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Duran v. Berryhill

United States District Court, D. New Mexico

March 26, 2019

ANGIE DURAN, on behalf of A.M.D., a minor,, 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. 15) filed May 1, 2018, in support of Plaintiff Angie Duran's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title XVI supplemental security income benefits on behalf of A.M.D. On July 27, 2018, Plaintiff filed her Motion to Reverse and Remand For Payment of Benefits, or in the Alternative, for Rehearing, With Supporting Memorandum (“Motion”). (Doc. 21.) The Commissioner filed a Response in opposition on September 10, 2018 (Doc. 23), and Plaintiff filed a Reply on October 10, 2018. (Doc. 24.) 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 the Motion is not well taken and is DENIED.

         I. Background and Procedural Record

         Plaintiff Angie Duran's daughter, A.M.D. (“A.M.D.”), was born on May 11, 2003, and was, therefore, at all relevant times a school-age child. (Tr. 14, 178.) On July 21, 2014, Plaintiff protectively filed an application on A.M.D.'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 A.M.D. was disabled as of July 14, 2014, at the age of eleven, because of ADHD, oppositional defiant disorder, obsessive compulsive disorder, depression and anxiety. (Tr. 68, 178-83.) Plaintiff's application was denied at the initial level (Tr. 68, 69-78, 93-96), and at reconsideration. (Tr. 79, 80-92, 101-04). On May 22, 2015, Plaintiff requested a hearing before an Administrative Law Judge. (Tr. 105-07.) On November 11, 2016, Administrative Law Judge James Linehan held a hearing. (Tr. 42-67.) Plaintiff and A.M.D. appeared in person at the hearing with attorney representative Michelle Baca.[2] (Id.) The ALJ took testimony from A.M.D. (Tr. 45-57), and from Plaintiff (Tr. 58-66). In a written decision issued on January 12, 2017, the ALJ found that A.M.D. was not “disabled” as that term is defined in the Social Security Act. (Tr. 8-29.) On November 28, 2017, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner of the Social Security Administration (Defendant). (Tr. 1-6.) Plaintiff timely filed a complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Standard of Review

         The Court reviews the Commissioner's decision to determine whether the ALJ's decision is free from legal error and supported by substantial evidence. 42 U.S.C. § 405(g); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 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 she “has a medically determinable physical or 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 engaged in “substantial gainful activity.” 20 C.F.R. § 416.924(b). If the child is not engaged in 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 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 she 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 her activities as compared with children of the same age who do not have impairments. 20 C.F.R. § 416.926a(b).

         The ALJ will determine that a child has a “marked” limitation in a domain when her “impairment(s) interferes seriously with [her] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.925a(e)(2)(i).

Marked limitation also means a limitation that is “more than moderate” but “less than extreme.” It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.

Id. The ALJ will find that a child has an “extreme” limitation in a domain when her “impairment(s) interferes very seriously with [her] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 417.926a(e)(3)(i).

“Extreme” limitation also means a limitation that is “more than marked.” “Extreme” limitation is the rating we give to the worst limitations. However, “extreme limitation” does not necessarily mean a total lack or loss of ability to function. It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean.

Id.

         Standardized test scores are a factor that an ALJ considers 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). The ALJ will consider test scores together with the other information about a child's 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 her to function in school, at home, and in the community far below her expected level of functioning, her impairment may be “marked” or “extreme” despite her 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

         The ALJ made his decision that A.M.D. was not disabled at step three of the sequential evaluation. (Tr. 15-29.) Specifically, the ALJ determined that A.M.D. had not engaged in substantial gainful activity since July 21, 2014, the application date. (Tr. 14.) He found that A.M.D. had severe impairments of attention deficit/hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), and learning disorder. (Id.) The ALJ determined, however, that A.M.D.'s impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 15.) As a result, the ALJ proceeded to step three and found that A.M.D. did not have an impairment or combination of impairments that functionally equals the severity of the listings. (Tr. 16-29.) Specifically, the ALJ determined that A.M.D. had a marked limitation in acquiring and using information, a less than marked limitation in attending and completing tasks, a less than marked limitation in interacting and relating with others, no limitation in moving about and manipulating objects, no limitation in caring for herself, and no limitation in health and physical well-being. (Id.)

         On appeal, Plaintiff argues that the ALJ (1) erred in his determination that A.M.D. had only one area of marked limitation and, in doing so, failed to properly weigh the teacher questionnaires and the results of the July 2014 neuropsychological evaluation which support marked limitations in the areas of attending and completing tasks, interacting and relating with others, and health and physical wellbeing; (2) improperly weighed Plaintiff's testimony; and (3) failed to consider the “whole child” and compare A.M.D. to non-disabled children. (Doc. 21 at 5-20.) For the reasons discussed below, the Court finds there is no reversible error.

