Opinion
CIVIL NO.: 1:18-CV-02220
12-04-2019
MICHELLE MILEVOI o/b/o M.E.M., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
(Judge Kane) () REPORT AND RECOMMENDATION
I. Introduction.
This is a social security action brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). Michelle Milevoi seeks judicial review of the final decision of the Commissioner of Social Security denying her minor daughter's claim for supplemental security income benefits. Because the Commissioner's decision is not supported by substantial evidence, we recommend that the court vacate the Commissioner's decision and remand the case to the Commissioner.
II. Background and Procedural History.
We refer to the transcript provided by the Commissioner. See docs. 8-1 to 8-13. On March 24, 2015, Ms. Milevoi protectively applied for supplemental security income benefits on behalf of her minor daughter M.E.M., alleging that M.E.M. has been disabled since July 1, 2014. Admin. Tr. at 121, 145-54. After the Commissioner denied the claim at the initial level of administrative review, Ms. Milevoi requested an administrative hearing. Id. at 125, 129-31. On July 20, 2017, Ms. Milevoi with the assistance of counsel, testified at a hearing before Administrative Law Judge ("ALJ") Edward Brady. Id. at 87-112.
Because the facts of this case are well known to the parties, we do not repeat them here in detail. Instead, we recite only those facts that directly bear on Ms. Milevoi's claim.
The ALJ determined that M.E.M. has not been disabled since March 24, 2015, the date of her application, and so he denied her benefits. Id. at 65. Ms. Milevoi appealed the ALJ's decision to the Appeals Council, which denied her request for review on September 18, 2018. Id. at 1-6. This makes the ALJ's decision the final decision of the Commissioner subject to judicial review by this court.
In November of 2018, Ms. Milevoi began this action by filing a complaint claiming that the ALJ's decision "is not in supported by substantial evidence" and "contains errors of law." Doc. 1 at ¶¶ 14-15. She requests that the court reverse the Commissioner's decision and award her benefits or, in the alternative, remand the case to the Commissioner for a new hearing. Id. at § V. The Commissioner filed an answer and a certified transcript of the administrative proceedings. Docs. 7, 8. The parties have filed briefs, and this matter is ripe for decision. Docs. 15, 18, 19.
III. Legal Standards.
A. Substantial Evidence Review—the Role of This Court.
When reviewing the Commissioner's final decision denying a claimant's application for benefits, "the court has plenary review of all legal issues decided by the Commissioner." Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). But the court's review of the Commissioner's factual findings is limited to whether substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019). "[T]he threshold for such evidentiary sufficiency is not high." Biestek, 139 S. Ct. at 1154. Substantial evidence "means—and means only—'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence "is less than a preponderance of the evidence but more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's] finding from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The question before this court, therefore, is not whether M.E.M. is disabled, but whether substantial evidence supports the Commissioner's finding that she is not disabled and whether the Commissioner correctly applied the relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation.
To receive supplemental security income pursuant to Title XVI of the Social Security Act, a claimant under the age of eighteen must demonstrate that he or she 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." 42 U.S.C. § 1382c(a)(3)(C)(i); see also 20 C.F.R. § 416.906. The ALJ follows a three-step sequential-evaluation process to determine whether a child claimant is disabled. See 20 C.F.R. § 416.924. Under this process, the ALJ must sequentially determine: (1) whether the child is engaged in substantial gainful activity; (2) if not, whether the child has an impairment or combination of impairments that is severe; and (3) if so, whether the child's severe impairment (or combination of impairments) meets, medically equals, or functionally equals one of the disability listings. Id.
If the analysis proceeds to step three, the ALJ must determine whether a child's impairment meets, medically equals, or functionally equals a disability listing. Id. Whether a child's impairment functionally equals a disability listing is analyzed in terms of six domains of functioning. 20 C.F.R. § 416.926a(b). "These domains are broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(b)(1). The six domains 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 oneself; and (6) health and physical wellbeing. Id. When determining whether an impairment is functionally equivalent to a listing, the ALJ considers the effects of all the child's impairments, including those impairments that the ALJ does not identify as severe at step two of the analysis. 20 C.F.R. § 416.926a(a).
