Underwood v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Alverta Underwood: that defendant's decision be REVERSED and REMANDED and this case be CLOSED. Objections to R&R due by 8/10/2012. Signed by Magistrate Judge Stephanie K. Bowman on 7/24/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALVERTA UNDERWOOD,
on behalf of CPP,
Plaintiff,

Case No. 1:11-cv-315
Spiegel, J.
Bowman, M.J.

v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Alverta Underwood filed this Social Security appeal in order to challenge the
Defendant’s finding that her minor daughter, CPP is not disabled. See 42 U.S.C. §405(g).
Proceeding through counsel, Plaintiff presents three claims of error for this Court’s review.
As explained below, I conclude that the finding of non-disability should be REVERSED,
and REMANDED for a reinstatement of benefits because it is not supported by substantial
evidence in the administrative record.
I. Summary of Administrative Record
Plaintiff filed a claim for Supplemental Security Income on behalf of CPP on June
30, 1998 and was awarded benefits on August 19, 1998. (Tr. 29). CPP was found to meet
Listing 103.03B (asthma) beginning on June 1, 1998. (Tr. 29). A continuing disability
review was conducted in May 2002; at this time, CPP was found to have met Listing
112.02, based on a diagnosis of Borderline Intellectual Functioning, Disruptive Behavior,
and Developmental Expressive Disorder, and was found to be disabled. (Tr. 30, 326). On

January 25, 2006, another continuing disability determination was performed and CPP was
found not disabled beginning February 1, 2006. (Tr. 32, 53-64). This finding was affirmed
on reconsideration. Plaintiff’s then requested a hearing de novo before an Administrative
Law Judge (“ALJ”). On July 15, 2009, an evidentiary hearing was held, at which CPP,
Plaintiff and Dr. DiTragalia, a pediatrician, appeared and testified. On September 22,
2009, ALJ James Sherry denied Plaintiff’s SSI application in a written decision. (Tr. 7-23).
In his decision, the ALJ found that CPP has the following “severe” impairments:
borderline intellectual functioning, disruptive behavior, developmental expressive disorder,
and asthma. Despite these impairments, the ALJ found that there had been a decrease
in the medical severity of her impairments, such that she no longer met Listing 112.02. (Tr.
18, 20). The ALJ further found that CPP had a “marked” limitation in acquiring and using
information; “less than marked” limitations in attending and completing tasks, in interacting
and relating with others, in caring for herself, and in health and physical well-being; and no
limitation in moving about and manipulating objects. (Tr. 23-27). The ALJ thus affirmed
the decision that CPP”s disability ended as of February 1, 2006. (Tr. 28). The Appeals
Council denied Plaintiff’s request to review the ALJ’s decision. (Tr. 6-9).
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability” within the definition
of the Social Security Act. See 42 U.S.C. §1382c(a). When a court is asked to review the
Commissioner’s denial of benefits, the court’s first inquiry is to determine whether the ALJ’s
non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation
and internal quotation omitted). In conducting this review, the court should consider the
record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial
evidence supports the ALJ’s denial of benefits, then that finding must be affirmed, even if
substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion. .
.. The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from the
courts. If the Secretary’s decision is supported by substantial evidence, a
reviewing court must affirm.
Id. (citations omitted).
In considering an application for supplemental security income by a person under
the age of 18, the Social Security Agency is guided by a three-step sequential benefits
analysis: at Step 1, the Commissioner asks if the claimant is performing substantial gainful
activity; at Step 2, the Commissioner determines if one or more of the claimant’s
impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s
impairments, singly or in combination, meet or equal a Listing in the Listing of Impairments.
See 20 C.F.R. §416.924.
In order to meet a Listing, the child's impairment(s) must be substantiated by
medical findings shown or described in the listing for that particular impairment. 20 C.F.R.
§ 416.925(d). (emphasis added).

In order to medically equal a Listing, a child's

impairment(s) must be substantiated by medical findings at least equal in severity and
duration to those shown or described in the listing for that particular impairment. 20 C.F.R.

