Jones et al v. Astrue, No. 3:2009cv00676 - Document 19 (S.D.W. Va. 2010)
Court Description: MEMORANDUM AND OPINION After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision Is supported by substantial evidence; accordingly, by Judgment Order entered this day, the final dedcision of the Commissioner is Affirmed and this matter is Dismissed from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 12/9/2010. (cc: attys; any unrepresented party) (skm)
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Jones et al v. Astrue Doc. 19 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION CH RISTY A. JON ES., o n be h alf o f S.R.S, Plain tiff, v. CASE N O. 3 :0 9 -cv-0 0 6 76 MICH AEL J. ASTRU E, Co m m is s io n e r o f th e So cial Se cu rity Ad m in is tratio n , D e fe n d an t. MEMORAN D U M OPIN ION This is an action seeking review of the final decision of the Com m issioner of Social Security denying the Claim ant=s application for children's Supplem ental Security Incom e (ASSI@) under Title XVI of the Social Security Act. This case is presently before the Court on the parties’ Motions for J udgm ent on the Pleadings. (Docket Nos. 11 and 15). Both parties have consented in writing to a decision by the United States Magistrate J udge. (Docket Nos. 5 and 6). The Court has fully considered the evidence and the argum ents of counsel. For the reasons set forth below, the Court finds that the decision of the Commissioner is supported by substantial evidence and should be affirm ed. I. PROCED U RAL H ISTORY Plaintiff, S.R.S. (hereinafter referred to as AClaim ant@), through her mother, Christy - 1 - Dockets.Justia.com A. J ones,1 originally filed an application for children's SSI benefits on February 26, 20 0 3, alleging low birth weight. Claim ant received benefits until J une 1, 20 0 5 when benefits ceased due to Claim ant’s m edical im provem ent. (Tr. at 14). Claim ant m issed the deadline to appeal the cessation of benefits. Accordingly, Claim ant, through her m other, filed a second application for SSI benefits on Septem ber 26, 20 0 5, alleging that as of that date Claim ant was disabled, because she was “prem ature, very underweight and height for her age. She has problem s walking. She has behavior problem .” (Tr. at 125). This application was denied initially on March 22, 20 0 6, and upon reconsideration on Decem ber 27, 20 0 6. (Tr. at 14). Claim ant tim ely requested a hearing, which took place on J uly 16, 20 0 8 before the Honorable J am es S. Quinlivan, Adm inistrative Law J udge (AALJ @). (Tr. at 30 3-325). A supplem ental hearing was held on Novem ber 19, 20 0 8 to update the status of Claim ant’s condition. (Tr. at 326-332). By decision dated J anuary 15, 20 0 9, the ALJ determ ined that Claim ant was not entitled to benefits. (Tr. at 14-26). The ALJ =s decision becam e the final decision of the Com m issioner on April 17, 20 0 9, when the Appeals Council denied Claim ant=s request for review. (Tr. at 5-7). On J une 16, 20 0 9, Claim ant brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. ' 40 5(g). II. SU MMARY OF ALJ’S D ECISION A child is disabled under the Social Security Act if he or she Ahas a m edically determ inable physical or m ental im pairm ent, which results in m arked and severe functional lim itations, and which can be expected to result in death or which has lasted or 1 Ms. J ones was form erly known as Christy Barnette and Christy Sm ith. Claim ant has also been known by the surnam e Barnette. - 2 - can be expected to last for a continuous period of not less than 12 m onths.@ 42 U.S.C. ' 1382c(a)(3)(C)(i). The regulations require the ALJ to determ ine a child’s disability using a three step sequential evaluation. 20 U.S.C. § 416.924. At the first step, the ALJ m ust determ ine whether the child is engaged in substantial gainful activity. Id. If the child is, he or she is found not disabled. Id. If the child is not, the second inquiry is whether the child has a severe im pairm ent. Id. An im pairm ent is not severe if it constitutes only a Aslight abnorm ality or a com bination of slight abnorm alities that causes no m ore than m inim al functional lim itations.@ Id. If a severe im pairm ent is present, the third and final inquiry is whether such im pairm ent m eets or m edically equals any of the im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4 (“Appendix 1”). Id. Although an im pairm ent m ay not, on its face, m eet or m edically equal a listing, it is considered to be of listing-level severity when the im pairm ent is t h e fu n ct io n a l e q u iv a le n t of a listing. 20 C.F.R. § 416.926a (em phasis added). If the claim ant=s im pairm ent m eets, m edically or functionally equals a listing in Appendix 1, the claim ant is found disabled and is awarded benefits. 