BOYD N. BOLAND, Magistrate Judge.
This action seeks review of the Commissioner's decision denying the plaintiff's claim for children's supplemental security income benefits under Title XVI of the Social Security Act. The court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 1383(c)(3). The matter has been fully briefed, obviating the need for oral argument. The decision is AFFIRMED.
On April 23, 2012, the plaintiff filed an application for supplemental security income benefits on behalf of her son, N.N.F., a child under age 18, with an alleged disability onset date of August 25, 2007. Social Security Administrative Record [Doc. #11] (the "Record"), pp. 102-111.
N.N.F. was born on November 26, 1996. Record, p. 205. He received routine checkups and treatment for viruses, ear infections, etc., from the Pediatric Associates of Canon City beginning with his three-week check up.
On April 26, 2011, Ardis Martin, M.D., a physician at WCMHC, documented that N.N.F. arrived with his mother for a follow up appointment. N.N.F. was 14 years old at the time. N.N.F. reported that he was doing well; was feeling tired because he had a sleepover with a friend and stayed up all night; was not depressed, anxious, or irritable; was eating and sleeping well; and denied suicidal ideation or self-injurious behavior. His mother noted that his mood had been primarily even; he had minimal mood swings; and he had only brief episodes of depression or hypomania. N.N.F. continued to be social with friends. His mother noted that he was still behind in his social skills, but his brothers were "taking him out more" and there was a decrease in sibling issues. N.N.F. was doing "okay in school, really well in classes he likes—art and science." N.N.F. felt that Ritalin helped him focus. He was taking Ritalin only for school. He was not experiencing any side effects from medications. Dr. Martin documented that N.N.F. had good grooming and hygiene; answered questions and "engaged"; had normal, non-pressured speech; had good eye contact, euthymic affect, and a good mood; had linear but concrete thought process; had fair insight and judgment; was not suffering from delusions or hallucinations; was doing well emotionally and behaviorally; and was maintaining academically. Dr. Martin diagnosed N.N.F. with BPAD II, anxiety, and ADHD (inattentive type). He was assigned a global assessment of functioning (GAF) score of 60-65.
N.N.F. saw Dr. Martin again on June 21, 2011. N.N.F. reported that he was doing well; enjoying the summer; playing a video game called World of Warcraft; and hanging out with his siblings, friends, and girlfriend. He finished school on-line and received good grades—80% overall. He was taking Ritalin when needed at 20 mg. per dose, but would resume the 30 mg. dose when school started. He was eating well and sleeping pretty well. He had episodes of decreased need for sleep a few times a week, but no mood issues or other manic symptoms associated with the episodes. He denied feeling depressed, anxious, or irritable. He did not have any behavioral issues and was getting along better with his siblings. Dr. Martin noted that N.N.F. had good grooming and hygiene; was bright; had a good rapport with his mother; was not defiant, irritable, or anxious; had normal, non-pressured speech; had good eye contact, a good mood, euthymic affect, and a linear but concrete thought process; had fair to good insight and judgment; was not suffering from delusions or hallucinations; and was continuing to do well. He was given the same diagnoses and a GAF score of 60-65. He was continued on his medications and told to follow up in eight weeks.
N.N.F. was seen on September 14, 2011, by Dr. Martin. N.N.F. reported that he was doing well; had a good summer; was eating well; was sleeping well for 9-10 hours a day; denied feeling depressed, anxious, or irritable; and had good attention and school performance with Ritalin. His mother noted that his mood had been stable; his irritability with his siblings had decreased; he had not had any manic episodes; and was doing "pretty well socially." Dr. Martin noted that N.N.F. had good grooming and hygiene; was a little tired; was engaged; had good rapport with his mother; was not defiant, irritable, or anxious; had normal non-pressured speech and good eye contract; had a good mood, euthymic affect, and linear but concrete thought process; was not delusional and had no hallucinations; and had fair to good insight and judgment. He was given the same diagnoses and a GAF score of 60-65. He was continued on his medications and told to follow up in eight to twelve weeks.
