Karie Young v. SSA 13-CV-024-SM 2/25/14 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Karie Young, on behalf of her son, A . Y ., Claimant
v. Case No. 13-cv-024-SM Opinion No. 2014 DNH 035 Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Respondent
O R D E R
Karie Young ("claimant") moves to reverse the Commissioner's
denial of her son's application for children's Supplemental
Security Income benefits. See 42 U.S.C. § 405(g) (the "Act").
In support of that motion, Ms. Young says the Administrative Law
Judge ("ALJ") erred in concluding that her son's impairments do
not functionally egual a listed impairment. The Commissioner
objects and moves for an order affirming her decision.
For the reasons set forth below, the Commissioner's motion
for an order affirming her decision is granted, and the
claimant's motion to reverse is denied. Factual Background
I. Procedural History.
Claimant's son, A.Y., was born on June 2, 2004. In May of
2010, claimant filed an application for Supplemental Security
Income ("SSI") benefits on his behalf, alleging that he was
disabled from birth. Subseguently, she amended the date of his
alleged onset of disability to May 19, 2010 (at which time A.Y.
was nearly six years old). When that application was denied,
claimant reguested a hearing before an ALJ.
On June 9, 2011, a hearing was held before an ALJ, at which
claimant appeared (via video conference) and testified. Two
weeks later, the ALJ issued a written decision, concluding that
A.Y. was not "disabled" within the meaning of the Act and denying
his application for benefits. The ALJ's decision became final
(and subject to appeal) when the Appeals Council denied
claimant's reguest for review. She then filed this timely appeal
and, in due course, a "Motion to Reverse" the Commissioner's
decision denying benefits (document no. 8). The Commissioner
objected and filed a "Motion for Order Affirming the Decision of
the Commissioner" (document no. 10). Those motions are pending.
2 II. Stipulated Facts.
Pursuant to Local Rule 9.1(d), the parties have submitted a
comprehensive statement of stipulated facts which, because it is
part of the court's record (document no. 13), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. Properly Supported Factual Findings by the ALJ are Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing." Factual findings and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence. See 42 U.S.C. §§ 405(g),
1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial
evidence is "such relevant evidence as a reasonable mind might
accept as adeguate to support a conclusion." Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938) . It is something less than
a preponderance of the evidence, so the possibility of drawing
two inconsistent conclusions from the evidence does not prevent
an administrative agency's finding from being supported by
3 substantial evidence. Consolo v. Federal Maritime Comm'n., 383
U.S. 607, 620 (1966). See also Richardson v. Perales, 402 U.S.
389, 401 (1971).
II. Entitlement to Children's Disability Benefits.
With regard to children's disability benefits, the Act
provides, in pertinent part, that:
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental 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.
42 U.S.C. § 1382c(a)(3)(C)(i). See also 20 C.F.R. § 416.92 4.
In evaluating a child's application for SSI benefits, an ALJ
must engage in a three-part inguiry and determine: (1) whether
the child is engaged in substantial gainful activity; and, if
not, (2) whether the child has an impairment or combination of
impairments that is severe; and, if so, (3) whether the child's
impairment meets, medically eguals, or functionally eguals an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of
the regulations. See 20 C.F.R. §§ 416.924(b)- (d).
4 If, at the third step of the analysis, the ALJ determines
that the child's impairment neither meets nor medically equals1 a
listed impairment, he or she must then consider whether the
child's impairment "results in limitations that functionally
equal the listings." 20 C.F.R. § 416.926a(a). An impairment
"functionally equals" the listings if it results in "marked"
limitations in two domains of functioning, or if it results in an
"extreme" limitation in one domain. I_d. The six domains of
functioning in which the child's abilities are assessed 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 one's self; and (6)
health and physical well-being. 20 C.F.R. § 416.926a(b)(1).
