Tribble v. Commissioner of Social Security

Filing 19

ORDER that the decision of the Commissioner is REVERSED and this case is REMANDED for an award of benefits pursuant to Sentence Four of 42 USC 405(g). Signed by Magistrate Judge Karen L. Litkovitz on 11/16/2015. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VERA TRIBBLE, OBO
J.C.W.,
Plaintiff,

Case No. 1:14-cv-704
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

ORDER

Vera Tribble, on behalf of her minor child, J.C.W. (plaintiff) brings this action pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of the
Commissioner of Social Security (Commissioner) denying plaintiff’s application for children’s
Supplemental Security Income (SSI) benefits. This matter is before the Court on plaintiff’s
statement of errors (Doc. 10), the Commissioner’s response in opposition (Doc. 17), and
plaintiff’s reply memorandum (Doc. 18).
I. Procedural Background
Plaintiff was born in 2003 and was nine years old at the time of the administrative law
judge’s (ALJ) decision. Plaintiff filed an application for children’s SSI in August 2011, alleging
disability due to loss of vision in her left eye due to the residuals of retinoblastoma (cancer of the
retina), asthma, post-traumatic stress disorder (PTSD), and attention deficit hyperactivity
disorder (ADHD). Plaintiff’s application was denied initially and upon reconsideration.
Plaintiff, through counsel, requested and was granted a de novo hearing before ALJ Gregory
Kenyon. Plaintiff’s mother appeared and testified at the ALJ hearing. On May 15, 2013, the
ALJ issued a decision denying plaintiff’s SSI application. Plaintiff’s request for review by the

Appeals Council was denied, making the decision of the ALJ the final administrative decision of
the Commissioner.
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for SSI, plaintiff must file an application and be an “eligible individual” as
defined in the Act. 42 U.S.C. § 1382(a); 20 C.F.R. § 416.202. Eligibility is dependent upon
disability, income, and other financial resources. Id.; 20 C.F.R. § 416.202. An individual under
the age of 18 is considered disabled for purposes of SSI “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 period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i).
The Social Security regulations set forth a three-step sequential analysis for determining
whether a child is disabled for purposes of children’s SSI benefits:
1. Is the child engaged in any substantial gainful activity? If so, benefits are denied.
2. Does the child have a medically severe impairment or combination of impairments? If
not, benefits are denied.
3. Does the child’s impairment meet, medically equal, or functionally equal any in the
Listing of Impairments, Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P, 20 C.F.R. §
416.924(a)? If so, benefits are granted.
20 C.F.R. § 416.924(a)-(d).
If an impairment does not meet a listed impairment, disability may nonetheless be
established if the child’s impairment is medically or functionally equivalent to a listed
impairment. A child’s impairment is “medically equivalent” to a listed impairment if it is “at
least equal in severity and duration to the criteria” of a listed impairment. 20 C.F.R. § 416.926.

