SIRCELY v. COLVIN

Filing 14

ORDER denying 9 Motion for Summary Judgment; granting 11 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/8/18. (cha)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JULIE LYN SIRCELY, o/b/o minor child, J.C.S., )
)
Plaintiff,
)
)
-vs)
)
1
NANCY A. BERRYHILL,
)
COMMISSIONER OF SOCIAL SECURITY,
)
)
Defendant.
)

Civil Action No. 17-71

AMBROSE, Senior District Judge.
OPINION AND ORDER
Background
Plaintiff Julie Lyn Sircely (“Sircely”) brings this action on behalf of her minor son,
J.C.S., for review of the ALJ’s decision denying a claim for child’s supplemental security
income. Sircely alleges a disability beginning on November 1, 2012. Following a hearing
before an ALJ, during which time Sircely, her minor son, and a vocational expert (“VE”)
testified, the ALJ denied the claims. Sircely appealed. Pending are Cross Motions for
Summary Judgment. See ECF docket nos. [9] and [11]. The issues are now ripe for
review.
Legal Analysis
1. 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

1

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.

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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, however,
the district court must review the record as a whole. See, 5 U.S.C. §706.
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

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Commissioner follows a three-step sequential process in determining childhood
disability: (1) whether the child is engaged in substantial gainful activity; (2) if not,
whether he or she has a medically determinable severe impairment; (3) and, 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, or combination of impairments, “medically equals” a listing “if it is
at least equal in severity and duration to the criteria of any listed impairment.” Torres
o/b/o C.N.C. v. Comm’r. of Soc. Sec., Civ. No. 16-1743, 2017 WL 3783700, * 2 (D. N.J.
Aug. 31, 2017) (citations omitted). “To determine whether an impairment medically
equals a listing, the ALJ considers all of the evidence in a claimant’s record about the
claimant’s impairment and its effects on the claimant that are relevant to a finding of
medical equivalence.” Torres, 2017 WL 3783700, * 2 (citations omitted). “If ‘the child’s
impairment does not medically meet a listing … the examiner must determine whether
the impairment functionally equals a listing.’” Torres, 2017 WL 3783700, * 2, quoting,
Jaramillo v. Comm’r. of Soc. Sec., 130 Fed. Appx. 557, 560 (3d Cir. 2005). An
impairment functionally equals a listed impairment if the child has “marked” 2 limitations
in two domains of functioning or an “extreme”3 limitation in one domain. 20 C.F.R. §
416.926(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. 20 C.F.R. §

A “marked” limitation “seriously” interferes with a claimant’s ability independently to initiate, sustain, or complete
activities. 20 C.F.R. § 416.926(e)(2).
3
An “extreme” limitation “very seriously” interferes with a claimant’s ability independently to initiate, sustain, or
complete activities. 20 C.F.R. § 416.926(e)(3).
2

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416.926a(b)(i)-(iv). 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”:
(i)What activities are you able to perform?
(ii) Which of your activities are limited or restricted compared to other children
your age who do not have impairments?
(iii) Where do you have difficulty with your activities – at home, in childcare, at
school, or in the community?
(iv) Do you have difficulty independently initiating, sustaining, or completing
activities? and
(v) What kind of help do you need to do your activities, how much help do you
need, and how often do you need it?

20 C.F.R. § 416.926a(b)(2)(i)-(vi).
In this case, the ALJ found that J.C.S. was not engaged in substantial gainful
activity since the application date and that he has the following impairments, which
singularly or in combination, are severe: mood disorder / depressive disorder, anxiety
disorder, rule out post-traumatic stress disorder, and attention deficit hyperactivity
disorder, combined type. (R. 23) However, the ALJ determined that he does not have
an impairment or combination of impairments that meets, medically equals, or
functionally equals the severity of a set of criteria for an impairment listed in 20 C.F.R.
§§ 416.924, 416.925, and 416.926. (R. 24-41) As a result, the ALJ found that he was
not disabled under the Act.
2. Functional Equivalence
Here, Sircely contends that the ALJ erred in failing to find that J.C.S. met the
functional equivalence of a Listing. As stated above, a claimant can demonstrate
“functional equivalence” by showing a “marked” limitation in at least two domains of
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functioning. Specifically, Sircely argues that the ALJ’s findings that J.C.S. has less than
“marked limitation” in the domain of interacting and relating with others and in the
domain of the ability to care for himself, is not supported by substantial evidence of
record.
The domain of interacting and relating with others “considers how well a child is
able to initiate and sustain emotional connections with others, develop and use the
language of his or her community, cooperate with others, respond to criticism, and
respect and take care of the possessions of others.” (R. 36) See also, Arias v. Comm’r.
of Soc. Sec., Civ. No. 13-5064, 2014 WL 5092623, * 9 (D. N.J. Oct. 9, 2014).
“Interacting and relating with others relates to all aspects of social interaction at home,
at school, and in the community.” Gray v. Colvin, Civ. No., 2014 WL 25793, * 9 (E.D.
Pa. Jan. 2, 2014), (R. 36). “Because communication is essential to both interacting and
relating, this domain considers the speech and language skills children need to speak
intelligibly and to understand and use the language of their community.” (R. 36) Here,
the ALJ considered Social Security rules applicable both to school-age children without
an impairment and to adolescents without an impairment, given that J.C.S. was a
school-age child on the date the application was filed and was an adolescent on the
date of the decision. (R. 23, 36-37) Thus, the ALJ recognized that a school-age child
without an impairment should be able to develop more lasting friendships with their
peers; that they should be able to begin to work in groups, understand and tolerate
another’s point of view; and attach to adults other than parents. (R. 36), citing 20 C.F.R.
§ 416.926a(i)(2)(iv) and SSR 09-5p. Similarly, the ALJ recognized that an adolescent
without an impairment should be able to initiate and develop friendships with peers and

