United States District Court, S.D. Ohio, Eastern Division
ROXANNE BRADDY o/b/o B.T.B. (a minor), Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Algenon L. Marbley Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Roxanne Braddy, acting on behalf of B.T.B., a minor, filed
this action seeking review of a decision of the Commissioner
of Social Security denying B.T.B.'s application for
supplemental security income. For the reasons that follow, it
is RECOMMENDED that the Court REVERSE the Commissioner of
Social Security's non-disability finding and REMAND this
case to the Commissioner and the Administrative Law Judge
under Sentence Four of § 405(g).
is B.T.B.'s maternal grandmother, who filed an
application for supplemental security income on his behalf on
October 2, 2013, alleging he became disabled on July 1, 2013
due to Attention Deficit Hyperactivity Disorder
(“ADHD”), behavioral problems, violent
tendencies, and no sexual boundaries. (Tr. 27, PAGEID #: 89).
After initial administrative denials of the claim, an
Administrative Law Judge (“ALJ”) held a hearing
on March 11, 2016. (Id.). Both Plaintiff and B.T.B.
testified. (Id.). The ALJ issued a decision denying
benefits on April 27, 2016. (Tr. 27-45, PAGEID #: 89-107).
filed the instant case on June 27, 2017, seeking review of
the decision denying B.T.B.'s application for
supplemental security income, and it is now ripe for review.
(See Doc. 3 (complaint); Doc. 11 (administrative
record); Doc. 12 (statement of specific errors); Doc. 14
(Commissioner's response); Doc. 15 (Plaintiff's
Standard for Child's Application for Benefits
Sixth Circuit has summarized the regulations concerning a
child's application for disability benefits as follows:
legal framework for a childhood disability claim is a
three-step inquiry prescribed in 20 C.F.R. § 416.924.
The questions are (1) is the claimant working, (2) does the
claimant have a severe, medically determinable impairment,
and (3) does the impairment meet or equal the listings? * * *
An impairment can equal the listings medically or
functionally * * *. The criteria for functional equivalence
to a listing are set out in § 416.926a. That regulation
divides function up into 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 yourself; and
(6) Health and physical well-being.
§ 416.926a(b)(1). To establish a functional impairment
equal to the listings, the claimant has to show an extreme
limitation in one domain or a marked impairment in more than
one. § 416.926a(d). Lengthy definitions for marked and
extreme are set out in § 416.926a(e). Each includes
instructions on how to use test results:
“Marked” limitation also means a limitation that
is “more than moderate” but “less than
extreme.” It is the equivalent of the functioning we
would expect to find on standardized testing with scores that
are at least two, but less than three, standard deviations
below the mean. § 416.926a (e)(2)(i).
“Extreme” limitation is the rating we give to the
worst limitations. However, “extreme limitation”
does not necessarily mean a total lack or loss of ability to
function. It is the equivalent of the functioning we would
expect to find on standardized testing with scores that are
at least three standard deviations below the mean. §
416. 926a (e)(3)(i).
Kelly v. Comm'r of Soc. Sec., 314 Fed.Appx. 827,
832 (6th Cir. 2009).
was born on September 18, 2008 (Tr. 30, PAGEID #: 92), and
Plaintiff has had custody of him and his two older siblings
since he was eighteen months old due to their mother's
drug abuse (Tr. 56, PAGEID #: 118; Tr. 82, PAGEID #: 144).
B.T.B. has seen two psychiatrists and has been on four
different medications for his mental health. (Tr. 81, PAGEID
#: 143). Plaintiff explained that B.T.B. is undergoing
“an investigational type process to find the true
correct medication that will help him….”
(Id.). B.T.B. was sexually abused when he was three
years old. (Tr. 66, PAGEID #: 128).
attorney stated that B.T.B. has received various diagnoses
which include ADHD. (Tr. 83, PAGEID #: 145). She explained:
There's a question [with] respect to anxiety disorder or
generalized anxiety disorder, in addition to rule out
diagnosis of post-traumatic stress disorder, obviously
stemming from prior sexual abuse. There's also consistent
diagnosis of oppositional defiant disorder. In the present
case, I believe we have to look at a whole child perspective,
considering listings 112.11, 112.04, and 112.06. The current
constellation of symptoms doesn't neatly fit within those
limitations, but the medical file as a whole tends to support
extreme limitations with respect to interacting and relating
to others. The medical file does support that young [B.T.B.]
has experienced significant consequences from the lack of
control of his behavior, chief among them being that he's
currently seven years old and just now starting kindergarten
because his behaviors have gotten to the point that they have
prevented him from being maintained in a regular school
(Id.). Thus, B.T.B.'s attorney indicated that
his “main limitations to an extreme degree are within
the interacting and relating with others.”
explained that B.T.B. can be a “sweet loving little
boy” but, “at the same time, there is a demon
inside of him.” (Tr. 56-57, PAGEID #: 118-19).
