T.D.B. v. Colvin

Filing 18

ORDER. The decision of the Commissioner that plaintiff was not disabledis AFFIRMED, by Judge Philip A. Brimmer on 3/6/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-01604-PAB
T.D.B., a minor, by and through his mother, Raisa Simmons Burrell,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on the Complaint [Docket No. 1] filed by
plaintiff T.D.B. on June 23, 2016. Plaintiff seeks review of the final decision of
defendant Nancy A. Berryhill (the “Commissioner”) denying his claim for supplemental
security income under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 40133 and 1381-83c. The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 405(g).1
I. BACKGROUND
On June 7, 2013, plaintiff applied for supplemental security income under Title
XVI of the Act. R. at 32. Plaintiff alleged that he had been disabled since January 1,
2007. Id. Plaintiff later amended his alleged onset date of disability to June 7, 2013.
Id. After an initial administrative denial of his claim, plaintiff received a hearing before

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The Court has determined that it can resolve the issues presented in this
matter without the need for oral argument.

an Administrative Law Judge (“ALJ”) on December 16, 2014. Id. On January 29, 2015,
the ALJ issued a decision denying plaintiff’s claim. Id. at 32-47.
The ALJ found that plaintiff had the following severe impairments: depression,
learning disorder, and attention deficit hyperactivity disorder. Id. at 35. The ALJ
concluded that these impairments, alone or in combination, did not meet one of the
regulations’ listed impairments, id., and ruled that plaintiff did not have an impairment
that functionally equaled the severity of the listings. Id. at 35-46. The ALJ concluded
that plaintiff had a marked limitation in interacting and relating with others and did not
have an extreme limitation in any functional domain. Id. at 39-45.
On April 19, 2016, the Appeals Council denied plaintif f’s request for review of
the ALJ’s denial of his claim. Id. at 1-4. Given the Appeals Council’s denial, the ALJ’s
decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Three-Step Evaluation Process
“A child is considered disabled if she has ‘a medically determinable physical or
mental impairment, which results in marked and severe functional limitations, and . . .
which has lasted or can be expected to last for a continuous period of not less than 12
months.’” Taylor v. Berryhill, 679 F. App’x 661, 662 (10th Cir. 2017) (unpublished)
(citing 42 U.S.C. § 1382c(a)(3)(C)(i)).
The Commissioner has established a three-step sequential evaluation process to
determine whether a child is disabled. 20 C.F.R. § 416.924(a); Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001). T he steps of the evaluation are:
(1) that the child is not engaged in substantial gainful activity, (2) that the
child has an impairment or combination of impairments that is severe, and
(3) that the child’s impairment meets or equals an impairment listed in
Appendix 1, Subpart P of 20 C.F.R. Pt. 404.

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Briggs, 248 F.3d at 1237 (citing 20 C.F.R. § 416.924(a)). Under step three of the
evaluation, the ALJ is required to assess a child’s ability to function in six domains:
(i) Acquiring and using information; (ii) Attending and completing tasks;
(iii) Interacting and relating with others; (iv) Moving about and manipulating
objects; (v) Caring for [him]self; and, (vi) Health and physical well-being.
Id. (citing 20 C.F.R. § 416.926a(b)(1)(i)-(vi)). “A child’s impairment or combination of
impairments functionally equals the listings and, thus, constitutes a disability, when it
results in ‘marked’ limitations in two domains or an ‘extreme’ limitation in one domain,
as described in 20 C.F.R. § 416.926a.” Taylor, 679 F. App’x at 662.
C. The ALJ’s Decision
Plaintiff argues that the ALJ erred in three ways: first, by failing to list disruptive
behavioral disorder as a severe impairment; second, by finding that plaintiff had
marked, as opposed to extreme limitations in the domain of interacting and relating;
and, third, by failing to support his decision with substantial evidence.2 Docket No. 13.
1. The Failure to List Disruptive Behavioral Disorder as a Severe
Impairment
Plaintiff argues that the ALJ erred by failing to list disruptive behavioral disorder
as a severe impairment. Docket No. 13 at 7. At the December 11, 2013 hearing, the
ALJ took the testimony of an impartial medical expert, Robert E. Pelc, Ph.D. R. at 7084. Dr. Pelc testified that plaintiff suffered from disruptive behavioral disorder. R. at 71.
The ALJ acknowledged this diagnosis, id. at 39, but did not identify disruptive

