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Bills v. Commissioner of Social Security

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

August 20, 2019

JAMECA BILLS, o.b.o., M.J.B., minor, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Michael H. Watson Judge

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Jameca Bills (“Plaintiff”), who is proceeding on behalf of her minor child, M.J.B., brings this action under 42 U.S.C. § 1382c(a)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying M.J.B.'s application for child's supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 10), the Commissioner's Memorandum in Opposition (ECF No. 15), and the administrative record (ECF No. 7). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff protectively filed an application for child's supplemental security income on behalf of M.J.B. on January 23, 2015. The application was denied initially on August 10, 2015, and on reconsideration on December 8, 2015. Subsequently, a hearing was held before Administrative Law Judge Jeffrey Hartranft (the “ALJ”) on August 3, 2017, at which Plaintiff and M.J.B., represented by counsel, appeared and testified. The ALJ issued a decision on February 26, 2018, denying benefits. (R. at 130-45.) On October 1, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision.

         Plaintiff filed the instant action on December 3, 2018. In her Statement of Errors, Plaintiff asserts that the ALJ failed to appropriately consider M.J.B.'s teacher questionnaires at step three of the sequential analysis and, as a result, erred in concluding that M.J.B.'s impairments do not functionally equal the listings. (ECF No. 10.)

         II. RELEVANT EVIDENCE

         A. Teacher Questionnaires

         Two unidentified sources from Graham Primary School completed teacher questionnaires on behalf of M.J.B. (R. at 683-98.) The first teacher (“Teacher 1”) stated that she has known M.J.B. for 19 months, and that she saw her 5 days each week, for all subjects. (R. at 683.) Teacher 1 stated that M.J.B. was in first grade, had a kindergarten reading level, and a first-grade math and written language level. Teacher 1 assessed M.J.B. in the relevant six domains of functioning. With respect to acquiring and using information, she opined that M.J.B. had an “obvious problem” comprehending oral instructions, understanding school and content vocabulary, providing organized oral explanations and adequate descriptions, learning new material, and recalling and applying previously learned material; a “very serious problem” reading and comprehending written material; “no problem” understanding and participating in class discussions; and a “slight problem” comprehending and doing math problems, expressing ideas in written form, and applying problem-solving skills in class discussions. (R. at 684.) When asked to provide additional information about M.J.B.'s problems with these activities, Teacher 1 simply stated, “[M.J.B.] receives services from an Intervention Specialist.” (Id.)

         With respect to attending and completing tasks, Teacher 1 opined that Plaintiff has a “very serious problem” with refocusing to task when necessary and working at reasonable pace/finishing on time; a “serious problem” focusing long enough to finish assigned activity or task, carrying out multi-step instructions, and waiting to take turns; “obvious problems” sustaining attention during play/sports activities, carrying out single-step instructions, changing from one activity to another without being disruptive, organizing own things or school materials, completing class/homework assignments, completing work accurately without careless mistakes, and working without distracting self or others; and a “slight problem” paying attention when spoken to directly. (R. at 685.)

         In the domain of interacting and relating with others, Teacher 1 found that Plaintiff has a “serious problem” seeking attention appropriately and expressing anger appropriately; a “slight problem” playing cooperatively with other children, asking permission appropriately, taking turns in a conversation, and interpreting meaning of facial expression, body language, hints, and sarcasm; and “no problem” making and keeping friends, following rules, respecting/obeying adults in authority, relating experiences and telling stories, using language appropriate to the situation and listener, introducing and maintaining relevant and appropriate topics of conversation, and using adequate vocabulary and grammar to express thoughts/ideas in everyday conversation. (R. at 686.) She stated that she can understand 1/2 to 2/3 of M.J.B.'s speech if the topic is known; no more than 1/2 if the topic is unknown, and that she can understand almost all of her speech, as a familiar listener, after repetition and/or rephrasing. (R. at 687.)

         Teacher 1 opined that M.J.B. has no problems in the domain of moving about and manipulating objects. (R. at 687.) In the domain of caring for herself, Teacher 1 opined that M.J.B. has a “very serious problem” handling frustration appropriately, being patient when necessary, responding appropriately to changes in her own mood, using appropriate coping skills to meet daily demands of school environment, and knowing when to ask for help; a “serious problem” identifying and appropriately asserting emotional needs; and “no problem” taking care of personal hygiene, caring for physical needs, cooperating in or being responsible for taking needed medications, and using good judgment regarding personal safety and dangerous circumstances. (R. at 688.) Teacher 1 also noted that M.J.B.'s functioning changes after taking medication. (R. at 689.)