An impairment is functionally equivalent to a disability listing if it results in a "marked" limitation in two domains or an "extreme" limitation in one domain. Id. A "marked" limitation is one that seriously interferes with the child's "ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). A '"[m]arked" limitation also means a limitation that is "more than moderate" but "less than extreme."' Id. An "extreme" limitation is one that very seriously interferes with the child's "ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i). An '"[e]xtreme" limitation also means a limitation that is "more than marked."' Id.
The ALJ uses a "whole child" approach in determining whether an impairment is functionally equivalent to a listing. Title XVI: Determining Childhood Disability Under the Functional Equivalence Rule-the "Whole Child" Approach, SSR 09-1P, 2009 WL 396031 (Feb. 17, 2009). Under this approach, the ALJ begins "by considering the child's functioning without considering the domains or individual impairments." Id. at 1. After identifying "which of a child's activities are limited," the ALJ then determines "which domains are involved in those activities," and "whether the child's impairment(s) could affect those domains and account for the limitations." Id. at *2. An impairment "may have effects in more than one domain" and limitations caused by an impairment must be evaluated "in any affected domain(s)." Id. (quoting 20 C.F.R. § 416.926a(c)). Finally, the ALJ "rate[s] the severity of the limitations in each affected domain." Id. "This technique for determining functional equivalence accounts for all of the effects of a child's impairments singly and in combination—the interactive and cumulative effects of the impairments—because it starts with a consideration of actual functioning in all settings." Id.
The ALJ's disability determination must also meet certain basic substantive requirements. Most significantly, the ALJ must provide "a clear and satisfactory explication of the basis on which" his or her decision rests. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). "The ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The "ALJ may not reject pertinent or probative evidence without explanation." Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, '"the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.'" Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Cotter, 642 F.2d at 705).
IV. The ALJ's Decision Denying M.E.M.'s Claim.
The ALJ evaluated M.E.M.'s claim at each step of the sequential-evaluation process. Admin Tr. at 55-65. At step one, the ALJ found that M.E.M. has not engaged in substantial gainful activity since her application date of March 24, 2015. Id. Next, at step two, the ALJ found that M.E.M. has medically determinable severe impairments of amplified pain syndrome, bipolar disorder, attention deficit disorder/hyperactivity disorder, and major depressive disorder. Id. Then, at step three, the ALJ determined that M.E.M. does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the version of 20 C.F.R. Part 404, Subpart P, Appendix 1 in effect on the date the ALJ issued his decision. Id. Additionally, the ALJ determined that M.E.M. does not have an impairment or combination of impairments that functionally equals the severity of the listings. Id.
M.E.M. was born on June 5, 2005. Admin Tr. at 55. At one point, the ALJ refers to M.E.M. as a "preschool aged child" and states that "he has never worked." Id. This reference is in error. As the ALJ recognizes at another point in his decision, at the time of her application for benefits on March 24, 2015, M.E.M. was a female school-aged child, and she is now an adolescent. Id.
As to this latter determination, addressing the six domains of functioning, the ALJ concluded that "the claimant 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." Id. at 65. More specifically, the ALJ found that M.E.M. has: (1) less than marked limitation in acquiring and using information; (2) less than marked limitation in attending and completing tasks; (3) less than marked limitation in interacting and relating with others; (4) less than marked limitation in moving about and manipulating objects; (5) less than marked limitation in the ability to care for herself; and (6) marked limitation in health and physical well-being. Id. at 59-65. Based on this analysis, the ALJ determined that M.E.M. "has not been disabled, as defined in the Social Security Act, since March 24, 2015, the date the application was filed (20 CFR 416.924(a))." Id. at 65.
V. Discussion.
Ms. Milevoi contends that the ALJ erred in finding that M.E.M. has less than marked limitations in the domain of attending and completing tasks and in the domain of moving about and manipulating objects. We conclude that the ALJ's determination that M.E.M. has less than marked limitations in attending and completing tasks is not supported by substantial evidence.
Given that conclusion, we do not address Ms. Milevoi's remaining contention that the ALJ erred in finding a less than marked limitation in moving about and manipulating objects. See Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016) (declining to address other allegations of error because "[a] remand may produce different results on these claims, making discussion of them moot").
The ALJ set forth the general standards that apply regarding the domain of attending and completing tasks:
This domain considers how well a child is able to focus and maintain attention, and how well she is able to begin, carry through, and finish activities, including the mental pace at which she performs activities and the ease of changing activities. Attending and completing tasks also refers to a
child's ability to avoid impulsive thinking and her ability to prioritize competing tasks and manage her time (20 CFR 416.926a(h) and SSR 09-4p).
