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Miller v. Colvin

United States District Court, Middle District of Pennsylvania

July 29, 2014

ANGELIQUE MILLER O/B/O J. MILLER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

KANE JUDGE

REPORT AND RECOMMENDATION Docs. 1, 6, 7, 12, 14

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Angelique Miller o/b/o J. Miller’s (“Plaintiff”) application supplemental security income benefits (“SSI”). Plaintiff alleged that she was entitled to child benefits as a result of precocious (early) puberty, attention deficit hyperactivity disorder (“ADHD”), and oppositional defiant disorder (“ODD”) with an alleged onset date of January 29, 2007 (her seventh birthday). The administrative law judge (“ALJ”) found that Plaintiff’s impairments did not meet, medically equal, or functionally equal a listed impairment in 20 C.F.R. pt. 404, subpart P, app. 1. (“Listing”), and denied Plaintiff’s claim. Plaintiff challenges only the ALJ’s determinations that she had less than marked impairments in interacting and relating with others and attending and completing tasks, asserting that if the ALJ did not err in these determinations, she would have functionally equaled a Listing and entitled to benefits.

With regard to interacting and relating with others, the Court finds that Plaintiff struggled to make friends her age, occasionally yelled at her peers, and was verbally aggressive with her mother. However, she got along with all other adults, including teachers, her grandparents, and her friends’ parents, she had friends, albeit younger ones, she was able to play team sports and participate in band, her fourth grade teacher reported that she had no serious or very serious problems in the domain of interacting and relating with others (and obvious problems with only two of the thirteen activities in the domain of interacting and relating with others), her fifth grade teacher noted obvious or serious problems with only three of thirteen activities in the domain of interacting and relating with others, Plaintiff’s medical records and mother’s testimony show that her anger problems and arguments had improved, and Plaintiff’s medical records show repeated assessments by treating physicians that she had only moderate difficulties in functioning. Plaintiff produced no medical opinion evidence, and medical opinions from a consultative examiner and state agency physician concluded that Plaintiff had less than marked limitations in interacting and relating with others. Substantial evidence supports the ALJ’s finding that Plaintiff did not suffer a marked limitation in interacting and relating with others.

With regard to attending and completing tasks, the Court finds that the ALJ may have erred in finding that Plaintiff did not suffer a marked limitation. However, Plaintiff would need to have demonstrated an extreme limitation in attending and completing tasks to qualify for benefits because the ALJ properly determined that she did not suffer a marked or extreme limitation in any other domain. The Court finds that substantial evidence supports the ALJ’s determination that Plaintiff did not suffer an extreme limitation because Plaintiff performed at or near grade-level in regular, mainstream classes without an individualized education plan (“IEP”), scored in the “proficient” range in state testing, was able to play in the band and softball, report cards from second, fourth, and fifth grades showed that Plaintiff was meeting or progressing toward expectations in completing homework assignments on time, following directions, following school rules, practicing self-control, and respecting herself, others and things. Again, Plaintiff’s medical records show repeated assessments by treating physicians that she had only moderate difficulties in functioning. Plaintiff produced no medical opinion evidence, and medical opinions from a consultative examiner and state agency physician supported the ALJ’s determination. Substantial evidence supports the ALJ’s determination that Plaintiff did not suffer an extreme limitation in attending and completing tasks. Consequently, the Court need not determine whether substantial evidence supports the ALJ’s determination that Plaintiff did not suffer a marked limitation in attending and completing tasks. Based on the forgoing, the Court recommends that Plaintiff’s appeal be denied and this case closed.

II. Procedural Background

On February 17, 2010, Plaintiff, Angelique Miller, on behalf of J. Miller, a minor child (“Plaintiff”) filed an application for SSI under Title XVI of the Social Security Act. (Tr. 116-119). On August 19, 2010, the Bureau of Disability Determination[1] denied this application (Tr. 43), and Plaintiff filed a request for a hearing on October 4, 2010. (Tr. 75-77). On December 1, 2011 an ALJ held a hearing at which Plaintiff, who was represented by an attorney, and her mother appeared and testified. (Tr. 16-42). On January 25, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 44-62). On March 9, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 14-15), which the Appeals Council denied on August 5, 2013, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner. (Tr.1-6).

On September 25, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On December 2, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 6, 7). On February 13, 2014, Plaintiff filed a brief in support of her appeal (“Pl. Brief”) (Doc. 12). On March 19, 2014, Defendant filed a brief in response (“Def. Brief”) (Doc. 14). On May 5, 2014, the Court referred this case to the undersigned Magistrate Judge.

