United States District Court, E.D. Pennsylvania
SHAWNTEL L. GOUDY, o/b/o M.S.G., a minor child
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration
REPORT AND RECOMMENDATION
J. RUETER, UNITED STATES MAGISTRATE JUDGE
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”).
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.
FACTUAL AND PROCEDURAL HISTORY
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.)
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
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)).
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.)
STANDARD OF REVIEW
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).
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.)
Testimony of Shawntel Goudy
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.) 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.) 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
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.)
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.) 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.
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
(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.
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 ...