Glidden v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ANGELA K. GLIDDEN,
on behalf of B.T.T., a minor,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Acting Commissioner
of the Social Security Administration,
Defendant.
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Case No. 13-cv-237-TLW
OPINION AND ORDER
Plaintiff Angela Glidden, on behalf of B.T.T., a minor child, seeks judicial review of the
decision of the Commissioner of the Social Security Administration (“Commissioner”), denying
the minor child’s claim for Supplemental Security Income benefits (SSI) under Title XVI of the
Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3)(A). In accordance with 28 U.S.C.
§ 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge.
(Dkt. # 8). Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.
Introduction
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The
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Effective February 14, 2013, pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, Acting
Commissioner of Social Security, is substituted as the defendant in this action. No further action
need be taken to continue this suit by reason of the last sentence of Section 205(g) of the Social
Security Act. 42 U.S.C. § 405(g).
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Court’s review is based on the record, and the Court will “meticulously examine the record as a
whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Id. The Court may neither re-weigh the
evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
Sequential Evaluation for Child=s Disability Benefits
The procedures for evaluating disability for children are set out at 20 C.F.R. §
416.924(a). The first step is to determine whether the child is performing substantial gainful
activity. If not, the next consideration is whether the child has a “severe” mental or physical
impairment. A “severe” impairment is one that causes more than minimal functional limitations.
If a “severe” impairment is identified, the claim is reviewed to determine whether the child has
an impairment that: (1) meets, medically equals, or functionally equals the listings of
impairments for children;2 and (2) meets the duration requirement.
If the child does not have impairments of a severity to meet a listing, the severity of the
limitations imposed by the impairments are analyzed to determine whether they “functionally”
equal a listing. Six broad areas of functioning, called domains, are considered to assess what a
child can and cannot do. Impairments functionally equal a listing when the impairments result in
“marked” limitations in two domains or an “extreme” limitation in one domain. 20 C.F.R. §
416.926a. The six domains are: (1) acquiring and using information; (2) attending and
completing tasks; (3) interacting and relating with others; (4) moving about and manipulating
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The listings describe, for each of the major body systems, medical findings which are
considered severe enough that they represent impairments which presumptively demonstrate
disability. 20 C.F.R. Pt. 404, Subpt. P, App.1.
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objects; (5) caring for yourself; and (6) health and physical well-being. 20 C.F.R. §
416.926a(b)(1). A limitation is “marked” when it interferes seriously with the ability to
independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(i). An
“extreme” limitation interferes very seriously with the ability to independently initiate, sustain,
or complete activities. 20 C.F.R. § 416.926a(e)(3)(i).
Background Information
Plaintiff’s mother filed an application for SSI benefits for plaintiff, then a ten-year-old
male, on November 18, 2010, alleging a disability onset date of November 18, 2010. (R. 108).
Plaintiff’s application alleged a number of severe impairments, including a learning disability,
low birth weight, brain damage, and Hydrocephalus. (R. 112). Following an ALJ hearing on June
27, 2012, the ALJ issued a decision finding that plaintiff was not disabled. (R. 14-28). The
Appeals Council declined to review the ALJ’s decision. (R. 4-6). Plaintiff appealed. (Dkt. # 2).
Plaintiff’s mother testified that plaintiff’s classes were split between special education
classes and regular classes with modifications. (R. 244). Plaintiff experiences difficulty
completing school work and has trouble remembering more than two assigned tasks at a time.
(R. 246-48). On December 20, 2010, plaintiff’s sixth grade teacher, Debbie Ferguson, reported
that plaintiff read at a second grade level and understood written language at a second or third
grade level. (R. 118). Ms. Ferguson also indicated that in the domain of acquiring and using
information plaintiff exhibited serious or obvious problems in the areas of reading and
comprehending written material; expressing ideas in written form; recalling and applying
previously learned material; and understanding school and vocabulary content. (R. 119). In
addition, Ms. Ferguson advised that in the domain of attending and completing tasks plaintiff had
a serious or obvious problem completing class assignments, completing work accurately,
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focusing long enough to finish an assigned activity or task, and refocusing to task when
necessary. (R. 120).
On April 27, 2012, plaintiff’s seventh grade teacher, Patricia Montgomery, indicated that
plaintiff performed at a third or fourth grade level in math and written language. (R. 165). Ms.
Montgomery determined that plaintiff had very serious or serious problems expressing ideas in
written form, learning new material, recalling and applying previously learned material, and
applying the problem-solving skills in class discussion, and an obvious problem in the remaining
activities. (R. 166). Regarding the area of attending and completing tasks, Ms. Montgomery
opined that plaintiff had a very serious, serious, or obvious problem paying attention when
spoken to directly, focusing long enough to finish an assigned activity or task, refocusing to task
when necessary, carrying out multi-step instructions, completing class homework assignments,
completing work accurately without careless mistakes, and working at a reasonable
pace/finishing on time. (R. 167).
