Bryson v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

)

LATOYA BRYSON o/b/o L.D.H. )

(minor child), )

)

Plaintiff, )

)

v. ) No. 20-cv-1028-TMP

)

ANDREW SAUL, COMMISSIONER )

of SOCIAL SECURITY )

)

Defendant. )

)

ORDER AFFIRMING THE COMMISSIONER’S DECISION

Before the court is an appeal filed by plaintiff Latoya

Bryson, on behalf of her minor daughter L.D.H., from a final

decision denying her application for Supplemental Security Income

Child’s Disability Benefits under Title XVI of the Social Security

Act (“the Act”). The parties have consented to the jurisdiction of

the United States magistrate judge under 28 U.S.C. § 636(c). (ECF

No. 10.) For the reasons below, the Commissioner’s decision is

AFFIRMED.

I. FINDINGS OF FACT

L.D.H. is a high school student who allegedly suffers from

mood disorder, anxiety disorder, a learning disability, attention

deficit hyperactivity disorder (“ADHD”), depression, and mental

and behavioral problems. (R. at 228.) Prior to the instant action,

Latoya Bryson, L.D.H.’s mother, had filed applications for

Supplemental Security Income (“SSI”) on behalf of L.D.H. in 2006,

2007, 2009, and 2011. (R. at 12.) Regarding the 2011 application,

the Social Security Administration (“SSA”) denied her application

in January of 2012, and Bryson did not request a hearing on the

matter. (R. at 12-13.)

On April 19, 2016, Bryson submitted a fifth application on

behalf of L.D.H. for children’s SSI under Title XVI of the Act.

(R. at 12.) The application stated that L.D.H.’s disability began

on August 7, 2002. (R. at 12.) Bryson’s application was initially

denied by the SSA in a decision on July 28, 2016, and, on

reconsideration, on November 21, 2016. (R. at 12.) Bryson then

requested a hearing with an administrative law judge (“ALJ”), which

took place on August 28, 2018. (R. at 12.) During the hearing,

Bryson amended L.D.H.’s disability onset date to April 19, 2016.

(R. at 12.) After considering the record and the testimony given

at the hearing, the ALJ concluded that L.D.H. was not disabled

under § 1614(a)(3)(C) of the Act. (R. at 27.)

To reach this conclusion, the ALJ used the three-step

evaluation process for determining if a minor claimant is disabled.

(R. at 13.) At the first step, the ALJ determined that L.D.H. had

not engaged in any substantial gainful activity (“SGA”) since April

19, 2016. (R. at 16.) Turning to step two, the ALJ found that

L.D.H. suffered from several severe impairments, namely ADHD,

anxiety and mood disorder, borderline intellectual functioning vs.

learning disorder, and migraine headaches. (R. at 16.) However, at

the third step, the ALJ determined that none of these impairments,

or any combination thereof, met, medically equaled, or

functionally equaled any of the listed impairments in 20 C.F.R.

Part 404, Subpart P, Appendix 1. (R. at 16.); see 20 C.F.R. §§

416.924, 416.925, 416.926.

In making her determination at the third step, the ALJ first

considered Listing 112.04 – Depressive, Bipolar and Related

Disorders. (R. at 16.) In ruling that L.D.H. did not meet this

listing, the ALJ found that L.D.H. exhibited some of the requisite

symptoms, she did not have one extreme or two marked limitations

in functioning and that the record did not support a finding of

both “serious and persistent” and “marginal adjustment.” (R. at

16.) Second, the ALJ determined that L.D.H. did not satisfy the

requirements for Listing 112.05 – Intellectual Disorder. (R. at

16.) In reaching this decision, the ALJ found that L.D.H. did not

satisfy Paragraph A of Listing 112.05 because she had the ability

to take standardized tests and she was not dependent on others for

her personal needs. (R. at 16.) Regarding Paragraph B, the ALJ

found that she did not have a valid IQ test score within the

requisite range coupled with “two of the appropriate age-group

criteria.” (R. at 16-17.) Third, the ALJ determined that L.D.H.’s

impairments did not meet the requirements for Listing 112.11 –

Neurocognitive Disorders – because “the claimant’s functional

limitations are not of listing level severity.” (R. at 17.)

Finally, the ALJ considered whether any of L.D.H.’s

impairments, or any combination thereof, functionally equaled the

severity of the listed impairments, and found that they did not.

(R. at 17.) In reaching this decision, the ALJ gave “some weight”

to opinions rendered by DDS reviewers

who assessed the claimant as having severe impairments

with ADHD and organic mental disorder and a non-severe

impairment of anxiety disorder with assessments of

marked limitation in acquiring and using information[,]

less than marked limitation in attending and completing

tasks, less than marked limitation in interacting and

relating with others, no limitation in moving and

manipulating objects, less than marked limitation in

caring for [herself], and no limitation in health and

physical well-being.

(R. at 21.) The ALJ reasoned that this assessment was generally

consistent with the record but was based on regulations that did

not allow the reviewer to consider the severe impairment of

migraine headaches. (R. at 21.) The ALJ also elected to give

limited weight to the opinion of “Dr. Emily Davis, Senior

Psychological Examiner, Licensed,” because she had a doctorate in

education rather than an M.D. or a Ph.D. and because her assessment

had internal and external inconsistencies. (R. at 22.)

