HENDERSON v. COMMISSIONER OF S.S.I.
Filing
18
OPINION and ORDER denying 14 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/13/17. (sps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KENNESHA HENDERSON,
on behalf of D.D.R., a minor,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.
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Civil Action No. 2:15-1199
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AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
I. BACKGROUND
Pro se Plaintiff, Kennesha Henderson, on behalf of D.D.R., a minor, has brought this
action for review of the final decision of the Commissioner of Social Security (“Commissioner”)
denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act (the “Act”). Plaintiff protectively filed an application for SSI on or about February 27,
2012. [ECF No. 8-6, Ex. B1D, No. 8-7, Ex. B3E].
In her application, Henderson alleged that
D.D.R. was disabled due to a small lung valve, a hole in his heart, and speech problems. Id.
Administrative Law Judge (“ALJ”) Alma S. deLeon held a hearing on November 20, 2013, at
which D.D.R. was represented by a non-attorney representative. [ECF No. 8-2, at 30-49].
Henderson appeared at the hearing and testified on behalf of D.D.R. Id. In a decision dated
January 6, 2014, the ALJ found that D.D.R. was not disabled under the Act. Id. at 14-25. On
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Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
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July 15, 2015, the Appeals Council denied Plaintiff’s request for review. Id. at 1-3. Having
exhausted all of her administrative remedies, Plaintiff filed this action on behalf of D.D.R.
Defendant filed an Answer and Transcript on May 5, 2016. [ECF Nos. 7, 8]. Pursuant to
my first Scheduling Order, filed May 6, 2016, Plaintiff’s motion for summary judgment and brief
were due by June 6, 2016. [ECF No. 9]. After Plaintiff failed to file any motions by that date, in
light of Plaintiff’s pro se status, I issued an Amended Scheduling Order on June 8, 2016 extending
Plaintiff’s deadline for filing her motion for summary judgment and brief to July 8, 2016. [ECF No.
10]. I mailed a copy of the Amended Scheduling Order to Plaintiff at her then-address of record.
On June 28, 2016, Defendant filed a Notice to Court of Resending Answer and Social Security
Administrative Transcript to Plaintiff’s New Address. [ECF No. 11]. In that Notice, Defendant
informed the Court that, on or around June 28, 2016, the package containing the Answer and
Transcript that Defendant had sent to Plaintiff at her address of record had been returned with the
notation “unclaimed” and with a corrected address listed on the address label. Id. ¶ 2 & Ex. A.
The Notice further indicated that Defendant had resent the Answer and Transcript to Plaintiff at
her new address via certified mail. Id. ¶ 3. Based on the representations in Defendant’s Notice,
I issued a second Amended Scheduling Order requiring Plaintiff to file her motion and brief no
later than July 29, 2016. [ECF No. 12]. On August 24, 2016, after Plaintiff again failed to file any
motions or related documentation, I issued an Order to Show Cause requiring Plaintiff to file a
motion and brief no later than September 26, 2016 or face dismissal of her case. [ECF No. 13].
On September 26, 2016, Plaintiff responded to the Order to Show Cause by filing a packet
containing additional medical records pertaining to D.D.R. [ECF No. 14]. Although she did not
file a traditional motion or brief, I accepted her filing, construed it as a motion for summary
judgment, and permitted the case to proceed. Defendant filed a Motion for Summary Judgment
and Brief on October 6, 2016. [ECF Nos. 16 and 17]. The issues are now ripe for my review.
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II.
A.
LEGAL ANALYSIS
STANDARD OF REVIEW
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d
900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Determining
whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler,
786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “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).”
Id.
The Commissioner’s findings of fact, if supported by substantial
evidence, are conclusive. 42 U.S.C. § 405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
1979). A district court cannot conduct a de novo review of the Commissioner’s decision or
re-weigh the evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa. 1998).
Where the ALJ's findings of fact are supported by substantial evidence, a court is bound by those
findings, even if the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is supported by substantial
evidence, the district court must review the record as a whole. See 5 U.S.C. § 706.
A district court, after reviewing the entire record, may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984). Because Plaintiff is acting pro se, applicable standards, as well as
Plaintiff’s submissions must be viewed liberally.
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Mohan v. Colvin, No. 14-148, 2014 WL
4925181, at *1 (W.D. Pa. Sep. 30, 2014).
The Social Security Act provides that a child under 18 is “disabled” for purposes of SSI
eligibility if he or she “has a medically determinable physical or mental impairment, which results
in marked and severe functional limitations, and which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 1382c(a)(3)(C)(i).
The Commissioner follows a three-step sequential process in
determining childhood disability: (1) whether the child is doing substantial gainful activity; (2) if
not, whether he or she has a medically determinable severe impairment; (3) if so, whether the
child's severe impairment meets, medically equals, or functionally equals the severity of a set of
criteria for an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §
416.924.
An impairment functionally equals a listed impairment if the child has “marked”
limitations 2 in two domains of functioning or an “extreme” limitation 3 in one domain.
Id. §
416.926a(a). The six domains are: acquiring and using information; attending and completing
tasks; interacting and relating with others; moving about and manipulating objects; caring for
yourself; and health and physical well-being. Id. § 416.926a(b)(1)(i)-(vi). When evaluating the
ability to function in each domain, the ALJ considers information that will help answer the following
questions “about whether your impairment(s) affect your functioning and whether your activities
are typical of other children your age who do not have impairments”: What activities are you able
to perform? What activities are you not able to perform? Which of your activities are limited or
restricted compared to other children your age who do not have impairments? Where do you
have difficulty with your activities—at home, in childcare, at school, or in the community? Do you
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A “marked” limitation “seriously” interferes with a claimant's ability independently to initiate, sustain, or
complete activities. 20 C.F.R. § 416.926a(e)(2).
