Mike v. Comm'r of Soc. Sec., Case No. 6:10-cv-118-Orl-GJK

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtGREGORY J. KELLY
PartiesTRICIA A. MIKE, o/b/o G.R., a minor child, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Decision Date19 September 2011
Docket NumberCase No. 6:10-cv-118-Orl-GJK

TRICIA A. MIKE, o/b/o G.R., a minor child, Plaintiff,

Case No. 6:10-cv-118-Orl-GJK


Dated: September 19, 2011


Tricia A. Mike ("Ms. Mike"), on behalf of G.R., a minor child (the "Claimant") appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying Claimant's application for benefits. See Doc. No. 1. Ms. Mike maintains that Claimant is disabled due to schizophrenia, a learning disorder, borderline intellectual functioning, and a mixed receptive-expressive language disorder. R. 21, 24, 318. Claimant argues that the final decision of the Commissioner should be reversed for further proceedings because: 1) it is not supported by substantial evidence because the Administrative Law Judge (the "ALJ") rejected the opinions of Claimant's treating physicians based upon the opinion of a non-examining psychologist, Dr. Kronberger; (Doc. No. 21 at 22-23); 2) the ALJ's finding that Claimant has a marked rather than a severe limitation in the area of acquiring and using information was not supported by substantial evidence (Doc. No. 21 at 19); 3) the ALJ impermissible substituted his own opinion of that of the medical professionals (Doc. No. 21 at

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23); and 4) the ALJ should have considered whether Claimant was entitled to an award of benefits for a closed period (Doc. No. 21 at 24-25). Doc. No. 21. For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) because the final decision is not supported by substantial evidence.


This case has a long history, including a previous remand from federal court. See Case No. 6:07-cv-499-Orl-DAB, Doc. No. 24 (M.D. Fla. Aug. 4, 2008) (reversing due to ALJ ignoring and mischaracterizing certain evidence related to poor academic performance and due to ALJ and Commissioner's characterization of Claimant's paranoid schizophrenia or hearing voices as having no affect on her ability to interact and relate others). Because the dispositive issue in this case is whether the ALJ erred by rejecting the opinions of Claimant's treating physicians based on the opinion of a non-examining clinical psychologist, Dr. Carlos Kronberger, the Court will tailor the medical and administrative history to that issue.

Claimant was born on March 22, 1994, and was eleven years old at the time of the first hearing and fifteen years old at the time of the second hearing before the ALJ. R. 65, 315, 572. On June 2, 2002, Claimant filed an application for benefits. R. 53-59. On November 6, 2002, Claimant presented to Dr. Rosimeri Clements, a psychologist, for a consultative mental examination to determine the extent of Claimant's learning disorder. R. 234-38. Dr. Clements noted that Claimant "talks" with imaginary friends, and that she has a family history of schizophrenia, but the primary focus of the examination was Claimant's learning disorder. R. 234-38. Dr. Clements opined that Claimant has borderline intellectual functioning, mixed

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receptive-expressive language disorder (provisionally), and nocturnal enuresis. R. 238. Dr. Clements recommended that Claimant obtain mental health care treatment "to monitor her 'overactive' imagination." R. 238. Dr. Clements's November 6, 2002 examination is the only consultative examination in this record.

From August 25, 2003 through April 12, 2005, Claimant received regular treatment for auditory hallucinations at Act Corporation. R. 252-54, 257-58, 261, 264-66, 284, 286, 288-89, 292-93, 295-97. At Act Corporation, Claimant's primary treating physician was Dr. Manuel Mota-Castilo. Id. On or about October 25, 2003, Claimant was diagnosed with Psychotic Disorder not otherwise specified ("NOS"). R. 252-54, 266. Claimant was placed on 5 milligrams of Abilify, which is used to treat schizophrenia. R. 252-54.1 Claimant showed improvement on Abilify until May of 2004, when treatment notes indicate she was still hearing voices. R. 258, 264, 295-296. On May 7, 2004, a provider from ACT Corporation completed a Mental Residual Functional Capacity Assessment opining that the Claimant has marked limitations in the ability to sustain an ordinary routine without special supervision and in the ability to interact appropriately with the public. R. 298-99. The report further states that Claimant: "has been diagnosed with Psychotic Disorder. She struggles with hallucinations and delusions. She hears voices especially when left alone and claims to have been physically assaulted by inadament [sic] objects. She has responded well to medication and treatment." R.

