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Chandler v. Social Security Administration, Commissioner

United States District Court, N.D. Alabama, Middle Division

March 13, 2019

PENNY CHANDLER on behalf of BC, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant.

          MEMORANDUM OPINION AND ORDER

          LILES C. BURKE UNITED STATES DISTRICT JUDGE

         Plaintiff 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.[1] For the reasons stated below, the Court finds that the final decision of the Commissioner should be affirmed.

         It is 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 legal standards.

         The 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).[2] 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. 416.926a(b)(1).

         To 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.

         Here, 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).

         Plaintiff 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.

         Nonetheless, the Court will attempt to address each of plaintiff's arguments in turn.

         1. ALJ's consideration of Dr. Bentley's o p in io n and substitution of h is own opinion for that of medical experts

         Plaintiff 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).

         Plaintiff 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.

         McClurkin 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.

         Furthermore, 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.

         Nor 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 ...


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