Hutcheson v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 8/18/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:CIVIL ACTION NO. 3:16-CV-2023
NANCY A. BERRYHILL,
of Social Security,
The above-captioned matter concerns Plaintiff Monica
Hutcheson’s appeal from the Acting Commissioner’s denial of
Security Supplemental Income (“SSI”) for her minor son, “A.M.”
Plaintiff filed an application for benefits on September
10, 2013, alleging a disability onset date of March 1, 2011.
After Plaintiff appealed the initial denial of the claims, a
hearing was held on February 23, 2015, and Administrative Law Judge
(“ALJ”) Scott M. Staller issued his Decision on March 13, 2015,
concluding that A.M. had not been under a disability from the date
of the application through the date of the decision.
Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on August 4, 2016.
In doing so, the
ALJ’s decision became the decision of the Acting Commissioner.
Plaintiff filed this action on October 5, 2016.
She asserts in her supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following
reasons: 1) the ALJ erred in finding that A.M. had less than a
marked limitation in acquiring and learning new information and in
attending and completing tasks; 2) the ALJ erred in failing to
accord proper weight to a treating source opinion; and 3) the ALJ
erred in failing to credit A.M.’s statements to his treating
physician after finding him generally credible.
(Doc. 18 at 8.)
After careful review of the record and the parties’ filings, the
Court concludes this appeal is properly denied.
A. Treatment Records
Primary Care Physician
A.M., who was born on September 3, 2003 (R. 13), was followed
by primary care physician, Jane K. Conroy, D.O.
noted in April 2011 that Plaintiff reported some difficulty
managing him, he did not stay on task, and school personnel had
also noted some problems with this.
suggested a developmental assessment.
In May 2011, Dr. Conroy recorded that A.M. had been evaluated
by a psychologist “who felt he had ADHD identifiers with mood
lability and apparently oppositional defiance symptoms.”
She added that A.M. was in first grade at the time and his mother
reported he was doing adequately academically but had behavior
Exam notes include the observation that A.M.
was very active and busy during the exam period, but he sat and
followed instructions when Dr. Conroy asked him to.
August 16, 2011, office notes indicate that Dr. Conroy
received a call from psychologist Michael Zug who suggested an
antidepressant for A.M. due to increased irritability and easy
Dr. Conroy noted that she first wanted a
pediatric psychiatry evaluation which Mr. Zug said he would
At a follow up visit in October 2011, Plaintiff continued to
report A.M.’s easy distractability and defiance issues.
Dr. Conroy noted that ADHD and easy distractability were witnessed
in the office as well as Plaintiff’s frustration with his
Dr. Conroy adjusted A.M.’s medications and
encouraged Plaintiff to attend counseling for parenting help to
deal with ADHD.
In March 2014, Dr. Conroy saw A.M. for complaints of headache.
Office notes indicate that there was no problem with
other children at school and A.M.’s grades were good (better than
the year before).
At a June 2012 office visit for check of eye irritation, Dr.
Conroy noted A.M. was restless but he sat through the exam, needing
to be prompted to sit and not impulsively get off the table to grab
gloves and equipment.
Treating Psychiatrist Office Records
A.M. had a psychiatric evaluation with Benyam Tegene, M.D., in
November 2011. (R. 258.)
Plaintiff’s chief complaint was that A.M.
“acts out a lot.”
Under “School History,” Dr. Tegene
recorded that A.M. was in second grade attending regular classes
and he did well in math, he was behind in reading, and he got no
Dr. Tegene noted that A.M. made good eye
contact and had no psychomotor agitation or retardation.
also observed that A.M. mocked his mother and made faces and was
mildly restless and fidgety.
Dr. Tegene diagnosed ODD,
ADHD, combined type, and he assessed a GAF of 52.
recommended increasing medication dosage as well as individual and
family therapy to address coping skills and help with parenting
issues and behavior modification.
Dr. Tegene planned to see
Plaintiff in two weeks and have A.M.’s teachers complete
In February 2012, Plaintiff reported that A.M. refused to do
what he was told at home and she had difficulty parenting him but
his behavior at school had improved for the most part.
Dr. Tegene evaluated A.M., finding him cooperative with euthymic
mood, affect within normal range, and normal speech.
also noted that A.M. tests limits and was fidgety.
In March 2012, A.M. told Dr. Tegene he was able to pay
attention in class.
Dr. Tegene’s objective evaluation
was similar to the previous month with the additional notation that
A.M. was defensive and upset when discussing his behavior.
