Axis II.
Dr. Goff also completed a Broad Functional Limitations form. He opined that J.P. had marked limitations in acquiring and using information, attending and completing tasks, and interacting and relating with others; no limitations in moving about and manipulating objects; less than marked limitations in caring for himself; and no limitations in health and physical well-being. (Tr. 411-12).
Dr. McKeown's testimony does not provide substantial evidence, alone or in combination, to reject Dr. Goff's opinion. Discussing Dr. Goff's opinion, Dr. McKeown testified:
(Tr. 63).
Dr. McKeown misrepresents Dr. Goff's diagnosis. Dr. Goff deferred an Axis II diagnosis because he believed J.P. suffered from a "moderate to severe language disorder." (Tr. 410). Furthermore, Dr. Goff noted that "we do see delays regarding his academic achievement" and that his language problem "was having a negative impact upon his acquisition of basic academic skills." (Tr. 409). Dr. McKeown also does not mention or address the fact that Dr. Goff stated that J.P. had marked limitations in acquiring and using information, attending and completing tasks, and interacting and relating with others. (Tr. 411).
On December 4, 2007, the state agency consultant concluded that J.P. had no limitations in acquiring and using information, less than marked limitations in attending and competing tasks, less than marked limitations in interacting and relating with others, no limitations in moving about and manipulating objects, less than marked limitations in caring for himself, and no limitations in health and physical well-being. (Tr. 372-73).
In evaluating the opinion of a state agency consultant, the ALJ must consider it as "as opinion evidence." 20 C.F.R. § 404.1527(e)(2)(i). Thus, the opinion of a nonexamining state agency medical consultant's opinion is "entitled to little weight." Lamb, 847 F.2d at 703. Furthermore, the consultant determined that J.P. had a lower level of functioning than the ALJ. He determined that J.P. had less than marked limitations in caring for himself (Tr. 373), while the ALJ determined that J.P. had no limitations in caring for himself. (Tr. 34).
The state agency determination was also performed before the bulk of the evidence was introduced in the record. In December 2007, the record did not contain the examining physicians' reports, the teacher evaluations, or Ms. Ware's testimony. It is based on J.P.'s grandmother's function report and his early treatment for ADHD at WAMHC. See (Tr. 372). Thus, this opinion does not provide substantial evidence to support the ALJ's decision.
During the consultative examination with Dr. Blanton, J.P. received a full scale IQ score of 70 with a verbal comprehension score of 69. Dr. Blanton concluded:
(Tr. 487). He diagnosed J.P. with borderline intelligence and ADHD. (Tr. 488).
The court recognizes that this diagnosis conflicts with Dr. Jackson's intellectual disability diagnosis and with Dr. Goff's language disorder diagnosis. Furthermore, it is "the province of the ALJ" to weigh this type of opinion evidence and make credibility determinations. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (citation omitted). However, that is not what the ALJ did. He did not mention Dr. Blanton's diagnosis in his rejection of either Dr. Jackson's or Dr. Goff's opinion. (Tr. 29). In fact, the ALJ did not find borderline intellectual functioning to be a severe impairment
The medical opinions in the record provide conflicting interpretations of J.P.'s impairments and limitations that must be resolved by the Commissioner. However, the opinion evidence does not provide substantial evidence for the adoption of Dr. McKeown's functional domain analysis. Dr. McKeown's review of the opinions of Drs. Jackson and Goff neglected their diagnoses and findings, and Dr. Blanton's opinion does not provide substantial evidence to support the ALJ's determinations.
The Commissioner argues that the ALJ also used "the reports of [J.P.'s] teachers that were consistent with the evidence as a whole ... and the portions of [J.P.'s] Grandmother's report that were consistent with the record" to discredit the physicians' opinions and support his decision. (Def.'s Br. 16). These opinions on J.P.'s functional limitations do not support the ALJ's decision.
On February 17, 2009, Ms. Lee — J.P.'s second grade teacher — opined that J.P. had some slight problems acquiring and using information, obvious problems attending and completing tasks, and a few slight problems in interacting with others. (Tr. 226-27). In May 2009, Ms. Lee completed another questionnaire regarding his limitations. She stated that J.P. suffered from marked limitations in acquiring and using information, attending and completing tasks, and interacting and relating with others. (Tr. 249).
On January 22, 2010, Ms. Mills — J.P.'s third grade teacher — noted that J.P. did not pay attention, follow directions, complete assignments, or participate in class. (Tr. 22, 253-55). She stated that "[h]is functioning level is low without assistance from the Resource Teacher." (Tr. 255). On July 15, 2010, Ms. Prince completed a teacher questionnaire. She stated that J.P.'s behavior was "not age appropriate!" (Tr. 298). She estimated that J.P. had extreme limitations in acquiring and using information and attending and completing tasks. (Tr. 300).
