Estep v. Commisioner of Social Security

Filing 19

ORDER declining to adopt 14 Report and Recommendation and remanding for further proceedings. Signed by Judge Michael R. Barrett on 9/29/17. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Sasha Estep,
Plaintiff,
v.

Case No. 1:16cv925

Commissioner of Social Security

Judge Michael R. Barrett

Defendant.

OPINION & ORDER
This matter is before the Court upon the Magistrate Judge’s August 16, 2017,
Report and Recommendation (“R&R”) recommending that the decision of the
Commissioner be affirmed and this matter be closed on the docket of the Court. (Doc.
14).
When objections are received to a magistrate judge’s report and recommendation
on a dispositive matter, the district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1). Notice was given to the parties under
28 U.S.C. ' 636(b)(1)(c). Plaintiff filed objections to the Magistrate Judge=s R&R. (Doc.
17). The Commissioner filed a Response to Plaintiff’s objections. (Doc. 18).
The Magistrate Judge completed a comprehensive review of the record and the
same will not be repeated here.

Plaintiff maintains that the Magistrate Judge’s R&R was in error for the following
reasons: (1) the ALJ erred at Step 3 by finding Plaintiff did not meet Listing 112.06, 20
C.F.R. Pt. 404, Subpt. P, App. 1; and (2) the ALJ erred in finding Plaintiff did not
functionally equal the severity of one of the listed impairments. For the most part,
Plaintiff’s objections repeat the arguments made in his Statement of Specific Errors.
I.

ANALYSIS
A.

Listing 112.06

In order to be found disabled based upon a listed impairment, the claimant must
exhibit all the elements of the listing. Elam ex rel. Golay v. Comm'r of Soc. Sec., 348
F.3d 124, 125 (6th Cir. 2003) (citing 20 C.F.R. § 416.924(a); Hale v. Sec'y of Health &
Human Servs., 816 F.2d 1078, 1083 (6th Cir.1987)).
Plaintiff explains that he meets at least three of the requirements of paragraph A of
Listing 112.06:
(A) medically documented findings of at least one of the following:
(1) excessive anxiety manifested when the child is separated, or separation
is threatened, from a parent or parent surrogate; or
...
(3) Persistent unrealistic or excessive anxiety or worry ..., accompanied by
motor tension, autonomic hyperactivity, or vigilance and scanning; or
(4) A persistent irrational fear of a specific object, activity, or situation which
results in a compelling desire to avoid the dreaded object, activity, or
situation; . . .
The Magistrate Judge explained that the ALJ’s finding that Plaintiff did not meet
the requirements for paragraph A was substantially supported.
With regard to section (A)(1), Plaintiff argues the term “excessive anxiety” is not
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defined in the Listing, but logic dictates that “excessive” refers to the level of anxiety rather
than the frequency of anxiety. However, as the Magistrate Judge explained, the record
only contained one instance of anxiety manifested when CW was separated from his
mother for testing. The Magistrate Judge also noted that CW attended school daily.
Even if this Court were to adopt Plaintiff’s argument that “excessive” refers to the level of
anxiety, versus the frequency of anxiety, Plaintiff does not point to support in the record
for a finding that CW’s level of anxiety was excessive when the he was separated, or
separation is threatened, from a parent.
With regard to section (A)(3), Plaintiff argues that the Listing does not require the
presence of unrealistic anxiety and worry, it merely states the child must either
demonstrate “persistent unrealistic or excessive anxiety and worry.” The Magistrate
Judge acknowledged that there were instances where CW exhibited anxiety and worry,
but explained that the required physical traits such as motor tension, autonomic
hyperactivity, vigilance and scanning, were not noted on a persistence or reoccurring
basis.
With regard to section (A)(4) of the listing, Plaintiff argues that the listing does not
define the term irrational and does not require that a physician refer to the worry as
irrational. However, as the Magistrate Judge noted, the record shows that CW was able
to stay in the doctor’s office for shots and attend school.
Moreover, the Magistrate Judge concluded that even if Plaintiff could establish that
his anxiety met the criteria of paragraph A, Plaintiff has not met the requirements of the
paragraph B criteria.
As the Magistrate Judge explained, the claimant’s anxiety must result in at least
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two of the age-specific findings listed in § 112.02(B)(2): marked impairment in
cognitive/communicative function, marked impairment in social functioning, marked
impairment in personal functioning, and marked difficulties in maintaining concentration,
persistence, or pace.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.02(B)(2).