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relate appropriately to other children and adults. Additionally, an adolescent should
focus more attention on relationships with peers and less on parents, and develop an
increasing desire for privacy. (R.37) The ability to solve conflicts with peers, family
members and others outside of the family develops as does the recognition that there
are different social rules for dealing with friends as compared to adults. (R. 37) An
adolescent without an impairment should also be able to “intelligibly express his
feelings, ask for assistance, seek information, describe events, and tell stories, in all
kinds of environments … and with all types of people….” (R. 37), citing, 20 C.F.R. §
416.926a(i)(2)(v) and SSR 09-5p. The ALJ also considered examples of limited
functioning in this domain.4
With this backdrop, the ALJ determined that J.C.S. has “less than marked
limitation.” (R. 38) According to the ALJ, “[t]he evidence demonstrates that with
adherence to the medication regimen, ongoing patient counseling, and utilization of
coping skills, he has shown a reduction in the inappropriate behavior and the ability to
remove himself from the situation.” (R. 37-38) The ALJ relied upon, among other things,
school records, Teacher Questionnaires, therapist reports, a report from Pressley
Ridge, and a state agency psychological consultant’s opinion in support of this
conclusion. After careful consideration, I find that substantial evidence supports his
finding. For instance, as the ALJ noted, J.C.S. does not have a conduct disorder
diagnosis. (R. 37) Further, the Teacher Questionnaires support the ALJ’s conclusion.

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The ALJ noted that the examples do not apply to a child of a particular age but cover a range of ages and include a
child who: “(i) does not reach out to be picked up and held by a caregiver; (ii) has no close friends, or all friends are
older or younger than the child; (iii) avoids or withdraws from people he knows, or is overly anxious or fearful of
meeting new people or trying new experiences; (iv) has difficulty playing games or sports with rules; (v) has
difficulty communicating with others (e.g., in using verbal and nonverbal skills to express himself, in carrying on a
conversation, or in asking others for assistance); or (vi) has difficulty speaking intelligibly or with adequate
fluency.” (R. 37)

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Although a behavior plan was implemented in one particular class in 6 th grade, it was
not implemented in any others. (R. 37) Additionally, other teachers indicated that J.C.S.
had appropriate verbal and social skills. (R. 37) David Condeluci, J.C.S.’s fifth grade
homeroom and social studies teacher, noted that J.C.S. “is a very nice kind typical 5 th
grade boy. He has strengths and weaknesses as any human being possesses. [J.C.S.]
is very interested in learning, possesses excellent social skills, and is on his way to
becoming a fine well-adjusted young man. He is to be admired for his many fine
qualities.” (R. 204) A Discharge Summary with Aftercare Plan from Pressley Ridge
indicated that J.C.S. became compliant with taking medication following education
regarding the importance of it, that he did well with seeking out appropriate coping skills
when he felt himself having anxiety attacks and hallucinations, and that his grades
increased during the second half of treatment. (R. 540-41) It was noted that J.C.S. “has
made great strides with controlling his anger and aggressive behaviors. (R. 541) The
Pressley Ridge report also indicated that much of the inappropriate behavior at school
stemmed from J.C.S. not having adequate time to socialize and interact with peers. (R.
541) Sircely was encouraged to allow J.C.S. time to engage appropriately with his
peers. (R. 542)5 Finally, the ALJ appropriately relied upon state agency psychological
consultant John Vigna, Psy. D.’s opinion that J.C.S. had a “less than marked” limitation
in the domain of interacting and relating with others. (R. 32, 79-80)6 As such, I find that