Plaintiff stated that “the people inside [of
B.T.B.'s] head tell him to do things, and he knows
he's not supposed to do them, but he do[es] them
anyway.” (Tr. 57, PAGEID #: 119).
supervises B.T.B. whenever he is around other children
because he has touched others in a sexually inappropriate
way. (Id.; Tr. 66, PAGEID #: 128). Plaintiff
[B.T.B.] was molested at three. He and my great-grandson,
both the same age, were sexually anally molested by the same
perpetrator. Then the two grand-my great-grandson
and-[B.T.B.] were caught in the act of oral, still at
three-age three. So his early sexual activities ha[ve] been
with a male. So I've tried to make sure that I just-just
overseeing any time he's playing with my great grandson
and sleepovers, I don't allow him to be with other males.
(Tr. 66, PAGEID #: 128). Plaintiff also discovered B.T.B., at
age three, in a closet with his hand inside the pull-up of
her one-year-old granddaughter. (Tr. 58, PAGEID #: 120; Tr.
66, PAGEID #: 128).
these incidents, Plaintiff enrolled B.T.B. in a counseling
program to help him understand appropriate touching and
personal space. (Tr. 66, PAGEID #: 128). Plaintiff's
health caused her to cancel and reschedule a number of
B.T.B.'s appointments, so B.T.B. was initially discharged
from this treatment due to lack of follow-up. (Tr. 80, PAGEID
#: 142). B.T.B. subsequently graduated from the program and
has been on medication consistently since that time.
stated that, although B.T.B. “understands personal
space … he doesn't always give it.” (Tr. 58,
PAGEID #: 120). She also testified that “[t]he
medication helps to slow him down but it really doesn't
help him in his behaviors.” (Tr. 66, PAGEID #: 128).
Plaintiff explained that B.T.B. also has done other things to
hurt children. For example, B.T.B. unscrewed a hot lightbulb
using his t-shirt and handed it to Plaintiff's
two-year-old grandson, giving him second degree burns on his
fingers. (Tr. 57, PAGEID #: 119).
described B.T.B. as destructive, “tear[ing] up”
his belongings and his siblings' belongings. (Tr. 67,
PAGEID #: 129). Plaintiff stated that B.T.B. “cuts up
everything” with scissors, such as “[h]is sheets,
his bed, the trim on his bed-on his mattress, on his
brother's bed, the plastic off the box spring, his
shirt…” (Tr. 73, PAGEID #: 135). Plaintiff also
stated that B.T.B. bites things “and he constantly has
to have something in [his] mouth chewing, ” such as a
piece of paper, a toy, or a piece of a barrette. (Tr. 67,
PAGEID #: 129).
stated that B.T.B. generally is able to dress and bathe
himself and knows how to ride a bike. (Tr. 68, PAGEID #: 130;
Tr. 70, PAGEID #: 132). B.T.B. sleeps well with the aid of
medication. (Tr. 71, PAGEID #: 133). Plaintiff also explained
that B.T.B. has difficulty focusing and does not follow
instructions. (Tr. 76-77, PAGEID #: 138-39).
has tried a number of preschools for B.T.B., but he
“attacked adults, ” so they called her “to
come in to remove him.” (Tr. 78, PAGEID #: 140).
Additionally, B.T.B. has flipped over tables in school.
(Id.). Plaintiff also tried to take B.T.B. to a
traditional kindergarten but, “an hour later, they
demanded [she] come back and get him.” (Tr. 74, PAGEID
stated that, despite these instances, she “demanded an
education for [her] grandson, so they finally found a place,
which is a farm with animals and a few children that age
from-high school to where he's at.” (Id.).
B.T.B's school is named Briar Patch Ranch, and it is a
place where “strik[ing] the teacher” is
“expected that because those are the type of children
they're working with.” (Tr. 78, ...