SAICH v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Esther Salas on 8/29/17. (DD, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KIMBERLY SAICH, O/B/O N.E.S.,
Civil Action No. 16-3346 (ES)
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

SALAS, DISTRICT JUDGE
Before the Court is an appeal filed by Kimberly Saich (“Plaintiff”), on behalf of a minor,
N.E.S., seeking review of Administrative Law Judge Hilton R. Miller’s (“ALJ” or “ALJ Miller”)
decision denying N.E.S.’s application for Supplemental Security Income (“SSI”) under Title XVI
of the Social Security Act (the “Act”). The Court decides this matter without oral argument under
Federal Rule of Civil Procedure 78(b). The Court has subject matter jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c)(3).

For the reasons set forth below, the Court AFFIRMS the

Commissioner’s decision.
I.

BACKGROUND
On April 13, 2012, Plaintiff filed a Title XVI application for SSI on behalf of her minor

son, N.E.S., alleging disability beginning March 1, 2012. (D.E. No. 6-5, Administrative Record
(“Tr.”) at 13, 123-28). The Commissioner initially denied N.E.S.’s application on August 6, 2012
(id. at 13, 60-62), and again upon reconsideration on May 24, 2013 (id. at 13, 65-67). Plaintiff
filed a request on June 17, 2013, for a hearing in front of an Administrative Law Judge. (Id. at 13,

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82-84). The Commissioner granted Plaintiff’s request, and Plaintiff appeared and testified at a
hearing before ALJ Miller on January 29, 2014. (Id. at 13, 30-38).
On April 14, 2014, ALJ Miller denied Plaintiff’s application, stating that he considered
N.E.S.’s complete medical history to determine that N.E.S. is not disabled under §
1382c(a)(3)(C)(i) of the Act. (Id. at 13-26). On April 30, 2014, Plaintiff requested a review of
ALJ Miller’s decision. (Id. at 8-9). The Appeals Council denied Plaintiff’s request for review on
April 6, 2016. (Id. at 1).
Plaintiff appealed the Commissioner’s decision by filing this action with the Court. (D.E.
No. 1). The Court received the administrative record on August 22, 2016. (D.E. No. 6). The
parties briefed the issues raised by Plaintiff’s appeal. (See D.E. No. 9, Brief in Support of Plaintiff
filed on November 8, 2016 (“Pl. Mov. Br.”); D.E. No. 12, Defendant’s Brief Pursuant to Local
Civil Rule 9.1 filed on October 13, 2016 (“Def. Opp. Br.”)). The matter is now ripe for resolution.
II.

LEGAL STANDARD
A. Standard for Awarding Benefits
To be eligible for SSI under Title XVI of the Act, a claimant must establish disability as

defined by the Act. See 42 U.S.C. § 1382. A claimant under the age of eighteen is considered
disabled if he 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.” Id. § 1382c(a)(3)(C)(i).
The Act contains a three-step sequential evaluation to determine whether a claimant under
the age of eighteen is disabled. 20 C.F.R. § 416.924(a). In this evaluation, the claimant bears the
ultimate burden of establishing a disability. See Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92

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(3d Cir. 2007).1 If at any point in the sequence the Commissioner finds that a claimant is or is not
disabled, the appropriate determination is made and the inquiry ends.
Step One. At step one, a claimant must demonstrate no engagement in any substantial
gainful activity (“SGA”). 20 C.F.R. § 416.924(a). SGA is defined as significant physical or mental
activities that are usually done for pay or profit. Id. §§ 416.972(a), (b). If a claimant engages in
SGA, he is not disabled under the regulation, regardless of medical condition, age, education, or
work experience. Id. § 416.924(b).
Step Two. At step two, a claimant must demonstrate a “severe” medically determinable
impairment or combination of impairments. Id. A claimant’s 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 limitation. Id. § 416.924(c).
Step Three. At step three, a claimant must demonstrate that he has an impairment or
combination of impairments that meets, medically equals, or functionally equals a listed
impairment (“Listing”) in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 416.924(d). If a
claimant’s impairment meets, medically equals, or functionally equals a Listing, a claimant is
presumptively disabled. Id. § 416.924(d)(1).
An impairment or combination of impairments medically equals a Listing “if it is at least
equal in severity and duration to the criteria of any listed impairment.” Id. § 416.926(a). To
determine whether an impairment or combination of impairments is equal in severity or duration,
an ALJ considers all the relevant medical evidence in the record. Id. § 416.926(c).
If a claimant’s impairment does not meet or medically equal a Listing, an ALJ must
determine whether an impairment functionally equals a Listing. Jaramillo ex rel. Mesa v. Comm’r

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Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

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of Soc. Sec., 130 F. App’x 557, 560 (3d Cir. 2005). A child’s impairment or combination of
impairments functionally equals a Listing if he has either two “marked” limitations or one
“extreme” limitation in the following 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 yourself; and (vi) health and physical well-being.

