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Braddy v. Commissioner of Social Security

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

February 21, 2018

ROXANNE BRADDY o/b/o B.T.B. (a minor), Plaintiff,

          Algenon L. Marbley Judge.



         Plaintiff, 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).

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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 reply)).

         A. Standard for Child's Application for Benefits

         The Sixth Circuit has summarized the regulations concerning a child's application for disability benefits as follows:

         The 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).

         B. Hearing Testimony

         1. Background

         B.T.B. 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).

         B.T.B.'s 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 setting.

(Id.). Thus, B.T.B.'s attorney indicated that his “main limitations to an extreme degree are within the interacting and relating with others.” (Id.).

         2. Plaintiff's Testimony

         Plaintiff 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).

         Plaintiff 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 explained that:

[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).

         After 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. (Id.).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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 #: 136).

         Plaintiff 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, ...

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