Barlet v. Berryhill

Filing 15

MEMORANDUM (Order to follow as separate docket entry)Plaintiffs assignment of error regarding whether the record contains substantial evidence that she does not require 24-hour adult supervision is affirmed. Plaintiffs other assignments of error are rejected. This matter is remanded to the Commissioner for further proceedings to include a more detailed discussion of how the Agency concludes that this child, with a well-documented history of uncontrolled diabetes and serious psychological probl ems (ODD and ADHD) that result in improper dietary choices that exacerbate her DM, is not in need of 24-hour adult supervision. An Order consistent with the foregoing discussion will be filed contemporaneously.Signed by Honorable Richard P. Conaboy on 9/20/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Christina Barlet

:

Plaintiff,

: Civil Action No. 3:17-CV-278

v.

: (Judge Richard P. Conaboy)

NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security
Defendant.

:
:
:

___________________________________________________________________
Memorandum
I. Background.
We consider here the appeal of Christina Barlet, on behalf of
her minor daughter, Elizabeth Barlet, from a decision of the Social
Security Administration (“SSA”) or (“Agency”) that denied her
application for Supplemental Security Income (“SSI”)benefits.

The

application was denied administratively on December 12, 2013.
After a hearing before the Administrative Law Judge (“ALJ”), the
claim was denied by a written decision dated August 25, 2015.

The

Appeals Council affirmed the ALJ’s decision by letter dated

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure which addresses the substitution of parties when a
public officer is replaced, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. Fed. R. Civ. P. 25(d). No further action needs to 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. section 405(g), which states that “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying the office of Commissioner of
Social Security or any vacancy in such office.”
1

December 15, 2016.

The Appeals Council’s affirmance constitutes a

“final decision” by the Agency from which Plaintiff timely appeals.
This Court has jurisdiction over this matter pursuant to 42 U.S.C.
§ 1383(c)(3).

The parties have briefed the issues (Docs. 12, 13

and 14) and this case is now ripe for dispostion.
II.

Testimony Before the ALJ.
The hearing before the AlJ occurred on May 19, 2015.

Plaintiff testified as did Christina Marie Barlet (claimant’s
mother), Rick Barlet (claimant’s father), John Kowalski of Luzerne
County Children and Youth Services, and Jane Miller, also of
Luzerne County Children and Youth Services.
A. Plaintiff.
The Plaintiff’s testimony may be summarized as follows.

She

was eleven years of age at the time of the hearing and a student in
the fifth grade at the Lake Lehman School District.
subject is math.

Her favorite

Her least favorite subject is reading.

extra help in school with both math and reading.

She gets

The extra help

consists of allowing her extra time to complete her assignments.
She also is allowed time to snack to help control her diabetic
condition.

Her mother helps her with her homework.

(R.42-43).

Plaintiff stated that she participates in gym class but is
restricted in that regard because she cannot touch latex balls or
gym mats.

She gets along well with her fellow students and her

teachers in her own estimation.

She states that she has not been

2

subjected to any disciplinary measures in school.

(R.44).

Plaintiff takes insulin at least twice daily and administers
it herself.

She also takes Levothyroxine and allergy medications.

These medications can make her tired and, at times, hyperactive.
She lives at home with her mother, father, and two younger
brothers.

She has three cats at home and takes care of them

personally.

She also cleans her bedroom and bathroom and does not

experience any physical problems when doing so.

She no longer has

the assistance of a mobile therapist and has less help from a TSS
worker than had formerly been the case.
B.

(R.45-47).

Christina Marie Barlet.

The testimony of Christina Marie Barlet, Plaintiff’s mother,
may be summarized as follows.

Her daughter takes multiple

medications including: Lantus, Novolog, insulin syringes and test
strips, Lancet, Ketostix, Levothyroxine, Ventolin, Albuterol,
Econazole cream, Flonase, and Benadryl.

These medications are

basically for control of Plaintiff’s diabetes and
asthmatic/hyperallergic conditions.

In addition, Plaintiff’s blood

sugar level must be frequently monitored and her diet frequently
adjusted to address fluctuations in her blood sugar level.