20 C.F.R. §§

416.926a(b)(1)(i)-(vi). A limitation is “marked” if it interferes seriously with a child’s ability to
independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2). A “marked” limitation
is “more than moderate but less than extreme.” Id. Similarly, a limitation is “extreme” if it
interferes very seriously with a child’s ability to independently initiate, sustain, or complete
activities. Id. § 416.926a(e)(3). Although an extreme limitation is “more than marked,” it is not
necessarily the equivalent of “a total lack or loss of ability to function.” Id. In determining whether
an impairment or combination of impairments “functionally equals” a listing, an ALJ considers
“all the relevant factors,” including the effectiveness of a child’s medication, a child’s ability to
function in school, and the effects of structured settings on the child’s performance. Id. §§
416.926a(a)(1)-(3).
B. Standard of Review
The Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); see Stunkard v. Sec’y of Health & Human Servs., 841
F.2d 57, 59 (3d Cir. 1988). “Substantial evidence does not mean a large or considerable amount
of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Although substantial
evidence requires “more than a mere scintilla, it need not rise to the level of a preponderance.”
McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). While failure to meet the

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substantial evidence standard normally warrants remand, such error is harmless where it “would
have had no effect on the ALJ’s decision.” Perkins v. Barnhart, 79 F. App’x 512, 515 (3d Cir.
2003).
The Court is bound by an ALJ’s findings that are supported by substantial evidence “even
if [it] would have decided the factual inquiry differently.” Hartranft, 181 F.3d at 360. Thus, the
Court is limited in its review because it cannot “weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Although an ALJ may weigh the evidence’s credibility, he must “give some indication of
the evidence which he rejects and his reason(s) for discounting such evidence.” Burnett v. Comm’r
of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000). An ALJ is not required to use particular language
or adhere to a particular format in conducting his analysis as long as there is “sufficient
development of the record and explanation of findings to permit meaningful review.” Jones v.
Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
III.

ALJ MILLER’S DECISION
ALJ Miller applied the three-step sequential analysis and concluded that N.E.S. was not

disabled under the Act. (Tr. at 13-26).
At step one of the analysis, ALJ Miller determined that N.E.S. had not engaged in SGA
since April 13, 2012—the application date. (Id. at 16).
At step two, ALJ Miller determined that N.E.S. suffered from multiple severe impairments:
autism, attention deficit hyperactivity disorder (“ADHD”), obsessive-compulsive disorder
(“OCD”), and speech delay. (Id.). ALJ Miller found that these impairments satisfied the de
minimis threshold of severity and caused more than minimal functional limitations. (Id.).

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At step three, ALJ Miller concluded that N.E.S. did not have an “impairment or
combination of impairments that m[et] or medically equal[ed] the severity” of one of the listed
impairments. (Id.). In reaching this conclusion, ALJ Miller found that no medical evidence
demonstrated that N.E.S.’s impairments met or equaled the criteria of any Listing. (Id.). Further,
ALJ Miller found that no treating, examining or non-examining medical source in the record
mentioned findings or rendered an opinion that N.E.S.’s impairments met or equaled the criteria
of any Listing. (Id.) ALJ Miller noted that he specifically considered the applicable sections of
Listing 112.00 (mental disorders). (Id.).
ALJ Miller also determined that N.E.S. did not have an “impairment or combination of
impairments that functionally equal[ed] the severity” of any Listing. (Id.) In reaching this
determination, ALJ Miller evaluated the “whole child,” considering (i) objective medical evidence;
(ii) information from school teachers, family members, and friends; (iii) statements by N.E.S. or
Plaintiff; and (iv) N.E.S.’s functioning over time and in all settings. (Id.). ALJ Miller found that
N.E.S. had “less than marked limitation in acquiring and using information” (id. at 20); “marked
limitation in attending and completing tasks” (id. at 21); “less than marked limitation in interacting
and relating with others” (id. at 22); “less than marked limitation in moving about and manipulating
objects” (id. at 23); “less than marked limitation in the ability to care for himself” (id. at 24); and
“less than marked limitation in health and physical well-being” (id. at 25). Consequently, because
N.E.S. did not have an impairment or combination of impairments that result in either “marked”
limitations in two domains of functioning or an “extreme” limitation in one domain of functioning,
ALJ Miller concluded that N.E.S. was not disabled under the meaning of the Act. (Id.).

