Opinion
Civil Action No. 8:19-cv-00747-CMC-JDA
03-30-2020
Betty Ann Wiley, on behalf of JJW, Plaintiff, v. Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff, proceeding pro se, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
On October 30, 2014, Plaintiff filed an application for SSI on behalf of JJW, a child under the age of 18, with an alleged disability onset date of September 19, 2013. [R. 207-15.] Plaintiff's claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 113-21, 124-34.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on February 21, 2018, ALJ Joshua Vineyard conducted a de novo hearing on Plaintiff's claim. [R. 32-92.] Plaintiff was informed of the right to representation but chose to appear and testify without the assistance of an attorney or other representative. [R. 202.]
The ALJ issued a decision on April 24, 2018, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 13-27.] The ALJ explained the Childhood Standard for Disability applicable in this case. [R. 15-16.] The issue before him was whether the Plaintiff was disabled under section 1614(a)(3)(C) of the Act for the period before age 18. At Step 1, the ALJ found Plaintiff was born on April 21, 2007, and was therefore a school-age child on June 11, 2015, the date the application was filed, and continued to be a school-age child on the date of the decision. [R. 16, Finding 1.] The ALJ also found that Plaintiff had not engaged in substantial gainful activity since June 11, 2015, the application date. [R. 16, Finding 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: attention deficit hyperactivity disorder (ADHD), asthma, and learning disorder. [R. 16, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of allergic rhinitis, atopic dermatitis, and eczema. [Id.]
The three-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
At Step 3, the ALJ determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled the criteria of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 17, Finding 4.] The ALJ specifically considered Childhood Listings 103.03 (Asthma) and 112.11 (Neurodevelopmental disorders). [R. 17.] Further, the ALJ determined that, before attaining age 18, Plaintiff did not have an impairment or combination of impairments that functionally equaled the severity of an impairment in the listings. [R. 17, Finding 5.] Therefore, the ALJ found Plaintiff had not been disabled as defined in the Act since June 11, 2015, the date the application was filed. [R. 27, Finding 6.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-5.] Plaintiff filed this action for judicial review on March 12, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff fails to direct the Court to any error that the ALJ made in concluding that JJW was not disabled under the Act. Plaintiff, instead, provided the Court with 76 additional pages of evidence and indicated that she was "turning these documents in to show why [she] feel[s] JJW is disable[d]." [Doc. 22.]
The attachments include Richland School District One Individualized Education Program documents from May through September 2017 [Doc. 22-1 at 4-53], March 2018 [Doc. 22-2 at 1-12], and March 2019 [Doc. 22-2 at 14-25].
The Commissioner contends substantial evidence supports the ALJ's finding that JJW was not disabled under the Act. [Doc. 23.] The Commissioner contends Plaintiff failed to identify any particular issues that she is raising on appeal on behalf of the minor child. [Id. at 2 n.2.] Nevertheless, the Commissioner argues that the ALJ reasonably determined in this matter that JJW did not have an impairment or combination of impairments that functionally equaled the listings. [Id. at 10-20.]
STANDARD OF REVIEW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999). A court may not construct the Plaintiff's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir.1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985).
Court's Scope of Review in Social Security Actions
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Three-Step Evaluation for Individuals under Age 18
A child is considered disabled for purposes of SSI if the child "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). To facilitate a uniform and efficient processing of disability claims, the Administration has promulgated regulations under the Act that reduce the statutory definition of disability to a series of sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460-62 (1983) (discussing considerations in adult disability matter and noting "need for efficiency" in considering disability claims). The regulations set forth a three-step sequential analysis for determining whether a child is disabled for purposes of children's SSI benefits:
A "child" is an individual under the age of 18. See 42 U.S.C. § 1382c(a)(3)(C)(i).
(1) Is the child engaged in any substantial gainful activity? If so, benefits are denied.20 C.F.R. § 416.924(a)-(d).
