Porter v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND ORDER that the judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42:405(g) for further proceedings consistent with this memorandum and order. Signed by Chief Judge Kathryn H. Vratil on 4/9/12. (mm) Modified on 4/10/2012 - WO (lak).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CONNIE PORTER,
on behalf of BTP, a minor child,
)
)
Plaintiff,
)
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v.
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)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
Defendant.
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________________________________________________)
CIVIL ACTION
No. 11-2077-KHV
MEMORANDUM AND ORDER
Plaintiff, on behalf of her minor son, BTP, appeals the final decision of the Commissioner
of Social Security to deny supplemental security income benefits under Title XVI of the Social
Security Act, 42 U.S.C. §§ 401 et seq. For reasons set forth below, the Court reverses defendant’s
decision and remands for further proceedings.
Procedural Background
Plaintiff filed multiple applications for supplemental security income benefits with the Social
Security Administration.
Defendant denied plaintiff’s benefit applications initially and on
reconsideration. On June 2, 2009, an administrative law judge (“ALJ”) concluded that BTP was not
under a disability as defined in the Social Security Act and that he was not entitled to benefits. In
particular, the ALJ concluded as follows:
1. The claimant was born on July 21,1999. Therefore, he was a school-age child on
October 11, 2006, the date the application was filed, and is currently a school-aged
child (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful activity at any time relevant
to this decision (20 CFR 416.924(b) and 416.972).
3. The claimant had the following severe impairments: learning disorder and
borderline intellectual functioning (20 CFR 416.924(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 29 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. The claimant does not have an impairment or combination of impairments that
functionally equals the listings (20 CFR 416.924(d) and 416.926a).
6. The claimant has not been disabled, as defined in the Social Security Act, since
October 11, 2006, the date the application was filed (20 CFR 416.924a).
Certification Of Transcript Of Proceedings Before The Social Security Administration (Doc. #12)
filed June 23, 2011 (“Tr.”) 15-24.
On December 23, 2010, the Appeals Council denied plaintiff’s request for review. Plaintiff
appealed the final decision of the Commissioner to this Court. The decision of the ALJ stands as
the final decision of the Commissioner.
Standard Of Review
The ALJ decision is binding on the Court if supported by substantial evidence. See 42
U.S.C. §§ 405(g), 1383(c)(3); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court
must determine whether the record contains substantial evidence to support the decision and whether
the ALJ applied the proper legal standards. See Castellano v. Sec’y of HHS, 26 F.3d 1027, 1028
(10th Cir. 1994). While “more than a mere scintilla,” substantial evidence is only “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Evidence is not substantial “if it is overwhelmed by other
evidence – particularly certain types of evidence (e.g., that offered by treating physicians) – or if it
really constitutes not evidence but mere conclusion.” Knipe v. Heckler, 755 F.2d 141, 145 (10th
Cir. 1985) (citation omitted).
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Analysis
Plaintiff bears the burden of proving disability under the Social Security Act. See Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989). A child under 18 years of age is “disabled” 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 determine whether a child is disabled, the Commissioner applies a three-step sequential
evaluation. The ALJ must determine, in this order, that (1) the child is not engaged in substantial
gainful activity, (2) the child has an impairment or combination of impairments that is severe, and
(3) the child’s impairment meets or equals an impairment listed in Appendix 1, Subpart P of 20
C.F.R. Pt. 404. 20 C.F.R. § 416.924(a); Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001).
In making the third determination – whether a child’s impairment meets or equals a listed
impairment – the ALJ must consider whether the impairment, alone or in combination with another
impairment, “medically equals, or functionally equals the listings.” Briggs, 248 F.3d at 1237 (citing
20 C.F.R. § 416.924(a)). The ALJ assesses all relevant factors, including (1) how well the child
initiates and sustains activities, how much extra help he needs and the effects of structured or
supportive settings; (2) how the child functions in school; and (3) how the child is affected by his
medications or other treatment. Id. at 1237-38 (citing 20 C.F.R. § 416.926a(a)(1)-(3)). The ALJ
considers how a child functions in his activities in terms of six domains:1 (I) acquiring and using
information; (ii) attending and completing tasks; (iii) interacting and relating with others;
1
“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).
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(iv) moving about and manipulating objects; (v) caring for himself; and (vi) health and physical
well-being. Id. at 1238 (citing 20 C.F.R. § 416.926a(b)(1)(i)-(vi)).
Plaintiff argues that the ALJ erred because he did not set forth a specific credibility
determination for BTP’s mother. When a child claimant is unable to adequately describe his
symptoms, the ALJ must accept the testimony of the person most familiar with the child’s condition,
here the claimant’s mother.
20 C.F.R. § 416.928(a); Briggs, 248 F.3d at 1239.
In such
circumstances, the ALJ must make “specific findings concerning the credibility of the parent’s
testimony . . . just as he would if the child were testifying.” Briggs, 248 F.3d at 1239.
Here, the ALJ evaluated the credibility of BTP’s mother as follows:
After considering the evidence of record, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to produce the
alleged symptoms; however, the statements concerning the intensity, persistence and
limiting effects of the claimant’s symptoms are not credible to the extent they are
inconsistent with finding that the claimant does not have an impairment or
combination of impairments that functionally equals the listings for the reasons
explained below.