(R.47-

50).
Plaintiff’s treating physician was Dr. Stone until October of
2014 when he stopped practicing medicine.
care in November of 2014.

Dr. Cook assumed her

She also saw several doctors at

3

Northeast Counseling Services, but, because of changes in
government reimbursement practices, she can no longer go there.
Dr. Cook and a Dr. Long, who also sees the Plaintiff, are
affiliated with Geisinger Medical Center.

She sees one or the

other every two months or more often if she gets sick.

She also

sees Dr. Delregno for vision problems and Dr. Trovitch, a pediatric
endocrinologist.

(R.50-51).

Plaintiff’s grades fluctuate.

Her mother attributes this in

part to the fact that she misses a lot of school due to her
illnesses.

At the time of the hearing, Plaintiff had already

missed more than 20 days in the current school year.

Plaintiff is

identified as a special needs student and her schooling is governed
by an individualized educational program.

(“IEP”).

A special

education teacher helps Plaintiff in reading and math and assists
her when she takes tests.

Also, Mrs. Barlet must meet with

cafeteria staff at the beginning of the year to make them aware of
her child’s dietary restrictions and to find out what she must
personally supply to meet her child’s needs.

Every time there is a

field trip Mrs. Barlet must attend because the school will not
furnish a nurse for that purpose.

She must also meet frequently

with the principal, guidance counselors, and her child’s teachers
regarding her child’s special problems.
attention deficit disorder.

These problems include

Plaintiff cannot take the medications

normally prescribed for attention deficit disorder because of her

4

allergy to gluten (Celiac disease).

As a result, she is at times

“hyped up” and “antsy” and this results in behavioral problems.

At

other times, if her blood sugar level gets too low or her asthma
flares, she must be monitored in the nurse’s office.

(R.52-54).

Plaintiff’s mother states that she is physically capable of
dressing herself but that she often needs help with her personal
hygiene.

She must often be reminded to shower and her mother must

monitor her in the shower to make sure she showers effectively.
Plaintiff is very aggressive in her interactions with her younger
brothers and is very inconsiderate at times.

Mrs. Barlet

attributes these behaviors to her child’s diabetes and attention
deficit disorder.

When her child had access to the TSS worker her

behavior improved.

Because medical assistance no longer pays for

the services of a TSS worker, she has been unable to provide for
these services.

(R.56-57).

Mrs. Barlet testified further that she had brought John
Kowalski and Jane Miller from Luzerne County’s Office of Children
and Youth Services for purposes of securing their testimony.

She

stated that they were instrumental in forcing her child’s school to
develop a more comprehensive IEP to meet her needs.

Before Mr.

Kowalski and Ms. Miller became involved, the school was largely
unresponsive to her child’s special needs.

Mrs. Barlet also noted

that the school has been habitually resistant to supplying her
child with things she requires such as certain food items, glucose

5

tests, alcohol wipes to test her sugar, latex-free erasers, special
art supplies, and latex-free gloves.

She also testified that she

must constantly educate school personnel regarding her daughter’s
numerous special needs.
C.

(R.58-59).

Rick Barlet.

Rick Barlet, Plaintiff’s father, also testified regarding the
difficulties they have experienced getting cooperation from school
authorities to adapt to their daughter’s special needs.

He

emphasized particularly their struggle with the cafeteria staff’s
inattention to the problems caused by even lightly touching any of
the foods served to their daughter with latex gloves.

When such

cross-contamination occurs, their daughter experiences a severe
allergic reaction secondary to her Celiac disease that often
results in her missing school.

He stated that his wife is often on

the phone with the school nutritionist to find out what was served
for lunch on days when their daughter comes home sick.

On these

occasions, it is often the case that her daughter was served food
containing gluten, a substance she cannot tolerate.
D.

(R.60-62).

Luzerne County Children’s Services.

The final two witnesses were John Kowalski and Jane Miller,
both employees of the Luzerne County Bureau of Children Services.
Mr. Kowalski testified that he had been assigned to Plaintiff’s
case in December of 2012 due to her diabetic condition.

He is a

life-long diabetic himself and has lost he eyesight as a result of

6

the disease.