Dr. Martin saw the plaintiff again on December 15, 2011. N.N.F. reported that he was doing well; had a good Thanksgiving; was tired because he stayed up late playing video games; did not feel depressed or irritable; had mild anxiety with meeting new people; and felt that Ritalin helped him focus. His mother noted that N.N.F. was able to go to Walmart and walk around on his own; had an even mood overall; over the past two weeks, had been sleeping for two hours a night a couple of times a week then sleeping the next day; had not had mood changes or other manic symptoms; was possibly going through a growth spurt since he had been sleeping more; was eating normally; was getting along pretty well with his brothers; and had average to below average scores in his school work on some subjects, but planned to catch up over the Christmas break. N.N.F.'s mother stated that she agreed Ritalin helped him focus. Dr. Martin discussed watching for episodes of decreased need for sleep as well as other signs of mania. He noted that N.N.F. had good grooming and hygiene; was tired, engaged, and had good rapport with his mother; did not show defiance, irritability, or anxiety; had normal, non-pressured speech; had good eye contact, good mood, and euthymic affect; had linear but concrete thought process; did not have delusions or hallucinations; and had fair to good insight and judgment. N.N.F. was given the same diagnoses and a GAF score of 60-65. He was continued on his medications and told to follow up in eight to twelve weeks.
On March 31, 2012, N.N.F. was seen in the Emergency Room of Memorial Health System by Ellen McCormick because he had a seizure while at the zoo. N.N.F. had never had a seizure prior to this instance. He was awake and alert in the Emergency Room. Dr. McCormick discharged him that day. She stated that Wellbutrin slightly increased the risk of seizures and she suggested that N.N.F. stop taking Wellbutrin until she could talk to the physician that prescribed it. She ordered him to follow up with his primary care provider.
N.N.F. was seen by Dr. Martin on April 11, 2012. N.N.F. reported that he was doing well. His mother noted that since the Wellbutrin was discontinued, N.N.F. had been experiencing a worsening of his sleep and mood; there were 24 hour periods when he did not sleep, then two to ten hours of sleep with return of energy; he was more irritable and aggressive; he was eating okay; and he had been more distractible, especially in elevated states. N.N.F. did not recall having low moods except when he was not getting along with his siblings. He noted occasional suicidal ideation during those encounters, but had no intent or current ideation. Dr. Martin documented that N.N.F. was well groomed; had good hygiene; was easily distracted with mild fidgeting but no defiance or acting out; had fair engagement, normal non-pressured speech, and normal eye contact; had a good mood, euthymic affect, and linear but concrete thought process; did not have delusions or hallucinations; and had fair to good insight and judgment. N.N.F. was given the same diagnoses and a GAF score of 50-55. The Ritalin was continued; the Abilify dose was increased; and N.N.F. was put on a low dose of Trileptal for further mood stabilization. N.N.F. was told to follow up in three weeks.
Subsequently, N.N.F. was seen again at WCMHC.
Subsequently, N.N.F. was seen again at WCMHC.
In August 2012, the State agency psychological and medical consultants, James Wanstrath, Ph.D., and Chrys Synstegard, M.D., opined that N.N.F. had less than marked limitations in (1) acquiring and using information because he did okay in school when on medications; (2) attending and completing tasks because although he had some problems with focus, his medications helped; (3) interacting and relating with others because he had clear speech; (4) caring for himself because he was capable of performing his activities of daily living and does okay when on medications but has problems with self-regulation; and (5) health and physical well-being because although he does not have limitations based on his mental condition, he did have a seizure while on Wellbutrin. The consultants also found that N.N.F. had no limitation in moving about and manipulating objects.
On August 30, 2012, N.N.F. saw Mike Gummow, M.D., at WCMHC for a follow up visit. N.N.F.'s mother reported that N.N.F.'s behavior had been "pretty much the same" and that he had been doing "really well" and seemed to be "pretty level." She reported that she often caught him staying up later than he should. Dr. Gummow documented that N.N.F. was significantly tired; was appropriately groomed and dressed; fell asleep frequently during the appointment; had an euthymic mood with a full affect; had good eye contact when awake; had speech notable for a lack of spontaneity; had no issues with language; had linear and goal-directed thought process; was appropriately oriented; did not have any gross deficits with memory or concentration; had age appropriate insight and judgment; and overall was very pleasant, polite, and cooperative. N.N.F. was given the same diagnoses. His Ritalin was discontinued and replaced with Concerta to provide longer ADHD symptom coverage. Dr. Gummow noted that N.N.F.'s family had been contacted by WCMHC about initiating psychotherapy. Dr. Gummow assigned N.N.F. a GAF score of 59. N.N.F. was told to return to the clinic in two weeks.
