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Sath v. Colvin

United States District Court, M.D. Pennsylvania

August 19, 2014

KAREN SATH O/B/O M.S, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM Docs. 1, 8, 9, 15, 16

GERALD B. COHN, Magistrate Judge.

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the application of Plaintiff M.S., a child under the age of eighteen, for supplemental security income ("SSI"). Plaintiff was five years old on the date of the application and six years old on the date of the decision. Plaintiff's mother, Karen Sath, filed for benefits on his behalf, and initially claimed that he was disabled as a result of seizures, asthma, and a heart condition. However, Ms. Sath reported on multiple occasions that Plaintiff's seizures had stopped entirely once he was prescribed the proper dose of his seizure medication. The medical evidence shows that, throughout the relevant period, Plaintiff's asthma and heart condition were stable and well-controlled and he was released to full aerobic activity without restriction. After Plaintiff's claim was initially denied, Plaintiff obtained counsel, sought review of the decision, and for the first time, asserted that Plaintiff's mental impairments caused limitations that functionally equaled the listings.

In this appeal, Plaintiff asserts only that he has a marked or extreme limitation in acquiring and using information, moving about and manipulating objects, and caring for himself. However, prior to obtaining counsel, Ms. Sath repeatedly represented that he had no problem acquiring and using information and that he had no mental limitations. Plaintiff is in grade-level, regular classes, does not need a special education curriculum, and tested in the "average" range in academic achievement and functioning. Although Ms. Sath now claims that Plaintiff cannot dress himself, tie his shoes, or use scissors, she previously reported that he uses scissors well and that he had "no" problem caring for himself. She reported to Plaintiff's primary care physician during his well-child visits that he could dress himself and tie his shoes. She testified that he could play Wii, climb ladders at the playground, and fully participate in T-ball, sometimes even hitting the ball without needing the tee. Although she claimed that Plaintiff engages in self-injurious behaviors, she reported to counselors in 2009 that such behaviors had entirely stopped, and her claims in this regard were contradicted by Plaintiff's teachers' reports.

Plaintiff claims that the ALJ's decision lacked substantial evidence in the three disputed domains because the ALJ allegedly did not explain the weight he gave to the assessment by Plaintiff's first grade teacher, Mrs. Guiser, or explain whether he found Ms. Sath's claims to be credible. However, the ALJ discussed Mrs. Guiser's opinion and Ms. Sath's testimony in the context of his functional equivalence analysis, identifying aspects of each that was internally inconsistent and inconsistent with other evidence. Plaintiff also claims that the ALJ's decision lacks substantial evidence in the three disputed domains because he improperly assigned great weight to the state agency psychologist and did not obtain an updated opinion after additional evidence was submitted. However, an ALJ only needs to obtain an updated medical opinion when the opinion addresses medical equivalence and new medical evidence would change the doctor's opinion. Here, functional equivalence, not medical equivalence, is the issue. Moreover, the only additional medical evidence suggested that Plaintiff's limitations were less than marked. Other evidence was also submitted after the state agency psychologist report, including an IEP and Mrs. Guiser's assessment. However, this is not additional medical evidence. Additionally, as discussed below, these records support the state agency psychologist's conclusion. The Court finds no updated medical opinion was needed. Moreover, the ALJ had substantial evidence to support his determination in each domain, even without the medical opinion, so any error was harmless. For all of the forgoing reasons, the Court denies Plaintiff's appeal.

II. Procedural Background

Plaintiff previously applied for benefits and was denied on June 25, 2010. (Tr. 81)[1]. On December 27, 2010, Plaintiff filed an application for SSI under Title XVI of the Social Security Act. (Tr.12). On April 4, 2011, the Bureau of Disability Determination[2] denied this application (Tr. 80-92), and Plaintiff filed a request for a hearing. (Tr. 98-100). On February 1, 2012, an ALJ held a hearing at which Plaintiff, who was represented by an attorney, and Ms. Sath, appeared and testified (Tr. 30-79). On March 23, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 12-29). On May 5, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 7-8) which the Appeals Council denied on August 1, 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 November 26, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 8, 9). On February 21, 2014, Plaintiff filed a brief in support of his appeal. ("Pl. Brief") (Doc. 15). On March 27, 2014, Defendant filed a brief in response. ("Def. Brief") (Doc. 16). On April 29, 2014, the Court referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of this case for adjudication to the undersigned Magistrate Judge on June 17, 2014, and an order referring the case to the undersigned Magistrate Judge for adjudication was entered on June 18, 2014. (Doc. 18, 19).