Social Security rules provide that a school-age child without an impairment should be able to focus her attention in a variety of situations in order to follow directions, remember and organize school materials, and complete classroom and homework assignments. The child should be able to concentrate on details and not make careless mistakes in her work (beyond what would be expected in other children of the same age who do not have impairments). The child should be able to change activities or routines without distraction, and stay on task and in place when appropriate. The child should be able to sustain attention well enough to participate in group sports, read by herself, and complete family chores. The child should also be able to complete a transition task (e.g., be ready for the school bus, change clothes after gym, change classrooms) without extra reminders and accommodation (20 CFR 416.926a(h)(2)(iv) and SSR 09-4p).
Social Security rules provide that an adolescent without an impairment should be able to pay attention to increasingly longer presentations and discussions, maintain her concentration while reading textbooks, and independently plan and complete long-range academic projects. The child should also be able to organize her materials and to plan her time in order to complete school tasks and assignments. In anticipation of entering the workplace, the child should be able to maintain attention on a task for extended periods of time, and not be unduly distracted by peers or unduly distracting to them in a school or work setting (20 CFR 416.926a(h)(2)(v) and SSR 09-4p).
Social Security regulation 20 CFR 416.926a(h)(3) and SSR 09-4p set forth some examples of limited functioning in this domain that children of different ages might have. The examples do not apply to a child of a particular age; rather, they cover a range of ages and developmental periods. In addition, the examples do not necessarily describe "marked" or
"extreme" limitation in the domain. Some examples of difficulty children could have in attending and completing tasks are: (i) is easily startled, distracted, or over-reactive to everyday sounds, sights, movements, or touch; (ii) is slow to focus on, or fails to complete, activities of interest (e.g., games or art projects); (iii) repeatedly becomes side-tracked from activities or frequently interrupts others; (iv) is easily frustrated and gives up on tasks, including ones she is capable of completing; (v) requires extra supervision to remain engaged in an activity; or (vi) cannot plan, manage time, or organize self in order to complete assignments or chores.Id. at 60-61.
After setting forth the above standards that apply to the domain of attending and completing tasks, the ALJ reasoned and concluded:
The claimant has less than marked limitation in attending and completing tasks. Treatment notes in June 2017 show the claimant is prescribed Abilify and reported she is not depressed or hopeless, she was happy being on summer break from Cyber School. Her grades were good falling in the 80's and 90's range, and her PSSA testing placed her in the Basic performance level (Exhibit 11E/p.26). Therefore, the undersigned finds less than marked limitation in attending and completing tasks.Id. at 61.
The ALJ failed to explain, however, how the fact that M.E.M. was prescribed Abilify, that she is not depressed or hopeless, and that she is happy being on summer break relates to her ability to attend and complete tasks. And while M.E.M.'s grades and test scores may certainly reflect on her ability to attend and complete tasks, the ALJ failed to mention in connection with this domain the evidence of M.E.M.'s school accommodations.
Ms. Milevoi testified that because of M.E.M.'s impairments, when she was enrolled in regular school, M.E.M. was absent a lot. Id. at 102. She missed somewhere between 37 and 43 days of school. Id. Ms. Milevoi had to take M.E.M. out of school because with her pain, she could not function a whole day at school. Id. at 105-06. M.E.M. is now enrolled in cyber school, which permits her flexibility to complete her work. Id. at 101, 110. Because of this flexibility, M.E.M. can work at her own pace to get her schoolwork done. Id. at 101. But as a result, at times, she must do her school work at night and on the weekends to stay on track. Id. at 101. According to Ms. Milevoi, often after M.E.M. checks into homeroom at 8:30 a.m., she will sit or lay down until about 11:30 or 12:00, after which M.E.M. will "get up, try to take a shower, and then she'll start her work." Id.
Although the ALJ relies on M.E.M.'s grades and PSSA testing to conclude that she has less than marked limitation in attending and completing tasks, he fails to address the effect the accommodations allowed by cyber school have on her grades and test scores. Such accommodations must be considered. See 20 C.F.R. § 416.924a(b)(5)(iv)(E) ("[I]f your symptoms or signs are controlled or reduced in a structured setting, we will consider how well you are functioning in the setting and the nature of the setting in which you are functioning (e.g., home or a special class); the amount of help you need from your parents, teachers, or others to function as well as you do; adjustments you make to structure your environment; and how you would function without the structured or supportive setting.").