An "extreme" limitation is one that "interferes very
seriously with [the child's] ability to independently initiate,
sustain, or complete activities. ... 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." 20 C.F.R. § 416.926a(e)(3). Consequently, an "extreme"
limitation would, generally speaking, place the child in the
lowest one percent (1%) of functioning in that domain for the
1 An impairment "medically equals" a listing if "it is at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 416.926(a).
5 child's age group. Here, claimant does not assert that her son
suffers from an extreme limitation in any domain.
A "marked" limitation is one that "interferes seriously with
[the child's] ability to independently initiate, sustain, or
complete activities. . . It is the eguivalent 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." 20 C.F.R. § 416.926a(e)(2). In other words, a
"marked" limitation would, generally speaking, place the child in
the lowest five percent (5%) of functioning in that domain for
the child's age group. It is, then, a substantial limitation.
Discussion
I. Background - The ALJ's Findings.
In concluding that A.Y. was not disabled within the meaning
of the Act, the ALJ properly employed the mandatory three-step
evaluation process described in 20 C.F.R. § 416.924.
Accordingly, he first determined that A.Y. had not been engaged
in substantial gainful activity since his alleged onset date - an
unremarkable finding given A.Y.'s age. Next, the ALJ concluded
that the medical evidence of record indicates that A.Y. suffers
from a "severe" impairment: asthma. Admin. Rec. at 16.
6 At the third and final step of the sequential analysis,
however, the ALJ concluded that A.Y. does not have an impairment
or combination of impairments that meets or medically equals one
of the impairments listed in the pertinent requlations, nor does
he have an impairment or combination of impairments that
functionally equals a listed impairment. Accordinqly, he
concluded that A.Y. has not been disabled since his alleqed onset
date of May 19, 2010.
All acknowledqe that A.Y., now aqed nine, suffers from
severe asthma and allerqies - his numerous trips to the emerqency
room alone support that conclusion. And, at least on this
record, it seems his condition is exacerbated by inadequate
attention paid by his parents to repeated admonishments,
includinq that they reduce his exposure to dust in the home,
carefully monitor his diet, and, at a minimum, stop smokinq in
the house and automobile. See, e.g.. Admin. Rec. at 522 (warning
claimant as early as February, 2007 of the "absolute need for
[A.Y.] to stay away from both environmental allergens as well as
food allergens."); 521 ("Mom finally did admit to the fact that
when she is not around dad will feed him almost any type of food
and does not follow the allergy list most of the time."); 742 (as
of March, 2011, claimant reported that she and her husband had
stopped smoking in home only within past week and, despite
7 testing done two years earlier that revealed A.Y.'s allergy to
dogs, she disclosed that the family dog was still present in
home). See also Id. at 133, 197, 203, 549, 551, and 568).
There is also evidence of failure to attend various follow-
up medical appointments, as well as non-compliance with
administering some prescribed medications. See, e.g.. Id. at 451
and 551. See generally Tsarelka v. Secretary of Health & Human
Services, 842 F.2d 529, 534 (1st Cir. 1988) (noting that absent
good cause, a claimant will not be found disabled if he or she is
not compliant with prescribed treatment) (citing 20 C.F.R. §
404.1530); Irlanda Ortiz, 955 F.2d at 770 ("Social Security
regulations specifically provide that to gualify for benefits a
claimant must follow prescribed treatment.").
The ALJ appears to have been sufficiently troubled by that
evidence to note that:
DCYF [i.e.. New Hampshire's Department of Health and Human Services, Division of Children, Youth and Families] were involved [because of] freguent emergency room use and poor compliance. . . [C]laimant's level of impairment would be much better controlled if medical compliance were followed, given that claimant has shown that he can improve with better control of the allergen[s] in his environment (Exhibit 4F).
Admin. Rec. at 18. II. Claimant's Challenge to the ALJ's Adverse Decision.
