Morrissey v. Social Security Administration
MEMORANDUM (Order to follow as separate docket entry)- for the reasons stated above, the Court finds that the ALJs decision is not supported by substantial evidence. Thus, the decision of the Commissioner of Social Security will be VACATED and this case will be REMANDED for further proceedings consistent with this Memorandum.An appropriate Order follows. Signed by Magistrate Judge Joseph F. Saporito, Jr on 7/15/21. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TIFFANY MORRISSEY O/B/O
C.K.M. , a minor
KILOLO KIJAKAZI, Acting
Commissioner of Social Security
The plaintiff, Tiffany Morrissey, as parent and natural guardian of
C.K.M., her minor son, brought this action under 42 U.S.C. § 1383(c)(3),
and, as incorporated by reference, 42 U.S.C. § 405(g), seeking judicial
of Social Security denying C.K.M.’s claim for supplemental security
income benefits under Title XVI of the Social Security Act (the “Act”).
Kilolo Kijakazi became the Acting Commissioner of Social Security n
July 9, 2021. She has been automatically substituted in place of the
original defendant, Andrew Saul. See Fed. R. Civ. P. 25(d); see also 42
U.S.C. §405(g) (action survives regardless of any change in the person
occupying the office of Commissioner of Social Security). The caption in
this case is amended to reflect this change.
This matter has been referred to the undersigned United States
Magistrate Judge on consent of the parties, pursuant to the provisions
of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure.
For the reasons stated herein, the Commissioner’s decision will be
Background and Procedural History
On July 25, 2017, Tiffany Morrissey (“Morrissey”) protectively filed
an application for supplemental security income (“SSI”) benefits on
behalf of her minor son, C.K.M., alleging an onset of disability as of
March 13, 2015. (Tr. 87-92). Morrissey alleged that C.K.M. was disabled
due to mood defiant disorder, poor nutrition, adjustment disorder, can’t
sit still, always moving and flailing his hands around, always yelling
when playing, needs to be told repeatedly to do something, throws
tantrums. (Tr. 93)
Morrissey’s claim was initially denied on October
30, 2017. (Tr. 107-111). Thereafter, Morrissey filed a timely request for
an administrative hearing on January 2, 2018, and it was granted. (Tr.
112-114). Morrissey appeared with C.K.M. and testified before
Administrative Law Judge (“ALJ”) Susan L. Torres on February 26,
2019, in Harrisburg, Pennsylvania. She was not represented by counsel
at the proceeding. (Tr. 13). At the hearing, Morrissey testified that
C.K.M. was being tested for autism which was then suspected. (Tr. 41)
At the time of the hearing, C.K.M. was seven years-old and he was in
first grade. (Tr. 44).
On May 16, 2019, the ALJ issued an unfavorable decision in which
she found that C.K.M. was not entitled to SSI benefits because he was
not under a disability as defined by the Act. Specifically, the ALJ found
that C.K.M. did not have an impairment or combination of impairments
that meets, medically equals, or functionally equals the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 10-34). Morrissey sought further review of C.K.M’s claims by the
Appeals Council of the Office of Disability Adjudication and Review, but
her request was denied for review on April 3, 2020. (Tr. 1-5). Morrissey
subsequently filed an appeal to this Court on June 1, 2020. (Doc. 1)
Attached to Morrissey’s appeal were medical records indicating that
C.K.M. was diagnosed with autism and receiving in home therapeutic
support staff (“TSS”) services for 8 hours per week.
Morrissey filed her appeal pro se, we liberally construe her appeal to
argue that the ALJ’s decision was not supported by substantial evidence.
On November 9, 2020, the Commissioner filed his answer, in which he
maintains that the ALJ’s decision was correct and in accordance with
the law and regulations. (Doc. 17, at 2). This matter has been fully
briefed by the parties and is ripe for decision. (Doc. 21; Doc. 22).
C.K.M. was a seven-year old minor at the time of the ALJ’s decision
in this matter. Under Social Security regulations, C.K.M. is considered
a school-age child. See 20 C.F.R. § 416.9265a(g)(2)(iv). He was first
diagnosed with Oppositional Defiant Disorder in 2016.
suspected to suffer from Autism in 2018 and he was diagnosed with
Autism in 2019.
Because the issues on appeal deal primarily with C.K.M.’s mental
health, we will address only that evidence which is relevant to those
issues. The longitudinal record indicates that C.K.M.’s level of function
declined over time, with an ultimate diagnosis of Autism being rendered
at the time of the hearing. C.K.M. was a preschooler at the time of
Morrissey’s application on July 10, 2017, and thereafter he became a
school age child. He is currently a school aged child. (Tr. 16)
In April of 2016, C.K.M. was seen by his family physicians, Family
Medical Twin Rose (“Twin Rose”). (Tr. 237) It was noted that he had
emotional reactivity at home with anger outbursts. (Id.) Additionally,
he was showing perseverative arm and hand movements, and he was
hitting, biting, and kicking others. (Id.) Morrissey reported that C.K.M.
was biting his fingernails and picking at his skin until it would bleed.