(2) Does the child have a medically severe impairment or combination of impairments? If not, benefits are denied.
(3) Does the child's impairment(s) meet, medically equal, or functionally equal an impairment listed in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, benefits are granted.
In determining whether a child has engaged in substantial gainful activity ("SGA"), the Commissioner uses the same rules as used for adults. See 20 C.F.R. § 416.924(b). SGA is work activity that is both substantial and gainful and involves doing significant physical or mental activities for pay or profit, regardless of whether a profit is realized. Id. § 416.972.
For a child, a medically determinable impairment or combination of impairments is not severe if it is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations. 20 C.F.R. § 416.924(c).
In determining whether a child's impairment meets one of the listed impairments, the Commissioner compares the symptoms, signs, and laboratory findings of an impairment, as shown in the medical evidence, with the medical criteria for the listed impairment. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). "If a severe impairment is of the degree set forth in a Listing, and such impairment meets the twelve-month durational requirement, . . . then [the child] 'is conclusively presumed to be disabled and entitled to benefits.'" Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994) (quoting Bowen v. City of New York, 476 U.S. 467, 471 (1986)). "For a [child] to show that his impairment matches a listing, it must meet all of the specified medical criteria." Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). It is not enough that the impairment have the diagnosis of a listed impairment; the child "must have a medically determinable impairment(s) that satisfies all of the criteria of the listing." 20 C.F.R. § 416.925(d); see Bowen v. Yuckert, 482 U.S. 137, 146 & n.5 (1987) (noting it is the claimant's burden to show a medically determinable impairments and to furnish medical evidence regarding the condition).
To assess functional equivalence, the Commissioner assesses the interactive and cumulative effects of all of the child's impairments for which there is record evidence, including any non-severe impairments. 20 C.F.R. § 416.926a(a). First, the Commissioner considers everything the child does at home, at school, and in the community and determines what the child cannot do, has difficulty doing, needs help doing, or is restricted from doing because of his impairment(s). Id. When the Commissioner assesses the child's functional limitations, he considers all the relevant factors contained in 20 C.F.R. §§ 416.924a, 416.924b, and 416.929, including (1) how well the child can initiate and sustain activities, how much extra help he needs, and the effects of structured or supportive settings; (2) how the child functions in school; and (3) the effects of the child's medications or other treatment. Id.
Next, the Commissioner considers how the child functions in activities in terms of six domains, which are broad areas of functioning intended to capture what a child can or cannot do. Id. § 416.926a(b)(1). These domains are
(1) acquiring and using information;Id. Limitations are assessed by comparing the child's functioning to the functioning of children of the same age who do not have impairments. Id. §§ 416.924a(b)(3), 416.926a(b)(1). To establish functional equivalence, the child must have a medically determinable impairment or combination of impairments that results either in "marked" limitations in two domains or an "extreme" limitation in one domain. Id. § 416.926a(a), (d). A child has a "marked" limitation in a domain when his impairment or combination of impairments seriously interferes with his ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2)(i). A "marked" limitation is a limitation that is "more than moderate" but "less than extreme" and may limit only one or several activities or functions. Id. A child has an "extreme" limitation in a domain when his impairment or combination of impairments very seriously interferes with his ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(3)(i). An "extreme" limitation is a limitation that is "more than marked," and "extreme" is the rating given to the worst limitations, although it does not necessarily mean the child experiences a total lack or loss of ability to function. Id.
(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.
