CUSTER v. ASTRUE
Filing
21
MEMORANDUM JUDGMENT ORDER denying 10 plaintiff's Motion for Summary Judgment and granting 15 defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/30/13. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIDGET CUSTER, on behalf
of Minor Child Welch,
Plaintiff,
v.
Civil Action No. 12 118J
CAROLYN W. COLVIN,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
this
~~ay
of
September,
2013,
upon
due
consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
Commissioner
of
application for
Social
child's
Security
("Commissioner" )
supplemental
security
denying
income
her
("CSSI")
under Title XVI of the Social Security Act ("Act"), IT IS ORDERED
that the Commissioner's motion for summary judgment (Document No.
15) be, and the same hereby is, granted 1 and plaintiff's motion
~A072
(Rev. 8182)
IPlaintiff has filed a reply brief (Document No. 19), in which she argues
that defendant has admitted the facts contained in her separately filed concise
statement of material facts because defendant has failed to file a responsive
pleading as required by the court's local rules.
This case originally was
assigned to the Honorable Kim R. Gibson, and subsequently was re-assigned to
this member of the court. We note that Judge Gibson's scheduling order setting
forth deadlines in this case did not require the filing of a concise statement
of material facts.
See Document No.9.
Accordingly, this court will not
penalize defendant for failing to file a response to her concise statement of
material facts.
We further note that the filing of a concise statement of
material facts is not required by this member of the court, nor has it been
required in any other social security cases which previously have been
transferred to this member of the court from Judge Gibson's docket.
Plaintiff also argues that defendant's summary judgment motion and brief
should be dismissed because the brief is two pages in excess of the maximum
page limit, and defendant filed a consolidated response to plaintiff's summary
judgment motion and separately filed Motion to Remand (Document No. 11).
for summary judgment (Document No. 10) be, and the same hereby is,
denied. 2
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may
rej ect
or
discount
reasons for doing so.
Cir. 1999).
any evidence
if
Plummer v. Apfel,
the ALJ explains
186 F.3d 422, 429
the
(3d.
Where the ALJ's findings are supported by substantial
evidence, a reviewing court is bound by those findings, even if it
would have decided the factual inquiry differently.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001).
Fargnoli v.
These well-established
principles preclude a reversal or remand of the ALJ's decision
here because the record contains substantial evidence to support
her findings and conclusions.
On November
20,
2008,
plaintiff
Bridget Custer
filed an
application for CSSI on behalf of her granddaughter, minor child
Welch (hereinafter, "KMW") alleging KMW became disabled on October
2, 2008, due to attention deficit hyperactivity disorder ("ADHD")
and
allergies.
Plaintiff's
application
was
denied.
At
plaintiff's request, an ALJ held a hearing on September 15, 2010,
at which plaintiff appeared and testified on behalf KMW.
On
November 12, 2010, the ALJ issued a decision finding that KMW is
Again, the court will not penalize defendant for slightly exceeding the page
limit apparently established by Judge Gibson's rules on motion practice.
Finally, the court will not penalize defendant for filing a combined response
to plaintiff's summary judgment motion and motion to remand, as we find nothing
improper with defendant's consolidated brief.
2 Pl
a intiff's Motion to Remand also will be denied for reasons explained
herein.
~A072
(Rev, 8/82)
- 2
not disabled.
On April 10,
2012,
the Appeals Council denied
plaintiff's request for review, thereby making the ALJ's decision
the final decision of the Commissioner.
In
reviewing
this
case,
the
ALJ
considered
plaintiff's
testimony, as well as KMW's medical and academic records.
The ALJ
found that the evidence established KMW suffers from the severe
impairments
further
ADHD, Asperger's disorder and allergies.
found
that
those
impairments,
either
The ALJ
alone
or
in
combination, do not meet or medically equal the severity of any of
the impairments listed in Appendix 1 of 20 C.F.R. §404, Subpart P
("Appendix
1 n) ,
nor
do
they
functionally equal any listing.
result
in
limitations
that
As a result, the ALJ found that
KMW is not disabled within the meaning of the Act.
