Green v. Astrue
1:10-cv-00610 | S.D. Ala. | Mar 7, 2012
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 1 of 31
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBIN J. GREEN, o/b/o D.D.G., *
*
Plaintiff, *
*
vs. * CIVIL ACTION 10-00610-KD-B
*
MICHAEL J. ASTRUE, *
Commissioner of Social Security, *
*
Defendant. *
REPORT AND RECOMMENDATION
Plaintiff Robin J. Green (“Plaintiff”) brings this action
on behalf of her minor child, D.D.G.1, seeking judicial review of
a final decision of the Commissioner of Social Security denying
her claim for child supplemental security income under Title XVI
of the Social Security Act, 42 U.S.C. ' 1381 et seq. (“SSI”).
This action was referred to the undersigned for report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral
argument was waived. Upon careful consideration of the
administrative record and the memoranda of the parties, it is
hereby RECOMMENDED that the decision of the Commissioner be
AFFIRMED.
1
Pursuant to the E-Government Act of 2002, as amended on
August 2, 2002, the Court has redacted the minor child’s name
throughout this opinion and refers to him only by his initials,
“D.D.G.”
1
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I. Procedural History
Plaintiff protectively filed an application for
supplemental security income benefits on behalf of her son
D.D.G. on July 25, 20062, alleging that her son has been disabled
since September 3, 20013. (Tr. 78; 386; 396-98; 401-11). In
claiming benefits, Plaintiff alleges disability due to attention
deficit hyperactivity disorder (“ADHD”), hyperactivity, and low
IQ. (Tr. 465). Plaintiff’s application was denied at the
initial stage on October 23, 2006. (Tr. 387-390). She filed a
Request for Hearing before an Administrative Law Judge (“ALJ”).
(Tr. 391-92). On June 24, 2009, Administrative Law Judge D.
Burgess Stalley held an administrative hearing, which was
attended by Plaintiff, her son D.D.G., and her attorney. (Tr.
506-24). On July 6, 2009, the ALJ issued an unfavorable
decision finding that D.D.G. is not disabled. (Id. at 21-36).
2
Plaintiff has previously filed at least three other
applications for benefits asserting similar claims, all of which
were denied. (Tr. 51-6; 261-68; 272-74; 294-5; 373-83).
3
The most recent decision denying Plaintiff benefits
through February 14, 2006 is binding because Plaintiff did not
appeal that decision. Thus, the decision before this Court is
whether D.D.G. has been disabled since February 15, 2006. (Tr.
373-83). As such, any discussion of the medical or other
evidence prior to that date is for the limited purpose of
determining D.D.G.’s overall medical history in relation to the
Court’s analysis of Plaintiff’s claims on appeal.
2
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Plaintiff’s request for review was denied by the Appeals Council
(“AC”) on September 24, 2010. (Id. at 9-12).
The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C. ''
1383(c)(3).
II. Issues on Appeal4
A. Whether the ALJ’s decision was supported by
substantial evidence?
III. Factual Background
D.D.G. was born on February 4, 1996. He was 10 years old
and had completed fourth grade when his application was
submitted. At the time of the administrative hearing on June
24, 2009, D.D.G. was 13 years old and entering eighth grade.
(Tr. 78, 293-94, 510). At the hearing, D.D.G.’s mother
testified that D.D.G. was “dismissed” from T.R. Miller Middle
School and placed in W.S. Neil Middle School due to his behavior
problems. According to Plaintiff, D.D.G. knocked down a steel
door at school and had problems getting along with other
students and teachers. (Id. at 511). She also testified that
D.D.G. had been suspended from his current school five times
4
While Plaintiff argues that the ALJ erred because she
failed to properly consider the statements of D.D.G.’s teachers,
and that the AC failed to explain why this case was not
remanded, she has not developed these arguments, or set forth
any facts in support of her assertions. Accordingly, these
issues are deemed abandoned and are denied as a result.
3
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during the past school year. (Id. at 512). In her testimony,
Plaintiff acknowledged that D.D.G.’s primary problems involve
his conduct and not his academics and that he receives “As and
Bs, and sometimes Cs and Ds” at school. (Id. at 513). Plaintiff
testified that D.D.G.’s medication was increased and that it
helps him “only while the medication is in his system.” She also
reported that D.D.G. attends regular classes and not special
education classes. (Id. at 514). According to Plaintiff, D.D.G.
wants to play and is enrolled in football for the next season.
(Id. at 515).
Plaintiff reported that D.D.G. does yard work with his
father, that she sometimes has trouble getting D.D.G. to do his
chores, that he is able to dress himself, that he enjoys riding
his bike, and that he has no after-school activities. (Id. at
517-19). Plaintiff further testified that D.D.G. does not get
along with his siblings and that he does not have friends in the
neighborhood. (Id. at 520-21).
D.D.G. testified that he plays video games and plays the
position of halfback. According to D.D.G, he has attended some
practices, and gets along well with the football coach and some
of the kids on the football team. (Id. at 516). D.D.G. also
testified that he does not see a school counselor. (Id. at 516).