The Six Domains
(1) Acquiring and Using Information
Under the domain of Acquiring and Using Information, the Commissioner must consider the claimant's ability to learn information and to think about and use the information. Id. § 416.926a(g). School records provide important information for assessing limitations in this domain. SSR 09-3p, 74 Fed. Reg. 7,511-01, at 7,513 (Feb. 17, 2009). "Poor grades or inconsistent academic performance are among the more obvious indicators of a limitation in this domain provided they result from a medically determinable mental or physical impairment(s)." Id. Further, school records may reveal that mental or physical impairments interfere with the claimant's ability to acquire and use information by showing the claimant receives:
• Special education services, such as assignment of a personal aide who helps the [claimant] with classroom activities in a regular classroom, remedial or compensatory teaching methods for academic subjects, or placement in a self-contained classroom.Id. The kind, level, and frequency of special education, related services, or other accommodations a child receives can provide helpful information about the severity of the child's impairment(s). Id. The Commissioner will also "consider evidence about the child's ability to learn and think from medical and other non-medical sources (including the child, if the child is old enough to provide such information)," and limitations are assessed in all settings, not just in school. Id.
• Related services to help the child benefit from special education, such as occupational, physical, or speech/language therapy, or psychological and counseling services.
• Other accommodations made for the child's impairment(s), both inside and outside the classroom, such as front-row seating in the classroom, more time to take tests, having tests read to the student, or after-school tutoring.
Examples of limited functioning in Acquiring and Using Information include: (i) inability to demonstrate understanding of words about space, size, or time; (ii) inability to rhyme words or the sounds in words; (iii) difficulty recalling important things you learned in school yesterday; (iv) difficulty solving math questions or computing arithmetic answers; (v) talking only in short, simple sentences and having difficulty explaining what the child means. 20 C.F.R. § 416.926a(g)(3).
(2) Attending and Completing Tasks
For this domain, the Commissioner considers how well the child is able to focus and maintain his attention and how well he can begin, carry through, and finish activities, as well as the pace at which he can perform activities and the ease with which he can change them. 20 C.F.R. § 416.926a(h). As with the other domains, limitations in this domain are determined based on various age group descriptors. Id. § 416.926a(h)(2). For instance, as a preschooler, the child should be able to pay attention when spoken to directly, sustain attention to play and learning activities, concentrate on activities like putting puzzles together or completing art projects, get his clothes together and dress himself, feed himself, and put away toys. Id. The child should usually be able to wait his turn and to change his activity when a caregiver or teacher says it is time to do something else. Id. When a child is of school age, he should be able to focus his attention to follow directions, remember and organize his school materials, and complete classroom and homework assignments. Id. He should be able to concentrate on details; not make careless mistakes in his work beyond what would be expected in other children who do not have impairments; change his activities or routines without distracting himself or others; and stay on task and in place when appropriate. Id. Moreover, the school-age child should be able to sustain his attention well enough to participate in group sports, read by himself, and complete family chores, as well as be able to complete a transition task—such as to be ready for the school bus, change clothes after gym, or change classrooms—without extra reminders and accommodation. Id.
Examples of limited functioning in Attending and Completing Tasks include: (i) being easily startled, distracted, or over-reactive to sounds, sights, movements, or touch; (ii) slow to focus on, or fail to complete, activities of interest, e.g., games or art projects; (iii) repeatedly sidetracked from activities or frequently interrupt others; (iv) easily frustrated and give up on tasks, including ones the child is capable of completing; and (v) requires extra supervision to keep engaged in an activity. 20 C.F.R. § 416.926a(h)(3).
(3) Interacting and Relating with Others
With respect to this domain, the Commissioner considers how well the child can initiate and sustain emotional connections with others, develop and use the language of his community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others. Id. § 416.926a(i). Generally, the child must be able to speak intelligibly and fluently so that others can understand him; participate in verbal turntaking and nonverbal exchanges; consider others' feelings and points of view; follow social rules for interaction and conversation; and respond to others appropriately and meaningfully. Id. A child with limitations in this domain may have various kinds of difficulties:
Examples of limited functioning in Interacting and Relating with Others include: (i) inability to reach out to be picked up or held by caregiver; (ii) no close friends or friends are all older or younger than the child; (iii) avoids or withdraws from people the child knows or is overly anxious or fearful of meeting new people or trying new experiences; (iv) difficulty playing games or sports with rules; (v) difficulty communicating with others; e.g., in using verbal and nonverbal skills to express himself, carrying on a conversation, or in asking others for assistance; (vi) difficulty speaking intelligibly or with adequate fluency. 20 C.F.R. § 416.926a(i)(3).
