DAVID A. BAKER, Magistrate Judge.
On behalf of N.N.S., Plaintiff brings this action pursuant to the Social Security Act (the Act), as amended, Title 42 United States Code Section 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (the Commissioner) denying the claim for Supplemental Security Income (SSI) under the Act.
The record has been reviewed, including a transcript of the proceedings before the Administrative Law Judge (ALJ), the exhibits filed and the administrative record, and the pleadings and memoranda submitted by the parties in this case. Oral argument has not been requested.
For the reasons that follow, it is
On August 5, 2011, an application for childhood Supplemental Security Income (SSI) was filed for the minor child, N.N.S. (the "Child") by her mother (Plaintiff), alleging that the Child was disabled since January 1, 2008 due to attention deficit hyperactivity disorder ("ADHD"). R. 21, 150, 172. Plaintiff's claim was denied initially and upon reconsideration. R. 99, 109. Plaintiff timely requested a hearing before Administrative Law Judge Ken B. Terry (hereinafter referred to as "ALJ") which was held on May 10, 2013. R. 46-75. In a decision issued January 3, 2012, the ALJ found the Child not disabled as defined under the Act. R. 21-38. Plaintiff filed a Request for Review of Hearing Decision/Order, which the Appeals Council denied on February 5, 2014. R. 5-9. Plaintiff filed this action for judicial review on April 25, 2015. Doc. 1.
The Child was born on November 28, 2006. R. 150. The Child's medical history is set forth in detail in the ALJ's decision. By way of summary, the Child was treated for seizures, attention deficit disorder, and speech impairment. R. 232-33, 286. The Child was a preschooler (4 years old) on the application date and a school-aged child at the time of the ALJ's decision. R. 124, 150.
After reviewing the Child's medical records and the testimony of the Child and her mother (Plaintiff), the ALJ found that the Child was a school-age child at the time of the decision and had never engaged in substantial gainful activity. R. 24. The Child suffered from ADHD, expressive language disorder and a history of seizure disorder, "severe" medically determinable impairments, but not impairments severe enough to meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. R. 24. The ALJ found that the evidence established the following functional limitations from the Child's impairments and reasonably related symptoms: less than marked limitation in the domain of acquiring and using information; less than marked limitation of functioning in the domain of attending and completing tasks; less than marked limitations in the domain of interacting and relating with others; no limitations in the domain of moving about and manipulating objects; less than marked limitation in the domain of caring for herself; and less than marked limitation in the domain of health and physical well-being. R. 37. Based on these limitations, the ALJ found that the Child's impairments did not functionally equal any listed impairment. R. 25-37. Accordingly, the ALJ determined that the Child had not been under a disability at any time through the date of the decision. R. 37.
Plaintiff now asserts two errors. First, Plaintiff contends that the ALJ failed to provide an appropriate rationale in discounting the opinion from consultative psychologist Dr. Guidera; and further failed to properly reconcile the unsigned, undated teacher questionnaire, thus, he failed to support his determination with substantial evidence. Second, Plaintiff contends the ALJ failed to make a proper credibility determination. For the reasons that follow, the Commissioner's decision is
In order for an individual under the age of eighteen to be entitled to Supplemental Security Income payments, the Child must have a "medically determinable physical or mental impairment, which results in marked and severe functional limitations, and . . . 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); 20 C.F.R. § 416.906. The rules
Whether a child meets the "listing-level severity" standard is dependent upon whether the child has "marked" limitations in two broad areas of development or functioning or "extreme" limitation in one of those areas. 20 C.F.R. § 416.926a(d). In assessing whether the Child has "marked" or "extreme" limitations, the ALJ must consider the functional limitations from all medically determinable impairments, including any impairments that are not severe, as well as the interactive and cumulative effects of the child's impairment or combination of impairments individually in each domain. 20 C.F.R. § 416.926a(c). A marked limitation "seriously interferes" with the ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2). An "extreme" limitation is one that interferes very seriously with a child's ability to independently initiate, sustain or complete activities. 20 C.F.R. § 416.926a(e)(3).
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11
The court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the SSA's decision. Walker v. Bowen, 826 F.2d 996, 1000 (11
Plaintiff argues that the ALJ erred in assessing the opinion from the consultative psychologist and the categories on the Teacher Questionnaire. The Commissioner argues the ALJ's opinion is supported by substantial evidence.