He stated that his task was to help Plaintiff “as

much as I possibly could in terms of diabetic control, diet,
education, and her situation at school for accommodations...”.

He

explained further that Plaintiff is a very brittle diabetic whose
health is further complicated by her latex allergy and Celiac
disease.

He stated that Plaintiff’s eyesight had already been

affected by the disease and her struggle with the disease will be
something that will go on for as long as she lives.

He has tried

to teach her to make better dietary choices and to be strictly
compliant with her insulin regimen.

He stated further that

Plaintiff’s parents have gone beyond what would be expected of the
parents of a diabetic but that doing so has been very costly to
them.

He urged the AlJ to find in Plaintiff’s favor because that

result “would help her and her parents in the long run, and in the
short run as well.”

(R.66-68).

Jane Miller was the final witness.

She stated that she was

employed by Luzerne County Children and Youth Services as a
“special education advocate”.

She helps the families of students

with special problems with issues involving their schooling.

She

corroborated Mr. Kowalski’s assessment that Plaintiff’s brittle
diabetes, Celiac disease, and latex allergy pose very complicated
problems both at school and in the home.

She stated that she was

instrumental in helping Plaintiff’s parents persuade her school to
provide an IEP that is more truly reflective of the child’s needs.

7

She stated that since the IEP had been created she had not heard
from either the school or the family.

For this reason she assumed

that the accommodations were proving to be beneficial.
III.

(R.69-70).

Medical Evidence.
Suffice it to say that the medical evidence of record from a

variety of health care providers conclusively establishes that
Plaintiff has been affected by uncontrolled diabetes mellitus since
she was approximately four years of age.

In terms of

behavioral/emotional difficulties, Plaintiff’s oppositional
defiance disorder (“ODD”) attention deficient hyperactivity
disorder (“ADHD”), and disruptive behavior disorder are all well
documented in the record.

The ALJ has noted that each of these

conditions constitutes a “severe impairment” in terms of the SSA’s
definitional requirements.

Plaintiff also has a well-documented

history of numerous other conditions including Celiac disease,2
allergy to latex products, asthma, and diabetic retinopathy.3
2

Celiac disease (gluten-sensitive enteropathy), sometimes called Sprue or Coeliac, is an
immune reaction to eating gluten, a protein found in wheat, barley and rye. If you have Celiac
disease, eating gluten triggers an immune response in your small intestine. Over time, this reaction
damages your small intestine’s lining and prevents absorption of some nutrients (malabsorption).
The intestinal damage often causes diarrhea, fatigue, weight loss, bloating and anemia, and can lead
to serious complications. In children malabsorption can affect growth and development, in addition
to the symptoms seen in adults. There is no cure for Celiac disease, but for most people, following a
strict gluten-free diet can help manage symptoms and promote intestinal healing.
www.mayoclinic.org/diseases/conditions/diabeticretinopathy.
3

Diabetic retinopathy is a diabetes complication that affects eyes. It is caused by damage to
the blood vessels of the light-sensitive tissue at the back of the eye (retina). At first, diabetic
retinopathy may cause no symptoms or only mild vision problems. Eventually, it can cause
blindness. The condition can develop in anyone who has Type I or Type II diabetes. The longer you
8

There is no argument here about the presence of any of these
afflictions.

The argument concerns the extent to which these

conditions limit Plaintiff and produce “marked and severe
functional limitations”.
IV.

See 42 U.S.C.§ 1382c(A)(3)(C)(1).

ALJ Decision.
The AlJ’s decision (Doc. 11-2 at 10-36) was unfavorable to the

Plaintiff.

It included the following Findings of Fact and

Conclusions of Law:
1.

The claimant was born on February 24, 2004.
Therefore, she was a preschooler on July 31, 2013,
the date the application was filed, and is currently
a school-age child.

2.

The claimant has not engaged in substantial gainful
activity since July 31, 2013, the application date.

3.

The claimant has the following severe impairments:
diabetes mellitus, an oppositional defiance disorder
(ODD), attention deficit hyperactivity disorder
(ADHD), and a disruptive behavior disorder.

4.