(Tr. 238) In May of 2016, Morrissey presented with C.K.M. again to Twin
Rose. (Tr. 235-236) The chief complaint was behavioral issues and it
was reported that C.K.M. would behave for his father and grandmother
but not for his mother. (Tr. 235) It was reported that he was four years
old and refused to be potty trained and that he would play well with kids
on some days, but on other days he would hit them and steal toys. (Id.)
A referral was made to T.W. Ponessa and Assoc. Counseling Services
(“TW Ponessa”) and C.K.M. received services from May 2016 through
August 29, 2016. (Tr. 214) At the time that C.K.M. presented, Morrissey
was complaining of anger, non-compliance and aggression.
October of 2016, C.K.M. was discharged due to non-compliance. (Id.) At
the time of discharge it was noted that C.K.M. had been diagnosed with
oppositional defiant disorder and he was expected to follow-up with Dr.
Reis for medication management. (Id.) In October of 2016, C.K.M. was
seen at Twin Rose for a cough. (Tr. 227.) It was noted that C.K.M. had
behavioral issues and was taking melatonin. (Id.)
In August of 2017, C.K.M. was again seen by TW Ponessa and was
noted to have a diagnosis of Oppositional Defiant Disorder and a rule
out diagnosis of disruptive mood regulation disorder. (Tr. 215) It was
noted that C.K.M. had demonstrated aggression, cruelty to animals,
poor relationships with peers, noncompliance with requests, temper
tantrums, defiance, and opposition. (Id.) He would hit, bite, and throw
things. (Id.) It was noted that he was receiving wraparound behavioral
health services and he was admitted to a partial program. (Id.)
In August of 2017, C.K.M. was also examined by Kathleen
Lederman, PsyD, (“Dr. Lederman”) at the request of the Commissioner.
(Tr. 295-303) Dr. Lederman noted that C.K.M. had behavioral health
services while at school but he was in regular education. (Tr. 295) She
noted that C.K.M. had been in outpatient therapy but for the past 2
weeks, he had been enrolled in an acute partial day program in a
hospital from 6:30 a.m. through 4:30 p.m. (10 hours) per day. (Id.) It
was noted that following his discharge from the day treatment program
a behavioral health services worker would be providing services both at
home and at school for C.K.M. (Tr. 296) On examination, it was noted
that C.K.M. was not wearing his glasses, and it was reported by his
mother to hide or break them. (Tr. 297-98) Dr. Lederman thought that
C.K.M.’s speech, thought process, affect, and mood were appropriate.
(Tr. 98) Dr. Lederman noted that C.K.M. did not know what day it was;
that he had difficulty with attention and concentration, and that his
memory appeared to be impaired. (Id.) Dr. Lederman opined that
C.K.M. had average cognitive functioning with age appropriate insight
Dr. Lederman diagnosed C.K.M. with
attention deficit hyperactivity, combined type; unspecified depressive
disorder; unspecified anxiety disorder; enuresis; encopresis; oppositional
defiant disorder; and intermittent explosive disorder. (Tr. 299)
Immediately following the application, C.K.M. was enrolled in
kindergarten at Park Elementary School. (Tr. 166) In October of 2017,
C.K.M.’s kindergarten teacher, Michelle Winters, completed a teacher
questionnaire in which she indicated that C.K.M. was taking Ritalin
twice and day and showing at that time mild to moderate problems. (Tr.
166-73) She advised that C.K.M. had only slight problems in acquiring
and using information; only a slight problem in carrying out multi-step
tasks; slight and obvious (moderate) problems in some areas of
interacting with others; only slight problems in moving about and
manipulating objects and only slight problems in caring for himself. (Tr.
On April 6, 2018, C.K.M.’s psychiatrist, Dr. Reis, referred him for
a partial hospitalization program at TW Podessa. (Tr. 313). It was noted
that at that time C.K.M. was receiving 14 hours a month of behavioral
support services. (Id.) The referral was as a result of “significant clinical
concerns related to non-compliance, opposition and defiance, physical
and verbal aggression and poor coping skills.” (Tr. 310). It was noted
that C.K.M. was physically and verbally aggressive on a daily basis. He
was an elopement risk, “hyperactive, impulsive and fidgety.” (Tr. 310)
It was reported that in February 2018, C.K.M. had wrapped a scarf
around his neck at school and held it tight until his face turned red and
he reportedly heard voices. (Tr. 311). C.K.M. reportedly released the
scarf after his teacher ordered him to stop. (Id.) It was assessed that
C.K.M. had mild to moderate severity of symptoms of shyness; he had
moderate severity of non-compliance and physical aggression; and he
had moderate to severe symptoms of hyperactivity and impulsiveness,
verbal aggression, and unsafe behaviors.
behavioral health worker indicated that on a daily basis he had problems
with physical aggression, verbal aggression, tantrums, refusing to
engage in tasks, inability to move from one activity to another, arguing
when given a task, deliberately annoying others, and crying or getting
upset. (Tr. 320-22).
