United States District Court, E.D. Pennsylvania
February 4, 2004.
TINA MILLER, on behalf of TYRIK MILLER, Plaintiff
JO ANNE BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: CYNTHIA RUFE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff seeks judicial review of the decision of the Commissioner of
the Social Security Administration denying her son's claim for
Supplemental Security Income ("SSI") under Title XVI of the Social
Security Act. 42 U.S.C. § 1381-1383h. Presently before the Court are the
parties' cross-motions for summary judgment. United States Magistrate
Judge Jacob P. Hart issued a report recommending that this Court deny
Plaintiff's Motion for Summary Judgment, grant Defendant's Motion, and
affirm the Commissioner's decision. Upon careful and independent
consideration of the administrative record, Judge Hart's report, and
Plaintiff's objections thereto, the Court overrules Plaintiff's
objections and grants Defendant's Motion for Summary Judgment.
I. PROCEDURAL HISTORY
Plaintiff Tina Miller filed an application on behalf of her son, Tyrik
Miller, for SSI on March 9, 2001, alleging that Tyrik has been disabled
since December 2, 2000 due to a combination of Attention Deficit
Hyperactivity Disorder ("ADHD"), Oppositional Defiance Disorder ("ODD"),
headaches, a learning disorder, and a depressive disorder. The
Pennsylvania Bureau of Disability Determinations ("BDD") denied
Plaintiff's claim for SSI, and Plaintiff thereafter
requested a hearing. R. 26-30. After a hearing before Administrative Law
Judge ("ALJ") J. Joseph Herring on August 15, 2002, the ALJ denied
Plaintiff's claim on September 18, 2002. R. 12-22. The Appeals Council
denied Plaintiffs request for review on January 29, 2003. R. 3-4.
Plaintiff then appealed to this Court.
On cross-motions for summary judgment, Judge Hart filed a Report and
Recommendation ("R & R"), finding that the ALJ's decision was supported
by substantial evidence and recommending that Defendant's Motion for
Summary Judgment be granted. R & R at 20. The Court, however, is
troubled by noted inaccuracies in the record below. Nevertheless, after
careful review of the entire record, the Court adopts Judge Hart's
conclusions. Consistent with its duty as articulated in
28 U.S.C. § 636(b)(1), the Court addresses below those portions of the R
& R to which Plaintiff objects.
II. FACTUAL BACKGROUND
Tyrik Miller was born on August 16, 1990. During the time period
relevant to this matter, he was evaluated by various medical
professionals for problems he was having in school. He was also evaluated
by his elementary school principal and his fifth grade teacher. Some of
these evaluations were completed specifically to assist in determining
Tyrik's disability claim, while others were to treat Tyrik for his
problems at school or for headache pain. Because one of Plaintiff's
contentions is that the ALJ improperly relied on some of these
evaluations while discounting others, each evaluation is summarized
A. The Psycho-Educational Evaluation
In December 2000, Tyrik was failing all of his subjects at St. Rose of
Lima, the parochial school where he attended fifth grade. R. 113.
Accordingly, Tyrik's teacher, Ida Jones, and
his mother referred Tyrik to Nancy DeHaven, Ed.M. and Dale F. Cleary,
Ph.D., for a psycho-educational evaluation R. 113. Drs. DeHaven and
Cleary met with Tyrik and observed him in a classroom setting,
interviewed Ms. Jones, reviewed Tyrik's school records, and administered
a number of tests, including the Wechsler Intelligence Scale for
Children, the Developmental Test of Visual-Motor Integration, the Rey
Complex Figure Test and Recognition Trial, a test of word reading
efficiency, and a test of reading comprehension. R. 115. They also
evaluated Tyrik's social emotional functioning "through a clinical
interview, the Children's Self-Report and Projective Inventory, the
Conners' Rating Scales and the ADHD Rating Scale IV." R. 119.
In their report, Drs. DeHaven and Cleary noted the following:
(1) Tyrik has "Average cognitive abilities with no significant
difference between his Verbal and Performance IQ's." R. 116.
(2) One of Tyrik's strengths is "his ability to form abstract verbal
concepts and to focus his attention when discrete problem solving steps
are utilized." R. 117.
