SALYARDS v. ASTRUE

Filing 25

ORDER granting 15 Motion for Summary Judgment; denying 23 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 1/3/13. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANNETTE R. SALYARDS ON BEHALF
OF EMMA IRENE PITTINGER
Plaintiff,
vs.
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 11-151

AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 15 and
23). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 16 and 24). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am granting Defendant=s Motion for Summary Judgment (ECF No. 15) and denying
Plaintiff=s Motion for Summary Judgment. (ECF No. 23).
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (ACommissioner@) denying an application for supplemental security income on
behalf of the Claimant, a child under age 18, pursuant to the Social Security Act (AAct@). Plaintiff
filed an application alleging that since March 21, 2008, the Claimant had been disabled. (ECF
No. 6-5, p. 2).

Administrative Law Judge (“ALJ”), Brian Kilbane, held a hearing on June 1,

2010. (ECF No. 6-2, pp. 26-35). On July 2, 2010, ALJ Kilbane found that the Claimant was not
disabled under the Social Security Act.

(ECF No. 6-2, pp. 9-21).

administrative remedies, Plaintiff filed this action.

After exhausting all

The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 15 and 23).
The issues are now ripe for review.
II. LEGAL ANALYSIS
A.

STANDARD AND SCOPE 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 Amore 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).
Additionally, 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. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.
1986); 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 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
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criteria for an impairment listed in 20 C.F.R. § 416.924(d). 20 C.F.R. § 416.924. An impairment
functionally equals a listed impairment if the child has “marked” limitations1 in two domains of
functioning or an “extreme” limitation2 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. § 416.926a(b)(1)(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”: 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 have difficulty
independently initiating, sustaining, or completing activities; and 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 although the claimant has not engaged in substantial
gainful activity and has severe impairments,3 but he determined that she did 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(d). (ECF No. 62, pp. 12- 21). As a result, the ALJ found that the claimant was not disabled under the Act.

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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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The ALJ found the claimant’s severe impairments to include: “Turners syndrome, a bicuspid
aortic valve and chronic serous otitis media, status post bilateral myringotomy and
tympanostomy tubes.” (ECF No. 6-2, p. 12).
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B.

DISCUSSION
On appeal, the Plaintiff challenges the ALJ’s decision at step three of the analysis. She

contends that the ALJ erred in determining that the claimant did not meet a listing. She also
contends that the ALJ erred in his conclusion that the claimant did not have “marked” limitations
in the six domains. (ECF No. 24). I will discuss each seriatim as raised by the Plaintiff.
1.

Whether the ALJ erred in concluding that the claimant did not meet the
listing at §109.13

The Plaintiff argues that the ALJ erred in concluding that the claimant did not meet the
listing at §109.13. (ECF No. 23, pp. 5-8). Specifically, the Plaintiff argues that the claimant is
delayed by 25% in both communication and social emotional areas of development (ECF No. 611, p. 13) and that the ALJ did not cite any contrary medical evidence. As a result, the Plaintiff
argues that there is substantial evidence that the claimant meets or approximates the listing.
(ECF No. 6-23, pp. 7-8). After a review of the evidence, I disagree.
To begin with, the standard of review is not whether there is evidence to establish the
Plaintiff’s position but, rather, is whether there is substantial evidence to support the ALJ’s
finding, as the Plaintiff recognizes in her topic heading. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). The ALJ followed the directives of the law by evaluating claimant under the listing for the
impairments resulting from the syndrome. 20 C.F.R. Part 404 Subpart P Appx 1 (Listings), Part
B §109.13. In this case, the ALJ evaluated claimant under §§104 (cardiovascular system) and
112.12 (mental disorders). (ECF No. 6-2). In her brief, the Plaintiff’s assertion of error focuses
on §112.12. Upon review of the record, I find there is substantial evidence of record to support
the ALJ’s decision that the claimant did not meet the listing. See, ECF No. 6-10, p. 56, ECF No.
6-6, pp. 26-27, 79; ECF No. 6-11 pp. 40-60; ECF No. 6-10, pp. 58-59. Accordingly, I find no
error in this regard.