On November 18, 2019, C.K.M. was seen at Philhaven Center for
Autism and Developmental Disabilities (“Philhaven”) after referral by
his treatment team at TW Podessa after completing a partial
hospitalization plan. (Tr. 376) An evaluation was performed and it was
opined that “with the exception of SRS scores, all other elements of this
multidisciplinary report are very consistent and clearly support
impairments in social functioning, communication, and restricted
interests that would meet the full criteria for an autism spectrum
(Tr. 377). Thus, C.K.M. was formally diagnosed with an
autism spectrum disorder, level 1; an attention deficit hyperactivity
disorder, combined type and an insomnia disorder. (Tr. 378). It was the
opinion of Michael Fueyo, MD, that C.K.M. needed to receive continued
supportive services through TW Podessa and have an IEP plan for his
school which addressed his issues. (Id.)
Park Street Elementary records indicate that academically C.K.M.
was achieving grades at an A or B level during the 2019 school year with
his support services in place. (Tr. 199-200) A questionnaire completed
in March of 2019 by C.K.M.’s first grade teacher, Danielle Eshelman,
indicated a sharp decline in C.K.M.’s functioning in the last year
however, when compared to the earlier evaluation of Ms. Winters. (Tr.
204-11) Ms. Eshelman found that C.K.M. had no problems with regard
to the domain of acquiring and using information or in the domain of
attending and completing tasks.
In the domain of
interacting with others Ms. Eshelman noted that C.K.M. had serious
difficulty on a daily basis playing with other children, and making
friends. (Tr. 207) She advised that C.K.M. had an obvious problem with
seeking attention appropriately, with introducing and maintaining
relevant and appropriate topics of conversation, and with interpreting
the meaning of facial expressions, body language, hints or sarcasm. (Id.)
She noted that C.K.M. was rarely a behavior problem but needed
redirection and time-outs and had been suspended for violent behavior.
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(Id.) Ms. Eshelman stated that C.K.M. “does fine academically” but “has
had great difficulty” in socializing. (Id.) With regard to the domain of
moving about and manipulating objects, Ms. Eshelman opined that
C.K.M. had slight problems, stating that he had difficulty with fine
motor skills and writing, would move slowly and or oddly at times and
would at times get lost in his own thoughts. (Tr. 208) In the domain of
caring for himself, Ms. Eshelman opined that C.K.M. had serious
problems in maintaining personal hygiene and had an obvious problem
in identifying and asserting emotional needs as well as responding
appropriately to changes in his own mood. (Tr. 209) Ms. Eshelman
advised that C.K.M. had slight problems in handling frustration, being
patient, using good judgement regarding safety, using appropriate
coping skills and knowing when to ask for help. (Id.) She wrote that
C.K.M. had issues with hygiene and with picking at his nose, face and
fingers; that he could be moody at times; that he had “lots of difficulty”
with social interactions and that he would “pretend” things which would
make him and those around him distracted and off task. (Id.)
The ALJ addressed the medical opinion evidence in the file, as well
as the opinions of teachers, Ms. Winter and Ms. Eshelman.
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The ALJ found Ms. Eshelman’s opinions to be persuasive, although
she focused her review to Ms. Eshelman’s findings that C.K.M. did not
engage in violent behaviors when he was taking his medication to be
consistent with the record and failed to discuss the balance of Ms.
Eshelman’s findings. (Tr. 21-22) The ALJ found the opinions of Michelle
Winters to be partially persuasive, finding that Ms. Winters rendered
her opinions before C.K.M. experienced improvement in his symptoms
with medical management and psychotherapy. (Tr. 22-23)
The ALJ considered the opinions of Dr. Lederman and found them
to be partially persuasive, noting that the record supports more
restrictive findings as it relates to C.K.M.’s limitations in the domains
of moving about and manipulating objects, of interacting with others,
and of health and physical well-being. (Tr. 22)
Similarly, the ALJ found that the opinions of state agency
consultants John Cavazzi, PsyD and Carl Ritner, DO were partially
persuasive, as she found that the record indicated more restrictive
findings, particularly with regard to C.K.M.’s ability to interact with
others while his struggles continued despite improvements in his
condition. (Tr. 22)
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When reviewing the denial of disability benefits, the Court’s review
is limited to determining whether those findings are supported by
substantial evidence in the administrative record. See 42 U.S.C. § 405(g)
(sentence five); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d
Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of
evidence, but rather such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988) (internal quotation marks omitted). Substantial
evidence is less than a preponderance of the evidence but more than a
mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single
piece of evidence is not substantial evidence if the ALJ ignores
countervailing evidence or fails to resolve a conflict created by the
evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in
an adequately developed factual record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of
drawing two inconsistent conclusions from the evidence does not prevent
[the ALJ’s decision] from being supported by substantial evidence.”