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In determining whether a child’s impairment(s) functionally equals the listings, the adjudicator
must assess the child’s functioning in six domains:
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.
20 C.F.R. § 416.926a(b)(1)(i)-(vi). To functionally equal an impairment in the listings, an
impairment must result in “marked” limitations in two domains of functioning or an “extreme”
limitation in one domain. 20 C.F.R. § 416.926a(d). The relevant factors that will be considered
in making this evaluation are (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) the effects of the child’s medications or other treatment. 20
C.F.R. § 416.926a(a)(1)-(3).
An individual has a “marked” limitation when the impairment “interferes seriously with
[the] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i). A “marked” limitation is one that is “more than moderate” but “less than
extreme.” Id. An “extreme” limitation exists when the impairment “interferes very seriously
with [the] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i). Day-to-day functioning may be “very seriously limited” when only one
activity is limited by the impairment or when several activities are limited by the impairment’s
cumulative effects. Id.
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If the child’s impairment meets, medically equals, or functionally equals an impairment
in the listings, and if the impairment satisfies the Act’s duration requirement, then the child is
considered disabled. 20 C.F.R. § 416.924(d)(1). If both of these requirements are not satisfied,
then the child is not considered disabled. 20 C.F.R. § 416.924(d)(2).
B. The ALJ’s findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. [Plaintiff] was born [in] . . . 2003. Therefore, she was a school-age child on
August 8, 2011, the date [the] application was filed, and is currently a school-age
child (20 CFR 416.926a(g)(2)).
2. [Plaintiff] has not engaged in substantial gainful activity since August 8, 2011,
the application date (20 CFR 416.924(b) and 416.971 et seq.).
3. [Plaintiff] has the following severe impairments: loss of vision in the left eye
due to residuals of retinoblastoma, asthma, post-traumatic stress disorder (PTSD),
and attention deficit hyperactivity disorder (ADHD). (20 CFR 416.924(c)).
4. [Plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. [Plaintiff] does not have an impairment or combination of impairments that
functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).
6. [Plaintiff] has not been disabled, as defined in the Social Security Act, since
August 8, 2011, the date the application was filed (20 CFR 416.924(a)).
(Tr. 24-34).
In determining that plaintiff’s impairments are not functionally equivalent to a listed
impairment, the ALJ found:
1. The claimant has less than marked limitation in acquiring and using
information. (Tr. 29).
2. The claimant has less than marked limitation in attending and completing
tasks. (Tr. 30).
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3. The claimant has less than marked limitation in interacting and relating to
others. (Tr. 31).
4. The claimant has less than marked limitation in moving about and manipulating
objects. (Tr. 32).
5. The claimant has less than marked limitation in the ability to care for herself.
(Tr. 33).
6. The claimant has marked limitation in health and physical well-being. 1 (Tr.
33).
C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a
preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner’s findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
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The ALJ determined that plaintiff’s total loss of vision in her left eye and asthma, in combination, result in a
marked level of limitation on plaintiff’s overall health and physical well-being. (Tr. 33).

