Opinion
CIVIL ACTION NO. 17-5748
10-09-2018
TAKIMA HAWKINS, o/b/o N.J.H., a minor child v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration
REPORT AND RECOMMENDATION
Takima Hawkins filed the present action on behalf of her minor child, N.J.H. (hereinafter "plaintiff"), pursuant to 42 U.S.C. § 1383(c)(3), which incorporates by reference 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying plaintiff's claim for child's supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act").
Plaintiff filed a Brief and Statement of Issues in Support of Request for Review ("Pl.'s Br.") and defendant filed a Response to Request for Review by Plaintiff ("Def.'s Br."). For the reasons set forth below, this court recommends that plaintiff's Request for Review be GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
Ms. Hawkins filed plaintiff's application for SSI on April 15, 2014, alleging disability beginning on April 1, 2005. (R. 167-76.) The claim was denied initially and a request for hearing was timely filed. (R. 112-19, 123-27.) On May 5, 2016, Administrative Law Judge ("ALJ") Susannah Merritt held an administrative hearing. (R. 38-111.) During the hearing, counsel for plaintiff amended the claim, requesting consideration of a closed period of disability, from January 1, 2013 through September 1, 2015. (R. 42.) Plaintiff, as well as Ms. Hawkins, appeared and testified at the hearing. In a decision dated August 24, 2016, the ALJ found that plaintiff was not disabled under the Act. (R. 16-37.) The ALJ made the following findings:
1. The claimant was born on February 25, 2001. Therefore, he was a school-age child on April 15, 2014, the date [the] application was filed, and is currently an adolescent (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful activity since April 15, 2014, the application date (20 CFR 416.924(b) and 417.971 et seq.).
3. The claimant has the following severe impairments: Attention Deficit Hyperactivity Disorder (ADHD), hyperactivity, affective/mood disorders (20 CFR 416.924(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. The claimant does not have an impairment or combination of impairments that functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).
a. Acquiring and Using Information
b. Attending and Completing Tasks
c. Interacting and Relating with Others
d. Moving About and Manipulating Objects
e. Caring for Yourself
f. Health and Physical Well-Being
(R. 32-42.) Plaintiff filed a request for review of the ALJ's decision. (R. 165-66.) The request was denied by the Appeals Council and the ALJ's decision became the final decision of the Commissioner. (R. 2-9, 11-15.)
6. The claimant has not been disabled, as defined in the Social Security Act, since April 15, 2014, the date the application was filed (20 CFR 416.924(a)).
II. STANDARD OF REVIEW
The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's decision. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 571 U.S. 1204 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec'y of U.S. Dep't of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, "so long as an agency's fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings." Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).
III. BACKGROUND
At the outset of the administrative hearing, plaintiff's counsel stated that plaintiff had experienced an improvement in his condition and requested that the ALJ evaluate the case as a closed period of disability, from January 1, 2013 through September 1, 2015. (R. 42.) Counsel explained that from January 1, 2013 to September 2014, plaintiff was a sixth grade, then seventh grade, student at the Hardy Williams school. (R. 43-44.) In September 2014, plaintiff transferred to Wyncote Academy for the eighth grade. (R. 56.) At the time of the administrative hearing in May 2016, plaintiff was fifteen years old and in the ninth grade at Wyncote Academy. (R. 43, 49.) The closed period of disability, therefore, covered plaintiff's time at Hardy Williams for a portion of sixth grade and for seventh grade, and plaintiff's eighth grade year at Wyncote Academy. See R. 50.
A. Testimony of Takima Hawkins
Plaintiff's mother, Takima Hawkins, testified that she lived with plaintiff and his two sisters who were twenty-two and eighteen years old. (R. 48.) Plaintiff's four-year-old niece, three-year-old nephew, and nine-month-old nephew also resided in the home. (R. 49.) Ms. Hawkins related that plaintiff had been diagnosed with ADHD, depression, and social anxiety. (R. 50.) Ms. Hawkins explained that in the "last year or two at Hardy Williams" plaintiff became aggressive and began acting out at school. (R. 51.) Ms. Hawkins received reports from the school that plaintiff "was slapping things off the desk. He was tearing things and enraged, and started getting violent." Id. Ms. Hawkins also noted that plaintiff "went from advanced in everything to below basic in one year." Id. Ms. Hawkins described the evolution of plaintiff's behavioral problems at school:
Fifth grade he test - tested advanced in all the citywide testing. And then, when sixth-grade city-wide testing came up, he was at below basic in almost everything, and I couldn't understand why. And when I'd get a report card, if he - they were having a problem. No one's reached out [to] me from the beginning of the report period until the end of the report period to tell me you have the problems for me to help him, or to try to rectify them. So when I got the lawyer involved they made a Google Document, because they told me they couldn't - they had too many kids to do a daily report for him, which was one of the issues. The lawyer had them prepare some sort of Google Document, and then it was a requirement that every teacher, every day, at the end of the day, got on the document and reported if [plaintiff] did his homework, if [plaintiff] participated in class, what [plaintiff's] behavior was, if [plaintiff] was missing materials and things like that. So every day I could see it, but it didn't matter. They were calling me. Like, it was times where I'm leaving my job, because they can't control him.(R. 52.) With respect to behavior issues, Hardy Williams utilized a demerit system. (R. 57.) Prior to the creation of the Google Document as a means for Ms. Hawkins to communicate with his teachers, plaintiff "had this little card he had to wear. He was filling up two cards a day." Id.