After weighing the medical sources and analyzing L.D.H.’s

medical history, the ALJ made the following findings for the six

functional equivalence domains. Regarding “Acquiring and Using

Information,” the ALJ found L.D.H. had a marked limitation. (R. at

22-23.) Regarding “Attending and Completing Tasks,” the ALJ found

L.D.H. had a less than marked limitation. (R. at 23-24.) Regarding

“Interacting and Relating with Others,” the ALJ found L.D.H. had

a less than marked limitation. (R. at 24-25.) Regarding “Moving

About and Manipulating Objects,” the ALJ found L.D.H. had no

limitation. (R. at 25-26.) Regarding “Caring for Yourself,” the

ALJ found L.D.H. had a less than marked limitation. (R. at 26.)

Regarding “Health and Physical Well-Being,” the ALJ found L.D.H.

had a less than marked limitation. (R. at 26-27.) As a result, on

December 5, 2018, the ALJ issued a decision detailing the findings

summarized above and holding that L.D.H. had not been disabled

since April 19, 2016. (R. at 27.) On December 6, 2019, the SSA

Appeals Counsel denied Bryson’s request for review. (R. at 2-7.)

Bryson now seeks judicial review of that decision, which stands as

the final decision of the Commissioner under § 1631(c)(3) of the

Act.

II. CONCLUSIONS OF LAW

A. Standard of Review

Under 42 U.S.C. § 405(g), a claimant may obtain judicial

review of any final decision made by the Commissioner after a

hearing to which he or she was a party. “The court shall have power

to enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the

Commissioner's decision is limited to whether there is substantial

evidence to support the decision and whether the Commissioner used

the proper legal criteria in making the decision. Id.; Cardew v.

Comm'r of Soc. Sec., 896 F.3d 742, 745 (6th Cir. 2018); Cole v.

Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm'r of

Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence

is more than a scintilla of evidence but less than a preponderance,

and is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Kirk v. Sec'y of Health &

Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971)).

In determining whether substantial evidence exists, the

reviewing court must examine the evidence in the record as a whole

and “must ‘take into account whatever in the record fairly detracts

from its weight.’” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.

1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.

1984)). If substantial evidence is found to support the

Commissioner's decision, however, the court must affirm that

decision and “may not even inquire whether the record could support

a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794

(6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs.,

893 F.2d 106, 108 (6th Cir. 1989)). Similarly, the court may not

try the case de novo, resolve conflicts in the evidence, or decide

questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d

709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506,

509 (6th Cir. 2007)). Rather, the Commissioner, not the court, is

charged with the duty to weigh the evidence, to make credibility

determinations, and to resolve material conflicts in the

testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th

Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990).

B. The Three-Step Analysis

Section 1382c(a)(3)(C)(i) of the Social Security Act states

that:

An individual under the age of 18 shall be considered

disabled for the purposes of this title if that

individual has a medically determinable physical or

mental impairment, which results in marked and severe

functional limitations, and which can be expected to

result in death or which has lasted or can be expected

to last for a continuous period of not less than 12

months.

Under the Act, the claimant bears the ultimate burden of

establishing an entitlement to benefits. Lowery v. Comm'r, Soc.

Sec. Admin., 55 F. App'x 333, 341 (6th Cir. 2003). SSA regulations

require that an ALJ follow a three-step sequential analysis in

determining whether a person under the age of 18 is disabled. See

20 C.F.R. § 416.924(a).

At the first step, the ALJ must determine whether the claimant

is engaging in any SGA. If the claimant is engaged in any SGA,

then he or she is not disabled, “regardless of [the claimant’s]

medical condition or age, education, or work experience.” 20 C.F.R.

§§ 416.924(a)-(b). If not, the ALJ advances to the next step. Step

two of the analysis requires a determination of whether the

claimant's medically determinable impairment or combination of

impairments is severe. 20 C.F.R. § 416.924(a). A slight abnormality

“that causes no more than minimal functional limitations” is not

severe and cannot be the basis for a disability. 20 C.F.R. §

416.924(c). If the claimant has a severe impairment, the ALJ will

advance to step three. At step three of the analysis, the ALJ

considers whether the claimant’s severe impairment meets,

medically equals, or functionally equals the severity of an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20

C.F.R. §§ 416.924(a), (d). In making this determination, the ALJ

must consider all of the claimant’s medically determinable

impairments, even those that are not classified as severe. A

claimant is disabled if his or her impairments meet, medically

equal, or functionally equal an impairment listed in 20 C.F.R.

Part 404, Subpart P, Appendix 1 and if it has lasted or is expected

to last for a continuous period of at least twelve months. 20

C.F.R. § 416.924(a). If not, the claimant is not disabled. Id.

A child's impairment is “functionally equal” to a listed

impairment “if the child has an extreme limitation in one area of

functioning, or a marked limitation in two areas of functioning.”

Miller ex rel. Devine v. Comm'r of Soc. Sec., 37 F. App'x 146, 148

(6th Cir. 2002); 20 C.F.R. § 416.926a(a). A child's functional

equivalency is assessed in terms of six domains: “(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 oneself; and (6) health and

physical well-being.” 20 C.F.R. § 416.926a(b)(1).

The terms “marked” and “extreme” limitation are defined by

regulation. A marked limitation is one that “interferes seriously

with [a claimant's] ability to independently initiate, sustain, or

complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). Such

limitations are “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. An extreme limitation is one that “interferes very

seriously with [a claimant's] ability to independently initiate,

sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i).

