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Hall v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

November 30, 2017

ALICIA HALL on behalf of M.C.L.B. Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          BENITA Y. PEARSON JUDGE.

          REPORT AND RECOMMENDATION

          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         Plaintiff Alicia Hall seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental social security income (“SSI”) on behalf of her minor child, M.C.L.B., under Title XVI of the Social Security Act. This matter is before the court pursuant to 42 U.S.C. §1383(c)(3), 42 U.S.C. §405(g) and Local Rule 72.2(b).

         Because the ALJ's conclusion that M.C.L.B. did not meet or medically equal Listing 112.05 was not supported by substantial evidence, I recommend that the final decision of the Commissioner be VACATED AND that the matter be REMANDED in accordance with this Report and Recommendation.

         II. Procedural History

         Hall applied for SSI on behalf of her minor child, M.C.L.B., on December 17, 2013. (Tr. 142). The Social Security Administration denied Hall's application initially and upon reconsideration. (Tr. 84-86, 94-96) After an October 20, 2015 hearing, Administrative Law Judge (“ALJ”) Pamela E. Loesel denied the claim on December 22, 2015. (Tr. 10-28). The appeals counsel declined review of that decision, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-5)

         III. Standard for Child Disability Claims

         The standard for evaluating a child disability claim differs from that used for an adult's claim. 42 U.S.C. § 1382c(a)(3)(C); see also Miller ex rel. Devine v. Comm'r of Soc. Sec., 37 Fed.Appx. 146, 147 (6th Cir. 2002). A child is considered disabled if he has a “medically determinable physical or mental impairment that results in marked and severe functional limitations and can be expected to result in death or 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). To determine whether a child is disabled, the regulations prescribe a three-step sequential evaluation process. 20 C.F.R. § 416.924(a). At Step One, a child must not be engaged in “substantial gainful activity.” 20 C.F.R. § 416.924(b). At Step Two, a child must suffer from a “severe impairment.” 20 C.F.R. § 416.924(c). At Step Three, disability will be found if a child has an impairment, or combination of impairments, that meets, medically equals, or functionally equals an impairment listed in 20 C.F.R. § 404, Subpt. P, App'x 1; 20 C.F.R. § 416.924(d).

         To determine whether a child's impairment functionally equals the Listings, the Commissioner must assess the functional limitations caused by the impairment. 20 C.F.R. § 416.926a(a). This is done by evaluating how a child functions in six domains: (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)(i)-(vi). If a child's impairment results in “marked” limitations[1] in two domains, or an “extreme” limitation[2] in one domain, the impairments functionally equal the Listings and the child will be found disabled. 20 C.F.R. § 416.926a(d).

         IV. The ALJ's Decision

         On December 22, 2015, the ALJ decided:

1. M.C.L.B. was born on July 19, 2002. Therefore, he was a school-age child on November 7, 2013, the date the application was filed, and is currently an adolescent. (Tr. 16)
2. M.C.L.B. has not engaged in substantial activity since November 7, 2013, the application date. (Tr. 16)
3. M.C.L.B. has the following severe impairments: learning disorder; borderline intellectual functioning; affective disorder (adjustment disorder with mixed disturbance of emotions and conduct); anxiety disorder; and personality disorder (disruptive behavior disorder NEC). (Tr. 16)
4. M.C.L.B. does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments. (Tr. 16)
5. M.C.L.B. does not have an impairment or combination of impairments that functionally equal the severity of one of the listed impairments. (Tr. 17)
In determining functional equivalence, the ALJ individually evaluated M.C.L.B.'s abilities under all six domains of functioning and made the following findings:
A. Acquiring and using information: marked limitation
B. Attending and completing tasks: less than marked limitation
C. Interacting and relating with others: less than marked limitation
D. Moving about and manipulating objects: no limitation
E. Caring for yourself (Self-care): less than marked
F. Health and physical well-being: no limitation

(Tr. 19-25) Based on these findings, the ALJ determined that M.C.L.B. had not been under a disability since November 7, 2013, the date the application was filed. (Tr. 25)

         V. Relevant Evidence

         A. Medical Evidence - Consultative Exams

         On May 13, 2011, Psychologist J. Joseph Konieczny evaluated M.C.L.B at age eight. (Tr. 278-281) Dr. Konieczny noted that M.C.L.B. had been involved in cruelty to animals (he had killed at least four cats within the previous year) and was physically aggressive with his siblings. M.C.L.B. had experienced episodes of nocturnal enuresis two to three times a week. M.C.L.B. had repeated the first grade and was currently in second grade. Hall told Dr. Konieczny that he was “involved in ‘IEP class.'” And she told him that M.C.L.B. had below average and failing grades, but was generally compliant in the school setting. He had exhibited opposition and defiant behaviors, had been involved in vandalism in the neighborhood, and displayed profane behaviors in the home setting. M.C.L.B. was not taking any medications. He was neatly attired and his hygiene was good; he related pleasantly and easily to Dr. Konieczny. (Tr. 279)

         Dr. Konieczny noted that M.C.L.B. had taken the WISC-IV in November 2010. Plaintiff obtained a verbal comprehension score of 87, a perceptual reasoning score of 88, a working memory score of 74, a verbal IQ score of 80, and a FSIQ score of 78. (Tr. 279-280) Dr. Konieczny opined that M.C.L.B.'s capabilities in the domains of acquiring and using information, interacting and relating with others, and self-care were below average for an individual his age. However, his capabilities in the area of attending to and completing tasks were age appropriate. He diagnosed chronic adjustment disorder with mixed disturbance of emotions and conduct, nocturnal enuresis, borderline intellectual functioning, and assigned a GAF score of 50. (Tr. 280)

