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Davis v. Commissioner of Social Security

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

June 15, 2018

MALINDA DAVIS on behalf of C.D., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          Thomas M. Parker, United States Magistrate Judge

         I. Introduction

         Plaintiff, Malinda Davis, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental social security income (“SSI”) benefits on behalf of her minor child, C.D., under Title XVI of the Social Security Act. The parties consented to my jurisdiction. ECF Doc. 14.

         Because substantial evidence supported the ALJ's decision and he applied the correct legal standards, the final decision of the Commissioner must be AFFIRMED.

         II. Procedural History

         Davis applied for SSI on behalf of her minor child, C.D., on June 26, 2014. (Tr. 171-176). The Social Security Administration denied Davis's application initially and upon reconsideration. (Tr. 97-107; 109-119) Administrative Law Judge (“ALJ”) George D. Roscoe heard the case on February 3, 2016 and denied the claim on March 14, 2016. (Tr. 10-28). The Appeals Council declined review of that decision, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-5) Davis instituted this action to challenge the Commissioner's conclusion that her child was not disabled. ECF Doc. 1.

         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 have engaged in “substantial gainful activity.” 20 C.F.R. § 416.924(b). At Step Two, a child must be found to 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 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 March 14, 2016, the ALJ decided:

1. C.D. was born on June 1, 2005. Therefore, he was a preschooler on June 20, 2014, the date the application was filed, and is currently a school-age child. (Tr. 14)
2. C.D. had not engaged in substantial activity since June 20, 2014, the application date. (Tr. 14)
3. C.D. had the following severe impairments: oppositional defiant disorder; attention deficit hyperactivity disorder; depressive disorder; post traumatic stress disorder; asthma; and headaches. (Tr. 14)
4. C.D. did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 14-15)
5. C.D. did not have an impairment or combination of impairments that functionally equaled the severity of one of the listed impairments. (Tr. 15)
In determining functional equivalence, the ALJ individually evaluated C.D.'s abilities under all six domains of functioning and made the following findings:
A. Acquiring and using information: less than marked limitation
B. Attending and completing tasks: less than marked limitation
C. Interacting and relating with others: marked limitation
D. Moving about and manipulating objects: no limitation
E. Caring for yourself (Self-care): less than marked limitation F. Health and physical well-being: less than marked limitation

(Tr. 24-31) The ALJ determined that C.D. had not been under a disability since June 20, 2014, the date the application was filed through the date of his decision. (Tr. 32)

         V. Relevant Evidence

         A. School Evidence

         C.D. was born on June 1, 2005 and was ten years old, a school-age child, at the time of his hearing. (Tr. 171, 11-14)

         In the 2013-2014 school year, C.D. was suspended from school several times for repeated disruptive behavior, failure to follow directives, and fighting. (Tr. 208, 212-213, 218-219) His records show behavior incidents of leaving the classroom, talking back to teachers, attempting theft of school or private property, and attempting to cause physical harm to a school employee or other person. (Tr. 232, 349, 421, 422)

         In the fall of 2013, C.D. performed at the limited level and did not meet standards for reading at the third grade level. (Tr. 204-205) In the spring of 2014, C.D. took the third grade Ohio Reading and Math Achievement Assessments tests and performed at the limited level for reading - not meeting standards for grade three reading. He performed at the proficient level for math and met the standards for third grade math. (Tr. 344)

         An Individualized Education Program (“IEP”) was implemented in Fall 2014 to address C.D.'s deficiencies in reading and off-task behavior that impeded his learning. C.D. was on task 37% of the time which caused considerable difficulty in the classroom setting. (Tr. 379-390) WISC-IV testing showed that C.D. was in the low average range of general cognitive ability, average range for verbal comprehension and perceptual reasoning, average range of general processing speed, and low average range for general working memory. (Tr. 380)