20 U.S.C. §§ 416.924 and 416.926a. If it does not, the claim ant is found not disabled. To determine functional equivalence, the regulations require the ALJ to evaluate the lim itations resulting from the child’s im pairm ent under six broad dom ains of functioning, including: (1) Acquiring and using inform ation; (2) Attending and com pleting tasks; (3) Interacting and relating to others; (4) Moving about and m anipulating objects; (5) Self-care; and (6) Health and physical well-being. - 3 - Id. at 416.926a(b)(1); SSR 0 9-1p. If the child has “m arked” lim itations in two of the six dom ains, or “extrem e” lim itations in one of them , the child’s im pairm ent will functionally m eet a listing. Id. at 416.926a(d). “This technique for determ ining functional equivalence accounts for all of the effects of a child’s im pairm ents singly and in com bination—the interactive and cum ulative effects of the im pairm ents—because it starts with a consideration of actual functioning in all settings.” SSR 0 9-1p. The SSA calls this technique the “whole child” approach. Id. In this particular case, the ALJ determ ined that Claim ant satisfied the first inquiry, because she had not engaged in substantial gainful activity. (Tr. at 17, Finding No. 2). Under the second inquiry, the ALJ found that Claim ant suffered from severe im pairm ents of recurrent upper respiratory infection and attention deficit hyperactivity disorder (“ADHD”) versus oppositional defiant disorder (“ODD”). (Tr. at 17, Finding No. 3). At the third and final inquiry, the ALJ concluded that Claim ant=s im pairm ents did not m eet and did not m edically or functionally equal the level of severity of any listing in Appendix 1. (Tr. at 18-26, Finding Nos. 4 and5). Therefore, Claim ant was not under a disability as defined in the Social Security Act and was not entitled to benefits. (Tr. at 26, Finding No. 6). III. SCOPE OF REVIEW The sole issue before this court is whether the final decision of the Com m issioner denying the claim is supported by substantial evidence. In Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972), the Fourth Circuit Court of Appeals defined substantial evidence as: evidence which a reasoning m ind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but m ay be som ewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.= - 4 - Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Law s v. Cellebreze, 368 F.2d 640 , 642 (4th Cir. 1966)). Additionally, the Com m issioner, not the court, is charged with resolving conflicts in the evidence. Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). Nevertheless, Courts Am ust not abdicate their traditional functions; they cannot escape their duty to scrutinize the record as a whole to determ ine whether the conclusions reached are rational.@ Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). The decision before the Court is “not whether the claim ant is disabled, but whether the ALJ ’s finding of no disability is supported by substantial evidence.” Johnson v. Barnhart, 434 F. 3d 650 ,653 (4 th Cir. 20 0 5), citing Craig v. Chater, 76 F.3d585, 589 (4 th Cir. 20 0 1). A careful review of the record reveals the decision of the Commissioner is supported by substantial evidence. IV. CLAIMAN T=S BACKGROU N D Claim ant was five years old at the tim e of the adm inistrative hearing and attended the local kindergarten. (Tr. at 328.) She was born prem aturely in 20 0 3 and was hospitalized at Cabell Huntington Hospital for several m onths thereafter. (Tr. at 180 ). Claim ant lived with her m other and stepfather, both of whom were disabled. (Tr. at 30 630 7). Claim ant was the only child in the household. Id. V. CLAIMAN T=S CH ALLEN GES TO TH E COMMISSION ER=S D ECISION Claim ant asserts that the Com m issioner=s decision is not supported by substantial evidence, because the ALJ erred in two ways. First, he improperly disregarded the findings of J am es M. Lewis, M.D., who was Claim ant’s treating physician for her com plaints of ADHD and ODD. (Pl. Br. at 5). Second, Claim ant argues that the ALJ ignored Claim ant’s - 5 - height and weight, which were below the 5 th percentile for her age, and consequently approached Listing 10 0 .0 2(B) of Appendix 1. Claim ant em phasizes that her “growth im pairm ent” was the basis for her earlier award of SSI benefits and suggests that this im pairm ent continues to constitute a recognized disability. (Pl. Br. at 6). To the contrary, the Commissioner contends that the ALJ properly declined to adopt Dr. Lewis’ severity assessment of Claimant’s functional limitations, because that assessment was based on the subjective statem ents of Claim ant’s m other, rather than the objective m edical evidence. (Def. Br. at 9-11). Furtherm ore, the Com m issioner argues that none of Claim ant’s im pairm ents, either taken singly or in com bination, m et or equaled a listing; therefore, the ALJ was correct in finding that Claim ant was not disabled. (Def. Br. At 1117). VI. MED ICAL D OCU MEN TATION The Court has reviewed all evidence of record, including the medical documentation. To the extent m edical inform ation is relevant to the issue of whether the Com m issioner’s decision is supported by substantial evidence, the Court addresses it in detail in the discussion below. In sum m ary, however, Claim ant was born prem aturely in February 20 0 