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Yisrael v. Commissioner of Social Security

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

June 25, 2019

KE'MOGENA YISRAEL, on behalf of minor child, T.D., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Plaintiff Ke' Mogena Yisrael filed this Social Security appeal in order to challenge the Defendant's finding that her minor child (hereinafter “TD”) is no longer disabled. See 42 U.S.C. §405(g). Proceeding through counsel, Plaintiff argues that the ALJ erred in finding medical improvement that resulted in the discontinuation of her son's SSI benefits. The Commissioner filed a response, to which Plaintiff filed no reply. As explained below, the ALJ's finding of non-disability should be AFFIRMED, because it is supported by substantial evidence in the administrative record.

         I. Background

         In 2012, Plaintiff's son TD was determined to be disabled, beginning at the age of 2 years and 9 months old, based upon “extreme” limitations in interacting and relating with others, and stemming from TD's “severe speech delay and severe phonological disorder.” (Tr. 65-68). When a child is determined to be disabled, the Commissioner is required to periodically review whether the child continues to be eligible for benefits. 42 U.S.C. § 1382c(a)(H)(ii)(I). Two days shy of TD's seventh birthday, on May 29, 2014, the Social Security Agency conducted that review. The agency determined that TD's condition had improved, such that he was no longer disabled as of May 1, 2014. The non-disability determination was upheld upon reconsideration after a hearing before a State agency Disability Hearing Officer. Thereafter, Plaintiff requested a hearing de novo before an Administrative Law Judge (“ALJ”).

         A brief evidentiary hearing was begun on September 22, 2016 before ALJ Robert Flynn, but was continued in order to allow Plaintiff to submit additional evidence as well as for her to find counsel. (Tr. 54-64). On May 9, 2017, ALJ Flynn reconvened the hearing. Represented by counsel, Plaintiff and TD both appeared, and Plaintiff offered testimony about her son's limitations. (Tr. 33- 53). On August 11, 2017, ALJ Flynn denied TD's SSI application in a written decision, concluding that his disability had ended as of May 1, 2014 and that he had not again become disabled after that date. (Tr. 11-27). The Appeals Council denied Plaintiff's request for further review, leaving the ALJ's decision as the final decision of the Commissioner.

         The previously favorable disability decision, known as the “comparison point decision” (“CPD”), dated April 26, 2012, listed the following medically determinable impairments: “mixed receptive-expressive language disorder; speech apraxia; a reading disorder; a learning disorder/attention deficit and hyperactivity disorder (ADHD); an anxiety disorder; and borderline intellectual functioning.” (Tr. 14-15). Together, TD's impairments were determined to functionally equal a Listing based upon a determination that, as of the date of the CPD, TD suffered from “extreme” limitation in the area of interacting and relating with others. (Tr. 15). Since an “extreme” limitation in any single functional domain results in a presumption of disability, the CPD did not evaluate the level of TD's limitation in any other functional domain.

         ALJ Flynn determined that as of May 1, 2014, there had been a decrease in the medical severity of TD's impairments. Specifically, the ALJ determined that speech therapy records and diagnostic studies alike demonstrated “the claimant has made significant medical improvement in his speech and language abilities since the CPD.” (Tr. 15). Therefore, the ALJ found that TD had improved in the area of “interacting and relating with others” from his original “extreme” limitation, despite continuing to exhibit a “marked” level of limitation. In three additional functional areas, the ALJ found “less than marked limitation, ” and in two areas, the ALJ found no limitation at all. Because the ALJ determined that TD no longer has any “extreme” limitation, and based on his additional determination that TD continues to exhibit only one area of “marked” limitation, the ALJ concluded that TD was no longer under any disability, as defined in the Social Security Regulations. (Tr. 26-27).

         On appeal to this Court, Plaintiff argues that substantial evidence does not exist to uphold the ALJ's findings that TD has only a single area of “marked” limitation, and is no longer disabled. I disagree.

         II. Analysis

         A. Standard of Review

         To be eligible for benefits, a claimant must be under a “disability” within the definition of the Social Security Act. See 42 U.S.C. §1382c(a). An individual under the age of eighteen will be considered to be under a disability if the child has a medically determinable impairment which results in marked and severe functional limitations, and which can be expected to result in death, or which has lasted, or can be expected to last, for a continuous period of not less than 12 months. See 42 U.S.C. §1382c(a)(3)(C)(i). The implementing regulations define the standard of “marked and severe functional limitations” in terms of “listing-level severity.” See 20 C.F.R. §§416.902, 416.906, 416.924a, 416.926.

         When a court is asked to review the Commissioner's denial of benefits, the court's first inquiry is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation omitted). In conducting this review, the court should consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, then that finding must be affirmed, even if substantial evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. . .. The substantial evidence standard presupposes that there is a ‘zone of choice' within which the Secretary may proceed without interference from the courts. If the Secretary's decision is supported by substantial evidence, a reviewing court must affirm.

Id. (citations omitted).

         In considering whether a person under the age of 18 continues to be disabled for purposes of receipt of SSI, the Social Security Agency is guided by a three-step sequential benefits analysis. At Step 1, the ALJ must determine whether medical improvement has occurred in the impairments present at the CPD. 20 C.F.R. § 416.994a(b)(1). Medical improvement is defined as any decrease in the medical severity of impairment(s) present at the CPD. 20 C.F.R. § 416.994a(c). At Step 1, Plaintiff does not dispute that TD has experienced some level of medical improvement in his conditions.

         At Step 2, if the CPD was based on functional equivalence to the Listings as here, the ALJ considers whether the same impairment(s) considered at the CPD continue to functionally equal any Listing. 20 C.F.R. § 416.994a(b)(2). If not, the ALJ proceeds to Step 3. At Step 3, the ALJ must determine whether the child is currently disabled, considering all the impairments that the child currently ...


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