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Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966). “In
determining if the Commissioner’s decision is supported by substantial
evidence the court must scrutinize the record as a whole.” Leslie v.
Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003). The question before
this Court, therefore, is not whether K.N. is disabled, but whether the
Commissioner’s finding that he is not disabled is supported by
substantial evidence and was reached based upon a correct application
of relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL
940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s
errors of law denote a lack of substantial evidence.”) (alterations
omitted); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981)
(“The Secretary’s determination as to the status of a claim requires the
correct application of the law to the facts.”); see also Wright v. Sullivan,
900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal
matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court has
plenary review of all legal issues . . . .”).
With respect to children under the age of 18, the Social Security
regulations consider an individual to be “disabled” if he or she has “a
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medically determinable physical or mental impairment 2 or combination
of impairments that causes marked and severe functional limitation,
and that can be expected to cause death or that has lasted or can be
expected to last for a continuous period of not less than 12 months.” 20
C.F.R. § 416.906; see also 42 U.S.C. § 1382c(a)(3)(C)(i). A child has
“marked and severe functional limitations” if he or she has an
impairment or combination of impairments that “meets, medically
equals, or functionally equals” the listings found at 20 C.F.R., Part 404,
Subpart P, Appendix 1. Id. § 416.902; see also id. § 416.911(b). However,
“no individual under the age of 18 who engages in substantial gainful
activity 3 . . .
§ 1382c(a)(3)(C)(ii); see also 20 C.F.R. § 416.906.
The Commissioner follows a three-step sequential analysis to
ascertain whether a child is disabled and therefore eligible to receive SSI
benefits. See 20 C.F.R. § 416.924(a). Under this process, the ALJ must
“[A] physical or mental impairment is an impairment that results
from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 1382c(a)(3)(D); see also 20 C.F.R. § 416.908.
3 “Substantial gainful activity means work that . . . [i]nvolves doing
significant and productive physical or mental duties; and . . . [i]s done
(or intended) for pay or profit.” 20 C.F.R. § 416.910.
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determine in sequence: (1) whether the child is engaged in substantial
gainful activity (i.e., whether the child is working), id. § 416.924(b); (2)
whether the child has a medically determinable impairment or
combination of impairments that is severe (i.e., whether the child has an
impairment or combination of impairments that cause “more than
minimal functional limitations”), id. § 416.924(c); and (3) whether the
impairment or combination of impairments meets or medically equals
the severity of a listing, or functionally equals the listings, in 20 C.F.R.,
Part 404, Subpart P, Appendix 1, which describes impairments that
cause marked and severe functional limitations, id. § 416.924(d).
Within each of the individual listings considered at step three, the
regulations specify the objective medical and other findings needed to
satisfy the criteria of that listing. An impairment or combination of
impairments meets a listing when it satisfies all of the criteria of that
specified listing, and it meets the duration requirement (i.e., it is
expected to cause death or has lasted or is expected to last for a
continuous period of not less than 12 months). Id. § 416.925(c)(3); see
combination of impairments medically equals a listing when it is at least
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equal in severity and duration to the criteria of any listed impairment
(e.g., the child exhibits all but one of the findings specified in a particular
listing, but other related findings are at least of equal medical
significance to the required criteria). Id. § 416.926(a),(b). An impairment
or combination of impairments functionally equals the listings when it
“result[s] in ‘marked’ limitations in two domains of functioning or an
‘extreme’ limitation in one domain.” Id. § 416.926a(a).
In assessing functional equivalence, the Commissioner considers
how the child functions in terms of six “domains” or broad areas of
functioning intended to capture all that a child can or cannot do: (1)
acquiring and using information; (2) attending and completing tasks; (3)
interacting and relating with other children; (4) moving about and
manipulating objects; (5) caring for yourself; and (6) health and physical
well-being. Id. § 416.926a(b)(1). A child has a “marked limitation” in a
domain when his impairment or combination of impairments interferes
seriously with his ability to independently initiate, sustain, or complete
activities; a “marked limitation” is more than moderate but less than
extreme. Id. § 416.926a(e)(2). A child has an “extreme limitation”
interferes very seriously with his ability to independently initiate,
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sustain, or complete activities; an “extreme limitation” is more than
marked. Id. § 416.926a(e)(3). “Extreme limitation” is the rating given to
the worst limitations, but it does not necessarily mean a total lack or
loss of ability to function. Id.
The ALJ’s disability determination must also meet certain basic
substantive requirements. Most significantly, the ALJ must provide “a
clear and satisfactory explication of the basis on which” his or her
decision rests. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). “The
ALJ must indicate in his decision which evidence he has rejected and
which he is relying on as the basis for his finding.” Schaudeck v. Comm'r
of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The “ALJ may not
reject pertinent or probative evidence without explanation.” Johnson v.