N.N.F. saw Dr. Gummow on September 12, 2012. N.N.F. reported that the Concerta was "really good" because he noticed that he was starting to "work a lot more," including homework and chores. His mother reported that he was sharper and had more to say about each subject. She stated that N.N.F. is "very smart" and "it comes out when he's clear." N.N.F. stated that his mood was "really good," and his mother agreed. His mother reported good reports regarding school. However, N.N.F. was only able to work/study for 20 minutes before needing a break. Dr. Gummow documented that N.N.F. yawned often but otherwise appeared alert; was appropriately groomed and dressed; had an euthymic mood with a bright affect; had good eye contact; had speech notable for a lack of spontaneity; had no issues with language; had linear and goal-directed thought process; was appropriately oriented; did not have any gross deficits with memory or concentration; had age appropriate insight and judgment; and overall was very pleasant, polite, and cooperative. Dr. Gummow assigned N.N.F. a GAF score of 62. Dr. Gummow increased the Concerta dosage and told N.N.F. to return to the clinic in two weeks.
On September 25, 2012, N.N.F. saw Dr. Gummow. N.N.F. reported that with his increased dosage of Concerta, he was more "yappy." His mother stated that he was able to talk more coherently about subjects and his grades improved from a D and an F to two Cs. N.N.F. stated that he believed his current dose of Concerta was appropriate, and his mother agreed. His mother reported that N.N.F. was doing tasks better, sometimes without being told, although she had to remind him to use deodorant and brush his teeth. N.N.F. reported that he was trying to eat more healthy foods and that he was walking more and running for exercise. Dr. Gummow documented that N.N.F. was alert; appropriately groomed and dressed; had a euthymic mood with a bright affect; had good eye contact; had speech notable for a lack of spontaneity but language without issues; had linear and goal-directed thought process; was appropriately oriented; had age appropriate insight and judgment; and overall "was very pleasant, polite, and cooperative." His medications and diagnoses remained the same. Dr. Gummow assigned N.N.F. a GAF score of 66. N.N.F. was told to return to the clinic in two months.
N.N.F. saw Dr. Gummow again on November 20, 2012. N.N.F.'s mother stated that he was doing good in school. N.N.F. stated that overall he was functioning "good, good." His mother agreed and stated that he had been "pretty stable." N.N.F. noted that his anxiety was "off and on." His mother stated that he was most anxious during large family gatherings and at Walmart. N.N.F. replied that anxiety at Walmart only occurs "sometimes." N.N.F. had reduced his daily Mountain Dew intake from 64 ounces to 32 ounces. Dr. Gummow documented that N.N.F. was alert and appropriately groomed and dressed; had an euthymic mood with a full affect and frequent appropriate smiles; had good eye contact; had speech notable for a lack of spontaneity but no issues with language; had linear and goal-directed thought process; was appropriately oriented; did not have any gross deficits with his memory or concentration; had age appropriate insight and judgment; and overall,"was his usual very pleasant, polite, and cooperative self." N.N.F.'s diagnoses and medications remained the same. He was encouraged to continue to decrease his caffeine consumption to decrease his anxiety issues. Dr. Gummow assigned N.N.F. a GAF score of 67. He was scheduled to return to the clinic in two months.
On January 22, 2013, N.N.F. saw Dr. Gummow for a follow up visit. When asked about any anxiety issues over the last month, N.N.F. stated "Good, but I don't leave the house much." His mother stated that she thought he was doing "really well." He was going to his friend's house and was going to buy a soda on his own. N.N.F. had recently completed finals and passed two out of three courses. His mother stated that he "barely missed passing the third." N.N.F. had weekly academic counseling sessions via the telephone, attended a one hour class at school per week for each of his classes, and completed the remainder on-line at home. He stated that his mood was good since his last appointment, and his mother agreed. N.N.F. reported sleeping "a lot." Dr. Gummow noted that N.N.F. "continues to consume about 32 oz of Mountain Dew per day." He further noted that N.N.F. was moderately somnolent with frequent yawns; was appropriately groomed and dressed; had euthymic mood with a full affect and frequent appropriate smiles; had good eye contact; had speech notable for a lack of spontaneity but his language was without issues; his psychomotor was notable for mild retardation; had linear and goal-directed thought process; was appropriately oriented; did not have any gross deficits with memory or concentration; had age appropriate insight and judgment; and overall N.N.F. "was his usual very pleasant, polite, and cooperative self." Dr. Gummow assigned N.N.F. a GAF score of 67. N.N.F. was given the same diagnoses; he was encouraged to taper his caffeine consumption "given the continuing anxiety issues reported today"; he was continued on Concerta, Trileptal, and Abilify; and he was told to return in two months.