Ms. Hawkins further explained that the administration of Hardy Williams changed while plaintiff was a student there, and prior to the change, the school did not have a special education department. (R. 55.) After the administrative changes were implemented, plaintiff had access to special education services. Id. In sixth grade, plaintiff was given an IEP; he also had an IEP as of the time of the administrative hearing. (R. 69.) Ms. Hawkins explained that plaintiff understood math concepts, but struggled with focusing and completing tasks. (R. 70.) Similarly, plaintiff was able to read and write, but his writing skills were below grade level. (R. 70, 72.) Ms. Hawkins noted that plaintiff was removed from class "every other day" due to behavior issues. (R. 71.) She was told by educators that plaintiff's academic struggles were the result of missed class time due to behavior problems. Id.
During the relevant time period, plaintiff's behavior at home was hyperactive. (R. 57.) According to Ms. Hawkins, plaintiff also liked to isolate himself in his room and play video games. Id. When asked by the ALJ to explain these seemingly conflicting traits, Ms. Hawkins explained that "even in the room and the video games, there's holes in the wall from him, like, jumping and kicking, and running up and down the steps. [Plaintiff] would run out [of] the room, just like run outside if he was going to the store; don't look for cars, run directly across the street. You know, jumping up and down on his beds, the sofa." (R. 58.) Ms. Hawkins stated that "the therapist who we've been seeing at Presbyterian told me that it was okay. One therapist said make him interact into society, which is why I tried sports and things. But when that didn't work and they gave him another therapist, they like, if something will grab his attention, you have to, you know, try to allow him to do as much of that to try to re-channel the energy." (R. 59.) Ms. Hawkins stated that "I have to go to work, and it was harder for my older daughters to even try to manage him when I didn't allow him to play the video games." Id.
Plaintiff had no overnight hospitalizations during the relevant period. (R. 59.) During the relevant period, plaintiff was prescribed Concerta and Zoloft. (R. 60-61.) Plaintiff also began taking Benadryl to help him fall asleep. (R. 61.) He took Adderall for two months, but "it didn't work." (R. 60-61.) Plaintiff also was prescribed Tenex during seventh grade. (R. 60.) "Other than a well check, [plaintiff's] primary [care physician] would write the prescription for the Concerta so that he wouldn't be without it." (R. 59.) Ms. Hawkins explained that plaintiff benefited when his Concerta dosage was properly regulated. (R. 62.) She stated:
[T]hey ended up increasing the Concerta, and . . . it was like they wasn't sure if it was working or not working. And I don't know if it all took into it the whole environment that he was in. But towards the end of seventh grade he started mellowing out. So, it was more of once they introduced the afternoon medication to him, the two together made a bigger difference that just the Concerta. It was like it was wearing off, because where we lived at, . . . to where the school was, [plaintiff spent] two hours on the bus.Id. Ms. Hawkins noted that, at that time, plaintiff took the medication at 5:00 a.m. and "by the afternoon it's almost gone" and "his major problems there were from 12:00 to the end of the day, and that's because the medication was wearing off." Id. According to Ms. Hawkins, the medication side effects included decreased appetite and occasional headaches. Id.
During the relevant period, plaintiff met with a therapist on a weekly basis during the school year. (R. 63.) Ms. Hawkins explained that plaintiff's father had custody of plaintiff every other weekend and for two weeks during the summertime. Id. However, plaintiff's father refused to give plaintiff his medication and to take him to therapy or psychiatrist appointments. (R. 63-64.) Ms. Hawkins was told by plaintiff's various medical treatment professionals that it was not healthy for plaintiff to go on and off of the medication. (R. 64.) Ms. Hawkins advised the ALJ that she was seeking an amendment to the custody arrangement so that plaintiff could remain in her custody and continue with medication and treatment. (R. 64-65.)