In addition to the teachers’ reports, two non-examining physicians employed by the State
Disability Determination Services found that plaintiff was not disabled. (R. 191-96, 220-25). On
April 21, 2011, Dr. Massad reported that plaintiff exhibited less than marked limitations in the
domains of attending and completing tasks, and acquiring and using information. (R. 193-94).
Then, on August 12, 2011, Dr. Delhota and Dr. Kelly reexamined plaintiff’s records and, based
on the consultative examination records of William Cooper, Ph.D., concluded that he exhibited a
less than marked limitation in the acquiring and using information domain and a marked
limitation in the attending and completing tasks domain. (R. 222).
Plaintiff’s mother began expressing concerns regarding plaintiff’s possible ADHD to
plaintiff’s treating physician, Dr. August, on June 16, 2011. (R. 202-03). Dr. August
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recommended that plaintiff receive a psychological evaluation, and her notes state that she would
“refer him to Dr. Alan Conger for evaluation.” (R. 203).3
Dr. Cooper administered a consultative psychological examination on July 28, 2011. (R.
203, 218-19). Dr. Cooper’s evaluation revealed that plaintiff had a full scale IQ score of 71,
placing plaintiff in the borderline range of intellectual functioning. (R. 219). During the
evaluation, Dr. Cooper noted that plaintiff expressed himself adequately, but occasionally tapped
his fingers and appeared restless and bored midway through the examination. (R. 218-29). Dr.
Cooper concluded that plaintiff may have attention deficient hyper-activity disorder. (R. 219).
On March 23, 2012, Dr. August diagnosed plaintiff with ADHD and began prescribing
Concerta. (R. 229-30). Plaintiff’s father reported that the medication helped improve plaintiff’s
behavior, enabling plaintiff to finish his school work. (R. 231). Plaintiff and his mother reiterated
this improvement when testifying at the ALJ hearing. (R. 240-41, 245-46).
The ALJ’s Decision
The ALJ determined that plaintiff’s impairments did not meet or medically equal the
severity of a listing. (R. 17). He also concluded, by reviewing the six domains applicable to a
child’s SSI application, that plaintiff’s impairments did not functionally equal a listing. (R. 1728). In the area of acquiring and using information, plaintiff had a less than marked limitation,
based upon the intellectual testing given on July 28, 2011 by Dr. Cooper, and Ms. Montgomery’s
teacher evaluation produced on April 27, 2012. (R. 23). In the area of attending and completing
tasks, plaintiff exhibited a marked limitation. (R. 24). The ALJ based this determination on Dr.
Cooper’s evaluation of plaintiff’s actions during the IQ test on July 28, 2011, Ms. Montgomery’s
teacher questionnaire on April 27, 2012, and plaintiff’s mother’s testimony. Id. In addition,
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No records from Dr. Conger appear in the transcript. Subsequent notes from Dr. August show
that she noted that plaintiff was “evaluated by Dr. Larry Vaught,” but that evaluation is also not
in this record. (R. 229).
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plaintiff exhibited a less than marked limitation in the area of interacting and relating with others
based on Dr. Cooper’s examination, plaintiff’s teachers’ reports, and plaintiff’s mother’s
testimony. (R. 25). Plaintiff had no limitation in the three remaining areas (moving about and
manipulating objects; caring for yourself; and health and physical well-being). (R. 25-28). To
equal a listing, plaintiff had to have two marked limitations or one extreme limitation. Because
the ALJ found only one marked limitation, he found plaintiff not disabled. (R. 28).
Issues Raised
Plaintiff’s allegations of error are as follows:
1) The ALJ erred in concluding that plaintiff suffered only a marked limitation in
terms of attending and completing tasks,
2) The ALJ erred in concluding that plaintiff suffered a less than marked
limitation in acquiring and using information, and
3) The ALJ inaccurately weighed two teacher evaluations regarding plaintiff’s
functional limitations.
(Dkt. # 14).
Discussion
Marked Limitations in Attending and Completing Tasks
Plaintiff’s counsel argues that the ALJ should have evaluated plaintiff as having an
extreme limitation—instead of a marked limitation—in the domain of attending and completing
tasks because his teachers indicated that he consistently performed at least three grade levels
below his classmates. To support this conclusion, plaintiff cites 20 C.F.R. § 416.926a(e)(3),
which defines extreme limitation. The regulation states that for children below eighteen, the
child will have an extreme limitation when he presents “a valid score that is three standard
deviations or more below the mean on a comprehensive standardized test designed to measure
ability to function in that domain, and [the child’s] day-to-day functioning in domain-related
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activities is consistent with that score.” 20 C.F.R. § 416.926a(e)(3)(iii) (emphasis added).