At the April 2012 visit with Dr. Tegene, subjective reporting
indicated that A.M. was doing well–-he was getting along with his
teachers and friends, paying attention, listening better and making
better choices, and he had good ability to concentrate.
Objective evaluation included the finding that A.M.’s attention
span and concentration were grossly intact, his judgment was
adequate, and his insight was fair.
Dr. Tegene concluded
that A.M.’s ADHD was improving and he assessed a GAF score of 62.
He noted that A.M. was in therapy with Michael Zug and he
planned to see A.M. in six weeks.1
In May 2012, both A.M. and his mother had positive reports
and a GAF score of 62.
Dr. Tegene again noted improving ADHD
In August, Plaintiff reported that
A.M. was hyperactive and always on the go but A.M.’s ability to
concentrate was noted to be good, difficulty staying focused was
denied, and ability to pay attention had increased.
The record contains a letter addressed “To Whom It May
Concern” from Michael Zug dated November 25, 2013, indicating that
he saw A.M. between April 29, 2011, and March 12, 2012, during
which time A.M. was referred to Dr. Tegene for psychiatric
evaluation. (R. 291.) Mr. Zug reiterated Dr. Tegene’s diagnosis
of Attention Deficit Disorder, combined type, and Oppositional
Defiant Disorder with an assessed GAF score of 62. (Id.) The
record contains a similar letter from Mr. Zug to Plaintiff’s
attorney, stating that A.M. was seen twelve times during the April
2011 to March 2012 period. (R. 428.) No treatment notes from Mr.
Zug appear in the record.
Tegene again noted improving ADHD and a GAF score of 62.
September office visit notes were similar.
In October 2012, A.M. related that he was doing well in
school, he had good grades, and his concentration had been fair.
Although Dr. Tegene noted that A.M. still got distracted
easily and was impulsive, he found A.M.’s thought processes clear
and appropriate, his attention span and concentration grossly
intact, and he had adequate judgment and fair insight.
November findings were similar and subjective reporting included
the notation that A.M. was able to focus better.
At his visit with Dr. Tegene on February 4, 2013, A.M.
demonstrated hyperactive motor activity, and Plaintiff reported he
had been doing “alright.”
In March, A.M. told Dr.
Tegene he had been good and he was noted to be “cooperative,
appropriate and happy.”
In April, Plaintiff reported
that A.M. still did not focus, and he was impulsive and rushed
through his school work, more so in the after school reading
Although Dr. Tegene observed that Plaintiff
demonstrated hyperactive motor activity, his objective evaluation
was basically normal.
He continued to assess A.M.’s ADHD to
be improving and recorded a GAF score of 62.
Plaintiff again stated that A.M. still did not focus and, although
his medication helped, there was room for improvement.
In September 2013, A.M. reported that he was doing well in
school, he had good concentration but slept in class some days, and
he was getting along with friends and his teacher.
Plaintiff reported A.M. had an IEP evaluation in school, his
ability to concentrate had decreased but paying attention had
Objective evaluation was basically normal
except Dr. Tegene noted A.M. demonstrated hyperactive motor
He continued to assess A.M.’s ADHD to be
improving and recorded a GAF score of 62.
In October 2013, A.M. subjectively reported that he was doing
Notes indicate he had been getting positive
feedback from teachers, he had an IEP, he was better behaved at
home, and he was getting along better with siblings and parents but
still needed frequent promptings and redirection.
2014, A.M. continued to report that he was doing well, including
paying attention well and getting good grades.
denied being easily distracted and denied irritability.
Tegene noted that A.M.’s motor activity was within normal limits
and other evaluation findings included grossly intact attention
span, concentration, judgment and insight.
opined that both ADHD and ODD were improving.
Plaintiff reported that A.M.’s teachers had not complained about
his behavior, his grades had been good, he was listening better, he
was doing his homework, and he was getting along with his peers and
Other than mild psycho-motor agitation,
objective evaluation was basically normal.
At his June 5, 2014, visit with Dr. Tegene, subjective
information included reports that A.M. was doing well in school, he
was paying attention, his grades had improved, and he was getting
some learning support.
same as the previous visit.
Objective evaluation was the
August 7, 2014, office notes indicated A.M. continued to do
well and Plaintiff said he was well-behaved and listening better.
Plaintiff also noted improvement with hygiene and
increased help with chores.
Objective evaluation remained
In October 2014, A.M. reported doing his work most of the time
though a teacher had called because he was not applying himself in
class and he rushed through his work.
A.M. continued to
be unhappy dealing with his stepfather but in general had been
Objective evaluation remained the same.