During the relevant period, plaintiff also had difficulty getting up in the morning and preparing for school, taking his medication, and taking care of his personal needs. (R. 66-68.) Plaintiff struggled with being on time for the school bus and completing household chores. (R. 68.) Ms. Hawkins was advised to maintain a routine with plaintiff. (R. 67-68.) She testified that plaintiff had difficulty following directions and needed constant reminders to stay on task. (R. 81.) Plaintiff was encouraged by his therapist to write down tasks in order for plaintiff to take greater responsibility. (R. 81-82.) During the relevant period, plaintiff also struggled with completing his homework. (R. 82-83.)
Ms. Hawkins represented that plaintiff got along with immediate family members, but did not get along with his teachers. (R. 73.) She described his school behavior as "very rebellious." Id. Ms. Hawkins noted, "[t]here were teachers saying that [plaintiff] was throwing things, knocking things off the desk, cursing. I never even heard him curse. Walking out of the classroom. At one point he threatened a teacher." Id. Plaintiff was assessed a one-day suspension for the threat. Id. Ms. Hawkins estimated that during seventh grade, she received calls three to five times per week regarding plaintiff's behavior at school. (R. 74-75.) He was given demerits and was given three one-day suspensions and one three-day suspension. (R. 75.) Plaintiff received the three-day suspension after an altercation with another student. (R. 75-77.) When asked whether plaintiff got along with his classmates, Ms. Hawkins described plaintiff as being friendly with one other boy and a girl. (R. 79-81.)
With respect to hobbies, plaintiff likes to play video games. (R. 83-84.) Plaintiff indicated at one time that he wanted to play football, but that only "lasted for two weeks." (R. 85.) Ms. Hawkins enrolled plaintiff in cardio kickboxing after plaintiff expressed an interest in boxing, but plaintiff refused to attend the classes. Id. At the time of the administrative hearing, plaintiff had recently obtained a membership to the YMCA and expressed an interest in basketball. Id.
Ms. Hawkins noted that plaintiff had obtained a job the prior summer with the Philadelphia Youth Network but "he hated it." (R. 86.) Plaintiff worked at a day care center and was required to interact with children. (R. 86-87.) Ms. Hawkins explained that plaintiff gets along well with his younger niece and nephews, but plaintiff "will tell you he doesn't like children." (R. 86.) Ms. Hawkins explained:
When other kids come to our house - we have the biggest house in the family, so we have the family events. He will not come out the room. No one ever knows that [plaintiff is] home, because he locks the door, and he will not interact. If he comes downstairs and the family's downstairs, he won't get the food or anything. He will turn around and go right back upstairs. He does not interact with the family at all.Id. Ms. Hawkins stated that plaintiff interacts only with his siblings, his niece and nephews, his maternal grandmother and his paternal great-grandparents. (R. 86-87.) With respect to the job at the day care center, Ms. Hawkins stated that she had to "force" plaintiff to go to work. (R. 88.) After plaintiff failed to appear for work for three days, Ms. Hawkins was notified. Id. She explained that she "forced him to finish out. You know, there's going to be things in life that you won't like. You can't quit." Id. In response to questioning by plaintiff's attorney, Ms. Hawkins also described a family trip to Disney World, during which plaintiff had no interest in attending the parks but instead chose to stay in the hotel for the duration of the trip. (R. 94-95.) Ms. Hawkins stated that there were too many people there and plaintiff chose to isolate himself instead of going to the parks. (R. 95-96.)
When asked to describe plaintiff's behavior on a typical weekend during the relevant time period, Ms. Hawkins stated:
From Friday night to some - I have an overnight client, so sometimes I'm not back home till Sunday. I can come home Sunday, [plaintiff] will still have the same thing on he had on Friday. If I'm not saying . . . go take a shower - why - it's no reason why you should have a school uniform on on Sunday. You haven't been in school for two days. But again, staying in the room, playing the game. I have to ask my daughters, did [he] eat? We haven't seen [him] come downstairs. Or [plaintiff] will soon as he get off the bus, buy two or three dollars' worth of junk food, and he will stay in the room and eat the junk food. He doesn't care about coming out [of] the room to go downstairs and feed himself. So that's the problem with keeping up his room, keeping his - there's food, junk, candy in the bed, on the side of the bed, everything.(R. 89.) Ms. Hawkins also noted that sometimes she got home from work at 4:00 a.m. and would discover plaintiff awake, playing video games. (R. 90.) Ms. Hawkins also stated that plaintiff wore the same clothes repeatedly even if they were not laundered. (R. 91.)