Plaintiff contends that the ALJ failed to provide an appropriate rationale in discounting the opinion of Dr. Guidera, the consultative psychologist. She argues that "[w]hen considering the opinion of a consultative examiner, the ALJ is required to consider and weigh the medical source in its entirety, in accordance with 20 C.F.R. §§ 404.1527(c) and 416.927(c)." Doc. 20 at 11. She also cites other regulations regarding the weight to be given the opinion of a treating source, which would not apply to Dr. Guidera since he is an examiner who only examined the Child one time.
Plaintiff argues that the ALJ erred in stating that he was giving Dr. Guidera's opinion "great weight" but then, to the contrary, ignoring certain statements by assessing the Child with "less than marked ability" in five of the domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) caring for herself; and (5) health and physical well-being; and finding she had "no problems" in the domain of moving about and manipulating objects. R. 28-37; see 20 C.F.R. § 416.926a(b)(1). She argues that the ALJ failed to properly analyze Dr. Guidera's opinions regarding the Child's impairments in the domains of attending and completing tasks and in interacting and relating to others, both of which, she argues, the Child was "markedly" limited. Plaintiff also argues that the ALJ should not have placed "significant weight" and reliance on an unsigned
The Child's impairments began when, as a two to three year old, she had seizures when she had high fevers. At the time of her first seizure, she was diagnosed with ethmoidal sinusitis based on a CT scan, but she had not a seizure from late 2009 until August 2010 (high fever from bronchitis), and then none following that. R. 218, 232, 237, 286. Her mother (Plaintiff) told one physician that the Child had trouble with speech for about a month following a seizure. R. 218.
On May 28, 2010, a speech language pathologist, Diane Theodore, preformed a consultative evaluation of the Child-at three and a half years old-for speech and language issues. R. 218. Ms. Theodore found the Child functioning in the low-average to average range for receptive and expressive language, with an articulation disorder which impacted her speech intelligibility; she indicated the results should be interpreted cautiously as significant increases and decreases in language function in young children can take place over time; she recommended speech/language services to facilitate development of the Child's language skills. R. 218-19. The ALJ afforded some weight to the assessment but noted that subsequent testing (by Brevard County Public Schools) showed greater functional limitations imposed by the impairment with the need for in-school therapy.
On September 16, 2011, another speech language pathologist, Maria Van Sant, conducted a consultative evaluation — when the Child was almost five years old-and determined the intelligibility of her speech was 90% intelligible to familiar and unfamiliar listeners, with repetition she improved to 95%; her errors of substituting certain consonants were "still developmental in nature." R. 277. Results of the Preschool Language Evaluation indicated the receptive and expressive language were within functional limits overall. R. 277. Thus, Ms. Van Sant's diagnosis was that the Child's receptive and expressive language skills were within functional limits for her age; her articulation/phonological skills, pragmatic skills, voice, and fluency were age appropriate. R. 278. Ms. Van Sant recommended "no services be provided at this time." R. 278. The ALJ afforded some but limited weight to this assessment because subsequent testing, school records, and testimony showed greater functional limitations imposed by the speech language impairment with the need for in-school therapy.
The Record contains the Riverview Elementary Discipline Referrals for the Child's two "suspensions" — one "in school" in another classroom (September 30, 2011) and the second one for one day at home (October 11, 2011), during the first couple months the Child began at the VPK program. On the first occasion, the Child ran in the classroom during playtime and later "exchanged words" with another student at the computer area before hitting him in the eye with her headband; she was sent to another classroom to learn correct behavior. R. 280-81. On the second occasion, she refused to lie on her mat during naptime, was disrespectful, and told the teacher "she did not want to sleep at school, she want[ed] to go home." R. 279.
The Teacher Questionnaire from Riverview Elementary dated October 13, 2011 indicated the Child's teacher (either Ms. Phillips and Ms. Martinez) had been teaching the Child daily for 6.5 hours per day in all VPK subjects since August 17, 2011. R. 182. The teacher opined the Child had no problems acquiring and using information, moving about and manipulating objects, and interacting with others as far as her speech, because almost all of it could be understood. R. 183, 186.