The ALJ acknowledges that M.E.M. is enrolled in and currently on break from cyber school. Id. at 61. And at another point in his decision, he summarizes some of the testimony of Ms. Milevoi including that she testified that M.E.M. can work at her own pace to get her schoolwork done. Id. at 57. But he does not address how the accommodations and support M.E.M. receives in cyber school bear on her ability to attend and complete tasks. And in particular, he does not address Ms. Milevoi's testimony that M.E.M. often cannot start her schoolwork for hours after she checks into homeroom. In the absence of such a discussion, it is difficult to determine whether the ALJ did not find this evidence credible or he simply overlooked it.
While the ALJ is not required "to use particular language or adhere to a particular format in conducting his analysis," Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004), the ALJ must discuss the evidence and explain his reasoning sufficiently "to enable meaningful judicial review." Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). Here, the ALJ's conclusory and opaque discussion of M.E.M.'s ability to attend and complete tasks is not sufficient to allow meaningful judicial review. Therefore, the ALJ's determination that M.E.M. has less than marked limitations in attending and completing tasks is not supported by substantial evidence.
In his brief, the Commissioner sets forth a more robust analysis of the evidence of M.E.M.'s ability to attend and complete tasks than that set forth by the ALJ. "The court may not, however, evaluate the ALJ's administrative decision on any grounds other than those the ALJ actually relied upon in making his decision." Jury v. Colvin, No. 3:12-CV-2002, 2014 WL 1028439, at *6 n.13 (M.D. Pa. Mar. 14, 2014) (citing SEC v. Chenery, 332 U.S. 194, 196 (1947) (stating that a court must judge the propriety of an administrative decision that the "administrative agency alone is authorized to make" solely on the grounds the agency invoked, and if those grounds are inadequate or improper, the court cannot affirm the agency's decision). Rather, "[t]he court must limit its consideration to what is plain in 'the four corners of the ALJ's decision.'" Spoljaric v. Berryhill, No. CV 3:17-0246, 2018 WL 3427781, at *6 (M.D. Pa. July 16, 2018) (quoting Marbury v. Astrue, No. CIV. A. 09-300, 2010 WL 3220039, at *6 (W.D. Pa. Aug. 12, 2010)). Thus, we cannot rely on the Commissioner's post-hoc explanation to uphold the ALJ's reasoning because it is not the explanation that the ALJ gave at the administrative level.
Ms. Milevoi contends that the court should reverse the Commissioner's decision and award benefits or, in the alternative, remand the case to the Commissioner for proper consideration of the evidence. Under sentence four of 42 U.S.C. § 405(g), the court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." Thus, although a remand is often the appropriate remedy, the court may also enter an order awarding the claimant benefits. See Brownawell v. Comm'r Of Soc. Sec., 554 F.3d 352, 358 (3d Cir. 2008) (remanding the case to the district court with directions to enter an order awarding the payment of benefits); Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000) (same); Podedworny v. Harris, 745 F.2d 210, 223 (3d Cir. 1984) (same). But an "award benefits should be made only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits." Podedworny, 745 F.2d at 221-22. Whether there has been excessive delay and/or prior remands also bears on whether to award benefits or remand for further proceedings. Diaz v. Berryhill, 388 F. Supp. 3d 382, 391 (M.D. Pa. 2019). "Thus, in practice any decision to award benefits in lieu of ordering a remand for further agency consideration entails the weighing of two factors: First, whether there has been an excessive delay in the litigation of the claim which is not attributable to the claimant; and second, whether the administrative record of the case has been fully developed and substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits." Id. Here, those factors do not weigh in favor of an award of benefits as there has not been excessive delay or prior remands, and the ALJ error here was failing to adequately explain his reasoning, which may be remedied on remand. Thus, we will recommend that the case be remanded to the Commissioner for further proceedings.
VI. Recommendation.
For the foregoing reasons, we recommend that the court vacate the Commissioner's decision and remand the case to the Commissioner pursuant to sentence four of 42 U.S.C. §405(g). Final judgment should be entered in favor of Ms. Milevoi and against the Commissioner.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record.
The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 4th day of December, 2019.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge