United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE
Penny Chandler filed a complaint (doc. 1) on behalf of her
minor child, BC. Plaintiff seeks judicial review of an
adverse final decision of the Commissioner of the Social
Security Administration (“the Commissioner”)
pursuant to 42 U.S.C. § 405(g). The Court has reviewed
the pertinent record and the parties'
briefs. For the reasons stated below, the Court
finds that the final decision of the Commissioner should be
the duty of the Court to review the decision of the ALJ and
not re-weigh the evidence or substitute its decision for the
ALJ's. In particular, the Court must affirm the ALJ's
decision if it is supported by substantial evidence, even if
there is evidence to supports the opposite conclusion. The
Court must also determine whether the ALJ applied the correct
Social Security Administration has established a three-step
sequential evaluation process to determine whether an
individual under the age of 18 is disabled. 20 C.F.R.
416.924(a). First, the ALJ must determine whether the
child is engaged in substantial gainful activity.
Id. Second, the ALJ must determine whether the child
has a medically determinable impairment, or a combination of
impairments, that are severe. Id. Third, the ALJ
must determine whether the child has an impairment or
combination of impairments that meets or medically equals the
severity of a listing or that functionally equals a listing.
Id. In determining whether an impairment or
combination of impairments functionally equals a listing, the
ALJ must assess the child's functioning in six areas: (1)
acquiring and using information; (2) attending and completing
tasks; (3) interacting and relating with others; (4) moving
about and manipulating objections; (5) caring for oneself;
and (6) health and physical well-being. 20 C.F.R.
functionally equal a listing, the child's impairment or
combination of impairments must result in
“marked” limitations in two domains of
functioning or an “extreme” limitation in one
domain. Id. at 416.926a(a). A child has a
“marked” limitation in a domain when his
impairments interfere seriously with his ability to
independently initiate, sustain, or complete activities.
Id. at 416.926a(e). “Marked” limitation
also means a limitation that is more than moderate but less
than extreme. Id. A child has an
“extreme” limitation in a domain when his
impairments interfere very seriously with his ability to
independently initiate, sustain, or complete activities.
Id. “Extreme” is more than
“marked” and is the rating given to the worst
limitations. Id. In deciding whether a child has a
“marked” or “extreme” limitation, the
ALJ considers all relevant information in the case record
about how a child's functioning is limited because of his
impairments. Id. at (f)(1); 20 C.F.R. 416.924a.
the ALJ found that BC had not engaged in substantial gainful
activity since the alleged onset date, July 24, 2014. (R.
18). The ALJ also found that BC had the following severe
impairments: depression; anxiety; attention deficit
hyperactivity disorder; and oppositional defiant disorder.
(Id.). The ALJ determined that BC did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Id. at 20). The ALJ then determined that BC did not
have an impairment or combination of impairments that
functionally equaled the severity of a listing. (Id.
at 21). In doing so, the ALJ found that BC had (1) less than
marked limitation in acquiring and using information; (2)
less than marked limitation in attending and completing
tasks; (3) marked limitation in interacting and relating with
others; (4) no limitation in moving about and manipulating
objects; (5) no limitation in the ability to care for
himself; and (6) less than marked limitation in health and
physical well-being. (Id. at 23-28).
contends that (1) the ALJ committed reversible error by
incorrectly assessing the opinion evidence from consultative
examiner, Jack Bentley, Ph.D., LPC, and by substituting his
own opinion for that of the medical experts; and (2) the
Appeals Council failed to provide an opportunity for
plaintiff to submit new legal arguments after obtaining
counsel. Plaintiff's brief consists of a restatement of
the record evidence and case law with no application to the
facts at hand.
the Court will attempt to address each of plaintiff's
arguments in turn.
ALJ's consideration of Dr. Bentley's o p in io n and
substitution of h is own opinion for that of medical
argues that the ALJ failed to state with at least “some
measure of clarity” grounds for repudiating the opinion
of Dr. Bentley. (Doc. 13, p. 2).
relies on McClurkin v. Soc. Sec. Admin., 625
Fed.Appx. 960 (11th Cir. Sept. 4, 2015), in support of this
argument. In McClurkin, the Eleventh Circuit found
that the ALJ must state with particularity the weight given
to different medical opinions and the reasons for same.
Id. at 962. The Eleventh Circuit noted that, in the
absence of such a statement, it is impossible for a reviewing
court to determine whether the ultimate decision on the
merits of the claim was rational and supported by substantial
evidence. Id. The Eleventh Circuit stated,
“Therefore, when the ALJ fails to state with at least
some measure of clarity the grounds for his decision, we will
decline to affirm simply because some rationale might have
supported the ALJ's conclusion.” Id.
(internal citation and quotation marks omitted). The Eleventh
Circuit then concluded that the ALJ erred in failing to
clearly articulate weight given to a non-treating physician.
Id. at 962-63.
does not help plaintiff here. This is because the ALJ clearly
considered the opinion of Dr. Bentley and expressly gave it
partial weight due, in part, to the fact that Dr. Bentley was
not a psychologist, but a licensed professional counselor.
Notably, th e ALJ also recognized that Dr. Bentley's
opinion supported the ALJ's conclusion that BC would have
some limitations secondary to his impairments, which was
supportive of the ALJ's decision.
there is substantial evidence to support the ALJ's
decision to only afford the opinions of Dr. Bentley partial
weight. For one, as the ALJ noted, a licensed professional
counselor is not an acceptable medical source. 20 C.F.R.
416.913(d). Moreover, Dr. Bentley opined that BC appeared to
have moderate to marked impairment level both behaviorally
and academically, but that his prognosis was favorable. (R.
351-52). Dr. Bentley also noted, among other things, that BC
made good eye contact, had little difficulty communicating,
that his psychomotor skills were intact, and that there was
no limitations in his receptive or expressive communication
skills. (Id. at 350). Indeed, the ALJ did find that
BC had marked limitation in interacting and relating with
others, which is supported, in part, by Dr. Bentley's
decision. As the ALJ noted, no treating, examining, or
reviewing physician indicated that BC was disabled or
otherwise unable to function in a generally age appropriate
manner across the domains at issue. And, with respect to
BC's mental impairments, the ALJ found that they had been
amenable to treatment and had not significantly curtailed BC
outside the home.
does another case cited by plaintiff, Winschel v.
Commissioner of Soc. Soc., 631 F.3d 1176, 1179 (11th
Cir. 2011), help BC's case. In Winschel, the
Eleventh Circuit reversed the decision of the ALJ for failing
to consider the opinion of a treating physician and give it
weight. Dr. Bentley was not a treating physician and was
therefore not entitled to “substantial or considerable
weight.” Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2004) (internal quotation marks and citation
omitted). As the Court has noted, Dr. Bentley was a
consultative examiner, a ...