For example, the child may not understand:
• How to approach other children,
• How to initiate and sustain social exchanges, and
• How to develop meaningful relationships with others.
Children with impairment-related limitations in this domain may not be disruptive; therefore, their limitations may go unnoticed. Such children may be described as socially withdrawn or isolated, without friends, or preferring to be left alone. These children may simply not understand how to accomplish social acceptance and integration with other individuals or groups. However, because children achieve much of their
understanding about themselves and the world from their interactions, the impairment-related limitations of children who withdraw from social interaction may be as significant as those of children whose impairments cause them to be disruptive.SSR 09-5p, 74 Fed. Reg. 7,515-01, at 7,516 (Feb. 17, 2009) (footnote omitted). Further, the domain of Interacting and Relating with Others is related to the domain of Caring for Yourself, but Interacting and Relating with Others involves the child's feelings and behavior in relation to others while Caring for Yourself involves the child's feelings and behavior in relation to himself. Id. at 7,517.
The Administration has provided the following two examples to illustrate the differences between these two domains:
• If a girl with hyperactivity interrupts conversations inappropriately, we evaluate this problem in social functioning in the domain of "Interacting and relating with others." However, if she impulsively runs into the street, endangering herself, we evaluate this problem in self-care in the domain of "Caring for yourself."SSR 09-5p, 74 Fed. Reg. 7,515-01, at 7,517 (Feb. 17, 2009).
• If a boy with a language disorder avoids other children during playtime, we evaluate this problem in social functioning in the domain of "Interacting and relating with others." But the child may also use language for "self-talk" to calm himself down in a stressful situation, so the language disorder may cause a limitation in self-regulation, which we evaluate in the domain of "Caring for yourself."
(4) Moving About and Manipulating Objects
Under this domain, the Commissioner considers how a child moves his body from one place to another and how he moves and manipulates things, which is an assessment of the child's gross and fine motor skills. 20 C.F.R. § 416.926a(j). Generally, moving the body involves several different kinds of actions: rolling; rising or pulling from a sitting to a standing position; pushing up; raising the head, arms, and legs, and twisting the hands and feet; balancing weight on the legs and feet; shifting weight while sitting or standing; transferring from one surface to another; lowering to or toward the floor as when bending, kneeling, stooping, or crouching; moving forward and backward in space as when crawling, walking, or running, and negotiating different terrains (e.g., curbs, steps, and hills). Id. § 416.926a(j)(1)(i). Moving and manipulating objects involves several different kinds of actions: engaging the upper and lower body to push, pull, lift, or carry objects from one place to another; controlling the shoulders, arms, and hands to hold or transfer objects; coordinating the eyes and hands to manipulate small objects or parts of objects. Id. § 416.926a(j)(1)(ii). Physical and mental impairments, as well as some medications, may affect the child's abilities in this domain:
For example:SSR 09-6p, 74 Fed. Reg. 7,518-01, at 7,520 (Feb. 17, 2009). This domain focuses on motor limitations caused by the child's impairments or medications, while the domain of Health and Physical Well-Being involves the cumulative physical effects—such as pain, weakness, dizziness, nausea, reduced stamina, or recurrent infections—of physical and mental impairments and their associated treatments that are not addressed in the domain of Moving About and Manipulating Objects. Id.
• A child with a benign brain tumor may have difficulty with balance.
• A child with rheumatoid arthritis may have difficulty writing.
• A child with a developmental coordination disorder may be clumsy or have slow eye-hand coordination.
. . . [S]ome antidepressant medications may cause hand tremors that interfere with fine motor skills. If these effects persist over time, [the Commissioner will] consider them in this domain.