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§ 416.926(a) (emphasis added).
In order to functionally equal a Listing, the child's impairment(s) must be of
listing-level severity; i.e., it must result in “marked” limitations in two domains of functioning
or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a) (emphasis added). The
SSA assesses all relevant factors, including (1) how well the child initiates and sustains
activities, how much extra help he or she 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 or
medications or other treatment. 20 C.F.R. § 416.926a(a)(1)(3). Further, in determining
functional equivalence, the SSA considers how a child functions in his or her activities
within 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 yourself; and,
(vi) Health and physical well-being.
20 C.F.R. § 416.926a(b)(1)(i)-(vi).
The Agency defines “marked” and “extreme” limitations as follows:
(2) Marked limitation.
(i) We will find that you have a “marked” limitation in a domain when your
impairment(s) interferes seriously with your ability to independently initiate,
sustain, or complete activities. Your day-to-day functioning may be seriously
limited when your impairment(s) limits only one activity or when the
interactive and cumulative effects of your impairment(s) limit several
activities. “Marked” limitation also means a limitation that is “more than
moderate” but “less than extreme.” It is the equivalent of the functioning we
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would expect to find on standardized testing with scores that are at least two,
but less than three, standard deviations below the mean
(3) Extreme limitation.
(i) We will 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. Your day-to-day functioning may be
very seriously limited when your impairment(s) limits only one activity or
when the interactive and cumulative effects of your impairment(s) limit
several activities. “Extreme” limitation also means a limitation that is “more
than marked.” “Extreme” limitation is the rating we give to the worst
limitations. However, “extreme limitation” does not necessarily mean a total
lack or loss of ability to function. 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.

20 C.F.R. §§ 416.926a(e)(2)(i), (e)(3)(i).
Moreover, the SSA must periodically review whether a disabled child continues to
remain eligible for benefits. 42 U.S.C. § 1382c(a)(3)(H)(ii)(I); 20 C.F.R. § 416.994a. The
SSA follows a three-step process in reviewing continued eligibility for Social Security
Benefits. In step one, the SSA determines whether there has been any “medical
improvement” in the impairments that the child had at the most recent favorable
determination that he or she was disabled (i.e., the comparison point decision or “CPD”).
20 C.F.R. § 416.994a(b). Medical improvement is “any decrease in the medical severity
of [the claimant's] impairment(s) which was present at the time of the most recent favorable
decision that [the claimant] was disabled or continued to be disabled ... based on changes
(improvement) in the symptoms, signs, or laboratory findings associated with [the
claimant's] impairment(s).” 20 C.F.R. § 416.994a(c). If no medical improvement has
occurred, the child continues to be disabled unless an enumerated exception applies. 20
C.F.R. § 416.994a(b)(1). If medical improvement has occurred, the SSA proceeds to step
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two. 20 C.F.R. § 416.994a(b)(2).
At step two, if the CPD was made on or after January 2, 2001 and was based upon
functional equivalence to a Listing, as is the case here, the SSA need only determine
whether the impairment(s) now functionally equals the Listings. 20 C.F.R. § 916.994a(b)(2);
Social Security Ruling (“SSR”) 05–03p, 2005 WL 1041037.

If the impairment still

functionally equals a Listing, then disability benefits will continue. Id. If the impairment
does not, the SSA will proceed to step three. Id.
At step three, the SSA must determine whether the child is currently disabled in
accordance with the rules for determining disability for children. 20 C.F.R. § 416.994a(b)(3).
In determining whether a child is currently disabled, the SSA will consider all of the
impairments that the child now has, including those not had at the time of the CPD, or
those that the SSA did not consider at that time. Id.
B. Substantial Evidence Analysis
On appeal to this Court, Plaintiff argues that the ALJ erred by: (1) finding that there
has been a medical improvement in CPP’s condition since the continuing disability point
in May 2002; (2) failing to find that CPP’s impairments did not continue to meet or equal
Listing 112.02; and (3) failing to find that CPP’s impairments do not functionally equal a
Listing of Impairments. Upon careful, review the undersigned finds that the ALJ erred in
finding that CPP’s impairments did not continue to meet Listing 112.02.
1. Medical Improvement
In May 2002, CPP was deemed to have the following medical impairments:
borderline intellectual functioning, disruptive behavior, and developmental expressive
disorder (Tr. 326). These impairments were found to satisfy the requirements of Listing
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112.02 and, accordingly, CPP was found to be disabled. (Tr. 326). See 20 C.F.R., Pt. 404,
Subpt. P, App. 1.