         A. Relevant Evidence

         1. UNM Health Sciences Center - Neuropsychological Evaluation Report

         On July 14, 2014, A.M.D. presented to UNM Health Sciences Center on a referral from Patricia Engleman, CFNP, for a neuropsychological examination to assess her current level of functioning, to assist in differential diagnosis, and to make treatment recommendations. (Tr. 349-67.) Plaintiff explained to evaluator Elena Bettoli Vaughan, Ph.D., that A.M.D. exhibited a variety of impulsive, disruptive and emotional behaviors, including, inter alia, stealing, arguing, lying, fidgeting, and hoarding. (Tr. 349-50.) Plaintiff also reported that A.M.D. was easily distracted, interrupted others while talking, rushed through her schoolwork resulting in careless errors, and always struggled with reading, spelling and math. (Id.) Dr. Vaughan administered several standardized tests, including the Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV); Woodcock Johnson III (WJ-III) Tests of Achievement: Letter-Word Identification, Reading Fluency, Calculation, Math Fluency, Spelling, Passage Comprehension, and Word Attack subtests; and Comprehensive Test of Phonological Processing-Second Edition (CTOPP-2). (Tr. 352-66.) Dr. Vaughan also reviewed rating forms completed by Plaintiff and A.M.D.; i.e., the Behavior Assessment System for Children; Conners' 3 Parent Rating Scale; Children's Depression Inventory-Second Edition; and Multidimensional Anxiety Scale for Children. (Id.) Based on test scores and the rating forms, Dr. Vaughan's summary and impressions were as follows:

Current tests results indicated overall verbal and nonverbal intellectual abilities were average. Auditory working memory was average. Sustained attention was variable but characterized by impulsive responding. Processing speed was variable, ranging from low average to high average. Verbal and visual learning and memory were intact. Complex language skills were average. Visuospatial processing was average to high average; however, visuomotor integration was mild impaired. Relative to same grade peers, academic skills in reading, writing, and math were below expectations and indicated that [A.M.D.] would not be able to keep up with her peers without support. In particular, [A.M.D.] demonstrated mild to moderate impairments in math. She also demonstrated impairments in phonological processing and rapid naming, despite intact language skills, suggestive of dyslexia. Thus, based on a clinical history of significant difficulties learning to read and based on current test results, indicating impaired phonological processing and rapid naming, [A.M.D.'s] academic difficulties are consistent with the diagnosis of dyslexia or Specific Learning Disorder, with impairment in reading. Additionally, based on current tests results indicating mild to moderate impairments in math and based on observations of an impaired number sense, a diagnosis of Specific Learning Disorder, with impairment in mathematics, is also warranted.
[A.M.D.] has a history of inattentive and impulsive behaviors; based on parent report, parent behavior ratings indicating significant difficulties with ADHD, behavioral observations of impulsivity and inattention, and based on current test results, [A.M.D.] demonstrates behaviors consistent with ADHD, combined presentation. Additionally, based on a history of oppositional behaviors, parent report, self-report, and parent ratings suggesting significant oppositional behavior, a diagnosis of Oppositional Defiant Disorder was given. Lastly, a diagnosis of Hoarding Disorder was warranted based upon clinical history, parent and self-report, and elevated anxiety scales from parent and self-report rating forms.

(Tr. 355-56.) Dr. Vaughan recommended A.M.D. receive special education services, seek a neurology consult for potential sleep disorder and/or seizure activity, participate in counseling to address her emotional and behavioral difficulties, and consult with a child psychiatrist to determine whether psychopharmacological intervention would be helpful. (Tr. 356-59.)

         2. Individualized Education Programs

         Individualized Education Programs (“IEPs”) were prepared on A.M.D.'s behalf on July 31, 2014, May 15, 2015, and March 17, 2016. (Tr. 228-29, 259-68, 298-311.)

         On May 15, 2015, the IEP academic summary related to A.M.D.'s special education services in math indicated that A.M.D. was a “very nice young woman who is extremely smart. She picks up and learns new math concepts quickly and is willing to help other students with their work when the class is working in pairs.” (Tr. 260.) As for social work services, the IEP summarized that “[s]tudent participates in group, she is expressive about her situation and challenges with peers at school. Peer interactions are challenging for the student. Support for the student continues to be needed to help cope and make positive decisions.” (Id.) As for A.M.D.'s general education classes, her social studies teacher indicated that A.M.D. “interact[s] positively with the other kids. She will probably end up with a C, and she is pleasant and answers questions when asked”; her science teacher indicated that A.M.D. currently had a 74.5% in Earth Science, and that she was “cooperative and polite and enjoys the social aspects of school”; her language arts teacher reported that A.M.D. was not completing her work and was currently receiving an “F”; her music teacher reported that A.M.D. was passing with C- and that she was very social and outgoing; and her P.E. coach said that A.M.D. was doing well and that her grade was an A. (Tr. 261.) The IEP indicated that A.M.D. would continue to require social work services and specialized instruction in math. (Tr. 265.) She also needed certain accommodations in general education classes including frequent feedback, short distinctive directions, repeat/rephrase/simplification of directions/instructions, and checking for understanding of instructional words. (Tr. 264.)