A.M. attended his November 14, 2014, appointment with his
Subjective reporting indicated A.M. did
not like one of his teachers, he had been inattentive and
disruptive in class but he did his work, and he had been well
behaved at home.
Objectively, Dr. Tegene found A.M.’s motor
activity was within normal limits and he did not note any problems.
In December 2014, Plaintiff told Dr. Tegene that A.M. lied
frequently and did not do his homework, his grades were low
average, he needed reminders to do basic chores, he did not take
responsibility for his actions, he talked back to his teachers,
and he did not apply himself in school.
Plaintiff expressed frustration that A.M. did not do what he was
told, notes indicated he was listening better at home.
Objectively, Dr. Tegene did not note any problems.
assessed that ADHD and ODD were ongoing and he increased medication
At each office visit from April 2014 through December 2014,
under the “Subjective” heading in office notes “Symptoms represent
significant impairment in functioning in 2 or more settings” was
noted without elaboration.
(R. 289, 417, 419, 421, 423, 425.)
On April 24, 2014, Dr. Tegene completed a “Childhood
Medical/Psychological Source Statement of Functional Abilities”
providing information about A.M.’s functioning in the six
In the domain of acquiring and
using information, he noted the following: A.M. was hyperactive,
impulsive, and inattentive; he met the criteria for ADHD, combined
type; he learned new information and was able to retain it but he
rushed through his work; he was oriented to time, place, and
person; and he knew his home address and phone number.
In the domain of attending and completing tasks, Dr. Tergene opined
that A.M. had difficulty focusing and staying on task, he was
easily distracted, he had difficulty finishing projects, and he was
In the domain of interacting and relating to
others, Dr. Tergene reported the following: A.M. did not have any
close friends–-he enjoyed being with others but he did not respect
personal boundaries; he did not comply with rules, tested limits,
and challenged authority; he did not accept criticism and was
sensitive; and he was able to speak fluently and express himself
In the domain of moving about and manipulating
objects, Dr. Tergene noted that A.M. liked to play outside and was
well coordinated but he had difficulty paying attention and did not
listen to his coach when he played soccer.
He added that
A.M. knew how to ride a bike, his handwriting was sloppy, and he
was impulsive and inattentive.
In the domain of caring for
self, Dr. Tergene reported that A.M. needed to be reminded to do
basic chores and self-care, he would go days without brushing his
teeth or changing clothes, his room was poorly organized, he was a
picky eater, and he rushed through things.
domain of health and physical well-being, Dr. Tegene noted that
A.M. takes advil for headaches, he was physically well-developed
for his age, and he was on Focalin twice daily with the side effect
of decreased appetite.
On November 27, 2013, Kathie Lee completed a Teacher
She had seen A.M. every other day for
eight months as a learning support teacher for reading, language
arts, and math.
Of the thirteen subparts in the
“Attending and Completing Tasks” category, Ms. Lee identified three
areas where A.M. had serious problems: “Focusing long enough to
finish assigned activity or task”; “Refocusing to task when
necessary”; and “Organizing own things or school materials.”
She added that A.M. “benefits from daily support in all
I checked many of the areas above as problems but w/current
SDIs he is able to maintain.”
Of the thirteen subparts in
the “Interacting and Relating with Others” category, Ms. Lee
identified two areas where A.M. had serious problems: “Seeking
attention appropriately”; and “Expressing anger appropriately.”
Of the ten subparts of the “Acquiring and Using
Information” category, Ms. Lee identified four areas where A.M. had
serious problems: “Understanding school and content vocabulary”;
“Reading and comprehending written material”; “Providing organized
oral explanations and adequate descriptions”; and “Expressing ideas
in written form.”
Ms. Lee added that A.M. had recently
been diagnosed as a student with “OHI and a SLD in written
He benefits from small group instruction & positive
redirection. [A.M.] continues to show progress with specific goals
and specially designed instruction.”
On January 20, 2015, A.M.’s fifth grade teachers, Jason Koch
and Carrie Martin, completed a Teacher Questionnaire.
They indicated that A.M. was at the fourth grade level for reading,
math and written language and that he received daily learning
support in these areas.
In the area of “Acquiring and
Using Information,” they identified serious problems in five of the
ten subparts: “Reading and comprehending material”; “Comprehending
and doing math problems”; “Providing organized oral explanations
and adequate descriptions”; “Expressing ideas in written form”;
“[L]earning new material”; and “Applying problem-solving skills in
They noted that A.M. exhibited
“extreme attention seeking behaviors. . . . [He] is capable of
attending to, engaging in, and completing grade level tasks.