4
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D.D.G.’s ADHD medications referenced in the record include
Metadate, Focalin, Ritalin, Risperdal, and Strattera. (Tr. 174,
179, 218, 222, 328, 448, 458, 460, 477).
IV. Analysis
A. Standard Of Review
In reviewing claims brought under the Act, this Court’s
role is a limited one. The Court’s review is limited to
determining 1) whether the decision of the Secretary is
supported by substantial evidence and 2) whether the correct
legal standards were applied. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990).5 A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Sewell v. Bowen, 792 F.2d 1065" date_filed="1986-06-30" court="11th Cir." case_name="Vera D. SEWELL, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee">792 F.2d 1065, 1067 (11th
Cir. 1986). The Commissioner’s findings of fact must be
affirmed if they are based upon substantial evidence. Brown v.
Sullivan, 921 F.2d 1233" date_filed="1991-01-22" court="11th Cir." case_name="Laura Jan BROWN, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee">921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding
substantial evidence is defined as “more than a scintilla but
less than a preponderance” and consists of “such relevant
evidence as a reasonable person would accept as adequate to
support a conclusion[]”). In determining whether substantial
5
This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996" date_filed="1987-09-08" court="11th Cir." case_name="Thelma L. WALKER, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee">826 F.2d 996, 999
(11th Cir. 1987).
5
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evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision. Chester v. Bowen, 792 F.2d 129" date_filed="1986-06-09" court="11th Cir." case_name="Ollie G. CHESTER, Jr., Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee">792 F.2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163
(S.D. Ala. 1999).
B. Childhood Disability Law
The Personal Responsibility and Work Opportunity Act of
1996, which amended the statutory standard for children seeking
supplemental security income benefits based on disability,
became effective on August 22, 1996. See Pub. L. No. 104-193,
110 Stat. 2105 § 211(b)(2) (1996) (codified at 42 U.S.C. §
1382c). The definition of “disabled” for children is:
An 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.
See 42 U.S.C. § 1382c(a)(3)(C)(I), 20 C.F.R. § 416.906.6 The
regulations provide a three-step sequential evaluation process
6
On September 11, 2000, the Commissioner published Final
Rules for determining disability for a child under the age of
18. See 65 Fed. Reg. 54,747, corrected by 65 Fed. Reg. 80,307.
These rules became effective on January 2, 2001 and apply to
Plaintiff’s claim. See 65 Fed. Reg. at 54,751.
6
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for determining childhood disability claims. 20 C.F.R. §
416.924(a).
At step one, a child’s age/work activity, if any, are
identified to determine if he has engaged in substantial gainful
activity. At step two, the child’s physical/mental impairments
are examined to see if he has an impairment or combination of
impairments that are severe. Under the regulations, a severe
impairment is one that is more than “a slight abnormality or a
combination of slight abnormalities that causes no more than
minimal functional limitations.” 20 C.F.R. § 416.924(c). To the
extent the child is determined to have a severe impairment, at
step three, he must establish that the impairment results in
marked and severe functional limitations. 42 U.S.C. §
1382c(a)(3)(C)(I). The regulations set forth that an
“impairment(s) causes marked and severe functional limitations
if it meets, medically equals or functionally equals the
listings.” 20 C.F.R. § 416.924(d).
A child’s impairment(s) meets the Listings’ limitations if
he actually suffers from limitations specified in the Listings
for his severe impairment. 20 C.F.R. § 416.926(d). A child’s
impairment medically equals the Listings if his limitations are
at least of equal severity and duration to the listed
impairment(s). Id. Where a child’s impairment or combination of
impairments does not meet or medically equal any Listing, then
7
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the Commissioner must determine whether the impairment or
combination of impairments results in limitations which
functionally equal the criteria for a Listing.7 Id.
C. Discussion
1. ALJ’s Decision
In this action, the ALJ issued an unfavorable decision on
July 6, 2009. The ALJ determined that while D.D.G. has the
severe impairments of conduct disorder, attention deficit
hyperactivity disorder (ADHD), mild learning disorder NOS, and
low normal intelligence, they do not meet, medically equal or
functionally equal the criteria for any of the impairments
listed in 20 C.F.R. Pt. 404, Subpt. P. (Tr. 27-8). The ALJ also
found that D.D.G. has “less than marked” limitations in his
ability to acquire and use information, attend and complete
tasks, and interact and relate with others, and that he does not
have any limitations in moving about and manipulating objects,
caring for himself, and health and physical well-being. (Tr. 30-
35). Accordingly, the ALJ concluded that because D.D.G. does
not meet Listing 112.11 and does not have an impairment or
7
In making this assessment, the reports of the State Agency
medical consultants, reports of other treating, examining and
non-examining medical sources, and the claimant’s symptoms,
including pain and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence, are all taken into consideration.
20 C.F.R. §§ 416.927, 416.929; and SSR 96-5, 96-6p and 96-7p.
8
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combination of impairments that result in either “marked”
limitations in two domains of functioning or “extreme”
limitation in one domain of functioning, he is not disabled
under the Act. (Tr. 35).
