Shelby v. Social Security Administration

Filing 24

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
KATHRYN SHELBY on behalf of
B.A.W., a minor,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-15-174-KEW

OPINION AND ORDER

Plaintiff Kathryn Shelby (“Plaintiff”), on behalf of the minor
child, B.A.W. (“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 determined that
Claimant was not disabled.

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.”
416.906.

Social

Security

regulations

implement

20 C.F.R. §
a

three-step

sequential process to evaluate a claim for Child’s Supplemental
Security Income Benefits under Title XVI of the Social Security
See, 20 C.F.R. § 416.924.1

Act.

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

first, whether the decision was supported by

evidence;

standards were applied.
(10th

Cir.

This Court’s review is limited to

and,

second,

whether

the

correct

legal

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

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 evidence nor substitute

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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).

2

its discretion for that of the agency.

Casias v. Secretary of

Health

800

&

Human

Servs.,

933

F.2d

799,

(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 January 3, 2004 and was 11 years old on
the date the ALJ issued his decision.

Claimant is alleged to have

become disabled on September 1, 2011 due to attention deficit
disorder with hyperactivity (“ADHD”) and borderline intellectual
functioning.
Procedural History
On July 26, 2012, 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 September 23, 2013, Plaintiff appeared at

an administrative hearing in Tulsa, Oklahoma before Administrative
Law Judge Luke Liter (the “ALJ”).
decision on December 30, 2015.

The ALJ issued an unfavorable
On March 6, 2015, the Appeals

3

Council denied review of the ALJ’s findings. Thus, the decision of
the ALJ represents the Commissioner’s final decision for purposes
of further appeal.

20 C.F.R. §§ 404.981, 416.1481.

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

He determined that Claimant’s condition did not meet

a listing and she had not been under a disability during the
relevant period.
Review
Plaintiff asserts the ALJ committed error in (1) failing to
find Claimant’s condition met or equaled a listing; (2) failing to
find Claimant met the functional equivalence of a listing; and (3)
failing to perform a proper credibility determination.
Consideration of a Listing
In his decision, the ALJ determined Claimant suffered from the
severe impairments of ADHD and borderline intellectual functioning.
(Tr. 469). 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 impairments.

He concluded Claimant

had less than marked limitation in the areas of acquiring and using
information, attending and completing tasks, and interacting and

4

relating

to

significant

others.,

and

limitation

in

caring
the

for
areas

yourself.
of

He

moving

found
about

no
and

manipulating objects, caring for yourself, and health and physical
well-being.

(Tr. 470-81).

Plaintiff contends the ALJ did not consider Listing § 112.11
on ADHD after finding Claimant has a severe impairment for this
condition.

The ALJ’s analysis of Claimant’s qualification for all

unspecified listings consisted of boilerplate language to reject
the contention that Claimant’s condition met or equaled a listing
without accompanying the language with support.

(Tr. 469-70).

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 ageappropriate

personal

functioning,

and

marked

maintaining concentration, persistence, or pace.

difficulties

in

20 C.F.R. Part

404, Subpt. P, App. 1 § 112.02B2.
In the briefing, Defendant attempts to minimize the omission
of the analysis for this Listing.
5

She insists that the evidence

does not support marked deficiencies in the functional areas
required for examination under Listing § 112.11 and attempts to
massage the findings under the six domains of listing equivalency
to match the different required findings under the specific Listing
for ADHD.

None of this reasoning was contained in the ALJ’s

decision and cannot be considered for the first time by this Court
on appeal.

On remand, the ALJ shall specifically consider this

listing.
Consideration of Functional Equivalency
Plaintiff also asserts the ALJ failed to consider all evidence
in determining that Claimant did not satisfy the six functional
equivalence domains. 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).
Plaintiff takes issue with the ALJ’s analysis of two of the
six domains.

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).
While Claimant demonstrated significant problems with reading
comprehension in the second grade (Tr. 297), her fourth grade
teacher found Claimant only had a slight problem with reading.
6

(Tr. 228).
problem”

Her reading teacher found Claimant had an “obvious
with

reading

and

comprehending

written

material,

understanding and participating in class discussions, learning new
material, and recalling and applying previously learned material.
(Tr. 237).

The psychological evaluation by Dr. Vicki Hampton

indicated Claimant was average in basic reading, writing, and
arithmetic skills.

(Tr. 274-75).

The battery of testing which

Claimant underwent does not support a finding of marked limitation
in this functional area.

The ALJ did not err in his assessment in

this domain.
Plaintiff also contends Claimant has shown marked limitation
in the domain of Attending and Completing Tasks.
Plaintiff
Claimant’s

asserts
second

the

ALJ

grade

failed
teacher

to

consider

who

found

Specifically,
the

she

report

of

experienced

significant problems in attention to task, organization of task,
task

completion,

and

independent

work

habits.

(Tr.

297).

Claimant’s fourth grade teachers also found obvious problems with
her ability to focus long enough to finish assigned activity or
task, ability to refocus to task when necessary, waiting to take
turns, organizing her own things or school materials, completing
work accurately without careless mistakes, and working without
distracting herself or others.

(Tr. 229, 238).

Again, this Court

cannot re-weigh this evidence and conclude that the ALJ’s findings
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of less than a marked limitation in this domain is error.
Credibility Determination
Plaintiff asserts the ALJ engaged in an erroneous credibility
analysis.

The ALJ recited testimony from the hearing offered by

Plaintiff setting forth the inconsistencies between Claimant’s
activities (playing piano, horseback riding, playing sports) and
her testimony of limitation.

(Tr. 480).

The ALJ found Plaintiff

to be “not entirely credible” due to this discrepancies.

Id.

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

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
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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 limitations and restrictions due to pain or
other symptoms.

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

Kepler, 68 F.3d at 391.

based

upon

specific

evidence.

However, it must also be noted that the

ALJ is not required to engage in a “formalistic factor-by-factor
recitation of the evidence.”
(10th Cir. 2000).

Qualls v. Apfel, 206 F.3d 1368, 1372

Upon review of the decision and the transcript

and record, this Court does not find error in the ALJ’s credibility
analysis.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied.
fourth

Therefore, this Court finds, in accordance with the

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.

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DATED this 9th day of September, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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