Solock v. Astrue

Filing 19

MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint filed by Barbara J. Solock. Accordingly, the Plaintiffs appeal will be DENIED and this case will be CLOSED. Signed by Magistrate Judge Martin C. Carlson on June 17, 2014. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BARBARA J. SOLOCK o/b/o
F.A.R.P.
Plaintiff,
v.

:
:
:
:
:
:
:
:
:
:

MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY
Defendant.

Civil No. 1:12-CV-1118

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Procedural History
On February 12, 2010, Barbara Solock (the “Plaintiff”) filed an application

for supplemental security income benefits (“SSI”) on behalf of her minor son
(“F.A.R.P.”) based on F.A.R.P.’s diagnoses of adjustment disorder and dyslexia.
The alleged onset date of disability is February 12, 2007. The Social Security
Administration denied the claim initially on May 6, 2010.
At the Plaintiff’s request, an administrative law judge (the “ALJ”) held a
hearing on April 7, 2011. F.A.R.P. was not present at the hearing; however, his
mother testified on his behalf. As part of the evaluation of the claim, the ALJ
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reviewed medical and educational reports pertaining to F.A.R.P.’s social skill and
academic performance. On July 13, 2011, the ALJ issued a decision finding that
F.A.R.P. was not disabled as defined by the social security regulations and was,
therefore, not entitled to supplemental security benefits. On April 13, 2012, the
Appeals Counsel denied Plaintiff’s request for review, thereby affirming the
decision of the ALJ as the final decision of the Commissioner.
On June 12, 2012, Plaintiff filed this civil action pursuant to 42 U.S.C. §
405(g). The parties have now fully briefed this social security appeal, making this
case ripe for resolution.
II.

Statement of Facts
F.A.R.P. was born on February 26, 1996. He began to exhibit weakness in

the acquisition of basic reading skills in first grade and was placed in the Title-One
Reading Program. (Tr. 187.) In fifth grade, around the time of the alleged onset
date, F.A.R.P. began experiencing increased difficulty with his school work, at
which time his mother requested that he be examined by the school psychiatrist.
(Tr. 187.) The test results showed that F.A.R.P.’s intellectual abilities fell within
the average range, but that his reading and writing skills were well below average
due to a reading and spelling disorder. (Tr. 193-94.) According to his mother,

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F.A.R.P. attended classes in a special education room in sixth grade, and in seventh
grade he began an Individualized Educational Program (IEP). (Tr.38.)
In eighth grade F.A.R.P. was reevaluated. (Tr. 201-211.) The eighth grade
report concluded that he continued to need specially designed instruction due to his
learning disability in the areas of basic reading skills and written expression. (Tr.
206.) The report showed that his overall intellectual ability fell within the average
range, but that he “exhibited weakness in visual motor coordination.” (Tr. 203.)
The report stated that F.A.R.P. showed the ability to work independently, had a
very likeable personality, and had an exemplary attendance record. (Tr. 205.)
However, the report showed a severe discrepancy between F.A.R.P.’s intellectual
ability and actual achievement, and stated that he continued to need help with basic
reading skills, written expression, and basic math facts. (Tr. 205, 210.) The report
also stated that F.A.R.P. was not mentally retarded and did not have an emotional
disturbance. (Tr. 210.)
The “Teacher Input” section of the eighth grade report indicates that his
teacher believed that F.A.R.P. was making progress, that he had improved his
ability to submit assignments in a timely manner, and that he was a strong auditory
learner. (Tr. 187-188.) However, his teacher indicated that he had difficulty with
reading aloud, spelling, and written expression; and that he had difficulty in all
academic subjects where a written response was required on assignments and tests.
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Id. The teacher also reported that F.A.R.P. was respectful to authority figures, got
along with his classmates most of the time, and had demonstrated an improved
work ethic as the year progressed. Id.
The record reveals that F.A.R.P.’s behavioral problems have increased with
age. Although his fifth grade teacher did not report any behavioral issues, his
mother reports that in sixth grade he attended classes in a one-on-one special
education class room due to learning difficulties and behavioral issues. (Tr. 38.)
By ninth grade, F.A.R.P. was disciplined by the school for numerous incidents
including fighting, racially insulting another student, and failing to turn in his
homework. (Tr. 39.)
At the time of the ALJ hearing, F.A.R.P. was in ninth grade, but was only
able to write at a third-grade level and read at a sixth-grade level; however, his
mathematics abilities tested at an eighth-grade level.

