Allen v. Social Security Administration
Filing
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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
JODY ALLEN on behalf of
J.K.A., a minor,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.
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Case No. CIV-16-006-KEW
OPINION AND ORDER
Plaintiff Jody Allen (“Plaintiff”), on behalf of the minor
child, J.K.A. (“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 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).
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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 December 27, 2000 and was 13 years old on
the date the ALJ issued his decision.
become
disabled
on
October
31,
Claimant is alleged to have
2007
due
to
epilepsy/seizure
disorder and mood disorder.
Procedural History
On
February
27,
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 February 27, 2014, Plaintiff
appeared at an administrative hearing in Tulsa, Oklahoma before
Administrative Law Judge Bernard Porter (“ALJ”) by video with
Claimant appearing in Poteau, Oklahoma and the ALJ presiding from
McAlester, Oklahoma. The ALJ issued an unfavorable decision on May
3
28, 2014.
On November 24, 2015, the Appeals 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 he had not been under a disability during the
relevant period.
Review
Plaintiff asserts the ALJ committed error in failing to find
Claimant’s condition met or equaled a listing.
Consideration of Functional Equivalency
In his decision, the ALJ determined Claimant suffered from the
severe impairments of seizure disorder, nocturia enuresis, major
depressive
disorder,
generalized
anxiety
disorder,
attention
deficit hyperactivity disorder (“ADHD”), and learning disorder.
(Tr. 13).
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
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information, attending and completing tasks, caring for yourself,
and health and physical well-being.
He also determined Claimant
had a marked limitation in the domain of interacting and relating
to others.
He found no significant limitation in the areas of
moving about and manipulating objects.
(Tr. 18-24).
Plaintiff 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 four 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).
For school-age children (age 6 to attainment of age 12), the
regulations set out the benchmarks: (1) Learns to read, write, and
do simple arithmetic; (2) Becomes interested in new subjects and
activities (for example, science experiments and stories from
history); (3) Demonstrates learning by producing oral and written
projects, solving arithmetic problems, taking tests, doing group
work, and entering into class discussions; (4) Applies learning in
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daily activities at home and in the community (for example, reading
street signs, telling time, and making change); and (5) Uses
increasingly complex language (vocabulary and grammar) to share
information, ask questions, express ideas, and respond to the
opinions of others.
Soc. Sec. R. 09-3p, 2009 WL 396025, *6.
A
“marked” limitation in this domain requires a finding that the
“impairment(s) interferes seriously interferes with [a claimant’s]
ability
to
activities.”
independently
initiate,
sustain,
or
complete
20 C.F.R. § 416.926a(e)(2)(ii).
The ALJ relied primarily upon the report of Claimant’s fifth
grade teacher, Ms. Sherrill Allen from April of 2012. This teacher
stated she taught Claimant for four periods per day in Math,
Reading, English, and Enrichment classes.
five years.
domain.
She knew Claimant for
Ms. Allen found Claimant had no problems in this
The report of Dr. Evette Budrich lends support for this
position. (Tr. 317). However, on February 13, 2014, Ms. Allen and
Mr. Jeff Neighbors, the principal at Claimant’s school, authored
admittedly sparse forms which indicated Claimant had a “markedly
interfering” limitation in this domain.
(Tr. 347-48).
The ALJ
gave “little weight” to these opinions because they are not doctors
or mental health professionals qualified to give these opinions,
and they opinions were not consistent with the evidence of record
as a whole.
He also noted the inconsistency between Ms. Allen’s
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first opinion from 2012 and the subsequent opinion in 2014, stating
that the former opinion was more specific and consistent with the
evidence of record as a whole.
(Tr. 17).
This Court is troubled by the ALJ’s willingness to accept Ms.
Allen’s opinion when it supported a finding of less than a marked
limitation in this domain but rejected a subsequent opinion from
her
which
supported
a
finding
of
marked
limitation.
This
inconsistency after a two year passage of time should at least have
triggered
the
ALJ’s
obligation
to
develop
the
record
by
recontacting this teacher with intimate knowledge of Claimant’s
day-to-day activity and developmental progress.
Moreover, it is
intellectually inconsistent to reject an opinion from Claimant’s
special education teacher on the basis that she is not a medical
professional qualified to render such an opinion but accept her
prior opinion when it supports a finding of non-disability.
The
ALJ
also
concluded
without
evidence
that
Ms.
Allen
provided the second opinion “in an effort to assist the child with
whom she sympathizes.” (Tr. 17). This statement smacks of the oft
rejected statement that a “treating physician’s report appears to
have been prepared as an accommodation to a patient” statement that
has been roundly rejected.
Miller v. Chater, 99 F.3d. 972, 976
(10th Cir. 1996) citing Frey v. Bowen, 816 F.2d 508, 515 (10th Cir.
1987).
The ALJ’s assumption in this regard does not represent a
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justifiable basis for rejecting the teacher’s opinion.
Additionally, the medical record indicates Claimant’s mental
and emotional status has worsened since 2012. On October 23, 2013,
Dr. Eric Broadway indicated Claimant’s anger, defiant personality
traits,
and
attitude
deteriorated.
toward
teachers
and
doing
school
work
On remand, the ALJ should explore whether the
inconsistencies in Ms. Allen’s opinions were attributable to a
worsening of Claimant’s condition.
This same analysis holds true with the domains of attending to
and completing tasks, interacting and relating to others, and
caring
for
interfering”
Neighbors.
himself
-
all
limitations
by
of
which
Ms.
now
Allen
reflect
and
“extremely
supported
by
Mr.
The ALJ should engage in a re-examination of these
domains and whether Claimant’s limitations in relation to them has
deteriorated since 2012.
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
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with this Opinion and Order.
DATED this 31st day of March, 2017.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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