The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

have diabetes and the less controlled your blood sugar is, the more likely you are to develop this eye
complication. www.mayoclinic.org/diseases-conditions/diabeticretinopathy.
9

416.924, 416.925 and 416.926).
5.

The claimant does not have an impairment or
combination of impairments that functionally equals
the severity of the listings at 20 CFR 416.924(d)
and 416.926(a).

6.

The claimant has not been disabled, as defined in
the Social Security Act, since July 31, 2013, the
date the application was filed.

V.

Disability Determination Process.
The Social Security Administration has established a three-

step sequential evaluation process to determine whether an
individual under the age of eighteen is disabled (20 CFR
416.924(a).

At step one, the undersigned must determine whether

the claimant is engaged in substantial gainful activity.
Substantial gainful activity is defined as work activity that is
both substantial and gainful.

“Substantial work activity” is work

activity that involves doing significant physical or mental
activities.

“Gainful work activity” is work that is usually done

for pay or profit, whether or not a profit is realized.

Generally

if an individual has earnings from employment or self-employment
above a specific level set out in the regulations, it is presumed
that he or she has demonstrated the ability to engage in
substantial gainful activity.

(20 CFR 416.974 and 416.975).

If

the claimant does engage in substantial gainful activity, he or she

10

is not disabled regardless of his or her medical condition, age,
education, or work experience (20 CFR 416.924(b)).

If the

individual is not engaging in substantial gainful activity, the
analysis proceeds to the second step.
At step two, it must be determined whether the claimant has a
medically determinable impairment that is “severe” or a combination
of such impairments that is “severe” (20 CFR 416.924(a)).

For an

individual who has not attained age 18, a medically determinable
impairment or combination of impairments is not severe if it is a
slight abnormality or a combination of slight abnormalities that
causes no more than minimal functional limitations (20 CFR
416.924(c)).

If the claimant does not have a severe medically

determinable impairment or combination of impairments, he or she is
not disabled.

If the claimant has a severe impairment(s), the

analysis proceeds to the third step (20 CFR 416.924(a)).
At step three, the Social Security Administration must
determine whether the claimant has an impairment or combination of
impairments that meets or medically equals the severity of a
listing, or that functionally equals one of the listings.

In

making this determination, the Social Security Administration must
consider the combined effect of all medically determinable
impairments, even those that are not severe (20 CFR 416.923,
416.924(a)(b)(4), and 416.926(a) and (c)).

If the claimant has an

impairment or combination of impairments that meets or medically

11

equals the severity of, or functionally equals one of the listings,
and it has lasted or is expected to last for a continued period of
at least 12 months, he or she is presumed to be disabled.
the claimant is not disabled.

If not,

(20 CFR 416.924(b)).

As delineated above, the instant decision was made at the
third step of the process when the ALJ found that the Plaintiff
does not have impairment or combination of impairments that meet or
medically equals the severity of a listing.

(R.at 18-20).

VI. 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.

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

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
12

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.

710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she 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

13

approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

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.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
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.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
14

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 . . .”).

“However,

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
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

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 her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VII. Discussion.
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
15

See Dobrowolsky,

606 F.2d at 406.

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Allegations of Error.
Plaintiff asserts that the AlJ erred in three instances which,

singly or in combination, requires a remand or reversal of the
ALJ’s decision.

We shall consider these assignments of error in

the order made.
1.

Whether the ALJ properly evaluated the Plaintiff’s
medical conditions with respect to the criteria of
Listing 109.00 Endocrine Disorder Children?

Listing 109.00 establishes the criteria for evaluating whether
16

various endocrine disorders, including diabetes mellitus (“DM”),
are so severe in a claimant as to be disabling.

DM is evaluated by

reference to 109.00 C which, in pertinent part, states that, in
evaluating DM in children age six or older who take insulin on a
daily basis, the SSA will
...follow our rules for determining whether the DM is
severe, alone or in combination with another impairment,
whether it meets or medically equals the criteria of a
listing in another body system or functionally equals the
listings under the criteria in § 426.926(a), considering
the factors in § 416.924.

The management of DM in

children can be complex and variable from day to day, and
all children with DM require some level of adult
supervision.