The

Magistrate Judge noted that the ALJ found Plaintiff had “marked” level of impairment in
social functioning. Plaintiff argues that he also has a marked level of impairment in the
area of cognitive/communicative function.
Plaintiff points out that while the Magistrate Judge found that Plaintiff’s interim
report in October 2014 showed he was not failing language arts, the report actually shows
that he was failing language arts because a score of 68 is an “F.” (Tr. 631). Plaintiff
points out that the grade report for the second quarter in November 2014, showed
worsening in his grades overall, with an even lower score of 58 in language arts. (Tr.
264). Plaintiff explains these scores were received while under the special education
curriculum. (Tr. 633).
Plaintiff is correct that the scale on his report card explains that a “D” grade is
70-74 and means “in danger of failing,” but below 70 is an “F.” (Tr. 631). Therefore,
Plaintiff was indeed failing language arts. However, as the Magistrate Judge also noted,
Plaintiff’s other grades in October of 2014 were above 80. (Tr. 631). On Plaintiff’s
report card from November of 2014, Plaintiff did have a score of 58 in language arts, but
again, his grades in other subjects were passing. (Tr. 264). This failing grade was
noted by the ALJ. (Tr. 19).
However, as the Magistrate Judge noted, the regulations provide that “[a] primary
criterion for limited cognitive function is a valid verbal, performance, or full scale IQ of 70
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or less.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(C)(2)(a). Therefore, Plaintiff’s
intelligence tests—which ranged from 77 to 88—do not meet the primary criterion for
limited cognitive function listed in 112.00(C)(2)(a). 1
“Even if this Court might have reached a contrary conclusion of fact, the
Commissioner's decision must be affirmed so long as it is supported by substantial
evidence.” Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854-55 (6th Cir. 2010) (citing
Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (“The substantial evidence standard
presupposes that there is a ‘zone of choice’ within which the Secretary may proceed
without interference from the courts.”). Therefore, the Magistrate Judge did not err in
concluding that the ALJ reasonably found that the medical evidence did not support a
finding that Plaintiff’s anxiety met the requirements of Listing 112.06.
B.

Functional equivalence

To find that a child's impairments are the functional equivalent of a Listing, the
regulations require that the impairment has resulted in “marked” limitations in two
domains or an “extreme” limitation in one domain, of the six listed domains. 20 C.F.R. §
416.926a(a) & (b)(1). 2

Plaintiff explains that he has shown an impairment that is

1

The Court notes that the examiner who gave the test which resulted in the score of 77
noted: “Due to significant scatter among [CW’s] Nonverbal IQ (NVIQ), Verbal IQ (VIQ), and factor
scores that comprise the Full Scale IQ (FSIQ), it is not an accurate description of (CW’s)
functioning. Rather, [CW’s] NVIQ, VIQ, and individual factor scores provide a more accurate
depiction of his functioning.” These scores were 84, 72, and ranging between 71 and 97. (Tr.
730).
2

In order to establish that an impairment or combination of impairments is of listing-level
severity and therefore functionally equivalent to the listings, the claimant must show that his or her
impairment or combination of impairments has resulted in an extreme limitation in one area of
functioning or marked limitations in two areas. 20 C.F.R. § 416.926a(a). The regulations
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functionally equivalent to a Listing because the Commissioner already found him
“marked” in the domain of “interacting and relating with others” due to his anxiety, and
there is evidence in the record that he has a “marked” limitation in the domains of
“acquiring and using information,” and “attending and completing tasks.”
In finding that CW has “less than marked limitation in acquiring and using
information, the ALJ stated:
The claimant has a history of ADHD and anxiety, but is doing well on Zoloft
(14P/ 19). His medications have been reasonably effective in controlling
the claimant's ADHD to the extent that he has been able to make adequate
academic progress in school. Though he is just passing language arts, his
grades have improved in 2014-2015, and he is in regular classes at school
(12E/2, 15P/2). The claimant's mother testified that he may get a math
tutor as well. A less than marked level of limitation in acquiring and using
information suggested by the DDS reviewing psychologist and physicians
of record is appropriate (2A, 4A).
(Tr. 22).

Plaintiff has cast doubt on whether the ALJ’s conclusion is based upon

substantial evidence.
First, Plaintiff disputes the ALJ’s conclusion that he is “doing well” on Zoloft.
Medical records show that in February of 2014, CW was weaned off Zoloft due to mood
swings. (Tr. 621-22). Zoloft was resumed in July of 2014. (Tr. 615-16). In August of
2014, CW’s pediatrician noted that his mother called to report that he was doing well on

identify six “broad areas of functioning intended to capture all of what a child can or cannot do.”
20 C.F.R. § 416.926a(b)(1). The six areas, referred to as “domains,” are as follows:
(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 oneself; and
(6) Health and physical well-being.
Id.
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Zoloft.