Extreme limitation “does not necessarily mean a total lack or loss

of ability to function.” Id. Rather, extreme limitation is “the

equivalent of the functioning [the SSA] would expect to find on

standardized testing with scores that are at least three standard

deviations below the mean.” Id.

C. Prior Social Security Decisions

Bryson first argues that the ALJ’s decision must be reversed

because she misapplied the Sixth Circuit’s holding in Drummond v.

Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997),

when she found that no new evidence supported a change in the SSA’s

prior decision that L.D.H. was not disabled as of January 2012.1

(R. at 13.) Notably, the ALJ only adopted the prior SSA decision

that L.D.H. was not disabled in general and did not adopt any

specific functional limitations from the prior decision. (R. at

13.) Under Drummond, “[a]bsent evidence of an improvement in a

claimant's condition, a subsequent ALJ is bound by the findings of

a previous ALJ.” Id. at 842. Recently, the Sixth Circuit elaborated

on its holding in Drummond, stating that nothing “prevent[s] the

[SSA] from giving a fresh look to a new application containing new

evidence or satisfying a new regulatory threshold that covers a

new period of alleged disability.” Earley v. Comm’r of Soc. Sec.,

893 F.3d 929, 931 (6th Cir. 2018). Bryson’s earlier application

for disability benefits on behalf of L.D.H. was denied in January

2012 without a hearing or appeal. As such, the decision was not

rendered by an ALJ and thus Bryson is correct in arguing that

Drummond does not apply in this case. Regardless, Bryson alleges

that L.D.H.’s disability began on April 19, 2016, more than four

1Bryson also alleges that the ALJ misapplied Dennard v. Sec’y of

Health and Human Servs., 907 F.2d 598 (6th Cir. 1990). Because the

ALJ did not mention or analyze Dennard in her decision, this

objection is baseless.

years after the SSA initially determined that L.D.H. was not

disabled. That the ALJ considered generally that L.D.H. was not

disabled as of January 2012 had no bearing on whether she was

disabled as of April 19, 2016. The ALJ’s misstatement of law was

harmless error and is not reason for remand.

D. Medical Sources

SSA regulations require that “the ALJ evaluate[] all relevant

medical and other evidence and considers what weight to assign to

treating, consultative, and examining physicians’ opinions.”

Eslinger v. Comm’r of Soc. Sec., 476 F. App’x 618, 621 (6th Cir.

2012) (citing 20 C.F.R. § 404.1545(a)(3)); see also Ealy v. Comm’r

of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010).

An opinion from a treating physician is ‘accorded the

most deference by the SSA’ because of the ‘ongoing

treatment relationship’ between the patient and the

opining physician. A nontreating source, who physically

examines the patient ‘but does not have, or did not

have[,] an ongoing treatment relationship with’ the

patient, falls next along the continuum. A nonexamining

source, who provides an opinion based solely on review

of the patient's existing medical records, is afforded

the least deference.

Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 439 (6th Cir.

2012) (quoting Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875

(6th Cir. 2007)) (internal citations omitted). “ALJs must evaluate

every medical opinion [they] receive by considering several

enumerated factors, including the nature and length of the doctor's

relationship with the claimant and whether the opinion is supported

by medical evidence and consistent with the rest of the record.”

Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th Cir.

2011). When an ALJ rejects the opinion of a medical expert who is

not a treating physician, the decision “must say enough to allow

the appellate court to trace the path of [the ALJ’s] reasoning”

but need not be “an exhaustive factor-by-factor analysis.” Id.

(internal citation and quotation omitted); Francis v. Comm’r of

Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011); see also Ealy,

594 F.3d at 514 (holding that the Act’s requirement for an ALJ to

give good reasons for rejecting a treating physician’s opinions

does not apply to an examining physician).

1. Dr. Emily Davis

Bryson’s primary argument on appeal is that the ALJ erred by

giving only limited weight to the opinion of Dr. Davis and by not

considering her to be an acceptable medical source.2 The ALJ

elected to give Dr. Davis’s opinion limited weight for two reasons.

First, the ALJ was concerned that Dr. Davis did not have an M.D.

or a Ph.D. (R. at 22.) Second, the ALJ reasoned that Dr. Davis’s

opinion contained contradictions both internally and with other

parts of the record. (R. at 22.) Specifically, the ALJ pointed to

2It is not immediately clear from the ALJ’s opinion whether she

considered Dr. Davis to be an acceptable medical source or not, as

the ALJ did not make an express finding on that issue. Rather, the

ALJ appears to have considered that Dr. Davis did not have an M.D.

or a Ph.D. when deciding how much weight to give the opinion. (R.

at 22.)

Dr. Davis’s finding that L.D.H. was unable “to function at a level

required to participate in standardized testing of intellectual

functioning,” while simultaneously finding that L.D.H. had scored

a 70 or below on a standardized test of general intelligence. (R.

at 22.) According to the ALJ, “[t]hese inconsistent statements

[brought] into question the accuracy of the entire assessment.”

(R. at 22.)

20 C.F.R. 416.1450(d) defines an acceptable medical source

as:

(1) Licensed physician (medical or osteopathic doctor);

(2) Licensed psychologist, which includes: (i) A

licensed or certified psychologist at the independent

practice level; or (ii) A licensed or certified school

psychologist, or other licensed or certified individual

with another title who performs the same function as a

school psychologist in a school setting, for impairments

of intellectual disability, learning disabilities, and

borderline intellectual functioning only.

