United States District Court, N.D. Ohio, Eastern Division
ALICIA HALL on behalf of M.C.L.B. Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Y. PEARSON JUDGE.
REPORT AND RECOMMENDATION
M. Parker United States Magistrate Judge.
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).
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.
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)
Standard for Child Disability Claims
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.
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 in two domains, or an
“extreme” limitation in one domain, the
impairments functionally equal the Listings and the child
will be found disabled. 20 C.F.R. § 416.926a(d).
The ALJ's Decision
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.
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
C. Interacting and relating with others: less than marked
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)
Medical Evidence - Consultative
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)
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)
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)
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)
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)
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.
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)
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)
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.
ETR - October 11, 2013
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.
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 ...