(Tr. 628).

This is the record cited by the ALJ in her decision.

(Tr. 19).

However, other records show that one month later, in September of 2014, CW’s mother
called to report to the pediatrician that Zoloft is making CW sleepy during school. (Tr.
627). A month later, during a visit at Children’s Hospital, records show that CW was no
longer taking Zoloft and that Zoloft made him irritable. (Tr. 688). During the hearing on
December 11, 2014, CW’s mother testified that on November 26th CW was started on
Celexa. (Tr. 65). Records from a visit to Children’s Hospital after the hearing show that
CW was taking Celexa. (Tr. 708). There is no indication that CW was taking Zoloft at
that time. Additional records from Children’s Hospital show that when CW was present
to be evaluated on January 27, 2015 and February 23, 2015, he had previously taken
Zoloft, but the medication made him irritable, and was currently taking Celexa. (Tr. 736,
752).
Next, Plaintiff disputes that he is making adequate academic progress. The ALJ
discussed the two grade reports in the record:
The claimant's interim report for third grade in November 2014 showed that
he was failing language arts, but had a 100 in science (12E/2). The
claimant's third grade teacher questionnaire noted that he had no
independence with schoolwork and had very serious problems in acquiring
and using information (14E/3). His teacher noted that he had high anxiety
regarding loud noises, but noted no problems respecting adults, relating
experiences, and taking care of personal hygiene (14E/5, 7).
Subsequent evidence documents similar findings. The claimant's interim
report for grades 3-4 showed that he was barely passing language arts, but
his grade had improved to 68 (15F/2). Other grades were 80 or higher
(15F/2).
(Tr. 19). The grade report identified by the ALJ as “subsequent evidence” was actually
dated October of 2014 and shows grades for the first grading period. (Tr. 631). The

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report in November of 2014 shows grades for the second grading period. (Tr. 264).
Therefore, instead of showing that CW’s grade had improved to 68, the reports show that
the language arts grade fell to a 58. As explained above, both of these grades are
considered failing.
Third, Plaintiff explains that he was not in regular classes in school, and instead,
his IEP shows that he received instruction at his level, which was two to three grade levels
behind his actual grade. The Court notes that CW’s IEP for the 2014/15 school year
shows that while CW was in the general education classroom, he was being pulled out of
class daily to work with the intervention specialist on math and reading, meeting weekly
with the speech language pathologist, and meeting twice a month with the occupational
therapist. (Tr. 268, 647-648). The IEP also calls for a number of accommodations,
including an accommodation in language arts of having the “opportunity to correct
test/quizzes for a higher grade.” (Tr. 648). While the Magistrate Judge discussed CW’s
IEP for 2014/15 (Doc. 14, PAGEID #854), the ALJ did not.
This aspect of the ALJ’s analysis of the domain of “acquiring and using
information” was inadequate. Social Security Ruling 09–3p sets forth agency policy on
the evaluation of the domain of “acquiring and using information.” It explains:
Because much of a preschool or school-age child's learning takes place in a
school setting, preschool and school records are often a significant source
of information about limitations in the domain of “Acquiring and using
information.” Poor grades or inconsistent academic performance are
among the more obvious indicators of a limitation in this domain provided
they result from a medically determinable mental or physical impairment(s).
Other indications in school records that a mental or physical impairment(s)
may be interfering with a child's ability to acquire and use information
include, but are not limited to:
• Special education services, such as assignment of a personal aide who
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helps the child with classroom activities in a regular classroom, remedial or
compensatory teaching methods for academic subjects, or placement in a
self-contained classroom.
• Related services to help the child benefit from special education, such as
occupational, physical, or speech/language therapy, or psychological and
counseling services.
• Other accommodations made for the child's impairment(s), both inside
and outside the classroom, such as front-row seating in the classroom,
more time to take tests, having tests read to the student, or after-school
tutoring.
The kind, level, and frequency of special education, related services, or
other accommodations a child receives can provide helpful information
about the severity of the child's impairment(s).
SSR 09-3p, 2009 WL 396025. While there is no requirement that the ALJ discuss every
piece of evidence in the administrative record, Kornecky v. Comm'r of Soc. Sec., 167 F.
App'x 496, 508 (6th Cir. 2006), Social Security Ruling 09–3p indicates that the evidence
of the “kind, level, and frequency of special education, related services, or other
accommodations” that CW received warranted discussion by the ALJ.
Finally, Plaintiff explains that the ALJ relied on the state agency physicians who
found a less than marked limitation, but points out that even the ALJ could not agree with
the whole opinion as she found a “marked” limitation in interacting and relating with
others, contrary to the state agency physicians who found no limitations. (Tr. 112).
Here, the ALJ stated: “Great weight is given to the State agency medical
consultants' assessments because they are consistent with the residual functional
capacity determined in this decision, except that the undersigned found the claimant to be
marked in interacting and relating to others (2A, 4A).” (Tr. 20). While the Magistrate
Judge discussed these opinions and suggested the why the entirety of the state agency

