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Manzares ex rel. Her Son Devargas v. Berryhill

United States District Court, D. New Mexico

February 15, 2018

MARIE MANZANARES EX REL HER SON ZEKIEAL DIEGO DEVARGAS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 11-1)[2] filed February 10, 2017, in connection with the Motion to Reverse and Remand for a Rehearing with Supporting Memorandum filed April 24, 2017, by Plaintiff Marie Manzanares (Doc. 17.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds that Plaintiff's motion is well taken and shall be GRANTED.

         I. Background and Procedural Record

         Plaintiff Marie Manzanares's son, Zekieal Devargas (“ZD”), was born in 2004 and was, therefore, at all relevant times a school-age child. (Tr. 19.) On July 11, 2012, Plaintiff protectively filed an application on ZD's behalf for supplemental security income (SSI) benefits under title XVI of the Social Security Act, 42 U.S.C. Section 1381 through 1381c, claiming that ZD was disabled as of February 24, 2011, at the age of six, because of attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD).[3] (Tr. 57, 147, 175, 179.) Plaintiff's application was denied at the initial level (Tr. 57-66), and at the reconsideration level (Tr. 67-76). Upon Plaintiff's request, Administrative Law Judge (ALJ) Ann Farris held a hearing on January 27, 2015. (Tr. 16.) Plaintiff and ZD appeared in person at the hearing with attorney representative Michael Armstrong. (Tr. 33.) ALJ Farris took testimony from ZD (Tr. 37-45), from Plaintiff (Tr. 45-51), and from ZD's grandmother, Sylvia Martinez (Tr. 51-54). In a written decision issued on May 26, 2015, ALJ Farris found that ZD was not “disabled” as that term is defined in the Social Security Act. (Tr. 13-28.) On July 25, 2006, the Appeals Council denied Plaintiff's request for review, rendering ALJ Farris's May 26, 2015, decision the final decision of the Commissioner of the Social Security Administration (Defendant). (Tr. 1-3.) Plaintiff timely filed a complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         On appeal, Plaintiff argues that ALJ Farris erred in two respects: (1) by rejecting the medical opinion of treating psychiatrist William Johnson, M.D.; and (2) by failing to adequately address the medical assessment of State agency examining psychological consultant Robert Krueger, Ph.D. (Doc. 17 at 1.) Plaintiff argues these failures constituted harmful error because it led ALJ Farris to the erroneous conclusion that ZD's impairments were not functionally equivalent to an impairment listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. which, in turn, led her to conclude that ZD was not disabled. (Doc. 17 at 3, 24, 26.)

         II. Applicable Law

         A. Standard of Review

         The Court reviews the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). A decision is based on substantial evidence where it is supported by “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Further, the decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). In undertaking its review, the Court may not “reweigh the evidence” or substitute its judgment for that of the agency. Langley, 373 F.3d at 1118.

         B. Standards Governing Childhood Disability Determination

         A child under the age of eighteen is considered “disabled” if he “has a medically determinable . . . mental impairment, which results in marked and severe functional limitations, and which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(C)(i). The Social Security Administration follows a three-step inquiry to determine whether a child is disabled. 20 C.F.R. § 416.924(a).

         At step one, the ALJ must determine whether the child is doing “substantial gainful activity.” 20 C.F.R. § 416.924(b). If the child is not doing substantial gainful activity, the ALJ proceeds to step two. Id. At step two, the ALJ must determine whether the child has one or more “severe” “medically determinable impairment(s).” 20 C.F.R. § 416.924(a), (c). If so, the ALJ proceeds to the next step. Id. At step three, the ALJ must determine whether the child's impairments meet, medically equal, or functionally equal[4] the Listings of Impairments contained in 20 C.F.R pt. 404, subpt. P., App. 1. 20 C.F.R. § 416.924(d); Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014.).

         To “functionally equal” a listed impairment, the child must have an impairment that results in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a). The relevant domains of functioning are: (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 yourself, and (6) health and physical well-being. 20 C.F.R. § 416.926a(b). In examining functional equivalence, the ALJ must “assess the interactive and cumulative effects of all of the [child's] impairments” including those that are not “severe” to determine how the impairments affect the child's activities-meaning everything he does at home, at school, and in the community. 20 C.F.R. § 416.926a(a), (b). The ALJ must consider how appropriately, effectively, and independently the child performs his activities as compared with children of the same age who do not have impairments. 20 C.F.R. § 416.926a(b).

         Two domains of functioning are relevant to the Court's analysis: acquiring and using information, and attending and completing tasks. “Acquiring and using information” pertains to how well the claimant is able to “acquire or learn information, and how well [he uses] the information [he has] learned.” 20 C.F.R. § 416.926a(g). School age children, such as ZD, “should be able to learn to read, write, and do math, and discuss history and science.” 20 C.F.R. § 416.926a(g)(2)(iv). They should also “be able to use increasingly complex language (vocabulary and grammar) to share information and ideas with individuals or groups, by asking questions and expressing [their] own ideas, and by understanding and responding to the opinions of others.” Id.