3. Since birth, she received general pediatric care from the physicians of University Pediatrics; most frequently from Dr. J ay Naegele and Dr. J enna Dolan. In February 20 0 6, Dr. J ames Lewis, a neurodevelopm ental disabilities specialist with University Pediatrics, assessed Claim ant for behavioral problem s at the request of her parents. Dr. Lewis evaluated and treated Claimant on approximately three occasions before the administrative hearing in J uly 20 0 8. Ancillary to her applications for SSI benefits, Claimant underwent evaluations by Dr. - 6 - Drew Apgar, a fam ily m edicine specialist, and Lisa Tate, M.A., a psychologist. In addition, the SSA had a Childhood Disability Evaluation com pleted by a non-exam ining m edical source, Dr. J am es Binder, a child and adolescent psychiatrist who was also affiliated with University Pediatrics. VII. D ISCU SSION Claim ant contends that her im pairm ents, including her recurrent upper respiratory infections, ADHD, and ODD, in com bination, m et or m edically equaled an im pairm ent listed in Part B of Appendix 1. Likewise, she argues that her sm all stature and low weight m et or m edically equaled the listed im pairm ent described in § 10 0 .0 2(B) of Appendix 1. As an alternate argum ent, Claim ant posits that the functional lim itations of her ADHD and ODD, when com bined with the functional lim itations of her recurrent upper respiratory infections, are of sufficient severity to functionally equal a listed impairment in Appendix 1. A. Im p airm e n ts th at Alle ge d ly Me t o r Me d ically Equ ale d a Lis te d Im p airm e n t. 1. Gr o w t h Im p a ir m e n t Part B of Appendix 1 contains m edical criteria for the evaluation of im pairm ents of children under age 18. Part B includes 14 categories of disease processes or m edical disorders that have been assigned severity criteria sufficient to create the presum ption of disability in children. Section 10 0 .0 0 addresses the disorder of “Growth Im pairm ent.” Paragraph B of § 10 0 .0 0 states the following: “[D]eterm inations of growth im pairm ent should be based upon the com parison of current height with at least three previous determ inations, including length at birth, if available.” In addition, height and weight should be plotted on standard growth charts, such as those derived from the National - 7 - Center for Health Statistics. Id. Finally, the adult heights of the child’s natural parents and siblings should be furnished to identify those children “whose short stature represents a fam ilial characteristic rather than the result of a disease. This is particularly true for adjudication under 10 0 .0 2B.” Id. Section 10 0 .0 2B states severity criteria for a growth im pairm ent “considered to be related to an additional m edically determ inable im pairm ent.” To m eet the criteria of this section, the Claim ant m ust experience a “[f]all to, or persistence of, height below the third percentile.” At the outset, Claim ant cannot m eet this Listing, because there is no evidence that her height is in any way related to her m edically determ inable im pairm ents of ADHD, ODD, and recurrent upper respiratory infections. Apart from this fact, Claim ant’s height has never fallen to, nor persisted at, a level below the third percentile. To qualify for benefits on account of a listed im pairm ent contained in Appendix 1, a claim ant m ust present medical findings that meet all elements of the listing for that impairment. Sullivan v. Zem bly , 493 U.S. 521 (1990 ). At birth, Claim ant’s length was m easured at the 16 th percentile. (Tr. at 180 ). At twenty seven m onths of age, her height was 34 inches, which placed her at approxim ately the 40 th percentile for girls her age. (Tr. at 196). At thirty four m onths, her height was m easured at 34 ¾ inches, which placed her in the 10 th percentile. (Tr. at 270 ). However, two m onths later, her height was m easured at 35 ¾ inches, placing her at the 23 rd percentile. (Tr. at 215). At age five years and two m onths, Claim ant was 41 ¾ inches in height, which corresponded to the 38 th percentile for girls in her age group.2 (Tr. at 258). 2 All of these percentiles com e from the applicable National Center for Health Statistics: NCHS Growth Charts for Girls. - 8 - The record further reflects that Claim ant’s m other is 5 foot 6 inches tall, but her biological father was only 5 foot 7 inches tall. (Tr. at 137). According to the National Center for Health Statistics, the average height for an adult m ale in the United States is 5 foot 9.2 inches. When the height of Claimant’s father is plotted on the National Center for Health Statistics: NCHS Growth Chart for Boys Age 2-20 , his height falls within the 25 th -30 th percentile range. The below average height of Claim ant’s father lends support to Dr. Drew Apgar’s conclusion that “tracing [Claim ant’s] height and weight on a growth chart sim ply suggests low norm al developm ental patterns,” (Tr. at 225), rather than a growth im pairm ent. Accordingly, based upon the criteria contained in Listing 10 0 .0 2B, Claimant’s small stature did not m eet, nor m edically equal, the requisite severity criteria associated with the listed growth im pairm ent disorder. 