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Loper v. Berryhill

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

June 22, 2018

LATASHA LOPER o/b/o P.L., Plaintiff,
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES S. GWIN, Magistrate Judge

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE.

         LaTasha Loper (“Plaintiff”), acting on behalf of P.L. (“Claimant”), her minor daughter, seeks judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying Claimant's application for Supplemental Security Income (“SSI”). ECF Dkt. #1. In her amended brief on the merits, filed on April 9, 2018, Plaintiff asserts that the administrative law judge (“ALJ”) erred in finding that Claimant did not have a severe medical impairment and erred by attributing great weight to the opinion of a medical expert (“ME”) who did not have the highly material evidence that was submitted after the ALJ hearing. ECF Dkt. #17. Plaintiff further asserts that the speech and language evaluation that she submitted after the ALJ hearing constitutes new and material evidence warranting a remand. Id. On May 2, 2018, Defendant filed a brief on the merits. ECF Dkt. #18. Plaintiff did not file a reply brief.

         For the following reasons, the undersigned recommends that the Court AFFIRM the decision of the ALJ and dismiss the instant case in its entirety with prejudice.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for SSI on behalf of Claimant in October of 2014, alleging a disability onset date of January 11, 2014, Claimant's date of birth. ECF Dkt. #10 (“Tr.”) at 186.[2] Plaintiff alleged that Claimant was disabled due to muscle stiffness and developmental delay. Id. at 141. The claim was denied initially and upon reconsideration. Id. at 57-73. Following the denial of the claim, Plaintiff requested a hearing. Id. at 95. Accordingly, a hearing was held on May 10, 2016, with the ALJ, the ME and Plaintiff's counsel initially. Id. at 20-59. Plaintiff arrived late to the hearing and did not bring Claimant although instructed to do so. Id. at 27-28. The ALJ heard testimony from a ME and Plaintiff, with counsel present. Id. at 20-59.

         On May 17, 2016, Plaintiff filed a letter to the ALJ indicating that she no longer wanted her counsel's representation. Tr. at 126. She indicated that she was presenting Claimant's medical records and “[a]ny further records she has not been scheduled to present at this time. Therefore I am asking for a decision to be made based on these new medical records I gave today or dismiss until more exams are scheduled.” Id. On May 18, 2016, counsel advised the agency that he and his office no longer represented Claimant and Plaintiff. Id. at 127.

         On August 17, 2016, the ALJ issued a decision denying Plaintiff's claim. Tr. at 10-15.

         On October 18, 2016, Plaintiff wrote a letter to the SSA stating that she had additional medical papers to present for the case and indicating that she was asked to sign a form that she did not understand. Tr. at 51. She requested more time to present medical evidence. Id.

         On October 24, 2016, the SSA wrote Plaintiff a letter indicating that she could provide more evidence, but it must be new and material to the issues considered at the hearing. Tr. at 49.

         The record contains a letter dated May 23, 2017 from the SSA to Senator Rob Portman of the United States Senate noting that they acknowledged his inquiry into Claimant's case for Plaintiff and they were in the process of responding. Tr. at 54. The SSA also indicated that the Appeals Council had received Plaintiff's request for review of the ALJ's decision, Senator Portman's inquiry, and additional material he had submitted to the record. Id. It appears that Claimant's November 2, 2016 medical records were included with the inquiry. Id. at 55-56.

         The record contains a July 14, 2017 letter from the SSA to Senator Portman advising him that the Appeals Council had begun its evaluation of the case. Tr. at 53. On the same day, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. Id. at 1-4. The ALJ's decision therefore stands as the final decision.

         On September 1, 2017, Plaintiff filed the instant suit seeking review of the ALJ's decision. ECF Dkt. #1. She wrote a letter stating that Claimant was entitled to SSI because her symptoms matched those of a child with ataxia as she had imprecise motor skills, trouble walking and balancing, and she operated mentally at 15-20 months behind her peers according to the November 2016 expert evaluation. Id. at 2-3. She asked for “professional review” because the ALJ lacked “any information” and he granted a continuance for more evidence that was not considered or looked at by him. Id. at 3. She requested punitive damages in the amount of $2, 000, 000.00 for “mental anguish and physical suffering.” Id.

         On November 27, 2017, Plaintiff filed a motion requesting the appointment of counsel. ECF Dkt. #11. She indicated that she had attempted to secure counsel but was unsuccessful in doing so. Id. The undersigned's office spoke with Attorney Margolius upon the filing of this motion to see if she would consult with Plaintiff about the case. Attorney Margolius graciously agreed to do so and reported that she spoke to Plaintiff and set up three appointments to meet with her about the case, but Plaintiff canceled all three appointments. The undersigned thereafter denied Plaintiff's motion for the appointment of counsel on January 26, 2018. ECF Dkt. #12.