The Sixth Circuit has explained that, “[o]utside of the school

context,” only licensed or certified psychologists qualify as

acceptable medical sources under the regulations. Golden v. Comm’r

of Soc. Sec., 591 F. App’x 505, 506 (6th Cir. 2015). Dr. Davis is

a “Senior Psychological Examiner, Licensed” with an Educational

Doctorate. (R. at 690.) Because she is not a licensed or certified

psychologist, she can only be an acceptable medical source if she

practices “in a school setting.” 20 C.F.R. 416.1450(d)(2)(ii); see

Golden, 591 F. App’x at 506 (holding that “neither Adams nor

Jessup, as ‘senior psychological examiners,’ fit [the] category”

of licensed or certified psychologist); Elam ex rel. Golay v.

Comm'r of Soc. Sec., 348 F.3d 124, 126 (6th Cir. 2003) (holding

that a psychological associate was not an acceptable medical

source). The Testing Experience section of Dr. Davis’s C.V.

indicates that she has worked in special education and academic

evaluation for nearly thirty years with the Henderson County School

System, the Lexington City School System, and the Jackson Christian

School. (R. at 690.) Consequently, the court finds that Dr. Davis

is an acceptable medical source under the SSA regulations.

That said, Dr. Davis only examined L.D.H. one time and is

thus an examining source under the regulations. Norris, 461 F.

App’x at 439. As such, the ALJ was not obligated to give Dr.

Davis’s opinion controlling weight and her decision withstands

scrutiny if it is sufficiently detailed that the court can “trace

the path of [the ALJ’s] reasoning.” Stacey, 451 F. App’x at 519.

In her decision, the ALJ identified inconsistencies between the

objective testing evidence and Dr. Davis’s opinion. Moreover, the

ALJ noted that:

Dr. Davis has assessed the claimant as having extreme

and marked limitations in functioning with no

explanation as to how the claimant is able to function

independently at school with such limitations or how the

claimant’s treating provider has not noted such a degree

of limitations. While the claimant has obtained low IQ

scores, the Administrative Law Judge has also noted that

some treating providers have assessed the claimant as

having average intellectual functioning.

(R. at 22.) Based on the ALJ’s opinion, it is clear how the ALJ

reached her decision to give Dr. Davis only limited weight: namely

the inconsistencies within the report itself and with the rest of

the record. See Carrington v. Colvin, No. 15-cv-1264-TMP, 2018 WL

678447, at *5 (W.D. Tenn. Feb. 2, 2018) (“Unlike with treating

sources, ALJs may state that they are discounting the opinion of

a non-treating or non-examining medical source without giving a

good reason as to why.”). This is a sufficient basis for the ALJ

to afford Dr. Davis’s opinion only limited weight.

2. Records from Memphis Neurology

Next, Bryson argues that the ALJ erred by not considering

“the treatment records and testing report of the treating

neurologist” under the Treating Physician Rule. (ECF No. 14 at

18.) In her section of the brief arguing the treating neurologist

should be given controlling weight, Bryson does not identify a

particular physician as “the treating neurologist,” referring only

generally to “the treating neurology clinic.” (ECF No. 14 at 18.)

Regardless, Bryson appears to be referring to L.D.H.’s treatment

records with Dr. Ronald N. Lynn and Dr. Elizabeth M. Cruz at

Memphis Neurology.3 L.D.H.’s medical record contains files from

Memphis Neurology dated June 16, 2011, July 27, 2011, June 20,

3The ALJ appears to allude to a psychometric test conducted by Jim

Brown, MA, CSP, Educational Diagnostician on January 2, 2018, that

has a Memphis Neurology letterhead. (R. at 20, 749-52.)

2012, November 4, 2016, November 9, 2016, September 21, 2017,

October 17, 2017, January 2, 2018, and January 8, 2018. (R. at

590-93, 626-655, 749-52.)

The Commissioner argues that the ALJ did not commit reversible

error because the Memphis Neurology reports do not contain actual

opinion evidence and, in any event, substantial evidence supports

the ALJ’s decision, making any error harmless. SSA regulations

define a medical opinion as “a statement[] from [an] acceptable

medical source[] that reflect[s] judgments about the nature and

severity of [claimant’s] impairment(s), including [claimant’s]

symptoms, diagnosis and prognosis, what [claimant] can still do

despite impairment(s), and [claimant’s] physical or mental

restrictions.” 20 C.F.R. 416.927(a)(1). In McDonald v. Astrue, the

Tenth Circuit considered a similar situation where an ALJ did not

mention or analyze clinician treatment notes. 492 F. App’x 875,

883-84 (10th Cir. 2012). There, the clinical records at issue

contained “the clinicians' observations of [claimant’s] symptoms,

the nature of [claimant’s] impairments, and the clinicians'

diagnoses, and the GAF scores addressed in general terms the

severity of [claimant’s] symptoms and functional difficulties.”

Id. at 884. However, because the notes did not indicate any sort

of prognosis or provide any input as to “what [claimant] could

still do despite her impairments or the nature of her mental

restrictions,” the court held that the treatment notes did not

constitute medical opinions. Id.; see also Montecalvo v. Comm’r of

Soc. Sec., 695 F. App’x 124, 128 (6th Cir. 2017) (“[S]tatements

that do not address the specific extent of limitations ‘appear to

be outside the scope of medical opinions’”) (quoting Allen v.

