Parker v. Commissioner of Social Security

Filing 25

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Defendant. Objections to R&R due by 1/10/2017. Signed by Magistrate Judge Terence P. Kemp on 12/27/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Angela Parker o.b.o. C.A.P.,
Plaintiff,

:
:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:16-cv-06
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Angela Parker, acting on behalf of C.A.P., a
minor, filed this action seeking review of a decision of the
Commissioner of Social Security denying the minor’s application
for supplemental security income.

That application was filed on

April 19, 2012, and alleged that the child became disabled on
October 19, 2007.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on April 3, 2014.
denied benefits.

In a decision dated May 13, 2014, the ALJ
That became the Commissioner’s final decision

on November 2, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on March 17, 2016.

Plaintiff filed a

statement of specific errors on June 13, 2016, to which the
Commissioner responded on September 20, 2016.

Plaintiff has not

filed a reply brief, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Two witnesses testified at the administrative hearing: the
minor child and Angela Parker, his mother.

Their testimony is

found at pages 274-300 of the administrative record.

The minor child testified first.

He was six years old at

the time of the hearing and in kindergarten.

He said that he had

friends at school and on the bus, but there were things which
happened at school which upset him and that he cried frequently.
He was able to pick the clothes he wore to school but could not
tie his shoes.
of the time.

He said that he paid attention to his mother most

He wore a vest twice a day and was not sure whether

he liked it.
His mother was the next witness.

She said her son was in

full-day kindergarten in regular classes.

He had ADHD but was

not on medication, and sang in class when he got bored.

He was

completing his schoolwork satisfactorily, however.
Plaintiff described her son as very sensitive and said that
he cried a lot in class.

He had similar issues at home.

His

speech was hard to understand and he had undergone a speech
evaluation.

At home, he might have to be told two or three times

to do something before he complied.

Plaintiff helped her son

with his homework and believed that he understood what he was
learning.

He had several friends at school but was having

problems with one child on the bus.
Socially, the child was able to go places in public and
interact well with adults.
starting tee-ball.

He was physically active and was just

Plaintiff said her son could dress himself

except for tying his shoes and that he resisted brushing his
teeth.

He was able to take a bath on his own and to fix himself

snacks like microwave popcorn.
Plaintiff said that when the child was born, his lung
collapsed, and he has been diagnosed with lung and heart
problems.

He would often get bronchitis or pneumonia and

suffered from asthma as well.
medication.

That condition was controlled by

He wore a chest therapy vest which loosened the

phlegm in his lungs.

His weight and height were normal.
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Finally, Plaintiff testified that the child had recently
changed schools.

She believed that the prior teacher was not

helping him to catch up to his classmates.

He was currently on

track to graduate from kindergarten.
III.

The Educational and Medical Records

Plaintiff’s statement of errors does not take issue with the
ALJ’s findings on three issues: the area of moving about and
manipulating objects; the ability to care for himself; and the
child’s health and physical well-being.

The Court will summarize

only those records which deal with the other three areas, which
include acquiring and using information, attending and completing
tasks, and interacting and relating to others.

The pertinent

records are found beginning at page 442 of the administrative
record.

The Court begins with the records which Plaintiff

asserts are the most supportive of her argument.
First, Plaintiff highlights the teacher questionnaire
completed by Jessica Bolin, the child’s kindergarten teacher, on
March 10, 2014.

She made the following observations on the form.

The child read and did math at grade level but his written
language skills were “somewhat below grade level.”

He had an

“obvious problem” in that area but either slight or no problems
in nine other areas, including learning new material and
comprehending oral instructions and written material.

He also

had an obvious problem focusing long enough to finish assigned
activities or tasks and also working without distracting himself
or others, and those problems occurred on a weekly basis.

Ms.

Bolin commented that he “sometimes loses focus” and also that he
“hums a lot, which distracts other children.”

Of thirteen areas

relating to interacting with others, he had only one obvious
problem, and that was taking turns in a conversation.

At the

conclusion of the form, Ms. Bolin said that the child “has shown
lots of improvement in both reading and math” but that he
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sometimes had difficulty sitting still and that he could become
emotional and cry at times.

(Tr. 442-49).

Apart from the testimony at the administrative hearing, the
only other portions of the record which are mentioned under the
first statement of error are a speech and language evaluation
report from Ohio University, which can be found at Tr. 939-46,
and one medical record relating to treatment for ADHD.

The Ohio

University report indicated that the child scored below the tenth
percentile on five subtests involving concepts and following
directions, word structure, recalling sentences, formulating
sentences, and understanding spoken paragraphs.
rank on the fourth of these was only 0.1.

His percentile

Functionally, it

appeared that he would have difficulty following directions,
making word choices, retaining information, generating
semantically and syntactically correct sentences, and listening
to spoken paragraphs of increasing length and complexity.

The

evaluator concluded that the child had an expressive and
receptive language disorder and did not have the prerequisite
skills for learning how to read.

