K. Leeman v. Commissioner of Social Securit

449 F. App'x 496

6th Cir.

2011

Check Treatment

Docket

K. LEEMAN, a minor, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 10-1854.

United States Court of Appeals, Sixth Circuit.

Dec. 6, 2011.

letrades, Indus. & Textile Employees, 407 F.3d 784, 787-88 (6th Cir.2005).

Tucker rejected a claim raised for the first time in opposition to summary judgment. Id. at 788-89. Sanford did not address his purported KCRA retaliation claim until his post-remand supplemental brief in the district court, which was filed well after the completion of discovery and the consideration of summary judgment motions. Until that point, each party‘s briefs had focused on the defendants’ status as employers or the merits of Sanford‘s claims.

Sanford raised the interference and aider/abetter claims for the first time on appeal. They were not briefed by the parties or addressed by the district court and are thus waived. Although Sanford briefly mentioned the possibility of agency liability in his response to the Manor‘s Motion to Reconsider and his post-remand Motion to Alter or Amend the Judgment, issues raised for the first time in such motions are not preserved for appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008).

III. CONCLUSION

The district court abused its discretion in reversing its earlier decision that Southeastern was Sanford‘s joint employer and thus could face liability under Title VII or the KCRA. Therefore, we reverse the grant of summary judgment to Southeastern and remand for further proceedings consistent with this opinion. Because Sanford has not shown that the Manor meets the numerosity requirement of Title VII or the KCRA, however, we affirm the grant of summary judgment to the Manor.

REVERSED in part and AFFIRMED in part.

Before: KENNEDY, GIBBONS, and KETHLEDGE, Circuit Judges.

KETHLEDGE, Circuit Judge.

In February 2005, K. Leeman‘s parents took him to see a psychologist. They reported that Leeman was an aggressive six-year-old with a history of hyperactivity and poor academic performance. The psychologist referred Leeman to Dr. Sarabjit Tokhie for long-term therapy. Dr. Tokhie diagnosed Leeman with attention deficit disorder and oppositional defiant disorder. Around the same time, Leeman‘s parents filed an application for disability benefits.

School records for the following years reveal problems completing assignments, staying organized, socializing, and behaving. Yet those records were not uniformly bad. A progress report for the 2006-2007 academic year, for instance, said that Leeman had “worked hard” to control himself and that he had “done a great job both academically and with his behavior.” And in January 2008, Leeman‘s parents said they had not received any recent complaints from Leeman‘s school.

In July 2008, an ALJ ruled on Leeman‘s disability application. The ALJ initially determined that Leeman‘s ailments caused Leeman more than “minimal functional limitations,” a necessary prerequisite to receiving benefits. See 20 C.F.R. § 416.924(c), (d). But the ALJ then found that those ailments did not result in “marked limitations“—meaning “more than moderate” but “less than extreme” limitations in “two domains of functioning,” as the regulations required. See 20 C.F.R. § 416.926a(a), (e)(2)(i). He discounted a report by Dr. Tokhie that Leeman suffered marked limitations in three domains: acquiring and using information, attending and completing tasks, and interacting with others. Instead, the ALJ concluded that Leeman suffered a marked limitation in only one, interacting with others.

Leeman says the ALJ should have deferred to Dr. Tokhie‘s opinion that Leeman‘s ability to attend and complete tasks is markedly limited. He notes that treating-physician opinions deserve great weight. See Gaskin v. Comm‘r of Soc. Sec., 280 Fed.Appx. 472, 474 (6th Cir.2008). And yet, he argues, the ALJ perfunctorily rejected Dr. Tokhie‘s opinion on the unsupported theory that school records show that Leeman was “stable” and showed “improvement.”

We conclude that substantial evidence supports the ALJ‘s decision to discount Dr. Tokhie‘s opinion. See Francis v. Comm‘r of Soc. Sec., 414 Fed.Appx. 802, 805-06 (6th Cir.2011). ALJs may discount treating-physician opinions that are inconsistent with substantial evidence in the record, like the physician‘s own treatment notes. See Payne v. Comm‘r of Soc. Sec., 402 Fed.Appx. 109, 112-13 (6th Cir.2010); Gaskin, 280 Fed.Appx. at 475. And the ALJ here specifically pointed to Dr. Tokhie‘s treatment notes in rejecting Dr. Tokhie‘s opinion. For instance, Dr. Tokhie noted that Leeman showed “good concentration, attention, and focus.” See A.R. 232, 236, 238, 250. He also said that Leeman was “coherent” and had good eye contact. See A.R. 238, 242, 245. And Dr. Tokhei observed that Leeman‘s academic performance was improving—hardly a characteristic of someone with trouble attending and completing tasks. See § 416.926a(h)(2)(iv).

The ALJ might have added that Leeman swam and did an “age appropriate job” taking out the trash, vacuuming, and folding clothes. See Heston v. Comm‘r of Soc. Sec., 245 F.3d 528, 535 (6th Cir.2001). In contrast, children with attention problems struggle to participate in group sports and complete chores. See 20 C.F.R. § 416.926a(h)(2)(iv).

Leeman responds that a consulting physician, Dr. John Jeter, “affirmed the very diagnoses relied upon by the treating physician.” But this argument is beside the point: The ALJ disagreed with Dr. Tokhei‘s view of the severity of Leeman‘s condition, not Dr. Tokhei‘s diagnosis. Moreover, another consultant, Dr. Paul Liu, specifically opined that Leeman suffered no marked limitations.

We affirm the district court‘s judgment.

Read the detailed case summary