(Tr. 44, 146.)

He has

difficulty with reading comprehension, and expressing in writing ideas that he
would otherwise be able to communicate verbally. (Tr. 45-46.) He also exhibits
difficulty carrying out multi-step instructions and multi-tasking, and he is easily
distracted. Id.
In terms of socialization, F.A.R.P.’s mother testified that he has two friends
from out of town and some friends at school, but he does not like to associate with

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any of his friends from school outside of the schoolhouse. (Tr. 47.) She also
testified that some of his behavioral issues manifest when he tries to act as a class
clown in order to cover up his learning difficulties, and where he his bullied by a
certain boy at school. (Tr. 40, 43, 49.)
Because of his learning difficulties and behavioral issues at school, Plaintiff
sought evaluation and counseling for F.A.R.P. at the Northern Tier Clinic
(“Northern Tier”). (Tr. 42, 376-82.) At Northern Tier, the treating physician
diagnosed F.A.R.P. with Adjustment Disorder and Dyslexia leading to behavioral
problems, and assigned him a Global Assessment of Functioning score of 52. (Tr.
382.) The treating physician reported that F.A.R.P. appeared depressed, but that he
did not have any homicidal or suicidal ideation. Id. The physician also reported
that F.A.R.P. was appropriately groomed and dressed, his thought process was
intact, and he was able to answer most questions for himself. Id. The treating
physician recommended OPT Therapy for further assessment. Id.
III.

Substantial Evidence Standard of Review
This Court’s review of the Commissioner’s decision denying social security

benefits is a narrow one, and is limited to whether there is substantial evidence in
the record to support the Commissioner’s findings, and whether ALJ applied the
correct legal standards. 42 U.S.C. § 405(g); Richardson v Perales, 402 U.S. 389,

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401 (1971); Brown v. Bowen 845 F.2d 1211, 1213 (3d Cir 1988); see also Johnson
v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008).

The substantial

evidence standard is a deferential standard of review. Jones v. Barnhart, 364 F.3d
501, 503 (3d Cir. 2004); see also Johnson, 529 F.3d at 200 (citing Knepp v. Apfel,
204 F.3d 78, 83 (3d Cir. 2000)). The substantial evidence standard does not
require a large or considerable amount of evidence; however, it does require “more
than a mere scintilla,” meaning “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 (quoting
Consol. Edison v. NLRB, 305 U.S. 197, 229 (1938)); Pierce v. Underwood, 487
U.S. 552, 564; see also Johnson, 529 F.3d at 200 (quoting Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999)). Therefore, if a reasonable mind might accept the
relevant evidence as adequate to support the Commissioner’s conclusion, then the
Commissioner’s determination is supported by substantial evidence. Jones, 364
F.3d at 503; Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
IV.

Child Disability Benefits Three-Step Analysis
A child under age 18 is entitled to supplemental security benefits only if he

suffers from “a medically determinable physical or mental impairment, which
results in marked and severe functional limitations, and which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C.A. § 1382c(a)(3)(C)(I). Child
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disability is determined according to a three-step sequential analysis. 20 C.F.R. §
416.924(a)-(d); Watkins v. Comm’r of Soc. Sec., 131 F. App’x 362, 364 (3d Cir.
2005). “Under this analysis, a child is deemed disabled if: (1) he or she is not
working and not engaged in substantial gainful activity; (2) he or she has a
medically determinable impairment that is severe; and (3) the medically
determinable severe impairment meets, medically equals, or functionally equals a
listing [(“Listings”)] in 20 C.F.R. Part 404, subpart P, Appendix 1.” Id.
For an impairment to be functionally equal in severity to a Listing under step
three of the analysis, a child must show “marked” limitations in two domains of
functioning or “extreme” limitation in one domain. Richardson v. Barnhart, 136 F.
App'x 463, 465 (3d Cir. 2005) (citing 20 C.F.R. § 416.926(a) (2005)). The six
development and functioning domains include: acquiring and using information;
attending to and completing tasks; interacting and relating with others; moving
about and manipulating objects; caring for oneself; and health and physical wellbeing.

Id. (citing 20 C.F.R. § 416.926a(b)(1)(i)—(vi) (2005)).

A marked

limitation in a domain is found where impairment interferes seriously with the
child’s ability to independently initiate, sustain, or complete activities. 20 C.F.R. §
416.926a(e)(2). A marked limitation is more than moderate but less than extreme.
Id. An extreme limitation in a domain is found where the impairment interferes

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“very seriously” with the child’s ability to independently initiate, sustain, or
complete activities. 20 C.F.R. § 416.926a(e)(3).
V.

The ALJ’s Decision
At steps one and two of the foregoing analysis, the ALJ found that F.A.R.P.

was not working or engaged in substantial gainful activity and that his dyslexia and
adjustment disorder qualified as severe impairment. (Tr. 14.) However, at step
three the ALJ determined that none of F.A.R.P.’s impairments met or medically
equaled a Listing because none of his impairments were marked or extreme. (Tr.
14-15.) The ALJ denied benefits based on this finding. (Tr. 22.)
VI.

Plaintiff’s Arguments
Plaintiff appeals the ALJ’s determination, asserting that the ALJ erred by:

(1) failing to fulfill his affirmative duty to assist the claimant in developing the
record; (2) failing to render a decision in accordance with the prevailing legal
standard; (3) failing to find a marked limitation in the acquiring and using
information domain; (4) failing to find a marked limitation in the attending and
completing tasks domain; (5) failing to find a marked limitation in the interacting
and relating to others domain. Upon consideration of the record and the ALJ’s
decision, we disagree.

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(1) The ALJ fully performed his duty to develop the record.
Plaintiff first argues that the ALJ did not fulfill his obligation to adequately
develop the record because the ALJ “failed to develop arguments supporting the
award of benefits,” and “took no steps to assist the Plaintiff child in developing the
record . . . ” (Pl. Br. 11.) Plaintiff argues that the ALJ has an affirmative duty to
assist the claimant with establishing his claim, and that he failed to do so during the
administrative proceedings in this case. (Pl. Br. 10-12.)
It is true that administrative proceedings are distinct from adversarial
judicial proceedings, and thus in some cases the ALJ may have an obligation to
ensure that the administrative record is adequately developed, specifically where
the claimant has not done so. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)
This is true because “[a]lthough the burden is upon the claimant to prove his
disability, due regard for the beneficent purposes of the legislation requires that a
more tolerant standard be used in this administrative proceeding than is applicable
in a typical suit in a court of record where the adversary system prevails.” Id.
(citing Hess v. Sec'y of Health, Ed. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974)).
However, the ALJ is not required to search out all relevant evidence which might
be available, “since that would in effect shift the burden of proof to the
government.” Id. at 840 (citing Easley v. Finch, 431 F.2d 1351, 1353 (4th Cir.
1970)).
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The regulations in this field thus require the ALJ to inquire fully into the
matters at issue and admit testimony of witnesses and any documents which are
relevant and material. 20 C.F.R. § 410.640. If the ALJ believes that there is
relevant and material evidence available which has not been presented at the
hearing, the ALJ may take the necessary steps to ensure that evidence is entered
into the record. Id.
“It is important to recognize that the scope of an ALJ's duty to independently
investigate the facts is relatively narrow.” Poleck v. Astrue, 2009 WL 3738602, at
* 2 (E.D. Pa. 2009). The Third Circuit has “never formally imposed a broad duty
to investigate and develop arguments for all parties.” Id. (citing N.J. Media Group
v. Ashcroft, 308 F.3d 198, 223 (3d Cir. 2002); Burnett v. Comm'r of Soc. Sec., 220
F.3d 112, 120 n.2 (3d Cir. 2000)). There is a “heightened level of care and the
responsibility of the ALJ to assume a more active role when the claimant is
unrepresented.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).
In the case at hand, Plaintiff was represented by counsel who submitted
relevant evidence from multiple sources. There is no evidence in the transcript of
the ALJ hearing in this case that the ALJ was at any point anything less than polite
to the Plaintiff. (Tr. 11-22.) The ALJ reviewed and referred to the relevant
evidence submitted by Plaintiff’s counsel including the school psychologist report,
multiple teacher questionnaires, F.A.R.P.’s disciplinary records, and the
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psychological evaluation from the treating physician at Northern Tier. (Tr. 11-22.)
The ALJ analyzed each domain of development and functioning, compared
F.A.R.P.’s impairment to the requirements of each respective domain, and gave
specific reasons why F.A.R.P.’s impairment did not rise to the level of a marked
limitation in each of the respective domains. Id.
Thus, in his decision, the ALJ stated that his determination was based on
F.A.R.P.’s school psychological report (Ex. 1F), the intake form from Northern
Tier (Ex. 4F), the teacher questionnaires, and the function report filled out by his
mother (Ex.3E). (Tr. 16.) Although the ALJ did not cite to specific documents in
the record for every conclusion, the written decision made it clear that the rationale
for finding that F.A.R.P. had less than a marked impairment in each domain came
directly from evidence submitted by the Plaintiff. (Tr. 15-16.)
(2) The ALJ rendered a decision in accordance with the prevailing legal
standard.

