Curtis v. Social Security Administration

Filing 21

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ. (sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SHARON CURTIS on behalf of
C.D.C., a minor,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-14-200-KEW

OPINION AND ORDER

Plaintiff Sharon Curtis (“Plaintiff”), on behalf of the minor
child, C.D.C. (“Claimant”) requests judicial review of the decision
of the Commissioner of the Social Security Administration (the
“Commissioner”)

denying

Claimant’s

application

benefits under the Social Security Act.

for

disability

Plaintiff appeals the

decision of the Administrative Law Judge (“ALJ”) and asserts that
the Commissioner erred because the ALJ incorrectly
Claimant was not disabled.

determined that

For the reasons discussed below, it is

the finding of this Court that the Commissioner’s decision should
be and is REVERSED and REMANDED for further proceedings.
Social Security Law and Standard of Review
Disability for persons under the age of 18 is defined by the
Social Security Act as the “a medically determinable physical or
mental impairment or combination of impairments that causes marked

and severe functional limitations, and that can be expected to cause
death or that has lasted or can be expected to last for a continuous
period of not less than 12 months.”

20 C.F.R. § 416.906.

Social

Security regulations implement a three-step sequential process to
evaluate a claim for Child’s Supplemental Security Income Benefits
under Title XVI of the Social Security Act.

See, 20 C.F.R. §

416.924.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

standards were applied.

and,

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.

It means such relevant

evidence as a reasonable mind might accept as adequate to support
a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The

court

may

not

re-weigh

the

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evidence

nor

substitute

its

At step one, a child will not be deemed disabled if he is working
and such work constitutes substantial gainful activity. The regulations
require the claimant to establish that he is not engaged in substantial
gainful activity. At step two, a child will not be found disabled if he does
not suffer from a medically determinable impairment that is severe. At step
three, a child’s impairment must meet a listing and must meet the duration
requirement of 12 months. 20 C.F.R. § 416.924(b), (c) and (d).

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discretion for that of the agency.

Casias v. Secretary of Health

& Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

Nevertheless,

the court must review the record as a whole, and the “substantiality
of the evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant’s Background
Claimant was born on May 5, 2001 and was 11 years old on the
date the ALJ issued his decision.

Claimant is alleged to have

become disabled on December 1, 2004 due to attention deficit
disorder with hyperactivity (“ADHD”), oppositional defiant disorder,
depression, and insomnia.
Procedural History
On July 26, 2011, Claimant, through Plaintiff, protectively
applied for Supplemental Security Income under Title XVI of the
Social Security Act (42 U.S.C. § 1381 et

seq.).

Claimant’s

application for benefits was denied in its entirety initially and
on reconsideration.

On December 18, 2012, Plaintiff appeared at an

administrative hearing in Tulsa, Oklahoma before Administrative Law
Judge Deborah L. Rose (the “ALJ”).
decision on January 25, 2013.

The ALJ issued an unfavorable

On March 24, 2014, the Appeals

Council denied review of the ALJ’s findings.

Thus, the decision of

the ALJ represents the Commissioner’s final decision for purposes

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of further appeal.

20 C.F.R. §§ 404.981, 416.1481.

Decision of the Administrative Law Judge
The ALJ made her decision at step three of the sequential
evaluation.

She determined that Claimant’s condition did not meet

a listing and he had not been under a disability during the relevant
period.
Review
Plaintiff asserts the ALJ committed error in (1) failing to
perform a proper credibility determination; (2) failing to find
Claimant’s condition met or equaled a listed impairment; and (3)
failing to consider all of the evidence of record in evaluating
whether Claimant’s impairments functionally equal a listing.
Credibility Determination
In her decision, the ALJ determined Claimant suffered from the
severe impairment of ADHD.

(Tr. 23).

The ALJ also determined

Claimant did not meet a listing or the equivalency of a listing,
singly or in combination of his impairments.

Id.

The ALJ analyzed

the six domains of functioning in light of Claimant’s severe
impairment.

He concluded Claimant had less than marked limitation

in the areas of acquiring and using information, attending and
completing tasks, interacting and relating to others, and caring for
yourself.

He found no limitations in the areas of moving about and

manipulating objects and health and physical well-being.

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(Tr. 25-

29).
Plaintiff contends the ALJ engaged in an erroneous credibility
analysis.

The ALJ recited testimony from the hearing offered by

Claimant, Plaintiff, and a questionnaire from Claimant’s teacher.
(Tr. 24-27, 29).