2. Record Evidence8
Academic Evidence
The relevant academic records reflect that D.D.G. attended
Brewton Elementary School for grades first through fourth. (Id.
at 430). School records show that D.D.G. passed all grade
levels, was consistently promoted, and was in no special
education classes9. (Id. at 230, 329, 430). Rhonda Adams,
D.D.G.’s Language Arts and Social Studies teacher, and Sherry
Hutte, a school counselor, completed a Teacher Questionnaire on
September 26, 2006, which was approximately six weeks into
D.D.G.’s fifth grade year. They opined that D.D.G. had no
problems in the domains of acquiring and using information,
interacting and relating with others, moving about and
8
While evidence submitted to the Appeals Council is in the
record (Tr. 494-505), the undersigned has not discussed same
herein because said evidence was not before the ALJ at the time
of her decision. Some of the records do not relate to the time
period in question while others are cumulative of evidence
already in the record.
9
There is some indication in the record that D.D.G.
participated in a “special” reading class at some point. See
(Tr. at 344, 409).
9
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manipulating objects, and caring for himself, and that “when
he’s on his medication, there are no problems in [the area of
attending and completing tasks].” The Questionnaire also noted
that D.D.G. was taking Focalin and that he has a hard time
sitting still, behaving, and focusing when he does not take his
medication. The teachers opined that D.D.G. “does well when he’s
on his medication.” (Id. at 422-32).
While at Brewton Middle School, D.D.G. was suspended for
disciplinary infractions on multiple occasions and was
ultimately forced to withdraw from the school for the 2007-2008
school year. At the time of the administrative hearing, he was
enrolled at W.S. Neal Middle School. (Id. at 431-5, 440-1, 494-
98). The record reflects that D.D.S. was suspended on five
occasions for misconduct and disruptions between September 2008
and March 2009. (Id. at 512).
Medical Evidence
The relevant medical evidence of record shows that
Plaintiff first presented to psychologist Robert A. DeFrancisco,
Ph.D (“Dr. DeFrancisco”), on October 5, 2001, and has been seen
continually thereafter. (Id. at 94, 237-255, 344-69, 462-68,
492-93, 499, 501). Dr. DeFrancisco diagnosed D.D.G. with ADHD,
low normal intelligence, and learning disorder NOS. D.D.G. was
placed on medication by his treating physician, Elizabeth Low,
M.D. (“Dr. Low”). (Id. at 243-45, 466). Treatment records from
10
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Brewton Medical Center and from Dr. DeFrancisco document that
D.D.G. has been treated with various medication including
Metadate, Ritalin, Focalin, Risperdal, and Stattera for symptoms
related to ADHD. (Id. at 219, 350-62, 436-9, 458-60).
On a Slosson screening test administered by Dr. DeFrancisco
in January 2002, D.D.G. achieved an IQ score of 88. (Id. at
246).
In a Summary of Psychological Evaluation completed by Dr.
DeFrancisco on May 6, 2003, he reported that D.D.G. was
evaluated with the WIAT on March 7, 2002. At the time, he was
age 6.4 and was in the first grade. The WIAT screening indicated
a standard score of 85, which placed D.D.G. in the low average
range with a grade equivalent of K-3 and age equivalent of 5.9.
Dr. DeFrancisco opined D.D.G. was 5 months behind age-wise and a
year behind grade-wise. Further, Dr. DeFrancisco noted that
Plaintiff reported that at home and at school, D.D.G. was having
behavior problems and problems staying focused problems and
completing chores. Dr. DeFrancisco also noted that the
medication and behavioral programming had helped. (Id. at 243-
4).
In a letter dated March 22, 2004, Dr. DeFrancisco reported
that testing on the ADHDT Gilliam Test revealed an ADHD quotient
of 117, which placed D.D.G. in the above average range of having
ADHDT syndrome, characterized by hyperactivity, impulsivity, and
11
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inattention. He further opined that D.D.G. has extreme
inappropriate social functioning; i.e., in the sense that D.D.G.
is constantly reprimanded at school, constantly loud, impulsive,
and has difficulty getting along with other students. Dr.
DeFrancisco noted that D.D.G. has low normal functioning and
marked difficulty with concentration, persistence, and pace. Dr.
DeFrancisco also opined that D.D.G. had marked and severe
problems with his inattention, impulsiveness, and hyperactivity,
and although his medication seemed to control his attention span
“from time to time,” he continued to have behavioral problems.
(Id. at 344).
On July 6, 2004, Dr. DeFrancisco noted that Plaintiff
reported that D.D.G. had severe temper tantrums. He opined that
D.D.G. needed more outdoor activities and that lack of a father
figure in the home was showing in “his developmental progress.”
(Id. at 359). On visits August 18, 2004, October 6, 2004, and
December 6, 2004, Dr. DeFrancisco observed that D.D.G. does well
when he takes his medications and that supportive therapy and
medication would be continued. (Id. at 356-8).