Speech and language therapy

were recommended.
The medical record to which Plaintiff refers is found at Tr.
880-86.

They include a report from Dr. Noceti-Dunphy dated

September 16, 2013, which noted that the child’s current ADHD
medication was not helping him, and a follow-up note from October
4, 2013, showing that a different medication did not help,
either, and that the child’s school performance was getting
worse.

At the second visit, all medication was discontinued so

that the school could establish a baseline of behavior without
medication.
The Commissioner’s memorandum is also focused primarily on
Ms. Bolin’s teacher evaluation and the Ohio University report.
The Commissioner does mention the state agency reviewer’s
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conclusion that the child did not have two marked or one extreme
impairment in the six key areas of functioning but, as Plaintiff
points out, that review (Tr. 320-21) was done prior to either of
the two most significant evaluations.

The ALJ did not rely on

any other portions of the record, so the Court will not summarize
them, and will discuss the significance of the teacher evaluation
and the Ohio University report in its analysis of Plaintiff’s
first statement of error.
IV.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages
248-64 of the administrative record.

The important findings in

that decision are as follows.
The Administrative Law Judge found, first, that the child
was a preschooler on the date of his application and a school-age
child on the date of the hearing.

Second, he found that the

child had not engaged in substantial gainful activity since his
alleged onset date.

Going to the next step of the sequential

evaluation process, the ALJ concluded that the child had severe
impairments including speech and language delays, bronchiectasis,
Kartagener’s syndrome, asthma, and attention deficit
hyperactivity disorder.
A child can obtain benefits only by meeting or equaling the
criteria set out for various conditions in the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1). The ALJ
found that the child’s impairments did not, at any time, meet or
equal the requirements of any section of the Listing of
Impairments, or functionally equal those requirements.

In

reviewing the six domains of functioning that are pertinent to a
child’s benefits application, the ALJ reached these conclusions:
1.

The child had a “less than marked” limitation in

acquiring and using information;
2.

The child had a “less than marked” limitation in

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attending and completing tasks;
3.

The child had a “less than marked” limitation in

interacting and relating with others;
4.

The child had no limitation in moving about and

manipulating objects;
5.

The child had a “less than marked” limitation in the

ability to care for himself; and
6.

The child had a “marked” limitation in health and

physical well-being.
Because a finding of one “extreme” limitation or two
“marked” limitations is needed in order to support an award of
benefits, the ALJ denied the Plaintiff’s claim.
V.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises the
following issues: (1) the ALJ erred in finding that the child’s
limitations in the areas of acquiring and using information,
attending and completing tasks, and interacting and relating with
others were “less than marked”; and (2) the ALJ erred in his
credibility finding.

These issues are evaluated under the

following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

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Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

The ALJ’s Findings

It is helpful to begin with a short summary of how a child’s
application for benefits is evaluated.

The regulations

concerning a child's application for disability benefits set out
a somewhat different framework than the one which governs
applications by adults. As the Court of Appeals has summarized
that procedure,
The legal framework for a childhood disability claim is
a three-step inquiry prescribed in 20 C.F.R. §416.924.
The questions are (1) is the claimant working, (2) does
the claimant have a severe, medically determinable
impairment, and (3) does the impairment meet or equal
the listings? * * * An impairment can equal the
listings medically or functionally * * *. The criteria
for functional equivalence to a listing are set out in
§416.926a. That regulation divides function up into 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.
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§416.926a(b) (1). To establish a functional impairment
equal to the listings, the claimant has to show an
extreme limitation in one domain or a marked impairment
in more than one. §416.926a(d). Lengthy definitions for
marked and extreme are set out in §416.926a(e). Each
includes instructions on how to use test results:
“Marked” limitation also means a limitation that is
“more than moderate” but “less than extreme.” It is the
equivalent of the functioning we would expect to find
on standardized testing with scores that are at least
two, but less than three, standard deviations below the
mean.
§416.926a (e)(2)(i).
“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.
§416. 926a (e)(3)(i).
Kelly v. Comm’r of Social Security, 314 Fed. Appx. 827, 832 (6th
Cir. Feb. 2, 2009).
As noted, Plaintiff takes no issue with the ALJ’s findings
as to limitations in domains (4), (5), and (6).

However, she

argues that the ALJ ignored or misinterpreted the evidence as to
the first three domains and that he simply emphasized those
portions of the record which supported his conclusions and
disregarded the contrary evidence.

The Commissioner contends

that the record supports the ALJ’s determination on each issue.
The ALJ discussed each domain separately.

On the issue of

acquiring and using information, he noted that the Ohio
University evaluation pointed out delays in expressive and
receptive language skills and that the child had not yet acquired
the prerequisites for learning to read.

He also acknowledged Ms.

Bolin’s comment that the child had an obvious problem with

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written expression.

