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Tusing v. Colvin

United States District Court, M.D. Pennsylvania

October 30, 2014

CANDICE M. TUSING, on behalf of J.K. Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

MARTIN C. CARLSON, Magistrate Judge.

I. INTRODUCTION

Plaintiff, Candice M. Tusing, appeals from an adverse decision of the Commissioner of Social Security denying her minor child, J.K.'s, application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. §1383(c)(3) (incorporating 42 U.S.C. §405(g) by reference). This matter has been referred to the undersigned United States Magistrate Judge on consent of the parties for resolution pursuant to the provisions of 28 U.S.C. §636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Docs. 24, 25). For the reasons expressed herein, we will AFFIRM the decision of the Commissioner.

II. BACKGROUND AND PROCEDURAL HISTORY

J.K. lives with her mother (the Plaintiff) and two siblings. he also has six half siblings who do not live with her. Plaintiff's application for benefits reflects that her eight-year-old brother is disabled, (Tr. 111), and that he has been diagnosed with ADHD, Expressive Language Disorder and a Phonological Disorder. Several of her half-siblings also suffer from Bipolar Disorder and ADHD. (Tr. 453).

A routine checkup in June 2010 revealed that two-year-old J.K. was slightly anemic, her primary care provider ordered additional tests to evaluate possible lead toxicity. (Tr. 285, 314-22, 382). Three lead levels drawn between June 23, 2010, and July 3, 2010, confirmed that J.K. had moderately elevated lead levels, a condition that was reported to the Pennsylvania Department of Health. Prior to being diagnosed, J.K. did not act ill, irritable or unconsolable, and did not appear to be in any pain. (Tr. 284). Sometime thereafter, J.K. began to exhibit disruptive behavior, which some medical professionals attributed to lead poisoning. (Tr. 411)(reporting the diagnostic impression of Mental Disorder NOS due to lead poisoning).

Plaintiff, a single parent who works full-time while attending nursing school, testified that J.K.'s aggressive and violent behavior makes it challenging for her to find child care for her daughter. Plaintiff stated that she feels that she is trapped at home because she cannot take J.K. anywhere. (Tr. 33). Plaintiff recalled one occasion where J.K. unbuckled her own car seat and hit her brother with a tire iron that was left on the floor of the car while Plaintiff was driving. (Tr. 33). Plaintiff also reported that J.K. runs away from her while in public, and breaks doors, puts holes in the walls, and disables child locks when she is at home. (Tr. 34, 38). Plaintiff's testimony is corroborated, in large part, by the testimony of her mother (J.K.'s grandmother), who refuses to watch J.K. because of her violent behavior.

On March 21, 2011, Plaintiff protectively filed an application for SSI on behalf of her minor child J.K., alleging that J.K. became disabled on June 15, 2010, due to severe lead poisoning, severe behavioral issues, and ADHD. (Tr. 164). This was the second application Plaintiff filed on her daughter's behalf, the first was filed when J.K. was only eight months old due to asthma. (Tr. 45).

At the time the instant application for benefits was initiated J.K. was approaching her third birthday; J.K. was four on the date the ALJ issued his decision. The ALJ aptly noted that J.K. was an "older infant" (ages 1 though 3) on the application date, but was a preschooler (ages 3 though 6) on the date of his decision. See 20 C.F.R. §416.926a; (Tr. 15).

J.K.'s application for benefits was denied initially on August 29, 2011. Thereafter, Plaintiff requested, and was granted an opportunity to appeal the Social Security Administration's initial denial during an administrative hearing. On November 1, 2012, Plaintiff, and J.K.'s grandmother, Holly Smith, appeared and testified on J.K.'s behalf during an administrative hearing before Administrative Law Judge (ALJ) Randy Riley in Harrisburg, Pennsylvania. Plaintiff was assisted by counsel throughout the proceeding. On November 29, 2012, the ALJ issued a written decision denying J.K.'s application for benefits. Plaintiff sought review of the ALJ's denial by the Appeals Council. On January 15, 2014, however, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner.

On March 10, 2014, Plaintiff initiated this action by filing a Complaint in which she requests that we reverse the ALJ's denial of J.K.'s application for benefits and enter an order awarding benefits, or in the alternative, remand this case for a new administrative hearing. (Doc. 1). On May 14, 2014, the Commissioner filed an Answer in which she asserts that the ALJ's decision is supported by substantial evidence and should not be disturbed. (Doc. 8). Together with her Answer, the ALJ filed a copy of the administrative record. (Doc. 9). This matter has been fully briefed by the parties and is now ripe for decision. (Docs. 10, 11).

III. DISCUSSION

Plaintiff contends that the ALJ's decision denying J.K.'s application for childhood disability benefits is not supported by substantial evidence for three reasons. First, Plaintiff alleges that the ALJ failed to properly weigh the Global Assessment of Functioning (GAF) scores of record. Second, Plaintiff alleges that J.K.'s limitations are functionally equivalent to a listing under the Social Security Act. Third, Plaintiff alleges that the ALJ erred when he found that Plaintiff did not meet listing 112.08. In response, the Commissioner asserts that the ALJ properly considered the GAF scores of record, and that ALJ's finding that J.K. did not meet or functionally equal a listing is supported by substantial evidence.

A. Standards of Review-The Roles of the Administrative Law Judge and This Court in Reviewing Applications for Childhood Disability Benefits

Resolution of the instant social security appeal involves an informed consideration of the respective roles of two adjudicators-the ALJ and this Court. At the outset, it is the responsibility of the ALJ in the first instance to determine whether a claimant has met the statutory prerequisites for entitlement to benefits. A claimant under the age of 18 ("child") shall be considered disabled for under Title XVI of the Social Security Act if he or she "has 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 for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(I); 20 C.F.R. §416.906. Notwithstanding the above, no child who engages in substantial gainful activity, as defined by the Social Security regulations, may be found disabled. 42 U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. §416.906.

1. The Sequential Evaluation Process in Childhood Disability Cases

The ALJ employs a three-step evaluation process to determine whether a child is eligible for SSI payments by reason of disability. As part of this analysis the ALJ must sequentially determine: (1) whether the child is engaged in substantial gainful activity; (2) whether the child has a medically determinable, severe impairment; (3) whether the child's impairment or combination of impairments meets, medically equals, or functionally equals an impairment listed in part B of 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.924. If the ALJ finds that the child is not disabled at any point in the sequence, review does not proceed any further. See 20 C.F.R. § 416.924.

2. Legal Benchmarks for an ALJ's Assessment of Whether a Child's Impairment Medically Meets or Functionally Equals a Listed Impairment

At step three of the sequential evaluation process, the ALJ must determine whether a child's impairment or combination of impairments meets, is medically equivalent, or is functionally equivalent to an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. An impairment meets a listing where when it satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and meets the duration requirement. 20 C.F.R. §416.925; Sullivan v. Zebley , 493 U.S. 521, 530 (1990). An impairment medically equals a listed impairment if the impairment, or combination of impairments, and its symptoms are equal in severity and duration to the criteria of any listed impairment. 20 C.F.R. § 416.926(a). If a child's impairment, or ...


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