The ALJ then stated the oft-used phrase

After considering the evidence of record, I find that the
claimant’s medically determinable impairment could
reasonably be expected to produce the alleged symptoms;
however, the statements concerning the intensity,
persistence and limiting effects of these symptoms are
not entirely credible for the reasons explained below.
(Tr. 24).
The problem with the ALJ’s credibility analysis lies in the
fact that she does not differentiate between the testimony from the
three sources such that this Court may determine which testimony was
found not credible and which was not.

Such unsupported discounting

of credibility without specific reference to the testimony and the
evidence contradicting it is wholly unhelpful to the analysis and
constitutes reversible error. Knight v. Colvin, 756 F.3d 1171, 1176
(10th Cir. 2014).

Moreover, the promised “reasons explained below”

never materialized in the following paragraphs of the decision.
It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).

Kepler v. Chater, 68

“Credibility determinations are

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peculiarly in the province of the finder of fact” and, as such, will
not be disturbed when supported by substantial evidence.

Id.

Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or other
symptoms; (3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other symptoms; (5) treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; (6)
any measures other than treatment the individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every hour, or sleeping on a
board); and (7) any other factors concerning the individual's
functional
symptoms.

limitations

and

restrictions

due

to

pain

or

other

Soc. Sec. R. 96-7p; 1996 WL 374186, 3.

An ALJ cannot satisfy his obligation to gauge a claimant’s
credibility by merely making conclusory findings and must give
reasons for the determination based upon specific evidence. Kepler,
68 F.3d at 391.

However, it must also be noted that the ALJ is not

required to engage in a “formalistic factor-by-factor recitation of
the evidence.”

Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.

2000).

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On remand, the ALJ shall specifically analyze the testimony of
each

testifying

party

and

perform

the

required

credibility

evaluation. Should the ALJ maintain that testimony is not credible,
she shall affirmatively link the evidence supporting the finding to
the particular testimony offered.
Consideration of a Listing
Claimant contends the ALJ did not consider Listing § 112.11 on
ADHD after finding Claimant has a severe impairment for this
condition.

Again, the ALJ utilized boilerplate language to reject

the contention that Claimant’s condition met or equaled a listing
without accompanying the language with support.

(Tr. 23).

Listing

§ 112.11 requires satisfaction of the paragraph A criteria with
medically

documented

findings

on

the

three

areas

of

marked

inattention, marked impulsiveness, and marked hyperactivity.

20

C.F.R. Part 404, Subpt. P, App. 1 § 112.11.
Once the paragraph A criteria have been show, the paragraph B
criteria requires a showing of marked impairment of age-appropriate
cognitive/communicative

function,

marked

impairment

in

age-

appropriate social functioning, marked impairment in age-appropriate
personal

functioning,

and

marked

concentration, persistence, or pace.
App. 1 § 112.02B2.

difficulties

in

maintaining

20 C.F.R. Part 404, Subpt. P,

On remand, the ALJ shall specifically consider

this listing since it represents the single severe impairment which

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she found.
Consideration of the Totality of the Medical Evidence
Claimant also asserts the ALJ failed to consider all evidence
in

determining

that

equivalence domains.

he

did

not

satisfy

the

six

functional

To functionally equal a listing, a claimant’s

impairment or combination of impairments must result in “marked”
limitations in at least two of the six domains of functioning, or
in “extreme” limitation in at least one domain.

20 C.F.R. §§

416.926a(a), (g)-(l).
While Claimant finds error in the ALJ’s analysis of all of the
six domain areas, this Court takes particular note of two domains
which are of concern. The domain of Acquiring and Using Information
involves the ability “to learn to read, write, do arithmetic, and
understand and use new information.” 20 C.F.R. § 416.926a(g)(1)(i).
Claimant has demonstrated problems with his speech which includes
“delayed” speech which has required speech therapy.
220, 226, 231, 238, 242).

(Tr. 144, 153,

Relevant to this analysis, this domain

includes the ability “to use language to think about the world and
to

understand

others

and

express

yourself;

e.g.,

to

follow

directions, ask for information, or explain something.” Id. §
416.926a(g)(1)(ii).
of

Claimant’s

On remand, the ALJ shall consider the effect

apparent

speech

impediment

Acquiring and Using Information.

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upon

the

domain

of

Claimant also has demonstrated problems in Interacting and
Relating to Others.

Claimant has few friends, threatened to harm

a child at school, interrupts others, angers, gets into trouble with
his teachers, and particularly does not get along with adults. (Tr.
148, 232-33, 238, 241). Claimant’s speech problems may bear on this
domain as well.

The ALJ shall reassess whether Claimant has a

marked limitation in this domain. This Court’s focus upon these two
domains should not preclude the ALJ from re-examining his findings
on the other four functional domains.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is

REVERSED and the

matter REMANDED for further proceedings consistent with this Opinion
and Order.
DATED this 29th day of September, 2015.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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