(3) Tyrik performed in the average or below average range on tests of
his visual-motor integration, memory and ability to organize complex
visual information. R. 117-18. Drs. DeHaven and Cleary concluded:
"Results of the perceptual testing indicate that Tyrik performs below
average when asked to remember and organize complex visual information.
He has difficulty discriminating between important and unimportant
information." R. 118.
(4) Tyrik performed poorly on the reading comprehension tests. R. 119.
(5) Tyrik's mother reported that Tyrik "is restless and impulsive and
that he has difficulty sitting." Id. Tyrik's teacher, Ms. Jones, reported
that Tyrik "makes careless mistakes in his schoolwork, fidgets and is
easily distracted." Id. Drs. DeHaven and Cleary concluded, however,
that "Ms. Jones' rating of [Tyrik' s] classroom behavior, while
indicating some attentional problems, was significantly below the
threshold for a prediction of [ADHD]." R. 119-20.
(6) "Tyrik readily engaged in the evaluation process and demonstrated a
clear commitment to performing well. Tyrik's motivation, perseverance and
good behavior despite his educational difficulties, reflects positively
on St. Rose of Lima's educational staff, his parents and on Tyrik
himself. It was a pleasure to work with such a delightful and charming
child." R. 120.
(7) Tyrik is "a learning disabled child with a specific reading
disability." R. 121. After making a number of recommendations of ways to
help Tyrik learn more effectively, the doctors recommended that Tyrik be
evaluated by a developmental physician specializing in ADHD if his
"distractibility, restlessness and disorganization" did not improve. R.
B. Treatment Related to ADHD
Tyrik received treatment for ADHD at the Haddington Health Clinic
("Haddington") on several occasions between April and October 2001.
Pursuant to his examination of Tyrik and review of Tyrik's psychological
evaluation, Dr. Louis J. Casale diagnosed Tyrik with ADHD and prescribed
Ritalin. R. 141. The record contains, however, only a short handwritten
note in which Dr. Casale wrote that "[t]he diagnosis of [ADHD] seems
quite appropriate," as well as a patient evaluation form bearing an
illegible signature dated April 5, 2001 that is essentially blank except
for a scribble that appears to say "diagnosis of ADHD." R. 141, 149.*fn1
On June 12, 2001, Tyrik's
treating physician noted that Tyrik was "doing well on Ritalin." R.
148. On October 4, 2001, Tyrik's treating physician noted that Tyrik's
ADHD was "controlled." R. 147.
C. The Teacher/Counselor Questionnaire Completed by Ms. Jones
On April 5, 2001, the same day Dr. Casale diagnosed Tyrik with ADHD,
Tyrik's teacher, Ms. Jones, completed a teacher/counselor questionnaire.
R. 86-89. She commented that Tyrik is cooperative but struggles with
written directions, that he tries hard to pay attention but is "sometimes
easily distracted," that he tries hard to do work but is hindered by a
reading problem, and that he always tries to complete his assignments but
often needs help. R. 87.
D. The Report of the Medical Advisor for the BDD
On May 16, 2001, a medical advisor for the BDD performed a disability
evaluation of Tyrik. R. 134-39. On his evaluation form, he listed three
impairments for Tyrik: (1) ADHD; (2) ODD; and (3) Depressive Disorder.
The advisor found that all three diagnoses were appropriate and that the
combination of these three impairments was severe, but did not meet,
medically equal, or functionally equal listing level severity. R. 134. In
his report, he noted that Ms. Jones had indicated that since Tyrik had
begun taking Ritalin, he was quieter, not as hyperactive, took things
more seriously, settled down to work, and had better concentration. R.
E. The Child Functioning Questionnaire Completed by Sister Eileen
On June 17, 2002, Sister Eileen Gillespie, the principal of Tyrik's
school, completed a child functioning questionnaire*fn2 that instructed
her to rate Tyrik's functioning by comparing him
to an unimpaired child of the same age. R. 102. In the domain of
acquiring and using information, Sister Eileen rated Tyrik at the
"marked" difficulty level in eleven of the fifteen categories and the
"moderate" difficulty level in the remaining four categories. R. 103. In
the domain of attending and completing tasks, she reported that Tyrik has
"extreme" difficulty maintaining focus, following through on
instructions, concentrating without adult supervision, and keeping pace
with other children, and that he has "marked" difficulty in eleven of the
remaining thirteen categories. R. 105. In the domains of interacting and
relating, caring for oneself, moving about and manipulating objects, and
caring for health and well-being, she reported that Tyrik rarely has
difficulty. R. 104, 106-08.