Claimant agrees with the ALJ's conclusions that A.Y.'s
asthma is a "severe impairment," Admin. Rec. at 16, and that he
"has [a] marked limitation in health and physical well-being,"
id. at 25. She challenges his decision on two grounds. First,
she claims the ALJ erred in concluding that A.Y.'s asthma does
not meet or medically egual a listed impairment. Next, she
challenges the ALJ's conclusion that A.Y.'s asthma does not
functionally egual a listed impairment - specifically, the ALJ's
finding that A.Y. suffers from "less than marked" limitations in
two particular domains of functioning: (a) attending and
completing tasks; and (b) moving about and manipulating objects.
A. Meeting or Medically Egualing The Listed Impairment.
In support of her claim that the ALJ erred in failing to
find that A.Y.'s asthma meets or medically eguals a listed
impairment (Listing 103.03 - "Asthma"), claimant says the ALJ's
contrary conclusion is inadeguately supported and "conclusory."
The court disagrees.
The relevant regulations define the listing level of
impairment due to asthma as follows: A. FEV! equal to or less than the value specified in table I of 103.02A2; or
B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks; or
C. Persistent low-grade wheezing between acute attacks or absence of extended symptom-free periods requiring daytime and nocturnal use of sympathomimetic bronchodilators with one of the following:
1. Persistent prolonged expiration with radiographic or other appropriate imaging techniques evidence of pulmonary hyperinflation or peribronchial disease; or
2. Short courses of corticosteroids that average more than 5 days per month for at least 3 months during a 12-month period; or
D. Growth impairment as described under the criteria in 10 0.00.
20 C.F.R. P t . 404, Subpt. P, Ap p . 1, § 103.03 (emphasis
supplied). Although claimant asserts A.Y.'s asthma meets the
criteria listed in both section 103.03B and 103.03C, she fails to
develop that argument in any detail. See Claimant's memorandum
(document no. 8) at 4. Aside from simply summarizing A.Y.'s
medical history, she has failed to point to specific evidence
2 FEV1 is the volume that has been exhaled at the end of the first second of a forced expiration of air from the lungs.
10 that meets the requirements of those sections (e.g., at least
three months in a one year period during which A.Y. was
prescribed corticosteroids for an average of at least five days).
See Admin. Rec. at 184-86. To the extent she relies upon the
report from A.Y.'s first grade teacher, that evidence was
appropriately considered and taken into account by the ALJ. See
Admin. Rec. at 20, 172-79. Moreover, even if A.Y. did suffer the
number and frequency of asthma attacks required by section
103.03C, it is, for the reasons mentioned above, doubtful the ALJ
could have supportably found that A.Y. (or his guardians) were
compliant with prescribed treatment, as is required.
B. Functional Equivalency of the Listed Impairment.
In support of her position that A.Y.'s asthma "functionally
meets" a listed impairment, claimant relies upon a report
prepared by A.Y.'s kindergarten teacher and the school nurse.
Admin. Rec. at 127-34, and, more recently, a report prepared by
his first grade teacher, id. at 172-79.
While those reports certainly suggest that A.Y. has various
behavioral, communication, motor-function, and academic deficits,
they are not sufficient to undermine the ALJ's conclusion that
A.Y. is not "disabled" within the meaning of the Act -
particularly when those reports are viewed in light of the entire
11 record. Nor do those reports undermine the ALJ's conclusion that
A.Y. suffers from less than marked limitations in the two domains
of functioning at issue in this case. See generally 20 C.F.R. §
416.926a(h) (describing the factors considered when assessing an
individual's ability to attend and complete tasks); 20 C.F.R. §
416.926a(j) (describing the factors considered when assessing an
individual's ability to move about and manipulate objects).
The ALJ adeguately supported his conclusions that the
severity of the behaviors, signs, and symptoms described by
A.Y.'s teachers and the school nurse are not of a magnitude
sufficient to establish that A.Y. suffers from a "marked
limitation" - that is, one that would place A.Y. "at least two
. . . standard deviations below the mean," 20 C.F.R. §
416.926a(e)(2), or, more generally speaking, in the lowest five
percent (5%) of functioning in that domain for his age group.
And, because those conclusion are supported by substantial
evidence in the record, there is not a basis to reverse or vacate
them.