2. R e s p ir a t o r y In fe ct io n s , AD H D , a n d OD D Likewise, an appraisal of Claim ant’s docum ented respiratory and m ental im pairm ents (ADHD and ODD) falls short of corroborating Claim ant’s allegation that, taken in combination, these impairments meet or medically equal the severity requirements of a body system listing contained in Appendix 1. Claim ant does not specify to which listed body system she refers in her brief; however, the intensity and severity of her im pairm ents have not been established to the degree that they m eet or m edically equal the criteria contained in either the section on respiratory system disorders or the section on m ental disorders. These are the only listed body system s that appear relevant to Claim ant. Claimant’s mother testified in the November 20 0 8 administrative hearing that since starting school in the Fall of 20 0 8, Claim ant’s “im m une system has failed her body.” (Tr. at 329). She stated that Claim ant was in the doctor’s office four tim es in October, and the - 9 - doctor he had placed Claim ant on a nebulizer, which she allegedly used four times a day for asthma-like symptoms. (Tr. at 329-330 ). Claimant’s mother further testified that Claimant had been treating with Dr. Lewis for her ADHD and ODD for two years. Id. She indicated that as of Novem ber 20 0 8, Claim ant suffered from “asthm a, upper respiratory infections, ear infections, and behavioral problem s.” (Tr. at 331). The records reflect that on August 20 , 20 0 8, Claim ant presented to University Pediatrics for a well-child visit. (Tr. at 299-30 2). On this visit, Claim ant was reported to have norm al sleep patterns and norm al eating habits. She was starting kindergarten and dem onstrated both the ability to separate from her parents and to get along with other fam ily m em bers. Id. She displayed appropriate behavior and had positive responses to all questions regarding her growth and developm ent. Her physical exam ination was com pletely norm al. Id. Her lungs were clear, without evidence of wheezing, rhonchi, or decreased breath sounds. Claim ant had a history of allergies and acute pharyngitis (sore throat). Id. Dr. Naegele assessed Claim ant as follows: “Norm al routine history and physical preschool (3-6); constipation; attention-deficit hyperactivity disorder.” Claimant was prescribed Claritin syrup, a laxative, and her routine immunizations. Id. On September 18, 20 0 8, Claim ant returned with com plaints of vom iting, stuffy nose, stom ach pain, headache, and a sore throat. (Tr. at 297-298). Claim ant had a negative strep test and was diagnosed with gastroenteritis. Id. Four days later, on Septem ber 22, 20 0 8, Claim ant returned with an increase in her respiratory sym ptom s. (Tr. at 295-296). Her lungs were noted to be clear to auscultation, but her nasal cavities revealed a thick nasal discharge. Id. Dr. Naegele diagnosed Claim ant with “acute sinusitis” and ordered a ten day course of am oxicillin. (Tr. at 296). No additional records were subm itted, including records for the - 10 - m onth of October. As far as evaluating the severity of Claim ant’s recurrent respiratory infections, the ALJ did not have objective m edical evidence indicating that Claim ant had “m arked” or “severe” lim itations related to this impairment. For example, Claimant did not present any docum entary evidence or testim ony to dem onstrate that she had undergone pulm onary function studies or required m echanical ventilation, oxygen supplem entation, inpatient hospitalizations, or courses of corticosteroids. She did not have a worrisome chest x-ray, or clinical evidence of chronic wheezing, recurrent asthma attacks, hypoventilation, or chronic respiratory distress. There were no abnorm al arterial blood gases, and the few pulse oxim etry readings contained in the record were norm al. The use of a nebulizer, even four tim es a day, does not m eet or m edically equal any criteria contained in the section on respiratory illnesses. See Part B to Appendix I to Subpart P, § 10 3.0 1. As the ALJ aptly acknowledged in his decision, in the absence of at least some of these symptoms or findings, Claim ant sim ply cannot establish listing-level severity. Additionally, there is no evidence in the record to suggest that Claimant’s mental disorders caused, contributed, exacerbated, or interplayed in any m anner in the lim itations secondary to her recurrent respiratory infections. Accordingly, these impairments in combination did not meet or medically equal the severity criteria of a listed respiratory condition. Part B, Section 112.0 0 describes the categories of m ental disorders that have been assigned disability criteria. See Part B to Appendix I to Subpart P, § 112.0 0 . The listings for children are arranged in eleven diagnostic categories. Only two of the categories, § 112.0 1, entitled Organic Mental Disorders, and § 112.11, entitled Attention Deficit