Comm'r of Soc. Sec., 561 F.3d 646, 651 n.3 (6th Cir. 2009)). The

same is true here, as L.D.H.’s medical records from Memphis

Neurology contain only psychometric test results, examination

notes, and corresponding diagnoses. See Bulick v. Colvin, No. 5:13

CV 1432, 2014 WL 2003049, at *1 (N.D. Ohio May 13, 2014) (finding

that a physician’s treatment notes were not medical opinions where,

in the notes, the plaintiff was diagnosed with depression and

anxiety but “there [was] no statement of ‘nature and severity’ of

the symptoms or impairments, the prognosis, or any restriction

[that] would cause plaintiff [restrictions] in a work setting”).

The Memphis Neurology reports do not include any judgment as to

the extent or prognosis of L.D.H.’s alleged disabilities or express

an opinion of how the alleged disabilities will impact L.D.H.’s

daily life. See Welch v. Colvin, 566 F. App’x 691, 694 (10th Cir.

2014) (holding that a “physician [who] simply diagnosed . . .

impairments and in some cases recommended treatment for them” did

not provide a medical opinion that the ALJ was required to weigh).

Moreover, many of the records contain a disclaimer that reads

This report is an interpretive aid and should not be

used as the sole criterion for clinical diagnosis or

intervention. Caution is urged against drawing

unsupported interpretations. Combining information from

this report with clinical observations and other

psychometric measures will provide a more comprehensive

view of the patient than might be obtained from any one

source.

(R. at 591, 651, 751.) As such, the ALJ properly declined to apply

the Treating Physician Rule to the records from Memphis Neurology.4

3. Dr. Anne McSpadden, Ph.D.

Additionally, Bryson argues that the ALJ erred by failing to

properly consider a 2016 psychological examination by Dr. Anne

McSpadden, Ph.D., as medical opinion evidence. (R. at 423.) In her

examination – which was based on a parent survey, results from an

IQ test, and teacher observations – Dr. McSpadden recommended that

L.D.H. receive “special education services to improve her academic

performance” and the IEP team “consider certifying [L.D.H.] as

Functionally Delayed.” (R. at 423-29.) Like the records from

Memphis Neurology, the Commissioner argues that Dr. McSpadden’s

report does not constitute medical opinion evidence. The court

agrees. Rather than “reflect a judgment about the nature and

4In any event, it appears that the ALJ considered the diagnoses

from Dr. Lynn and Dr. Cruz in step two of her analysis, as the ALJ

found that L.D.H. suffered from ADHD, anxiety and mood disorder,

borderline intellectual functioning disorder vs. learning

disorder, and migraine headaches. (R. at 16.) This finding mirrors

the various diagnoses contained in the Memphis Neurology records.

(R. at 632, 636-37, 641, 644, 647, 650.) “[T]he ALJ need not

expressly mention every piece of evidence so long as the overall

decision was supported by substantial evidence.” Noto v. Comm’r of

Soc. Sec., 632 F. App’x 243, 250 (6th Cir. 2015) (citing Loral

Defense Sys.–Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).

severity of the claimant's impairments,” Dr. McSpadden’s report

was a recommendation that L.D.H. be enrolled in special education

courses in high school. Noto, 632 F. App’x at 246 n.1 (citing

Dunlap v. Comm'r of Soc. Sec., 509 F. App’x 472, 476 (6th Cir.

2012)). The court finds that this is not a medical opinion under

the regulations.5

4. DDS Form Reviewers

Bryson also argues that the ALJ erred by giving “great weight”

and “rubber stamp approval” to the opinions of two DDS medical and

psychological form reviewers. (ECF No. 14 at 21.) “Generally, an

ALJ may rely on a state agency consultant's medical opinion in the

same manner that she may rely on other physician opinions.”

Cogswell ex rel. Cogswell v. Comm'r of Soc. Sec., No. 3:16-cv-

2030, 2018 WL 3215721, at *2 (N.D. Ohio July 2, 2018); see also

Reeves v. Comm'r of Soc. Sec., 618 F. App'x 267, 274 (6th Cir.

2015). “Thus, an ALJ may provide greater weight to a state agency

physician's opinion when the physician's finding and rationale are

supported by evidence in the record.” Reeves, 618 F. App'x at 274;

5Even so, the ALJ appears to have considered Dr. McSpadden’s

recommendation that L.D.H. receive special education in making her

decision, as the ALJ referenced L.D.H.’s special education classes

and problems in school on several occasions in her analysis. (R.

at 23-25.); see Bayes v. Comm’r of Soc. Sec., 757 F. App’x 436,

445 (6th Cir. 2018) (quoting Loral Defense Sys.–Akron, 200 F.3d at

453) (“An ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence

submitted by a party.”).

see also McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32 (6th

Cir. 2009) (agency regulations allow a consulting physician

opinion that is based only on “a cursory review of her then

existing medical records” to be considered “as opinion evidence,

except for the ultimate determination about whether you are

disabled.”) (quoting 20 C.F.R. § 404.1527(f)(2)(i)); Hoskins v.

Comm'r of Soc. Sec., 106 F. App'x 412, 415 (6th Cir. 2004) (“State

agency medical consultants are considered experts and their

opinions may be entitled to greater weight if their opinions are

supported by the evidence.”).

In her decision, the ALJ stated that she was affording “some

weight” to the opinions of Dr. Peggy Elam, Ph.D., and Dr. Stacy

Koutrakos, Psy. D., because they were “generally consistent with

the established residual functional capacity.” (R. at 21.)