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). Evaluating childhood disability follows a three-step sequential 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, or where the child is testing at two to three standard deviations below average. 20 C.F.R. § 416.926a(e)(2). An extreme limitation in a domain is found when an impairment interferes very seriously with the child's ability to independently initiate, sustain, or complete activities, or where the child is three standard deviations or more below average. 20 C.F.R. § 416.926a(e)(2).

V. Relevant Facts in the Record

Plaintiff was born on September 1, 2005, and the regulations classified him as a preschool child at the time of his application and a school-age child on the date of the ALJ's decision. 20 C.F.R. §§ 416.926a(g)(2)(iii)-(iv). (Tr. 36). Plaintiff alleged disability as a result of seizures, but the record indicates that seizures occurred only between March 25, 2010 and May 2, 2010, when Plaintiff was prescribed a proper dose of seizure medication.[3] Plaintiff also asserts that his heart condition and asthma limited him from running and moving about, but he was released after each visit with his cardiologist to full aerobic activity. His heart condition and asthma were well-controlled on medication throughout the relevant period. Plaintiff was seen by mental health professionals beginning in May of 2009, and was diagnosed with Disruptive Behavior Disorder, but he made progress on each of his goals, and, after a positive prognosis on entering kindergarten, did not receive any additional mental health treatment. Ms. Sath claims that he has ADHD, but the record indicates no diagnosis of ADHD, and, although Plaintiff was referred for an evaluation of his ADHD on October 13, 2011, the record does not contain evidence of an evaluation or any subsequent mental health treatment. Plaintiff was never treated with medication for his mental impairments.

On December 28, 2009, Plaintiff was evaluated by Enhanced Mental Health Services. (Tr. 442). Plaintiff was four years old. (Tr. 442). He was diagnosed with Disruptive Behavior or Disorder. (Tr. 442). Plaintiff was "generally" alert, oriented, and speaking intelligibly. (Tr. 442). Notes indicate that Plaintiff "enjoys playing blocks, playing at the park, listening to stories that are read to him and watching TV." (Tr. 442). Plaintiff "demonstrates adequate gross motor skills. His gait appears normal." (Tr. 442). Plaintiff's "needs" included his level of compliance with authority figures and established rules, development of coping and self-regulation skills to better control his anger and frustration, and development of positive social interactions when he is not the winner of a game or activities. (Tr. 443). Plaintiff had "demonstrated progress in the school/Head Start setting and at home in the areas of following established classroom rules, following verbal directions, increase in interactive play and use of social communication skills. Data reflects that he has mastered [some] Short Term Goals." (Tr. 443). Ms. Sath reported that "[t]antrum behaviors identified as hitting his head with his fists, stomping feet, throwing objects and screaming have decreased to zero in the home, school, and community setting." (Tr. 444).

On March 25, 2010, Plaintiff was seen at the Family Practice Center with his mother, who reported he had four seizures that day. (Tr. 339). Plaintiff appeared acutely ill, weak, mildly dehydrated, and flushed. (Tr. 339). On March 28, 2010, Plaintiff was admitted to the hospital with seizures. (Tr. 364-65). He had a normal MRI of the brain. (Tr. 356). Plaintiff was prescribed diazepam to treat his seizures and discharged home in stable condition the next day. (Tr. 358, 368).

Plaintiff saw Dr. William H. Trescher, M.D., for an evaluation of his seizures on April 20, 2010. (Tr. 382). He reported continued seizures since his discharge from the hospital in March. (Tr. 382). Plaintiff had "been otherwise active and without any change in his overall cognitive status." (Tr. 382). Plaintiff was alert, spoke in full sentences, and was appropriately interactive. (Tr. 382). Plaintiff's "[m]otor examination revealed normal muscle tone, bulk and full strength in the arms and legs. Finger-nose movements were intact without ataxia or tremor. Hand tapping and pronation and supination were symmetrical... His gait was steady and narrow based." (Tr. 382). Plaintiff had a normal EEG, and Dr. Trescher noted that, "[w]ith a normal EEG in the past, I am inclined to think these could be either partial or secondary generalized episodes." (Tr. 382). Dr. Trescher started Plaintiff on carbamezine (Tegretol) to treat the seizures. (Tr. 382).

On April 26, 2010, Plaintiff followed-up for his heart condition at Pediatric Cardiology Clinic. (Tr. 370). Plaintiff's physical exam, electrocardiogram, and echocardiogram were "consistent with a largely stable cardiovascular course." (Tr. 371). His cardiologist noted that Plaintiff "should continue to refrain from sustained isometric activities. He may participate in all forms of aerobic activity. (Tr. 371).