Ms. Hawkins noted that plaintiff's condition had improved, indicating that she was "grateful for the help with the school in the process, itself, because he has grown." Id. Ms. Hawkins also explained that plaintiff is self-conscious about having ADHD and that he was medicated with Zoloft to treat depression related to those concerns. Id. Ms. Hawkins reported that plaintiff was doing better at the time of the administrative hearing, but that he was "not 100%." (R. 92.) Ms. Hawkins attributed some of plaintiff's success to the fact that she no longer required plaintiff to stay with his father as directed by the custody arrangement and the fact that plaintiff's then-current school provided a smaller environment than Hardy Williams. Id. When plaintiff attended Hardy Williams, the classes were comprised of approximately thirty students. (R. 94.) At Wyncote Academy, plaintiff's class size consisted of five or six students, allowing more individual attention to his needs. (R. 93-94.)
B. Testimony of Plaintiff
In response to questioning by the ALJ, plaintiff testified that he enjoyed school and did not "like to miss a lot of school" because it was difficult to catch up with missed work. (R. 100.) Plaintiff described his favorite class as "history or math." Id. He stated that he gets along with his teachers. Id. Plaintiff explained that he was shy when he first attended Wyncote Academy because "it was a new environment" but that he "gained some friends over the course of the school year." (R. 101.) He described his friends as "[j]ust a couple good friends, because it's kind of a small school," with approximately sixty students in the entire school. Id. Plaintiff estimated that he is friends with three or four other students. Id. At the time of the administrative hearing, plaintiff enjoyed playing basketball and expressed an interest in trying out for the school team the following year. (R. 102.)
Plaintiff compared his experience at Hardy Williams with that of Wyncote Academy. He stated:
It was pretty different, because there was a lot more kids there. So, I didn't pay as much attention in the class. I [was] kind of like the class clown, and my new school, since there's not a lot of kids in my class, I have more attention, so I can excel more.Id. Plaintiff indicated that while he attended Hardy Williams, he got along with "almost everyone" and considered "the majority of the seventh grade" to be his friends. (R. 103.) Plaintiff acknowledged that, in seventh grade, he did not do his school work and that he got in trouble for "inappropriate behavior, being unprepared, [and] disrupting class." (R. 103-04.) Plaintiff felt that he had more difficulty with the teachers, rather than his classmates, while at Hardy Williams. (R. 104.) Plaintiff also acknowledged that he got into an altercation with another student during seventh grade, for which he received a suspension. (R. 105.) During eighth grade at Wyncote Academy, plaintiff received three detentions, but no suspensions. (R. 106.) During ninth grade, plaintiff received one detention. (R. 106-07.)
When asked by his counsel whether the transfer to Wyncote Academy helped him, plaintiff responded, "Yeah, very much, because of the small classrooms and the amount of students. I get the help that I need, and I'm not - okay. So in my old school I had ADH - well, I have ADHD, so at my old school, I don't think they really understood how it happened, or like how it worked." (R. 108.) Plaintiff further stated that, "I would get in trouble for, like, just getting out of my chair, walking around, but at my new school, there's people with the same type of disabilities I have. So I don't get in as much trouble as my old school." Id. Plaintiff agreed that the teachers at Wyncote Academy are better equipped to deal with the students, and as a result, plaintiff is better able to focus and pay attention in class. (R. 108-09.)
At the end of the administrative hearing, the ALJ noted that she would keep the record open for an additional twelve days so that plaintiff could submit additional documentation in support of his claim. (R. 110.)
IV. DISCUSSION
A. Evaluation of Childhood Disability
Pursuant to the provisions of the Act an individual under the age of eighteen is considered disabled for purposes of eligibility for child's SSI if he has a "medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i). Specifically, "a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D).
The three-step sequential process used to evaluate a child's claim for SSI benefits is outlined in 20 C.F.R. §§ 416.924 and 416.926a. This process requires an adjudicator to consider, in sequence, whether the child: (1) is engaged in substantial gainful activity; (2) has a severe physical or mental impairment or combination of impairments; and (3) has an impairment or combination of impairments that meets, medically equals, or functionally equals a listed impairment. 20 C.F.R. § 416.924(b)-(d). To determine if the child's impairment functionally equals a listing, the examiner evaluates how the child functions in his activities in terms of six domains. 20 C.F.R. § 416.926a(b)(1). The six domains of functioning are: (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 yourself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). An impairment functionally equals a listing if the child has "marked" limitations in at least two domains, or an "extreme" limitation in at least one domain of the six domains of functioning. 20 C.F.R. § 416.926a(a). Thus, if the child is not engaged in substantial gainful activity, has a severe impairment, and the child's impairment meets or functionally equals a listing, then the child will be considered disabled and entitled to SSI benefits. 20 C.F.R. § 416.924(b)-(d).