Plaintiff argues that the ALJ failed to address F.A.R.P.’s intake report from
Dr. Venturanza at Northern Tier, which assessed F.A.R.P. with a Global
Assessment of Functioning (“GAF”) score of 52. (Pl. Br. 12-13.) Plaintiff also
asserts that the ALJ failed to accord proper weight to the input from F.A.R.P.’s
teachers. (Pl. Br. 12.)

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Although the SSA considers opinions from medical sources on issues such
as whether a claimant’s impairments meet or equal the requirements of any
impairment in the listing, the final responsibility for deciding these issues is
reserved to the Commissioner. 20 C.F.R. § 416.927(d)(2). Generally, the SSA
gives more weight to opinions from treating sources, since those sources are likely
to be the medical professionals most able to provide a detailed, longitudinal picture
of the claimant’s medical impairments. 20 C.F.R. § 416.927(c)(2). A teacher is
not an acceptable medical source; therefore, a teacher’s opinion is not entitled to
any significant weight.

20 C.F.R. § 416.913(a) (“We need evidence from

acceptable medical sources to establish whether you have a medically determinable
impairment”). Even if a teacher’s opinion or assessment could be accorded the
same weight as a doctor’s, a doctor’s opinion can never bind the Commissioner on
the issues reserved to the Commissioner. 20 C.F.R. § 416.927(e)(1)-(3); SSR 965p, 1996 WL 374183 (S.S.A.). In other words, not only are teacher evaluations not
entitled to significant weight, they are never controlling. Id.
Although at the time of the ALJ hearing and decision in this case GAF
scores were accorded a great deal of weight in the psychological community, the
American Psychiatric Association (‘APA’) no longer includes GAF rating for
assessment of mental disorders. See Ladd v. Astrue, CIV.A. 12-4553, 2014 WL
2011638 (E.D. Pa. May 16, 2014).