5

the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004) (reversal required
even though ALJ’s decision was otherwise supported by substantial evidence where ALJ failed
to give good reasons for not giving weight to treating physician’s opinion, thereby violating the
agency’s own regulations).
D. Specific Errors
On appeal, plaintiff argues the ALJ erred in determining that plaintiff has less than
marked limitation in two domains of functioning: the domain of attending and completing tasks
and the domain of interacting and relating to others.
1. Evaluating children’s SSI disability under the “whole child” approach
Functional equivalence to a listed impairment is evaluated using the “whole child”
approach and requires consideration of “how the child functions every day and in all settings
compared to other children the same age who do not have impairments.” Social Security Ruling
09-1p. The “whole child” approach involves answering the following questions:
1. How does the child function?
2. Which domains are involved in performing the activities?
3. Could the child’s medically determinable impairment(s) account for
limitations in the child’s activities?
4. To what degree does the impairment(s) limit the child’s ability to function
age-appropriately in each domain?
Id.
In assessing a child’s degree of limitation in any given domain, Social Security Ruling
09-1p requires consideration of “how well the child can initiate, sustain, and complete activities,
including the kind, extent, and frequency of help or adaptations the child needs, the effects of
structured or supportive settings on the child’s functioning, where the child has difficulties (at
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home, at school, and in the community), and all other factors that are relevant to the
determination of the degree of limitation.” Id. (citing 20 C.F.R. § 416.924a). The degree of
limitation – whether it is “marked” or “extreme” – is based on the answers to these questions:
1. How many of the child’s activities in the domain are limited (for example, one,
few, several, many, or all)?
2. How important are the limited activities to the child’s age-appropriate
functioning (for example, basic, marginally important, or essential)?
3. How frequently do the activities occur and how frequently are they limited (for
example, daily, once a week, or only occasionally)?
4. Where do the limitations occur (for example, only at home or in all settings)?
5. What factors are involved in the limited activities (for example, does the child
receive support from a person, medication, treatment, device, or structured/
supportive setting)?
Id.
2. The ALJ’s finding that plaintiff has less than marked impairment in the
domain of attending and completing tasks is not supported by substantial evidence.
In the domain of attending and completing tasks, school-age children (age 6 to attainment of age
12), should be able to do the following:
• focus their attention in a variety of situations in order to follow directions,
remember and organize school materials, and complete classroom and homework
assignments.
•concentrate on details and not make careless mistakes in their work (beyond
what would be expected in other children the same age who do not have
impairments).
•change their activities or routines without distracting themselves or others, and
stay on task and in place when appropriate.
•sustain attention well enough to participate in group sports, read by themselves,
and complete family chores.
•complete a transition task (e.g., be ready for the school bus, change clothes after
gym, change classrooms) without extra reminders and accommodation.
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20 C.F.R. § 416.926a(h)(2)(iv). The regulation governing limited functioning in attending and
completing tasks provides several examples describing the relevant limitations in this domain:
•You are easily startled, distracted, or overreactive to sounds, sights, movements, or
touch.
•You are slow to focus on, or fail to complete activities of interest to you, e.g., games or
art projects.
•You repeatedly become sidetracked from your activities or you frequently interrupt
others.
•You are easily frustrated and give up on tasks, including ones you are capable of
completing.
•You require extra supervision to keep you engaged in an activity.
20 C.F.R. § 416.926a(h)(3).
In this case, the ALJ found that plaintiff has less than marked limitation in the domain of
attending and completing tasks for the following reasons:
The claimant’s ADHD does cause her to have trouble focusing, but her symptoms
appear to be under reasonable control with medication (Exhibit 9). She is capable
of performing reasonably well in her math class, as evidence[d] by her grades.
She is also able to do well in her music and art classes, which reflect an ability to
maintain a sufficient amount of attention and concentration to listen to directions
and complete projects.
(Tr. 30).
The ALJ’s finding that plaintiff has less than marked impairment in attending and
completing tasks is not supported by substantial evidence. The ALJ cited to the most recent
Children’s Home of Cincinnati progress notes and plaintiff’s good grades in math, music and art
in support of this finding. Yet, when these records are examined in connection with the record as
whole, they do not provide substantial support for the ALJ’s conclusion.