Contrary to Bryson’s assertion, the ALJ did not give “rubber stamp

approval” or even “great weight” to these opinions. (ECF No. 14 at

21.) Indeed, the ALJ found that L.D.H. suffered from more severe

impairments than either Dr. Elam or Dr. Koutrakos opined and she

specifically noted that the opinions were not entirely reliable

because they did not account for “the severe impairment of migraine

headaches.”6 (R. at 21.) That the DDS examiners and the ALJ both

6The ALJ found that L.D.H.’s ADHD, anxiety and mood disorder,

borderline intellectual functioning vs. learning disorder, and

migraine headaches were all severe impairments. (R. at 16.)

Meanwhile, Dr. Koutrakos found that L.D.H. only suffered from

concluded that L.D.H. was not disabled does not imply that the ALJ

gave controlling weight to these opinions.

Moreover, Bryson does not articulate how the ALJ erred in

weighing the DDS examiner opinions beyond arguing that the court

should never rely on the opinions of state agency non-examining

physicians. To support this argument, Bryson cites to a newspaper

article discussing problems with Tennessee's disability

determination process. This court has an extremely limited role in

the Social Security disability determination process: to evaluate

whether the ALJ's decision was supported by substantial evidence

and whether the ALJ used the correct legal criteria to make his or

her decision. See, e.g., Cardew v. Comm'r of Soc. Sec., 896 F.3d

742, 745 (6th Cir. 2018). It is not free to restructure the

disability determination process to suit its policy preferences.

Similarly, the court generally cannot consider evidence outside of

the administrative record, such as newspaper articles. Miller v.

Comm'r of Soc. Sec., 811 F.3d 825, 839 (6th Cir. 2016). Bryson's

objection is not supported by law.

E. Other Source Evidence

Bryson also argues that the ALJ’s decision should be vacated

because the ALJ did not consider certain non-medical source

severe ADHD, severe organic mental disorders, and severe anxiety

disorder, while Dr. Elam found that L.D.H. suffered from severe

ADHD, severe organic mental disorders, and non-severe anxiety

disorders. (R. at 111, 124.)

opinions in her decision, namely a teacher questionnaire from

special education teacher Linda Webb.7 Regarding “[o]pinions from

medical sources who are not acceptable medical sources and from

nonmedical sources . . . [t]he adjudicator generally should explain

the weight given to opinions from these sources or otherwise ensure

that the discussion of the evidence in the determination or

decision allows a claimant or subsequent reviewer to follow the

adjudicator's reasoning, when such opinions may have an effect on

the outcome of the case.” 20 C.F.R. § 404.1527(f)(2) (emphasis

added). The Sixth Circuit has established that “[a]n ALJ can

consider all the evidence without directly addressing in his

written decision every piece of evidence submitted by a party.”

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507-08 (6th

Cir. 2006) (quoting Loral Defense Sys.–Akron, 200 F.3d at 453).

Here, Ms. Webb’s teacher questionnaire found that L.D.H. has

problems with acquiring and using information, problems with

attending and completing tasks, problems with interacting and

relating with others, and problems with caring for herself.8 (R.

7Bryson appears to raise this same argument for Dr. McSpadden’s

2016 testing report. Because the court found that the ALJ did not

commit reversible error in how she considered the report in an

earlier section, the undersigned need not address the testing

report again here.

8According to Ms. Webb’s teacher questionnaire, L.D.H. does not

have any problems moving about and manipulating objects and she

does not have any issues with her health and physical wellbeing.

(R. at 250.)

at 247-51.) Within each category, Ms. Webb was given a list of

subtopics that she was supposed to assess for whether L.D.H. has

“no problem,” “a slight problem,” “an obvious problem,” “a serious

problem,” or “a very serious problem.” (R. at 247-51.) Under the

acquiring and using information category, Ms. Webb observed that

L.D.H. has “a very serious problem” for seven of the ten subtopics,

“a serious problem” for two of the subtopics, and “an obvious

problem” for one subtopic. (R. at 247.) Under the attending and

completing tasks category, Ms. Webb observed that L.D.H. has “a

serious problem” for two of the thirteen subtopics, “an obvious

problem” for five subtopics, “a slight problem” for four subtopics,

and “no problem” for two subtopics. (R. at 248.) Under the

interacting with others category, Ms. Webb observed that L.D.H.

has “an obvious problem” for four of the thirteen subtopics, “a

slight problem” for six subtopics, and “no problem” for three

subtopics. (R. at 249.) In this category, Ms. Webb also commented

“[L.D.H.] does not have severe enough problems in this category to

need anything other than modeling the correct behavior.” (R. at

249.) Under the caring for himself or herself category, Ms. Webb

observed that L.D.H. has “a very serious problem” in one of the

ten subtopics, “an obvious problem” in six subtopics, “a slight

problem” in one subtopic, and “no problem” in two subtopics. (R.

at 251.) In this category, Ms. Webb also commented “[L.D.H.] is

very responsive to modeling by someone she trusts and likes. She

has responded well to this support from teachers.” (R. at 251.)

Consequently, although Ms. Webb opined that L.D.H. has a problem

in each of the aforementioned categories, she opined that L.D.H.’s

problems were significantly worse regarding her ability to acquire

and use information than any of the other categories.