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An “extreme” limitation “very seriously” interferes with a claimant's ability independently to initiate, sustain,
or complete activities. 20 C.F.R. § 416.926a(e)(3).
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have difficulty independently initiating, sustaining, or completing activities? What kind of help do
you need to do your activities, how much help do you need, and how often do you need it? Id.
§ 416.926a(b)(2)(i)-(vi).
In this case, the ALJ found that although D.D.R. had severe impairments,4 he did not
have an impairment or combination of impairments that met, medically equaled, or functionally
equaled the severity of a set of criteria for an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 416.924, 416.925, and 416.926). [ECF No. 8-2, pp. 17-25]. As a
result, the ALJ found that D.D.R. was not disabled under the Act. Id.
B.
Analysis
Plaintiff’s pro se filings fail to assert any specific error with the ALJ’s opinion. [ECF No.
14]. Rather, she attaches twenty-seven pages of medical records dated between April and July
of 2016 regarding D.D.R. [ECF No. 14-1]. To the extent Plaintiff believes these records provide
an appropriate basis for remand, such belief is without merit in this case. Generally, evidence
that was not before the ALJ “cannot be used to argue that the ALJ’s decision was not supported
by ‘substantial evidence.’”
Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991).
When a
claimant seeks to rely on evidence first presented to the District Court, sentence six of Section
405(g) provides that the court may remand the case for consideration of that evidence only if the
evidence is (1) new; (2) material; and (3) good cause exists for not presenting the evidence to the
Commissioner in the prior proceedings. See Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir.
2001); 42 U.S.C. § 405(g) (sentence six).
Here, even if the records are “new” in the sense that they post-date the ALJ’s decision,
they are not “material” within the meaning of the Act because they do not relate to the time period
for which benefits were denied. Indeed, the documents Plaintiff attached in response to my
4
The ALJ found that D.D.R. had the following severe impairment: speech and language delays
(stuttering). [ECF No. 8-2, at 17].
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Order to Show Cause post-date the application for benefits by four years and the administrative
hearing by over two years. [ECF No. 14]. Other documents attached to the Complaint are
dated in 2015, over a year after the hearing. [ECF No. 4]. Implicit in the materiality requirement
“is that the new evidence relate to the time period for which benefits were denied, and that it not
concern evidence of a later-acquired disability or the subsequent deterioration of the previously
non-disabling condition.” Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir.
1984). In the latter cases, the appropriate remedy is to file a new application for benefits. See
20 C.F.R. § 416.330(b); Brown v. Colvin, Civ. No. 12-149-GMS, 2013 WL 4594964, at *11 (D. Del.
Aug. 27, 2013) (medical and school records that post-dated ALJ’s decision denying benefits were
not material to question of whether child was disabled on or before the date of that decision).
Because the medical and school records at issue here post-date the ALJ’s decision and/or
relate to later-acquired issues, I do not find any basis to remand this case pursuant to the sixth
sentence of Section 405(g).
Although Plaintiff fails to assert any specific substantive errors with the opinion of the ALJ,
I nonetheless have reviewed the record and the ALJ’s decision denying the SSI claim in light of
her pro se status. After such review, I agree with Defendant that the ALJ properly analyzed the
evidence and that substantial evidence supports her conclusion that D.D.R.’s speech and
language delays did not meet or functionally equal a listed impairment. Among other things, the
ALJ considered the longitudinal evidence and explained why the evidence as a whole failed to
establish that D.D.R. had “marked” or “extreme” limitations in any of the six domains of
functioning. In so doing, she assigned great weight to the uncontradicted opinions of the state
agency medical
consultants,
the consultative
examiner,
D.D.R.’s
teacher,
and the
speech/language pathologist, none of whom found more than moderate limitations in any area.
[ECF No. 8-2, at 20 (citing Exs. B2A, B3F, B5F, and B9F)]. As set forth in the ALJ’s opinion and
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summarized in Defendant’s Brief, the ALJ appropriately identified the evidentiary bases for her
conclusions. See ECF No. 8-2, at 17-25 (citing Exs. B2A, B14E, B3F, B5F, B6F, B7F, B9F,
B10F, and Hearing Testimony); ECF No. 17, at 7-8 (summarizing evidence cited by the ALJ).
Because the ALJ properly analyzed Plaintiff’s claim, and her findings are supported by
substantial evidence, the Commissioner’s decision is affirmed.
See 42 U.S.C § 405(g)
(sentence four).
III.
CONCLUSION
For all of the foregoing reasons, I find that the ALJ’s decision was supported by substantial
evidence and that there is no basis to remand for consideration of new evidence. Defendant’s
Motion for Summary Judgment is granted, and Plaintiff’s Motion for Summary Judgment is
denied. An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KENNESHA HENDERSON,
on behalf of D.D.R., a minor,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 2:15-1199
)
AMBROSE, Senior District Judge
ORDER OF COURT
AND NOW, this 13th day of February, 2017, after careful consideration of the submissions
of the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered
that Defendant’s Motion for Summary Judgment [ECF No. 16] is GRANTED, and Plaintiff’s Motion
for Summary Judgment [ECF No. 14] is DENIED.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
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