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Carter v. Colvin

United States District Court, S.D. Georgia, Statesboro Division

January 3, 2017

SHAMICA CARTER o/b/o T.M., a Minor, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

         Plaintiff seeks judicial review of the Social Security Administration's denial of an application for Supplemental Security Income (SSI) filed on behalf of T.M., a minor. Tr. 179-88.

         I. GOVERNING STANDARDS

         In social security cases, courts

. . . review the Commissioner's decision for substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. (quotation omitted). . . . "We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Commissioner." Winschel, 631 F.3d at 1178 (quotation and brackets omitted). "If the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it." Dyer v.

Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted). Mitchell v. Comm'r, Soc. Sec. Admin., Ill. F.3d 780, 782 (11th Cir. 2014).

         A three-step sequential process is used to determine whether a child is disabled. 20 C.F.R. § 416.924. At the first step, the Commissioner must determine whether the claimant is engaging in substantial gainful activity; if so, the claim is denied. Id. § 416.924(b). At the second step, the Commissioner must determine whether the claimant has a severe impairment or combination of impairments; if the claimant does not have any severe impairments, the claim is denied. Id. § 416.924(c). At the third and final step, the Commissioner must determine whether the child's impairments meet or equal a "listed" impairment. Id. § 416.924(d). If the claimant does not have an impairment that meets, medically equals, or functionally equals the Listings, he will be found not disabled. Id. § 416.924(d)(2). The burden of proving disability lies with the claimant. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

         II. ANALYSIS

         T.M., who alleges disability since January 29, 2012, was 8 years old when his SSI claim was denied. Tr. 15; 179-88 (protective filing for SSI benefits). He was a preschooler at the time of application and school-aged at the time of the ALJ's decision. Tr. 15. After a hearing, the ALJ issued an unfavorable decision. Tr. 34-62, 12-28. The ALJ found that T.M.'s attention deficit hyperactivity disorder (ADHD) and mood disorder constituted severe impairments but did not meet or equal a Listing. Tr. 15-28. Hence, the ALJ found, he is not disabled. Tr. 28.

         A. Lay Witness Testimony

         The ALJ accorded "little weight" to licensed social worker (LCSW) Mary Say re, Nurse Michele D. Hughes, and kindergarten teacher Mary Elam. Tr. 17-27. Plaintiff contends that the ALJ erred by failing to accord proper weight to these sources. Doc. 13.

         All that is required of an ALJ regarding non-medical source evidence is that the evidence be considered. See 20 C.F.R. §§ 416.926, 416.926a, 416.927, 416.929.[1]There is no requirement that an ALJ give any particular amount of weight to non-medical source evidence. See Id. In rejecting lay witness testimony, the ALJ need only provide "arguably germane reasons" for dismissing the testimony, even if she does "not clearly link [her] determination to those reasons." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (cited in Cole v. Comm'r of Soc. Sec., 2012 WL 4077233 at *4 (M.D. Fla. Sept. 17, 2012)). An ALJ may reject lay witness testimony if it is inconsistent with the record. See, e.g., Lewis, 236 F.3d at 511-12 (rejecting lay witness testimony conflicting with the plaintiffs testimony and the medical record); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (rejecting lay witness testimony conflicting with the medical record).

         The ALJ may "draw inferences logically flowing from the evidence." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Further, "[i]f the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting similar testimony by a different witness." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012); 20 C.F.R. §§ 404.1529(c)(3), 404.1545(a)(3), see also SSR[2] 06-03p (recognizing that "there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision"); Osborri v. Barrihart, 194 F.App'x 654, 666 (11th Cir. 2006) ("[W]e conclude that the ALJ's specific and explicit credibility determination as to Osborn's testimony sufficiently implies a rejection of Mrs. Osborn's testimony as well.").

          1. LCSW Sayre

          The ALJ rejected LCSW Sayre's 2014 opinion that T.M. had "marked limitations" in every area of functioning (see tr. 381-82) because she was not an acceptable medical source, she provided no commentary explaining or supporting her assessment, and her assessment was inconsistent with both her own treating notes and with plaintiffs testimony. Tr. 19-20; see tr. 45 (plaintiff testified that T.M. was in regular classes with no special assistance, had never been held back a grade, and was "doing okay as far as his grades"), tr. 50-52 (plaintiff also testified that T.M. mostly got along well with other children and with adults and had no problems caring for his personal needs); see also Lewis, 236 F.3d at 511-12. The ALJ also properly relied upon agency reviewing psychologist Dr. James Mullins' opinion - who plaintiff notably does not dispute was properly accorded significant weight by the ALJ - that T.M. had less ...


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