         “Attending and completing tasks” pertains to how well the claimant is “able to focus and maintain [his] attention, how well [he] begin[s], carr[ies] through, and finish[es] [his] activities, including the pace at which [he] perform[s] activities and the ease with which [he] change[s] them.” 20 C.F.R. § 416.926a(h). A child in ZD's age group “should be able to focus [his] attention in a variety of situations in order to follow directions, remember and organize [his] school materials, and complete classroom and homework assignments.” 20 C.F.R. § 416.926a(h)(2)(iv). He “should be able to concentrate on details and not make careless mistakes in [his] work (beyond what would be expected in other children [of the same] age who do not have impairments).” Id. He “should be able to change [his] activities or routines without distracting [himself] or others, and stay on task and in place when appropriate.” Id. He “should be able to sustain [his] attention well enough to participate in group sports, read by [himself], and complete family chores.” Id. And he should “be able to complete a transition task (e.g. be ready for the school bus, change clothes after gym, change classrooms) without extra reminders and accommodation.” Id.

         An ALJ should find that a child has a “marked” limitation in one of these domains if his impairment: “[i]nterferes seriously with [his] ability to initiate, sustain, or complete activities” regardless of whether the impairment limits only one activity or whether the interactive and cumulative effects of the child's impairments limit several activities. 20 C.F.R. § 416.926a(e)(2)(i). A “marked” limitation is one that is “more than moderate, but less than extreme”; and “is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two . . . standard deviations below the mean.” Id. An ALJ must find that a child has a marked limitation if, on a standardized test designed to measure ability or functioning in a particular domain, the child's score is two standard deviations below the mean and that score is consistent with his daily functioning in the relevant domain. 20 C.F.R. § 416.926a(e)(2)(iii).

         An ALJ should find that a child has an “extreme” limitation in a particular domain when his impairment interferes “very seriously” with his “ability to independently initiate, sustain, or complete activities” regardless of whether the impairment limits only one activity or whether the interactive and cumulative effects of the child's impairments limit several activities. 20 C.F.R. § 416.926a(e)(3)(i). A limitation is extreme if it is “more than marked”; and, though it is reserved for the “worst limitations[, ]” it “does not necessarily mean a total lack or loss of ability to function.” Id. An ALJ must find that a child has an extreme limitation if, on a standardized test designed to measure ability or functioning in a particular domain, the child's score is three standard deviations below average and that score is consistent with his daily functioning in the relevant domain. 20 C.F.R. § 416.926a(e)(3)(iii).

         As stated in the regulations defining the terms “marked” and “extreme, ” standardized test scores are a factor that an ALJ may consider in determining a child's limitations in the relevant domains of functioning. However, “[n]o single piece of information taken in isolation can establish whether” the child's limitations in a particular domain are marked or extreme. 20 C.F.R. § 416.926a(e)(4)(i). Thus, the ALJ may not rely on any test score alone. Id. Instead, the ALJ should consider the child's test scores together with other information about his functioning, including “reports of classroom performance and the observations of school personnel and others.” 20 C.F.R. § 416.926a(e)(4)(ii). As an example, a child may have IQ scores that are higher than two or three standard deviations below average, but if other evidence in the record shows that an impairment causes him to function in school, at home, and in the community far below his expected level of functioning, his impairment may be “marked” or “extreme” despite his IQ score. 20 C.F.R. § 416.926a(e)(4)(ii)(A). Further, as a general rule, the ALJ should not rely on a test score as a measurement of the child's functioning within a domain when the record contains other information about the child's functioning that is typically used by medical professionals to measure day-to-day functioning. 20 C.F.R. § 416.926a(e)(4)(iii)(B).

         III. Analysis

         As noted above, the Social Security Administration follows a three-step inquiry to determine whether a child is disabled. 20 C.F.R. § 416.924(a). ALJ Farris's analysis of the first two steps is not at issue here. ZD, who was ten years old when ALJ Farris issued her decision, was not involved in “substantial gainful activity.” (Tr. 19.) And ZD's impairments-ADHD, conduct disorder, and ODD were shown by “longitudinal evidence” to “impose more than minimal limitations on [his] ability to function at home and [at] school, ” and were accordingly “severe.” (Tr. 19.) The parties' arguments and the Court's discussion are centered, instead, on the third step.

         At the third step of the analysis, ALJ Farris found that ZD had a “marked” limitation in the domain of interacting and relating with others, and “less than marked” or “no limitation” in the other domains of functioning. (Tr. 23-28.) Accordingly, ALJ Farris concluded that ZD does not have an impairment or combination of impairments that functionally equals the severity of the listings. (Tr. 19.) See 20 C.F.R. § 416.926a(a) (stating that a child must have an impairment that results in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain to be considered disabled ...


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