For example, if a child age 6 or older has

a medical need for 24-hour-a-day adult supervision of
insulin treatment, food intake, and physical activity to
ensure survival, we will find that the child’s impairment
functionally equals the listings based on the example in
§ 416.926 a(m)(5).

(Emphasis added).4

By way of explanation, while recognizing that Plaintiff was a
child of nine years on the alleged onset date, the ALJ concluded,
“...the claimant does not require 24-hour supervision, she takes

4

Section 416.926 a (m)(5) lists the need for “24-hour-a-day supervision for medical
(including psychological reasons)” as an example of an impairment that functionally equals a listing.
17

insulin herself, and she has no difficulties in performing her
daily chores from a physical standpoint.

Accordingly, for the

aforementioned reasons, the undersigned finds that the claimant’s
diabetes mellitus does not satisfy listing level severity.”
18).

(R.at

Plaintiff contends that the ALJ did not adequately account

for all Plaintiff’s recognized impairments in concluding that she
does not require “24 hour adult supervision”.

Based upon our

review of the record and the lack of detail (and citation) in the
ALJ’s brief explanation of how she reached her conclusion, we
agree.
The Court is struck by the fact that, in reviewing innumerable
Social Security decisions over the years, the Agency
characteristically is concerned with the provision of documented
objective medical evidence.

Here the record is liberally sprinkled

with medical reports that document the Plaintiff’s A1C levels as
elevated on at least 30 occasions between July of 2009 and December
of 2014.5

The Plaintiff’s A1C levels were measured at anywhere

between 10.8% and 12.9% on these many occasions over that five-year
span of time.
8).

See citations in Plaintiff’s Reply Brief (Doc. 14 at

This persistent pattern of significantly elevated A1C levels

over a period of years provides much support to Plaintiff’s

5

An A1C test is used to diagnose diabetes. A1C levels as high as 8% may be appropriate for
diabetics. The higher an individual’s A1C level, the higher will be the risk of diabetic
complications. www.mayoclinic.org/test-procedures.
18

assertion that she requires 24 hour adult supervision.
The record also serves to demonstrate that Plaintiff’s ODD and
ADHD are compromising her ability to do what is in her best
interest with respect to managing her diabetes.

The record

contains numerous references supporting Plaintiff’s assertion that
this child has an inability to resist eating foods that do not
belong in a diabetic’s diet.

These references are entitled to some

credence given the numerous aforementioned chronic elevated A1C
levels.
The ALJ’s explanation of why she concluded that this claimant
does not require 24 hour adult supervision is insufficient to
convince the Court that her conclusion is supported by the
requisite substantial evidence.

Substantial evidence exists only

“in relationship to all other evidence in the record,” Cotter,
supra, at 706, and “must take into account whatever in the record
fairly detracts from its weight.”
N.O.R.B., 340 U.S. 474, 488 (1971).

Universal Camera Corp., v.
A single piece of evidence is

not substantial evidence if the commissioner ignores countervailing
evidence or fails to resolve a conflict created by the evidence.
See Mason v. Shalala, 994 F.2d 1058, 1064(3d. Cir. 1993).

The

Commissioner must indicate which evidence was accepted, which
evidence was rejected, and the reason for rejecting that evidence.
Cotter, at 706-707.

That has not happened with respect to the

issue of Plaintiff’s need for 24 hour adult supervision.

19

The ALJ’s short shrift discussion, in which she rejects the
premise that Plaintiff’s diabetes (which the AlJ acknowledges to be
a “severe impairment”) requires 24-hour adult supervision, does not
address the indisputable evidence that on many occasions over a
period of years Plaintiff’s blood sugar tests measured unacceptably
high levels.6

Also, the ALJ has failed to discuss why she has

apparently rejected the assertion that Plaintiff’s ODD and ADHD
(which the ALJ also has recognized as “severe impairments”) are
responsible for Plaintiff consuming food that she simply must not
eat and how this evidence factors into the ultimate conclusion on
how much adult supervision is required for this child.
For these reasons, we conclude that Plaintiff’s assertion of
error regarding the ALJ’s evaluation that she does not meet the
criteria of Listing 109.00 C Endocrine Disorders Children is
accurate.