Hy peractivity Disorder, have any arguable link to Claim ant’s condition. Turning first to § - 11 - 112.0 1, Claim ant is unable to establish the applicability of this section, because she has produced no evidence of the threshold criteria contained in the introductory paragraph; that being, evidence of an organic abnorm ality judged to be etiologically related to the alleged affective changes or abnorm al m ental state. An organic abnorm ality is a dysfunction of the brain caused by a specific organic factor, which is identified through history, physical exam ination, or laboratory tests. See Part A to Appendix I to Subpart P, at § 12.0 2. None of the m edical records in evidence propose the existence of an organic m ental disorder. To the contrary, the thorough psychological testing and evaluation perform ed on Claim ant failed to identify any signs or sym ptom s of such a problem . (Tr. at 272-276). The ALJ stated in his decision that he com pared the findings related to Claim ant’s ADHD and ODD to the criteria of Listing 112.11 of Appendix 1, which undoubtedly was the appropriate comparison.3 The ALJ found that references in the record regarding Claimant’s behavior at school and her exam ination by Dr. Apgar did not reflect the severity of sym ptom s sufficient to m eet the listing. In fact, § 112.11 requires “m edically docum ented” findings of marked inattention; marked impulsiveness; and marked hyperactivity, as well as m arked im pairm ent in two of four functional criteria contained in the listing on Organic Mental Disorders. A review of the transcript dem onstrates that the ALJ had substantial evidence upon which to reach this conclusion. The anecdotal reports of Claimant’s mother were the only evidence in the record that Claim ant had m arked hyperactivity or m isbehavior. The clinical notes from various health care providers docum ented a 3 According to the Mayo Clinic’s website, ODD often occurs with ADHD. When ADHD is effectively treated with m edications, the sym ptom s of ODD m ay significantly im prove. MayoClinic.com , Oppositional Defiant Disorder, updated 11/ 5/ 10 . - 12 - cooperative, calm , and friendly child. For exam ple, the speech pathologist, who tested Claim ant when she was three years of age, described Claim ant as “cooperative for testing.” (Tr. at 213-214). She found that Claim ant’s raw scores on the speech language evaluation placed her at the age-equivalent of 2.9 years, reflecting only a very m ild delay. Id. Sim ilarly, in his initial exam ination of Claim ant in February 20 0 6, Dr. J am es Lewis described her as “cooperative and quiet through m ost of the evaluation.” (Tr. at 215). He found her “attention span, hyperactivity” to be “probably norm al for her age.” Id. He felt her oppositional behavior was “normal toddler behavior” and might be related to the family situation. Id. In J une 20 0 6, Dr. Drew Apgar exam ined Claim ant and stated, “Claim ant’s m ental status was essentially norm al for her age considering past m edical history. . . Claim ant was able to m aintain concentration and focus throughout the exam ination. Claim ant interaction and adaptation were considered appropriate to the needs of the examination for her age.” (Tr. at 234). Lisa White, the psychologist retained by the SSA to evaluate Claim ant, also docum ented that Claim ant “sat quietly during her m other’s interview.” (Tr. at 275.) These descriptions of Claim ant’s behavior and dem eanor do not support a finding that Claim ant’s m ental im pairm ents m et or m edically equaled the severity of the listing criteria. Moreover, no evidence exists in the record upon which to conclude that Claimant’s upper respiratory infections, or her treatm ent for them , contribute to or exacerbate her ADHD and ODD and the limitations associated with those conditions. Therefore, the Court finds that the ALJ had substantial evidence upon which to determ ine that Claim ant’s im pairm ents separately, and in com bination, failed to m eet or m edically equal the criteria - 13 - of any body system listing in Appendix 1. B. Im p airm e n ts Alle ge d to Fu n ctio n ally Equ al a Lis te d Im p airm e n t. Claimant next challenges the ALJ ’s conclusions regarding the functional limitations resulting from the com bination of her severe im pairm ents of recurrent upper respiratory infections and ADHD versus ODD. Claim ant does not allege that the ALJ failed to follow the proper process in perform ing the sequential evaluation. Instead, she contends that the ALJ ’s conclusions were not supported by substantial evidence; particularly, when considering that Dr. Lewis, Claim ant’s primary treating physician for ADHD and ODD, found Claim ant to have m arked lim itations in four out of the six broad dom ains of functioning. (Pl. Br. at 5). Using the “whole child” approach in determ ining childhood disability under the functional equivalence rule, the ALJ m ust exam ine the claim ant’s activities, determ ine which domains are involved in those activities, and then rate the severity of the limitation in each affected