United States District Court, N.D. Texas, Dallas Division
DANA GRAY o/b/o A.G. a minor, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
FINDINGS, CONCLUSIONS & RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
STICKNEY UNITED STATES MAGISTRATE JUDGE
Gray, on behalf of her grandchild, A.G., a minor child,
(“Plaintiff”) brings this action for judicial
review of the Commissioner of Social Security
Administration's (“Commissioner”) final
decision denying her claim for supplemental security income
under Title XVI of the Social Security Act pursuant to 42
U.S.C. § 405(g). For the following reasons, the
undersigned respectfully recommends that the District Court
REVERSE and REMAND the final decision of the
alleges that A.G. is disabled due to attention deficit
hyperactivity disorder, articulation disorder, autistic
disorder, a possible psychotic episode, and borderline to low
average range of intelligence. Pl.'s Br. 2, ECF No. 16;
Tr. 112-14, ECF No. 13-4. After her application was denied
initially and on reconsideration, Plaintiff requested a
hearing before an administrative law judge
(“ALJ”). Hearings were held on June 26, 2015 and
September 25, 2015 in Dallas, Texas before ALJ Daniel Curran
(the “ALJ”). Tr. 108 & 133, ECF No. 13-4.
A.G. was born on May 22, 2005, and at the time of the
hearing, he was 10 years old. Tr. 155, ECF No. 13-5. The ALJ
issued a decision finding that A.G. has not been under a
disability as defined in the Social Security Act from the
date of the application on September 20, 2012 through the
date of his decision on November 30, 2015. Tr. 100, ECF No.
13-4. The ALJ determined that A.G. had the following severe
impairments: attention deficit hyperactivity disorder,
disorder of written expression, articulation disorder,
borderline intellectual functioning, autism spectrum
disorder, psychotic disorder, and generalized anxiety
disorder. Tr. 89, ECF No. 13-3. The ALJ determined that A.G.
did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr.
92, ECF No. 13-3. Plaintiff appealed the ALJ's decision
to the Appeals Council, and on November 8, 2016, the Appeals
Council denied Plaintiff's request. Tr. 1, ECF No. 13-3.
Plaintiff subsequently filed this action in the District
Court on January 11, 2017. Compl., ECF No. 1.
individual under the age of eighteen who is not engaging in
substantial gainful activity is considered disabled “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.” 20
C.F.R. §§ 416.906, 416, 924. The Commissioner
utilizes a sequential three-step inquiry to determine whether
a child is disabled and entitled to monthly benefits under
the Social Security Act: (1) A child who is working and
engaging in substantial gainful activity will not be found
disabled regardless of medical findings; (2) a child who does
not have a “severe impairment” will not be found
to be disabled; and (3) a child whose impairment meets,
medically equals, or functionally equals a listed impairment
in the regulations will be considered disabled. 20 C.F.R.
ALJ finds a severe impairment, he or she must then consider
whether the impairment “medically equals” or
“functionally equals” a listed disability. 20
C.F.R. § 416.924(c)-(d). For children, the Listing of
Impairments, found in Appendix 1 of Subpart P of Part 404 of
Chapter III, “describes impairments that cause marked
and severe functional limitations.” 20 C.F.R. §
416.925(a). Appendix 1 is divided into Parts A and B; Part B
exclusively applies to children whereas Part A applies to
children only when “the disease processes have a
similar effect on adults and children.” 20 C.F.R.
§ 416.925(b). To meet the requirements of a listing, the
claimant must have a medically determinable impairment that
satisfies all of the criteria of the listing. 20 C.F.R.
§ 416.925(d). An impairment medically equals a listing
“if it is at least equal in severity and duration to
the criteria of any listed impairment.” 20 C.F.R.
claimant does not have a severe impairment or combination of
impairments that meets or medically equals any listing, the
Commissioner determines whether the claimant has an
impairment that “results in limitations that
functionally equal the listings.” 20 C.F.R. §
416.926a(a). To determine whether a child's impairment
functionally equals a listed disability, the impairments are
evaluated for the following 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). In
evaluating a child's ability to function in each domain,
the Commissioner also considers: (1) the activities the child
is able to perform; (2) the activities the child is not able
to perform; (3) which of the child's activities are
limited or restricted compared to children of the same age
who do not have impairments; (4) whether the child has
difficulty with activities at home, in childcare, at school,
or in the community; (5) whether the child has difficulty
independently initiating, sustaining, or completing
activities; and (6) what kind of help the child needs to do
activities, how much, and how often. 20 C.F.R. §
416.926a(b)(2). If the evidence shows that a child's
impairment seriously interferes with his or her ability to
independently initiate, sustain, or complete activities, the
impairment is considered “marked.” 20 C.F.R.
§ 416.926a(e)(2)(i). If the evidence shows that a
child's impairment very seriously interferes with his or
her ability to independently initiate, sustain, or complete
activities, the impairment is “extreme.” 20
C.F.R. § 416.926a(e)(3)(i). In order to demonstrate
functional equivalence, the child must exhibit a
“marked” limitation in two of the domains, or an
“extreme” limitation in one domain. 20 C.F.R.