F. Treatment for Migraine Headaches
Tyrik also received treatment for migraine headaches. R. 175-79. His
mother testified that these headaches occurred as frequently as twice a
week, and that they occasionally caused Tyrik to vomit. R. 114, 178. Dr.
Anna Poduri of Children's Hospital of Philadelphia treated Tyrik for
these migraines, which she described as classic ocular migraines with a
preheadache aura. R. 177. She did not prescribe any medication, however,
because Excedrin Migraine usually worked to relieve Tyrik's pain. R. 175.
G. Dr. Rogers-Lomax's Expert Testimony
Dr. A. Faye Rogers-Lomax, D.O., testified as a medical expert at the
hearing before the ALJ. R. 208-19. Dr. Rogers-Lomax reviewed Tyrik's file
but did not personally evaluate or treat Tyrik. R. 209. Based on her
review of the file, she testified that Tyrik had been appropriately
diagnosed with a reading disability, migraine headaches and ADHD. R.
210-11. She also testified that "there is some severe limitation
specifically related to the child's learning disability." R. 211. She
found, however, that the learning disability does not meet or equal the
severity of an impairment in the Listing of Impairments found in 20
C.F.R. Part 404, Subpart P, Appendix 1, because the only evidence
supporting such a determination is Sister Eileen's assessment, which is
inconsistent with other evidence in the record. R. 211-12. As evidence of
this inconsistency, she pointed to a reading report for Tyrik's sixth
grade year that showed improvement in all of the areas marked. R. 185,
211-12. The bottom of this report contains a note stating, "Tyrik is
always a pleasure to work with. He excells [sic] in comprehension but
needs help in word recognition. . . ." R. 185. According to Dr.
Rogers-Lomax, this notation contradicts evidence that Tyrik reads but
does not comprehend. R. 212.
Dr. Rogers-Lomax also testified regarding Tyrik's functioning as it
relates to the domains of functioning listed in the Social Security
regulations, 20 C.F.R. § 416.926a. R. 213. She stated that if she
were to credit Sister Eileen's assessment, her opinion would be that
Tyrik has a marked limitation in the domain of acquiring and using
information, but that without Sister Eileen's assessment, Tyrik's
limitation is less than marked. R. 213-14. In the domain of attending to
and completing tasks, she testified that Tyrik's limitation is less than
marked, in part because Tyrik has remained on the same low dosage of
Ritalin for his ADHD. R. 214-16. Dr. Rogers-Lomax also testified that
Tyrik has less than marked limitations in the domains of health and
and caring for himself, and no limitation in the domains of interacting
and relating to others and moving about and manipulating objects. R.
III. THE ALJ'S DECISION
The ALJ utilized the three-step test set out in the Social Security
Regulations for determining disability in children. 20 C.F.R. § 416.924.
First, he found that Tyrik has not engaged in substantial gainful
activity. R. 22; 20 C.F.R. § 416.924(b). Second, he found that Tyrik's
headaches and learning disorder in reading are severe impairments, but
that his ADHD is not severe. R. 22; 20 C.F.R. § 416.924(c). The ALJ then
found that Tyrik's impairments neither meet nor equal the severity of an
impairment in the Listing of Impairments found in 20 C.F.R. Part 404,
Subpart P, Appendix 1. R. 22; 20 C.F.R. § 416.924.
The ALJ also found that Tyrik's impairments are not functionally
equivalent to a listed impairment. R. 21-22. To determine functional
equivalence, the following standards apply:
Where a child does not meet the listing criteria, his
impairment can be found to be functionally equivalent
to a listed impairment where it causes "marked
limitations in two broad areas of functioning or
extreme limitations in one such area."
20 C.F.R. § 416.925(b)(2) and .926a(b)(2). A
limitation is "marked" when it "seriously interferes
with the child's ability to function independently,
appropriately and effectively." 20 C.F.R. § 416.925(b)(2).
An extreme limitation means one where a child's test
scores are three standard deviations or more below the
norm, or where the child has no "meaningful
functioning in a given area."