For a
child under
the
age
of
eighteen to be
considered
disabled under the Act, she must have "a medically determinable
physical or mental impairment, which results in marked and severe
functional limitations,
death or which has
continuous
period
and which can be expected to result in
lasted or can be
of
not
less
than
expected to
12
months.
II
last
for a
42
U.S.C.
§1382c(a) (3) (C) (i); see also 20 C.F.R. §416.906.
The Regulations outline a three-step sequential evaluation
process to determine a child's eligibility for SSI.
§416.924.
20 C.F.R.
Under this analysis, a child will be found disabled if:
(1) she is not working or engaged in substantial gainful activi ty i
(2) she has a medically determinable impairment or combination of
impairments
that
is
severe;
and
""'A072
(Rev. 8/82)
- 3
(3)
the
impairment
meets,
medically
equals,
or
functionally
impairment listed in Appendix 1.
equals
the
severity of
an
20 C.F.R. §§416.924(b)-(d)
Here, plaintiff challenges the ALJ's findings at step 3 of
the sequential evaluation process, claiming that the ALJ erred by
finding that KMW's severe impairments do not functionally equal
any listed impairment.
For the reasons explained below, the court
finds that plaintiff's argument is without merit.
The
regulations
set
forth
specific
rules
for
evaluating
whether the child claimant has an impairment that meets a listing
(20
C.F.R.
§416.925),
medically
equals
a
listing
(20
C.F.R.
§416.926) or functionally equals a listing (20 C.F.R. §416.926a).
An impairment
"marked"
functionally equals
limitations 3
in
two
a
listing
domains
"extreme" limitation 4 in one domain.
of
if
it results
functioning
or
20 C.F.R. §416.926a(a).
in
an
The
six domains of functioning to be considered in this evaluation
are:
(1)
acquiring
completing tasks;
a t tending
and
interacting and relating with others;
(4)
and
(3)
using
information;
moving about and manipulating objects;
and
(6 )
health
and
physical
(5)
(2 )
caring for yourself;
well-being.
20
C.F.R.
§416. 926a (b) (1) (i) - (vi) .
3 A "marked" limitation in a domain will be found "when your impairment(s)
interferes seriously with your ability to independently initiate, sustain, or
complete activities."
20 C.F.R. §416.926a(e) (2) (i).
A "marked" limitation
also means a limitation that is "more than moderate" but "less than extreme."
rd.
4An "extreme"
limitation in a domain will be found "when your
impairment (s) interferes very seriously with your ability to independently
initiate, sustain, or complete activities." 20 C.F.R. §416.926a(e) (3) (i). An
"extreme" limitation is a limitation that is "more than marked" but does not
necessarily mean a total lack or loss of ability to function.
rd.
'Q,AO 72
(Rev. 8/82)
- 4
The ALJ determined that KMW has less than a marked limitation
of functioning in acquiring and using information,
in attending
and completing tasks, in interacting and relating with others, and
in caring for herself.
18-21,
(R.
23).
In addition,
the ALJ
found that KMW has no limitation of functioning in moving about
and manipulating objects and in health and physical well-being.
(R. 22, 24).
Plaintiff
argues
that
KMW
functionally
equals
certain
listings because she has a marked limitation of functioning in her
ability to acquire and use information,
to attend and complete
tasks, to interact and relate to others, and to care for herself.
After reviewing the record, the court disagrees with plaintiff and
concludes that the ALJ thoroughly explained the reasons for his
findings
regarding
each of
those
(R.
domains.
18-21,
23).
Further, the court is satisfied that substantial evidence supports
the ALJ's
finding
that
KMW's
impairments
do
not
functionally
equally any listing because she does not have a marked limitation
in two domains of functioning or an extreme limitation in one
domain.
In
connection
with
functionally equal a
her
listing
argument
that
impairments
plaintiff partially relies on a
f
psychological evaluation from Nulton Diagnostic
dated November 18, 2010
KMW's
&
Treatment Center
(the "Nulton report"), which post-dated
the ALJ's decision and was submitted for the first time to the
Appeals Council.
Plaintiff argues that the Appeals Council erred
by failing to consider the Nulton report and should have remanded
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