Plaintiff seeks to persuade the Court that this test score standard should also be applied to grade
levels and can be met based solely on the evaluation of one or more teachers. However, the
regulation explicitly requires a valid score on a “standardized test,” along with evidence that the
child’s day to day functioning is consistent with the test score. Here, there is certainly evidence
that the child’s day to day functioning is well below grade level, but such evidence alone is
insufficient under the regulation absent the necessary “comprehensive standardized test.” In
addition, plaintiff has not cited, nor has the Court found, any cases to support the plaintiff’s
argument. Additionally, analysis of the ALJ’s discussion under this domain shows that he relied
in part on the opinion of plaintiff’s teacher, Ms. Montgomery, in reaching his conclusion that
plaintiff suffered a marked limitation in this domain.
Therefore, the Court finds that the ALJ did not commit error on this issue.
Less than Marked Limitation in Acquiring and Using Information
Plaintiff’s counsel contends that plaintiff has a marked limitation in the domain of
acquiring and using information based on: (1) plaintiff’s IQ score of 71; (2) his severe
impairments, specifically ADHD; and (3) two teacher evaluations indicating plaintiff has very
serious problems comprehending new material and recalling and applying newly learned
concepts. Plaintiff’s counsel more specifically argues that plaintiff’s ADHD combined with his
IQ score equates to a marked limitation in the domain of acquiring and using information. (Dkt.
# 14).
The Commissioner attempts to salvage the ALJ’s decision with the post hoc argument
that “although the ALJ could have been more explicit about tying the evidence to the specific
domain[],” the ALJ “considered Ms. Ferguson’s December 2010 report,” and that Ms.
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Ferguson’s opinion “corresponds to the ALJ’s finding that Plaintiff had a less than marked
limitation in this domain.” (Dkt. # 18 at 5).
The ALJ unambiguously explained that he based his determination that plaintiff had less
than a marked limitation in acquiring and using information on plaintiff’s IQ test and Ms.
Montgomery’s (plaintiff’s seventh grade teacher) questionnaire. (R. 23). As to plaintiff’s IQ,
while 71 is a low score, placing him in the Borderline range of intellectual functioning, it does
not alone constitute a disability. As to Ms. Montgomery’s questionnaire, she indicated that
plaintiff has a very serious problem applying problem-solving skills in class discussions, serious
problems expressing ideas in written form, learning new material, and recalling and applying
previously learned material. In the remaining six areas, comprehending oral instructions,
understanding school and content vocabulary, reading and comprehending written material,
comprehending and doing math problems, understanding and participating in class discussions,
and providing organized oral explanations and adequate descriptions, Ms. Montgomery reported
that plaintiff suffered “an obvious problem.” (R. 166). The ALJ did not address plaintiff’s
ADHD or his symptoms resulting from the disorder under this domain, nor did he address Ms.
Ferguson’s teacher evaluation.
Under acquiring and using information, the ALJ considered Ms. Montgomery’s report—
which actually reported greater limitations then Ms. Ferguson’s report—and Dr. Cooper’s
evaluation to determine that plaintiff suffered only a less than marked limitation. However,
plaintiff’s main contention is that the ALJ should have also considered plaintiff’s ADHD
symptoms under this domain.
The absence of a discussion by the ALJ of plaintiff’s ADHD symptoms with respect to
the domain of acquiring and using information is understandable and not error. 20 C.F.R. §
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416.926a provides examples that may illustrate limited functioning in each particular domain.
Based on the regulation, problems in the domain of acquiring and using information—where
plaintiff’s counsel alleges error—can manifest themselves in a child’s inability to “demonstrate
understanding of words about space, size, or time” and “rhyme words or the sounds in words.”
20 C.F.R. § 416.926a(g)(3). The child may have difficulty “recalling important things . . .
learned in school yesterday” and “solving mathematics questions or computing arithmetic
answers.” Id. In addition, the child may “talk only in short, simple sentences and have difficulty
explaining what [he or she] mean[s].” Id.
In contrast, problems in the domain of attending and completing tasks may include the
child being “easily startled, distracted, or overreative to sounds, sights, movements, or touch.” 20
C.F.R. § 416.926a(h)(3). The child may be “slow to focus on, or fail to complete activities of
interest to [him or her], e.g. games or art projects” and may “require extra supervision to keep
[him or her] engaged in an activity.” Id. In addition, the child may “repeatedly become
sidetracked from [his or her] activities or [he or she] may frequently interrupt others” and may be
“easily frustrated and give up on tasks, including ones [he or she is] capable of completing.” Id.