On May 1, 2013, the plaintiff's attorney sent N.N.F. to a child functional assessment with Ashley Phelps, Ph.D. Dr. Phelps found that N.N.F. evidenced notable anxiety, simplistic speech, and difficulty answering many of the questions asked of him. Dr. Phelps stated that N.N.F. appeared to be socially inhibited; demonstrated difficulty maintaining focus and tracking the conversation; looked about the room frequently; disengaged from the conversation at times; "attempted to answer questions but appeared unable to fully formulate or articulate anything more than a simple response"; and frequently "did not understand the actual intent of the question asked and responded irrelevantly although he appeared to think he was answering the question posed." Dr. Phelps found that N.N.F.'s thought processes were generally coherent but "demonstrated little to no goal direction or elaborative thought process."
Dr. Phelps stated that N.N.F.'s testing had to be conducted over a three day period due to his distractibility, labile mood, and lack of attentiveness. She diagnosed him with bipolar disorder II, ADHD (predominately inattentive type), and anxiety disorder. She assigned him a GAF of 50-55. She found that he had a marked limitation in the ability to maintain attention and concentration for extended periods; a less than marked limitation in the ability to prevent inappropriate degrees of impulsiveness; a less than marked limitation in the ability to prevent inappropriate degrees of hyperactivity; a marked limitation in the ability to maintain age-appropriate cognitive/communicative functions; a less than marked limitation in the ability to maintain age-appropriate social functioning; a marked limitation in the ability to maintain age-appropriate personal functioning; and a marked limitation in the ability to maintain concentration, persistence, and pace. Dr. Phelps further found that N.N.F. had a marked limitation in acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself. She found that he had a less than marked limitation in health and physical well-being and no limitation in moving about and manipulating objects.
N.N.F. and his mother (the plaintiff) both testified at the ALJ hearing on May 14, 2013.
The plaintiff stated that N.N.F. is home schooled and is at an eighth grade level but is in the ninth grade.
N.N.F. goes to his friend's house by himself.
N.N.F. testified that he has problems in school learning new concepts because he gets distracted. He stated that "most things" distract him and that he is distracted all of the time.
N.N.F. testified that he has "a lot of anxiety" whenever he is near people. He gets "really nervous" and his "heart starts to beat" and he has "to walk away."
He plays a world-wide video game called World Warcraft.
Pursuant to 42 U.S.C. § 405(g), a court may render "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." Review of the Commissioner's disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence.
A person under the age of 18 is disabled within the meaning of the Social Security Act if he or she has "a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.906. No individual under the age of 18 will be considered disabled if he or she is engaging in substantial gainful activity.
The Social Security regulations set forth a three-step sequential process to determine whether an individual under the age of 18 is disabled under Title XVI of the Social Security Act. 20 C.F.R. § 416.924. At step one, a child will not be deemed disabled if he or she is working and such work constitutes substantial gainful activity. If the child is not engaging in substantial gainful activity, the analysis proceeds to the second step.
The ALJ found that N.N.F. (1) has not engaged in substantial gainful activity since the application date, April 23, 2012; (2) has the following severe impairments: bipolar affective disorder II, anxiety disorder, ADHD, and personality disorder; (3) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R.Part 404, Subpart. P, Appendix 1; (4) does not have an impairment or combination of impairments that functionally equals the severity of the Listings; and (5) has not been disabled as defined in the Social Security Act since the application date, April 23, 2012.
The plaintiff claims that the ALJ failed to properly (1) consider Listing 112.11; and (2) weigh the opinion evidence. Plaintiff's Opening Brief, pp. 9, 13.
The plaintiff argues that the ALJ erred because she (1) failed to state whether N.N.F. met or equaled Listing 112.11, and (2) failed to weigh Dr. Phelps's opinion regarding N.N.F.'s ADHD which supports a finding that N.N.F. meets the Listing. Plaintiff's Opening Brief, p. 12.