Examples of limited functioning in Moving About and Manipulating Objects include: (i) experiencing muscle weakness, joint stiffness, or sensory loss (e.g., spasticity, hypotonia, neuropathy, or paresthesia) that interferes with motor activities; (ii) trouble climbing up and down stairs or having jerky or disorganized locomotion or difficulty with balance; (iii) difficulty coordinating gross motor movements (e.g., bending, kneeling, crawling, running, jumping rope, or riding a bike); (iv) difficulty with sequencing hand or finger movements; (v) difficulty with fine motor movement (e.g., gripping or grasping objects); (vi) poor eye-hand coordination when using a pencil or scissors. 20 C.F.R. § 416.926a(j)(3).
(5) Caring for Yourself
With respect to this domain, the Commissioner considers how well the child can maintain a healthy emotional and physical state, including how well he gets his physical and emotional wants and needs met in appropriate ways; how he copes with stress and changes in his environment; and whether he takes care of his own health, possessions, and living area. 20 C.F.R. § 416.926a(k). "Caring for yourself" effectively means the child becomes increasingly independent in making and following his own decisions, which entails relying on his own abilities and skills and displaying consistent judgment about the consequences of caring for himself. Id. § 416.926a(k)(1)(ii). This domain does not address the child's physical abilities to perform self-care tasks, which are addressed under the domains of Moving About and Manipulating Objects and Health and Physical Well-Being, as appropriate, nor does this domain address the ability to relate to other people, which is addressed under the domain of Interacting and Relating with Others. SSR 09-7p, 74 Fed. Reg. 7,521-01, at 7,522 (Feb. 17, 2009). Rather, this domain addresses the child's ability to recognize when he is ill, follow recommended treatment, take medication as prescribed, follow safety rules, respond to his circumstances in safe and appropriate ways, make decisions that do not endanger himself, and know when to ask for help from others. 20 C.F.R. § 416.926a(k)(1)(iv). As with limitations in other domains, limitations in the domain of Caring for Yourself may result from physical or mental impairment(s), medication, or other treatment. SSR 09-7p, 74 Fed. Reg. at 7,522.
With respect to the child's ability to follow recommended treatment, the Administration has stated,
We do not consider a child fully responsible for failing to follow prescribed treatment. Also, the policy of failure to follow prescribed treatment does not apply unless we first find that the child is disabled. Under this policy, we must also find that treatment was prescribed by the child's "treating source" (as defined in 20 CFR 416.902) and that it is clearly expected that, with the treatment, the child would no longer be disabled. Even then, we must consider whether there is a "good reason" for the failure to follow the prescribed treatment. For example, if the child's caregiver believes the side effects of treatment are unacceptable, or an adolescent refuses to take medication because of a mental disorder, we would find that there is a good reason for not following the prescribed treatment. However, if there is not a good reason and all the other requirements are met, a denial based on failure to follow prescribed treatment would be appropriate. See 20 CFR 416.930 and SSR 82-59, Titles II and XVI: Failure To Follow Prescribed Treatment.SSR 09-7p, 74 Fed. Reg. 7,521-01, at 7,522 n.11 (Feb. 17, 2009).
Examples of limited functioning in Caring for Yourself include: (i) continuing to place non-nutritive or inedible objects in the mouth; (ii) using self-soothing activities showing developmental regression (e.g., thumbsucking, re-chewing food) or exhibiting restrictive or stereotyped mannerisms (e.g., body rocking, headbanging); (iii) not dressing or bathing appropriately for the child's age; (iv) engaging in self-injurious behavior (e.g., suicidal thoughts or actions, self-inflicted injury, or refusal to take medication) or ignoring safety rules; (v) not spontaneously pursuing enjoyable activities or interests; (vi) having disturbance in eating or sleeping patterns. 20 C.F.R. § 416.926a(k)(3).