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IV.

DISCUSSION
On appeal, Plaintiff argues that ALJ Miller’s decision is not supported by substantial

evidence for two reasons. First, Plaintiff argues that ALJ Miller’s step-three medical-equivalence
analysis failed to properly compare N.E.S.’s limitations (singularly or in combination) to the
criteria of any specific Listings. (Pl. Mov. Br. at 6). Second, Plaintiff argues that ALJ Miller’s
step-three medical-equivalence analysis improperly weighed certain evidence and failed to include
other relevant evidence. (Id. at 7).
Plaintiff asks the Court to reverse ALJ Miller’s decision and order the payment of benefits.
(Id. at 5). Alternatively, Plaintiff asks the Court to remand this case to the Commissioner for a
new hearing and a new decision. (Id.). As set forth below, the Court rejects Plaintiff’s arguments.
A. ALJ Miller Properly Compared N.E.S.’s Limitations to the Listings in the StepThree Medical-Equivalence Analysis
Plaintiff argues that ALJ Miller’s conclusion is not supported by substantial evidence
because of three errors in ALJ Miller’s step-three analysis. (Id. at 6-7). First, Plaintiff claims that,
although ALJ Miller acknowledged in his decision that N.E.S. had autism, ADHD, OCD, and
speech delay, ALJ Miller failed to compare N.E.S.’s limitations with Listings 112.10 (autism),
112.11 (ADHD), 112.08 (OCD), and 112.02 (speech delay). (Id. at 6). Second, Plaintiff claims
that ALJ Miller failed to properly compare the combination of N.E.S.’s limitations with the above
Listings. (Id. at 6-7). Third, Plaintiff claims that ALJ Miller provided only a “boiler plated
finding” followed by “another boiler plated paragraph having nothing to do with this specific
case,” rendering the ALJ’s analysis insufficient for meaningful judicial review. (Id. at 7, 10).
At step three, an ALJ must “compare the claimant’s medical evidence to a list of
impairments presumed severe enough to negate any gainful work.” Caruso v. Comm’r of Soc.
Sec., 99 F. App’x 376, 379 (3d Cir. 2004). An ALJ must explain his reasoning for why the medical
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evidence does or does not meet the requirements of a Listing. Burnett, 220 F.3d at 119-20. An
ALJ is not required to use particular language or adhere to a particular format as long as his
decision, read as a whole, illustrates sufficient development of the record and explanation of
findings to permit meaningful review. Jones, 364 F.3d at 505. An ALJ’s failure to discuss specific
listings is not a reversible error if he analyzed all the probative evidence and explained his decision
sufficiently to permit meaningful judicial review. Lopez v. Comm’r of Soc. Sec., 270 F. App’x
119, 122 (3d Cir. 2008); see also Lopez v. Comm’r of Soc. Sec., No. 11-5169, 2012 WL 3262827,
at *10 (D.N.J. Aug. 2, 2012) (holding that ALJ’s reference to listing section as a whole is
sufficient). An ALJ’s decision is judicially reviewable if that decision clearly analyzes and
evaluates the relevant medical evidence as it relates to the listing requirements. Scuderi v. Comm’r
of Soc. Sec., 302 F. App’x 88, 90 (3d Cir. 2008).
Regarding the first alleged error, the Court finds that ALJ Miller properly compared
N.E.S.’s limitations with the Listings. ALJ Miller specifically considered Listing 112 (Tr. at 16),
which is a general category of mental disorders, see 20 C.F.R. pt. 404, subpt. P, app. 1 § 112.00.
Indeed, Plaintiff concedes that Listing 112.00 covers Plaintiff’s autism, ADHD, OCD, and speech
delay. (See Pl. Mov. Br. at 7). ALJ Miller is not required to compare each of N.E.S.’s limitations
to any specific Listing criteria as long as his decision properly considered the relevant evidence
and explained his reasoning. See Lopez, 2012 WL 3262827, at *10.2 As explained further below,
ALJ Miller properly considered the relevant medical evidence and provided sufficient analysis to
support his conclusion that N.E.S.’s impairments did not meet the requirements of the Listings.
Regarding the second and third alleged errors, the Court finds that ALJ Miller properly
compared the combination of N.E.S.’s impairments with the requirements of the Listings and

Further, Plaintiff does not point to any evidence to show that N.E.S.’s limitations meet any Listing. (See Def.
Opp. Br. at 5).
2

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supported his analysis with sufficient evidence to permit judicial review. First, contrary to
Plaintiff’s claims, ALJ Miller’s conclusion did consider the combined effects of N.E.S.’s
impairments.