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physicians’ opinions were not adopted (Doc. 14, PAGEID #855), the ALJ’s discussion of
these opinions was limited to the language quoted above. The failure to provide any
justification for the weight given to the opinions of the state agency physicians prohibits
this Court from determining whether substantial evidence exists to support the finding of
the ALJ. See Lowery v. Comm’r of Soc. Sec., 55 Fed. Appx. 333, 339, WL 236419, 5
(6th Cir. 2003) (quoting Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (An ALJ “must
articulate, at some minimum level, his analysis of the evidence to allow the appellate court
to trace the path of his reasoning”)).
Moreover, the ALJ’s reference to “the residual functional capacity determined in
this decision” is puzzling. In children, the analytical focus is on functioning as opposed to
the “Residual Functional Capacity” analysis undertaken for adult disability claims.
Woodhouse ex rel. Taylor v. Astrue, 696 F. Supp. 2d 521, 527 (D. Md. 2010) (citing 20
C.F.R. § 416.929(d)(4)); see also Hayes ex rel. B.M.H. v. Colvin, No. 14-754, 2015 WL
1405456, at *3 (W.D. Pa. Mar. 26, 2015) (explaining that RFC assessments “have no
bearing on this child SSI case involving a [child] who has never worked.”).
Similarly, in finding that CW has less than marked limitation in attending and
completing tasks, the ALJ explained:
The claimant does have ADHD and anxiety; however, he is doing well on
Zoloft (14F/19). His mother and doctor noted problems focusing, but
records show that his grades at school were improving, and his doctor
noted that when he was medicated he had no impulsivity or emotional
lability (12F/2- 3, 15F/2). Additionally, the claimant maintains the focus to
play blocks at home, play on a computer and play video games, which

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justify a less than marked limitation in attending and completing tasks. 3
(Tr. 23). As discussed above, there is not substantial evidence in the record to support
the ALJ’s statement that Plaintiff is doing well on Zoloft or that his grades at school were
improving. In addition, Social Security Ruling 09-4P indicates that reliance on the ability
to focus on playing video games may be misplaced:
Some children with impairments can attend to some tasks, but not to all
tasks in all settings. Such children may exhibit “hyperfocus,” an intense
focus on things that interest them, such as video games, but be limited in
their ability to focus on other tasks. These kinds of limitations in the domain
of “Attending and completing tasks” are common in children with AD/HD
and autistic spectrum disorders (ASD). For example, some children with
ASD may be distracted by, or become fixated on, everyday sounds (such as
the hum of an air conditioner) that children without impairments can easily
ignore. Children with autism may become fixated on parts of an object
(such as the wheels on a toy truck) rather than on the more obvious and
primary use of the object. Children with Asperger's disorder (one type of
ASD), may hyperfocus on a single area of interest and have difficulty
discussing or paying attention to any other subject. These children may
appear to function well, or even better than other children, in the area of
hyperfocus, but may be very limited in some other tasks and settings.
SSR 09-4P, 2009 WL 396033. For this reason, in addition to the reasons discussed
above, the Court finds that the Court cannot determine whether substantial evidence
exists to support the findings of the ALJ.
Under Sentence Four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner's decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99, 111 S.Ct. 2157, 115 L.Ed.2d 78
(1991). Remand is appropriate if the Commissioner applied an erroneous principle of

3

As a minor point of clarification, at the hearing, CW testified that when he came home
from school, he liked to play “Roblox,” which is an online video game. (Tr. 52). CW did not
testify that he liked to play with “blocks,” and corrected the ALJ when questioned if he was saying
“blocks.”
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law, failed to consider certain evidence, failed to consider the combined effect of
impairments, or failed to make a credibility finding. Faucher v. Sec'y of Health & Human
Servs., 17 F.3d 171, 176 (6th Cir. 1994).

The Court concludes that a remand for

rehearing is warranted in this case.
II.

CONCLUSION
Based on the foregoing, the Court hereby DECLINES to ADOPT the Magistrate

Judge=s August 16, 2017 R&R. (Doc. 14). This matter shall be REMANDED under
Sentence Four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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