(6) Health and Physical Well-Being
Under this domain, the Commissioner considers the cumulative physical effects of physical or mental impairments and their associated treatments or therapies on the child's functioning that were not considered under the domain of Moving and Manipulating Objects. 20 C.F.R. § 416.926a(l). A physical or mental disorder may have physical effects that vary in kind and intensity, and may make it difficult for a child to perform his activities independently or effectively. Id. § 416.926a(l)(1). For instance, the child may experience problems such as generalized weakness, dizziness, shortness of breath, reduced stamina, fatigue, psychomotor retardation, allergic reactions, recurrent infection, poor growth, bladder or bowel incontinence, or local or generalized pain. Id. In addition, the medications taken (e.g., for asthma or depression) or the treatments received (e.g., chemotherapy or multiple surgeries) may have physical effects that also limit the child's performance of activities. Id. § 416.926a(l)(2). Thus, this domain does not address typical development and functioning but rather addresses how recurrent illness, the side effects of medication, and the need for ongoing treatment affect the child's body. SSR 09-8p, 74 Fed. Reg. 7,524-01, at 7,525 (Feb. 17, 2009). Accordingly, there are special considerations in this domain:
For example:
• A child who otherwise appears to be functioning appropriately may be doing so because of intensive medical or other care needed to maintain health and physical well-being. [The Commissioner] evaluates such medical fragility in this domain.
• Some disorders (for example, cystic fibrosis and asthma) are episodic, with periods of worsening (exacerbation) and improvement (remission). When symptoms and signs fluctuate, [the Commissioner] considers the frequency and
duration of exacerbations, as well as the extent to which they affect a child's ability to function physically.Id. at 7,526 (footnote omitted). Further, as in all domains, the child's limitations in Health and Physical Well-Being must result from a medically determinable impairment(s). 20 C.F.R. § 416.926a(l)(4).
In all cases, it is important to remember that the cumulative physical effects of a child's physical or mental impairment(s) can vary in kind and intensity, and can affect each child differently.
Examples of limitations in Health and Physical Well-Being include: (i) generalized symptoms, such as weakness, dizziness, agitation (e.g., excitability), lethargy (e.g., fatigue or loss of energy or stamina), or psychomotor retardation because of an impairment(s); (ii) somatic complaints related to impairments (e.g., seizure or convulsive activity, headaches, incontinence, recurrent infections, allergies, changes in weight or eating habits, stomach discomfort, nausea, headaches, or insomnia); (iii) limitations in physical functioning because of treatment (e.g., chemotherapy, multiple surgeries, chelation, pulmonary cleansing, or nebulizer treatments); (iv) exacerbations from one impairment or a combination of impairments that interfere with physical functioning; (v) the child is medically fragile and needs intensive medical care to maintain his level of health and physical well-being. 20 C.F.R. § 416.926a(l)(4). --------
The "Whole Child" Approach
Functional equivalence to a listed impairment is evaluated using the "whole child" approach, which requires consideration of "how the child functions every day and in all settings compared to other children the same age who do not have impairments." 20 C.F.R. § 416.926a(a); SSR 09-1p, 74 Fed. Reg. 7,527-01, at 7,528 (Feb. 17, 2009). The ALJ must consider all relevant information in the case record, which includes medical evidence, test scores, and information from parents, caregivers, teachers, and school personnel. 20 C.F.R. § 416.924a(a). She should then compare the child's functioning to that of other children his age who do not have impairments. 20 C.F.R. § 414.924a(b)(3); SSR 09-1p. The ALJ must assess the interactive and cumulative effects of the child's severe and nonsevere impairments. 20 C.F.R. §§ 416.924a(b)(4), 416.926a(a).
The "whole child" approach involves answering the following questions:
(1) How does the child function?SSR 09-1p, 74 Fed. Reg. 7,257-01 at 7,528 (Feb. 17, 2009).
(2) Which domains are involved in performing the activities?
(3) Could the child's medically determinable impairment(s) account for limitations in the child's activities?