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300. On December 16, 2004, Claimant was given a Global Assessment of Functioning ("GAF") score of 45. R. 288-89.2

On January 25, 2005, Dr. Mota-Castilo changed Claimant's diagnosis from Psychotic Disorder NOS to Paranoid Schizophrenia. R. 286-87. The treatment note states that Claimant is continuing to hear voices, is uneasy about discussing them, and is continuing to urinate and defecate in bed at night. R. 286. Claimant's GAF score was 45. R. 287. Dr. Mota-Castilo increased Claimant's dosage of Abilify to 20 milligrams per day. R. 287. On April 12, 2005, the last treatment record from Dr. Mota-Castilo in this record states that Claimant is being treated for paranoid schizophrenia. R. 284-85. Ms. Mike reported that Claimant could still be observed talking to herself and Claimant admitted to continuing to hear voices. R. 284. Claimant was given a GAF score of between 45 and 50. R. 285. There are no other treatment records from ACT in this record.

From March 21, 2007 through April 23, 2009, Claimant received regular mental health treatment for auditory hallucinations and depression from Halifax Behavioral Services ("Halifax"). R. 473, 476-495, 521-58. On March 21, 2007, Claimant was referred to Halifax for treatment and evaluation of schizophrenia. R. 490. Claimant's primary treating physician at Halifax appears to have been Dr. Casanova. R. 490-95. Dr. Casanova notes that Claimant is hearing voices and talking to objects that are not there. R. 490-95. Dr. Casanova also notes that Claimant has a family history of schizophrenia, but diagnoses Claimant with Psychotic Disorder

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NOS because Claimant is "too young" for schizophrenia. R. 495. Dr. Casanova maintained Claimant on Abilify at 20 milligrams per days and added Lamictal at 25 milligrams per day.3

Throughout Claimant's treatment with Dr. Casanova, she maintained the diagnosis of Psychotic Disorder NOS. R. 473, 476-495, 521-31. Claimant's GAF scores ranged from 45 to 65 during her treatment, including a score of 50 on February 3, 2009. R. 473, 477, 479-82, 486-489, 537-46. Beginning in August of 2008, Claimant's Abilify was reduced from 20 milligrams to 15 milligram and, thereafter, continually reduced to 5 milligrams per day. R. 477-479. On February 2, 2009, treatment notes reflect that Claimant was still hearing voices and performing poorly in school. R. 537-44. On February 2, 2009, Claimant was also diagnosed with Depressive Disorder NOS, and began receiving treatment at Halifax Behavioral Clinic. R. 544-58. On April 8, 2009, however, Dr. Casanova continued to opine that Claimant maintains the diagnosis of Psychotic Disorder NOS. R. 531.

The administrative background through the date of the prior remand order is adequately set forth in United State Magistrate Judge David A. Baker's order and is incorporated herein by reference. See Case No. 6:07-cv-499-Orl-DAB, Doc. No. 24 (M.D. Fla. Aug. 4, 2008). On May 7, 2009, a hearing was held before ALJ John Thompson. R. 563-631. Claimant, who was represented by counsel, Ms. Mike, and medical experts Drs. Alvin Goldstein and Carlos Kronbereger were the only persons to testify at the hearing. R. 563-631. Drs. Goldstein and Kronberger did not examine the Claimant, but were called by the ALJ to offer opinions after conducting a records review. R. 567, 593-94.

Dr. Goldstein is an expert in the field of pediatrics and offered testimony concerning Claimant's physical impairments. R. 566-71. Dr. Goldstein testified that from a physical

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standpoint there have been no medical conditions which have afflicted Claimant since 2003. R. 569.

Dr. Kronberger testified that Claimant does not meet any listing for a mental impairment. R. 595. Dr. Kronberger noted that although Claimant has a learning disability, she is doing well in school. R. 596 (citing a January 29, 2009 report from Claimant's school. R. 454-63).4 Dr. Kronberger stated that in his opinion Dr. Mota-Castilo's diagnosis of paranoid schizophrenia is incorrect because other than having hallucinations, Claimant does not have any other features of the impairment. R. 595-96. Regarding the diagnosis of paranoid schizophrenia, Dr. Kronberger states:

To me it seems that anybody who has . . . diagnosed her as schizophrenic has not really considered appropriately the age of this child when the reports were first made on the one hand and there is some other interesting aspects of this family. There is a history of learning disabilities that run through the family. There are some serious stressors that the Claimant - - might influence her having some transient social thoughts or patterns. For example, significantly - - well, the Claimant has been raised in a single - parent household

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