However, when left to work independently in any capacity, he is
completely off-task and unfocused unless someone works with him one
In the area of “Attending and Completing Tasks,”
of the thirteen subparts, they identified serious problems in four
categories and very serious problems in seven categories.
They found that A.M. had serious problems in the following
areas: “Carrying out single-step instructions”; “Waiting to take
turns”; “Changing from one activity to another without being
disruptive”; and “Working without distracting self or others.”
They found very serious problems in the following areas:
“Focusing long enough to finish assigned activity or task”;
“Refocusing to task when necessary”; “Carrying out multi-step
instructions”; “Organizing own things or school materials”;
“Completing class/homework assignments”; “Completing work
accurately without careless mistakes”; and “Working at reasonable
pace/finishing on time.”
In the area of “Interacting
and Relating with Others,” the teachers indicated a serious problem
with “Expressing anger appropriately” and a very serious problem
with “Seeking attention appropriately”; ratings ranged from no
problem to obvious problem in the remaining eleven subparts.
In the area of “Caring for Himself or Herself,” the teachers
identified serious problems in five of the ten subparts: “Handling
frustration appropriately”; “Being patient when necessary”;
“Identifying and appropriately asserting emotional needs”;
Responding appropriately to changes in own mood (e.g. calming
self); “Using appropriate coping skills to meet daily demands of
They noted that A.M.’s mood was
stable and he was not disruptive when he took his medication but he
still did not complete his work.
teachers state “[m]edication does help however it doesn’t do
anything for [A.M.’s] constant need for attention which affects his
They also commented that a
therapeutic support staff (TSS) would be good for A.M. to redirect
him and keep him focused on completing tasks.
State Agency Consultant Opinion
On December 3, 2013, Karen Weitzner, Ph.D., reviewed evidence
and provided a Childhood Disability Evaluation.
concluded that A.M. had the severe impairments of ADD/ADHD and
Learning Disorder and considered the child listings of ADHD and
Organic Mental Disorders.
Because Dr. Weitzner concluded
that the impairments did not meet or equal a listing, she
considered whether the impairments functionally equaled a listing.
In so doing, Dr. Weitzner made the following findings: 1)
“Acquiring and Using Information” rating was “Less Than Marked”; 2)
“Attending and Completing Tasks” rating was “Less Than Marked” with
the added notation that “Claimant is showing improvement in his
ability to sustain attention and complete tasks based on progress
notes from psychiatrist [and] [h]e continued to need some supports
and intervention”; 3) “Interacting and Relating With Others”
rating was “Less Than Marked”; 4) “Moving About and Manipulation of
Objects” rating was “No Limitation”; 5) “Caring For Yourself”
rating was “Less Than Marked”; and 6) “Health and Physical WellBeing” rating was “No Limitation.”
Hearing Testimony and Function Report
Plaintiff and A.M. testified at the February 23, 2015,
(See R. 29.)
A.M. testified that he helped take care of
his two-year-old brother and the family dog, and he has two friends
in his neighborhood.
He said his chores included taking
out the trash but he doesn’t always do it.
A.M. said he
“mostly” gets along with his fifth grade teacher and explained he
answered “mostly” because he had problems if he didn’t take his
A.M. testified that he sometimes disrupted the
class by acting silly and not doing his work, and he was able to do
work on his own at times but needed help at other times.
He also said he was in regular classes, he got along with
other students, and he did not get into fights.
After A.M. left the hearing room, Plaintiff confirmed that he
rarely forgets to take his medication, he’s on the go all the time,
and he had to be reminded constantly about what you want him to do.
When asked how long A.M. was able to pay attention at
one time, Plaintiff responded that it depended on what he was
doing–-a video game would hold his attention more than school work
but he would only play a video game for ten to fifteen minutes
before he was “off to the next thing.”
A.M.’s school performance, Plaintiff said the teacher said he
needed a lot of one-on-one attention and often did not do his work
She said the school was talking about
getting a TSS (therapeutic support staff) for him.
Plaintiff said A.M. does not take out the trash without being
reminded and he also needed to be reminded to change clothes and
take a shower.
She added that Plaintiff had seven baby
teeth pulled because he did not brush his teeth.
A.M.’s attorney urged the ALJ to give the teacher
questionnaire substantial weight and, under the equivalency
guidelines, the attending and completing tasks domain was extreme
or at least marked and, if found marked, the caring for self domain
was marked as well.
