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Smallwood v. Berryhill

United States District Court, E.D. Pennsylvania

November 7, 2017

COURTNEY SMALLWOOD, o/b/o R.K.F., a minor child Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security Defendant.



         Plaintiff Courtney Smallwood, pursuant to 42 U.S.C. § 1383(c)(3)[2], seeks judicial review of a decision by the Commissioner of Social Security denying her claim on behalf of R.K.F., her minor child, for Supplemental Social Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 401, et seq. The Administrative Law Judge's decision was upheld by the Appeals Council and Magistrate Judge Rueter subsequently recommended that Smallwood's request for review be denied.[3] Smallwood filed objections to Judge Rueter's Report and Recommendation (“R&R”) and now argues that the Commissioner's decision should be overturned because the ALJ erred in finding that R.K.F. did not exhibit marked impairments in the domains of acquiring and using information and attending and completing tasks. For the reasons below, the Court overrules Smallwood's objections to the R&R and grants judgment in favor of the Commissioner.



         R.K.F. was born on July 16, 2007. (R. 188.)[4] On April 15, 2013, when he was preschool-age, Smallwood protectively filed an application for SSI on his behalf. (R. 162-167, 188.) He is currently a school-age child. See 20 C.F.R. § 416.926a(g)(2). R.K.F.'s SSI application alleged disability as of February 1, 2013 due to attention deficit hyperactivity disorder (“ADHD”), oppositional defiant disorder (“ODD”), asthma and anemia. (R. 61-62.)

         On June 28, 2013, R.K.F.'s application for SSI was denied. (R. 71-74.) Smallwood filed a request for a hearing which was held on November 19, 2014 before ALJ Jay Marku. (R. 75-78, 37-57.) On January 6, 2015, Judge Marku found that R.K.F. had “not been under a disability within the meaning of the Social Security Act since April 15, 2013 . . . .” (R. 19.) In reaching his conclusion, the ALJ explained that he had considered “objective medical evidence and other relevant evidence from medical sources; information from other sources, such as school teachers, family members, or friends; the claimant's statements (including statements from the claimant's parent(s) or other caregivers); and any other relevant evidence in the case record, including how the claimant functions over time and in all settings (i.e., at home, at school, and in the community).” (R. 22-23.)

         Relying on the record evidence, the ALJ found that R.K.F. had not engaged in substantial gainful activity during the relevant time period. (R. 22.) He concluded that R.K.F.'s asthma and ADHD are “severe impairments, ” but found that neither R.K.F.'s asthma nor his ADHD were impairments that met or medically equaled the severity of a listed impairment in 20 C.F.R. §§ 416.924, 416.925 or 416.926. (Id.) He determined that it had not been established that R.K.F.'s “symptoms related to his asthma ha[d] been of sufficient severity such as to meet or medically equal the severities of any of the impairments described in [sections 103.03 and 3.03, Respiratory System].” (Id.) He also found that R.K.F. did “not meet[ ] the listing for 112.11 Attention Deficit Hyperactivity Disorder, as manifested by developmentally inappropriate degrees of inattention, impulsiveness, and hyperactivity.” (Id.) Finally, the ALJ concluded that R.K.F. had: (1) “less than marked limitation in acquiring and using information;” (2) “less than marked limitation in attending and completing tasks;” (3) “less than marked limitation in interacting and relating with others;” (4) “no limitation in moving about and manipulating objects;” (5) “less than marked limitation in the ability to care for himself” and (6) “no limitation in health and physical well-being.” (R. 28-33.) As a result of these conclusions, the ALJ determined that R.K.F. “does not have an impairment or combination of impairments that result in either ‘marked' limitations in two domains of functioning or ‘extreme' limitation in one domain of functioning” and therefore R.K.F. was found to be ineligible to receive SSI. (R. 33.)

         On May 14, 2016, the Appeals Council denied Smallwood's request for review. (R. 1-6.) On July 5, 2016, Smallwood's complaint was filed in this action after she was granted leave to proceed in forma pauperis. (Compl., ECF No. 3.) She filed a brief and statement of issues in support of her request for review on December 23, 2016 and the Commissioner filed a response on January 23, 2017. (Pl.'s Br., ECF No. 13, Def.'s Resp., ECF No. 14.) Magistrate Judge Rueter issued his R&R recommending denial of Smallwood's request for review on April 4, 2017. (R&R, ECF No. 19.) He found that substantial evidence supports the ALJ's conclusions that R.K.F. has less than marked limitations in the domain of acquiring and using information and in the domain of attending and completing tasks. (Id. at 16-22). Smallwood filed objections on April 18, 2017. (Pl's. Objs., ECF No. 20.) The Commissioner filed a response on May 2, 2017. (Def.'s Resp. to Pl.'s Objs., ECF No. 22.)