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Plaintiff was initially referred to the Children’s Home for counseling in May 2011 by her
school “due to disrespectful behavior towards staff, problems with attention, blurting out answers
in class, and running in the hallways.” (Tr. 486). Plaintiff had been recently suspended from
school for disrespecting a teacher and playing on an elevator, and her grades had fallen from As
to Cs by the end of her third grade school year. (Tr. 486). Plaintiff had also been sexually
abused at the age of 5 by a male relative and suffered from Post-traumatic Stress Disorder
(PTSD) as a result. (Tr. 489, 491). The PTSD was demonstrated by nightmares, detachment of
feelings, the inability to recall parts of the trauma, restricted affect, and anger outbursts. (Tr.
491). She also was diagnosed with Specific Phobia, Animal Type, which impeded her
functionality and quality of life. (Id.). Plaintiff also met the criteria for Attention-Deficit/
Hyperactivity Disorder, Combined Type, as evidenced by her difficulty with sustaining attention,
being forgetful about handing in completed homework assignments, blurting out answers in
class, and being constantly on the go. (Id.).
Plaintiff treated with the Children’s Home for two years to address her PTSD, ADHD,
phobia of animals and insects, and negative behaviors towards adults. Plaintiff received therapy
from a Children’s Home therapist in the school setting. The therapy notes from the Children’s
Home therapist document consistent problems with focus, hyperactivity, and impulsivity over
the relevant time period. (Tr. 482, 6/25/11 - difficulty staying seated and staying on task,
fidgety, depressed mood, flat affect; Tr. 481, 7/9/11 - no significant change from last visit; Tr.
479, 7/29/11 - good mood with constricted affect, limited insight and judgment, easily engaged
in therapeutic process; Tr. 478, 8/19/11 - anxious mood with constricted affect, hyperactive,
hypervigilant, easily distracted, good concentration; Tr. 477, 9/8/11 - hyperactive, fair
concentration, guarded when talking about PTSD symptoms and previous sexual abuse; Tr. 476,
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9/22/11 - became anxious about students changing classes in the hallway, continues to work
through feelings of anxiety, fear, and cognitive thinking errors; Tr. 475, 9/28/11 - collateral
contact with school intervention specialist who reported plaintiff was timid, occasionally bullied
at school, and experienced interpersonal issues with peers; Tr. 474, 9/28/11 - anxious mood with
blunted affect, insecure, uneasy, fidgety, poor eye contact; Tr. 474, 11/3/11 - euthymic mood
with inappropriate affect, hyperactive, difficulty staying seated, easily distracted, poor
concentration; Tr. 471, 11/16/11 - won monthly math award, but hyperactive, had difficulty
staying seated, needed redirection to stay on task; Tr. 469, 1/5/12 - marked difficulty staying on
task, highly distractible to noise in hallway, had not taken medicine that morning; Tr. 468,
1/19/12 - hyperactive, easily distracted, had difficulty staying on task, did not take medications
that morning; Tr. 467, 3/23/12 - restricted affect, anxious mood, fidgeted with hands, maintained
on-task behaviors and focus during session; Tr. 466, 3/30/12 - mother reported “doing better” in
regard to sexual abuse, but still having extreme mood swings and “very emotional.”). Plaintiff’s
March 30, 2012 Individualized Service Plan Review indicated that plaintiff “continues to
struggle with mental health symptoms including anxiety and mood swings” and “continues to
struggle with maintaining focus and discussing her sexual abuse history.” (Tr. 460). While there
had been some decrease in PTSD symptoms, including nightmares, plaintiff continued to
struggle a great deal with anxiety and discussing her past traumatic events. (Tr. 463). The
Service Plan Review stated that plaintiff “continues to struggle with academics and staying ontask” and “would benefit from continuing to learn how to manage her impulses in all areas of her
life.” (Tr. 465). During one of four therapy sessions in April 2012, plaintiff was easily engaged
and able to maintain on-task behaviors with minimal prompting; during the other three sessions,
however, plaintiff displayed impulsive behaviors and began to shut down when redirected; she
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was guarded with a restricted affect and appeared nervous and was rubbing her legs throughout
the session; and she presented as guarded and shy and shut down and cried. (Tr. 456-459).
In February 2013, Dr. John Brewer, M.D., noted that while Adderall “did help in the
classroom,” plaintiff had been fighting and angry, she was suspended from the bus and school
for fighting, and her grades were getting worse as the year progressed. (Tr. 541). Dr. Brewer
noted that plaintiff’s academics and behavior started to become worse in the third grade. (Id.).
Dr. Brewer increased her dose of Adderall. (Tr. 542). In March 2013, Dr. Brewer noted that
plaintiff’s mother and father did not see much difference in plaintiff’s behavior, but plaintiff was
doing better in completing her homework. He also noted that while plaintiff’s teachers noted
improvement in her behavior, most likely due to impulse control, plaintiff “still has problems
focusing.” (Tr. 537). That same month, plaintiff’s social worker from the Children’s Home
assisted plaintiff in the classroom setting to work on her goal of “paying attention.” (Tr. 539540). The social worker reported that he assisted plaintiff in the classroom by redirecting
plaintiff and reminding her to stay on task. (Tr. 540). He also reported that plaintiff “appeared
to be participating in her group project, though [she] was easily distracted or frustrated by other
group members.” (Tr. 540). On another day, the social worker reported that plaintiff
participated in the classroom, but she “needed constant reminder[s] to pay attention and stay
focused.” (Tr. 539).
On February 13, 2013, two teachers completed teacher questionnaires assessing
plaintiff’s overall functioning in the classroom. The numerical rating key for these forms
identified a “1” as signifying “no problem” while a “5” signified a “very serious problem.” (Tr.
240). Fourth grade writing and language arts teacher Annie Fisk reported that plaintiff was one
to two years behind in her written language level. (Tr. 238). In the domain of attending and