Plaintiff completed a “Function Report - Child” on Novmeber 4,
She indicated that A.M.’s ability to
communicate was limited in all categories identified, his ability
to progress in learning was limited in all but one category
identified, his impairments affected his behavior with other people
in all identified categories, and his ability to pay attention and
stick with a task was limited in all identified categories.
106, 107, 109, 111.)
in any category.
Plaintiff provided no additional explanation
In his March 13, 2015, Decision, ALJ Staller’s findings
included the following: A.M. had the severe impairments of
attention deficit-hyperactivity disorder (ADHD), oppositionaldefiant disorder (ODD), and a learning disorder; his impairments
did not meet or equal the severity of a listed impairment; he did
not have an impairment or combination of impairments that
functionally equaled the severity of the listings; and he had not
been disabled since the date of the application, September 10,
Regarding functional equivalency, ALJ Staller
made the following findings: 1) the claimant had less than marked
limitation in acquiring and using information; 2) the claimant had
less than marked limitation in attending and completing tasks; 3)
the claimant had less than marked limitation in interacting and
relating to others; 4) the claimant had no limitation in moving
about and manipulating objects; 5) the claimant had less than
marked limitation in caring for yourself; and 6) the claimant had
no limitation in health and physical well-being.
Other relevant portions of the ALJ’s Decision will be referenced in
the Discussion section of this Memorandum.
II. Disability Determination Process
The federal Supplemental Security Income program provides
benefits to disabled individuals who meet certain statutory income
and resource limitations.
42 U.S.C. § 1381.
statutory provision states that
[a]n individual under the age of 18 shall be
considered disabled for the purposes of this
subchapter if that individual has a medically
determinable physical or mental impairment,
which results in marked and severe
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. § 1382c(a)(3)(C)(i).
Pursuant to 20 C.F.R. § 416.924,
disability for children is determined using a three-step analysis:
1) whether the child is engaging in substantial gainful activity;
2) whether the child has a “severe” impairment or combination of
impairments that is “severe”; and 3) whether the impairment or
combination of impairments meets, medically equals, or functionally
equals the listings.
20 C.F.R. § 416.924(a).
At step three, a
child’s impairment meets or medically equals a listed impairment if
the impairment meets all criteria contained in the regulations.
See Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Relevant to this case is the inquiry of whether the child’s
impairment or combination of impairments meets or functionally
equals the listing for Attention Deficit Hyperactivity Disorder,
(See Doc. 18 at 9.)
Under listing 112.11, the
child’s ADHD meets the required level of severity when there are
medically documented findings of marked inattention, marked
implusiveness, and marked hyperactivity, and there is a “marked
impairment in at least two of the following:
cognitive/communicative function, social functioning, personal
functioning, or concentration, persistence, or pace.
20 C.F.R. Pt.
405, Subpt. P. Appx. 1, § 112.11.
Functional equivalence of a child’s impairment is explained in
20 C.F.R. 416.926a:
If you have a severe impairment or
combination of impairments that does not meet
or medically equal a listing, we will decide
whether it results in limitations that
functionally equal the listings. By
“functionally equal the listings,” we mean
that your impairment(s) must be of listinglevel severity; i.e., it must result in
“marked” limitations in two domains of
functioning or an “extreme” limitation in one
20 C.F.R. § 926a(a).
General factors to be considered include the
following: 1) how well the claimant can initiate and sustain
activities, how much extra help is needed, and the effects of
structured or supportive settings; 2) how the claimant functions in
school; and 3) the effects of medication and other treatment.
The six domains of functioning are: “(i) Acquiring and Using
Information; (ii) Attending and Completing Tasks; (iii) Interacting
and Relating with Others; (iv) Moving about and Manipulating
Objects; (v) Caring for Yourself; and (vi) Health and Physical
20 C.F.R. § 416.926a(b)(1).
A limitation is “marked”
when it “interferes seriously with your ability to independently
initiate, sustain, or complete activities” and “marked” limitation
“also means a limitation that is more than moderate but less than
20 C.F.R. § 416.926a(e)(2)(i).
A limitation is
“extreme” if the “impairment(s) interferes very seriously with your
ability to initiate, sustain, or complete activities.”
20 C.F.R. §
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.
42 U.S.C. § 405(g); Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d
Cir. 2000) (citations omitted).
If he has not done so and has not
sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
In Cotter, the Circuit Court clarified that the ALJ must
not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake an
exhaustive discussion of all the evidence.