With respect to attending and completing tasks, the teacher opined the Child had a serious problem on a daily basis changing from one activity to another without being disruptive; there were no or only slight problems in all other areas, except for paying attention when spoken to and working without distracting others, where she had "obvious" but not serious problems. R. 184. The teacher explained in the comments section:
R. 184.
In the domain of interacting and relating with others, the teacher opined the Child had serious problems in seeking attention and expressing anger appropriately; she had a less than serious but obvious problem playing cooperatively with other children; following rules; respecting/obeying adults in authority; and taking turns in a conversation, thus, it had been necessary to implement behavior modification strategies for the Child. R. 185. The teacher explained:
R. 185. In the domain of caring for herself, the teacher opined that the Child had problems handling frustration appropriately and identifying and appropriately asserting her emotional needs; she had a less than serious problems with being patient when necessary; responding appropriately to changes in her mood/calming herself and using appropriate coping skills to meet the daily demands of the school environment. R. 187. The teacher explained:
R. 187. In the last section inquiring about "the physical effects of the child's physical or mental condition or treatment for the condition," the teacher noted:
R. 188.
One month after the Teacher Questionnaire was completed, on November 28, 2011, Dr. Guidera, the consultative psychologist, evaluated the Child and found her speech difficult to understand, but she did appear to understand what was asked of her; her overall vocabulary was slightly below average, and she had "difficulty understanding similarity problems; she could count but she had difficulty with taking away"; however, he noted no bizarre or unusual behaviors, nor any signs of aggression; she was taking no medications at the time. R. 286. Dr. Guidera noted that she had been suspended in school twice where aggression was a problem, but she was going to kindergarten the following year. R. 286. Dr. Guidera observed that "[a]t times in the office, she is moving about, out of her seat, touching things, picking up items and not letting them go even when asked to do so. At other times, she puts her head on the desk and sings quietly to herself. At night she has difficulty sleeping. During the day, she is active, wandering about in her house, playing and singing to herself, and generally being non-destructive but very active." R. 286. Dr. Guidera diagnosed the Child with ADHD, combined type, and an expressive language disorder. R. 287. He opined she would have moderate to severe problems responding to others at school and in her overall focus, concentration, effort, and persistence in school. R. 287.
The ALJ gave great weight to Dr. Guidera's objective findings and diagnoses because they were generally consistent with medical records, school records, a teacher questionnaire and testimony to some extent; however, the ALJ assessed the Child with less than marked abilities in five domains, and no problems in the domain of moving about and manipulating objects.
On March 5, 2012, Nicole Hess, a Pre-Kindergarten school psychologist for Brevard County Public Schools evaluated the Child for possible developmental delays and testing indicated low average functioning in the area of oral language/vocabulary skills with delayed skills demonstrated in the areas of print knowledge, phonological awareness, and mathematics skills. R. 340. Reported behavioral functioning by the Child's mother and teacher indicated at-risk concerns in the areas of hyperactivity, aggression, attention problems, adaptability, and social skills. R. 340. The Child had a language delay and could benefit from specific language services; however, the test results of young children were to be interpreted cautiously and should be viewed as an estimate of current functioning levels. R. 340-41.
On April 12, 2012, an Individualized Education Plan ("IEP") was completed for the Child for Pre-Kindergarten and Kindergarten years because she was "language impaired" and "at-risk" in the area of aggression, with limited expressive skills, and emergent literacy skills. R. 296-97. Testing within the school district indicated that she required direct language therapy to remediate her inability to understand and express age appropriate language: she had difficulty with understanding "er" ending and passive voice sentences and verbal expression of analogies, category naming, sentence repetition, qualitative concepts, past tense, and similarity descriptions to improve her ability to participate in a regular classroom; the speech language pathologist would be responsible, but the Child would remain in a regular classroom. R. 301-02. The ALJ afforded great weight to these test results and opinions to the extent that they were similar to other findings also support the sever impairments and need for additional intervention programs.
