Rosa Rodriguez obo R.C. v. Acting Commissioner of the Social Security Administration

Court of Appeals for the Eleventh Circuit·Decided October 29, 2021·No. 20-14458·Unpublished

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

No. 20-14458

Non-Argument Calendar

ROSA RODRIGUEZ obo R.C., a minor child, Plaintiff-Appellant,

versus ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Nancy Berryhill,

Defendant-Appellee.

2 Opinion of the Court 20-14458

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-22548-KMM

Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges. PER CURIAM:

Rosa Rodriguez, on behalf of her minor son R.C.,1 appeals the district court’s order affirming the administrative law judge’s denial of R.C.’s application for supplemental security income under the Social Security Act. For the reasons stated below, we affirm .

I. FACTUAL AND PROCEDURAL BACKGROUND R.C. was born to Rosa Rodriguez on October 8, 2007. He applied for supplemental security income through counsel on May 8, 2015, alleging that he became disabled on October 8, 2007—i.e., that he was born disabled. The application asserted that R.C. has attention deficit hyperactivity disorder (“ADHD”). The symptoms of ADHD include difficulty attending to and completing tasks, trouble paying attention, hyperactivity, and lack of concentration.

1Rodriguez’s son, the claimant, is referred to by his initials to preserve his anonymity.

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Rodriguez indicated that R.C.’s ability to communicate was limited , that his ability to progress in learning was somewhat limited, that his impairments affected his behavior with other people, and that his ability to help himself and cooperate with others in caring for his personal needs was impaired. Rodriguez stated that R.C. took 5 milligrams of Focalin to manage his symptoms and that he had to be separated from other children due to behavioral problems .

On August 25, 2015, R.C.’s application was rejected by the Social Security Administration (“SAA”) because, in its view, R.C. was not disabled within the meaning of the relevant regulations. Specifically, the “Disability Determination Explanation” stated that R.C. had: (1) a “less than marked” limitation in acquiring and using information; (2) a “marked” limitation in attending and completing tasks; (3) no limitation in interacting and relating with others; (4) no limitation in moving about and manipulating objects; (5) no limitation in his health and physical wellbeing; and (6) a “less than marked” limitation in caring for himself. Rodriguez filed for reconsideration . In mid-November 2015, the SSA affirmed that R.C. was not disabled.

Rodriguez then requested a hearing before an administrative law judge. The hearing was held on November 7, 2017. The administrative law judge rendered her decision on August 10, 2018. First, the administrative law judge concluded that R.C. had not engaged in substantial gainful activity since the filing date. Second, the administrative law judge concluded that R.C.’s ADHD, speech 4 Opinion of the Court 20-14458

and language impairment, and developmental delay in fine motor skills were severe. Nevertheless, the administrative law judge concluded that R.C. did not have an “impairment or combination of impairments that” equaled “the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1” and thus was not disabled within the meaning of the regulation.

In the fall of 2018, Rodriguez appealed the administrative law judge’s denial to the SSA’s Appeals Council. On April 15, 2019, the Appeals Council denied her request for review because it did not find that the administrative law judge “abused [her] discretion ,” that there was “an error of law,” that the “decision [was] not supported by substantial evidence,” or that “public interest” was implicated.

About two months later, on June 19, 2019, Rodriguez filed a complaint in the District Court for the Southern District of Florida. Rodriguez and the SSA cross-moved for summary judgment. Rodriguez made substantially the same arguments she makes here: that the administrative law judge did not appropriately consider the evidence of Doctors Maria Gorelick and Elsa Marban and erred in finding that R.C.’s impairments did not at least functionally equal the listed impairments.

The case was assigned to a magistrate judge who, in her report and recommendation, recommended that Rodriguez’s motion for summary judgment be denied and the SSA’s motion for summary judgment be granted. First, the magistrate judge concluded that the proffered evidence of Dr. Gorelick was not a 20-14458 Opinion of the Court 5

“medical opinion[] that the administrative law judge was required to weigh” and, even if it was considered as a medical opinion, the failure to assign it weight was harmless as it was relied upon by the administrative law judge and consistent with the judge’s findings. Second, the magistrate judge found that the administrative law judge did not err in assigning partial weight to Dr. Marban’s opinion because it was at odds with other evidence and that, even if the opinion was improperly discounted, the opinion was consistent with the administrative law judge’s findings. Additionally, the magistrate judge disagreed with Rodriguez that some of Dr. Marban ’s evidence—the “Weschler Intelligence Scale” scores—constituted prima facie evidence of a marked or extreme limitation because , the magistrate judge said, the report did not translate the scores into standard deviations. Finally, the magistrate judge concluded that there was substantial evidence to support the administrative law judge’s finding that R.C. had “less than marked limitation in the domain of acquiring and using information” and “did not have a marked limitation in the domain of moving about and manipulating objects.”

Rodriguez objected to the district court, arguing that the magistrate judge improperly discounted certain test score evidence because it did not translate the scores into standard deviations. Specifically, Rodriguez argued that “the conversion itself from percentile rank . . . to standard deviations[] is no more complicated tha[n] reading a simple table” and does not involve any “interpretation .”

6 Opinion of the Court 20-14458

On September 29, 2020, the district court disagreed with Rodriguez ’s objections and adopted the magistrate judge’s finding that “discounting Dr. Marban’s opinion was not error.” 2 The district court noted that the “report which contains the[] results does not explain where Dr. Marban’s benchmarks are derived from, nor what the scores mean in context.” While Rodriguez, in her objections to the report and recommendation, explained how to convert percentile to standard deviation using a “simple table,” the district court explained that neither the administrative law judge nor magistrate judge had that table. The district court also independently considered the table and noted that it “lists no author or explanation as to how it was derived.” Finally, the district court noted that “discounting Dr. Marban’s opinions” was especially appropriate because “Dr. Marban’s test results were inconsistent with and undercut by her opinions.” This timely appeal ensued.

II. STANDARD OF REVIEW When an administrative law judge denies benefits and the Appeals Council denies review, we review the administrative law judge’s decision as the Social Security Commissioner’s final decision . Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “[W]e

2 The district court held that it did not “need [to] adopt the [magistrate judge’s]

finding that even if the ALJ had erred, any such error was harmless.” The district court also stated that the magistrate judge did not err in finding that Dr. Marban’s opinions comported with the administrative law judge’s decision —and thus would be harmless to exclude—because the magistrate judge “did not have the benefit of Plaintiff’s explanation and conversion table.”

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