See, e.g., Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
Where a claimed error
would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
an ALJ’s decision can only be reviewed by a court based on the
evidence that was before the ALJ at the time he or she made his or
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Plaintiff asserts that the Acting Commissioner’s determination
should be reversed or remanded for the following reasons: 1) the
ALJ erred in finding that A.M. had less than a marked limitation in
acquiring and learning new information and in attending and
completing tasks; 2) the ALJ erred in failing to accord proper
weight to a treating source opinion; and 3) the ALJ erred in
failing to credit A.M.’s statements to his treating physician after
finding him generally credible.
(Doc. 18 at 8.)
Domain of Acquiring and Using Information
Although Plaintiff asserts error on the basis of the ALJ’s
consideration of the domain of acquiring and using information, no
specific argument is made in support of this error in Plaintiff’s
(See Doc. 18 at 13-16.)
Defendant notes in her
responsive brief that Plaintiff did not make any argument about
A.M.’s ability to learn and acquire new information.
(Doc. 22 at
Plaintiff’s reply brief also lacks specific argument on the
(See Doc. 25.)
Therefore, the Court concludes Plaintiff
has failed to show error on this issue.
Domain of Attending and Completing Tasks
Plaintiff maintains the ALJ erred in not finding a marked
limitation in the domain of attending and completing tasks in that
the ALJ gave significant weight to the Teacher Questionnaires which
indicated serious and very serious problems in this domain and Dr.
Tegene’s Medical Source Statement which indicated difficulty
(Doc. 18 at 14-15.)
Defendant responds that
the ALJ’s finding in this domain is supported by substantial
(Doc. 22 at 17.)
The Court concludes Plaintiff has not
shown that this claimed error is cause for reversal or remand.
In her supporting brief, Plaintiff states that “[i]t appears
that the only basis for the Administrative Law Judge’s finding that
the Plaintiff did not have an extreme or even marked limitation in
attending and completing tasks was because discipline for his
failure to function in these areas was relatively mild.”
Defendant notes that this is an unfair reading of the
record because the ALJ provided a broader analysis of the issue.
(Doc. 22 at 17-18.)
Review of ALJ Staller’s functional equivalency analysis shows
that his determination was based on a broad consideration of the
(R. 16-18, 20-21.)
In general discussion, he extensively
reviewed the evidence he considered, appropriately providing
specific citation to the relevant record.
(See R. 16-18.)
found that “the evidence of record did not support the allegations
of debilitating conditions regarding the intensity, persistence,
and limiting effects” of A.M.’s impairments, ALJ Staller also
individually assessed each domain.
(R. 17, 18-25.)
discussion of the domain of attending and completing tasks included
Social Security regulation 20 CFR
416.926a(h)3)and SSR 09-4p set forth some
examples of limited functioning in this
domain that children of different ages might
have. The examples do not apply to a child
of a particular age; rather, they cover a
range of ages and developmental periods. In
addition, the examples do not necessarily
describe “marked” or “extreme” limitation in
the domain. Some examples of difficulty
children could have in attending and
completing tasks are: (i) is easy startled,
distracted, or over-reactive to everyday
sounds, sights, movements, or touch; (ii) is
slow to focus on, or fails to complete,
activities of interest (e.g. games or art
projects); (iii) repeatedly becomes sidetracked from activities or frequently
interrupts others; (iv) is easily frustrated
and gives up on tasks, including ones he is
capable of completing; (v) requires extra
supervision to remain engaged in an activity;
or (vi) cannot plan, manage time, or organize
self in order to complete assignments or
Record pages appear to be misnumbered in that contextually
page 17 follows page 15, page 16 follows page 17, and page 18
follows page 16 resulting in the page sequence 15, 17, 16, 18. (R.
The claimant has less than marked
limitation in attending and completing tasks.
While the claimant’s mother reported that the
claimant had difficulty focusing and
completing tasks, she noted that certain
activities hold his interest longer than
others. For example, his attention span is
longer for video games and playing with
friends than with school work (Testimony).
The fourth- and fifth-grade teachers noted
that he tries to find ways to not have to
complete tasks. However, the teachers
indicate that he does well with one-on-one
instruction (Exhibits 4E/6 and 11E/4). The
treating psychiatrist indicated that he
became distracted and bored easily (Exhibit
2F). The claimant has an IEP and receives
teaching support that helps him stay on task
and complete assignments (Exhibit 5F).
