Hitchcock v. Commissioner of Social Security

Filing 19

MEMORANDUM DECISION AND ORDER re 1 Petition for Review. It is hereby ORDERED that the Commissioner's decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED and that the petition for review is DISMISSED. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JUDITH LYNN HITCHCOCK,
on behalf of M.L.H., a minor child,
Petitioner,

Case No. 2:18-cv-00083-CWD
MEMORANDUM DECISION
AND ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY, 1
Respondent.

INTRODUCTION
Petitioner Judith Hitchcock filed a petition for review on behalf of her minor
daughter on February 20, 2018, seeking a reversal or remand of the Respondent’s denial
of social security benefits. (Dkt. 1.) The Court has reviewed the Petition for Review and
the Answer, the parties’ memoranda, and the administrative record (AR), and for the
reasons that follow, will affirm the decision of the Commissioner.

1

Petitioner did not refer to the Commissioner by name in her Petition for Review. The Court notes
that Andrew Saul was sworn in as Commissioner of Social Security on June 17, 2019, and replaced
Acting Commissioner Nancy A. Berryhill. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL HISTORY
Petitioner filed an application for child’s supplemental security income benefits on
July 14, 2014. This application was denied initially and on reconsideration, and a hearing
was conducted on September 28, 2016, before Administrative Law Judge (ALJ) Marie
Palachuck. After considering testimony from Petitioner’s mother, a medical expert, and
Petitioner, 2 ALJ Palachuck issued a decision on November 15, 2016, finding Petitioner
not disabled. Petitioner timely requested review by the Appeals Council, which denied her
request for review on December 19, 2017.
Petitioner timely appealed this final decision to the Court. The Court has jurisdiction
to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing on September 28, 2016, Petitioner was fifteen years of age
and had begun her first year of high school. Petitioner had no past relevant work
experience. Petitioner alleges disability due to the following impairments, which the ALJ
found to be severe: attention deficit hyperactivity disorder; high functioning autism
spectrum disorder versus pervasive developmental disorder; and depressive disorder. (AR
23.)
STANDARD OF REVIEW
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42

2

Petitioner states that Sharon F. Welter, a vocational expert, testified at the hearing. While Ms.
Welter was present during the hearing, she did not testify. Testimony from a vocational expert is
not necessary in a child’s case. (AR 45.)
MEMORANDUM DECISION AND ORDER - 2

U.S.C. § 405(g); Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than a
mere scintilla, but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214
n.1 (9th Cir. 2005). “It is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)
(internal quotation marks omitted). The Court is required to review the record as a whole
and to consider evidence detracting from the decision as well as evidence supporting the
decision. Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v.
Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more
than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s
conclusion must be upheld. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). It is wellsettled that, if there is substantial evidence to support the decision of the Commissioner,
the decision must be upheld even when the evidence can reasonably support either
affirming or reversing the Commissioner’s decision, because the Court “may not
substitute [its] judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087,
1089 (9th Cir. 1999).
DISCUSSION
A child under the age of eighteen is disabled within the meaning of the Social
Security Act “if that individual 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
MEMORANDUM DECISION AND ORDER - 3

period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i) (as amended); see 20
C.F.R. § 416.906; see Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000)
(citing § 1382c(a)(3)(C)(i)). The three-step evaluation process applicable to child
disability applications requires the ALJ to determine: (1) whether the claimant is
currently engaged in substantial gainful activity; (2) whether the claimant has a medically
determinable impairment or combination of impairments that is severe; and (3) whether
the claimant’s impairment or combination of impairments meets or medically equals the
requirements of a listed impairment, or functionally equals the listings. 20 C.F.R. §
416.924(b)-(d). “[I]f the child’s impairment or impairments do not meet, medically equal,
or functionally equal in severity a listed impairment, the child is not disabled.” Brown v.
Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997) (citing 20 C.F.R. § 416.928 (a)); see 20
C.F.R. §§ 416.902, 416.906, 416.924-416.926a (regulations concerning childhood
disability standards).
To meet a listed impairment, a claimant must show that her impairment “meet[s]
all of the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990); see Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). To medically “equal” a
listed impairment, a claimant must present medical findings at least equal in severity and
duration to all of the criteria for the most similar listed impairment. See Sullivan, 493
U.S. at 531; Tackett, 180 F.3d at 1099-1100; 20 C.F.R. § 416.926 (discussing medical
equivalence for adults and children).
If a child disability claimant does not have an impairment or combination of
MEMORANDUM DECISION AND ORDER - 4