         On March 3, 2014, Psychologist David V. House evaluated M.C.L.B. when he was 11 years, 7 months old and in the fifth grade. (Tr. 283) Hall stated that M.C.L.B. was active, interacted with others “a little, ” fought with children his age, threw tantrums when he was disciplined, purposefully aggravated and hit his siblings, did not do his chores, and had to be forced to attend to some of his hygiene. She reported that he had issues with running away. There were no reports of recent cruelty, but he had broken the leg of a guinea pig when he was seven years old. (Tr. 285-286)

         Hall reported that M.C.L.B.'s grades were terrible, he did not do his homework, he had to repeat the first grade, he had an IEP, he had been suspended once for fighting, and he had been sent to the office frequently. Hall complained that she received phone calls every other day complaining that M.C.L.B. didn't pay attention, cussed, fought and left the classroom. He received counseling at school. (Tr. 286)

         M.C.L.B. told Dr. House that he was sad most of the time and angered easily. He denied difficulties with sleep or appetite. He also denied worrying or being lonely. He complained of being bored. M.C.L.B. denied any attempts to injure himself or episodes of excessive crying. He did report seeing a dog that other people didn't see, but it was not clear to Dr. House that M.C.L.B. was hallucinating. (Tr. 287)

         Dr. House administered the WISC-IV. M.C.L.B. scored 71 in verbal comprehension, 71 in perceptual reasoning, 68 in working memory, and 75 in processing speed. His full scale IQ score was 65. (Tr. 287) The WRAT-IV was also administered and scored a 71 in word reading (3rd percentile and at 1.7 grade level equivalent), 73 in sentence composition (4th percentile and at 1.7 grade level), 69 in spelling (2nd percentile and at 1.5 grade level), 63 in math computation (1st percentile and at 1.7 grade level). Dr. House noted that M.C.L.B. made an effort during testing and that the results appeared to be valid. (Tr. 288)

         Dr. House diagnosed anxiety disorder, disruptive behavior disorder, learning disorder and borderline intellectual functioning. (Tr. 288, 290) For M.C.L.B.'s functional assessment, Dr. House opined that M.C.L.B.'s ability to learn and retain information in one-on-one situations and group settings was somewhat limited due to his borderline intelligence. He noted elements of distractibility and issues connected to boredom that would cloud his capabilities to some degree. In the domain of attending to and completing tasks, M.C.L.B. was able to pay attention and respond to direct questions from an adult in a one-on-one setting. Dr. House thought that M.C.L.B. may have some difficulties sustaining attention for prolonged periods and would need redirection from adults to refocus and complete assigned tasks. (Tr. 289) In the area of interacting and relating to others, M.C.L.B. was cooperative and pleasant with Dr. House. He sustained some dialog on topics of interest to him. He was able to listen to others but did not initiate topics. He could take directions from others during conversation. (Tr. 289) Dr. House thought that M.C.L.B.'s ability to sustain relationships with individuals who were important to him was limited; he could become frustrated with repeated redirection requiring sustained attention. Dr. House opined that M.C.L.B.'s incidents of disrespect and non-compliance with authority figures stemmed from his tendency to run away. (Tr. 290) In relation to self-care, Dr. House thought that M.C.L.B. could complete self-care to some degree with supervision. His ability to ask for help when needed was limited. He was not especially aware of his mood states and did not verbalize appropriate coping skills. M.C.L.B.'s temper outbursts seemed to be related to escape and Dr. House thought he would have difficulty managing more acute emotional reactions. (Tr. 290)

         On March 12, 2014, Leslie Rudy, Ph.D., a state agency psychologist, reviewed M.C.L.B.'s records and opined that he had a marked limitation in acquiring and using information, less than marked limitations in attending and completing tasks, interacting and relating with others, and caring for himself but no limitation in moving about and manipulating objects and in health and physical health well-being. (Tr. 66-67)

         On June 13, 2014, Courtney Zeune, Psy.D., another state agency psychologist, also reviewed the records on behalf of the agency. Dr. Zeune affirmed the opinions of Dr. Rudy. (Tr. 77-79)

         B. School Records

         1. ETR - October 11, 2013

         An Evaluation Team Report (“ETR”) was completed on October 11, 2013 when M.C.L.B. was in the fifth grade. (Tr. 151-181) He had been receiving specialized instruction since 2010 and continued to be eligible for special education and related services in the category of specific learning disabilities. (Tr. 174, 179) His WISC-IV scores from testing completed on November 4, 2010, included a verbal comprehension index score of 87, a perceptual reasoning index score of 88, working memory index score of 74, processing speed index score of 80 and a full scale IQ score of 78. (Tr. 160)

         Dr. Tanja Stitch, a school psychologist, assessed M.C.L.B.'s functioning as part of the ETR. (Tr. 158) She noted that M.C.L.B. had numerous absences - in 3rd grade he missed 31 out of 172 school days and in 2012 he missed 29 out of 179 school days. (Tr. 158) Hall told Dr. Stitch that M.C.L.B. was not taking any medication and there were no medical concerns that could affect his ...


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