ALJ Miller specifically found that the medical evidence did not indicate a

“combination of impairments severe enough” to equal the criteria of any Listing. (Tr. at 16).
Second, ALJ Miller’s medical-equivalence analysis was sufficient to allow for meaningful judicial
review. While the conclusion to ALJ Miller’s medical-equivalence analysis was brief, elsewhere
in the decision (and particularly in his functional-equivalence analysis) ALJ Miller thoroughly
discussed (i) N.E.S.’s medical and educational records; (ii) N.E.S.’s behavior at the hearing; and
(iii) Plaintiff’s testimony at the hearing. (See id. at 17-19); see also Cotter v. Harris, 650 F.2d
481, 482 (3d Cir. 1981) (“[T]he ALJ is not required to supply a comprehensive explanation for the
rejection of evidence; in most cases, a sentence or short paragraph would probably suffice.”);
Domkos v. Colvin, No. 15-2660, 2016 WL 1732380, at *4 (D.N.J. May 2, 2016) (allowing an
ALJ’s analysis of relevant medical evidence in one step of a decision to support the ALJ’s
conclusion in another step). Accordingly, ALJ Miller’s decision, when read as a whole, provides
a “sufficient development of the record and explanation of findings to permit meaningful judicial
review.” Jones, 364 F.3d at 505.
B. ALJ Miller Properly Considered the Evidence in the Step-Three FunctionalEquivalence Analysis
Plaintiff argues that ALJ Miller’s analysis of functional equivalence was improper because
he “cherry-picked singular evidentiary snippet[s]” to support his conclusion. (Pl. Mov. Br. at 7).
Plaintiff challenges ALJ Miller’s analysis of all six functional domains, but identifies specific
evidence that ALJ Miller allegedly failed to consider in his analysis of (i) domain A (acquiring
and using information); (ii) domain D (moving about and manipulating objects); and (iii) domain
E (caring for yourself). (Id. at 14-16). The Court will address each domain in turn.
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i.

Domain A: Acquiring and Using Information

Plaintiff argues that because ALJ Miller did not consider medical evidence that
demonstrated N.E.S.’s difficulties in acquiring and using information, ALJ Miller’s conclusion
that N.E.S. had a less than marked limitation in domain A is not supported by substantial evidence.
(Tr. at 14). The Court disagrees. As an initial matter, Plaintiff’s claims that ALJ Miller “cherrypicked” evidence and gave “exclusive weight” to N.E.S.’s teacher (Pl. Mov. Br. at 7, 13) are
without merit because ALJ Miller considered conflicting evidence that demonstrated N.E.S.’s
limitations (see, e.g., Tr. at 20). For example, ALJ Miller acknowledged that the overall record
confirmed “learning and speech delays,” but that N.E.S., as of May 2012, was only a half-grade
behind in reading, math, and written language. (Id.). Moreover, ALJ Miller considered N.E.S.’s
teacher’s observation that N.E.S. had “serious problems” in acquiring and using information, but
found that such evidence related more to domain B (attending and completing tasks)—and ALJ
Miller found that N.E.S. had a marked limitation in domain B. (Id.).3
Furthermore, ALJ Miller relied on the determinations from two state agency medical
examiners who each found that Plaintiff had a less than marked limitation in domain A. (Id. at
19). ALJ Miller also relied on Plaintiff’s representations that N.E.S. was “doing beautifully in
school.” (Id. at 20).4 To be sure, the Court notes that ALJ Miller is not required to reference every
relevant piece of medical evidence in his functional equivalence analysis. See Fargnoli v.
Massanari, 247 F.3d 34, 42 (3d Cir. 2001).

ALJ Miller indicated that he gave “substantial weight” to N.E.S.’s teacher’s opinion because she was able to
observe N.E.S. over an extended period in an academic setting. (Tr. at 19). ALJ Miller also noted that N.E.S.’s
teacher’s assessment “is generally consistent with the overall record, which substantiates that [N.E.S.] exhibited some
aggressive and compulsive tendencies in the home setting but was generally well behaved at school.” (Id.).
3

ALJ Miller also considered that N.E.S.’s teacher identified “significant academic improvement” in his
domain A analysis. See Watkins v. Comm’r of Soc. Sec., 131 F. App’x 362, 366 (3d Cir. 2005) (teacher’s observation
that claimant “made progress in school” constituted substantial evidence in support of ALJ’s finding).
4

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Accordingly, because ALJ Miller identified the relevant medical evidence he considered,
the Court finds that the ALJ’s conclusion that N.E.S. had less than marked limitation in domain A
is supported by substantial evidence.
ii.

