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Goudy v. Berryhill

United States District Court, E.D. Pennsylvania

April 10, 2019

SHAWNTEL L. GOUDY, o/b/o M.S.G., a minor child
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration

          REPORT AND RECOMMENDATION

          THOMAS J. RUETER, UNITED STATES MAGISTRATE JUDGE

         Shawntel L. Goudy filed the present action on behalf of her minor child, M.S.G. (hereinafter “plaintiff”), pursuant to 42 U.S.C. § 1383(c)(3), which incorporates by reference 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying plaintiff's claim for child's supplemental security income (“SSI”) under Title XVI of the Social Security Act (“Act”).

         Plaintiff filed a Brief and Statement of Issues in Support of Request for Review (“Pl.'s Br.”), defendant filed a Response to Request for Review by Plaintiff (“Def.'s Br.”), and plaintiff filed a reply thereto (“Pl.'s Reply”). For the reasons set forth below, this court recommends that plaintiff's Request for Review be GRANTED.

         I. FACTUAL AND PROCEDURAL HISTORY

         Ms. Goudy filed plaintiff's application for SSI on April 4, 2011, alleging disability beginning on June 1, 2011. (R. 105-13.) The claim was denied initially and a request for hearing was timely filed. (R. 67-79.) On June 29, 2012, Administrative Law Judge (“ALJ”) Jennifer M. Lash convened a hearing, which was continued to a later date so that plaintiff could obtain representation. (R. 32-44.) On September 21, 2012, ALJ Lash conducted a hearing, at which Ms. Goudy proceeded without representation. (R. 45-66.) ALJ Lash issued a decision dated November 9, 2012, finding that plaintiff was not disabled. (R. 13-27.) Plaintiff filed a request for review of the ALJ's decision, which was denied by the Appeals Council on January 4, 2013. (R. 1-11.) Plaintiff subsequently commenced an appeal in this court, seeking review pursuant to 42 U.S.C. §§ 405(g) and 1383(c). See Pl.'s Br. at 2. Defendant filed a voluntary motion for remand, and the case was remanded to the Commissioner. (R. 525-30.)

         While plaintiff's case was pending in this court, plaintiff filed a new application for benefits on July 10, 2014. (R. 570-78.) This claim was denied initially on September 23, 2014, and a request for hearing was filed on October 7, 2014. (R. 517-24, 540-47.) By Order dated August 12, 2015, the Appeals Council consolidated the original application for benefits with the 2014 application, and remanded the case to an ALJ for reconsideration. (R. 531-34.) On December 3, 2015, a hearing was held before ALJ Howard Wishnoff. (R. 433-71.) Plaintiff, as well as Ms. Goudy, appeared and testified at the hearing. In a decision dated February 26, 2016, the ALJ found that plaintiff was not disabled under the Act. (R. 407-31.) The ALJ made the following findings:

1. The claimant was born on March 25, 2001. Therefore, he was a school-age child on March 28, 2011, the date [the] application was filed, and is currently an adolescent (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful activity since March 28, 2011, the application date (20 CFR 416.924(b) and 417.971 et seq.).
3. The claimant has the following severe impairments: attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), learning disorder, and borderline intellectual functioning (20 CFR 416.924(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. The claimant does not have an impairment or combination of impairments that functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).
a. Acquiring and Using Information
b. Attending and Completing Tasks
c. Interacting and Relating with Others
d. Moving About and Manipulating Objects
e. Caring for Yourself
f. Health and Physical Well-Being
6. The claimant has not been disabled, as defined in the Social Security Act, since March 28, 2011, the date the application was filed (20 CFR 416.924(a)).

         (R. 32-42.) Plaintiff filed exceptions to the ALJ's decision. (R. 391-98.) The request was denied by the Appeals Council and the ALJ's decision became the final decision of the Commissioner. (R. 386-88.)[1]

         II. STANDARD OF REVIEW

         The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's decision. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 571 U.S. 1204 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 2019 WL 1428885, at *3 (U.S. Apr. 1, 2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec'y of U.S. Dep't of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, “so long as an agency's fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings.” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).