The Social Security Administration promulgated amendments to selected regulations since the date of the ALJ's decision. For purposes of this opinion, the court will refer to the version of the relevant regulation in effect at the time of the ALJ's decision in August 2016.
A claimant will have a "marked" limitation in a domain when the impairment interferes seriously with the ability to independently initiate, sustain, or complete activities. A child's day-to-day functioning may be seriously limited when the impairment(s) limits only one activity or when the interactive and cumulative effects of the impairment(s) limit several activities. 20 C.F.R. § 416.926a(e)(2). It is a limitation that is "more than moderate" but "less than extreme." Id. A claimant will have an "extreme" limitation in a domain when the impairment interferes very seriously with the ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3). An "extreme" limitation is one that is "more than marked," but it does not necessarily mean a total lack or loss of ability to function. Id.
The Social Security Administration has adopted a "whole child" approach for determining whether a child's impairment functionally equals the listings. See Determining Childhood Disability Under the Functional Equivalence Rule-the "Whole Child" Approach, SSR 09-1p, 2009 WL 396031 (S.S.A. Feb. 17, 2009).
B. Plaintiff's Claims
Plaintiff contends that substantial evidence does not support the ALJ's finding that he was not disabled. Specifically, plaintiff argues that the ALJ failed to properly consider plaintiff's diagnoses of Oppositional Defiant Disorder and Social Anxiety Disorder. (Pl.'s Br. at 9-11.) Plaintiff further avers that the ALJ erroneously found less than marked limitation in the domain of interacting and relating with others. Id. at 12-15. Defendant counters that substantial evidence supports the decision of the Commissioner. (Def.'s Br. at 4-16.)
In the present case, the ALJ analyzed the six domains set forth above and found that plaintiff had less than marked limitations in the following domains: acquiring and using information, interacting and relating with others, and caring for yourself. (R. 27, 29, 31.) The ALJ found that plaintiff had no limitation the domains of moving about and manipulating objects and in the ability to care for himself. (R. 30, 32.) The ALJ further found that plaintiff had marked limitation in attending and completing tasks. (R. 28.) The ALJ ultimately concluded that plaintiff was not disabled because he "does not have an impairment or combination of impairments that result in either 'marked' limitations in two domains of functioning or 'extreme' limitation in one domain of functioning." (R. 32.)
Plaintiff argues that the ALJ erred when she failed to determine that oppositional defiant disorder and social anxiety disorder are severe impairments. See Pl.'s Br. at 9-11. According to plaintiff, the ALJ did not properly assess the medical evidence pertaining to such impairments. Id. Plaintiff also contends that because the ALJ failed to find oppositional defiant disorder and social anxiety disorder to be medically determinable impairments, the ALJ failed to consider them in combination with plaintiff's other impairments, as required by the regulations. (Pl.'s Br. at 11) (citing 20 C.F.R. § 416.923(c)). Plaintiff posits that because the ALJ failed to consider such impairments as severe, she overestimated plaintiff's ability to function, particularly in the domain of interacting and relating with others. Id.
At step two, the Commissioner must determine whether the claimant has a medically determinable impairment that is severe. 20 C.F.R. § 416.924(c). SSR 96-3p clarifies that for an individual under eighteen who is claiming disability, an impairment(s) is considered "not severe" if it is a slight abnormality(ies) that causes no more than minimal limitation in the individual's ability to function independently, appropriately, and effectively in an age-appropriate manner. See 1996 WL 374181, at *1 (S.S.A. July 2, 1996).
SSR 96-3p subsequently was rescinded by SSR 16-3p, but was in effect at the time of the ALJ's decision in August 2016. See 2017 WL 5180304 (S.S.A. Oct. 25, 2017).