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2-3, 5. Whether the ALJ erred in his conclusion that the claimant has no limitation
in the domains of acquiring and using information, attending and
completing tasks, and moving about and manipulating objects
The Plaintiff sets forth topic headings for each of the aforementioned alleged errors but
does not provide any argument with regard to the same. (ECF No. 23, pp. 8-9, 11).

In the

absence of any substantive or meaningful analysis of the same, I find this assertion to be
undeveloped and wholly inadequate. See, Pennsylvania v. U.S. Dept. of Health & Human
Serv., 101 F.3d 939, 945 (3d Cir. 1996)(stating that conclusory assertions, unaccompanied by a
substantial argument, will not suffice to bring an issue before the court). Consequently, I will not
address the theories set forth in these topic headings.
4.

Whether the ALJ erred in his conclusion that the claimant has no limitation
in the domain of interacting and relating with others

The Plaintiff argues that “there is substantial evidence that the claimant suffers from
marked limitations” in the domain of interacting and relating with others. (ECF No. 23, p. 9).
She concludes with the sentence: “It is the claimant’s position that the evidence establishes
more than a slight abnormality and the impairments have more than a minimal effect on the
claimant.” (ECF No. 23, p. 10). The standard, however, is not whether there is evidence to
establish the Plaintiff’s position but, rather, is whether there is substantial evidence to support
the ALJ’s finding, as the Plaintiff recognizes in her topic heading. Allen v. Bowen, 881 F.2d 37,
39 (3d Cir. 1989). Yet, the claimant does not address any errors. Consequently, I find that the
theory set forth in the topic heading to be undeveloped and inadequate. Therefore, I find no
reason to address the theory set forth in this heading.4

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Regardless, based on a review of the record, I find there is substantial evidence of record to
support the position of the ALJ. See, ECF No. 6-6, pp. 22-27, 67-76, 77-79; ECF No. 6-10, pp.
53-57.
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6.

Whether the ALJ erred in his conclusion that the claimant has no limitation
in the domain of the ability to care for herself

The Plaintiff sets forth the aforementioned topic heading.

(ECF No. 23, p. 11).

Thereunder, the claimant states: “These delays admittedly do not rise to the level of marked.”
Id.

Again, an impairment functionally equals a listed impairment if the child has “marked”

limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. §
416.926(a). Based on the claimant’s admission, I find no reason to address the theory set forth
in this heading.
7.

Whether the ALJ erred in determining that the claimant had less than
marked impairment in the domain of health and physical well being

Under this heading, the Plaintiff simply lists the claimant’s diagnoses and then merely
concludes in a four sentence paragraph that “the record substantiates a finding of a ‘Marked
Limitation’ in this domain.”5 (ECF No. 23, p. 11). Whether the record substantiates a different
finding in favor of the claimant, however, is not the standard. The standard is whether there is
substantial evidence to support the ALJ’s finding, as the Plaintiff recognizes in her topic
heading. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989). Yet, the Plaintiff does not address
any errors. Consequently, I find that the theory set forth in the topic heading to be undeveloped
and inadequate. Therefore, I find no reason to address the theory set forth in this heading.
An appropriate order shall follow.

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I note that the mere existence of a diagnosis does not mean there is a limitation, let alone a
“marked” or “extreme” limitation.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANNETTE R. SALYARDS ON BEHALF
OF EMMA IRENE PITTINGER
Plaintiff,
vs.
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 11-151

AMBROSE, Senior District Judge
ORDER OF COURT
THEREFORE, this 3rd day of January, 2013, it is ordered that the decision of the ALJ is
affirmed and Plaintiff=s Motion for Summary Judgment (ECF No. 23) is denied and Defendant=s
Motion for Summary Judgment (ECF No. 15) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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