At step one of the continuing disability review process the ALJ

determined that, as of February 1, 2006, CPP’s condition had medically improved since the
most recent medical determination that she was disabled (i.e. the comparison point
decision or “CPD”) (Tr. 18). 20 C.F.R. § 416.994a(b)-(c)). In making this determination,
the ALJ noted that in 2002, CPP was four years old and was “basically nonverbal, with IQ
showing a verbal IQ score of 62 and a Full Scale IQ score of 69. (Tr. 18, 320-323).
However, by September 2005, an Individualized Education Plan (IEP) review from Plaintiff’s
teacher indicated that she was continuing to make steady progress on her speech and
language goals and objectives. (Tr. 18).
The ALJ also cited to the findings of Dr. Fritsch who examined Plaintiff in December
2005 at the request of the state agency. Dr. Fritsch found that CPP was quiet, minimally
responsive, and her language skills remained poor. (Tr. 19, 407). Yet, Dr. Fritsch did not
note any significant behavioral or emotional problems. (Tr. 19, 408). Moreover, CPP’s Full
Scale IQ was now 84, which was a 15-point improvement from her Full Scale IQ score in
2002. (Tr. 19, 321, 409). Dr. Fritsch diagnosed CPP with a learning disorder and a
language disorder and no longer found that she had borderline intellectual functioning or
disruptive behavior. (Tr. 19, 323-26, 408).
Plaintiff argues, however, that the time of the hearing, CPP was 11 years old and
had just completed the 5th grade, but she was reading at a 3rd grade level, which is two
grade levels below her peers. Notably, in 2002, CPP was only one grade level behind her
peers in reading comprehension. (Tr. 335-343, 444). Thus, Plaintiff argues that, CPP has
shown a worsening in her condition. Plaintiff further asserts that CPP still requires
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non-mainstreamed special education for all her academic classes, she still requires speech
and language therapy on a regular basis, and she is socially and emotionally immature as
well. (Tr. 409, 444-445). Notwithstanding this evidence, the undersigned finds that the
ALJ’s finding of medical improvement is substantially supported.
As detailed above, the record establishes that Plaintiff’s condition has medically
improved since May 2002, when she was found to be disabled based on a combination of
borderline intellectual functioning, disruptive behavior, and developmental expressive
disorder.

(Tr. 326).

Plaintiff’s behavioral problems have improved greatly and her

intellectual functioning also improved, as evidenced by her IQ score and academic
progress. Accordingly, the undersigned finds that the ALJ’s decision in this regard is
substantially supported.
2. Plaintiff continues to meet Listing 112.02
Plaintiff’s next assignment of error asserts that the ALJ erred in finding that CPP’s
impairments did not continue to meet or equal Listing 112.02. Listing 112.02 requires both
an A and B criteria to be satisfied before the requirements of the listing can be satisfied. 20
C.F.R. Pt. 404, Subpt. P, App. 1., Listing 112.02. Part A of listing 112.02, requires a
claimant to demonstrate medically documented persistence of at least one of ten
symptoms. Part B of Listing 112.02 requires that children between ages 3 and 18 have at
least

two

of

the

following:

(a)