Plaintiff argues the ALJ erred in giving "great weight" to Dr. Guidea's objective findings, including his opinion that the Child was "likely to have moderate to severe problems in regard to her overall focus, concentration, effort, and persistence in her school experiences" (R. 287 emphasis added), but then finding her impairment was "less than marked" in the applicable category. Plaintiff argues that Dr. Guidera's opinion indicates the Child's impairments in attending and completing tasks — which is how well a child is able to maintain attention, and how well she is able to begin carry through, and finish activities, including how easily she can change activities (see 20 C.F.R. § 416.926a(h)) — are within the "marked" range as the baseline of her behavior, which he opined was "moderate to severe." Dr. Guidera also opined that the Child had "moderate to severe problems in regard to responding to others at school which would include such people as peers, other students, teachers, and other adults," which Plaintiff argues, is an opinion that the Child has a "marked" limitation in interacting and relating to others. R. 287; see 20 C.F.R. § 416.926a(i) and SSR 09-05p. The Commissioner contends that the ALJ properly found Plaintiff had less than a marked limitation in attending and completing tasks based on the evidence of record, the mother's testimony about the Child's play and activities, and her lack of medication. R. 32-33.
The ALJ gave the basis for his decision as:
R. 33.
The ALJ correctly interpreted Dr. Guidera's opinion and the Teacher's Questionnaire and comments. The Regulations define "marked" limitations as a limitation that "seriously interferes" with the ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2). The ALJ also cited to the same portion of the regulations that explain:
R. 23 (emphasis added). The ALJ specifically noted Dr. Guidera's opinions that the Child was likely to have "moderate to severe problems" in "her overall focus, concentration, effort, and persistence in her school experiences," and in "responding to others at school." R. 33, 287. However, Dr. Guidera did not say the Child's impairment was consistently "more than moderate," which is the SSA regulatory definition of "marked." Moreover, the ALJ noted the teacher's opinion that the Child did her work with reminders, finished her work and "does well," and although she "throws fits when she does not get her way," she "had made huge strides in this domain by improving her behavior and having less frequent and less severe outbursts." R. 33. The ALJ was entitled to consider and appropriately relied upon the VPK Teacher's Questionnaire responses in finding that the Child's impairments were "less than marked" in the two domains.
Plaintiff argues that the ALJ erred in relying on the written out comments and opinions of the Child's teacher in the Questionnaire because the teacher allegedly found the Child had "marked" limitations on a "daily" basis in three separate domains — attending and completing tasks, interacting and relating with others, and caring for herself — and Plaintiff argues that the ALJ erred in failing to reconcile why the teacher questionnaire did not result in marked limitations in these three domains especially under the "whole child" approach.
While it is true that the teacher opined the Child had a "serious" problem on one or two subcategories of behaviors/activities within in a domain consisting of ten to thirteen subcategories, the teacher did not specifically opine that the Child had an overall "marked" limitation in a particular domain; rather, the teacher wrote explanatory comments about the Child's overall behavior for each domain that explained the Child was "improving" or "doing well" after a few months in VPK learning the appropriate behavior and conferences with her mother. R. 183-85. Moreover, the teacher marked every single one of the 50+ subcategories of behavior, whether "no problem" or "serious" as "daily," probably because she saw the Child daily in school.
As quoted above, the ALJ properly relied on the teacher's opinion in considering the domain of attending and completing tasks. R. 33. As to the other two domains-interacting and relating with others and caring for herself-the ALJ properly considered the entire opinion of the Child's teacher, including her explanatory notes about the Child's improvements:
R. 34, 36. Accordingly, the ALJ's finding that the Child's had a less than marked impairments in interacting and relating with others and caring for herself was based on substantial evidence from the Child's teacher, the mother's testimony, and the consultative psychologist's opinion.
Plaintiff contends that the ALJ failed to make a proper credibility determination and the case should be remanded for the ALJ to properly assess her credibility. In considering subjective complaints made by a Plaintiff about her Child, the ALJ must consider all of the statements about the Child's symptoms, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. 20 C.F.R. § 404.1528. In determining whether the medical signs and laboratory findings show medical impairments which reasonably could be expected to produce the symptoms alleged, the ALJ must apply the Eleventh Circuit's three-part standard which requires: (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged symptoms arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged symptoms. Foote, 67 F.3d at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11
The Commissioner argues that the ALJ properly discounted Plaintiff's complaints of the Child's disabling limitations. When an ALJ decides not to credit a claimant's testimony about subjective complaints, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Jones v. Department of Health and Human Services, 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons must be based on substantial evidence). A reviewing court will not disturb a clearly articulated credibility finding with substantial supporting evidence in the record. As a matter of law, the failure to articulate the reasons for discrediting subjective complaints testimony requires that the testimony be accepted as true. Foote, 67 F.3d at 1561-62; Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988).