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completing tasks, Ms. Fisk reported that plaintiff had “an obvious problem” (a numerical rating
of 3) in “focusing long enough to finish assigned activity or task” and “working without
distracting self or others.” (Tr. 240). Ms. Fisk reported these were daily problems for plaintiff
and that she “gets easily distracted by her peers which causes her to get off task.” (Id.). She
identified eight other areas as “2s” or “slight” problems which occurred on a daily or hourly
basis, and three areas as “no problem.” (Id.). Ms. Fisk did not rate any activities as “serious” or
“very serious” problems. Math teacher Kelly Rames also assessed plaintiff’s functioning in the
domain of attending and completing tasks. Ms. Rames reported that plaintiff had “an obvious
problem” on a daily basis with sustaining attention during play/sports activities, focusing long
enough to finish assigned activities or tasks, refocusing to task when necessary, and changing
from one activity to another without being disruptive. (Tr. 266). Ms. Rames also reported that
plaintiff had an “obvious” problem with working without distracting herself or others and this
problem occurred on an hourly basis. (Id.). Ms. Rames rated five areas as slight problems and
three areas as no problem. She did not rate any areas as serious or very serious problems. (Id.).
Ms. Rames reported that plaintiff was “off task a lot, talking, making noises, etc.” (Tr. 266) and
that her “off-task behaviors hold [plaintiff] back on being independent with [her] work.” (Tr.
265). Ms. Rames stated that plaintiff “is grouped in the low-ability group, so there is a lot of
structure, support, and small group work.” (Id.).
Plaintiff received numerous Behavioral Referrals throughout the relevant time period
demonstrating plaintiff’s limitations in the domain of attending and completing tasks, most
notably her failure to stay on task and problems with impulsivity:
• March 11, 2011: Not following teacher’s instructions; plaintiff “has been talking and
not following directions during instruction” and this behavior problem has occurred five
times. (Tr. 168).
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• March 14, 2011: Not following a teacher’s instructions; plaintiff “will not follow
directions. She is always talking and yelling out answers during instruction. She is also
getting out of seat and not sitting in seat correctly.” This behavior problem has occurred
5 times. (Tr. 169).
• April 7, 2011 (1:30 p.m.): Not following a teacher’s instructions. Plaintiff was
stomping her feet, yelling out answers. Teacher asked plaintiff several times to stop, but
she did not, and plaintiff was placed in time out. One hour and 10 minutes later, another
student advised the teacher that plaintiff was getting on the elevator. The teacher
attempted to get her, but the plaintiff ran from her. It was noted that this behavior has
happened 5 times. (Tr. 173).
• April 7, 2011 (2:30 p.m.): Not following a teacher’s instructions. Plaintiff refused to
follow the directions of the classroom teachers and was sent to timeout. Instead, plaintiff
went roaming around the building. She was suspended for 2 days. (Tr. 174).
• August 29, 2012: Excessive talking and/or talking out. Plaintiff talked constantly
when the teacher was teaching; after two warnings, she continued to talk. (Tr. 547).
• September 13, 2012: Talking, laughing, shouting at inappropriate times/levels.
Plaintiff “was constantly talking in class when she was not allowed to. She was unable to
complete her work correctly because she missed teacher directions.” (Tr. 547).
• October 22, 2012: Horseplay, pushing, hitting, tripping. Plaintiff was horse-playing on
the bus, refused to remain seated, and ignored the driver’s instructions. Received bus
suspension. (Tr. 545).
• October 24, 2012: Defiant behavior to bus driver/aid; throwing objects on the bus.
(Tr. 546).
• October 25, 2012: Talking, laughing, shouting at inappropriate time/levels; talking in
the hallway even after a warning; not being prepared for class; had to go to locker for
homework. (Tr. 547).
• December 10, 2012: Unacceptable physical contact; constantly poking and pinching
another student. (Tr. 547).
• January 10, 2013: Talking, laughing, and shouting at inappropriate time/levels. (Tr.
547).
• January 30, 2013: Disrespect; talking in the hall and arguing with teacher. (Tr. 547).
• February 4, 2013: Disrespect; bullying another student. (Tr. 547).
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• February 14, 2013: Unacceptable physical contact; yelling at and fighting with another
student. Out-of-school suspension. (Tr. 547).
These records, when viewed as a whole, do not support the ALJ’s conclusion that
plaintiff’s symptoms appear to be reasonably well-controlled with medication. The Children’s
Home of Cincinnati progress notes from February and March 2013 cited by the ALJ do show
some level of improvement with medication in terms of impulse control at school, but the notes
also reflect that plaintiff still experienced problems with focus and paying attention. Notably, the
progress notes from March 2013 indicate plaintiff was easily distracted and frustrated by her
classmates, she needed redirection to stay on task, and she “needed constant reminder[s] to pay
attention and stay focused.” (Tr. 539). When viewed in the context of the progress notes over
the two-year relevant time period, these limited signs of improvement with medication do not
substantially support the ALJ’s conclusion.
The Commissioner concedes that the Children’s Home progress notes reflect plaintiff’s
problems with attention and concentration, but the Commissioner notes that plaintiff was often
able to be redirected to the task at hand with the help of her therapist. This evidence does not
establish that plaintiff’s attention and concentration problems were not serious. Instead, the
evidence demonstrates only that with one-on-one support plaintiff was able to be redirected to
the task at hand during an individual therapy session. It does not suggest that plaintiff was able
to be easily redirected in the classroom or other settings, and the evidence of record is to the
contrary.
Similarly, the ALJ cited to plaintiff’s math grades as evidence that plaintiff had less than
marked impairment in the domain of attending and completing tasks. However, plaintiff’s math
teacher reported that plaintiff “is grouped in the low-ability [math] group, so there is a lot of