Regarding the proper analysis at step two for claims under Title II of the Act and for individuals age eighteen or older claiming disability benefits under Title XVI of the Act, the Third Circuit has stated that the "burden placed on an applicant at step two is not an exacting one." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). An applicant need only demonstrate something beyond "a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work." Id. (citing SSR 85-28, 1985 WL 56856, at *3). Reasonable doubts regarding the severity of the impairment are to be resolved in favor of the applicant. Id. (citing Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546-47 (3d Cir. 2003)). Furthermore, regardless of the severity findings at step two, an ALJ must consider non-severe impairments at subsequent steps of the sequential analysis. See, e.g., 20 C.F.R. § 404.1545(a)(2) ("If you have more than one impairment. We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not 'severe,' . . . , when we assess your residual functional capacity."); Brown v. Astrue, 2010 WL 4455825, at *4 (E.D. Pa. Nov. 4, 2010) ("Functional limitations caused by all impairments, whether found to be severe or non-severe at step two, must be taken into consideration at steps three, four and five of the sequential evaluation."). An error at step two, however, may be harmless if the ALJ considers the effects of the impairment in assessing a claimant's residual functional capacity. See, e.g., Lee v. Astrue, 2007 WL 1101281, at *3 n.5 (E.D. Pa. Apr. 12, 2007) (noting that the ALJ's determination at step two would not warrant remand if the ALJ proceeded with the five step sequential evaluation process and properly analyzed the claimant's limitations, considering both severe and non-severe limitations).
In Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005), the Third Circuit rejected the plaintiff's argument that the ALJ erred when he failed to explicitly consider the plaintiff's alleged obesity throughout the disability determination. The court concluded that remand was not required because it would not affect the outcome of the case. The court stated, "[b]ecause her doctors must also be viewed as aware of Rutherford's obvious obesity, we find that the ALJ's adoption of their conclusions constitutes a satisfactory if indirect consideration of that condition." Id. (emphasis added). --------
In her Response, defendant argues that substantial evidence supports the ALJ's findings as to plaintiff's severe impairments, and to the extent there was error, such error was harmless because substantial evidence supports the ALJ's finding that plaintiff did not functionally equal the listings. See Def.'s Br. at 4-5. In support of this argument, defendant relies upon King v. Comm'r of Soc. Sec., which found that "although the ALJ did not find ADHD to be a severe impairment, the ALJ thoroughly evaluated and considered ADHD in his Step Three analysis." 2013 WL 6188386, at *7 (D.N.J. Nov. 26, 2013).
Here, at step two, the ALJ found that plaintiff has the following severe impairments: ADHD, hyperactivity, and affective/mood disorders. (R. 22.) The ALJ did not explicitly address oppositional defiant disorder or social anxiety disorder at step two. See id. This is particularly relevant to plaintiff's claim that the ALJ erred in her consideration of the domain of interacting and relating with others. As set forth below, in contrast to the ALJ's decision in King, the ALJ in the case at bar did not thoroughly evaluate and consider the evidence of oppositional defiant disorder or social anxiety disorder in the step three analysis.
At step three, the ALJ addressed the testimony of plaintiff and Ms. Hawkins and analyzed the results of the July 8, 2014, consultative examination of William Davis, Psy.D. (R. 23-24.) The ALJ also described the October 28, 2014, evaluation of Bettina Bernstein, D.O., a child and adolescent psychiatrist with Presbyterian Children's Village, who, inter alia, diagnosed plaintiff with oppositional defiant disorder and social anxiety disorder. (R. 24.) In addition, the ALJ considered therapist records from Presbyterian Children's Village, as well as an April 22, 2016 evaluation from Tree of Life Behavioral Service Clinic. (R. 24-25.) Moreover, the ALJ discussed certain education records, including IEP reports, the opinion of the State Agency reviewer Erin Urbanowicz, Psy.D., the opinion of plaintiff's math teacher, Hannah Clements, and the opinion of the consultative examiner. (R. 25-26.)
With respect to the functional equivalence domains, plaintiff alleges error only with respect to the ALJ's analysis in the domain of interacting and relating with others, contending that the ALJ erroneously found that plaintiff had a less than marked limitation in this domain. (Pl.'s Br. at 12-15.) After setting forth the relevant standards for consideration of this domain, the ALJ presented her analysis. (R. 28-29.) She stated:
The Teacher Questionnaire shows an obvious problem with expressing anger appropriately. The claimant was noted to require more frequent breaks than other students and could be disruptive (Exhibit B4E). However, notes [from] the consultative examination show that the claimant was able to engage in verbal turn taking and mutual exchange. Furthermore, the record shows that the claimant had no social difficulties in the classroom when taking medications but his mother reported difficulties at home and in school when not on medications (Exhibit 16F).(R. 29.) Plaintiff avers that this analysis is flawed because it was based on mistakes of fact. (Pl.'s Br. at 12-15.) In particular, plaintiff argues that the ALJ cited only to the portion of the notes of the consultative examination that support the ALJ's determination that plaintiff is less than markedly limited in this domain, but that Dr. Davis' report contains multiple findings which support the existence of a marked limitation. Id. at 13.