Domain D: Moving About and Manipulating Objects

Plaintiff argues that ALJ Miller’s conclusion that N.E.S. had a less than marked limitation
in domain D is not supported by substantial evidence because ALJ Miller improperly weighed
certain evidence. (Pl. Mov. Br. at 15). Specifically, Plaintiff argues that N.E.S.’s “obvious
problem[s]” in strength, coordination, and dexterity are “outweighed in the analysis . . . because
[Plaintiff] enrolled [N.E.S.] in the boy scouts [sic] and a soccer team.” (Id.). While ALJ Miller
does point to N.E.S.’s participation in these two activities in his conclusion, he also indicates that
N.E.S. (i) had no gait abnormalities; (ii) was able to run and walk on his heels and toes; and (iii)
did not exhibit deficits in his range of motion. (Tr. at 23). Consequently, Plaintiff’s argument is
unpersuasive because ALJ Miller evaluated more evidence than just N.E.S.’s participation in
soccer and Boy Scouts and did not indicate that he gave this evidence notable weight. Moreover,
ALJ Miller is not required to indicate how much weight he gives evidence nor justify his
determination, as long as his analysis of the record allows for meaningful judicial review. See
Jones, 364 F.3d at 505. The Court is satisfied that ALJ Miller’s functional-equivalence analysis
for domain D is supported by substantial evidence. And because it would be improper for this
Court to weigh the evidence itself, this Court gives deference to ALJ Miller’s analysis. See
Williams, 970 F.2d at 1182.
Plaintiff further argues that because ALJ Miller “never asked the mother a single question
about her son” at the January 29, 2014 hearing, “the record does not reflect that the child could not
continue in these activities.” (Pl. Mov. Br. at 15). But Plaintiff ignores the fact that her own

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attorney asked her numerous questions about her son on the record, and the record is replete with
Plaintiff’s testimony regarding her son’s abilities (including, as mentioned above, her statement
that her son is “doing beautifully in school”). Moreover, Plaintiff does not point to any evidence
to support her claim that N.E.S. could not continue to participate in the Boy Scouts and on his
soccer team. Indeed, Plaintiff does not argue how any such additional evidence, if admitted into
the record, would support a conclusion that N.E.S. had marked, rather than less than marked,
limitations in moving about and manipulating objects.5 Hence, because the remainder of ALJ
Miller’s analysis identified the relevant medical evidence he considered, the Court finds that ALJ
Miller’s conclusion that N.E.S. had less than marked limitation in domain D is supported by
substantial evidence.
iii.

Domain E: Caring for Yourself

Finally, Plaintiff challenges ALJ Miller’s determination that N.E.S. had a less than marked
limitation in domain E (caring for yourself). (Id.).6 Plaintiff appears to argue that ALJ Miller did
not give enough weight to evidence that N.E.S. is “an 8 year old autistic child [who] cannot dress
or bathe himself and [who] ‘appeared essentially uncontrollable at the hearing.’” (Id.) (quoting
Tr. at 24). The Court, however, must decline Plaintiff’s invitation to re-weigh the evidence. See
Williams, 970 F.2d at 1182. In any event, the Court finds that the ALJ’s determination regarding
domain E is supported by substantial evidence. The ALJ noted, for example, that N.E.S. was able
to feed himself, was improving his behavioral outbursts through counseling, and was reported to
be well-behaved in school. (Tr. at 24). As such, Plaintiff’s argument is unpersuasive.
Plaintiff further claims that ALJ Miller “never told the child to sit down or addressed him in any way.” (Pl.
Mov. Br. at 5). Plaintiff does not provide any explanation for how this affects the soundness of ALJ Miller’s
conclusion nor how this Court should interpret the lack of direct questioning of a minor.
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Plaintiff states in her conclusion that there is “ample proof” to show that N.E.S. had marked limitation “in at
least 4 domains.” (Id. at 16). Plaintiff does not indicate which is the fourth domain that she alleges is supported by
that ample evidence.
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V.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the Commissioner’s decision.

appropriate Order accompanies this Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.

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An