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Robinson v. Colvin

United States District Court, M.D. Pennsylvania

July 29, 2014

DOUGLAS ROBINSON, o/b/o D.R., Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL Docs. 1, 11, 14, 15, 18

GERALD B. COHN, Magistrate Judge.

REPORT AND RECOMMENDATION

I. Procedural History

On April 30, 2010, Douglas Robinson, Jr., on behalf of his minor child D.R., ("Plaintiff") filed an application for Supplemental Security Income benefits under Title XVI of the Social Security Act. (Tr. 105-11).

This application was denied, and Plaintiff filed a request for hearing on July 8, 2010. (Tr. 91-94 (initial denial notice), 96 (request for hearing)). On June 6, 2011, a hearing was held before an Administrative Law Judge ("ALJ") at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified (Tr. 33-62). On June 21, 2011, the ALJ issued a decision finding that Plaintiff was not disabled and thus was not entitled to benefits. (Tr. 12-32). On June 28, 2011, Plaintiff filed an appeal with the Appeals Council. (Tr. 10-11). On December 10, 2012, the Appeals Council denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On February 8, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1.

On April 18, 2013, Commissioner filed an answer and administrative transcript of proceedings. Docs. 10, 11. In July and August, the parties filed briefs in support. Docs. 14, 15, 18. On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. On May 13, 2014, the Court issued an order for Plaintiff to notify the Court as to whether briefing is complete and ready to submit for decision. Doc. 19. On May 14, 2014, Plaintiff notified the Court that the matter is ready for review. Doc. 20.

II. Background on Child Disability Cases

The law under which Plaintiff's case was adjudicated has undergone major changes since the United States Supreme Court's landmark decision in Sullivan v. Zebley , 493 U.S. 521 (1990). Prior to Zebley, the Social Security Administration had followed a strictly medical test for childhood disability, under which it was impossible to qualify for such benefits unless the child's condition medically met or equalled the criteria contained in the Listing of Impairments, and under which consideration of functioning was expressly forbidden. Id . at 895 n. 19. As the Supreme Court held, those Listing criteria are set at a higher level of severity than was then required by the statutory standard of disability. For adults who do not meet or equal the Listing criteria, disability can be demonstrated if an individual's residual functional capacity is limited enough to preclude substantial gainful activity. As a result of the functional assessment commanded by Zebley and the regulations subsequently promulgated by the Commissioner (58 Fed. Reg. 47532-47587, Sept. 9, 1993), children who did not meet or equal the Listings could be found disabled on the basis that their impairments are of "comparable severity" to those which disable adults.

However, on August 22, 1996, Congress amended the Social Security Act to eliminate the prior statutory standard of "comparable severity" for childhood disability. P.L. 104-193, Aug. 22, 1996. Under the new statutory provisions, which are applicable to all claims pending on the date of enactment (including the case at bar), a disabled child must have "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 has interpreted this new statutory provision in regulations promulgated on February 11, 1997; the new regulations provide a new sequential evaluation process for children. 20 C.F.R. § 416.924. The new regulations provide that a child whose condition meets, medically equals, or functionally equals the criteria of a listed impairment must be found disabled; a child whose impairment(s) do not meet or equal (medically or functionally) the listing criteria contained in 20 C.F.R. Part 404, Subpart P, Appendix 1 is not disabled. 20 C.F.R. § 416.924(a).

These regulations were again amended on September 11, 2000. 65 Fed. Reg. 54782 (Sept. 11, 2000) and Plaintiff's claim was evaluated under these criteria. Under these revised criteria, when analyzing whether or not a claimant's impairments functionally meet a Listed impairment, the Commissioner considers the child's functionality in six domains. These domains are: acquiring and using information; attending and completing tasks; interacting and relating with others; moving about and manipulating objects; caring for onself; and health and physical well-being. 20 C.F.R. § 416.926a(b)(1).

In order to functionally equal one of the Commissioner's childhood Listing of Impairments, a child must exhibit either a "marked" limitation in two of the six domains, or an "extreme" limitation in any single domain. 20 C.F.R. § 416.926a(d). The Commissioner defines a "marked" limitation as one which interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. "Marked" limitation also means a limitation that is "more than moderate" but "less than extreme." It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean. 20 C.F.R. § 416.926a(e)(2).

The Commissioner defines an "extreme" limitation as one which interferes very seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be very seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. "Extreme" limitation also means a limitation that is "more than marked." "Extreme" limitation is the rating we mean a total lack or loss of ability to function. It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean. 20 C.F.R. § 416.926a(e)(3).

Recently, the Commissioner issued several Social Security Rulings ("SSR") regarding childhood disability determinations. See generally SSR 09-1p, 2009 SSR LEXIS 1, at *30, 2009 WL 396031, at *13 (explaining how the agency determines childhood disability under the functional equivalence rule and cross-referencing SSRs 09-2p, 09-3p, 09-4p, 09-5p, 09-6p, 09-7p and 09-8p). Following the issuance of SSR 09-1p, the Commissioner issued separate rulings regarding each functional equivalence domain. Each of these rulings consolidates information from the Commissioner's regulations and sub-regulatory materials. See e.g., SSR 09-1p, 2009 LEXIS 1, at *30, 2009 WL 396031 (explaining purpose of the ruling is to "provide [] policy interpretations and consolidate [] information from [the Commissioner's] regulations, training materials, and question-and-answer documents about [it's] whole child' approach for determining whether a child's impairment(s) functionally equals the listings"). For example, SSR 09-1p discusses the regulations governing childhood disability, including 20 C.F.R. §§ 416.924, 416.624a, 416.926a.

III. Standard of Review

When reviewing the denial of disability benefits, we must determine whether the denial is supported by substantial evidence. Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec. , 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood , 487 U.S. 552, 564 (1988); Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999); Johnson , 529 F.3d at 200.

This is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only "more than a mere scintilla" of evidence. Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). It may be less than a preponderance. Jones , 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner's determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986).

IV. Relevant Facts in the Record

Plaintiff was born in February 2002 and was 11 years old on the date of the ALJ decision (Tr. 105, 12, 18). Because of Plaintiff's age, he is considered a "school age child" by the Commissioner's regulations (Tr. 18, ...


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