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Sircely cites to the persistent disciplinary incidents at school, urging that the incidents cannot be characterized as
“humorous” or as J.C.S. attempting to be the “class clown.” See ECF docket no. 10, p. 17. I recognize that J.C.S.
was disciplined on numerous occasions for fighting and / or using vulgar and offensive language. Yet, as the ALJ
noted, records from Mercy Behavioral Health which post-date those incidents indicate that J.C.S. did not engage in
any physical aggression with peers or staff, that he was able to have positive peer interaction, and that he showed an
ability to verbalize his thoughts, feelings and emotions. (R. 30)
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The ALJ “evaluated and considered the opinion of the psychological consultant and gives them great weight
because they are consistent with the clinical findings, the longitudinal treatment history, and the school records and
teacher questionnaires including the additional records submitted after their review.” (R. 33)

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the ALJ did not commit an error in concluding that J.C.S. had less than a “marked”
limitation in this domain.
The ALJ’s finding that J.C.S. “has less than marked limitation in the ability to care
for himself” is similarly supported by substantial evidence of record. This domain
addresses how well a claimant “maintain[s] a healthy emotional and physical state,
including how well you get your physical and emotional wants and needs met in
appropriate ways; how you cope with stress and changes in your environment; and
whether you take care of your own health, possessions, and living area.” 20 C.F.R. §
416.926a(k)7 School-age children should be independent in most day-to-day activities
such as dressing and bathing, and should begin to understand what is right and wrong,
and what is acceptable and unacceptable behavior. Adolescents should be increasingly
independent and, although at times experience confusion and anxiety about his / her
self and body, should begin to discover appropriate ways to express both good and bad
feelings. 20 C.F.R. § 416.926a(k)(iv)-(v). The Regulations list, as examples of limitations
in caring for oneself: (i) placing non-nutritive or inedible objects in one’s mouth; (ii) using

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The Regulations further provide that: (i) Caring for yourself effectively, which includes regulating yourself,
depends upon your ability to respond to changes in your emotions and the daily demands of your environment to
help yourself and cooperate with others in taking care of your personal needs, health and safety. It is characterized
by a sense of independence and competence. The effort to become independent and competent should be observable
throughout your childhood. (ii) caring for yourself effectively means becoming increasingly independent in making
and following your own decisions. This entails relying on your own abilities and skills, and displaying consistent
judgment about the consequences of caring for yourself. As you mature, using and testing your own judgment helps
you develop confidence in your independence and competence. Caring for yourself includes using your
independence and competence to meet your physical needs, such as feeding, dressing, toileting, and bathing,
appropriately for your age. (iii) Caring for yourself effectively requires you to have a basic understanding of your
body, including its normal functioning, and of your physical and emotional needs. To meet these needs successfully,
you must employ effective coping strategies, appropriate to your age, to identify and regulate your feelings,
thoughts, urges, and intentions. Such strategies are based on taking responsibility for getting your needs met in an
appropriate and satisfactory manner. (iv) caring for yourself means recognizing when you are ill, following
recommended treatment, taking medication as prescribed, following safety rules, responding to your circumstances
in safe and appropriate ways, making decisions that do not endanger yourself, and knowing when to ask for help
from others. 20 C.F.R. § 416.926a(k)

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self-soothing activities showing developmental regression (i.e., thumb sucking) or
restrictive or stereotyped mannerisms (i.e., head banging); (iii) engaging in self-injurious
behavior; (v) not spontaneously pursuing enjoyable activities or interests; and (v)
disturbed eating or sleep patterns. 20 C.F.R. § 426.926a(k)(3)
Here, the ALJ acknowledged that the record contains references to “nocturnal
enuresis and a need to sleep with someone in the room associated with the visual and
auditory hallucinations,” but found J.C.S. to be otherwise independent in personal care.
(R. 39-40) He further cited to Teacher Questionnaires as support for J.C.S.’s “obvious
problems with handling frustration appropriately and slight-to-obvious problems utilizing
good coping skills,” but noted that they also indicate his ability “to remove himself quietly
from the situation that was making him angry.” (R. 40) The evidence supports his
conclusion in this regard. (R. 251) The ALJ also found that the record revealed that,
“with ongoing counseling, he is able to utilize appropriate behavior strategies to reduce
his frustration level and increase his mood.” (R. 40) Again, the record supports the
ALJ’s conclusions in this respect. (R. 469-495, 540) Similarly, the ALJ’s decision is
supported by the opinion rendered by John Vigna, the State Agency psychological
consultant, who found that J.C.S. had a “less than marked” limitation in the domain of
caring for himself. (R. 81) Consequently, the ALJ did not commit an error with respect to
his finding regarding J.C.S.’s limitations in the domain of caring for himself.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JULIE LYN SIRCELY, o/b/o minor child, J.C.S. )
Plaintiff,
)
)
-vs)
)
NANCY A. BERRYHILL,8
)
COMMISSIONER OF SOCIAL SECURITY,
)
)
Defendant.
)

Civil Action No. 17-71

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 8th day of February, 2018, it is hereby ORDERED that Plaintiff’s
Motion for Summary Judgment (Docket No. 19) is denied and Defendant’s Motion for
Summary Judgment (Docket No. 11) is granted.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.

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