The case must be remanded on this point to require the

Agency to explain in more detail how it evaluated the evidence,
particularly with respect to the aforementioned elevated A1C levels
and Plaintiff’s alleged inability to monitor her diet as a result
of her ODD and ADHD.

6

The AlJ does briefly discuss Plaintiff’s A1C levels. (R.at 21). However, the ALJ does not
acknowledge that Plaintiff’s A1C levels have been significantly elevated on many occasions.
Inexplicably, the ALJ notes that Plaintiff’s A1C levels improved in August and November of 2014
when it was measured at 9.3%. What the ALJ does not say is that this “improvement” to 9.3% is
still elevated according to the guidelines for diabetes management set forth by the Mayo Clinic. See
footnote 5, ante.
20

2.

Whether the ALJ’s finding of less than marked impairment
in the domains of caring for yourself and interacting and
relating to others are supported by substantial evidence?

Plaintiff alleges that substantial evidence of record does not
support the ALJ’s conclusion that Plaintiff has “less than marked
impairment” in the domains of “Interacting and Relating with
Others” (R.at28) and “Caring for Yourself” (R.at30).

While the

Court might well have found differently on this issue, that is not
the test.

See Hartranft, supra, at 360.

The ALJ relied upon

reports from Plaintiff’s third grade teacher and four physicians
who all indicated that Plaintiff’s limitations in these domains
were not significant enough to be considered “marked”.

This

evidence supports the ALJ’s conclusion in this context with the
requisite substantial evidence because a reasonable mind might
accept it as adequate to support her conclusion.
Perales, supra.

Richardson v.

Thus, the Plaintiff’s assignment of error on this

point must be rejected.
3.

Whether the ALJ failed to properly evaluate opinion
evidence of plaintiff’s psychological/emotional
limitations?

Plaintiff’s allegation that the ALJ improperly considered
opinion evidence stems from her perception that the ALJ discounted
portions of the assessments of Drs. Stone and Tuckerman and
Psychologists Kapcala and Galdieri and also failed to discuss the
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opinion provided by psychologist Ron Gavlick.
With respect to the assessments of Drs. Stone and Tuckerman
and Psychologists Kapcala and Galdieri, the Courts’ review of those
assessments reveals that each of them affords a reasonable basis
for the ALJ to conclude, as she did, that Plaintiff does not have
“marked” limitations in her interaction and relationship to others
or in her ability to care for herself.
The Plaintiff also notes that the ALJ does not discuss the
assessments provided by Psychologist Ron Gavlick on June 26, 2013
and May 7, 2014.

(R.at 1168-1175 and 1563-1569).

Plaintiff

observes correctly that 20 CFR 416.927 requires that all
information about the nature and severity of impairments is to be
assessed.

However, having read Psychologist Gavlick’s reports, the

Court concludes that it is very much in accord with those of Mssrs.
Kapcala and Galdieri.

While Gavlick does note Plaintiff’s struggle

with DM and Celiac’s disease, he does not conclude in either report
that Plaintiff had “marked” impairment in her ability to relate to
others or in her ability to care for herself.

Thus, the Court

views the ALJ’s failure to discuss Gavlick’s assessments as
harmless error.

Accordingly, Plaintiff’s assignment of error on

this point must be rejected.
VII. Conclusion.
Plaintiff’s assignment of error regarding whether the record
contains substantial evidence that she does not require 24-hour

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adult supervision is affirmed.
error are rejected.

Plaintiff’s other assignments of

This matter is remanded to the Commissioner

for further proceedings to include a more detailed discussion of
how the Agency concludes that this child, with a well-documented
history of uncontrolled diabetes and serious psychological problems
(ODD and ADHD) that result in improper dietary choices that
exacerbate her DM, is not in need of 24-hour adult supervision.7
An Order consistent with the foregoing discussion will be filed
contemporaneously.

BY THE COURT

S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court

Dated: September 20, 2017

7

In the alternative, the Commissioner may certainly choose to approve Plaintiff’s application
for SSI benefits inasmuch as the record obviously contains substantial evidence in support of that
conclusion.
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