This opinion tracks the ALJ’s findings regarding the six

functional equivalence domains. The ALJ found that L.D.H. has a

marked limitation with acquiring and using information and less

than marked (but still existing) limitations with attending and

completing tasks, and relating with others, with caring for

herself, and with her health and mental wellbeing.9 (R. at 22-

27.); see 20 C.F.R. § 416.926a(e)(2)(i) (a marked limitation

“interferes seriously with [a claimant's] ability to independently

initiate, sustain, or complete activities”). Moreover, the ALJ

referenced generally L.D.H.’s school records several times

throughout her analysis of the six functional equivalence domains.

See Kornecky, 167 F. App’x at 507-08. Therefore, the court finds

that the ALJ did not commit reversible error in failing to mention

the teacher questionnaire.

F. Severity of Impairments

Next, Bryson argues that the ALJ erred by not finding that

L.D.H.’s impairments meet or functionally equal any of the listed

9Like Ms. Webb, the ALJ also found that L.D.H. had no limitation

with moving about and manipulating objects. (R. at 25.)

impairments. Specifically, Bryson points to the fact that Dr.

Davis’s opinion and L.D.H.’s IQ scores suggest that L.D.H. suffers

from both Listing 112.05 Intellectual Disorder and Listing 112.11

Neurodevelopmental disorder. The claimant bears the burden of

showing her impairments meet or equal a listed impairment. See 20

C.F.R. § 416.920(a)(4)(iii); Foster v. Halter, 279 F.3d 348, 354

(6th Cir. 2001). “A claimant can demonstrate that she is disabled

because her impairments are equivalent to a listed impairment by

presenting ‘medical findings equal in severity to all the criteria

for the one most similar listed impairment.’” Foster, 279 F.3d at

354 (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). “A

claimant must do more than point to evidence on which the ALJ could

have based his finding to raise a substantial question as to

whether he has satisfied a listing.” Smith-Johnson v. Comm’r of

Soc. Sec., 579 F. App'x 426, 432 (6th Cir. 2014).

Listing 112.05 for Intellectual can be shown in two ways:

A. Satisfied by 1 and 2 . . . :

1. Significantly subaverage general intellectual

functioning evident in your cognitive inability to

function at a level required to participate in

standardized testing of intellectual functioning; and

2. Significant deficits in adaptive functioning

currently manifested by your dependence upon others for

personal needs (for example, toileting, eating,

dressing, or bathing) in excess of age-appropriate

dependence.

OR

B. Satisfied by 1 and 2 . . . :

1. Significantly subaverage general intellectual

functioning evidenced by a or b:

a. A full scale (or comparable) IQ score of 70 or below

on an individually administered standardized test of

general intelligence; or

b. A full scale (or comparable) IQ score of 71-75

accompanied by a verbal or performance IQ score (or

comparable part score) of 70 or below on an individually

administered standardized test of general intelligence;

and

2. Significant deficits in adaptive functioning

currently manifested by extreme limitation of one, or

marked limitation of two, of the following areas of

mental functioning:

a. Understand, remember, or apply information . . . ; or

b. Interact with others . . . ; or

c. Concentrate, persist, or maintain pace . . . ; or

d. Adapt or manage oneself . . . .

20 C.F.R. 404, subpt. P, app. 1, § 115.05. The ALJ found that

L.D.H. did not meet this listing under Paragraph A because “the

claimant does have the ability to take a standardized test and is

not dependent upon others for her personal needs” and under

Paragraph B because “the claimant does not have a valid IQ test

score within the requisite range with two of the appropriate age-

group criteria noted in Section 112.05B2.” (R. at 16-17.) Regarding

Paragraph A, the fact that L.D.H. has been able to take several IQ

tests suggests that she is not unable “to function at a level

required to participate in standardized testing of intellectual

functioning.” 20 C.F.R. 404, subpt. P, app. 1, § 115.05A(1); (R.

424, 592, 678.) As for Paragraph B, it is true that L.D.H.’s IQ

scores in the record fall below 70.10 (R. at 424, 592, 678.)

However, the ALJ did not reject L.D.H.’s disability claim under

this listing solely because of her IQ score. Rather, the ALJ found

that the record did not support a finding of “[s]ignificant

deficits in adaptive functioning currently manifested by

[L.D.H.’s] dependence upon others for personal needs.” Indeed, the

record contains evidence that L.D.H.’s ability to take care of her

personal needs and safety was not generally limited. (R. at 224.)

That the record also contains contradictory evidence is not

sufficient for this court to remand this case. See Barker, 40 F.3d

at 794.

Listing 112.11 can be shown by establishing:

A. Medical documentation of the requirements of

paragraph 1, 2, or 3:

1. One or both of the following:

a. Frequent distractibility, difficulty sustaining

attention, and difficulty organizing tasks; or

b. Hyperactive and impulsive behavior (for example,

difficulty remaining seated, talking excessively,

difficulty waiting, appearing restless, or behaving as

if being “driven by a motor”).

2. Significant difficulties learning and using academic

skills; or

10L.D.H.’s medical records show the results from three IQ tests,

where she scored a 65 in February 2016, a 64 in January 2018, and

a 64 in August 2018. (R. at 424, 592, 678.)

3. Recurrent motor movement or vocalization.

AND

B. Extreme limitation of one, or marked limitation of

two, of the following areas of mental functioning . . .

