MCPHERSON v. COMMISSIONER OF SOCIAL SECURITY
OPINION fld. Signed by Judge Claire C. Cecchi on 2/26/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AYANA MCPHERSON o/b/o J.J., a minor,
Civil Action No.: 2: 14-cv-05000 (CCC)
CAROLYN W. COLVN,
Acting Commissioner of Social Security,
CECCHI, District Judge.
Ayana McPherson, on behalf of Justin-Brendan T. Jackson (“Claimant”), seeks review of
the final determination by the Commissioner of the Social Security Administration
(“Commissioner” or “Defendant”), which denied Claimant’s application for supplemental social
security income (“SSI”) payments under Title XVI of the Social Security Act (“SSA”). The
decision of Administrative Law Judge Joel H. Friedman (the “AU”), dated March 18, 2014,
determined that Claimant has not been under a disability within the meaning of the S$A, since the
date of his application for benefits on May 9, 2012 (ECF No. 7-2). The Court has jurisdiction
under 42 U.S.C. § 405(g) and 1383(c)(3). This motion has been decided without oral argument
pursuant to Federal Rule of Civil Procedure
For the reasons set forth below, the AU’s
The Court considers any arguments not presented by the parties to be waived. $çç Brenner
v. Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well
established that failure to raise an issue in the district court constitutes a waiver of the argument.”).
decision is affirmed in part and vacated in part.
FACTS AND PROCEDURAL HISTORY2
Claimant is an adolescent, whose family has been intermittently homeless (R: 14, 1 6). On
May 9, 2012, Claimant’s mother filed an application on his behalf for SSI benefits (R: 73-46). The
application alleged disability from Attention Deficit Hyperactivity Disorder (“ADHD”) and
affective/mood disorders (R: 83), as of August 1, 2005 (R: 147). In June 2011, Claimant’s
application was denied initially (R: 79) and upon reconsideration (R: 98). Claimant then requested
a hearing for de novo review (R. 101), which was held before the AU on October 24, 2013 (R:
32-39) but ultimately adjourned to afford Claimant time to find counsel. A supplemental hearing
was later held before the ALl on January 9, 2014 with Claimant’s counsel present (R: 40-72).
At the hearing, Claimant’s mother testified that he has mood problems and displays
aggressive behavior towards his sister and his classmates (R: 49-50). Claimant’s mother also
testified that the medications for ADHD and mood disorder (Concerta, Depakote, and Clonidine)
sometimes help for periods of time and that he has been able to participate in high school sports
such as football, basketball, and track and field (R: 50, 53). She reported that Claimant is not
consistently compliant in taking his medications, however, partly because the medications produce
negative side effects for him, including lethargy and nausea (R: 54, 56). Claimant also testified at
the hearing and stated that, “I believe the medicine I take works and helps me.” (R: 66).
On March 18, 2014, the AU issued a decision denying Claimant’s SSI application (R: 827). Claimant sought review by the Appeals Council, which concluded there were no grounds for
review, thereby rendering the AU’s decision the final judgment of the Commissioner (R: 1-5, 6-
Additional facts will be elucidated below.
“R” refers to the certified record of the administrative proceedings.
7). Claimant now seeks the district court’s review of the Commissioner’s decision on the grounds
that the ALl’s functional equivalence findings are not supported by substantial evidence. See
Claimant’s Br., ECF No. 10.
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.
405(g) and 1383(c)(3). The Court must affirm the Commissioner’s decision if substantial evidence
supports the decision. 42 U.S.C.
§ 405(g); Markie v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003).
Courts are not “permitted to re-weigh the evidence or impose their own factual determinations,”
but must give deference to the administrative findings. Chandler v. Comm’r Soc. Sec., 667 F.3d
356, 359 (3d Cir. 201 1); see also 42 U.S.C.
§ 405(g). Nevertheless, the Court must “scrutinize the
record as a whole to determine whether the conclusions reached are rational” and supported by
substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (citations omitted).