"The listings set out at 20 CFR pt. 404, subpt. P, App. 1 (pt. A) (1989), are descriptions of various physical and mental illnesses and abnormalities, most of which are categorized by the body system they affect. Each impairment is defined in terms of several specific medical signs, symptoms, or laboratory test results."
Listing 112.11 is the listing for ADHD and requires medically documented findings of marked inattention, marked impulsiveness, marked hyperactivity, and other age-appropriate criteria. The ALJ expressly found that N.N.F. does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Record, p. 15. When discussing the listing requirements for Listing 112.06, the ALJ found that N.N.F. did not meet or equal the required criteria of that listing which "requires medically documented findings of marked inattention, marked impulsiveness and marked hyperactivity as well as evidence must establish marked impairment or difficulties in" two age-appropriate criteria.
The plaintiff argues that the ALJ erred because she "did not mention or weigh Dr. Phelps's opinion regarding the child's Attention Deficit Hyperactivity Disorder," and Dr. Phelps's opinion supports a finding that N.N.F. meets Listing 112.11 "because Dr. Phelps stated that N.N.F. was markedly impaired in the ability to maintain attention and concentration for extended periods; the ability to maintain age-appropriate cognitive/communicative functions; the ability to maintain age-appropriate personal functions; and the ability to maintain concentration, persistence, and pace. Plaintiff's Opening Brief, p. 11. The defendant asserts that Dr. Phelps's ADHD opinion demonstrates that N.N.F. does not meet Listing 112.11. Therefore, any failure to specifically address the ADHD opinion is harmless error. Defendant's Opening Brief, pp. 11-12.
Listing 112.11 requires that the claimant demonstrate marked inattention, marked impulsiveness, and marked hyperactivity. 10 C.F.R. Part 404, Subpart P, Appendix 1, § 112.11. Although Dr. Phelps opined that N.N.F. has marked inattention, she also opined that N.N.F. has less than marked impulsiveness and hyperactivity. Record, p. 252. Therefore, her opinion does not support a finding that N.N.F. meets Listing 112.11 for ADHD. Any failure by the ALJ to mention or weigh Dr. Phelps's ADHD opinion is harmless because the opinion is consistent with the ALJ's decision.
In her Reply Brief, the plaintiff concedes that Dr. Phelps's opinion does not support a finding that N.N.F.
The plaintiff argues that the ALJ failed to properly weigh the conflicting opinions of Dr. Phelps and the State agency psychologist. Plaintiff's Opening Brief, p. 13. The plaintiff states that the ALJ erred because she did not "establish that she considered all" six factors set forth in 20 C.F.R. § 416.927(c) when giving "great weight" to the opinion of the State agency psychiatrist and giving "little weight" to Dr. Phelps's opinion.
The ALJ is not required "to apply expressly each of the six relevant factors in deciding what weight to give a medical opinion."
The ALJ provided a detailed summary of the medical evidence from WCMHC. In determining that Dr. Phelps's opinion was entitled to little weight, the ALJ explained:
Record, pp. 19-20.
In finding that the state consultants' opinion was entitled to great weight, the ALJ explained:
Thus, the ALJ provided a sufficiently specific decision that makes clear the weight she gave to Dr. Phelps's opinion and the State agency consultants' opinion and the reasons for that weight. Substantial evidence exists to support the ALJ's decision, notably the medical records from WCMHC which document twelve visits over almost two years. With the exception of the visits following N.N.F.'s seizure and subsequent adjustment of medication, the care providers at WCMHC consistently documented that N.N.F. was able to answer questions; was appropriately oriented; had no issues with language; did not have any gross deficits with memory or concentration; was engaged; had good eye contact, euthymic affect, and a good mood; had linear and goal directed thought process; had age appropriate insight and judgment; was pleasant, polite, and cooperative; was doing well emotionally and behaviorally; was maintaining academically; and had GAF scores above 60. The last documented visit with Dr. Gummow occurred three months before the appointment with Dr. Phelps. Dr. Gummow documented that N.N.F had a GAF score of 67, and his mother stated she thought N.N.F. was doing "really well."
I have reviewed the entire record. The record contains substantial evidence to support the ALJ's decision, and the correct legal standards were applied. I find no error in the ALJ's decision. Accordingly,
IT IS ORDERED that the decision of the Commissioner is AFFIRMED.