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In his opening brief, plaintiff identifies two issues on appeal: first, that the ALJ
did not correctly apply the law and, second, that the ALJ’s decision was not supported
by the substantial evidence. Docket No. 13 at 3. The specific issues noted above are
discussed in the body of plaintiff’s brief. Id. at 7-12.
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behavioral disorder as a severe impairment. Id. at 35. Plaintiff argues that, because
“the ALJ did not identify disruptive behavior disorder as a severe impairment, he failed
to discuss the effects of limitations of the disorder from one domain as it might have
effects on another domain of functioning.” Docket No. 13 at 8.
As an initial matter, it was not reversible error for the ALJ to fail to identify
disruptive behavioral disorder at step two. See Allman v. Colvin, 813 F.3d 1326, 1330
(10th Cir. 2016) (discussing the analogous analysis at step two in considering adult
disability). So long as the ALJ identifies a severe impairment at step two, the ALJ
proceeds to step three and considers the child’s ability to function in light of all of his
impairments. Taylor, 679 F. App’x at 662. Thus, the relevant inquiry is whether the ALJ
considered plaintiff’s disruptive behavioral disorder at step three.
In conducting the step-three analysis, the ALJ acknowledged Dr. Pelc’s finding
that plaintiff suffered from disruptive behavioral disorder. R. at 39. Moreover, the ALJ
discussed how plaintiff’s behavioral issues affect his abilities in several functional
domains. See R. at 42-45 (discussing the domain of attending and completing tasks
and noting that plaintiff’s use of medication had made him “less angry,” and that, in
2014, plaintiff had “fewer behavioral problems”; discussing the domain of interacting
and relating with others and noting that plaintiff’s moods and behaviors varied and
contributed to a marked limitation in that domain. The ALJ’s analysis is supported by
the testimony of Dr. Pelc, who acknowledged plaintiff’s disruptive behavioral disorder,
but found that plaintiff had marked limitation in only one functional domain. Id. at 72-75.
The ALJ acknowledged Dr. Pelc’s findings with respect to plaintiff’s disruptive
behavioral disorder and considered plaintiff’s behavioral issues in conducting the step5