During a February 7, 2005 visit, Dr. DeFrancisco noted that
that D.D.G. was doing fairly well on Ritalin 30 mg and Focalin
10 mg. He also noted that D.D.G. was in normal classes in the
third grade, that while he continued to have oppositional
problems, they were better controlled with medication, and that
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Plaintiff was not “much of a disciplinarian.” (Id. at 355).
During a visit on May 9, 2005, Dr. DeFrancisco noted that D.D.G.
was “doing much better on his medication” and that his
achievement scores were normal. On the WRAT-3, D.D.G. scored a
CA of 9.3 and a grade of third. On evaluation, D.D.G. appeared
stable, and his mental status was within normal limits. (Id. at
353-4).
During a psychology session on July 25, 2006, D.D.G. was
administered the House-Tree-Person (HTP) test. Dr. DeFrancisco
observed that D.D.G. approached the test without much thought or
organization, and that he had passive-aggressive tendencies.
According to Dr. DeFrancisco, Plaintiff “does not seem to be
concerned about disciplining him as much as she seems to be
focused on getting disability for him. Quite frankly, I think he
is scoring too high to deal with that. Despite the fact that he
tends to have some socialization problems, other times he tends
to be compliant and interactive.” (Id. at 442).
In the treatment notes dated July 2, 2007, Dr. Francisco
indicates that Plaintiff had enlisted the help of Mr. Jernigan
for social security benefits. He also noted that D.D.G. had been
thrown out of Brewton City Schools because of aberrant behavior,
and that he reported that the Strattera 25mg made him too
sleepy; thus, the dosage was reduced to 10mg. Dr. Francisco
observed that D.D.G. was cooperative, friendly and interactive,
13
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but offered no explanation for why he acts out. Dr. Francisco
noted that he did not gain any insight into D.D.G.’s problems,
and opined that Plaintiff continued to have multiple issues
including having too many children. In addition to adjusting
D.D.S’s medication, D.D.G. was to continue with family sessions.
(Id. at 493)
Dr. DeFrancisco next saw D.D.G. in a family session on
August 15, 2007. Dr. DeFrancisco observed that D.D.G. was
cooperative, friendly and interactive, and that his issues
center around his conduct problems and his inability to handle
himself responsibly. Dr. Francisco noted that D.D.G. had been
tried on various medications without much success; yet, he
appeared to be stable at that point. Dr. Francisco also noted
that D.D.G. needed to be administered the Millon Pre-adolescent
inventory, and that D.D.G. would be continued on his medication
and with the family sessions. (Id. at 492).
On September 3, 2007, Dr. DeFrancisco completed a
psychological evaluation of D.D.G. at the request of Plaintiff’s
counsel. Dr. Francisco noted that D.D.G. had a working
diagnosis of conduct disorder; ADHD; low normal intelligence;
mild learning disorder; and passive aggressive tendencies. (Id.
at 456-61). He noted that D.D.G. was tried on numerous
medications and that Strattera 25 mg worked best for him. He
14
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also noted that D.D.G. had been expelled from the Brewton City
School System that year due to unruly behavior.
On exam, D.D.G. was found to have low normal intelligence
with a Full Scale IQ of 81 on the WPPSI. Dr. DeFrancisco noted
that D.D.G. was “very stubborn and defiant both in the session
and also at school and at home.” He also observed that D.D.G.
was alert, oriented, interactive and that he put forth an
accurate effort. (Id. at 460). D.D.G. was administered the MPACI
and the testing results showed extensive signs of disruptive
behavior and severe impulse control problems. Dr. DeFrancisco
noted “indications of conduct disorders with little regard for
other people, resisting the influence of authority, and blatant
hostility towards them... [H]is personality patterns are very
unruly and he shows social as well as psychological
underdevelopment.” (Id.) He opined that D.D.G.’s “unruly
tendencies suggest that he would have difficulty in treatment
and indeed through my years of treatment with him it has been
very difficult to stabilize this individual.” (Id.) Dr.
DeFrancisco suggested D.D.G. was at a high risk for delinquency
and drug seeking behavior. (Id.)
In an attached questionnaire, Dr. DeFrancisco opined that
D.D.G. had moderate restrictions of activities of daily living
and in his ability to perform repetitive tasks in a school
setting; a marked degree of difficulty in maintaining social
15
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functioning; marked episodes of deterioration; marked
limitations in his ability to carry out instructions in a school
setting and to respond appropriately to supervision in a school
setting; moderate to marked limitations in his ability to
respond appropriately to school matters in a work setting and to
perform simple tasks in a school setting; and frequent
deficiencies of concentration, persistence or pace. (Id. at 458-
9).
D.D.G. was next seen by Dr. DeFrancisco on December 14,
2007, for psychological counseling. The notes reflect that
D.D.G. was in the sixth grade at that time, and he was
administered the WRAT-4. His scores reflected a sixth grade
reading level with a standard score of 100; fifth grade spelling
level, with score of 95; fifth grade arithmetic level, with
score of 91; a fourth grade reading comprehension level, with
score of 89; and a fifth grade reading composite level, with a
score of 94. (Id. at 466-8). Dr. DeFrancisco observed that
D.D.G. was not hyperactive and that his mood and affect appeared
adequate. Dr. Francisco opined that D.D.G.’s oppositional
problems probably resulted from inconsistent parenting and low
normal IQ functioning. (Id. at 468).