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structure, support, and small group work,” and plaintiff was doing only third grade math in the
fourth grade. (Tr. 264-65). While the ALJ’s decision acknowledges plaintiff received “a good
deal of structure” and was behind a grade level in reading and math (Tr. 27-28), the decision
does not reflect that the ALJ considered the effect of the significant structure and supportive
services provided to plaintiff on her ability to independently initiate, sustain, or complete
activities in assessing the domain of attending and completing tasks. 20 C.F.R. §§
416.926a(e)(2)(i), 416.926a(e)(3)(i). The Social Security regulations require the ALJ to
examine how much extra help a child needs and the effects of structured or supportive settings.
See 20 C.F.R. § 416.926a(a)(l). The pertinent regulation provides:
A structured or supportive setting may minimize signs and symptoms of your
impairment(s) and help to improve your functioning while you are in it, but your
signs, symptoms, and functional limitations may worsen outside this type of
setting. Therefore, we will consider your need for a structured setting and the
degree of limitation in functioning you have or would have outside the structured
setting. Even if you are able to function adequately in the structured or supportive
setting, we must consider how you function in other settings and whether you
would continue to function at an adequate level without the structured or
supportive setting.
20 C.F.R. § 416.924a(b)(5)(iv)(C) (emphasis added). See also Social Security Ruling 09–1p,
Section III (recognizing that child who “needs a person, medication, treatment, device, or
structured, supportive setting to make his functioning possible or to improve the functioning” is
not “as independent as same-age peers who do not have impairments”). There is no indication
from the ALJ’s decision that he considered the effect of plaintiff’s structured environment,
supportive services and counseling, and need for one-on-one assistance to remain on task and
complete assignments in assessing plaintiff’s ability to function independently in the domain of
attending and completing tasks. As the regulations define “marked” and “extreme” limitations in
relation to a child’s ability to “independently initiate, sustain, or complete activities,” 20 C.F.R.
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§§ 416.926a(e)(2)(i), 416.926a(e)(3)(i), it was incumbent upon the ALJ to give some indication
on the record that these critical factors were considered.
The Commissioner also argues that the ALJ’s decision is substantially supported by the
two teacher questionnaires which show only “obvious” or “slight” problems, not “serious”
problems. (Doc. 17 at 7). However, the Commissioner fails to cite to any authority showing that
a “serious” problem in any particular area is equivalent to a “marked” limitation for the domain
ratings. Pursuant to the Program Operation Manual System (POMS) DI 25205.030, adjudicators
are cautioned that teacher questionnaire ratings do not translate directly into domain ratings and
“a teacher’s narrative comments are extremely important, because they provide the adjudicator a
tool for more clearly understanding the numerical rating of an individual’s limitations in
functioning.” Id. The POMS also state that teacher questionnaires can be used to understand
not only the severity of a problem, but they can also provide perspective on the frequency of the
problem:
For example, a child who has “an obvious problem” on an hourly basis with
“paying attention when spoken to directly,” “refocusing to task when necessary,”
“carrying out single-step instructions,” and “changing from one activity to another
without being disruptive,” may demonstrate a greater limitation in Attending and
Completing Tasks than a child who has “a serious problem” on a monthly basis
with “completing work accurately without careless mistakes,” and “working at a
reasonable pace/finishing on time.”
POMS DI 25205.030 (emphasis in the original). A teacher questionnaire “must be considered in
the context of all available information about the individual,” including test scores, medical
evidence and evidence from parents. Id.
Here, the Commissioner appears to equate the teacher rating of “obvious” problems with
a “less than marked” rating for the domain of attending and completing tasks, while disregarding
the frequency of such problems and the teacher narrative comments. For example, in the
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“attending and completing tasks” domain, Ms. Fisk opined that the plaintiff has “obvious”
problems on a daily basis with “focusing long enough to finish assigned activity or task” and
“working without distracting self or others.” (Tr. 240). While Ms. Fisk rated other activities as a
“slight” problem, she noted that these problems occurred on an hourly or daily basis and that
plaintiff “gets easily distracted by her peers which causes her to get off task.” Id. Similarly, Ms.
Rames reported that the plaintiff had an “obvious” problem on a daily basis with sustaining
attention during play/sports activities, focusing long enough to finish assigned activities or tasks,
refocusing to task when necessary, and changing from one activity to another without being
disruptive. (Tr. 266). Ms. Rames also reported that plaintiff had an “obvious” problem on an
hourly basis with working without distracting herself or others. (Tr. 266). She also reported that
plaintiff was “off task a lot, talking, making noises, etc.” (Tr. 266) and that her “off-task
behaviors hold [plaintiff] back on being independent with [her] work.” 2 (Tr. 265). The
frequency of these “obvious” and “slight” problems, when viewed as a whole, indicate greater
limitation of functioning than assessed by the ALJ. When viewed in the context of the record as
a whole, along with the counseling and supportive services plaintiff received over the relevant
time period, these limitations are consistent with and supportive of a finding that plaintiff suffers
a marked limitation in this domain. Cf. McClain v. Barnhart, 299 F. Supp. 2d 309, 315
(S.D.N.Y. 2004) (“[W]hen a child suffers from multiple impairments within a single domain,
each of which, when considered separately, imposes a less-than-marked limitation, the combined
result nonetheless may be marked or extreme.”) (citing Encarnacion v. Barnhart, 191 F. Supp.2d
2