Substantial evidence is more than a mere scintilla, and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Chandler, 667 f.3d at 359 (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is adequately developed,
substantial evidence “maybe ‘something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.” Daniels v. Astrue, No. 4:081676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)). In other words, under this deferential standard of review, the Court
may not set aside the AU’s decision merely because it would have come to a different conclusion.
Cruz v. Comm’r of Soc. Sec., 244 fed. App’x 475, 479 (3d Cir. 2007) (citing Hartranfi v. Apfel,
1$1 F.3d 358, 360 (3d Cir. 1999)).
Determining A Minor’s Disability
The Social Security Administration examines three requirements in evaluating whether a
minor is disabled, namely: (1) that the child is not working; (2) that the child has a “severe”
impairment or combination of impairments; and (3) that the impairment or combination of
impairments is of “Listing-level”4 severity, meaning the impairment(s) met, medically equaled, or
functionally equaled the severity of an impairment listed in 20 C.F.R.
§ 404, Subpart P, Appendix
1 (the “Listings”), and has lasted or is expected to last for a continuous period of twelve months.
If the Commissioner answers each of the three requirements in the affirmative, the child is
considered to be disabled. Ortiz v. Colvin, No. CV 14-4805, 2016 WL 164995, at *2 (D.N.J. Jan.
With regard to the third requirement, to determine whether a child’s impairment(s) are
medically or functionally equal in severity to an impairment contained in the Listings, the
Commissioner assesses all functional limitations caused by the child’s impairment(s).
§ 416.926a(a). In assessing the child’s functional limitations, the Commissioner
evaluates six domains of functioning: (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 yourself, and (6) health and physical well-being.
§ 416.926a(b)(1)(i)-(vi); 20 C.F.R. § 416.926a(b)(1).
If the child has an “extreme” limitation in one of the six domains or a “marked” limitation
in two of the six domains, the child’s impairment is rendered functionally equivalent to a listed
§ 404, Subpart P, Appendix 1.
impairment under the Commissioner’s regulations. 20 C.F.R.
§ 416.926a(a). A limitation is
“extreme” when the impairment “very seriously” interferes with the child’s ability independently
to initiate, sustain, or complete activities. 20 C.F.R
§ 416.926a(e)(3)(i). A limitation is “marked”
when the impairment “seriously” interferes with the child’s ability to independently initiate,
sustain, or complete activities. 20 C.F.R
§ 416.926a(e)(2)(i). A marked limitation is more than
moderate, but less than extreme. M.
Claimant argues that the AU’s functional equivalence findings are not supported by
In his decision, the AU
determined that Claimant has the severe
impairments of ADHD and Bipolar Disorder (R: 14) at Step Two. Next, at Step Three, the AU
found that Claimant’s impairment or combination of impairments dotes) not meet or functionally
equal in severity an impairment in the Listings (R: 14-15). Specifically, the AU indicated that he
had considered Listings 112.02, 112.04, and 112.11 (R: 14-15).
In finding that Claimant’s impairments do not functionally equal the severity of the.
impairments in the Listings, the ALl reviewed Claimant’s functional limitations in the six requisite
First, for acquiring and using information, the AU found that Claimant has a “less
than marked limitation” in this area (R: 18). Second, the AU found that Claimant has a “marked
limitation” in attending and completing tasks (R: 19). Third, the ALl found that Claimant has a
“less than marked limitation” in interacting and relating with others (R: 20). Fourth, the AU found
that Claimant has no limitation moving about and manipulating objects tR: 21). fifth, the ALl
found that Claimant has a “less than marked limitation” in caring for himself tR: 22). Sixth, the
To the extent that Claimant appears to argue that the AU did not adequately combine and
compare the effects of his impairments to find that they medically equaled the criteria in the
Listings, this is a moot point, because the Court is remanding the ALl’s decision on other grounds.
ALl found that Claimant has a “less than marked limitation” in his health and physical well-being
(R: 23). Because the ALl did not find that Claimant has a “marked limitation” in two of these six
areas, he ultimately determined that Claimant is not disabled.
Claimant argues that he indeed suffers from at least two marked limitations and that the
ALl ignored and discredited testimonial evidence in support of these limitations without
$ Claimant’s Br. at 13-17.