(4) To what degree does the impairment(s) limit the child's ability to function age-appropriately in each domain?
In assessing a child's degree of limitation in any given domain, the "whole child" approach requires consideration of "how well the child can initiate, sustain, and complete activities," which involves evaluating "the kind, extent, and frequency of help or adaptations the child needs, the effects of structured or supportive settings on the child's functioning, where the child has difficulties (at home, at school, and in the community), and all other factors that are relevant." Id. (citing 20 C.F.R. § 416.924a). The degree of limitation in a domain is based on the answers to five questions:
(1) How many of the child's activities in the domain are limited (for example, one, few, several, many, or all)?
(2) How important are the limited activities to the child's age-appropriate functioning (for example, basic, marginally important, or essential)?
(3) How frequently do the activities occur and how frequently are they limited (for example, daily, once a week, or only occasionally)?
(4) Where do the limitations occur (for example, only at home or in all settings)?
(5) What factors are involved in the limited activities (for example, does the child receive support from a person, medication, treatment, device, or structured/supportive setting)?Id. at 7,530-31. "There is no set formula for applying these considerations in each case. . . . The judgment about whether there is a "marked" or "extreme" limitation of a domain depends on the importance and frequency of the limited activities and the relative weight of the other considerations described above." Id.
APPLICATION AND ANALYSIS
The ALJ's Decision
Upon review of the ALJ's decision, the Court notes the ALJ properly followed the three-step sequential evaluation process in evaluating JJW's disability claim. The ALJ determined that JJW had severe impairments of ADHD, asthma, and learning disorder; and nonsevere impairments of allergic rhinitis, atopic dermatitis, and eczema. [R. 16.] The ALJ proceeded on in the evaluation process to determine JJW was not under a disability since June 11, 2015, the date the application was filed. [R. 27.] The ALJ summarized JJW and Plaintiff's testimony and the available medical history and determined that, based on the evidence, JJW did not have an impairment or combination of impairments that resulted in either "marked" limitations in two domains of functioning or "extreme" limitation in one domain of functioning. [R. 18-26.]
As stated, Plaintiff has failed to identify any specific error by the ALJ in this case. And upon review, the Court cannot conclude that the ALJ's decision is unsupported by substantial evidence. The ALJ reviewed the evidence with respect to JJW's severe asthma impairment and found that his impairment did not meet Listing 103.03 because the evidence did not "demonstrate exacerbations or complications requiring three hospitalizations within a 12-month period and at least 30 days apart." [R. 17.] The ALJ also reviewed JJW"s severe ADHD impairment under Listing 112.11 and found that "the evidence does not show medical documentation of the requirements of paragraph 1, 2, or 3." [Id.] The ALJ noted that the consultative examiner found JJW was showing above average cognitive skills, but significant reading difficulties and mild delays in his math skills. [Id.] The examiner also noted, however, that JJW demonstrated only mild signs of ADHD. [Id.] In accordance with the regulations, the ALJ identified the relevant listed impairments and compared the listing criteria with the evidence of JJW's symptoms. Plaintiff has failed to point out any error in the ALJ's analysis and failed to direct the Court to any evidence before the ALJ that was not properly considered. Accordingly, the Court is constrained to find the ALJ's decision with respect to the listing analysis is supported by substantial evidence.