         On February 27, 2018, the undersigned issued an Order to Show Cause, informing Plaintiff that she needed to show cause on or before March 13, 2018 why the undersigned should not recommend dismissal of the complaint for her failure to file a brief on the merits that was due by December 14, 2017 and not filed. ECF Dkt. #13. Thereafter, on March 1, 2018, Attorney Margolius filed a notice of appearance in the case and requested an extension of time within which to file a brief on the merits. ECF Dkt. #s 14, 15. The undersigned granted the motion.

         On April 3, 2018, Plaintiff, through counsel, filed a brief on the merits. ECF Dkt. #16. On April 9, 2018, Plaintiff, through counsel, filed an amended brief on the merits. ECF Dkt. #17. Defendant filed a brief on the merits on May 2, 2018. ECF Dkt. #18. Plaintiff did not file a reply brief.

         II. STEPS TO DETERMINE WHETHER CHILD IS ENTITLED TO SSI

         In order to qualify for childhood SSI benefits, a claimant must show that he or she has a medically determinable physical or mental impairment which results in marked and severe functional limitations, and that is expected to cause death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 20 C.F.R. § 416.906. An ALJ must proceed through the required sequential steps for evaluating entitlement to childhood SSI. 20 C.F.R. § 416.924(a). The three-step procedure requires the ALJ to determine whether a child:

(1) is performing substantial gainful activity;
(2) has a “severe” impairment or combination of impairments; and (3) whether the impairment or combination of impairments are of listing-level severity in that the impairment(s) either meets, medically equals or are the functional equivalent in severity to an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 (“Listing”).

20 C.F.R. § 416.924(a)-(d). In order to meet a Listing, the child's impairment(s) must be substantiated by medical findings shown or described in the listing for that particular impairment. 20 C.F.R. § 416.925(d) (emphasis added). In order to medically equal a Listing, a child's impairment(s) must be substantiated by medical findings at least equal in severity and duration to those shown or described in the listing for that particular impairment. 20 C.F.R. § 416.926(a) (emphasis added.) In order to functionally equal a Listing, the child's impairment(s) must be of listing-level severity; i.e., it must result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a) (emphasis added.)

         III. STANDARD OF REVIEW

         Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and makes a determination of disability. This Court's review of such a determination is limited in scope by § 205 of the Act, which states that the “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Therefore, this Court's scope of review is limited to determining whether substantial evidence supports the findings of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990). The Court cannot reverse the decision of an ALJ, even if substantial evidence exists in the record that would have supported an opposite conclusion, so long as substantial evidence supports the ALJ's conclusion. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.1997). Substantial evidence is more than a scintilla of evidence, but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is evidence that a reasonable mind would accept as adequate to support the challenged conclusion. Id.; Walters, 127 F.3d at 532. Substantiality is based upon the record taken as a whole. Houston v. Sec'y of Health and Human Servs., 736 F.2d 365 (6th Cir. 1984).

         IV. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         Medical records show that Claimant was born on January 11, 2014 in an uncomplicated birth. ECF Dkt. #10 (“Tr.) at 193. Claimant's physical examination was normal. Id.

         On May 30, 2014, Plaintiff presented Claimant, who was nineteen weeks old, to the emergency room for fever and vomiting. Tr. at 185. Examination showed that Claimant was active, well-hydrated, well-appearing, alert and interactive. Id. at 186. Her physical examination was normal as she moved all four extremities, had a normal heart rate and clear breath sounds, and was neurologically intact. Id. Oral thrush and nasal congestion were noted. Id. She was diagnosed with an upper respiratory infection and oral thrush and prescribed medication. Id.

         On July 18, 2014, Plaintiff presented Claimant, who was six months old, to Dr. Kiefer, a pediatrician. ECF Dkt. #10 (“Tr.) at 178, 229. Plaintiff reported to Dr. Kiefer that a prior doctor told her that Claimant may have cerebral palsy and she had been worried and upset ever since. Id. at 178, 230. Plaintiff asked if Dr. Kiefer would order a number of tests for Claimant, including a MRI. Id. Dr. Kiefer advised that Plaintiff should not jump to conclusions about cerebral palsy because many factors for such a diagnosis do not manifest until an infant is older. Id. He also told her that such a diagnosis cannot be made until a thorough examination was performed by a pediatric neurologist. Id.

         Dr. Kiefer examined Claimant and found that she had no skin lesions, normal head circumference, normal eye appearance, normal ear, nose and throat examination, no neck stiffness or abnormal range of motion, normal breath sounds, normal heart sounds, normal abdominal exam, normal spine curvature, normal extremities, and normal neuromuscular examination, except for some mild stiffness in her muscle tone. Tr. at 180. Dr. Kiefer assessed Claimant with normal growth, ...


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