Commissioner's determination is afforded great deference.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
Judicial review of the Commissioner's findings is limited
to whether the decision to deny benefits is supported by
substantial evidence and to whether the proper legal
standards were utilized. Greenspan v. Shalala, 38
F.3d 232, 236 (5th Cir. 1994) (citing 42 U.S.C. §§
405(g), 1383(c)(3)). Substantial evidence is defined as
“that which is relevant and sufficient for a reasonable
mind to accept as adequate to support a conclusion; it must
be more than a scintilla, but it need not be a
preponderance.” Leggett, 67 F.3d at 564. The
reviewing court does “not reweigh the evidence, try the
issues de novo, or substitute” its own
judgment, but rather scrutinizes the record as a whole to
determine whether substantial evidence is present.
Greenspan, 38 F.3d at 236.
an error that affects the substantial rights of a party,
administrative proceedings do not require ‘procedural
perfection.'” Wilder v. Colvin, No.
3:13-CV-3014-P, 2014 WL 2931884, at *5 (N.D. Tex. June 30,
2014) (citing Taylor v. Astrue, 706 F.3d 600, 603
(5th Cir. 2012)). “The ALJ is not required to discuss
every piece of evidence in the record nor must the ALJ follow
formalistic rules of articulation.” Hunt v.
Astrue, No. 4:12-CV-44-Y, 2013 WL 2392880, at *7 (N.D.
Tex. June 3, 2013) (citing Castillo v. Barnhart, 151
F. App'x 334, 335 (5th Cir. 2005)); see also Falco v.
Shalala, 27 F.3d 160, 164 (5th Cir. 1994) (“That
[the ALJ] did not follow formalistic rules in her
articulation compromises no aspect of fairness or accuracy
that her process is designed to ensure.”).
“Procedural errors affect the substantial rights of a
claimant only when they ‘cast into doubt the existence
of substantial evidence to support the ALJ's
decision.'” Wilder, 2014 WL 2931884, at *5
(quoting Morris v. Bowen, 864 F.2d 333, 335 (5th
Cir. 1988)). “Remand is required only when there is a
realistic possibility that the ALJ would have reached a
different conclusion absent the procedural error.”
Id. (citing January v. Astrue, 400 F.
App'x 929, 933 (5th Cir. 2010)).
argues that the ALJ failed to properly consider a medical
source statement submitted by treating physician, Dr. Harold
Barnard who noted that there were documented findings of
marked inattention, marked impulsiveness, and marked
hyperactivity. Pl.'s Br. 4, ECF No. 16; Tr. 446-49, ECF
No. 13-9. Plaintiff also points out that Dr. Barnard
indicated that A.G. had cognitive/communicative function at a
level generally acquired by children who are half A.G.'s
age. Pl.'s Br. 4-5, ECF No. 16; Tr. 447, ECF No. 13-9.
Plaintiff further points out that Dr. Barnard opined that
A.G. has marked difficulties in maintaining concentration,
persistence, or pace. Pl.'s Br. 5, ECF No. 16; Tr. 449,
ECF No. 13-9. Plaintiff argues that the treatment records
establish that Dr. Barnard is a treating physician, and that
the ALJ may reject the opinion of such treating physician
only if he performs a detailed analysis of the treating
physician's views under the criteria set forth in 20
C.F.R. § 416.927 (“Section 416.927”) if
there is no controverting reliable medical evidence from a
treating or examining physician. Pl.'s Br. 5, ECF No. 16;
Tr. 801, ECF No. 13-14. Plaintiff argues that while Dr.
Barnard's opinions are consistent with other medical
opinions in the record, the ALJ stated that he found little
support for his opinion and relied on the opinions of
non-treating and non-examining physicians. Pl.'s Br. 7,
ECF No. 16.
response, the Commissioner argues that Dr. Barnard does not
qualify as a treating physician, because he examined A.G. on
one occasion. Def.'s Br. 4, ECF No.17. The Commissioner
argues that the deference given to a treating physician is
premised on the notion that the opinion of a physician who
treats a claimant over a period of time should be accorded
considerable weight in determining disability, and that a
treating physician under the regulations is defined as a
physician who has given medical treatment or evaluation and
who has or has had an ongoing relationship with the claimant.
Def.'s Br. 4, ECF No.17 (citing 20 C.F.R. §
416.902). The Commissioner argues that a physician's one
time evaluation of a claimant does not created the ongoing
treatment relationship that is necessary to qualify as a
treating source. Def.'s Br. 5, ECF No.17 (citing 20
C.F.R. § 416.902). The Commissioner cites in support a
case from the Southern District of Texas which stated that
the “SSA ‘will not consider an acceptable medical
source to be your treating source if your relationship with
the source is not based on your medical need for treatment or
evaluation, but solely on your need to obtain a report in
support of your claim for disability[, ]' [and that the
claimant's] one time visits [with doctors on the
recommendation of his counsel] do not constitute
‘ongoing' treatment.” Richardson ex. rel.
C.R. v. Barnhart, 338 F.Supp.2d 749, 759 (S.D. Tex.
2004) (citing 20 C.F.R. § 416.902; Benton ex. rel.
Benton v. Barnhart, 331 F.3d 1030, 1036-38 (9th Cir.
reply, Plaintiff argues that Dr. Barnard's notes indicate
that he saw A.G. on August 14, 2015 “for a transition
into care, ” and that this indicates that he evaluated
him for the purpose of treatment. Reply 2, ECF No. 18; Tr.
801, ECF No. 13-14. Plaintiff argues that the length of the
treatment relationship is one of the factors that should be
considered under the criteria set forth in Section 416.927.
Reply 2, ECF No. 18. Plaintiff argues that while it appears
that the Commissioner is relying upon the opinion of Dr.
Alvin Smith, a psychologist who testified at the hearing, Dr.
Smith was not an examining or treating source and ...