The Commissioner takes issue with plaintiff’s citation to these narrative comments as they were recorded by Ms.
Rames on the page requesting information on the domain of acquiring and using information, a domain plaintiff
does not challenge. Yet, the Social Security regulations recognize that limitations in one functional domain may
impact functioning in another domain: “[A]ny given impairment may have effects in more than one domain;
therefore, we will evaluate the limitations from your impairment(s) in any affected domain(s).” 20 C.F.R. §
416.926a(c). Ms. Rames’ narrative comments are relevant to plaintiff’s functioning in the domain of attending and
completing tasks and should have been considered in assessing the severity of plaintiff’s functioning in this domain.

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463, 474 (S.D.N.Y. 2002) (two less-than-marked limitations in the area of social functioning
may cumulatively contribute to the finding of a marked or extreme limitation in the area of social
functioning)); F.M. v. Astrue, No. 08-cv-4430, 2009 WL 2242134, at *10 (E.D.N.Y. July 27,
2009) (limitations of “slight” problems in four areas and “obvious” problems in six areas,
including learning new material and applying problem-solving skills in class discussions, taken
together, are consistent with and support a finding that child suffers a marked limitation in
domain of acquiring and using information).
Finally, the ALJ reasoned that because plaintiff was able to do well in music and art
classes, she had the “ability to maintain a sufficient amount of attention and concentration to
listen to directions and complete projects.” (Tr. 30). This conclusion ignores the balance of the
record evidence showing plaintiff was repeatedly disciplined for not listening to directions, not
attending to her schoolwork, and not attending to her assignments on an independent basis.
Moreover, this ignores the evidence that despite doing “well in her music and art classes,”
plaintiff was placed on a list to be retained in the fourth grade due to her failure to complete her
schoolwork and she in fact was held back. (Tr. 27, 276, 278). Accordingly, the Court finds that
the ALJ’s decision finding “less than marked limitation” in the domain of “attending and
completing tasks” is not supported by substantial evidence and must be reversed. 3
III. Conclusion
If the Commissioner’s decision 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
3