         The Court has reviewed the decision of the ALJ along with the entire administrative record and summarizes here the evidence relevant to Smallwood's request for review of the ALJ's functional equivalence determination relevant to R.K.F.'s ADHD.


         R.K.F.'s mother's hearing testimony, which the ALJ recounted in his decision, cited both positive and negative aspects of her son's behavior. (R. 23.) See also (R. 46- 56). On the positive side, Smallwood testified that, at home, R.K.F. was “good and helpful, ” “play[ed] with his brother and sister, ” and “doesn't lose his temper . . . .” (R. 23.) See also (R. 49). The ALJ also cited Smallwood's testimony that R.K.F. “has friends at school and home . . . and he gets along well with them.” (R. 23.) See also (R. 53-54). Conversely, the ALJ reported that Smallwood explained that R.K.F. “gets frustrated at school if he doesn't get undivided attention from a teacher” and that he had thrown a chair at a teacher two weeks prior to the hearing. (R. 23.) See also (R. 46). The ALJ explained that Smallwood testified that R.K.F. “wants one-on-one attention in school, as he gets at home” and that “[a]t school, he'd rather color than do his school work.” (Id.) See also (R. 49, 55). She testified that as a second grader at the time of the hearing, R.K.F. was in “regular classes, ” but was “pulled out for extra services in reading and math, and he [was] 2-3 reading levels behind the other kids.” (R. 23) See also (R. 47-48). The ALJ also noted Smallwood's testimony that R.K.F. took medication for ADHD, that he had been on Strattera and took Clonidine at night, but was “changing medications . . ., as they are still trying to find the right ones.” (R. 23.) See also (R. 51-52) (stating that R.K.F. had taken Vyvanse and was “about to be starting” Focalin). She testified that R.K.F. was “worse when he does not take his medications.” (R. 23) See also (R. 53). After reviewing the other record evidence, the ALJ concluded that Smallwood's “statements concerning the intensity, persistence and limiting effects of [R.K.F.'s] symptoms [were] not entirely credible . . . .” (R. 24.)


         In conjunction with Smallwood's testimony, the ALJ considered R.K.F.'s school records, including teacher questionnaires completed by his kindergarten and second grade teachers. (R. 24-25.) In May 2013, R.K.F.'s kindergarten teacher Jessica Sandford completed a teacher questionnaire evaluating his performance in each of the six domains. (R. 198-209.) Relevant here, her questionnaire response reflected that in the functional domain of acquiring and using information, R.K.F. had “'an obvious problem' in the subcategory of expressing ideas in written form” but either only “a slight problem” or “no problem” in all of the other subcategories. (R. 199.) Sandford's questionnaire noted that R.K.F. had some difficulty working independently and he would get frustrated quickly, sometimes throwing things or refusing to complete work. (Id.) In the functional domain of attending and completing tasks, the ALJ explained Sandford found R.K.F. “had a ‘very serious problem' in the subcategory of working at a reasonable pace/finishing on time” and “‘a serious problem' in the subcategories of changing from one activity to another without being disruptive, and completing class/homework assignments.” (R. 24.) See also (R. 200). R.K.F. also “had ‘obvious problems' in the areas of focusing long enough to finish assigned tasks, refocusing to task when necessary, and working without distracting others.” (R. 200.) Sandford's questionnaire response indicated that R.K.F. “had ‘no problem' to a ‘slight problem' in . . . all other subcategories within that domain.” (Id.) The ALJ noted Sandford's finding that R.K.F. had “trouble with stopping an activity and transitioning to the next task, frustration, and throwing tantrums.” (R. 25.) Sandford's questionnaire response also documented certain subcategories with “serious” or “very serious” problems in the functional domains of interacting and relating with others and caring for himself, but Smallwood does not challenge the ALJ's findings with respect to those domains. (R. 201, 203.) The ALJ also explained that in the section of Sandford's questionnaire addressing the domain of health and physical well-being, her response indicated that R.K.F. takes medication on a regular basis and his behavior had improved since starting medication. (R. 25.) See also (R. 205).