impairments that meets or medically equals any listing, the ALJ must consider whether it
“functionally equals” a listed impairment. 20 C.F.R. §§ 416.924(a), 416.926a.
“Functional equivalence” is determined not by reference to the criteria for any particular
listed impairment, but by reviewing all relevant information in the case record, including
information from a broad range of medical sources and nonmedical sources, to assess the
child’s functioning in six areas, which are referred to as domains. See 20 C.F.R. §
416.926a. 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 well-being. 20
C.F.R. § 416.926a(b)(1)(i)-(vi). An impairment or combination of impairments
functionally equals a listing if, applying criteria detailed in the Commissioner’s
regulations, it results in “marked” limitations in two domains or an “extreme” limitation
in one domain. 20 C.F.R. § 416.926a(a), (e)(1).
The ALJ found that Petitioner did not have an impairment or combination of
impairments that functionally equaled the severity of a listed impairment. 3 Although
numerous objective tests documented Petitioner’s poor processing speed, the ALJ
determined Petitioner had less than a marked limitation in acquiring and using
information, and in attending and completing tasks. In making these two determinations,

3

The ALJ considered first whether Petitioner had an impairment or combination of impairments
that met or medically equaled the severity of Listing 112.02 (organic mental disorders); 112.04
(mood disorders); and 112.10 (autistic disorder and other pervasive development disorders). (AR
23.) The ALJ concluded Petitioner did not establish listing level severity. Petitioner does not
contest this finding.
MEMORANDUM DECISION AND ORDER - 5

the ALJ considered cognitive testing; her grades in school; Petitioner’s school progress in
2014, 2015, and 2016; teacher questionnaires; and Petitioner’s extracurricular activities.
(AR 26, 27, 31, 32.).)
Petitioner challenges the ALJ’s finding that Petitioner did not functionally equal one
of the listings, with marked limitations in acquiring and using information, and attending
and completing tasks. 4 Petitioner contends the ALJ committed harmful error because the
ALJ did not adequately consider Petitioner’s test scores and her low processing speed, and
the statements from teachers about her classroom performance.
An impairment is considered marked if it “seriously interferes with your ability to
independently initiate, sustain, or complete activities ... the equivalent of the functioning we
would expect to find on standardized testing with scores that are at least two, but less than
three, standard deviations below the mean.” 20 C.F.R. § 416.926a(e)(2)(i). Alternatively, a
marked limitation may be found if a claimant has “a valid score that is two standard
deviations or more below the mean, but less than three standard deviations, on a
comprehensive standardized test designed to measure ability or functioning in that domain,
and…day-to-day functioning in domain-related activities is consistent with that score. (See
paragraph (e)(4) of this section.)” 20 C.F.R. § 416.926a(e)(2)(iii).
Here, the results of Petitioner’s WISC-IV, a comprehensive psychological test
administered on February 21, 2014, indicated Petitioner’s processing speed was 70, with
digit symbol-coding in the 3rd percentile, and symbol search in the 6th percentile. (AR 583.)

4

Petitioner does not challenge the ALJ’s findings regarding the other four domains of functioning.

MEMORANDUM DECISION AND ORDER - 6

Petitioner demonstrated clinically significant deficits (two standard deviations below
estimated IQ) in visual perception, short-term visual memory and motor speed, and
cognitive flexibility with visual information. (AR 580.) Petitioner asserts, and Respondent
does not disagree, that these test scores place Petitioner one point from being three
deviations below the norm in this area. However, Respondent argues the ALJ correctly
evaluated all of the evidence in determining that the evidence as a whole supported a
finding of a less than marked limitation in the two functional areas at issue. The Court
agrees.
1.

Acquiring and Using Information
The domain of acquiring and using information concerns how well a child can

acquire or learn information, and how well the child can use that information. This domain
involves the child’s use of information in all settings, including how well the child can
perceive the outside world, think about information, and apply that information to solve
problems. 20 C.F.R. § 416.926a(g)(1). The ALJ found Petitioner had less than a marked
limitation in acquiring and using information, noting that although Petitioner’s processing
speed was low, she was otherwise able to perform well in school with appropriate
accommodations. (AR 31.) Accommodations included an individualized education plan
started on December 1, 2015, based upon results of psychological testing administered by
the school assessment team in November 2015. The ALJ highlighted that the school
assessment team agreed that Petitioner’s score discrepancies between her actual abilities
and her test results were “mostly a result of extremely poor processing speed.” (AR 31.)
The claimant’s reading comprehension was at grade level, and her fluency (most likely due
MEMORANDUM DECISION AND ORDER - 7