dom ain. SSR 0 9-1P. In his decision, the ALJ reviewed Claim ant’s activities under each of the six functional dom ains and determ ined the severity of her lim itations in each, providing an explanation for his findings. (Tr. at 18-26). In reaching his conclusions, the ALJ expressly rejected the opinion of Dr. Lewis, who was the only m edical source that found Claim ant to have “m arked” lim itations in two or m ore of the six functional dom ains. (Tr. at 21). The ALJ disregarded Dr. Lewis’ assessm ent for two reasons. First, the ALJ felt that Dr. Lewis based his findings prim arily upon the subjective statem ents of Claim ant’s mother “and not on examination or testing.” Id. Second, the ALJ found Dr. Lewis’ findings on the evaluation form were “clearly not consistent with the other m edical evidence of record.” Id. - 14 - The regulations provide a fram ework by which the ALJ m ust evaluate opinion evidence. 20 C.F.R. § 416.927. According to § 416.927, when evidence in the record, including m edical opinions, is inconsistent with other evidence or internally inconsistent, the ALJ “will weigh all of the evidence.” Every m edical opinion will be evaluated and given a particular weight. The opinion of a treating source m ay be afforded controlling weight if the ALJ finds that the opinion is “well-supported by m edically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence of record.” Id. When the ALJ does not give the treating source’s opinion controlling weight, the ALJ m ust determ ine how m uch weight to give the opinion based upon certain factors, including: (1) The length of the treatm ent relationship; (2) The nature and extent of the treatm ent relationship (3) The supportability of the opinion; (4) The consistency of the opinion; (5) The area of specialty of the treating source; and (6) Other factors that m ay support or contradict the opinion. Id. Generally, the opinions of treating sources are given m ore weight than the opinions of other exam ining sources, and the opinions of exam ining sources are given m ore weight than the opinions of nonexam ining sources. Id. Ultim ately, the weight given to the opinion is based in large part upon its m edical and diagnostic support and its consistency with other opinions and objective m edical evidence. Id. In order to judge whether the ALJ acted in accordance with the regulations when he rejected Dr. Lewis’ opinion, the Court m ust review the objective m edical evidence, the - 15 - statem ents of persons knowledgeable of Claim ant’s activities, and the totality of the opinions; particularly, the data generated between Septem ber 26, 20 0 5 and Novem ber 20 0 8. A review of the transcripts yields the following pertinent inform ation. On Decem ber 20 , 20 0 5, Claim ant was seen by her pediatrician for a routine visit. (Tr. at 270 ). Claim ant’s m other expressed concern about Claim ant’s behavior, which the pediatrician thought was “m ore like problem s w/ parenting skills.” He recom m ended that Claim ant see Dr. J am es Binder, but Claim ant’s m other indicated that she was taking Claim ant to see Dr. J am es Lewis. Id. On February 21, 20 0 6, Claim ant underwent a speech language evaluation at Holzer Medical Center. (Tr. at 213-214). Her scores placed her slightly behind her age group. Her articulation was within functional lim its for her age. Her receptive language was m ildly delayed, and her expressive language was m ildly to m oderately delayed. Claim ant was noted to be cooperative throughout the testing. The speech pathologist felt Claim ant’s prognosis was good with direct intervention. Id. On February 22, 20 0 6, Dr. Lewis evaluated Claim ant for the first tim e. (Tr. at 215216). He noted that she was cooperative and quiet through m ost of the evaluation. His findings on Claimant’s physical examination were essentially normal. He documented that “DSM-IV Criteria positive for som e sym of ADHD and oppositional defiant aspects,” but that there were “m inim al issues for distractibility, persistence, approach withdrawal, N/ P for intensity.” His im pression was as follows: 1) 2) Certainly sig behavioral issues although there is som e sym of attention span, hyperactivity, probably norm al for her age. Will score child behavioral check list which parents have com pleted for us and given inform ational handouts on the treatm ents on school issues and behavioral problem s. Norm al toddler behavior, som e oppositional defiant issues, adjustm ent, fam ily - 16 - 3) situation as well. Certainly som e sleep problem s related to m other’s concerns about her brothers death during sleep. Id. Dr. Lewis strongly urged counseling “through Dr. Binder or other specialists.” Id. He did not expressly diagnose ADHD or ODD on this visit. On May 30 , 20 0 6, Claim ant’s m other com pleted a Child Function Report at the request of the SSA. (Tr. at 146-152). In the report, Claim ant’s m other indicated that Claim ant had no problem s talking; Claim ant could perform eight out of nine tasks related to “understanding and learning;” Claim ant’s physical abilities were