After examining the examples of limited functioning in both domains, the regulation
makes clear that symptoms associated with ADHD are more accurately evaluated under the
domain of attending and completing tasks, not acquiring and using information. Properly, as
support for his determination of a marked limitation in the domain of attending and completing
tasks, the ALJ specifically listed Dr. Cooper’s observations that plaintiff “exhibited lapses in
attention and concentration,” and “occasionally tapped his fingers during testing and began to
appear restless and bored midway through the examination.” (R. 24). Also under that domain, the
ALJ considered Ms. Montgomery’s report and plaintiff’s mother’s testimony regarding
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plaintiff’s ADHD symptoms. Id. Ms. Montgomery’s questionnaire indicated that in the domain
of attending and completing tasks plaintiff suffered very serious problems completing
class/homework assignments and working at a reasonable pace/finishing on time. She also
reported that plaintiff exhibits a serious problem completing work accurately without careless
mistakes and obvious problems in four additional areas. (R. 167).
Thus, plaintiff’s counsel’s reference to plaintiff’s ADHD with respect to his ability to
acquire and use information is misplaced. In fact, the ALJ used Dr. Cooper’s observations, Ms.
Montgomery’s report, and plaintiff’s mother’s testimony—all describing symptoms associated
with ADHD—to support his determination that plaintiff exhibited a marked limitation in
attending and completing tasks. (R. 24). Moreover, plaintiff’s counsel has provided no authority
to support his contention that the ALJ should have considered these symptoms under the
acquiring and using information domain, especially considering that the ALJ correctly
considered plaintiff’s ADHD under the attending and completing tasks domain. Therefore, the
Court finds that the ALJ properly considered plaintiff’s ADHD under the correct domain.
However, the Court does find error in the weight the ALJ afforded to plaintiff’s teacher,
Ms. Montgomery, under this domain. A reading of the ALJ’s discussion under each domain
leads to a reasonable assumption that the ALJ relied, at least in part, on Ms. Montgomery’s
report, accepting as true those portions that he highlighted in his domain rating discussions.
Following that reasoning, it is unclear how the ALJ reached the conclusion of a “less than
marked” limitation in this domain. Ms. Montgomery’s report, coupled with the consultative
examiner’s report, could support a finding of a marked limitation. However, since the Court may
not reweigh the evidence, this issue is remanded to the ALJ to clarify his reasoning on this
domain. Newbold v. Colvin, 718 F.3d 1257, 1265 (10th Cir. 2013).
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Inaccurate Weighing of Teacher Evaluations
Plaintiff alleges that the ALJ inaccurately weighed Ms. Ferguson’s and Ms.
Montgomery’s teacher questionnaires. Ms. Ferguson’s evaluation—completed in 2010—
concludes under acquiring and using information that plaintiff has serious problems reading and
comprehending written material, expressing ideas in written form, and recalling and applying
previously learned material. In addition, she concludes that he has an obvious problem
understanding school and content vocabulary. (R. 119). Regarding the domain of attending and
completing tasks, Ms. Ferguson determined that plaintiff has serious problems completing
class/homework assignments and completing work accurately without careless mistakes. She
also indicated that plaintiff has obvious problems focusing long enough to finish an assigned
activity or task and refocusing on task when necessary. (R. 120).
Ms. Montgomery’s report—completed over one year after Ms. Ferguson’s report—
indicates that in the area of acquiring and using information, plaintiff suffers a very serious
problem applying problem-solving skills in class discussions and serious problems expressing
ideas in written form, learning new material, and recalling and applying previously learned
material. In all the remaining activities plaintiff exhibits obvious problems. (R. 166). In addition,
Ms. Montgomery’s evaluation provided that in the domain of attending and completing tasks
plaintiff has very serious problems working at a reasonable pace/finishing on time and
completing class/homework assignment, he also has a serious problem completing work
accurately without careless mistakes. Plaintiff exhibits obvious problem in four additional
activities listed under that domain. (R. 167).
The ALJ did not specifically address the weight given to Ms. Montgomery’s and Ms.
Ferguson’s non-medical source evidence. However, the discussion the ALJ does use to support
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his decisions under each domain show reasonable support that he did afford Ms. Montgomery’s
report at least some weight.
Ms. Montgomery’s teacher report is listed as evidence considered under both acquiring
and using information and attending and completing tasks. (R. 23-24). Mrs. Ferguson’s
evaluation is discussed in detail previously in the ALJ’s opinion. (R. 19). In addition, while the
ALJ lists Ms. Montgomery’s evaluation—not Ms. Ferguson’s evaluation—as support for his
conclusion in the domains of acquiring and using information, and attending and completing
tasks, he lists both evaluations as support for his less than marked limitation determination in the
domain of interacting and relating with others. (R. 25). Thus, it is clear that the ALJ considered
both teacher evaluations.
For the aforementioned reasoning, the Court rejects this argument.
Conclusion
For the reasons stated above, the decision of the Commissioner is REVERSED AND
REMANDED for further proceedings consistent herewith.
SO ORDERED this 20th day of May, 2014.
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