Comm'r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, “ ‘the
reviewing court cannot tell if significant probative evidence was not
credited or simply ignored.’ ” Burnett v. Comm'r of Soc. Sec. Admin., 220
F.3d 112, 121 (3d Cir. 2000) (quoting Cotter, 642 F.2d at 705). Milevoi
o/b/o M.E.M. v. Saul, No. 1:18-CV-02220, 2019 WL 6999715, at *3
(M.D. Pa. Dec. 4, 2019), report and recommendation adopted, No. 1:18CV-02220, 2019 WL 6910687 (M.D. Pa. Dec. 19, 2019).
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III. The ALJ’s Decision
In this case, the ALJ reached the third step of the sequence, at
which point she determined that C.K.M. was not disabled. The ALJ first
determined that C.K.M. had not engaged in substantial gainful activity
since July 10, 2017, the date when his application for SSI benefits was
filed. (Tr. 16). The ALJ next found that the medical evidence of record
established that C.K.M. had severe impairments of attention deficit
oppositional defiant disorder, intermittent explosive disorder, autism
spectrum disorder, asthma, enuresis, and encopresis. (Id.).
At step three, the ALJ evaluated C.K.M.’s impairments under
listings 103.30 pertaining to asthma; under 112.04 pertaining to
depressive disorder; under 112.04 pertaining to anxiety disorder; under
112.08 pertaining to oppositional defiant disorder and intermittent
explosive disorder; under 112.10 pertaining to autism spectrum
disorder; and under 112.11 pertaining to attention deficit hyperactivity
The ALJ made a general finding that C.K.M.’s
impairments did not meet or medically equal those listings. (Id.).
The ALJ then considered whether C.K.M.’s impairments, both
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severe and non-severe, functionally equaled the listings. In doing so, the
Social Security Ruling 09-1p, which provides:
The functional equivalence rules require us to begin by
considering how the child functions every day and in all
settings compared to other children the same age who
do not have impairments. After we determine how the
child functions in all settings, we use the domains to
create a picture of how, and the extent to which, the
child is limited by identifying the abilities that are used
to do each activity, and assigning each activity to any
and all of the domains involved in doing it. We then
determine whether the child’s medically determinable
impairment(s) accounts for the limitations we have
identified. Finally, we rate the overall severity of
limitation in each domain to determine whether the
child is “disabled” as defined in the Act.
Soc. Sec. Ruling 09-1p, 2009 WL 396031, at *2.
The ALJ considered the evidence of record and presented detailed
severity, domain by domain. (Tr. 23-30). Ultimately, the ALJ concluded
that C.K.M. had: (a) no limitation in acquiring and using information;
(b) less than marked limitation in attending and completing tasks; (c) a
marked limitation in interacting and relating with others; (d) less than
marked limitation in moving about and manipulating objects; (e) less
than marked limitation in the ability to care for himself; and (f) less than
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a marked limitation in health and physical well-being. (Id.)
Having found that C.K.M. did not have an impairment or
combination of impairments that resulted in “marked” limitations in
two domains of functioning or an “extreme” limitation in one domain,
the ALJ concluded that C.K.M.’s impairments did not functionally equal
the listings at 20 C.F.R., Part 404, Subpart P, Appendix 1, and therefore
he was not disabled and not entitled to receive SSI benefits. (Tr. 30).
Morrissey filed her appeal pro se. In her brief, Morrissey sets forth
several reasons why she believes that the ALJ erred. She states first
that C.K.M. has behavioral issues, including autism; secondly, that he
takes four different medications during the day at multiple times;
thirdly, that C.K.M. has many support specialists who see him both at
home and at school and he recently attended day hospitalization on two
occasions; lastly, she recites a number of maladaptive and self-injurious
behaviors in which C.K.M. regularly engages.
We liberally construe her argument to indicate that the ALJ’s
decision was not supported by substantial evidence.
The ALJ did not properly consider the support
services necessary to allow C.K.M. to function
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on a daily basis when determining whether
C.K.M. had an extreme limitation in the
domain of Interacting and Relating with
We agree with Morrissey particularly as to the third issue which
she has raised regarding the substantial degree of supportive services
which have been provided to C.K.M., both at school and in the home in
order to allow him to maintain a level of functioning. Because we find
that the ALJ erred in properly considering the evidence with regard to
the structured environment which C.K.M. required in order to function,
we cannot find that the ALJ’s finding that C.K.M. had a less than
marked limitation in the domain of caring for himself or a less than
extreme limitation in the domain of interacting with others was
supported by substantial evidence.