Due to concerns about subjectivity in

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application and a lack of clarity in the symptoms to be analyzed, the APA
abandoned the GAF score in its recently published fifth edition of the Diagnostic
and Statistical Manual [of Mental Disorders] (“DSM–5”). Am. Psychiatric Assoc.,
Diagnostic and Statistical Manual of Mental Disorders 5d, 16 (2013). In response
the Social Security Administration now allows ALJs to use GAF ratings as opinion
evidence when assessing disability claims involving mental disorders; however, a
“GAF score is never dispositive of impairment severity,” and thus an ALJ should
not “give controlling weight to a GAF from a treating source unless it is well
supported and not inconsistent with other evidence.” SSA AM–13066 at 5 (July
13, 2013).
In this case, the ALJ did address Dr. Venturanza’s evaluation. (Tr. 16.) In
the written decision the ALJ states, “[H]e does exhibit behavior issues . . .
however, these issues are not debilitating.” Id. (ALJ citing Ex. 4F.) The ALJ’s
assessment of the single GAF score submitted was also fully consistent with the
evidentiary significance of the score and its indicia of a moderate limitation in
functioning. According to the DSM-4, a GAF score of 51-60 was consistent with
“moderate difficulty in social, occupational, or school functioning”; whereas, a
GAF score of 41-50 was consistent with “any serious impairment in social,
occupational, or school functioning,” and a score below 50 reflected a major
impairment in such areas.

Am. Psychiatric Assoc., Diagnostic and Statistical

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Manual of Mental Disorders 4d, 34 (2000). Therefore, the fact that Dr. Venturanza
assessed a GAF of 52 indicates that, in his professional opinion, F.A.R.P. only
suffered from moderate difficulty in functioning, and the ALJ’s decision was
consistent with Dr. Venturanza’s opinion.
(3) The ALJ did not err by failing to find that F.A.R.P. had a marked
limitation in acquiring and using information domain.

Plaintiff argues that the ALJ should have found that F.A.R.P. had a marked
limitation in acquiring and using information due to his diagnosis of dyslexia. (Pl.
Br. 12-14.)

In support of this contention, Plaintiff cites F.A.R.P.’s teacher

evaluations; specifically citing the teacher evaluation submitted by Ms. Leonard
dated March 14, 2011, where she notes that F.A.R.P. had an “obvious problem”
with “understanding school and content vocabulary,” an “obvious problem” with
“reading and comprehending written material”, and an “obvious problem” with
“expressing ideas in written form.” (Pl. Br. 13-14.)
The acquiring and using information domain focuses on how well the child
has acquired information and applies what he has learned. This domain includes
how well children perceive, think about, remember, and use information in all
settings. 20 C.F.R. § 416.926a(g); SSR 09-3p.

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As stated above, teachers are not acceptable medical sources and their
opinions are not entitled to any significant weight. 20 C.F.R. § 416.913.
Furthermore, even if Ms. Leonard’s questionnaire were to be afforded significant
weight, the questionnaire form on which she marked “obvious problems” in the
aforementioned areas allowed ratings on a five point scale from “no problem” to
“very serious problem” with an “obvious problem” at the median, one point below
a “serious problem.” (Tr. 147.) It was, therefore, reasonable for the ALJ to
interpret the questionnaire as meaning that in Ms. Leonard’s opinion, F.A.R.P. did
not have a serious problem or very serious problem in those areas, thus supporting
the conclusion that F.A.R.P. had a less than marked impairment in those areas.
(4) The ALJ did not err by failing to find a marked limitation in the
attending and completing tasks domain.

Plaintiff argues that the ALJ should have found that F.A.R.P. had a marked
limitation in attending and completing tasks. (Pl. Br. 14-15.) The attending and
completing tasks domain considers how well a child is able to focus and maintain
his attention and how well he begins, carries through, and finishes activities,
including the pace at which he performs activities and the ease with which he
changes them. 20 C.F.R. § 416.926a(h).