Further, the treating psychiatrist noted
improvements in his ADHD and ODD (Exhibit
3F). The mental health records indicated
less fidgetiness with medication. (Exhibits
1F, 2F, 3F, and 11F). The claimant’s mother
reported an improvement in the claimant’s
attention and behavior when he takes his
medication (Testimony). Although the
claimant has some difficulty in attending and
completing tasks, the undersigned finds that
the claimant has less than marked limitation
in this domain. The State agency
psychologist’s assessment supports this
finding (Exhibit 2A).
This recitation clearly indicates that Plaintiff
mischaracterizes the basis for the ALJ’s conclusion regarding the
domain of attending and completing tasks.
correctly notes that the ALJ gave significant weight to teachers’
questionnaires (see Doc. 18 at 14-15), a contextual analysis does
not support Plaintiff’s claimed errors in that ALJ Staller’s
explanation of his assessment is more nuanced than Plaintiff
The undersigned gives significant weight to
the teachers’ questionnaires because they
[are] generally consistent with the education
records demonstrating that while the claimant
. . . exhibits impulsive and attention
seeking behavior, he has shown improvement
with medication, behavior modifications, and
one-on-one learning as provided in the IEP.
He has successfully completed each grade and
has avoided serious discipline in school.
The undersighed notes that the fifth-grade
teacher’s finding . . . very serious
problems in focusing and completing work on
an hourly basis appears to be an
overestimation of the difficulties in these
areas when compared to the education records,
the disciplinary records, and the teacher’s
comments of improvement.
The quoted text shows that the ALJ did not wholly adopt
the teachers’ questionnaires and any inference that the
“significant weight” attributed to the opinions requires a finding
of marked limitation in this domain is not supported by the record.
Plaintiff’s reliance on the teacher questionnaires is also
misplaced because a child’s functioning at school is just one
aspect of the functional equivalency inquiry.
20 C.F.R. §
ALJ Staller’s consideration of the domain of
attending and completing tasks is consistent with regulatory
guidance regarding functional equivalency in that he looked at
Plaintiff’s functioning at home, at school, and in the community
and considered appropriate factors such as the effects of
structured and supportive settings, the effects of medications, and
See 20 C.F.R. § 416.926a(b)(1).
Plaintiff’s assertion that the assessment of less than marked
limitations in this domain is also inconsistent with Dr. Tegene’s
opinion (Doc. 18 at 16) is not supported by Dr. Tegene’s statement
on the issue.
Dr. Tegene noted difficulties but did not rate their
severity with his consideration of the domain of attending and
completing tasks where he stated that “[A.M.] has difficulty
focusing and staying on task.
He gets easily distracted.
difficulty finishing projects, he gets easily bored.”
Contrary to Plaintiff’s assertion that the ALJ’s explanation
does not allow for reasonable review (Doc. 18 at 16), the Court
concludes that the ALJ’s detailed analysis provides an adequate
basis for review of his findings.
Plaintiff has not shown that the
ALJ’s conclusion that Plaintiff has less than marked limitation in
attending and completing tasks is not supported by substantial
Therefore, this claimed error does not provide a basis
for reversal or remand.
Treating Source Opinion
Plaintiff contends the ALJ erred in failing to accord Dr.
Tegene’s opinion treating physician weight.
(Doc. 18 at 16.)
Defendant responds that the ALJ reasonably assessed the opinion as
not suggesting a serious limitation in attending and completing
(Doc. 22 at 21.)
The Court concludes Plaintiff has not
shown that the claimed error is cause for reversal or remand.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.3
Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
Sometimes called the “treating physician rule,” the
principle is codified at 20 C.F.R. 404.1527(c)(2), and is widely
accepted in the Third Circuit.
Mason v. Shalala, 994 F.2d 1058 (3d
Cir. 1993); see also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).
The regulation addresses the weight to be given a treating source’s
opinion: “If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case, we will give it controlling
A new regulation regarding weight attributed to a treating
source affects cases filed after March 27, 2017. For claims filed
after March 27, 2017, 20 C.F.R. § 404.1520c eliminates the treating
source rule. In doing so, the Agency recognized that courts
reviewing claims have “focused more on whether we sufficiently
articulated the weight we gave treating source opinions, rather
than on whether substantial evidence supports our decision.” 82 FR
5844-01, 2017 WL 168819, *at 5853 (Jan. 18, 2017). This case,
filed on October 5, 2016 (Doc. 1), is not affected by the new
regulation and is to be analyzed under the regulatory scheme cited
in the text.
20 C.F.R. § 404.1527(c)(2).4
“A cardinal principle
guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight, especially when
their opinions reflect expert judgment based on continuing
observation of the patient’s condition over a prolonged period of
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
(citations omitted); see also Brownawell v. Commissioner of Social
Security, 554 F.3d 352, 355 (3d Cir. 2008).