         III. BACKGROUND

         At the outset of the December 3, 2015, administrative hearing, plaintiff's counsel stated that plaintiff then was fourteen years old. (R. 439.) He noted that plaintiff had a long history of mental health issues including ADHD, oppositional defiant disorder, and borderline intellectual functioning. Id. Counsel requested the ALJ to consider whether plaintiff was functionally equivalent to a listing, noting that it was determined that plaintiff required thirty hours per week of School Therapeutic Support Services, although the hours were subsequently reduced to fifteen hours per week. (R. 439-40.) Plaintiff's support services also included meetings with a therapist and a behavioral services consultant. (R. 461.)[2]

         A. Testimony of Shawntel Goudy

         Plaintiff's mother, Shawntel Goudy, testified that plaintiff had recently begun high school, but that he was struck by a car on October 30, 2015, and had been out of school since. (R. 441, 452.)[3] According to Ms. Goudy, the transition to high school was difficult because plaintiff no longer received the one-on-one assistance he had received in elementary and middle school. (R. 441-42.)[4] She explained that there was an assistant who worked with plaintiff, but that he was assigned to numerous students and did not accompany plaintiff to all classes. Rather, he “comes in . . . two periods a day.” (R. 442.) Plaintiff had an IEP. Id. Ms. Goudy stated that plaintiff struggled with reading, math, and physical science, and also struggled to complete homework. (R. 442-43.) Ms. Goudy explained that instead of asking for help, plaintiff “shuts down” by throwing tantrums, chewing on his clothing, or blowing bubbles. Id. Ms. Goudy noted that plaintiff struggled with schoolwork, tantrums, and “basically . . . with everything.” (R. 446.) Plaintiff did not ask for assistance with his homework; however, Ms. Goudy arranged for her niece who was also a high school student to help plaintiff. (R. 451.) Ms. Goudy indicated that it seemed that plaintiff had better comprehension of schoolwork when he received one-on-one instruction. Id. She opined that plaintiff was embarrassed to ask for help in front of his class. Id.

         Plaintiff became the victim of bullying when he began high school. (R. 443.) As a result, plaintiff did not want to go to school and feigned illness in an attempt to stay home from school. Id. Ms. Goudy addressed the bullying with the principal of plaintiff's school and considered transferring plaintiff to a different school. (R. 444.) Ms. Goudy explained that the situation “got a little better because he said they weren't in his class” and plaintiff indicated that he kept to himself while in class. Id. Ms. Goudy acknowledged that plaintiff also experienced bullying by neighborhood children. (R. 455-56.) According to Ms. Goudy, conflicts arose when plaintiff did not know how to do something that the other children knew how to do. (R. 456.)

         When asked whether plaintiff had any friends, Ms. Goudy explained that plaintiff did not have any friends at school or in the neighborhood, but instead spent time with his family. (R. 445, 455.)[5] Plaintiff has a brother who is five years older than he. Id. Ms. Goudy noted that plaintiff and his brother tended to argue due to the age difference. (R. 446.) Ms. Goudy acknowledged that plaintiff did not perform the household chores he was asked to do. Id. She explained:

You have to keep staying - I keep asking him and asking him and then eventually, you know, how you keep asking someone something they get upset. And that's what he does, like, it's a thing, like, you know, how the Incredible Hulk he just turns, you know, and he do this and he gets really upset.

(R. 446-47.) Ms. Goudy explained that when plaintiff became upset, he sat in a corner, or on the steps, or against the wall of the house for twenty minutes in an attempt to calm himself. (R. 447.) She stated that plaintiff reacted this way the “majority of the time.” Id.

         At the time of the administrative hearing, plaintiff was not taking any medication because “they haven't given him any.” (R. 448.) Ms. Goudy noted, however, that she had recently requested an appointment to have the medication issue addressed. Id. The ALJ asked whether plaintiff “calmed down” when he was medicated on Concerta. Id. Ms. Goudy stated that his doctor indicated that “she was ...


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