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Carter-Rippy v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

January 16, 2018

KARDEN CARTER-RIPPY, on behalf of her minor son, A.A.P., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          ALETA A. TRAUGER, United States District Judge

         Plaintiff Karden Carter-Rippy seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration (“SSA”) terminating Childhood Supplemental Security Income (“CSSI”) previously awarded to her minor child, A.A.P., under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383(c).[1] On October 11, 2017, the magistrate judge filed a Report and Recommendation (“R&R”) (Doc. No. 23), recommending that the plaintiff's Motion for Judgment on the Administrative Record (Doc. No. 17) be granted, that the decision of the SSA be reversed, and that this matter be remanded for further administrative proceedings. Now before the court are the SSA's Objections to the Magistrate Judge's Report and Recommendations [sic] (Doc. No. 24). For the reasons discussed herein, the court finds that the Objections have merit. The court will reject that portion of the R&R to which objections are lodged, adopt and accept the portion of the R&R to which no objections have been raised, deny the plaintiff's Motion for Judgment on the Administrative Record, and affirm the SSA's denial of benefits.


         The SSA initially awarded CSSI benefits to A.A.P. in December 2005, when the claimant was two and one-half years old. (See Tr. of Admin. Record (“AR”), Doc. No. 13, at 57, 60.[2]) After a continuing disability review in 2011, when A.A.P. was almost eight, the SSA discontinued benefits based on a determination that A.A.P. was no longer disabled. (AR 58-59, 74.) The decision was confirmed upon reconsideration. (AR 95-96.) The plaintiff requested a de novo hearing and a decision by an Administrative Law Judge (“ALJ”). (AR 109.) After the hearing, at which the plaintiff and A.A.P. appeared with counsel, the ALJ issued a decision unfavorable to the claimant (AR 14-27), and the Appeals Council denied review (AR 1-3), rendering the ALJ's decision the “final decision” of the SSA.

         The plaintiff thereafter filed this civil action on behalf of A.A.P. The SSA answered and filed a complete copy of the Administrative Record. On August 12, 2016, the plaintiff filed her Motion for Judgment on the Administrative Record along with a supporting brief. (Doc. Nos. 17, 18.) In support of her motion, the plaintiff argues that the ALJ (1) failed to give proper weight to the evidence presented by A.A.P.'s mother, Ms. Carter-Rippy; (2) accorded too much weight to school and IEP records; (3) failed to give proper weight to A.A.P.'s treating physician's opinion; (4) failed to give proper weight to the opinion of the psychological examiner; and (5) erred in concluding that A.A.P. did not meet Listing 112.11 of the Social Security Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1 § 112.11.

         In response, the SSA argues generally that substantial evidence supports the ALJ's determination that A.A.P. does not meet or equal Listing 112.11 and does not have marked or extreme limitations, and that the ALJ properly evaluated all of the evidence in the Administrative Record. (Doc. No. 19.) The plaintiff filed a Reply, contesting the ALJ's failure to specify the standard used to evaluate the testimony of Ms. Carder-Rippy and pointing to evidence in the record suggesting that the available school records are unreliable. (Doc. No. 20.)

         The magistrate judge issued the R&R on October 11, 2017. The magistrate judge rejects each of the plaintiff's arguments except her assertion that the ALJ improperly weighed the opinion of the psychological examiner. (R&R at 20.) With respect to that claim of error, the magistrate judge found that the “ALJ claim[ed] to have accorded ‘great weight' to [the psychological examiner's] clinical observations but rejected her opinion that A.A.P. suffers from marked impairment in personal functioning, reading comprehension, and written expression, which was based in part on clinical observations, ” and concluded that the ALJ's failure to provide “any legitimate reason for rejecting [the] opinion [was] fatal to his ultimate decision.” The SSA filed timely Objections (Doc. No. 24), arguing that the ALJ was free to accord great weight to the psychological examiner's observations without accepting all of her conclusions. The plaintiff argues in her Response (Doc. No. 25) that the magistrate judge correctly concluded that the ALJ's treatment of the psychological examiner's opinion was improper. The plaintiff did not file her own objections to any other findings or conclusions in the R&R, even though the law clearly contemplates that “any party may serve and file written objections” to a magistrate judge's proposed findings and recommendations. 28 U.S.C. § 636(b)(1).


         The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence in the administrative record. The court presumes familiarity with the record and will discuss in detail only those matters necessary for the consideration of the defendant's Objections. For purposes of the clarity of this opinion, it suffices to explain that A.A.P. began receiving CSSI benefits in December 2005, based on a determination that his impairments- delayed mental and psychomotor development-functionally equaled a listed impairment. He is now thirteen years old and has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and mixed receptive-expressive language disorder. (AR 511, 517, 529.)

         The ALJ found, and the plaintiff does not dispute, that A.A.P. had experienced medical improvement since the December 2005 comparison point decision. He deemed the claimant's ADHD and language disorder to be severe impairments that did not, individually or in combination, meet or equal a listed impairment. The real question before the ALJ, and the issue the parties dispute now, is whether the claimant has an impairment or combination of impairments that functionally equals the listings. The ALJ found that he does not, based in part upon his consideration and weighing of the opinion of S. June Dye, M.A., the psychological examiner. Although he purported to give “great weight” to Ms. Dye's clinical observations and testing, he ultimately rejected two of her three conclusions regarding A.A.P.'s limitations, as discussed in greater detail below.


         In the Objections, the SSA argues that, contrary to the magistrate judge's suggestion, the ALJ was entitled to give great weight to Ms. Dye's observations while giving less weight to her ultimate conclusions, that the ALJ's determinations were supported by substantial evidence in the record, and that the magistrate judge was incorrect in noting that certain scores identified by the ALJ were not contained in the report prepared by Ms. Dye.

         In her Response, the plaintiff contends that the SSA incorrectly characterizes Ms. Dye's opinion as that of an “other source”, rather than as an “acceptable medical source”, and that the ALJ does not have the medical expertise to draw his own conclusions from Ms. Dye's observations, thus substituting his own opinions for those of a trained therapist. (Doc. No. 25.)

         III. ...

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