In choosing to reject
20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”
F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
Here, ALJ Staller explained his assessment of Dr. Tegene’s
opinion as follows:
The undersigned has considered the April
2014 medical source statement of Ben Tegene,
M.D., the treating psychiatrist, that found
generally no serious difficulties in the six
domains. Specifically, Dr. Tegene noted that
claimant has ADHD with hyperactivity,
impulsivity, and inattentiveness and has an
IEP for learning disorder. However, Dr.
Tegene noted that the claimant learns and
retains new information, that he has
difficulty focusing and finishing tasks, that
he does not comply with rules and tests the
limits of authority, that he moves about
well, that he needs to be reminded of selfcare, and that he is well-developed
physically (Exhibit 2F). The undersigned
gives significant weight to the medical
source statement because Dr. Tegene is a
treating provider who has had an opportunity
to observe, examine, and treat the claimant
over a longitudinal period. Further, the
assessment is consistent with Dr. Tegene’s
clinical observations and the mental status
examinations showing less than serious
functional problems and with the routine and
conservative treatment that indicated
improvement in the symptoms following
medication and with the educational records
showing successful completion of regular
classes with an IEP for itinerant learning
support. Moreover, Dr. Tegene’s assessment
is generally consistent with the claimant’s
daily activities and functional abilities at
home and at school.
(R. 16, 18.)
First, as discussed above, Plaintiff’s reliance on opinion
evidence to support a more than marked limitation in the domain of
attending and completing tasks is misplaced.
Plaintiff again characterizes Dr. Tegene’s findings in the domain
of attending and completing tasks as inconsistent with a finding of
less than marked limitation in this domain, the only basis provided
for doing so is that the ALJ “found that Dr. Tegene’s limitations
were generally consistent with the limitations assessed by [A.M.’s]
(Doc. 18 at 17-18.) A review of the Decision shows that
the ALJ did not find that Dr. Tegene’s limitations were generally
consistent with those assessed by A.M.’s teachers.
noted that the opinion was “generally consistent with the
claimant’s daily activities and functional abilities at home and at
As evidenced by the fact that ALJ Staller
qualified the weight attributed to one of the teacher opinions as
an overestimation of difficulties in the area of functioning and
completing tasks when considered in the context of education
records, disciplinary records, and teacher’s comments of
improvements (R. 16), his conclusion that Dr. Tegene’s opinion was
generally consistent with A.M.’s functional abilities at school is
an observation based on more than A.M.’s teachers’ opinions.
Therefore, even assuming arguendo that the teachers’ opinions
supported marked limitations, no correlation could be made that Dr.
Tegene’s opinion must be read to support the same.
Considered in context, nothing in the Decision suggests that
the ALJ’s determination regarding the weight assigned Dr. Tegene’s
opinion was not supported by substantial evidence.
Plaintiff has failed to show that the claimed error is cause for
reversal or remand.
Plaintiff asserts that the ALJ erred in failing to credit
A.M.’s statements to his treating physician after finding that A.M.
was generally credible.
(Doc. 18 at 18.)
Defendant responds that
the ALJ reasonably assessed Plaintiff’s limitations.
(Doc. 22 at
The Court concludes Plaintiff has not shown that this claimed
error is cause for reversal or remand.
Plaintiff’s premise is flawed in that the ALJ found that
“statements concerning the intensity, persistence, and limiting
effects of . . . symptoms are not entirely credible,” later in the
Decision adding that A.M.’s and his mother’s statements concerning
the intensity, persistence, and limiting effects of his symptoms
“are relatively consistent with the record as a whole and are
generally credible to the extent that it supports the functional
equivalence domain findings below.”
(R. 17, 18 (emphasis added).)
ALJ Staller extensively explained the basis for his assessed
credibility limitations (R. 17, 18) and Plaintiff does not refute
the evidence cited (see Doc. 18 at 18-19) but rather cites evidence
which she infers are consistent with finding greater limitations
than those assessed by the ALJ (id.).
Importantly, the Court’s
review is not concerned with what the ALJ could have concluded, the
focus is whether his findings are supported by substantial
See, e.g., Hartranft, 181 F.3d at 360.
Plaintiff has not shown the ALJ’s credibility determination was not
based on substantial evidence, she has not shown that the claimed
error is cause for reversal or remand.
For the reasons discussed above, the Court concludes
Plaintiff’s appeal is properly denied.
An appropriate Order is
filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: August 18, 2017
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