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In his decision the ALJ held that F.A.R.P. did not have a marked limitation
in this domain, because he only needed occasional reinforcement and refocusing,
and the evidence showed that F.A.R.P. is able to focus on tasks he enjoys with
minimal assistance. (Tr. 18.) Plaintiff argues that F.A.R.P.’s ability to focus “has
nothing to do with interest but rather deals with the Plaintiff struggling in
subject[s] which are language based requiring reading comprehension.” Plaintiff
cites to multiple teacher questionnaires as stating that F.A.R.P. has obvious
problems in several areas under the attending and completing tasks domain. (Tr.
15.)
As noted above, the substantial evidence standard requires “more than a
mere scintilla,” meaning “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. None
of the teacher questionnaires indicate that F.A.R.P. has a “serious problem” in any
of the activities listed under the attending and completing tasks domain. (Tr.123,
148, 160.) Although he requires additional prompting to remain on task, has
difficulty refocusing, and carrying out multi-step instructions, the record shows
that F.A.R.P. is able to attend streamlined general education classes. (Tr. 33-34.)
Although the teacher questionnaires indicated concerns about F.A.R.P.’s
ability to stay on task, it was within the ALJ’s discretion to accord more weight to
the opinions of the treating physician and the SSA’s consultant than he did to the
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opinions of the teachers. In the childhood disability evaluation, Paul Taren, PhD,
found that, although F.A.R.P.’s teachers had observed some motivational
problems, overall F.A.R.P. had less than a marked limitation in the attending and
completing tasks domain.

(Tr. 367.)

In the Northern Tier intake form, Dr.

Venturanza rated F.A.R.P.’s attention span as “good,” meaning that he had the
ability to stay on task 90% of the time, and that his thought process appeared to be
intact. (Tr. 377.) Based on the findings in these evaluations, the ALJ could
reasonably have found that F.A.R.P. had less than a marked limitation in the
attending and completing tasks domain.
(5) The ALJ did not err by failing to find a marked limitation in the
interacting and relating to others domain.

Plaintiff also argues that the ALJ should have found that F.A.R.P. had a
marked limitation in interacting and relating to others.

(Pl. Br. 15-16.)

The

interacting and relating to others domain considers how well a child initiates and
sustains emotional connections with others, develops and uses the language of his
community, cooperates with others, complies with rules, responds to criticism and
respects and takes care of the possessions of others. 20 C.F.R. § 416.926a(i). The
ALJ stated that the record demonstrated F.A.R.P.’s “ability make and keep
friends.” (Tr. 20.) In his brief the Plaintiff suggests that this conclusion was

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without evidentiary basis, rhetorically asking, “Where in the record is this
supported?” (Pl. Br. 15.)
In fact, the ALJ’s conclusion is supported by F.A.R.P.’s mother’s testimony
at the ALJ hearing. (Tr. 47.) Although he has been in trouble for fighting in
school and has been disciplined for making racial slurs, his mother testified at the
hearing that these isolated incidents were a result of a boy at school bullying him.
(Tr. 43.) His mother testified that F.A.R.P. does not have any friends from school
that he spends time with outside of school; however, she testified that he does have
friends from other school districts. Id. The ALJ’s conclusion is further supported
by Dr. Venturanza’s assessment of a 52 GAF. (Tr. 382.) According to the DSM-4,
a GAF score in between 51-60 indicates only moderate problems at school which
manifest as “few friends, conflicts with peers;” whereas a score of 50 and below
indicates serious problems at school where the individual has no friends. (DSM-4
p. 34.)

Further, the questionnaire completed by Ms. Leonard indicates that

F.A.R.P. has “no problem” making and keeping friends and playing cooperatively
with others, and she reports only that he “likes to be the center of attention.” (Tr.
149.)

Given this record evidence, we find that the ALJ’s assessment of this

asserted limitation on FARP’s social functioning was supported by substantial
evidence, and was consistent with what this evidence revealed.

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VII. Conclusion
In conclusion, upon consideration of the administrative record, the ALJ’s
decision, and the parties briefs, we disagree with the Plaintiff’s assertions of error
and find that the ALJ’s decision was supported by substantial evidence and should
be upheld. 42 U.S.C. § 1382c; Richardson 402 U.S. at 401; Johnson, 529 F.3d at
200. Accordingly, the Plaintiff’s appeal will be DENIED and this case will be
CLOSED.
An appropriate order follows.
So ordered this 17th day of June, 2014.
S/MARTIN C. CARLSON
Martin C. Carlson
United States Magistrate Judge

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