         The second unidentified teacher (“Teacher 2”), stated that she saw M.J.B. for two years of first grade. (R. at 691.) Teacher 2 provided that M.J.B. was in first grade, had a kindergarten reading level, and a first-grade math and written language level. (Id.) Teacher 2 also assessed M.J.B.'s functioning in the relevant domains. Regarding acquiring and using information, Teacher 2 found that M.J.B. has a “very serious problem” reading and comprehending written material; a “serious problem” providing organized oral explanations and adequate descriptions; an “obvious problem” expressing ideas in written form, learning new material, recalling and applying previously learned material, and applying problem-solving skills in class discussions; a “slight problem” comprehending oral instructions, understanding school and content vocabulary, understanding and participating in class discussions, and expressing ideas in written form; and “no problem” comprehending and doing math problems. (R. at 692.) When asked to explain, Teacher 2 stated, “[t]he first year of first grade was a struggle completing tasks she needed a lot of support. The second year of first grade she has been better at recalling info; writing her ideas.” (R. at 692.)

         In the functional domain of attending and completing tasks, Teacher 2 found that M.J.B. has an “obvious problem” focusing long enough to finish assigned activity or task, refocusing to task when necessary, working without distracting self or others, and working at reasonable pace/ finishing on time; a “slight problem” paying attention when spoken to directly, carrying out multi-step instructions, waiting to take turns, organizing own things or school materials, completing class/ homework assignments, and completing work accurately without careless mistakes; and “no problem” sustaining attention during play/sports activities, carrying out single-step instructions, and changing from one activity to another without being disruptive. (R. at 694.) Teacher 2 explained that M.J.B. has “better attention this year, however gets distracted easily (example: glue on fingers- distracted peeling it until hands are washed).” (R. at 694.)

         With respect to interacting and relating with others, Teacher 2 found that M.J.B. has an “obvious problem” expressing anger appropriately; a “slight problem” playing cooperatively with other children and seeking attention appropriately; and “no problem” making and keeping friends, asking permission appropriately, following rules, respecting/obeying adults in authority, relating experiences and telling stories, using language appropriate to the situation and listener, introducing and maintaining relevant and appropriate topics of conversation, taking turns in a conversation, interpreting meaning of facial expressions, body language, hints, and sarcasm, and using adequate vocabulary and grammar to express thoughts/ideas in everyday conversation. (R. at 693.) Teacher 2 explained that M.J.B.'s “[b]ehavior is fine- just gets overly upset about things and takes awhile to calm down.” (R. at 693.)

         Teacher 2 found that Plaintiff has no problems in the domain of moving about and manipulating objects. In the domain of caring for herself, Teacher 2 found that Plaintiff has an “obvious problem” handling frustration appropriately, identifying and appropriately asserting emotional needs, responding appropriately to changes in own mood (e.g., calming self), and using appropriate coping skills to meet daily demands of school environment; a “slight problem” being patient when necessary; and “no problem” taking care of personal hygiene, caring for physical needs, cooperating in or being responsible for taking needed medications, using good judgment regarding personal safety and dangerous circumstances, and knowing when to ask for help. (R. at 696.) Teacher 2 explained that M.J.B. “gets upset sometimes and takes a little while to calm down, however big improvement from last year.” (R. at 696.) Teacher 2 also stated that M.J.B.'s functioning changes after taking medication. (R. at 697.)

         Additionally, on Plaintiff's 2016-2017 Report Card, an unidentified teacher left comments. For trimester 1, the teacher commented as follows:

It has been a pleasure watching [M.J.B.] learn and grow during this trimester. She participates eagerly and positively in class and is a great team player during group activities. She is a responsible worker that completes class assignments with care. In reading, she demonstrates a greater knowledge of letter/sound relationships by sounding out unfamiliar words and memorizing some high-frequency words. [M.J.B.] is still not meeting grade level expectations in reading and would benefit from continued individualized instruction in the classroom and reading at least 20 minutes each night at home. In math, she has learned to use different ...

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