20 C.F.R. § 416.926a(c)(3)(ii). The areas of
function, referred to as the "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)-(vi).
R & R at 3. Upon reviewing Tyrik's limitations in light of these
domains, the ALJ found that Tyrik has: 1) no extreme limitations; 2) a
marked limitation in the domain of acquiring and using
information; 3) less than marked limitations in the domains of attending
and completing tasks, caring for yourself, and health and physical
well-being; and 4) no limitations in the domains of interacting and
relating to others and moving about and manipulating objects.
Accordingly, the ALJ found that Tyrik's impairments are not functionally
equivalent to a listed impairment and that therefore, Tyrik is not
IV. STANDARD OF REVIEW
The Social Security Act provides for judicial review of any "final
decision of the Commissioner of Social Security" in a disability
proceeding. 42 U.S.C. § 405(g). The district court may enter a judgment
"affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing."
Id. However, the Commissioner's findings "as to any fact, if supported by
substantial evidence, shall be conclusive." Id. Accordingly, the Court's
scope of review is "limited to determining whether the Commissioner
applied the correct legal standards and whether the record, as a whole,
contains substantial evidence to support the Commissioner's findings of
fact." Schwartz v. Halter, 134 F. Supp.2d 640, 647 (E.D. Pa. 2001).
Substantial evidence has been defined as "more than a mere scintilla"
but somewhat less than a preponderance of the evidence, or "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Jesurum v.
Sec'y of the United States Dep't of Health & Human Servs., 48 F.3d 114,
117 (3d Cir. 1995). The standard is "deferential and includes deference
to inferences drawn from the facts if they, in turn, are supported by
substantial evidence." Schaudeck v. Comm'r of S.S.A., 181 F.3d 429, 431
(3d Cir. 1999).
In reviewing Magistrate Judge Hart's R & R, this Court must review
de novo only
"those portions" of the R & R "to which objection is made."
28 U.S.C. § 636(b)(1).
V. OBJECTIONS TO THE R & R
Plaintiff objects to Magistrate Judge Hart's R & R on the general
ground that "the ALJ failed to apply the regulations regarding assessment
of the interactive and cumulative effect of impairments and improperly
discounted the current assessments of Tyrik's functioning." To this end,
Plaintiff raises two specific objections. First, Plaintiff argues that
the ALJ improperly based his findings on evidence that antedated Tyrik's
application for SSL Second, Plaintiff argues that the ALJ's decision was
not supported by substantial evidence because "the ALJ failed to explain
how he had weighed the evidence confirming that despite medication and
extra support from adults Tyrik's impairments seriously interfere with
his functioning in the domain of attending and completing tasks."
Objections at 2. The Court addresses these objections below.
A. Whether the ALJ improperly based his findings on evidence that
antedated Tyrik's application for SSI
Plaintiff argues that the ALJ and Judge Hart improperly relied on
Tyrik's psycho-educational evaluation from December 2000 and Ms. Jones's
report from April 2001 instead of the more contemporaneous assessment
from Sister Eileen in June 2002. IcL To support this objection, Plaintiff
argues that because Tyrik's application for SSI was submitted in March
2001, he cannot be found disabled prior to that date. This statement is
simply incorrect. Although Tyrik's application was not filed until March
2001, on that application Tyrik's mother indicated that the onset of
Tyrik's disability was December 2, 2000, within four months of the filing
date. R. 45. The Court knows of no rule that restricts evidence of an
alleged disability prior to the date the application was filed. Further,
Plaintiff herself cites to the psycho-educational evaluation in her
Motion for Summary
Judgment. Plaintiff's Brief at 6-7. Therefore, the ALJ was justified in
considering the psycho-educational evaluation and Ms. Jones' assessment
(which was completed after the application was filed) when making his
B. Whether the ALJ properly weighed the evidence in finding that Tyrik
has a less than marked limitation in the domain of attending to and
Plaintiff contends that Tyrik has a marked limitation in the domain of
attending to and completing tasks and argues that "[n]either the ALJ nor
the Magistrate Judge appears to have considered that the combined effect
of Tyrik's other impairments, or their cumulative and interactive effect,
imposes marked limitations" in this domain. Objections at 3. The opinion
of the ALJ and the R & R do not support this conclusion.