Tr. 16.
Defendant generally argues that the ALJ considered all of the evidence and discussed the
relevant evidence for each domain. See Brief Of The Commissioner (Doc. #14) filed August 25,
2011 at 11. Defendant does not, however, set forth any specific finding by the ALJ on the credibility
of claimant’s mother. Because the ALJ concluded that BTP had less than a marked limitation in the
domains of (1) acquiring and using information and (2) attending and completing tasks, and no
limitation in the domain of interacting and relating to others, he implicitly rejected part of the
testimony of BTP’s mother as to the extent of his limitations. Even so, the ALJ did not articulate
to what extent he rejected the testimony about BTP’s limitations, as he is required to do. See Kepler
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v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (findings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings);
Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (same).
In the domains of attending and completing tasks and interacting and relating to others, the
ALJ did not specifically address the testimony of BTP’s mother that (1) his school work is getting
worse and he is failing in school, Tr. 19, (2) he had no friends, caught a blanket on fire, wets the bed
and does not participate in group discussions, Tr. 20, and (3) other children make fun of him because
of the way he talks, Tr. 20.2 If the ALJ simply did not believe the testimony of BTP’s mother on
these issues, he should have articulated that conclusion so that the Court could determine whether
such a conclusion is based on substantial evidence. See Spicer v. Barnhart, 64 Fed. Appx. 173,
177-178 (10th Cir. 2003) (ALJ decision must be sufficiently articulated so that it is capable of
meaningful review). It is insufficient for the ALJ to discuss the evidence in generalities, however,
and fail to relate that evidence to his conclusions. Cruse v. U.S. Dept. of Health & Human Servs.,
49 F.3d 614, 618 (10th Cir.1995); see also Social Security Ruling 96-7p, Policy Interpretation
Ruling Titles II And XVI: Evaluation Of Symptoms in Disability Claims: Assessing The Credibility
Of An Individual’s Statements, 1996 WL 374186, at *2 (S.S.A. July 2, 1996) (decision must contain
specific reasons for the finding on credibility supported by record evidence and must be sufficiently
specific to make clear to individual and any subsequent reviewer the weight ALJ gave to
individual’s statements and reasons for that weight). Such bare conclusions are beyond meaningful
judicial review. Brown v. Comm’r of the Soc. Sec. Admin., 245 F. Supp.2d 1175, 1187 (D. Kan.
2
Two State Agency doctors also found that BTP had a marked limitation in the domain
of interacting and relating to others. Tr. 330, 333, 336, 339.
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2003).3
Because the ALJ did not specifically set forth his finding as to the credibility of BTP’s
mother, the Court must remand to the Commissioner to set forth a proper credibility determination.4
See Briggs, 248 F.3d at 1239 (finding insufficient ALJ statement that testimony of claimant and his
mother was “unconvincing, not substantiated by objective medical findings, and credible only to the
extent that claimant’s impairments have not produced marked and severe limitations”); Smith ex rel
E.S.D. v. Barnhart, 157 Fed. Appx. 57, 61-63 (10th Cir. 2005) (finding insufficient ALJ statement
that “[s]ubjective complaints are considered credible only to the extent that they are supported by
the evidence of record as summarized in the text of this decision.”); Hardman v. Barnhart, 362 F.3d
3
The Court recognizes that as to the domain of acquiring and using information, the
ALJ more specifically addressed at least part of the testimony of BTP’s mother. The ALJ noted as
follows:
The claimant’s mother testified that the claimant is in special education for reading,
math and speech. She stated the claimant stutters, repeats words and hesitates when
answering questions. She indicated claimant skips a lot of words he does not know,
but can remember easy words and simple instructions. * * *
Claimant’s mother alleged he has significant problems with his speech but the
objective medical evidence does not support this allegation.
Tr. 17-18. The ALJ did recite some objective medical evidence that supported his conclusion, but
he also cited objective medical evidence that supported the allegations of BTP’s mother. For
example, the ALJ noted that claimant was diagnosed with borderline intellectual functioning.
Tr. 18. The ALJ has not affirmatively linked his credibility finding to substantial evidence. See
Kepler, 68 F.3d at 391.
4
Because the Court remands on the credibility issue, it need not address claimant’s
other arguments. Even so, on remand, the ALJ should specify the weight he gave the opinion of
Joanne B. Lyon, Ph.D., who examined claimant at the request of the State agency. In his reply,
defendant concedes that the ALJ did not specify the weight he gave Dr. Lyon’s opinion, but that the
decision shows that he “implicitly gave it some weight.” Doc. #14 at 7. If an ALJ intends to rely
on a nontreating physician or examiner’s opinion, he must explain the weight he is giving to it.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (citing 20 C.F.R. § 416.927(f)(2)(ii)).
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676, 679 (10th Cir. 2004) (insufficient for ALJ to give boilerplate list of factors; must also explain
why specific evidence relevant to each factor led him to conclude claimant’s subjective complaints
not credible).
IT IS THEREFORE ORDERED that the Judgment of the Commissioner is REVERSED
and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings
consistent with this memorandum and order.
Dated this 9th day of April, 2012 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
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