Acquiring And Using Information
The AU indicated that his determination that Claimant has a “less than marked” limitation
in this domain is based on Claimant’s “full scale IQ of 91” and a Teacher Questionnaire (the
“Questionnaire”) indicating that Claimant “only had slight to moderate problems in this domain”
The Questionnaire was completed by Claimant’s middle school teacher and rates
Claimant’s functions on a scale of 1 to 5 (with “1” meaning “no problem” and “5” meaning a “very
serious problem” compared to other children of the same age) (R: 175-76). In that Questionnaire,
Claimant’s teacher described him as having a “slight problem” in comprehending oral instructions
and written material, understanding and participating in class discussions, expressing ideas in
written form, and learning new material (R: 176), and an “obvious problem” with providing
organized oral explanations and adequate descriptions, recalling and applying previously learned
material, and applying problem-solving skills in class discussions (R: 176).
Claimant contends that the All selectively quoted parts of the Questionnaire and
disregarded the responses stating that Claimant had “serious” problems.
cç Claimant’s Br. at 8.
The Commissioner asserts that Plaintiff misstates the Questionnaire. See Defendant’s Br., ECF
No. 11, at 14-15. A review of that Questionnaire shows that Claimant was only rated as having a
“serious problem” in the domain of “Attending and Completing Tasks”, not “Acquiring and Using
Information” as relevant here.
Compare R: 177 with R: 176.
Thus, the ALl adequately
characterized and interpreted the Questionnaire.
Claimant also contends that the AU overlooked the fact that Claimant is in special
education classes and reading two levels below his actual grade level.
Claimant’s Br. at 9.
The Commissioner asserts that the AU “specifically considered” these facts in an earlier part of
the decision and that the AU was not required to repeat any “particular language” in evaluating
Claimant’s impairment in the Listings.
$ Defendant’s Br. at 15. In Jones v. Bamhart, 364 f.3d
501, 505 (3d Cir. 2004), the Third Circuit clarified that an AU is not required to “use particular
language or adhere to a particular format in conducting his analysis.” Instead, the ALl must only
“ensure that there is sufficient development of the record and explanation of findings to permit
meaningful review.” Id. Moreover, looking at the medical record which the AU also considered,
Dr. Emanual Elfenbein, a state psychiatrist who examined Claimant, rated his overall impairments
in this domain as “less than marked” and noted that there were “a few moderate, but no serious,
domain element problems” at the time of the examination (R: 77). Similarly, Dr. Pamela Foley, a
state psychologist, agreed that the medical examination report did not indicate an additional
learning difficulty (R: 88). Accordingly, the AU’s determination that Claimant’s impairment in
this domain is “less than marked” appears to be supported by substantial evidence.
Attending And Completing Tasks
Next, Claimant contends that the ALl should have determined that he has an “extreme”
limitation in the area of attending and completing tasks, instead of the “marked” limitation the AU
found. The ALl stated that he based his determination on the school records and consultative
examinations. Dr. Elfenbein rated Claimant’s problems in this domain to be “marked” (R: 78).
Specifically, he found that Claimant’s concentration was impaired and that Claimant had limited
persistence and slow place in cognitive problem-solving (R: 78). Dr. Foley indicated that new
information from treating sources indicated a diagnosis of ADHD (R: 88). Nothing from the
medical records seems to indicate that Claimant’s impairment in this area very seriously interferes
with his ability to initiate, sustain, or complete activities—which is required in order to classify an
impairment as “extreme.” Nor does Claimant point to medical evidence that the AU allegedly
overlooked or disregarded. Accordingly, the ALl’s determination that Claimant’s impairment in
this domain is “marked” appears to be supported by substantial evidence.
Interacting And Relating With Others
With regard to interacting and relating with others, the AU found that Claimant has a “less
than marked limitation” in this domain (R: 20). Claimant disagrees with this characterization,
arguing that it “conflates playing video games with social interaction and somehow deduces
normal socializing abilities.
Claimant’s Br. at 13. The Commissioner asserts that “although
[Claimant] had some difficulty socially, the AU reasonably concluded that he did not demonstrate
marked limitations.” Defendant’s Br. at 17.