         An Evaluation Team Report (“ETR”) in May 2014, noted that last year C.D. inconsistently met expectations in working cooperatively with teachers and peers, communicating respectfully, demonstrating self-control, and listening and responding appropriately. (Tr. 275) C.D.'s mother and teacher completed the Behavioral Evaluation Scale - 3 (BES-3). Both resulted in a standard score of 79, equivalent to the 8th percentile by grade. Both evaluations identified learning problems reflecting difficulties with concentration, disorganization, not completing tasks and responding impulsively. (Tr. 304) The evaluations reflected that C.D. responded with anger to perceived slights, made derogatory comments, and was unable to react appropriately to social cues. He blamed others for his mistakes, didn't obey teacher directives, acted impulsively without regard to the consequences for his behavior, and had extreme mood changes. (Tr. 304)

         C.D. scored two standard deviations below the mean on the Learning Problems subscale, the Interpersonal Difficulties subscale, and the Inappropriate Behavior subscale. In the area of Learning, the primary behaviors of concern included: difficulty attending to academic tasks; failing classroom tests or quizzes; not grasping basic concepts; not following directions, written or verbal; requiring excessive assistance from others; difficulty organizing; refusing or failing to complete class assignments or homework; performing school work in a careless manner; responding too quickly and impulsively to questions about academic material; and demonstrating difficulty or reluctance to begin tasks. (Tr. 307)

         In the area of Interpersonal Difficulties, C.D.'s primary behaviors of concern were: disrupting the work of others in class; trying to interact with other students but not being accepted by them because of his behavior; not recognizing or responding appropriately to nonverbal clues in social situations; seeming unable or unwilling to communicate feelings or emotions to others; responding inappropriately to constructive criticism or comments from others; avoiding interaction with other students or teachers; making derogatory comments or inappropriate gestures to other students or teachers or about other people. (Tr. 307)

         In the area of Inappropriate Behaviors, the primary behaviors of concern were: demonstrating sudden or dramatic mood changes; blaming other persons or materials for his own failure or difficulty; not obeying teachers' directives or classroom rules; making inappropriate noises; failing to consider or disregarding consequences of his behavior; acting impulsively without self-control; exhibiting off-task behaviors; continuing to engage in a behavior when it is no longer appropriate; and talking at inappropriate times or making irrelevant comments. (Tr. 308)

         Both the Teacher Report and the Child Behavior Checklist within the ETR noted that C.D. tended to externalize his emotions by attention-getting, rule-breaking, and aggressive behaviors. The report stated that C.D.'s impulsivity and mood fluctuations should be monitored. (Tr. 314)

         Based on the report C.D.'s mother completed, his scores on the Anxiety Problems and Conduct Problem scales were in the clinical range (above the 97th percentile). His scores on the Affective Problems and Attention Deficit/Hyperactivity Problem scales were in the borderline range. (93rd to 97th percentile). (Tr. 316) C.D.'s teacher reported specific behavioral concerns of withdrawn or depressed behavior, problems in social relationships, thought problems, attention problems, rule-breaking behavior and problems of an aggressive nature. (Tr. 321)

         Based on C.D.'s significant degrees of impulsivity, distractibility, and disorganization, the ETR team determined that C.D. demonstrated an impairment which adversely affected his educational performance and required specialized instruction. (Tr. 334)

         C.D.'s IEP was continued in May 2015. (Tr. 393) C.D. had progressed over the year; his grades had improved greatly; and his reading and math assessment scores had increased. (Tr. 394) He also progressed in his ability to respond appropriately to peers and adults. (Tr. 396) His on-task behavior improved. He continued to struggle with reacting appropriately to adult redirection. When he was redirected for minor behaviors, such as getting out of his seat, talking out of turn and not following directions, he responded by refusing to participate, yelling, or walking out of the room. (Tr. 396) His accommodations included small groups, extended time, and breaks. (Tr. 401)

         The May 2015 STAR Reading evaluations showed C.D.'s performance was below average at the 3.1 grade level. (Tr. 418) Results from the STAR Reading assessment from October 2015 showed C.D.'s performance was below average at the 3.6 grade level. He scored in the 22nd percentile of students in the ...


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