In advancing this argument, Plaintiff relies on Dr. Casale's diagnosis
of ADHD, the BDD examiner's report, and Sister Eileen's assessment. None
of these pieces of evidence, however, are entitled to great weight. The
only evidence of Dr. Casale's diagnosis is a handwritten note that says,
in its entirety: "I examined Tyrik Miller today and reviewed his recent
psychological evaluation. The diagnosis of Attention Deficit Hyperactivity
Disorder (ADHD) seems quite appropriate. I started him on a Ritalin 10 mg
bid today and will follow up." R. 141. As Judge Hart stated: "An ALJ may
choose to reject evidence as `not probative [when] the doctor's opinion
[is] not supported by relevant clinical or laboratory diagnostic
findings.'" R & R at 5, quoting Serody v. Chater, 901 F. Supp. 925, 929
(E.D. Pa. 1995). Although Dr. Casale asserts in his note that he reviewed
Tyrik's recent psychological evaluation, it is unclear what evaluation he
is referring to, and the evaluation does not appear to be included in the
record. Moreover, there is no evidence that Dr. Casale made any clinical
or laboratory findings of his own before concluding that Tyrik has ADHD.
Accordingly, the ALJ was not required to give Dr. Casale's diagnosis much
Nevertheless, the ALJ accepted Dr. Casale's diagnosis; he merely found
that Tyrik's ADHD was not severe. This finding is consistent with all of
the evidence. The psycho-educational evaluation from December 2000 stated
that Tyrik's behavior was far below what is necessary for a diagnosis of
ADHD. The BDD examiner's report is consistent with the ALJ's finding as
well. The BDD examiner merely checked a box in a form indicating that the
combination of Tyrik's impairments, including ADHD, ODD and depressive
disorder, are severe, but do not meet or functionally equal the listings.
R. 134. The reports of Tyrik's treating physicians also concur with the
ALJ's finding. On June 12, 2001, Tyrik's treating physician noted that
Tyrik was "doing well on Ritalin," and on October 4, 2001, his treating
physician noted, "ADHD controlled." R. 147-48. Accordingly, as Judge Hart
stated, "the ALJ properly considered the diagnosis of ADHD and found that
it was not a severe impairment, one which imposes more than minimal
functional limitations, 20 C.F.R. § 416.924(c). Here, there is conflicting
evidence whether Tyrik even suffers from ADHD, and even if he does, his
treating physicians conclude that it is well controlled by Ritalin."
R & R at 7.
Sister Eileen's assessment is entitled to even less weight. Although
Dr. Rogers-Lomax admitted that if she were to credit Sister Eileen's
assessment, her opinion would be that Tyrik is disabled, she questioned
Sister Eileen's report because it conflicts with most of the other
evidence. In his R & R, Judge Hart points out numerous examples of
how Sister Eileen's assessment conflicts with Ms. Jones' report and with
other evidence in the record. R & R at 7-9. Further, Sister Eileen
is the principal of Tyrik's school, and as such, it is not clear on this
record what amount of classroom contact Sister Eileen had with Tyrik. On
the other hand, it is logical and certainly reasonable for the
ALJ to credit Ms. Jones' report because she taught Tyrik for seven
months, five days a week, 6 1/2 hours a day. R. 88. Accordingly, the ALJ
properly considered Sister Eileen's assessment.
Based on the foregoing discussion, the Court finds that the ALJ's
decision is supported by substantial evidence.*fn3
An appropriate Order follows.
AND NOW, this 4th day of February, 2004, upon careful consideration of
Plaintiff's Motion for Summary Judgment [Doc. #10], Defendant's Motion
for Summary Judgment [Doc. #12], the Report and Recommendation of United
States Magistrate Judge Jacob P. Hart [Doc. #14], and Plaintiff's
Objections thereto [Doc. #15], and for the reasons set forth in the
attached Memorandum Opinion, it is hereby ORDERED:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. Plaintiff's Objections are OVERRULED;
3. Plaintiff's Motion for Summary Judgment is DENIED;
4. Defendant's Motion for Summary Judgment is GRANTED; and
5. The Clerk of Court shall mark this case CLOSED for administrative
It is so ORDERED.