to processing issues) brought the reading composite score down.” (AR 26, 31.)
The ALJ also considered that Petitioner’s grades were passing, and included A’s,
B’s, and C’s in 2013; she made the honor roll the first semester of 2014; with
accommodations, Petitioner was able to complete and turn in her assignments; and her
reading comprehension in high school was at grade level. (AR 25, 26, 30-31.) Petitioner
enjoyed reading chapter books as well. (AR 25, 31.) The ALJ pointed out that, when
considered as a whole, Petitioner’s overall test scores showed low average to average
intelligence. (AR 28.) And finally, the ALJ relied upon the testimony of medical expert
Donna Veraldi, Ph.D., and her opinion that Petitioner’s deficits in acquiring and using
information were less than marked. (AR 28.)
Here, the ALJ did not selectively focus on aspects of the record “which tend to
suggest non-disability.” See Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). In
addition to noting Petitioner’s academic abilities and skills in comparison to her peers as
reflected on standardized testing, the ALJ also documented that Petitioner struggled
throughout her academic career to turn in work, stay on task, and remain organized, and
that one of her teachers indicated she had difficulty expressing ideas in written form and
learning new material. (AR 26, 27.) Although the ALJ did focus considerably upon
Petitioner’s academic record, the regulations advise that the Commissioner should look to a
child’s functioning in comparison to her peers when making child disability determinations.
20 C.F.R. § 416.926a(b)(1–3). Accordingly, even though the ALJ’s findings drew heavily
on an academic record that is susceptible to more than one rational interpretation, the Court
finds that substantial evidence in the record supports the ALJ’s assessment that Petitioner’s
MEMORANDUM DECISION AND ORDER - 8

disability is one that is less than marked in “acquiring and using information.”
2.

Attending and Completing Tasks
The domain of attending and completing tasks concerns a child’s ability to focus

and maintain her attention and her ability to begin, carry through, and finish activities,
including the pace at which activities are performed and the ease in changing activities. 20
C.F.R. § 416.926a(h). 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. Id. The ALJ found that Petitioner had less than a marked limitation in attending and
completing tasks. (AR 31-32.)
The ALJ found that, although Petitioner’s poor processing speed and attention
deficit hyperactivity disorder contributed to difficulties in this area, there was evidence in
the record supporting that Petitioner was able to complete assignments and generally
perform well in school with appropriate accommodations. (AR 32.) The ALJ cited to
much of the same evidence as she did with the prior domain—acquiring and using
information—to support her determination. Further, the ALJ noted Petitioner’s mother
reported in October of 2013 that her daughter was completing her work well with
accommodations, and she had concerns related to focus and attention only when Petitioner
was not taking her medication. (AR 32.) The ALJ observed that teacher questionnaires
indicated Petitioner did well with completing tasks, with only Mr. Sonntag, the special
education teacher, indicating an obvious problem with refocusing, completing assignments
in a timely fashion, and working at a reasonable pace. (AR 27, 32.)
Elsewhere in the written decision, the ALJ pointed out that, in 2013, Petitioner took
MEMORANDUM DECISION AND ORDER - 9

part in the school play and learned to knit (AR 26); she participated in extracurricular
activities such as a medieval reenactment group, archery, and singing competitions (AR
27); and had a part time job during the summer of 2016 babysitting and doing some
housekeeping for a neighbor (AR 27, 652). At the end of the school year on May 24, 2016,
Petitioner reported having “good grades.” (AR 649.)
The ALJ supported her findings with reference to substantial evidence in the
record. The record reflects that Petitioner is able to read at grade level. (AR 32.) Although
she needs accommodations to account for her slow processing speed, with them, she can
perform well in school and complete assignments. (AR 32.) The Court finds the ALJ did
not err in determining Petitioner does not have a “marked” limitation in attending and
completing tasks.
CONCLUSION
Based upon the above, the Court concludes that the ALJ correctly found Petitioner
does not have marked limitations in the two domains at issue, and therefore the ALJ
correctly determined that Petitioner does not have an impairment or combination of
impairments that functionally equals the severity of the listings. Consequently, the Court
will affirm the Commissioner’s decision.

MEMORANDUM DECISION AND ORDER - 10

ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises, it
is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is not
disabled within the meaning of the Social Security Act is AFFIRMED and that the petition
for review is DISMISSED.

DATED: September 25, 2019
_________________________
Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 11