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Weisgarber v. Berryhill

United States District Court, E.D. Tennessee

August 22, 2017

ANGELA WEISGARBER, on behalf of N.C. B., a minor, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.

         This case is before the Court on plaintiff's Motion for Summary Judgment and Memorandum in Support [Docs. 23, 24] and defendant's Motion for Summary Judgment and Memorandum in Support [Docs. 28, 29]. Angela Weisgarber, on behalf of her minor nephew, N.C. B. (“plaintiff”), seeks judicial review of the decision of the Administrative Law Judge (“ALJ”), which is the final decision of defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“Commissioner”). For the reasons that follow, the Court will grant the Commissioner's motion and deny plaintiff's motion.

         I. Procedural History

         This case is before the Court for a second time. Plaintiff originally filed an application for supplemental security income (“SSI”) under Title XVI of the Social Security Act on July 22, 2010, alleging a period of disability that began on April 1, 2008 [Tr. 107]. After the application was repeatedly denied at the administrative level, plaintiff filed a complaint with this Court [Tr. 678]. On July 3, 2014, the Court granted plaintiff's motion for summary judgment and remanded the case back to the agency for further consideration [Tr. 676-711].

         To comply with the directives set forth in the Court's Order of remand, the agency's Appeals Council remanded the case to the ALJ, instructing the ALJ to offer plaintiff a second hearing, take any necessary action to complete the administrative record, and issue a new decision [Tr. 712-14]. The ALJ held a hearing on May 26, 2015 [Tr. 637-49]. Plaintiff's counsel requested a closed period[2] of disability from July 16, 2010, through September 17, 2013 [Tr. 831]. On October 26, 2015, the ALJ found that plaintiff was not “disabled” [Tr. 614-30]. Plaintiff did not make a timely request for review to the Appeals Council [Tr. 608-09], thereby making the ALJ's decision the final decision of the Commissioner.

         Having exhausted his administrative remedies, plaintiff filed the instant Complaint with the Court on February 26, 2016, seeking judicial review of the Commissioner's final decision under Section 405(g) of the Social Security Act [Doc. 1]. The parties have filed competing motions for summary judgment, and this matter is now ripe for adjudication.

         II. Standard of Review

         When reviewing the Commissioner's determination of whether an individual is disabled pursuant to 42 U.S.C. § 405(g), the Court is limited to determining: (1) whether the ALJ's decision was reached through application of the correct legal standards and in accordance with the procedure mandated by the regulations and rulings promulgated by the Commissioner, and (2) whether the ALJ's findings are supported by substantial evidence. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009) (citation omitted).

         Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It is immaterial whether the record may also include substantial evidence to support a different conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the case differently. Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986). The substantial evidence standard is intended to create a “‘zone of choice' within which the Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted). On review, plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v. Sec'y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).

         III. Analysis

         Plaintiff herein is a child under the age of eighteen. Ms. Weisgarber, who is plaintiff's aunt, seeks SSI benefits on behalf of plaintiff. To qualify for SSI benefits as a child, a child must be under the age of eighteen and prove that he or she has a “medically determinable physical or mental impairment, which results in marked or severe functional limitations and can be expected to result in death or 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).

         A child's disability claim is assessed pursuant to a three-step sequential evaluation. 20 C.F.R. § 416.924(a). At step one, the child must not be engaged in “substantial gainful activity.” Id. At step two, the child must “have an impairment or combination of impairments that is severe.” Id. At step three, the child's impairment or combination of impairments must “meet, ” “medically equal, ” or “functionally equal” one of the medical listings found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 416.924(a)-(d).

         A child “meets” a medical listing when his or her impairment satisfies all of the criteria of a particular listing. Id. § 416.925(c)(3). To “medically equal” a listing, a child's impairment must be “medically equivalent to a listed impairment.” Id. § 416.926(a). That is, the child's impairment or combination of impairments is of “equal medical significance to the required criteria.” Id. § 416.926(b)(1)(ii). To “functionally equal” a listing, the child's impairment “must be of listing-level severity.” Id. § 416.926a(a). “Listing-level severity” means that the child has either two “marked” limitations or one “extreme” limitation in one of the following six domains of functioning: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) caring for himself, or (6) health and physical well-being. Id. § 416.926a(b)(1). “These domains are broad areas of functioning intended to capture all of what a child can or cannot do.” Id.

         Turning to the instant case, plaintiff argues that the ALJ's decision is not supported by substantial evidence. Specifically, plaintiff asserts that the ALJ erred in finding that plaintiff did not meet or medically equal Listing 112.03 [Doc. 24 pp. 19-23]. Plaintiff further maintains that the ALJ erred in finding that plaintiff did not have an impairment that functionally equaled a listing [Id. at 24-31]. Lastly, plaintiff submits that the ALJ improperly weighed the opinion evidence of record by giving greater weight to the opinions of non-examining state agency medical consultants and “other sources” than the opinions of plaintiff's treating sources, Gordon Greeson, M.D., and Angela Reno, Psy., D. [Id. at 31-35]. The Court will address plaintiff's allegations of error in turn.