Finally, claimant asserts that the ALJ erred by discounting
the professional medical opinion of Dr. Diana Dorsey, a non
examining state agency physician. In her report. Dr. Dorsey
concluded that while A.Y. has a severe impairment, it does not
12 "meet, medically equal, or functionally equal the listings."
Admin. Rec. at 509. At issue here are Dr. Dorsey's conclusion
that A.Y. has no limitation in the domain of "attending and
completing tasks," and her conclusion that he has no limitation
in the domain of "moving about and manipulating objects." iId. at
511-12 .
As to those two aspects of Dr. Dorsey's report, the ALJ
discounted Dr. Dorsey's opinion - apparently because he
recognized that, when she prepared her report. Dr. Dorsey did not
have the benefit of the statements that were subsequently
submitted by A.Y.'s teachers. Accordingly, the ALJ concluded
that rather than "no limitation" in those two domains, A.Y. has
some, but "less than marked," limitations. In support of that
conclusion, he specifically referenced the statements submitted
by A.Y.'s teachers.
Parenthetically, the court notes what is likely self-
evident: although she criticizes the ALJ's decision to discount
portions of Dr. Dorsey's expert report, claimant does not
actually embrace Dr. Dorsey's opinions. In fact, she disagrees
with almost all of them. Her argument is a technical one:
because she says the ALJ improperly discounted Dr. Dorsey's
opinions, and because she says his ultimate conclusions were
13 insufficiently grounded in other medical evidence, she asserts
that the ALJ was left without any medical basis for his
conclusions. See Claimant's Reply Brief (document no. 12) at 5
("Having rejected Dr. Dorsey's opinion on this issue, the ALJ was
left with no medical basis at all."). Claimant's argument is,
however, inconsistent with her own position on this matter.
While she argues that the teachers' reports provide an
insufficient basis from which to conclude that A.Y. suffers from
less than marked limitations (the ALJ's finding), she also argues
that those same reports provide an adeguate basis from which to
conclude that he suffers from marked limitations (her view of the
evidence).
Moreover, reports from a child's teachers are precisely the
type of evidence that an ALJ is encouraged to consider when
assessing a child's limitations in the six different functional
domains. See, e.g.. Social Security Ruling, Considering Opinions
and Other Evidence From Sources Who Are Not "Acceptable Medical
Sources" in Disability Claims, SSR 06-3p, 2006 WL 2329939 (Aug.
9, 2006). Because he adeguately explained his decision to do so,
the ALJ did not err in giving greater weight to the opinions of
A.Y.'s teachers than he did to the opinion of Dr. Dorsey with
regard to the two domains of inguiry at issue.
14 Conclusion
The ALJ's conclusion that A.Y.'s asthma did not meet or
medically equal the severity of the impairments described in the
regulations at listing 103.03 ("Asthma") is supported by
substantial evidence in the record. So, too, are his conclusions
with regard to the level of A.Y.'s limitations in each of the six
relevant domains of functioning. The ALJ surveyed and adequately
discussed A.Y.'s medical and non-medical history, and he
supportably concluded that A.Y. does not suffer from a "marked
limitation" in two or more of the domains of functioning.
Consequently, having carefully reviewed the administrative
record and the arguments advanced by both the Commissioner and
Ms. Young, the court concludes that there is substantial evidence
in the record to support the ALJ's determination that A.Y. was
not disabled at any time prior to the date of his decision. For
the foregoing reasons, as well as those set forth in the
Commissioner's memorandum, claimant's motion to reverse the
decision of the Commissioner (document no. 8_) is denied, and the
Commissioner's motion to affirm her decision (document no. 10) is
granted. The Clerk of the Court shall enter judgment in
accordance with this order and close the case.
15 SO ORDERED.
McAulitfe Jnited States District Judge
February 25, 2014
cc: Francis M. Jackson, Esq. Karen B. Fitzmaurice, Esq. Robert J. Rabuck, Esq.