In this case, the ALJ made the following credibility determination:
R. 27.
Plaintiff argues that the ALJ's credibility determination was unsupported by substantial evidence and the ALJ's analysis was conclusory, while her testimony is highly consistent with the record. Plaintiff points to her testimony that the Child does not have any friends, and the Child's own testimony that she does not like her classmates much as they do not like to play with her (R. 53, 58), which were consistent with Dr. Guidera's opinion that the Child had moderate to severe problems responding to others at school, including peers, other students, teachers, and other adults. R. 287. Plaintiff also argues that the Behavior Assessment System for Children (Second Edition) testing placed the Child in the "at-risk" category for hyperactivity, aggression, and in externalizing problems (R. 312), and she was suspended twice in school, once for hitting another child in the eye. R. 279-82. In addition, Plaintiff testified the Child's speech problems were worsening (R. 57), which is borne out by the records showing Claimant's latest IEP indicated Claimant was having difficulty answering questions and giving appropriate answers without prompts, describing objects in detail and with being able to identify letter sounds, and she "demonstrated a significant delay in receptive language and expressive language, which requires instruction by a speech language pathologist in a small-group setting." R. 210-12. Plaintiff also challenges the ALJ's discounting of the testimony because the Child was not taking medication for the mental health impairment of ADHD, even though Plaintiff testified that the Child had an appointment coming up for such medication. R. 26, 27, 28, 32, 33. She argues that the ALJ imposed his own view "playing doctor" by noting during the hearing that "when they're real young, they hate to put them on medication. Be she's at the age now where they would probably start her on something for attention deficit." R. 59-60. She argues that the ALJ's citation to the Child's lack of use of medication for ADHD was not a proper basis for discrediting the testimony because the ALJ made a comment to the effect that "when they're real young, doctors hate to put them on medication." R. 59.
The Commissioner argues that Plaintiff's and the Child's statements about subjective symptoms, alone, were insufficient to establish disability, and credibility determinations are the province of the ALJ. Doc. 21 at 17 (citing 20 C.F.R. § 416.929(a), (c)). The Commissioner contends that the ALJ appropriately found the evidence of record did not support Plaintiff's or the Child's allegation of disabling limitations, and the mother reported no problems with paying attention in the function report. R. 30, 164-71.
Specifically, the ALJ found the testimony of the Child and her mother (Plaintiff) to be sincere but not fully supported by the Record:
R. 30 (internal citations omitted). The ALJ then addressed his findings for each of the six domains separately
The ALJ appropriately based his credibility discussion on the medical and school records, noting the Child had not received medication in two years; she had received an IEP from the school to address her speech delay; and the Teacher Questionnaire and other school records demonstrated the Child had improved in most areas with treatment. R. 30. These are factors the ALJ is supposed to consider. The Behavior Assessment System for Children, Second Edition ("BASC-II") testing by the School Psychologist for Brevard County Public Schools showed that the Child was "at-risk" for hyperactivity, aggression, and attention problems; however, according to the report from the School Psychologist, "at-risk" scores on the BASC-II identify "either a problem that may not be severe enough to require formal treatment or a potential of developing a problem that needs careful monitoring." R. 337. Following the testing, the School Psychologist recommended "behavioral strategies what would support social and emotional developmental deficits," but the IEP established for the Child left her in the regular classroom, and, at that time, only her language delay and "communication goals" were addressed at length in the IEP. See, e.g., R. 301-04.
Although Plaintiff cited the ALJ's comment regarding the Child previously being "too young for the doctor to prescribe medications," she failed to include the full comment which was that "[S]he's at the age now where they probably would start her on something for the attention deficit." R. 59-60. Obviously, if the Child's ADHD could be controlled with medication, then her condition would not be disabling. The ALJ carefully analyzed the Record, and his credibility decision was based on substantial evidence.
Accordingly, the decision of the Commissioner is