:

1. Understand, remember, or apply information . . . .

2. Interact with others . . . .

3. Concentrate, persist, or maintain pace . . . .

4. Adapt or manage oneself . . . .

20 C.F.R. 404, subpt. P, app. 1, § 112.11. Referencing her findings

in the six Functional Equivalence Domains, the ALJ found that

L.D.H. did not meet this listing because “the claimant’s functional

limitations are not of listing level severity.” (R. at 17.) Bryson

argues that this finding was erroneous because Dr. Davis’s opinion

checked all of the boxes to support a finding of disability under

Listing 112.11. (R. at 687.) However, this court has already found

that the ALJ did not err in giving limited weight to Dr. Davis’s

opinion. Moreover, though the ALJ did not provide extensive details

in her finding on this issue, elsewhere the ALJ walked through

L.D.H.’s medical records with Rainbow Pediatrics, Le Bonheur, and

Carey Counseling and highlighted several instances where L.D.H.’s

medical records contradicted a finding of disabled under Listing

112.11. (R. at 18-21.) For example, in August 2016, L.D.H. was

reported as never “fidgety or unable to sit still,” in August 2017,

L.D.H. was reported as “having normal behavior, normal social

interaction, and normal attention,” in November 2017, L.D.H. was

reported as “doing well in school and having a good relationship

with teachers and staff,” and in July 2018, L.D.H. was reported as

having “average intelligence/concentration, appropriate mood, and

fair insight/judgment with average intellectual functioning.” (R.

at 19-21, 539, 620, 659, 744.) This is more than a scintilla of

evidence to support a finding that L.D.H. did not meet Listing

112.11, and thus the ALJ had substantial evidence to justify her

conclusion. See Kirk, 667 F.2d at 535.

G. Discovery Request

Finally, Bryson requests that this court allow her to subpoena

records from Dr. Dennis Wilson. According to Bryson, Dr. Wilson is

a DDS contract physician who examined L.D.H. on at least five

occasions leading up to the denial of her prior claim for

disability. (ECF No. 14 at 8.) Following the hearing, the ALJ

denied Bryson’s request to subpoena records from Dr. Wilson because

“the consultive examination in question was performed in December

2011 and a report of that examination, including the doctor’s

clinical observations, is already a part of the file. It is very

unlikely that the doctor’s written notes will provide any

additional probative information.” (R. at 12.) Additionally, the

ALJ considered that Dr. Wilson’s report was made in conjunction

with earlier disability applications that were denied and that the

amended disability onset date was more than five years after Dr.

Wilson last saw L.D.H. (R. at 12.) Regardless, the ALJ noted that

“Dr. Wilson’s opinion, like all others submitted in connection

with this case, will be weighed according to its consistency with

the evidence.” (R. at 12.)

This court is limited to considering “evidence in the record

below . . . when determining whether or not the ALJ's opinion was

supported by substantial evidence.” Bass, 499 F.3d at 512-13.

“There is no backdoor route to get new evidence considered for the

first time at the court of appeals level; the only method to have

new evidence considered is to ask for a sentence six remand under

42 U.S.C. § 405(g).” Id. at 513. As such, this court does not have

the authority to open discovery and issue a subpoena for Dr.

Wilson’s records. Rather, the court is limited to determining

whether the ALJ abused her discretion in denying Bryson’s request

for a subpoena.

SSA regulations establish that “an administrative law judge

or a member of the Appeals Council may, on his or her own initiative

or at the request of a party, issue subpoenas for the appearance

and testimony of witnesses.” 20 C.F.R. § 416.1450(d)(1). As such,

the Sixth Circuit has held that claimants do not have an absolute

right to subpoena physicians, “but rather the administrative law

judge has the discretion to issue a subpoena ‘where necessary for

the full presentation of a case.’” Luukkonen v. Comm’r of Soc.

Sec., 653 F. App’x 393, 403 (6th Cir. 2016) (quoting Flatford v.

Chater, 93 F.3d 1296, 1300–01 (6th Cir. 1996)). Bryson argues that

Dr. Wilson’s “raw testing and examination figures and notes” were

necessary for the record because the ALJ relied on Dr. Wilson’s IQ

test results when determining that L.D.H. did not suffer from the

listed Intellectual Disorder.

The court finds that the ALJ did not abuse her discretion

when she denied Bryson’s request to subpoena Dr. Wilson’s records.

As an initial matter, it is not immediately clear that the ALJ

relied on Dr. Wilson’s IQ test scores to determine that L.D.H. did

not meet Listing 112.05. As discussed above, Listing 112.05

requires both a valid IQ score in the requisite range and certain

findings that the claimant has significant deficits in adaptive

functioning. The ALJ found that Bryson was unable to establish

both necessary elements. Regardless, under SSA regulations, a

subpoena is only appropriate to uncover “facts [that] could not be

proven without issuing a subpoena.” 20 C.F.R. § 416.1450(d)(2).

Dr. Wilson’s entire report was already in the record. (R. at 406-

13.) The report contains a detailed narrative summarizing his

appointments with L.D.H. along with the results of L.D.H.’s

Wechsler Intelligence Scale for Children-IV test. (R. at 406-13.)

Moreover, Dr. Wilson’s notes predate Bryson’s alleged disability

onset date by five years and were made in conjunction with an

earlier disability application that was denied. The ALJ did not

abuse her discretion in denying Bryson’s request to subpoena Dr.

Wilson’s “raw testing and examination figures.”

III. CONCLUSIONS

For the reasons above, the Commissioner’s decision is

AFFIRMED.

IT IS SO ORDERED.

s/ Tu M. Pham__________________________

TU M. PHAM

Chief United States Magistrate Judge

March 24, 2021_________________________

Date