Plaintiff was seen in the emergency room on May 2, 2010, after suffering three seizures at home and one seizure in the waiting room. (Tr. 314-325, 384). Plaintiff's seizure medication was increased and, after close monitoring, was discharged the same day in stable condition. (Tr. 316, 385).

On July 12, 2010, Plaintiff saw Dr. Trescher for a follow-up of his seizures. (Tr. 313). Plaintiff had not suffered any seizures since starting on the Tegretol. (Tr. 311). Plaintiff was "alert, active and spoke in full sentences. He was able to follow simple commands." (Tr. 312). Plaintiff's motor examination was normal, with normal muscle tone, bulk, and full strength. (Tr. 312). Plaintiff "was able to reach for objects without any ataxia or tremor." (Tr. 312). Plaintiff's gait was steady, and he was "able to bounce the ball around the room without any difficulty." (Tr. 312). Ms. Sath reported that he was sleepy, but admitted that he does not go to sleep until 11 p.m. (Tr. 311). Dr. Erdman noted that "[b]efore completely attributing his sleepiness to carbamazepine, I would strongly recommend better sleep hygiene. I discussed this with the mother about getting him to sleep earlier." (Tr. 312).

On August 23, 2010, Plaintiff was evaluated at Swisher Behavioral Health Services. (Tr. 294-298). Plaintiff was entering kindergarten. (Tr. 294). Plaintiff was diagnosed with Disruptive Behavior Disorder. (Tr. 442). Ms. Sath reported that Plaintiff is has a "good memory and a big heart." (Tr. 294). She also reported that he had made "a good deal of progress." (Tr. 294). She reported that he was "improving in his ability to express himself without becoming upset and frustrated." (Tr. 294). Ms. Sath reported that Plaintiff did not have an IEP and was not expected to need one. (Tr. 295). Ms. Sath reported that Plaintiff "gets along with the family." (Tr. 295). During the interview, Plaintiff was alert and appeared to be oriented, although he refused to answer questions about orientation. (Tr. 296). Plaintiff's speech was limited but intelligible. (Tr. 296). "No gross motor deficits were noted and gait was observed to be normal." (Tr. 296). He was distractible and in a "silly" mood but was cheerful throughout and appeared to put forth good effort. (Tr. 296). The doctors opined that Plaintiff had "largely adjusted to his medical situation which is reported to be stable" but "warrants the continuation of BHRS invention" through his transition to kindergarten. (Tr. 296). The notes explained that, "[h]owever, assuming that [Plaintiff] successfully transitions to the kindergarten environment, services should be titrated and then discontinued after three months. Prognosis is positive." (Tr. 296). There is no evidence of subsequent mental health treatment.

On September 13, 2010, Plaintiff was seen at the Family Practice Center for his five year old well-child visit. (Tr. 341). Ms. Sath had "no specific concerns." (Tr. 341). Plaintiff had a benign physical exam. (Tr. 343). Plaintiff met his developmental markers, as he was able to print his name, use "I" correctly, sit and play or watch a movie for more than twenty minutes, draw a person with at least five body parts, skip, jump on one foot, make his own decisions, and dress himself without help. (Tr. 341). Plaintiff's sleep was described as average, and his behavior was described as "generally happy and content." (Tr. 341). Plaintiff was able to count to ten, say his alphabet, knew nursery rhymes, recognized five colors, recognized letters, spoke understandably and demonstrated make believe "magical thinking." (Tr. 342). His affect was normal and his speech was "clear and fluent." (Tr. 343). Plaintiff walked normally and had full range of motion in his upper and lower extremities bilaterally. (Tr. 343).

On October 25, 2010, Plaintiff was seen at the Family Practice because he had scratched his eye at school. (Tr. 347). Ms. Sath asserted that he had a seizure on the way to the appointment, but was not having any complications at the time of his exam. (Tr. 347). She reported that Plaintiff's last seizure had occurred five months earlier. (Tr. 347).

Ms. Sath applied for benefits for Plaintiff on December 27, 2010. On December 28, 2010, Ms. Sath completed a Function Report. (Tr. 155-164). She reported that Plaintiff has no problem seeing, hearing, communicating, understanding and using what he has learned, behavior, ability to care for his personal needs, ability to pay attention and stick with a task. (Tr. 158-163). ...


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