United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
Deborah Ann Ferguson brings this action pursuant to 42 U.S.C.
§ 405(g) for judicial review of the final decision of
the Commissioner of Social Security (Commissioner) denying
plaintiffs application for Child's Disability Insurance
Benefits (DIB). This matter is before the Court on plaintiffs
Statement of Errors (Doc. 11), the Commissioner's
response in opposition (Doc. 16), and plaintiffs reply (Doc.
was born in 1956 and turned 22 in January 1978. She has a
high school education. She has not worked in competitive
employment in the relevant past. Plaintiff filed her
application for DIB in May 2015, alleging disability since
her birth due to Incontinentia Pigmenti - unusual skin
pigmentation; health issues related to developmental
abnormalities and congenital deformities; and breathing
complications. The application was denied initially and upon
reconsideration. Plaintiff then requested and was granted a
de novo hearing before administrative law judge
(ALJ) Mark Hockensmith. On September 6, 2017, the ALJ issued
a decision denying plaintiffs DIB application. Plaintiffs
request for review by the Appeals Council was denied, making
the decision of the ALJ the final administrative decision of
Legal Framework for Disability Determinations
benefits based on disability are provided for under 42 U.S.C.
§ 402(d). A claimant may be entitled to DIB if she is at
least 18 years old and has a disability that began before she
turned 22 years old. 20 C.F.R. § 404.350(a)(5). See
also Miller v. Shalala, 859 F.Supp. 297, 298 (S.D. Ohio
1994) (quoting 42 U.S.C. § 402(d)(1)(B)(ii)) (a
requirement for DIB is that the claimant be "under a
disability . .. which began before [s]he attained the age of
22. ."). To qualify for DIB, a claimant must suffer from
a medically determinable physical or mental impairment that
can be expected to result in death or that has lasted or can
be expected to last for a continuous period of not less than
12 months. 42 U.S.C. § 423(d)(1)(A). The impairment must
render the claimant unable to engage in the work previously
performed or in any other substantial gainful employment that
exists in the national economy. 42 U.S.C. § 423(d)(2).
establish eligibility for retroactive child's DIB, the
claimant must show that she "has been 'able to work
at the substantial gainful activity level'" as
defined under 20 C.F.R. § 404.1572. Cardew v.
Comm'r of Soc. Sec, 896 F.3d 742, 746 (6th
Cir. 2018). The claimant must make a showing of
"continuous disability" by establishing: (1) that
she "was disabled on or before [her] birthday (here, the
twenty-second birthday); and (2) that such disability
continue[d] to the date of the application."
Id. at 300 (citing Futernick v. Richardson,
484 F.2d 647 (6th Cir. 1973)). See also Baker v.
Bamhart, 101 Fed.Appx. 992, 993 (6th Cir. 2004)
("To satisfy the requirements of child insurance
benefits, [the claimant] must establish .. . that she was
disabled as a child or that she is disabled as an adult and
that she was continuously disabled from the date of her
twenty-second birthday . .. through the date that she applied
for benefits.") (citing 42 U.S.C. § 402(d)(1);
Futernick, 484 F.2d at 648).
promulgated by the Commissioner establish a five-step
sequential evaluation process for disability determinations:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically
determinable physical or mental impairment - i.e.,
an impairment that significantly limits his or her physical
or mental ability to do basic work activities - the claimant
is not disabled.
3) If the claimant has a severe impairment(s) that meets or
equals one of the listings in Appendix 1 to Subpart P of the
regulations and meets the duration requirement, the claimant
4) If the claimant's impairment does not prevent him or
her from doing his or her past relevant work, the claimant is
5) If the claimant can make an adjustment to other work, the
claimant is not disabled. If the claimant cannot make an
adjustment to other work, the claimant is disabled.
Rabbers v. Comm'r of Soc. Sec, 582 F.3d
647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the
burden of proof at the first four steps of the sequential
evaluation process. Id; Wilson v. Comm'r of
Soc. Sec, 378 F.3d 541, 548 (6th Cir. 2004). Once the
claimant establishes a prima facie case by showing an
inability to perform the relevant previous employment, the
burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that
such employment exists in the national economy.
Rubbers, 582 F.3d at 652; Harmon v. Apfel,
168 F.3d 289, 291 (6th Cir. 1999).
The Administrative Law Judge's Findings
applied the sequential evaluation process and made the
following findings of fact and conclusions of law:
1. [Plaintiff] was born [in].. . 1956. She attained age 22
[in] January 1978 (20 CFR 404.102 and 404.350(a)(5)).
2. [Plaintiff] did not perform substantial gainful activity
in the relevant past (20 CFR 404.1571, et seq.).
3. Prior to attaining age 22, [plaintiff] had the following
severe impairments: aberrant right subclavian artery, left
eye blindness, incontinentia pigmenti, slight developmental
delay (20 CFR 404.1520(c)).
4. Prior to attaining age 22, [plaintiff] did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. Prior to attaining age 22, [plaintiff] had the residual
functional capacity to perform a full range of work at all
exertional levels subject to the following non-exertional
limitations: (1) no climbing of ladders, ropes, or scaffolds;
(2) no work at unprotected heights or with dangerous
machinery; (3) no driving; (4) no requirement to read fine
print as a part of essential job duties; (5) no need for
peripheral vision as part of essential job duties; (6)
limited to simple, routine tasks; (7) limited to a static
work environment with few ...