The court agrees that the ALJ's treatment of Dr. Davis' report is not supported by substantial evidence. The report contains multiple findings that support plaintiff's argument. In the July 8, 2014, report, Dr. Davis observed that plaintiff "presented as a withdrawn individual. His manner of relating and social skills overall were poor. For the bulk of the evaluation, his head was buried in his own lap and/or his arm covered his eyes." (R. 391.) Dr. Davis also described plaintiff's posture as slouched and his eye contact as poor. Id. Although plaintiff's mood was described as euthymic, his affect was anxious. Id. Dr. Davis stated, "[t]he claimant himself reports that he does not have good peer relationships. He states that he needs more friends. He reports that he is bonded well to his family." (R. 392.) In addition, Dr. Davis indicated that "[t]he results of the examination appear to be consistent with cognitive and psychiatric problems and this may significantly interfere with the claimant's ability to function on a daily basis." Id. Dr. Davis deemed plaintiff's prognosis to be "[p]oor given the complexity and chronicity of his symptoms." (R. 393.) Specifically with respect to the domain of interacting and relating with others, Dr. Davis opined, "[h]e related in a poor fashion upon exam. His eye contact and posture were poor. Over time, he responded somewhat to rapport building and was able to engage in verbal turn taking and mutual exchange." (R. 395.) Again, the ALJ cited only to this last statement by Dr. Davis in support of her determination that plaintiff has less than marked limitation in this domain. See R. 29.
Furthermore, plaintiff contends that the ALJ's conclusion that plaintiff "had no social difficulties in the classroom when taking medications" is belied by the record, which shows that during the closed period at issue, plaintiff had problems interacting with his teachers at school even while on medication. (Pl.'s Br. at 13-14.) In support of this argument, plaintiff directs the court's attention to certain school behavior reports. See R. 280-350 (Exhibit B13E). Although the administrative record indicates that Exhibit B13E is comprised of "Education Records - Non Medical-Weekly Behavior Reports, dated 05/19/2016, from School tracker," it appears that these documents reflect teacher notations during the relevant time period while plaintiff was a student at Hardy Williams. Compare, e.g., R. 282 with R. 740-41. These reports indicate, inter alia, that plaintiff received numerous demerits for disrupting class, "[s]at on floor the whole period because he didn't want to sit in the available seat," and received demerits for disrespectful behavior. See, e.g., R. 282, 285, 286, 290, 294, 298, 301, 302, 304-06, 328. One entry by a teacher states: "[Plaintiff] was very talkative and argumentative when he entered class today. He refused to take his seat and continued to sporadically yell across the room at me that he didn't want to follow directions, even when I was not speaking to him at all. I issued him a warning, to which he responded very negatively." (R. 328.) Another entry reflects that plaintiff refused to sit in his regular seat and that plaintiff's mother was called "to let her know about the regression of [plaintiff's] behaviors that we/his teachers have been seeing within the last couple of weeks. [Plaintiff] screamed at Dean Mobley in the hallway because he did not want to put his schoolbag in his locker, during the next period, a minute or so into class, he walked aggressively in the hallway screaming at Ms. Clements." (R. 335.) This notation further states that plaintiff's mother indicated that plaintiff's "medications have not changed and she has been seeing the same at home. She is attending his therapy meeting with him today." Id. As plaintiff correctly asserts, it does not appear from her decision that the ALJ considered this relevant evidence.
This court is cognizant of the fact that there is "no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record," Hur v. Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004) (not precedential), and that "[a]n ALJ may accept some of a medical source's opinions while rejecting other opinions from the same source." Comiskey v. Astrue, 2010 WL 308979, at *9 (E.D. Pa. Jan. 27, 2010) (citing Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-04 (3d Cir. 2008)). However, an ALJ may not "'pick and choose' among the evidence, selecting only that which supports his ultimate conclusions." Middlemas v. Astrue, 2009 WL 578406, at *9 (W.D. Pa. Mar. 5, 2009) (citing Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (an ALJ may not simply rely on "the pieces of the examination reports that supported [his] determination," while excluding other evidence)). The Third Circuit has stated, "where there is conflicting probative evidence in the record, [there is] a particularly acute need for an explanation of the reasoning behind the ALJ's conclusions, and [the court] will vacate or remand a case where such an explanation is not provided." Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). The Third Circuit also has explained that in determining whether plaintiff's impairment matches, or is equivalent to, one of the listed impairments, the ALJ must set forth the reasons for his or her decision. Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 118-19 (3d Cir. 2000); Caruso v. Comm'r of Soc. Sec., 99 F. App'x 376, 379 (3d Cir. 2004) (not precedential). In doing so, the ALJ is not required to use magic language or to adhere to a particular analytical format. Caruso, 99 F. App'x at 379.