         The ALJ noted that for the 2013-2014 academic year, (first grade), R.K.F. “received three grades of D, in reading, writing, and mathematics, in addition to three grades each of A and B.” (R. 24.) That year, R.K.F. was absent for 20 days of school and was late on 43 days. (Id.) In March 2014, R.K.F. “underwent psycho-educational evaluation . . . upon referral from his mother for help in math and reading . . . . His full scale IQ was 86 (low average range). Working skills memory was found to be an area of needed development” and R.K.F. was determined “to be eligible for special education services.” (Id.) In May 2014, at the end of first grade, an individualized education plan (“IEP”) was developed for R.K.F. (Id.) The ALJ also observed that in 2014, R.K.F. received in-school wrap around services through Community Council Health Systems. (Id.)


         The ALJ also discussed the responses of R.K.F.'s second grade teacher, Lauren Beeley, to a Teacher Questionnaire she completed after R.K.F. had attended two weeks of classes. (R. 25.) See also (R. 349-356). Beeley reported that R.K.F. was below grade level in reading, math and written language. (R. 349.) In the domain of acquiring and using information, Beeley reported that R.K.F. exhibited “serious” problems in reading and comprehending written material and expressing ideas in written form. (R. 350). He also exhibited an “obvious” problem in learning new material and recalling and applying previously learned material. (Id.) R.K.F. had either “slight” or “no” problems in all other subcategories in this domain. (Id.) Beeley wrote that R.K.F. would “get easily frustrated when doing independent work” and “ask[ed] for direct, individual help often, even when he seem[ed] to understand the material.” (Id.) In the domain of attending and completing tasks, as the ALJ explained, Beeley noted that R.K.F. had a “very serious” problem in the subcategory of working at a reasonable pace/finishing on time and “serious” problems in the subcategories of completing work accurately without careless mistakes and completing class/homework assignments. (R. 25.) See also (R. 351). Beeley reported “no” problems in all other subcategories in the domain. (R. 351). The ALJ wrote: Beeley “noted that [R.K.F.] receives help from a special education teacher and differentiated work in the classroom, but fails to finish assignments often unless he gets direct help.” (R. 25) See also (R. 351). As the ALJ also explained, in the domain of caring for himself, Beeley “found [R.K.F.] to have ‘an obvious problem' in the areas of identifying and appropriately asserting emotional needs, handling frustration appropriately, responding appropriately to changes in mood, and using appropriate coping skills to meet the daily demands of the school environment.” (R. 25) See also (R. 354). Beeley reported no problems in the functional domains of interacting and relating with others and moving about and manipulating objects. (R. 352-353.) In the domain of health and physical well-being, Beeley noted that R.K.F. took medication on a regular basis, although she was unsure of its name. (R. 355.) As the ALJ explained, Beeley's questionnaire reported that R.K.F. “stays calmer and tries harder without getting frustrated as easily” when he takes his medication. (Id.) See also (R. 25).

         The ALJ ultimately found that the opinions of R.K.F.'s kindergarten and second grade teachers did not support R.K.F.'s “contention that his impairments, particularly his mental impairment, functionally equal[led] a listing.” (R. 26.) The ALJ explained that “[w]hile [R.K.F.] had what were considered “serious” and even a few “very serious” problems . . ., the large majority of subcategories assessed . . . indicated ‘no” to “slight' or ‘obvious' problems.” (Id.) He explained that “[s]ome improvements between Kindergarten and 2nd Grade in the various problem areas were indicated, and both teachers noted improvement with medication.” (Id.) Specifically, the ALJ cited the discrepancy between the kindergarten teacher's observations that R.K.F. had problems in the domain of interacting and relating with others and his second grade teacher's finding that R.K.F. exhibited no limitations in the same domain. (Id.) The ALJ also explained that the kindergarten teacher found several areas to be a very serious problem in the subcategory of working at a reasonable pace/finishing on time, while the second grade teacher noted only one very serious problem in the same subcategory. (Id.) Additionally, the ALJ pointed to the kindergarten teacher's comment that after starting medication, R.K.F. had only had two tantrums. (Id.) The ALJ concluded that “[w]ith continuation in therapy and with stabilization of medications, as well as special education services, continued improvement would be expected.” (Id.)


         The ALJ also reviewed R.K.F.'s medical records including a bio-psychosocial evaluation at Juniata Community Mental Health Clinic in April 2013, where he was diagnosed with ADHD and given a Global Assessment of Functioning (“GAF”) score of 55. (R. 24.) See also (R. 328-332.) Between April 2013 and November 2013, R.K.F. “attended a few outpatient therapy sessions . . . .” (R. 24.) Also in April 2013, R.K.F. “was ...

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