not limited; Claimant’s impairments did not affect her behavior with others; and Claimant could perform two out of five tasks related to self-care. Id. This report reflected significant im provem ent in Claim ant’s functional abilities when com pared to the Child Function Report com pleted by Claim ant’s m other in J une 20 0 5. (Tr. at 161-166). On J une 23, 20 0 6, Claim ant was evaluated by Dr. Drew Apgar at the request of the SSA. Dr. Apgar noted that “Mother also reports the claim ant suffers from attention deficit disorder. This was not apparent during the evaluation process today as the child was able to follow simple commands with[out] delay or inability to comprehend the meaning of each sim ple com m and.”4 Dr. Apgar’s physical exam ination of Claim ant was entirely norm al. Claim ant had no nasal sym ptom s, and her lungs were clear, with good air m ovem ent and without wheezes, rales, or rhonchi. Her pulse oxim etry m easured 98% on room air. Dr. Apgar concluded that Claim ant’s m ental status was norm al for her age; that she had no discernible physical im pairm ent, but that she m ight have a developm ental delay in speech. Id. 4 The Court concludes that Dr. Apgar’s record contains a typographical error and incorrectly states “with” instead of “without.” Otherwise, the sentence is illogical. - 17 - On J uly 14, 20 0 6, Dr. J am es Binder com pleted a Childhood Disability Evaluation Form at the request of the SSA. (Tr. 241-246). He concluded that claim ant’s im pairm ents were “not severe,” because the evidence only reflected a m ild speech delay and “som e oppositional behaviors which were thought to be m ostly norm al per Dr. Lewis.” He added that “Dr. Lewis, a specialist is ADHD” did not diagnose ADHD at the initial visit. Id. On August 28, 20 0 7, Dr. Lewis evaluated Claim ant in follow-up. (Tr. at 264). He had not seen her for 1 ½ years. On examination, her found her growth and development to be norm al and her respiratory tract to be absent any signs of illness. His im pression was that Claim ant had oppositional defiant behaviors with “parenting issues.” He once again suggested a referral to Dr. J am es Binder. Id. On April 11, 20 0 8, Dr. Lewis again evaluated Claim ant in follow-up. He diagnosed ADHD, oppositional defiant behavior, and an im pulsive/ explosive disorder. (Tr. at 258260 ). Although Dr. Lewis did not explain the bases for these diagnoses, a questionnaire com pleted by Claim ant’s m other looks to be the foundation of his conclusions. His noted observations of Claim ant during that visit reflected that she was alert and cooperative, with “appropriate m ood and affect,” without tics. Id. His physical exam ination of Claim ant revealed that her nasopharynx, including tonsils, were norm al and her lungs were clear to auscultation. Dr. Lewis otherwise found Claim ant’s developm ent to be norm al. He increased Claim ant’s ADHD m edication and recom m ended behavior m odification counseling. Id. On August 31, 20 0 8, Lisa C. Tate, a psychologist, perform ed a psychological evaluation of Claim ant and com pleted a Childhood Functional Assessm ent Form . (Tr. at 272-284). Ms. Tate’s evaluation included a parent interview, child observation, and the - 18 - adm inistration of two tests, the Wechsler Preschool & Primary Scale of Intelligence and the Developmental Test of Visual and Motor Integration (“VMI”). Ms. Tate noted that Claimant had no history of recent illnesses, injuries or hospitalizations. Her current m edical problem s were reported as allergies. She had experienced no side effects from m edication. She received treatm ent from Dr. Lewis for ADHD. During the parent interview, Claimant’s m other reported that Claim ant spent her tim e watching television and playing outside. Claim ant had one regular playm ate, but had difficulty sharing with others. On testing, Claim ant’s intelligence test results were in the low average range and her VMI score was 67. Both test results were considered to be valid. Ms. Tate indicated that Claimant “was friendly and cooperative . . . was persistent and required little encouragement.” Claimant worked at a norm al pace. Ms. Tate felt that “[r]apport was easy to establish and m aintain.” Ms. Tate indicated that Claim ant’s social functioning was within norm al lim its based on her interaction with staff during the evaluation. Claimant’s concentration, persistence and pace were also norm al. Id. On the Functional Assessm ent Form , Ms. Tate rated Claim ant’s com m unication developm ent, gross and fine m otor developm ent, social developm ent, personal and behavioral developm ent, and concentration and pace to be “good.” Id. On September 29, 20 0 8, Dr. J ames Lewis wrote a letter indicating that Claimant had ADHD and ODD. (Tr. at 288). He felt the psychological evaluation was “accurate and complete.” He felt the psychologist “question[ed] appropriately the degree of impairment,” and concluded that Claim ant was within norm al lim its by psychological assessm ent. Id. Approxim ately two weeks later, on October 14, 20 0 8, Dr. Lewis updated a Childhood Disability Evaluation Form that he first com pleted for Claim ant on J uly 10 , 20 0 8. (Tr. at 289-294). In this form , he inexplicably evaluated Claim ant as having “m arked” lim itation - 19 - in four out of six functional dom ains. Id. A lim itation is “m arked” in a dom ain when the impairment “interferes seriously with [claimant’s] ability to independently initiate, sustain, or com plete activities.” 