three analysis. Accordingly, the ALJ did not err in his consideration of plaintiff’s
disruptive behavioral disorder.
2. Plaintiff’s Limitation in Interacting and Relating
Plaintiff argues that the ALJ did not apply the correct law to determine whether
plaintiff met or equaled a listing at step three. Docket No. 13 at 9-10. Plaintif f points to
where Dr. Pelc stated:
I don’t know that I make necessarily a distinction I mean, between
extreme and marked. . . . I can’t imagine what would be worse than
frankly the marked level so I don’t have a specific operational answer for
you about an extreme limit in that area. There’s certainly [ ] markedly
limited in that area. Meaning that that’s the area that he basically cannot
function in.
R. at 81. Plaintiff claims that “[t]he fact that the medical expert was unable to
distinguish between an extreme limitation and a marked limitation in social functioning
is good cause for a remand.” Docket No. 13 at 9.
Plaintiff’s argument does not consider Dr. Pelc’s full testimony. Immediately
after Dr. Pelc testified that he would not necessarily distinguish between marked and
extreme limitations in the domain of interacting and relating with others, the ALJ
provided Dr. Pelc with the definition of an extreme limitation in the listings:
The regulations indicate a marked limitation means a limitation that is
more than moderate, but less than extreme. It is the equivalent of the
functioning that we would expect to find on standardized testing with
scores that are at least two, but less than three standard deviations below
the mean. Extreme limitations, when the impairment interferes very
seriously with your ability to independently initiate, sustain, or complete
activities.
R. at 82. The definition offered by the ALJ is consistent with the definition of an
extreme limitation provided in the regulations. 20 C.F.R. § 416.926a(e)(3)(i) (“We will
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find that you have an ‘extreme’ limitation in a domain when your impairment(s)
interferes very seriously with your ability to independently initiate, sustain, or complete
activities. . . . It is the equivalent of the functioning we would expect to find on
standardized testing with scores that are at least three standard deviations below the
mean.”). After the ALJ provided Dr. Pelc with the definition of an extreme limitation, Dr.
Pelc testified that he believed plaintiff had a marked limitation in interacting and relating
with others. R. at 83.
Accordingly, whatever error was manifested by Dr. Pelc’s inability to distinguish
between marked and extreme limitations was cured by the ALJ’s reading of the
definition and clarification of Dr. Pelc’s testimony.
Moreover, in the ALJ’s opinion, the ALJ described the correct legal standard for
distinguishing between a marked and an extreme limitation. Id. at 34-35. Plaintiff
provides no basis for concluding that the ALJ applied the wrong legal standard in
evaluating plaintiff’s limitations. Thus, the Court finds that the ALJ did not err in
determining whether plaintiff had an extreme limitation in interacting and relating with
others.
3. Whether the ALJ’s Decision was Supported by Substantial
Evidence
Plaintiff argues that the ALJ erred by failing to account for records of plaintiff’s
diagnostic test reports in 2014 “showing performance comparable to a 5th grader in
math even with an extended time limit, and reading scores at the 3rd percentile and the
4th grade level.” Docket No. 13 at 11. Plaintiff also argues that the ALJ failed to

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consider the behavioral intervention plan put in place in 2015 to reduce plaintif f’s defiant
behavior. Id.
The evidence cited by plaintiff was not provided to the ALJ because it postdates
the ALJ’s decision. However, the materials were submitted to the appeals council and
the appeals council considered the additional m aterials. R. at 2, 6-13. “Because the
Appeals Council ‘considered’ [the supplemental records], the records are a ‘part of the
administrative record to be considered [by this court] when evaluating [the ALJ’s]
decision for substantial evidence.’” Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th
Cir. 2006) (quoting O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)).
The ALJ found that plaintiff had less than marked limitation in acquiring and
using information. R. at 41. In making his determination, the ALJ noted that plaintiff
had a full scale IQ score in the “extremely low to low average range.” Id. In addition,
the ALJ noted that plaintiff had difficulty learning but was placed in a general education
math class and maintains a C+ to B- average in his language arts and humanities
classes. Id. The evidence offered by plaintiff does not contradict these findings.
Rather, the diagnostic report cited by plaintiff demonstrates that plaintiff has difficulties
in math and reading, as acknowledged by the ALJ. R. at 1088-89.
Plaintiff additionally argues that the ALJ should have considered the behavioral
intervention plan put forth by Adams County. Docket No. 13 at 11. The ALJ found that
plaintiff had a marked limitation in interacting and relating with others. R. at 43. In so
concluding, the ALJ noted that plaintiff had been involved in “nine incidents of major
behavior ranging from inappropriate comments to physical aggression resulting in

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suspension on several occasions. “ Id. The ALJ further noted that plaintiff is disruptive
and becomes upset when “he feels a teacher is singling him out or treating him
differently.” Id. at 43-44.
The behavioral intervention plan cited by plaintiff provides that plaintiff “is a smart
young man who works well in class when he enjoys the activity and finds it personally
meaningful. . . . [He] will treat adults disrespectfully when he feels something is not a
good use of his time.” R. at 1094. Nothing in the behavioral intervention plan
contradicts the ALJ’s findings. The plan acknowledges plaintiff’s behavioral difficulties,
but does not suggest either that his behavior has worsened since the hearing or that
plaintiff suffers from more than a marked limitation in interacting and relating with
others.
The Court finds that the ALJ’s decision was supported by the substantial
evidence. Accordingly, the Court finds that plaintiff has not presented grounds to
reverse the ALJ’s decision.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is AFFIRMED.

DATED March 6, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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