In finding that JJW had less than marked limitation in acquiring and using information [R. 22], marked limitation in attending and completing tasks [R. 23], less than marked limitation in interacting and relating with others [R. 24], no limitation in moving about and manipulating objects [R. 25], and less than marked limitation in the ability to care for himself [id.], the ALJ relied heavily on the opinions of State agency medical and psychological consultants who found that JJW possessed age-appropriate speech and language skills and fine motor, gross motor, and self-help skills, and that he testified to playing soccer, football, and tag at recess; displayed age appropriate self-help skills; and had asthma that could easily be treated if his grandmother would make sure his inhaler was always at the school. [See R. 460-62, R. 281-90.] In addition to relying on the opinions of medical professionals, the ALJ also explained that the consultative examiner reported
the claimant was in third grade, he received resource instruction at least one hour a day and the staff was considering increasing the number of hours of special education, and he was a good kid who got along well with other children. He was very active and impulsive and was not currently on any ADHD medication because his asthma medications negatively interacted with each other. He received a nebulize treatment in the morning and evening and had an inhaler on site as needed. While he was fidgety and easily distracted, Dr. King reported his thinking and reasoning skills were good, he worked hard to concentrate, and he showed age-appropriate speech and language skills as well as fine motor, gross motor, social, and self-help skills. The testing revealed a non-verbal full scale IQ of 102, 55th percentile; working memory standard score of 100 which is 50th percentile, and he was in the 37th percentile of visual perceptual motor integration. His reading standard score showed him to be in the first grade, 1st month level and math computation level was second grade, fifth month. Dr. King concluded the claimant currently showed at and above average cognitive skills, but significant reading difficulties and mild delays in math skills.[R. 21.] The ALJ indicated that, at the hearing, JJW testified to watching Nexflix with his sisters, princess and action shows, and having a good relationship with his teachers and classmates. [R. 18.] JJW testified that he forgot his books and that he had to visit the school nurse twice a week for breathing, but his inhaler usually worked in a few minutes. [Id.] He further testified that he could bathe alone, help with chores and had trouble with his sister's father, who hit him in the back of his head. [Id.]
Upon review, the Court finds that the ALJ clearly outlined the evidence of record supporting his conclusion, and Plaintiff failed to direct the Court to any evidence that the ALJ failed to consider in making the decision.
New Evidence
As stated, Plaintiff attached approximately 76 pages of evidence to her Plaintiff's brief to show that JJW was disabled. [See Doc. 22.] Plaintiff provided no explanation, however, as to how this evidence affects the ALJ's decision.
As stated above, "[t]he court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . ." 42 U.S.C. § 405(g); see also Schaefer, 509 U.S. at 297 n.2 ("Sentence-six remands may be ordered in only two situations: where the [Commissioner] requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency."). In applying sentence six, the United States Court of Appeals for the Fourth Circuit has held that a court may remand the case if the following four prerequisites are met: (1) "[t]he evidence must be relevant to the determination of disability at the time the application was first filed and not simply cumulative"; (2) the evidence "must be material to the extent that the [Commissioner's] decision might reasonably have been different had the new evidence been" presented; (3) "[t]here must be good cause for the claimant's failure to submit the evidence when the claim was before the [Commissioner]"; and (4) the claimant must make "'at least a general showing of the nature of the new evidence'" to the reviewing court. See Borders, 777 F.2d at 955 (internal quotation marks omitted); see also 42 U.S.C. § 405(g).
Here, the Commissioner contends that "the majority of the records contained in Docket 22-1 and 22-2 were already before the ALJ, so they were not new (Dkt 22-1, 14-53, Dkt. 22-2 1-2). With respect to the remaining documents that were not previously before the ALJ, as explained below, they are not material." [Doc. 23 at 19.]
With respect to the information that was previously before the ALJ and considered by him, these documents do not provide a basis for remand under sentence six because they are not new. Additionally, with respect to the documents that were not previously before the ALJ, Plaintiff has failed to make a reasonable showing as to how consideration of these documents would affect the ALJ's decision. For instance, a review of JJW's most recent IEP from March 2019 appears to mirror the information previously considered by the ALJ, i.e, JJW is relatively strong in math; is friendly and helpful toward peers and adults; is at a third-grade level in reading fluency, writing, and math; and is at a first-grade reading comprehension level. [Doc. 22-2 at 14.] Plaintiff has failed to identify, and the Court is not aware of, any information in these documents that is material to the ALJ's findings and/or requires remand for further consideration.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 30, 2020
Greenville, South Carolina