In notes from a visit on February 1, 2008, Dr. DeFrancisco
noted that D.D.G. might need an updated IQ test. He further
observed that D.D.G. probably had borderline to low average
16
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intelligence, and his achievement scores were commensurate with
his IQ functioning. Dr. DeFrancisco also noted that D.D.G. comes
from an impoverished background, without much home supervision,
and while he does have some learning problems, they are “not
sufficient to the point where he is markedly behind.” (Id. at
467). Dr. Francisco observed that during the session, D.D.G. was
alert, oriented, and “conduct[ed] himself quite admirably.”
D.D.S. was to continue on Strattera 18 mg and with supportive
therapy. (Id.)
During a March 6, 2008 visit, Dr. DeFrancisco noted that
D.D.G. has some ADHD and conduct problems, and that he is lazy
and lacks consistent supervision. He also opined that D.D.G.
does not have any major bipolar problems. (Id. at 466).
Treatment notes from D.D.G.’s April 23, 2008 visit reflect that
D.D.G. was alert, oriented, and interactive, and that no mental
problems were noted. Plaintiff requested a personality test and
reported that D.D.G. had been suspended from school on three
different occasions for aggressive behavior. D.D.G. reported
that other kids start fights with him, and he just fights back.
Dr. DeFrancisco again opined that D.D.G. has conduct problems
and noted “inconsistent parenting.” (Id. at 465).
On July 22, 2008, Dr. DeFrancisco went over the results
from D.D.G.’s MPACI evaluation. It showed ADHD with deficits in
attention and concentration. It also showed disruptive behavior
17
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and lack of impulse control consistent with someone with Mild
Bipolar problems. He noted that D.D.G. has many unruly
personality features, and that none of D.D.G.’s medications have
been successful in controlling his focus, attention and mood
swings. (Id. at 464).
Treatment notes from October 27, 2008, reflect that
Plaintiff reported that D.D.G. was still acting up in school,
and he had three Fs on his report card. Dr. DeFrancisco opined
that D.D.G seems to have more conduct disorder and an impulse
control disorder and while taking Risperdal 0.25 mg twice a day
was helping, D.D.G.’s future “does not look very good.” (Id. at
463).
In the treatment notes dated December 11, 2008, Dr.
DeFrancisco noted that D.D.G. has a history of conduct disorder,
emotional problems and poor grades in school, and he again
diagnosed D.D.G with low normal intelligence, learning disorder,
ADHD and conduct disorder. Dr. DeFrancisco also noted that
Plaintiff reported that D.D.G. continues to act up in school,
that D.D.G. is taking Risperdal 0.25 mg twice daily, that he has
no further recommendations for treatment, and that he thinks
that Plaintiff “certainly would like him to get disability to
help her with the family situation.” (Id. at 462)
The record also reflects that a Childhood Disability
Evaluation Form was completed on October 20, 2006, by Gordon J.
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Rankart, Psy.D, a representative of the Agency. (Tr. 450-55). In
the Form, he diagnosed D.D.G. with ADHD and conduct disorder and
noted his low IQ. He opined that D.D.G.’s mental limitations
were “mild” and “not severe,” and specifically determined that
he had no limitation in acquiring and using information, moving
about and manipulating objects, and caring for himself. Mr.
Rankart also opined that D.D.G. had less than marked limitations
in attending and completing tasks and interacting and relating
with others. (Id.)
3. Alleged Errors
In her brief, Plaintiff argues that the ALJ erred by
finding that D.D.G.’s impairments do not meet or equal listing
112.11.10 According to Plaintiff, the ALJ incorrectly relied
10
Listing 112.11 concerns ADHD, the requirements of which are as
follows:
Manifested by developmentally
inappropriate degrees of inattention,
impulsiveness, and hyperactivity.
The required level of severity for these
disorders is met when the requirements in
both A and B are satisfied.
A. Medically documented findings of all
three of the following:
1. Marked inattention; and
2. Marked impulsiveness; and
3. Marked hyperactivity;
AND
(Continued)
19
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upon the opinion of the DDS consultant, and D.D.G.’s teachers’
statements to find that the medically documented findings do not
establish marked inattention, marked impulsiveness, and marked
hyperactivity. (Doc. 19). Specifically, Plaintiff contends that
the ALJ’s reliance on a 2006 Teacher Questionnaire and a 2006
report from Dr. DeFrancisco, which both indicated that D.D.G.’s
condition was controlled with medication, was misplaced.
According to Plaintiff, the ALJ failed to recognize that in Dr.
DeFrancisco’s subsequent evaluation in September 2007, he
determined that the medications that D.D.G. had taken during
2004-2006 were no longer effective; thus, until D.D.G’s conduct
disorder and inattention can be effectively treated with
medication, counseling, and behavioral rehabilitation programs,
such that D.D.G. can function with teachers and fellow students,
he has “marked restrictions entitling him to disability.” (Doc.
19 at 12-14).
B. For older infants and toddlers (age 1
to attainment of age 3), resulting in at
least one of the appropriate age-group
criteria in paragraph B1 of 112.02; or, for
children (age 3 to attainment of age 18),
resulting in at least two of the appropriate
age-group criteria in paragraph B2 of
112.02.
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 112.11
(2009).
20
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In opposition, Defendant argues that Plaintiff has failed
to establish that D.D.G. was disabled at the time her
application for benefits was filed, i.e., as of August 11, 2006;
thus, she is not entitled to benefits on his behalf. Defendant
further argues that the record contains ample evidence from Dr.
DeFrancisco, Plaintiff’s testimony, and D.D.G.’s teachers that
D.D.G’s condition was controllable as long as he took his
prescribed medication, although he was not always compliant.
According to Defendant, Plaintiff’s pursuit of disability for
her son and lack of supervision for D.D.G. were all factors the
ALJ could properly consider in reaching her decision. Defendant
further argues that the ALJ did not err in according little
weight to Dr. DeFrancisco’s September 2007 report because it was
not supported by the record evidence. (Doc. 21).
The undersigned notes, as a preliminary matter, that the
determination of whether or not a claimant’s condition qualifies
as a disability under the SSI requirements is based on the
applicant’s condition at the time of the application, up to and
including his condition at the time of the administrative
hearing, which in this case was June 24, 2009. Of course, if the
applicant’s condition worsens after the hearing, he must file a
new application alleging a new onset date. See Bryant v. SSA,
2010 U.S. Dist. LEXIS 52704, *5 (N.D. Fla. May 25, 2010).
21
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Turning next to Plaintiff’s argument that the ALJ failed to
accord proper weight to Dr. DeFrancisco’s September 2007
evaluation, the law in this Circuit is clear that “[t]he ALJ
must generally give the opinion of a treating physician
‘substantial or considerable weight’ absent a showing of good
cause not to do so.” Newton v. Astrue, 297 Fed. Appx. 880, 883
(11th Cir. 2008). See also Lewis v. Callahan, 125 F.3d 1436" date_filed="1997-10-29" court="11th Cir." case_name="54 Soc.Sec.Rep.Ser. 261 v. John Callahan">125 F.3d 1436,
1440 (11th Cir. 1997) (a treating physician’s opinion must be
given substantial weight unless good cause is shown to the
contrary). The Eleventh Circuit has concluded “good cause”
exists when a treating medical professional’s opinion is not
bolstered by the evidence, is contrary to the evidence, or when
the treating medical professional’s opinion is inconsistent with
his or her own medical records. Phillips v. Barnhart, 357 F.3d
1232, 1240-41 (11th Cir. 2004).
If an ALJ elects to disregard the medical opinion of a
treating physician, then he or she must clearly articulate the
reasons for so doing. Id. The ALJ may also devalue the opinion
of a treating physician where the opinion is contradicted by
objective medical evidence. Ellison v. Barnhart, 355 F.3d 1272" date_filed="2003-10-01" court="11th Cir." case_name="Ellison v. Barnhart">355 F.3d 1272,
1275-76 (11th Cir. 2003) (per curiam), citing Oldham v.
Schweiker, 660 F.2d 1078" date_filed="1981-11-12" court="5th Cir." case_name="Alice M. Oldham v. Richard S. Schweiker, Secretary of Health and Human Services, Defendant">660 F.2d 1078, 1084 (5th Cir. 1981) (holding that
“the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion”) (citation omitted);
22
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Kennedy v. Astrue, 2010 U.S. Dist. LEXIS 39492, *22-23 (S.D.
Ala. Apr. 21, 2010) (“[I]t is the ALJ's duty, as finder of fact,
to choose between conflicting evidence[,] and he may reject the
opinion of any physician when the evidence supports a finding to
the contrary.”).
The undersigned finds that the ALJ’s decision denying
benefits is supported by substantial evidence. In Dr.
Francisco’s September 2007 Assessment, he opined that D.D.G.
had marked restrictions in maintaining social functioning,
marked episodes of deterioration, marked limitations in
understanding, carrying out and remembering instructions in a
school setting, marked limitations in responding appropriately
to supervision in a school setting, and moderate to marked
limitations in responding to school matters, performing simple
tasks in school and performing tasks in a school setting.
In according little weight to the limitations contained in
Dr. DeFrancisco’s Assessment, the ALJ stated as follows:
As for the opinion evidence, the undersigned
gives little evidentiary weight to Dr.
DeFrancisco’s opinions in Exhibit C-4F,
because the reported degree of limitation is
excessive compared to mental status exam
findings, behavioral observations, and
diagnostic impressions contained in his own
treatment notes. Moreover, the reported
limitations are totally at odds with the
assessment and observations of the
claimant’s teacher (C-5E), and with the
conclusions of the state agency consultant
who found no severe impairment (C-3F).
23
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 24 of 31
(Tr. at 30).