Additionally, the ALJ must provide not only an expression of the evidence she considered which supports the result, but also some indication of the evidence which was rejected. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). "In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Id. See Fargnoli, 247 F.3d at 43 ("Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence that he rejects and his reason(s) for discounting this evidence."). See also Johnson v. Comm'r of Soc. Sec. Admin., 529 F.3d 198, 204 (3d Cir. 2008) (the ALJ may not reject pertinent or probative evidence without an explanation). Furthermore, it is impermissible for the court to rectify errors made by an ALJ by making an independent analysis and relying upon information that was not relied upon by the ALJ. Fargnoli, 247 F.3d at 44 n.7.
Plaintiff contends that the ALJ failed to properly consider the evidence of record. This court agrees that the ALJ's decision is not supported by substantial evidence. In support of her determination that plaintiff had less than marked limitation in the domain of interacting and relating with others, the ALJ relied upon reports which contain findings that support plaintiff's argument and contradict the evidence cited by the ALJ. However, the ALJ did not attempt to resolve the conflict in these sources of evidence. Moreover, the ALJ did not discuss the School tracker records and this omission is relevant, as the school records contradict the ALJ's determination that "the record shows that the claimant had no social difficulties in the classroom when taking medications but his mother reported difficulties at home and in school when not on medications." See R. 29.
The court is mindful that this court's review is limited to determining whether the Commissioner's decision is "supported by substantial evidence." 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). This court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr., 806 F.2d at 1190-91. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2012) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); Burns, 312 F.3d at 118 ("We also have made clear that we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder."). However, case law also guides that the ALJ must "provide some explanation for a rejection of probative evidence which would suggest a contrary disposition." Adorno, 40 F.3d at 48. While defendant offers reasons for the ALJ's analysis, see Def.'s Resp. at 7-14, the ALJ did not. See Cortes v. Comm'r of Soc. Sec., 255 F. App'x 646, 653 (3d Cir. 2007) (not precedential) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.") (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)); Clinkscales o/b/o T.S. v. Colvin, 232 F. Supp. 3d 725, 735-36 (E.D. Pa. 2017) (same). Because the ALJ failed to explain why she rejected conflicting, probative evidence, her decision regarding the functional domain of "interacting and relating with others" is not supported by substantial evidence.
Thus, the court recommends that the case be remanded for further proceedings. If the ALJ again determines that plaintiff does not have an impairment or combination of impairments that result in either "marked" limitation in two domains functioning or "extreme" limitation in one domain of functioning, she must provide an adequate basis for that determination. Upon remand, the Commissioner may well reach the same conclusion; however, in the absence of sufficient indication that the Commissioner considered all of the evidence in the case and applied the correct legal standards, this court cannot satisfy its obligation to determine whether substantial evidence supports the Commissioner's decision. See Terwilliger v. Chater, 945 F. Supp. 836, 844 (E.D. Pa. 1996) (remanding case in the absence of sufficient indication that the Commissioner considered all of the evidence).
V. CONCLUSION
After a careful and thorough review of all of the evidence in the record, and for the reasons set forth above, this court finds that the ALJ's findings are not supported by substantial evidence. Accordingly, the court makes the following:
RECOMMENDATION
AND NOW, this 9th day of October, 2018, upon consideration of plaintiff's Brief and Statement of Issues in Support of Request for Review and defendant's Response, it is respectfully recommended that plaintiff's Request for Review be GRANTED.
The parties may file objections to the Report and Recommendation. See Loc. R. Civ. P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
BY THE COURT:
/s/ Thomas J. Rueter
THOMAS J. RUETER
United States Magistrate Judge ORDER
AND NOW, this day of , 2018, upon consideration of Plaintiff's Brief and Statement of Issues in Support of Request for Review and defendant's Response to Request for Review of Plaintiff, and after review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, it is hereby
ORDERED
1. The Report and Recommendation is APPROVED and ADOPTED.
2. Plaintiff's Request for Review is GRANTED, and the decision of the Commissioner of the Social Security Administration is REVERSED to the extent that the matter is REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with United States Magistrate Judge Thomas J. Rueter's Report and Recommendation.
3. Judgment is entered in favor of plaintiff, reversing the decision of the Commissioner for the purpose of this remand only.
BY THE COURT:
/s/_________
JOSEPH F. LEESON, JR. J.