In the domain of interacting and relating with others, the
Commissioner is to “consider how well [claimants] initiate and sustain
emotional connections with others, develop and use the language of
[claimants’] community, cooperate with others, comply with rules,
respond to criticism, and respect and take care of the possessions of
others. Examples of limited functioning in this domain include: having
no close friends of an appropriate age; avoiding or withdrawing from
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people that the claimant is familiar with; becoming overly anxious or
fearful of meeting new people or trying new things; difficulty playing
games or sports with rules; difficulty communicating with others; and
difficulty speaking intelligibly or with adequate fluency. L.B. o/b/o S.B.
v. Comm’r of Soc. Sec., Civil Action No. 19-885, 2020, WL 603991 *9 (D.
NJ. Feb. 5, 2020); 20 C.F.R. § 416.926a(i)(3).
The ALJ set forth the general standards which apply regarding the
domain of interacting and relating with others both with regard to the
standard for a preschooler and for a school age child, as C.K.M. was a
preschooler at the time of application but subsequently reached the
latter category. (Tr. 26). With regard to the standards which apply to a
school age child, which C.K.M. was at the time of the hearing, the ALJ
noted that the child should be developing more lasting friendships with
other children of the same age, should be beginning to understand how
to work in groups to solve problems, should be able to play with other
children from diverse backgrounds and attach to adults other than
parents, and should be able to initiate and participate in conversations.
The ALJ went on to find that C.K.M. had a marked limitation in
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this area. (Tr. 27). In her reasoning, the ALJ noted that C.K.M. had an
extensive history of having tantrums and being highly oppositional; and
he exhibited behaviors such as refusing to get dressed, refusing to eat,
kicking, spitting, hitting, and engaging in elopement tactics. (Tr. 27).
The ALJ referenced the treatment notes of TW Podessa, which, indicate
that those symptoms improved with “medication.” (Tr. 27). Similarly,
the ALJ noted that C.K.M.’s teacher indicated that he still had serious
problems playing with other children, and making friends, as well as
obvious problems in appropriately seeking attention, introducing
relevant topics, asserting his own emotional needs, interpreting the
facial expressions and body language of others, and responding to
changes in mood. (Id.).
The ALJ erred in making a simple finding that the records from
TW Podessa indicated that C.K.M.’s symptoms improved with
“medication.” To the contrary, the medical records of TW Podessa
indicate that medication and out-patient therapy had failed to alleviate
It was only after C.K.M. was enrolled in an
intensive partial hospitalization program consisting of 10 hours of
treatment daily for 5 days per week that the symptoms were alleviated.
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Moreover, C.K.M.’s supportive services were extended to “wraparound”
services, where he was provided with supportive services for 2 hours per
day, 3 days per week both at home and during school.
Because a structured setting often masks the symptoms of a
disability and improves the child’s ability to function within
that supportive environment, the ALJ is instructed to
consider the degree of limitation in functioning the child has
or would have outside the structured setting. 20 C.F.R. §
416.924a(b)(5)(iv)(C). That is, an ALJ cannot appropriately
evaluate the effects of [plaintiff’s] structured setting on his
ability to function without identifying the nature of his
structured setting and the amount of help he receives from
Gonzalez v. Astrue, No. 1:07–cv–00487, 2009 WL 4724716, at *6–7
(N.D.N.Y.2009). A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp. 3d 512,
520 (D.N.J. 2016.
Here, we cannot find that the ALJ properly considered the amount
of support which C.K.M. received on a daily basis. In no way did the
ALJ’s cursory finding that C.K.M. responded to “medication” address
those support services.
In order to achieve improvement, C.K.M.
required placement in an institutional setting and in order to sustain
that improvement, he required a structured environment in which he
received supportive services in both the home and school settings. This
was not addressed by the ALJ.
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Such accommodations must be considered. See 20 C.F.R. §
416.924a(b)(5)(iv)(E) (“[I]f your symptoms or signs are
controlled or reduced in a structured setting, we will consider
how well you are functioning in the setting and the nature of
the setting in which you are functioning (e.g., home or a
special class); the amount of help you need from your parents,
teachers, or others to function as well as you do; adjustments
you make to structure your environment; and how you would
function without the structured or supportive setting.”).
Milevoi o/b/o M.E.M. v. Saul, No. 1:18-CV-02220, 2019 WL 6999715, at
*5 (M.D. Pa. Dec. 4, 2019), report and recommendation adopted, No.
1:18-CV-02220, 2019 WL 6910687 (M.D. Pa. Dec. 19, 2019).
The record indicates that C.K.M. required placement in an
intensive partial hospitalization setting on two occasions within the
span of less than 3 years. Barring a full institutional placement, there
is no greater restrictive environment in which C.K.M. could be placed
than the programs in which he was placed. Ten hours of treatment per
day, five days per week is an extreme measure. The fact that it was
mentioned only in a cursory manner in passing is troubling.
The ALJ failed to explain how the fact that C.K.M. continued to
struggle with interactions with others, despite the fact that there were
supportive services in place, would indicate a higher level of limitation.