As noted supra, Plaintiff in essence argues that the
records demonstrate that prior to 2007, D.D.G.’s symptoms were
controlled with medication; however, in 2007, the medication was
no longer effective, and D.D.G. experienced marked restrictions
in attention, impulsiveness and hyperactivity, which resulted in
work restrictions in attending and completing tasks and
interacting and relating with others. (Doc. 19 at 13-15).
First of all, neither Dr. DeFrancisco nor any other medical
doctor opined that D.D.G. met Listing 112.11, which requires
medically documented findings of marked inattention, marked
impulsiveness and marked hyperactivity and at least 2 of the
age-group criteria located in paragraph B2 of 112.02. The
assessment form submitted by Dr. DeFrancisco in September 2007
does not contain a category for hyperactivity or impulsiveness.
Thus, while Dr. DeFrancisco has repeatedly diagnosed D.D.G. with
conduct disorder, ADHD, low normal intelligence, and mild
learning disorder, neither his letter nor completed assessment
form contains a finding that D.D.G. has marked impulsiveness and
marked hyperactivity. Plus, in Dr. DeFrancisco’s treatment notes
dated December 14, 2007, he observed that D.D.G.’s mood and
affect appeared adequate, and that he was not hyperactive. (Id.
at 468). Thus, contrary to Plaintiff’s contention, the ALJ did
24
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 25 of 31
not err in finding that D.D.G.’s ADHD does not meet or equal
Listing 112.11 because the record does not contain medically
documented findings of marked limitations in all three required
categories during the current period of adjudication.
In addition, the ALJ did not err in finding that D.D.G. did
not functionally equal the requirements of Listing 112.11. To
functionally equal the Listing, the claimant must establish that
he is markedly limited in at least two domains, or extremely
limited in one domain. Plaintiff has not argued, and the record
does not contain any evidence which demonstrates, that D.D.G.
has extreme limitations in any of the domains. Additionally, the
ALJ found D.D.G. has no limitations in the domains of moving
about and manipulating objects, caring for himself, and health
and physical well-being. Moreover, a searching review of the
record does not reveal any evidence that suggests that D.D.G. is
limited in these three domains, and Plaintiff has not argued let
alone pointed to any evidence that suggests otherwise.
The next domain, acquiring and using information, focuses
on how well a child is able to acquire or learn information and
how well the child uses the information he has learned. 20
C.F.R. 416.9126a(g). With respect to this domain, the ALJ
determined that D.D.G. has a less than marked limitation in
acquiring and using information, and relied upon D.D.G.’s grade
reports, IQ scores, and history of no special education. The
25
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 26 of 31
undersigned finds that the ALJ’s finding is supported by
substantial evidence. As noted supra, while the record reflects
that D.D.G. has been diagnosed with conduct disorder, ADHD, low
normal intelligence, and mild learning disorder, the record also
reflects that D.D.G. has been able to advance in school in
regular classes, and Dr. DeFrancisco reported that despite
D.D.G.’s conditions, he was not markedly behind in school. In
fact, the record before the ALJ did not contain any information
which indicates that D.D.G. has repeated any grade.
Additionally, at the administrative hearing, Plaintiff testified
that D.D.G. made As, Bs, Cs, and Ds, and that he would be going
into the eighth grade when school resumed in the fall. The
undersigned finds that this constitutes substantial evidence in
support of the ALJ’s finding that D.D.G. is not limited in the
domain of acquiring and using information.
The next domain, attending and completing tasks, measures
how well a claimant is able to begin and carry through and
finish activities, including the pace at which he performs
activities and the ease of changing activities. 20 C.F.R.
416.(a)(h). The undersigned finds that the ALJ properly found
that D.D.G. has less than marked limitations in attending and
completing tasks, and in doing so, she properly rejected the
opinions of Dr. DeFrancisco that D.D.G. has marked episodes of
deteriorations, marked limitations in his ability to carry out
26
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 27 of 31
instructions in a school setting and to respond appropriately to
school matters and frequent deficiencies of concentration,
persistence or pace.
In rejecting Dr. DeFrancisco’s findings, the ALJ determined
that the findings are not consistent with his treatment records
nor the other evidence of record. According to the ALJ, Dr.
DeFrancisco’s treatment records described D.D.G.’s ADHD as mild,
and documented good response to treatment with medication, and
the teacher’s assessment and that of the state agency consultant
were also consistent with a less than marked limitation in this
domain. Indeed, the undersigned finds that while Dr.
DeFrancisco diagnosed D.D.G. with ADHD and a learning disorder,
he noted that despite his learning disorder and behavior
problems, D.D.G. was not markedly behind in school, and he
attributed some of D.D.G.’s behavior to being lazy and
inconsistent discipline or lack of supervision. Accordingly, the
undersigned finds that substantial evidence supports the ALJ’s
finding that D.D.G. has a less than marked limitation in this
domain.
The final domain, interacting and relating with others
focuses on how well a child is able to initiate and sustain
emotional connections with others, develop and use language of
the community, cooperate with others, comply with rules, etc.