J.P.'s grandmother stated that J.P. could "deliver telephone messages, repeat stories ..., tell jokes or riddles accurately, and talk with family and friends." (Tr. 28). She "reported that the claimant does not have any physical limitations." Id. However, she also noted that J.P. cannot explain why he did something, read and understand simple sentences, write a simple story, tell time, make correct change, tie his shoelaces, take a bath or shower without help, wash his hair, write in longhand, obey safety rules (i.e. looking before crossing the street), and choose his own clothes. (Tr. 211-15).
The ALJ gave "some weight" to Ms. Lee and Ms. Mills but "little weight" to Ms. Prince. (Tr. 29). To discredit these opinions, the ALJ first cited Dr. McKeown. Id. The ALJ also cited J.P.'s grades, his IEP report and unspecified "other objective evidence." Id. The ALJ also found the grandmother's assessment "partially credible" for unspecified reasons. Id.
Even assuming these credibility determinations are supported by substantial
The Commissioner unpersuasively argues that the ALJ used the parts "that were consistent with the record." (Def.'s Br. 16). The ALJ, then, should use that part of the record to support his credibility determinations and functional domain analysis, not the reports he found incredible.
The ALJ also cited J.P.'s academic performance to support his functional domain analysis and credibility findings. Discussing J.P.'s academic progress, the ALJ cited "notable improvements" from "the first to second nine weeks of the 2nd grade." (Tr. 22). He additionally pointed to various weekly evaluations from the third grade demonstrating that J.P. "did not always earn poor grades." (Tr. 23). He noted that Ms. Lee stated that, with help, J.P. could academically perform at the same level as other students and Ms. Mills opined he could do better if he tried. Id. Furthermore, J.P.'s IEP stated that "continued placement in the regular education classroom ... would best suit his needs." (Tr. 23). Dr. McKeown also reported that J.P.'s academic achievement testing "was solid average. He was reading completely on grade level, spelling on grade level, and about three quarters of a year behind on arithmetic." (Tr. 64).
However, the IEP plan also reduced the number of concepts presented at a time, broke assignments into shorter segments, allowed him to re-do any unacceptable work, afforded him extra time to complete his work, and provided thirty minutes of math and reading intervention and another thirty minutes of general instruction daily. (Tr. 283, 286). Many of J.P.'s records indicate that his grades were "with accommodation" or the "teacher's help." (Tr. 296, 277). While the ALJ correctly noted some good grades for J.P., the record also contains numerous poor grades. See (Tr. 274, 275, 276, 277). Further, Ms. Prince reported that J.P. was "not on level with reading and math," had "grades ... below other students in the classroom," and needed the special education teacher to complete his work. (Tr. 298-99).
Like the medical diagnoses, the academic record contains somewhat conflicting evidence as to the degree of J.P.'s functional limitations. However, it does not provide substantial evidence to support a rejection of two examining physicians' opinions, three teacher evaluations, and J.P.'s grandmother's function report in favor of a state agency consultant without access to the majority of the record and a nonexamining physician. Substantial evidence does not support the ALJ's functional domain analysis.
In order to meet Listing 112.05D for intellectual disability, Ms. Ware "must
In determining that J.P. did not meet a Listing, the ALJ did not mention or explain why J.P. did not meet Listing 112.05D. The Eleventh Circuit has stated:
Jamison v. Bowen, 814 F.2d 585, 589 (11th Cir.1987) (citation omitted) (holding that the ALJ did not properly consider the claimant's medical condition as a whole). In an unpublished opinion, the Eleventh Circuit applied this reasoning to the adult intellectual disability Listing:
Sheffield v. Comm'r of Soc. Sec., 513 Fed. Appx. 840, 842-43 (11th Cir.2013).
In the present case, the ALJ did not mention Listing 112.05D, accept or reject J.P.'s multiple IQ tests,
Based upon the court's evaluation of the evidence in the record and the parties'
In accord with the memorandum opinion entered contemporaneously herewith, it is hereby
Should this remand result in the award of benefits, Plaintiffs attorney is hereby granted, pursuant to Rule 54(d)(2)(B), an extension of time in which to file a petition for authorization of attorney's fees under 42 U.S.C. § 406(b), until the
The court expects that, in the usual case, a timely request for authorization to charge a fee will be made to the Commissioner prior to the filing of a motion for attorney's fees under § 406(b) in this court. If Plaintiff's attorney is not entitled to recover a fee for work done at the administrative level, any motion filed with the court should so state.