Rather, the ALJ simply discussed the fact that C.K.M. had been
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While the ALJ is not required “to use particular
language or adhere to a particular format in conducting
his analysis,” Jones v. Barnhart, 364 F.3d 501, 505 (3d
Cir. 2004), the ALJ must discuss the evidence and
explain his reasoning sufficiently “to enable meaningful
Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). Milevoi
o/b/o M.E.M. v. Saul, No. 1:18-CV-02220, 2019 WL 6999715, at *6
(M.D. Pa. Dec. 4, 2019), report and recommendation adopted, No. 1:18CV-02220, 2019 WL 6910687 (M.D. Pa. Dec. 19, 2019).
Here, because the ALJ found that there was a marked limitation
in this domain only, without addressing these factors, we cannot say that
she properly evaluated whether C.K.M.’s limitations rose to a level of
“extreme.” Accordingly, we cannot find that substantial evidence
supports the ALJ’s determination.
The ALJ’s finding that C.K.M. has a less than
marked limitation in caring for himself is not
supported by substantial evidence.
In her fourth allegation of error, Morrissey alleged that the ALJ
failed to consider a number of maladaptive and self-injurious behaviors,
including the fact that he would break his own toys, unstrap himself
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from his car seat, and hit or kick the car windows. (Doc. 21 at 1-2). She
additionally alleged that the ALJ failed to consider the fact that C.K.M.
would soil himself when out in public and not tell anyone. (Doc 21 at 2)
The actions enumerated by Morrissey would fall with the domain
of “Caring for Yourself.” We will construe her allegation to be that the
ALJ did not properly consider whether C.K.M. had a marked limitation
in the domain of caring for yourself.
SSR 09-05, defines and discusses the domain of “interacting and
relating with others.” This ruling specifically discusses the difference
between the domain of “interacting and relating with others” and “caring
for yourself,” and states:
The domain of “interacting and relating with others”
involves a child’s feelings and behavior in relation to
other people (as when the child is playing with other
children, helping a grandparent or listening carefully to
a teacher). The domain of “caring for yourself” involves
a child’s feelings and behavior in relation to self (as
when controlling stress in age-appropriate manner).
The SSR provides two examples of how a child may have an
impairment which causes a limitation in both domains. One of those
examples is that of a boy with oppositional defiant disorder who refuses
to obey a parent’s instruction not to run on a slippery surface. The child’s
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behavior towards the parent is disrespectful and pertains to the domain
of “interacting and relating to others” while his running endangers him
and pertains to a limitation in the domain of “caring for yourself.” SSR
09-05p specifically states that rating the limitation in each and every
domain is not double weighting. (Id.)
In discussing the domain of “interacting and relating with others,”
the ALJ noted that “the claimant has an extensive history of having
tantrums and being highly oppositional, outright refusing directives
from others. Behaviors included refusing to get dressed, refusing to eat
for days if he does not get the food he wants, yelling, biting, spitting,
kicking, and engaging in elopement tactics.” (Tr. 27)
While the ALJ found that there was a marked impairment in the
domain of “interacting and relating with others” she found a less than
marked impairment in the domain of “caring for yourself”. We find this
inconsistent and note that while the ALJ referenced the fact that C.K.M.
would refuse to eat for days and outright refused directives with regard
to the former domain, she made no reference of those facts when
discussing the latter. It is certainly a relevant fact that C.K.M. would
refuse food for “days” when considering his ability to care for himself.
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When evaluating the “caring for yourself” domain, the regulations
provide that the ALJ must consider how well claimants “maintain a
healthy emotional and physical state, including how well [claimants] get
[their] physical and emotional wants and needs met in appropriate ways;
how [claimants] cope with stress and changes in [their] environment;
and whether [claimants] take care of [their] own health, possessions,
and living area.” 20 C.F.R. § 416.926a(k). Examples of limitations in
this domain include: continually placing inedible objects in one’s mouth;
having restrictive or stereotyped mannerisms (e.g. body rocking,
headbanging); failing to dress or bathe appropriately because of
impairments affecting this domain; engaging in self-injurious behavior
or ignoring safety rules; failing to spontaneously pursue enjoyable
activities or interests; and having disturbance in eating or sleeping
patterns. 20 C.F.R. § 416.926a(k)(3)
The ALJ addressed this domain and found that “claimant has less
than marked limitation in the ability to care for himself.” (Tr. 29) In
doing so the ALJ first acknowledged Morrissey’s testimony, as well as
medical evidence noting limitations in this area. (Id.) She noted:
The claimant’s mother asserts that the claimant’s ability to
take care of his personal needs are limited as he cannot dress
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without help, wash, bathe or brush his teeth without help, or
put his toys away. At the time of hearing, she further
asserted that he cannot wash himself up or rinse himself off,
put toothpaste on his toothbrush or tie his shoes. In addition,
treatment notes indicate that the claimant has a poor
awareness of safety and dangerous situations, which include
running off in parking lots or trying to exit a car when it is in
motion. However, treatment notes indicate his behaviors
improved with the use of medications (4F).