The ALJ found that D.D.G. has less than marked limitations in
27
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 28 of 31
this domain and noted that D.D.G.’s teacher reported no
significant limitation in this domain, and that Dr.
DeFrancisco’s treatment notes indicate that D.D.G.’s problems in
this area result from inconsistent parenting and lack of
supervision. In Dr. DeFrancisco’s September 2007 evaluation, he
noted that the results from personality testing showed
indications of conduct disorders with little regard for other
people and resistance to authority. He also noted that D.D.G.’s
personality patterns are very unruly and shows social as well as
psychological underdevelopment. Dr. DeFrancisco’s opined that
D.D.G. has a marked degree of limitation in maintaining social
functioning and his treatment notes and the school records are
replete with comments about D.D.G.’s behavior problems,
including repeated instances of fighting and/or conflicts with
other students.
Additionally, Plaintiff reported that D.D.G. cannot get
along with his siblings and that he has no friends in the
neighborhood, although D.D.G. testified that he gets along with
his coach and has some friends on the football team. It appears
that the ALJ rejected Dr. DeFrancisco’s opinion regarding this
domain because his treatment notes indicate that problems in
this domain resulted from inconsistent parenting and lack of
supervision. The undersigned finds that while Dr. DeFrancisco’s
treatment notes repeatedly suggest that inconsistent parenting
28
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 29 of 31
and lack of supervision are contributing to D.D.G.’s behavior
problems, there is strong evidence, including the personality
testing, which reflect that whatever the cause, D.D.G. has
marked limitations in the domain of interacting and relating
with others. However, assuming arguendo that the ALJ erred in
failing to find that D.D.G. has marked limitations in this area,
the error is harmless because there is substantial record
evidence in support of the ALJ’s findings with respect to the
other domains. Accordingly, the ALJ properly found that D.D.G.
impairments does not functionally equal a Listing, and the
record contains substantial evidence which supports the ALJ’s
findings and reveals that she carefully considered all the
relevant evidence in finding that D.D.G. is not disabled.
V. Conclusion
For the reasons set forth, and upon careful consideration
of the administrative record and memoranda of the parties, it is
hereby RECOMMENDED that the decision of the Commissioner of
Social Security, denying Plaintiff’s claim for supplemental
security income, be AFFIRMED.
DONE this 6TH day of March, 2012.
/s/ SONJA F. BIVINS_ ___
UNITED STATES MAGISTRATE JUDGE
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Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 30 of 31
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND
RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND
FINDINGS CONCERNING NEED FOR TRANSCRIPT
l. Objection. Any party who objects to this recommendation or
anything in it must, within fourteen (14) days of the date of
service of this document, file specific written objections with
the Clerk of this court. Failure to do so will bar a de novo
determination by the district judge of anything in the
recommendation and will bar an attack, on appeal, of the factual
findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C);
Lewis v. Smith, 855 F.2d 736" date_filed="1988-09-19" court="11th Cir." case_name="Charles Lewis v. Freddie Smith, Mark Smith and Arnold Holt">855 F.2d 736, 738 (11th Cir. 1988); Nettles v.
Wainwright, 677 F.2d 404" date_filed="1982-05-17" court="5th Cir." case_name="Ennis Nettles v. Louie L. Wainwright, Director, Division of Corrections, State of Florida">677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The
procedure for challenging the findings and recommendations of
the Magistrate Judge is set out in more detail in SD ALA LR 72.4
(June 1, 1997), which provides that:
A party may object to a recommendation entered by
a magistrate judge in a dispositive matter, that
is, a matter excepted by 28 U.S.C. §
636(b)(1)(A), by filing a ‘Statement of Objection
to Magistrate Judge’s Recommendation’ within ten
days4 after being served with a copy of the
recommendation, unless a different time is
established by order. The statement of objection
shall specify those portions of the
recommendation to which objection is made and the
basis for the objection. The objecting party
shall submit to the district judge, at the time
of filing the objection, a br ief setting forth
the party’s arguments that the magistrate judge’s
recommendation should be reviewed de novo and a
different disposition made. It is insufficient
to submit only a copy of the original brief
submitted to the magistrate judge, although a
copy of the original brief may be submitted or
referred to and incorporated into the brief in
support of the objection. Failure to submit a
4
Effective December 1, 2009, the time for filing written
objections was extended to “14 days after being served with a
copy of the recommended disposition[.]” Fed. R. Civ. P.
72(b)(2).
Case 1:10-cv-00610-KD-B Document 23 Filed 03/07/12 Page 31 of 31
brief in support of the objection may be deemed
an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a
Court of Appeals; only the district judge's order or judgment
can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded).
Pursuant to 28 U.S.C. § 1915 and FED. R. CIV. P. 72(b), the
Magistrate Judge finds that the tapes and original records in
this case are adequate for purposes of review. Any party
planning to object to this recommendation, but unable to pay the
fee for a transcript, is advised that a judicial determination
that transcription is necessary is required before the United
States will pay the cost of the transcript.
DONE this 6th day of March, 2012.
/s/ SONJA F. BIVINS_______
UNITED STATES MAGISTRATE JUDGE