         On March 17, 2017, the IEP academic summary related to A.M.D.'s special education services in math indicated that she was “doing really great in class, ” and was learning the curriculum quickly and moving forward. (Tr. 300.) As for her social work services, the IEP summarized that, inter alia, A.M.D. had been working in a social skills group to help her communicate her needs, wants, and feelings in a positive manner. (Id.) Her social worker reported that A.M.D. “is a bright individual who is a good role model to other students. She is always respectful.” (Tr. 301.) As for A.M.D.'s general education classes, her social studies teacher reported A.M.D. was an “awesome student, ” participated regularly, and worked better independently; her language arts teacher reported A.M.D. was an “awesome student - very kind, quiet and hardworking, ” and that she flourished when allowed to show her artistic and creative side, but “focuse[d] on any work given to her” and was “bright, respectful, and generous helping out others often”; her American Studies teacher reported that A.M.D. was “a positive and interested student, ” an “avid reader who often share[d] her independent studies, ” and although she sometimes loses focus, she was never disruptive or distracting; and her science teacher reported that A.M.D. was “very focused and driven to do well in class, ” and that she consistently turned in completed work without the need for extended deadlines. (Tr. 301.) The IEP indicated that A.M.D. would continue to require social work services and specialized instruction in math. (Tr. 307.) She also needed certain accommodations including extra time for assignments, clearly defined limits, re-direction to task, seated near the instructor, visual aids, short distinctive directions, and repeat/rephrase/simplify directions/instructions. (Tr. 305.)

         3. Teacher Questionnaires

         Jeanne Pahls, A.M.D.'s Special Education Case Manager, completed two Teacher Questionnaires in 2015 regarding A.M.D.'s functioning in the six domain areas.[3]

         a. January 15, 2015 Teacher Questionnaire

         (1) Attending and Completing Tasks

         In the area of attending and completing tasks, Ms. Pahls rated A.M.D. as having no problems in the areas of (1) paying attention when spoken to directly; (2) sustaining attention during play/sports activities; (3) focusing long enough to finish assigned activity or task; (4) refocusing to task when necessary; (5) carrying out single-step instructions; (6) waiting to take turns; (7) changing from one activity to another without being disruptive; (8) organizing own things or school materials; (9) completing work accurately without careless mistakes; and (10) working without distracting self or others. (Tr. 221.) She rated A.M.D. as having slight problems with (1) carrying out multi-step instructions; and (2) working at reasonable pace/finishing on time. (Id.) She rated A.M.D. as having a serious problem with completing class/homework assignments. (Id.) Ms. Pahls qualified the one serious rating, however, by commenting that “[A.M.D.] completes assignments in class but does not complete homework.” (Id.)

         (2) Interacting and Relating With Others

         In the area of interacting and relating with others, Ms. Pahls rated A.M.D. as having no problems with (1) playing cooperatively with children; (2) making and keeping friends; (3) seeking attention appropriately; (4) expressing anger appropriately; (5) asking permission appropriately; (6) following rules (classroom, games, sports); (7) respecting/obeying adults in authority; (8) relating experiences and telling stories; (9) using language appropriate to the situation and listener; (10) introducing and maintaining relevant and appropriate topics of conversation; (11) taking turns in a conversation; and (12) interpreting meaning of facial expression, body language, hints, and sarcasm. (Tr. 222.) Mr. Pahls rated A.M.D. as having slight problems with using adequate vocabulary and grammar to express thoughts/ideas in general, everyday conversation. (Id.) Ms. Pahls commented that “[A.M.D.] can be a little bossy toward others in class if other students are not doing what they are supposed to do.” (Id.)

         (3) Health and Physical Well-Being

         In the area of health and physical well-being, Ms. Pahls only noted that A.M.D. wears glasses and that A.M.D. does not frequently miss school due to illness. (Tr. 225.)

         b. March 16, 2015 Teacher Questionnaire

         (1) Attending and Completing Tasks

         In the area of attending and completing tasks, Ms. Pahls rated A.M.D. as having no problems in the areas of (1) paying attention when spoken to directly; (2) sustaining attention during play/sports activities; (3) focusing long enough to finish assigned activity or task; (4) refocusing to task when necessary; (5) carrying out single-step instructions; (6) waiting to take turns; (7) changing from one activity to another without being disruptive; (8) organizing own things or school materials; and (9) completing work accurately without careless mistakes. (Tr. 250.) She rated A.M.D. as having slights problems with (1) carrying out multi-step instructions; (2) working without distracting self or others; and (3) working at reasonable pace/finishing on time. (Id.) She rated A.M.D. as having an obvious problem with completing class/homework assignments. (Id.) Ms. Pahls commented that “[A.M.D.] did do better with 1-step directions. She could complete class assignments but not ...


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