The Court need not reach plaintiff’s other assignment of error regarding the ALJ’s finding that plaintiff has less
than marked limitation in interacting and relating to others. Because the Court determines plaintiff has marked
limitation in the domain of attending and completing tasks and the ALJ has determined that plaintiff has marked
limitation in the domain of health and physical well-being, a finding of marked limitations in these two domains
qualifies plaintiff as disabled under the Commissioner’s regulations. 20 C.F.R. §§ 416.926a(d).

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“with or without remanding the cause for rehearing.” 42 U.S.C. § 405(g); Melkonyan v.
Sullivan, 501 U.S. 89, 98 (1991). The Court may reverse and direct an award of benefits if “all
essential factual issues have been resolved and the record adequately establishes a plaintiff’s
entitlement to benefits” and “where the proof of disability is overwhelming or where proof of
disability is strong and evidence to the contrary is lacking.” Felisky v. Bowen, 35 F.3d 1027,
1041 (6th Cir. 1994); see also Faucher v. Secretary of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994).
In this case, the proof of disability is strong. The ALJ has already determined that
plaintiff has marked limitation in the domain of health and physical well-being based on the
combination of plaintiff’s total loss of vision in her left eye and asthma impairments. (Tr. 33).
For the reasons set forth above, the Court finds that the evidence showing plaintiff has marked
impairment in the domain of attending and completing tasks is strong and that evidence to the
contrary is lacking. In accordance with 20 C.F.R. § 416.926a(d), plaintiff functionally equals an
impairment in the listings as her impairments result in “marked” limitations in two domains of
functioning. The Court concludes that there are no unresolved legal or factual issues.
Accordingly, the ALJ’s decision is reversed and the case is remanded for an award of benefits.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner is REVERSED and this case is REMANDED for an
award of benefits pursuant to Sentence Four of 42 U.S.C. § 405(g).

Date:

11/16/15

s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge

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