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. 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 is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence “does not mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 564 (1988). Substantial evidence requires only “more than a mere scintilla” of evidence, Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999), and may be less than a preponderance. Jones, 364 F.3d at 503. If a “reasonable mind might accept the relevant evidence as adequate” to support a conclusion reached by the Commissioner, then the Commissioner’s determination is supported by substantial evidence. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999); Johnson, 529 F.3d at 200.

IV. Sequential Evaluation Process

For a child under age 18 to be entitled to SSI benefits, he 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 Acting Commissioner’s rules for evaluating childhood disability follow a three-step sequential evaluation process, under which the Acting Commissioner will consider: (1) whether the child is working; (2) whether the child has a medically determinable “severe” impairment or combination of impairments; and (3) whether the child’s impairment or combination of impairments meets, medically equals, or functionally equals the severity of an impairment in the listings. 20 C.F.R. § 416.924.

A child functionally equals a listing when his impairment is of listing level severity, i.e., it must result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a). The six domains of functioning used in determining functional equivalence are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A marked limitation in a domain is found when an impairment interferes seriously with the child’s ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2).

V. Relevant Facts in the Record

A. Medical and School Records

Plaintiff was born on January 29, 2000. (Tr. 116). Her alleged onset date is January 29, 2007, which was her seventh birthday in the middle of her first grade year. (Tr. 116). Plaintiff has never engaged in substantial gainful activity. (Tr. 154).

Plaintiff’s school records show that she mastered all of the subjects taught in kindergarten. (Tr. 198-200). In first grade, Plaintiff’s report card shows that she was “consistently meeting grade level expectations” in completing class work and homework on time, demonstrating a positive attitude, organizational skills, following directions and school rules, listening attentively, and working independently. (Tr. 197).

Comments from Plaintiff’s 2nd grade report card from 2007-2008 indicate that she needs to “work on her full potential” and continues to “not get work completed in class.” (Tr. 194). Her ability to complete school work on time was an “area of weakness, ” but she was “consistently meeting grade level expectations” in completing homework on time, following school rules, interacting appropriately with peers, practicing self-control, and respecting herself, others and things. (Tr. 195).

At a check-up for her precocious puberty on March 23, 2009, Plaintiff reported that her grades were good but that she did not “get the work done. She doesn’t want to do it but knows it.” (Tr. 228).

At the end of third grade, 2008-2009, Plaintiff received a score of “proficient” in all skills assessed by state testing. (Tr. 169). Plaintiff’s third-grade report card showed that she was performing at grade level, but had “areas of weakness” in completing school work on time, having a positive attitude, listening attentively, practicing self-control, putting forth effort, and working independently. (Tr. 193).

At a physical for summer camp on June 3, 2009, Plaintiff denied problems. (Tr. 222). At a follow-up for precocious puberty on September 1, 2009, Plaintiff was reported to have good grades, but her behavior in school was “less wonderful.” (Tr. 243). On November 11, 2009, Plaintiff followed-up again, and had no acute complaints. (Tr. 252).

In an assessment from the second quarter of fourth grade, Plaintiff’s teacher, Tricia Hughes, noted that Plaintiff only “sometimes” struggled to stay focused in order to complete her assignments, “is a very bright young lady, ” and when focused “gives [Ms. Hughes] very good work.” (Tr. 210).

On March 8, 2010, Plaintiff reported to Northern Tier Counseling (“NTC”) for an intake evaluation for Family Based Mental Health services. (Tr. 395). Her presenting problems were anger and trouble focusing at school. (Tr. 395). She was not aggressive at school, but fought with her mother daily. (Tr. 395). She was snappy, mouthy, and defiant about everyday things. (Tr. 395). Her attention was fair but her motor activity was hyperactive. (Tr. 395). She cried when her mother became upset. (Tr. 395). Notes indicate that she “seem[ed] slightly immature for her age” and that she had poor impulse control, but that she was intelligent. (Tr. 396). She reported no head injuries, black outs, or headaches. (Tr. 400). She presented as “very demanding of her mother, ” who tries overly hard to please Plaintiff, and Plaintiff stated that she does not know why she becomes angry. (Tr. 400). She was diagnosed with ODD and assessed a global assessment of functioning (“GAF”) score of 55. (Tr. 401). Her impression on Axis IV[2] was ...


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