marked

impairment

in

age-appropriate

cognitive/communicative functioning; (b) marked impairment in age-appropriate social
functioning; or (c) marked impairment in age-appropriate personal functioning.
In May 2002, the state agency medial consultant found that CPP satisfied part B of
Listing 112.02 by meeting requirements (a) and (c). (Tr. 326). In this case, the ALJ
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determined that CPP no longer satisfied the B criteria of Listing 112.02 because the
evidence no longer documented that CPP had a ”marked impairment in age-appropriate
personal functioning.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1., Listing 112.02(B)(2)(c).
Upon carful review, the undersigned finds that the ALJ erred in finding that CPP had less
than marked limitation in personal functioning.
Here, Dr. Fritsch indicated that CPP tends to be generally passive, which limits her
daily living skills. (Tr. 408). Dr. Fritsch reported that CPP sometimes has daytime
bathroom accidents (urination and defecation) and often needs to be reminded and/or
redirected. CPP’s most recent IEP completed in September 2006, indicated that CPP
“exhibits significant adaptive behavior deficits in the areas of communication, daily living
skills, and socialization." (Tr. 463). Moreover, Plaintiff testified that CPP still needs
direction on how to take baths and assistance brushing her hair. (Tr. 529). There is no
indication from the ALJ’s decision that he considered such evidence in determining that
Plaintiff no longer had marked limitations in social functioning.
Furthermore, even assuming the ALJ correctly found that CPP had less than marked
limitation in personal functioning, the record indicates that she had marked limitation in
interacting and relating with others (social functioning). As noted above, claimant needs
only two “marked” limitations out of three in order to meet the “B” criteria of Listing 112.02.
Notably, the ALJ found CPP continues to have at least a “marked” limitation in
cognitive/communicative functioning. Plaintiff now asserts that CPP has a “marked”
limitation in social functioning, due primarily to the severity of her language disorder. (Doc.
8, p. 23). As such, Plaintiff maintains that CPP continues to meet the criteria for Listing
112.02, albeit under a different set of criteria as compared to her CPD in 2002.
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Agency regulations set forth some examples of difficulty that children may have in
interacting and relating with others, such as: 1) does not reach out to be picked up and help
by caregiver; 2) has no close friends, or all friends are older or younger than the child; 3)
avoids or withdraws from people he or she knows, or is overly anxious or fearful of meeting
new people; 4) has difficulty playing games or sports with rules; 5) has difficulty
communicating with others (e.g. in using verbal and nonverbal skills to express herself, in
carrying on a conversation, or in asking others for assistance); or 6) has difficulty speaking
intelligibly or with adequate fluency. 20 CFR § 416.926a(i)(3).
Here, the record indicates that CPP has marked limitations in the 5th and 6th
scenarios listed above, Specifically, CPP’s language disorder makes it difficult for her to
adequately communicate with others. Dr. Fritsch indicated that CPP’s “poor language
interferes with optimal socialization.“ (Tr. 408). Dr. Fritsch also noted that “she remain[s]
quiet and only minimally responsive.” (Tr. 407). The record further indicates when CPP
does speak to others it is in a very quiet, almost inaudible voice. (Tr. 522-523). CPP has
few friends, and only one (a neighbor) with whom she will play on a semi-regular basis. (Tr.
536). In addition, CPP’s more recent report cards show that she does not participate in
class discussions, has difficulty working independently, and has trouble practicing
self-control. (Tr. 480). The undersigned agrees that all of these behaviors seriously
interfere with her ability to socially “function at age appropriate levels independently,
appropriately, effectively, and on a sustained basis” (the very definition of a “marked”
limitation).
In light of the foregoing, the undersigned finds that CPP's impairments continue to
meet the criteria for Listing 112.02 as she continues to have marked limitations in cognitive
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and personal functioning.
III. Conclusion and Recommendation
When the non-disability determination is not supported by substantial evidence, the
Court must decide whether to reverse and remand the matter for rehearing or to reverse
and order benefits granted. The Court has authority to affirm, modify or reverse the
Commissioner's decision “with or without remanding the cause for rehearing.” 42 U.S.C.
§ 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).
Generally, benefits may be awarded immediately “only if all essential factual issues
have been resolved and the record adequately establishes a plaintiff's entitlement to
benefits.” Faucher v. Sec. of Health and Human Servs., 17 F.3d 171, 176 (6th Cir. 1994);
see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). The Court may award
benefits where the proof of disability is strong and opposing evidence is lacking in
substance, so that remand would merely involve the presentation of cumulative evidence,
or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky,
35 F.3d at 1041; Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir.1985). Such is the case
here.
For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s
decision be found NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and REVERSED,
and REMANDED for an immediate reinstatement of benefits. As no further matters remain
pending for the Court’s review, this case be CLOSED.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ALVERTA UNDERWOOD,
on behalf of CPP,

Case No. 1:11-cv-315

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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