20 C.F.R. § 416.926a(e)(2). Marked lim itation “also m eans a lim itation that is ‘m ore than m oderate’ but ‘less than extrem e.’ It is the equivalent of the functioning [the SSA] would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.” Id. From reviewing the supporting com m ents, Dr. Lewis’ conclusions appeared to be based upon historical and anecdotal inform ation provided to him by Claim ant’s m other. For exam ple, Dr. Lewis com m ented that Claim ant’s height and weight were in the 10 th percentile, when his own record of April 11, 20 0 8 docum ented her height to be at the 38 th percentile. He also stated that Claim ant could not bathe or dress herself; she cried at school and could not m ake friends; she was afraid of boys. These are all observations that he could not have m ade on his own. In fact, his notations of tem per tantrum s and physical aggression actually contradict his personal observations of Claim ant m ade during his office appointm ents. From a review of the m edical docum entation and the observations of the various witnesses, the Court finds that the ALJ ’s rejection of Dr. Lewis’ opinion on the severity of the lim itations experienced by Claim ant was supported by substantial evidence. The other health care providers who exam ined and treated Claim ant did not m ake findings or docum ent observations indicating that Claim ant suffered from m arked lim itations in function. Moreover, Dr. Lewis’ own treatm ent notes do not reflect such severe lim itations. As indicated above, he observed Claim ant being quiet and cooperative, with norm al developm ent. He twice com m ented that som e of Claim ant’s issues could be related to the fam ily/ parent situation and spent as m uch tim e counseling Claim ant’s parents as he did - 20 - evaluating Claim ant. Claim ant argues that the ALJ inappropriately speculated that com m ents by Claim ant’s m other provided the basis of Dr. Lewis’ assessm ent on the functional evaluation form . However, regardless of who provided the inform ation, the factors noted on the form in support of the severity ratings sim ply could not have been based on the personal knowledge or observations of Dr. Lewis and were inconsistent with m uch of the other evidence of record. Although a treating physician’s opinion m ay only be disregarded if there is “persuasive contradictory evidence,” when the “expert m edical testim ony from exam ining or treating physicians goes both ways, a determ ination in accordance with [a] nonexam ining, non-treating physician should be affirm ed.” Ham rick v. Bow en, 883 F.2d. 68, 1989 WL 90 583 (4 th Cir. 1989). In the present case, records from both examining and nonexam ining sources constituted persuasive contradictory evidence to Dr. Lewis’ final evaluation. Likewise, the Functional Assessm ent com pleted by Claim ant’s m other did not contain information suggestive of marked limitations in two or more domains. In addition, the assessments of Dr. Binder, a non-examining source, and Ms. Tate, an examining source, provided a solid basis for the ALJ ’s determ ination. Dr. Binder was the specialist to whom Claim ant’s treating physicians, including Dr. Lewis, referred Claim ant for care and treatm ent of her ADHD and ODD. Dr. Binder reviewed the relevant records, including Dr. Lewis’ initial office record, and did not find enough evidence to conclude that Claim ant’s im pairm ents were even severe. Certainly, the disparity between Dr. Binder’s assessment of non-severe im pairm ents and Dr. Lewis’ assessm ent of severe im pairm ents with m arked functional lim itations is vast. When judging the persuasiveness of these opinions, the findings and observations of Ms. Tate cannot be overlooked. Ms. Tate perform ed the only - 21 - com plete psychological evaluation of Claim ant and her conclusions, based upon her own testing and personal observations, were that Claim ant was functioning well in her daily activities and was developing norm ally. For these reasons, the Court finds that the conclusions of the ALJ were based upon substantial evidence; therefore, the decision of the Com m issioner is appropriate. VIII. Co n clu s io n After a careful consideration of the evidence of record, the Court finds that the Com m issioner’s decision IS supported by substantial evidence. Accordingly, by J udgment Order entered this day, the final decision of the Com m issioner is AFFIRMED and this m atter is D ISMISSED from the docket of this Court. The Clerk of this Court is directed to transm it copies of this Order to all counsel of record. EN TERED : Decem ber 9, 20 10 . - 22 -
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