# Bryson v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

> District Court, W.D. Tennessee · March 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10440523

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** March 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10440523

## How later opinions describe it (automated extraction)

- holding that “neither Adams nor Jessup, as ‘senior psychological examiners,’ fit [the] category” of licensed or certified psychologist
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10440523. Public record. Not legal advice.