Dr. Elfenbein found that Claimant’s impairments in this domain are “less than marked” (R:
78). However, he noted frequent and constant “serious/very serious” problems with attention
seeking, anger expression, and respect towards adults (R: 78). Dr. Foley noted that Claimant has
a history of inappropriate behaviors, testimonial evidence that Claimant had gotten worse since his
family became homeless, and information from Claimant’s treating physician indicating
inconsistent attendance (R: 88). Additionally, the Questionnaire indicates that Claimant has a
“very serious problem” with inappropriate attention seeking behavior, which occurs “hourly” (R:
178), a “serious problem” with inappropriate expressions of anger, occurring “daily” (R: 178), and
a “serious problem” with respecting and obeying adults, on a “daily” basis (R: 178).
The ALl does not indicate his reliance on this section of the Questionnaire. Instead, he
points to Claimant’s Individualized Education Plans which “describe him as an energetic
youngster, who loves to play video games and outdoor sports.” (R: 20). Additionally, although
the AU mentioned Claimant’s mother’s testimony (R: 16), he does indicate that he considered the
testimony that Claimant has been “very aggressive” over the past few years and has been
physically aggressive toward his sister (R: 49-50). Claimant’s mother further testified that he gets
angry about having to take medicine and will start throwing things in response (R: 55). Apart from
summarily stating that “the statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons stated below” (R: 16), the ALl does not
indicate whether he relied on or discredited Claimant’s mother’s testimony and why.
Accordingly, because there appears to be countervailing medical and testimonial evidence
that the ALl either did not consider or did not explain why he chose to discredit, it appears that the
ALl’s determination that Claimant’s impairment in this domain is “less than marked” is not
supported by substantial evidence.
Moving About And Manipulation Objects
The AU found no limitation in the domain of moving about and manipulating objects, and
Claimant does not appear to contest this determination.
Caring For Oneself
Claimant argues that there was no explanation accompanying the AU’ s determination that
Claimant has “less than marked” limitations in the domain of self-care. See Claimant’s Br. at 13.
The Court agrees. The AU stated that, “The Claimant has less than marked limitation in the ability
to care for himself.” (R: 22). He, however, did not explain how he reached this determination or
on what evidence he relied. Although the Commissioner asserts that the ALl did note treatment
records indicating hygiene problems in earlier parts of the decision, the ALl’s notations in this
area appear to be accompanied by questions to himself (i.e. “claimant often missing the first period
(possibly due to his homelessness?)”) (R: 17). Accordingly, the AU’s determination in this
domain precludes meaningful judicial review.
Health And Physical Well-being
Last, the AU determined that Claimant has “less than marked limitation[s] in health and
physical well-being” (R: 23). The AU cited to treatment records from Claimant’s physicians
characterizing him as a healthy child and acknowledging that he is prescribed Concerta, Depakote,
and Clonidine to treat his ADHD and Bipolar Disorder (R: 23). Claimant argues that the AU’s
determination that he suffers from “less than marked” impairments in health and physical well
being “ignores every physical and most mental diagnoses in the record.” Claimant’s Br. at 12.
Moreover, Claimant argues that the ALl did not consider his subjective complaints of pain and his
mother’s testimony about Claimant’s physical well-being.
at 16-17. A review of Claimant’s
testimony at the supplemental hearing (R: 64-68) reveals that he did not appear to complain of
pain. Claimant also testified, “I believe the medicine I take works and helps me.” (R: 66).
Accordingly, the ALl’s determination in this domain appears to be supported by substantial
For the foregoing reasons, the AU’s decision that Claimant was not disabled is affirmed
in part and vacated in part. Specifically, the Court finds that the AU’s determination that Claimant
suffers from a “less than marked” impairment in the domain of interacting and relating with others
is not supported by substantial evidence. Moreover, the AU’s determination in the domain of
caring for oneself precludes meaningful judicial review. An appropriate order accompanies this
(J I (
CLAIRE C. CECCHI, U.S.D.J.
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