         A. Listing 112.03

         Plaintiff asserts that the ALJ ignored favorable evidence and provided a “bare conclusion, ” with little analysis, that plaintiff did not meet or medically equal Listing 112.03. [Id. at 19-23].

         Listing 112.03 deals with schizophrenic, delusional (paranoid), schizoaffective, and other psychotic disorders. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.03. To meet or medically equal the listing, a claimant must satisfy the requirements of paragraphs A and B. Id. In the disability decision, the ALJ found there was evidence that plaintiff had hallucinations as required by paragraph A, but he did not satisfy paragraph B [Tr. 619]. Paragraph B of Listing 112.03 requires at least two of the following:

a. Marked impairment in age-appropriate cognitive/communicative function, documented by medical findings (including consideration of historical and other information from parents or other individuals who have knowledge of the child, when such information is needed and available) and including, if necessary, the results of appropriate standardized psychological tests, or for children under age 6, by appropriate tests of language and communication; or
b. Marked impairment in age-appropriate social functioning, documented by history and medical findings (including consideration of information from parents or other individuals who have knowledge of the child, when such information is needed and available) and including, if necessary, the results of appropriate standardized tests; or
c. Marked impairment in age-appropriate personal functioning, documented by history and medical findings (including consideration of information from parents or other individuals who have knowledge of the child, when such information is needed and available) and including, if necessary, appropriate standardized tests; or
d. Marked difficulties in maintaining concentration, persistence, or pace.

20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.03(B).

         In concluding that plaintiff did not satisfy the paragraph B criteria, the ALJ found that plaintiff's written expression learning disorder and psychotic disorder, both found to be a severe impairment at step 2, did not cause a marked impairment [Tr. 619]. With regard to subparagraph (a), cognitive/communicative functioning, the ALJ cited to an August 2010, questionnaire completed by plaintiff's speech therapist, Pamela Allen, M.A., CCC-SLP, who opined that plaintiff could communicate effectively and express thoughts and ideas in an age-appropriate manner with only occasional difficulty organizing his thoughts through writing [Tr. 147-48, 619]. As to the remaining criteria required by paragraph B, the ALJ observed that treatment notes “previously discussed” in the ALJ's decision generally indicated that plaintiff made good grades, had friends at school, and did not exhibit behavior problems at school [Tr. 618-19]. The ALJ referenced a treatment note from October 2010, which documented that plaintiff's grades were improving, and while he had behavioral problems at home, he did not have any at school [Tr. 462, 618]. By January 2011, it was noted that plaintiff experienced significant improvement with medication [Tr. 601, 618]. Plaintiff continued to make progress throughout the remainder of the closed period. Treatment records document that plaintiff was doing well, getting good grades, and had friends [Tr. 618, 877, 890, 892, 912, 921, 925-28, 931]. Additionally, the ALJ cited to an August 2010, questionnaire completed by plaintiff's third-grade teacher, Rhonda Phillips, who opined that plaintiff did not have problems getting along with others or caring for himself [Tr. 154-55, 156, 619].

         In light of these considerations, the Court finds that the ALJ provided more than a “bare conclusion” that plaintiff did not meet or medically equal Listing 112.03. The ALJ provided a reasoned and thorough explanation-with citations to specific medical and non-medical evidence-as to why plaintiff did not satisfy the requisite marked impairments under paragraph B. Contrary to plaintiff's assertion, the ALJ's discussion of Listing 112.03 and citation to specific record evidence demonstrates how the ALJ reached her conclusion, thereby permitting meaningful judicial review by this Court. Cf. Woodall v. Colvin, No. 5:12-CV-1818, 2013 WL 4710516, at *10 (N.D. Ohio Aug. 29, 2013) (“While the ALJ stated that he considered all of the Listings, particularly those in section 112.00, the ALJ failed to discuss those Listings and failed to compare them with the evidence of record to show how he determined that Claimant's impairments did not meet or medically equal any of the Listings.”).

         Plaintiff asserts that the ALJ “only provided vague references to portions of the record indicating periods of improvement and/or stability, without mentioning the ample records supporting evidence of ongoing hallucinations during the closed end period” [Doc. 24 p. 24]. To the extent that plaintiff's complaint of “vague references” is in response to the ALJ's citation to “previously discussed” treatment notes, the Court observes that the Sixth Circuit Court of Appeals has implicitly endorsed the practice of looking at the entirety of the ALJ's decision for statements and cited reasons as to why a claimant's impairment does not satisfy a listing. See Bledsoe v. Barnhart, 165 F. App'x 408, 411 (6th Cir. 2006) (finding that “[t]he ALJ did not err by not spelling out every consideration that went into the step three determination” because “[t]he ALJ described evidence pertaining to all impairments, both severe and non-severe . . . five pages earlier in his opinion and made factual findings”).

         Here, the ALJ's discussion of Listing 112.03 specifically references treatment notes that the ALJ discussed one page earlier in the decision, in which citation was made to treatment notes that document reports of plaintiff making good grades, exhibiting no behavioral problems at school, and having friends. The ALJ was not required to discuss this evidence in detail a ...


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