The ALJ further justified her finding that there was a less than
marked impairment, noting:
In addition, his education provider indicated that he had only
slight problems in handling frustration appropriately, being
patient when necessary, using good judgment regarding
personal safety and dangerous circumstances, using
appropriate coping skills and knowing when to ask for help
(Exhibit 12E). Therefore, the undersigned finds that the
claimant has a less than marked limitation in the ability to
care for himself.
We find that the ALJ has erred in her reasoning in two separate
regards. The first error mirrors that noted above. While the ALJ again
references that the records of TW Podessa regarding C.M.K.’s partial
hospitalization program which are located at 4F indicates improvement,
she once again boils down the fact that C.K.M. received 10 hours of
treatment per day with additional supportive services outside that
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setting to the fact that he improved with “medication”. Again, C.K.M.
had some improvement in those behaviors, but it was noted to be in an
environment in which he had a significant number of structured
supportive services. There is no indication from the ALJ’s decision that
she properly considered those services in determining whether C.K.M.
had marked limitations in this domain.
Additionally, we find error in the ALJ’s citation to the
questionnaire completed by C.K.M.’s teacher, Ms. Eshelman at 12E in
We note that the ALJ cited only that portion of Ms.
Eshelman’s opinion which supports her finding that there is a less than
marked limitation in the domain of caring for yourself.
The ALJ referenced Ms. Eshelman’s opinion that C.K.M. had slight
problems in handling frustration, being patient, using good judgment
regarding safety, using appropriate coping skills and knowing when to
ask for help in support of her finding. (Tr. 29, citing to 209). But in
doing so, the ALJ disregarded the opinion of Ms. Eshelman with regard
to this domain. C.K.M. had serious problems in maintaining personal
hygiene, and he had an obvious problem in identifying and asserting
emotional needs as well as responding appropriately to changes in his
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We note, as discussed above, that the ALJ
referenced those serious limitations in her finding that C.K.M. had a
marked limitation in the domain of “interacting and relating with
others.” (Tr. 27) The ALJ does not reconcile why those symptoms and
limitations were found marked in one domain and less than marked in
another, despite an obligation to do so.
Additionally, the ALJ disregarded Ms. Eshelman’s handwritten
note that C.K.M. had issues with hygiene and with picking at his nose,
face, and fingers; that he could be moody at times; that he had “lots of
difficulty” with social interactions and that he would “pretend” things
which would make him and those around him distracted and off task.
(Tr. 209) Consistent with SSR 09-05p, the fact that C.K.M. engaged in
behaviors that distracted both himself and others, was behavior which
should have been considered in both domains.
We find that the ALJ has erred in failing to include in her
reasoning any explanation as to her consideration of Ms. Eshelman’s
opinions as a whole, and in only explaining her reliance on a portion of
those categories in which she opined slight limitations, and disregarding
those portions which she found earlier in her opinion to have constituted
- 33 -
a marked impairment.
The ALJ has a duty to hear and evaluate all relevant
evidence in order to determine whether an applicant is
entitled to disability benefits.” Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981). See also 20 C.F.R. § 416.924a(a) (“We
consider all relevant information (i.e., evidence) in your case
record” in determining disability for children.). The ALJ’s
duty to adequately explain the weight given to the opinions
of treating physicians also extends to opinions from ‘other
sources,’ especially where those sources may have greater
knowledge than a physician about the plaintiff’s functioning
over time. See Ruth v. Astrue, No. 09–2074, 2011 WL
2135672, at 13 (E.D. Pa. May 31, 2011) (finding the ALJ erred
in crediting the opinion of a treating physician without
adequately discussing a questionnaire provided by a teacher
who had known the plaintiff for four years).
Arce o/b/o L.A. v. Saul, No. CV 19-5017, 2020 WL 2793132, at *10
(E.D. Pa. May 29, 2020)
Here, we find that the ALJ adequately discussed those portions of
Ms. Eshelman’s opinions which set forth mild limitations, but
disregarded entirely those portions of Ms. Eshelman’s opinions which
set forth more serious limitations.
Given that the ALJ reasoned
specifically that it was Ms. Eshelman’s opinions which supported her
finding of a less than marked limitation in this domain, the act of cherrypicking only those limitations which were milder was inappropriate.
Thus, we cannot find that the ALJ’s finding that C.K.M. had a less
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than marked limitation in the domain of “caring for yourself” was
supported by substantial evidence.
Accordingly, for the reasons stated above, the Court finds that the
ALJ’s decision is not supported by substantial evidence. Thus, the
decision of the Commissioner of Social Security will be VACATED and
this case will be REMANDED for further proceedings consistent with
An appropriate Order follows.
Dated: July 15, 2021
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge
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