However, he relied on Plaintiff’s testimony

that the child was doing well in kindergarten, could participate
in class, follow directions, and understand and complete his
homework, and Ms. Bolin’s observations that he had only slight
problems in reading and math comprehension, learning new
material, recalling and applying previously learned material, and
using his problem solving skills during class discussions, as
evidence that the limitations in this area were no more than
moderate.

(Tr. 257).

There is no indication in this discussion

that the ALJ ignored other findings which suggested a more severe
limitation, and he accurately recounted the evidence upon which
he relied.
Where evidence in the record is susceptible of different
reasonable interpretations, it is not the Court's job, when
performing a “substantial evidence” review, to substitute its
judgment for that of the ALJ.

An ALJ has a “zone of choice” when

interpreting the record, and so long as the ALJ makes a choice
which finds reasonable support in that record, that choice is
insulated from judicial reversal. See generally Ritterbeck v.
Comm'r of Social Security, 2012 WL 6594828 (S.D. Ohio Dec. 18,
2012), adopted and affirmed 2013 WL 796069 (S.D. Ohio March 4,
2013).

That is what happened here.

The fact that the child’s

teacher, who had the opportunity to observe him in class each day
for the better part of a year, said that he had only a single
obvious problem in the area of acquiring and using information,
and believed his other skills in this area to be adequate, is
evidence upon which a reasonable person could rely.

The ALJ did

not commit reversible error by doing so.
Much the same analysis applies to the ALJ’s findings in the
other two domains at issue.

Again, Plaintiff emphasizes evidence

which could support a contrary finding, such as the fact that the
child’s ADHD interfered to some extent with his ability to attend
and complete tasks, and, as his teacher noted, he sometimes lost
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focus and distracted other children.

Again, however, the

entirety of Ms. Bolin’s review of the child’s abilities in this
domain showed that he had either a slight problem or no problem
in many areas including paying attention, sustaining attention,
refocusing when necessary, carrying out instructions (even multistep instructions), completing assignments accurately, and
working at a reasonable pace.

Any obvious issues were not

observed daily but rather weekly, and she explained that he only
“sometimes” lost focus or distracted other children with his
humming (and not through any disruptive behavior).

Plaintiff

also testified that the child had been able to do well in school
without medication.

The ALJ was permitted to, and did, rely on

this information in making his finding (Tr. 258), and his
decision was within the “zone of choice” permitted under the
“substantial evidence” test.
In the last of the three domains at issue (interacting and
relating with others), the ALJ noted that the child had some
issues with making himself understood (Ms. Bolin said she could
understand him one-half to two-thirds of the time) and that he
sometimes got upset and cried in class when corrected.

However,

the ALJ pointed out that the child himself testified to having
friends and that Plaintiff said he interacted well with adults,
had friends at school, and got along reasonably well with his
older sister.

Again, Ms. Bolin rated his abilities in this area

to be generally good and she said that there had been no need to
try to correct his behavior with respect to others.

His only

obvious problem was taking turns in class discussions.

The ALJ

was also entitled to rely on these assessments, which are borne
out by the record, in concluding (Tr. 259-60) that any
limitations in this area were “less than marked.”

Overall, the

ALJ fairly discussed the record and reached conclusions which a
reasonable person could have reached, and that is sufficient to
preclude reversal.
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B.

The Credibility Determination

The other issue raised in Plaintiff’s statement of errors
relates to the ALJ’s evaluation of the credibility of the
testimony given at the hearing.

She faults the ALJ for making a

boilerplate statement to the effect that “the statements
concerning the intensity, persistence and limiting effects of
[the child’s] symptoms are not entirely credible for the reasons
explained below,” Tr. 255, and then never explaining why the
testimony was not fully credible or doing the analysis required
by Social Security Ruling 96-7p or 20 C.F.R. §416.929(c)(3).
The short answer to this argument is that it does not appear
the ALJ actually discounted any portion of the testimony given.
Rather, he relied extensively on that testimony in his evaluation
of the child’s functioning, appearing to credit it completely.
Further, he said, immediately after the sentence quoted above,
that “[a]lthough candid and honest, the testimony provided by the
claimant and his mother did not equate with a finding of
disabling symptoms that cause significant limitations in his age
appropriate functioning.”

(Tr. 255).

Since the ALJ did not

actually discredit any of the testimony of either Plaintiff or
the child, but accepted it as accurate and relied on it in
determining that the legal standards for disability had not been
met, the ALJ had no obligation to review the factors set out
either in SSR 96-7p or §416.929(c)(3).

As stated in SSR 96-7p

(now superseded), the ALJ’s decision “must be sufficiently
specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual's
statements and the reasons for that weight.”

It is clear to the

Court that the ALJ gave the testimony significant weight; he just
did not conclude that it supported a finding of disability.
Again, there is no error here which would justify reversal and
remand.
VI.

Recommended Decision
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Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Defendant.
VII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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