Brown v. Commissioner of Social Security, No. 7:2018cv00158 - Document 17 (W.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 6/4/2019. (ck)
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R >' :oG lcE u.s.DlsI. COURT ATR- o% ,VA FILED JkN 2# 19 IN THE U NITED STA TES DISTRICT COURT F0R Tlœ W ESTERN DISTRICT OF VIRGN A ROANOKE DIVISION JU BY; D DLEY CLERK CLE TIFFAN Y BROW N ,o/b/o D .B .,a m inorchild, Plaintiff, CivilA ction N o.7;18CV00158 M EM O R ANDUM OPXG O N NA N CY A .BERRYHILL,A cting Com m issionerof SocialSecurity, By:H on.Glen E.Conrad SeniorUnited StatesD istrictJudge Defendant. PlaintiffTiffany Brown filed thisaction on behalfofherdaughter,D .B.,challenging the Gnal decision of the Comm issioner of Social Security denying plaintiffs claim for child's supplem ental security incom e benefts under Title X VI of the Social Security A ct,42 U.S.C. jj 1381-1383(d). Jurisdiction ofthiscourtisestablished pursuantto 42 U.S.C.j 1383(c)(3), whichincomoratesj205(g)oftheSocialSecurityAct,42U.S.C.j405(g). Asretlectedbythe m em oranda and argum entsubm itted by theparties,the issuesnow beforethe courtarewhetherthe Com m issioner's finaldecision is supported by substantialevidence,or whether there is S'good cause''to necessitate rem anding the case to the Com m issionerforfurtherconsideration. See 42 U.S.C.j405(g). On D ecem ber 9,2013,M s.Brown fled an application forchild's supplem entalsecurity incom e benefits on behalfofD .B.I In Gling the application,plaintiffalleged thatshe had been Brown v. Commissioner of Social Security Doc. 17 disabledsinceAugust1,2013,duetoattentiondeficithyperactivitydisorderIADHDI,emotional problems,and leaming difficulties. (Tr. 183). Plaintiffs claim was denied upon initial ' - b 1Forpurposesofconsistency andclarity,D. B.shallhereinaherbereferredtoastheplaintif inthiscmse. Dockets.Justia.com consideration and reconsideration. Shethen requested and received a 4:novoheari ngandreview . before an Adm inistrative Law Judge. ln an opinion dated April 18,2017,the Law Judge also concluded thatplaintiffisnotentitledto child's supplem entalsecurity incom ebenetks. TheLaw Judge found thatplaintiffsuffersfrom severalsevere im pairm ents,including AD HD ,oppositional deiantdisorder,andscoliosis,butthatnoneoftheconditionsmeetormedically equaltheseverity ofa listed impairment. (Tr.13). The Law Judgealso considered each ofthe six functional dom ainsand concluded thattheplaintiffexperiencesRlessthanm arked''lim itationsin thetsrstfive domainsandnolimitationsinthesixthdomain. (Tr.21-26). Thus,theLaw Judgefoundthatthe plaintiffdoes nothave an im pairm ent or com bination of im painnents thatfunctionally equals a listedimpairment. (Tr.14). Accordingly,theLaw Judgeconcludedthatplaintiffisnotdisabled, and thatshe is notentitled to child's supplem entalsecurity incom e benefits. See generally 20 C.F.R. j 416.924. The Law Judge's opinion was adopted as the final decision of the Com m issionerby the Social Security A dm inistration's Appeals Council. H aving exhausted all available adm inistrative rem edies,plaintiffhas now appealed to this court. A child is disabled within the m eaning ofthe SocialSecurity A ctifshe hasa dfphysicalor mentalimpairment,whichresultsinm arked and severe functionallimitations,and ...which has lasted orcan beexpected to lastfora continuousperiod ofnotlessthan 12 months.'' 42 U.S.C. j1382c(a)(3)(C)(i). Undertheapplicableregulations,thedeterminationofwhetherachildmeets this deGnition is determined via a three-step inquiry. 20 C.F.R. j 416.924. The first determ ination is whether the child is w orking and perform ing substantialgainfulactivity. Id. j416.924419. lfthechildisnotworking,itmustthenbedecidedwhetherthechildsuffersfrom a severeimpainueptorcombinationofimpairments. Id.j416.924(c). Ifthechildsuffersfrom a severe impairm entorcom bination ofim pairm ents,itm ustthen be determ ined w hetherthe child's 2 impairmentts)meets,medicallyequals,orfunctionally equalsanimpairmentlistedin20C.F.R. Part404,SubpartP,Appendix1. Ld-aj416.924(*. To determ ine whetheran im pairmentisfunctionally equivalentto a listed im painnent,the Law Judgeevaluatesitsseverityinsixdomains:(1)acquiringandusinginformation;(2)attending andcompletingtasks;(3)interactingandrelatingwithothers;(4)movingaboutandmanipulating objects;(5)caring foroneself;and (6)health and physicalwell-being. Id.j 416.926a(b)(1). Functional equivalence exists if the Law Judge fnds a Ssm arked'' lim itation in two areas of functioning oran çtextreme''limitation in oneareaoffunctioning.z Id.j416.926a(d). Inthis case, the Law Judge conoluded that plaintiff does not experience a Etm arked'' or EEextrem e'' lim itation in any functional dom ain, and therefore does not qualify for supplem ental security incom ebeneGts. On appealtothiscourqtheplaintiffraisesseveralarguments,includingthattheLaw Judge , erred in determ ining that she has less than m arked lim itations in the areas of attending and completing tasks and interacting and relating w ith others. A fterreview ing the record,the court agrees w ith the plaintiff that the Law Judge's analysis of each of these areas of functioning is incom plete and precludes m eaningful review . A ccordingly, the court Gnds ççgood cause''to rem and the case to the Com m issionerforfurtherdevelopm entand consideration. See 42 U .S.C. j405(g). The regulations applicable to a claim for child's supplem enà lsecurity incom e benefts providethattheSocialSecurityAdministrationwillEçconsideral1evidencein (thelcaserecord''in determ ining a child's functioning,including inform ation from m edicalsources and nonm edical 2Açtmarked''limitationisonethatççinterferesseriouslywith(theclaimanfsqabilitytoindependentlyinitiate, sustain,orcompleteactivities-'' 20C.F.R.j416.926a(e)(2)(i). A ççmarked''limitationççalsomeansalimitationthat isçm orethan moderate'butçlessthan extreme-''' 1d. Anççextreme''lim itationisonethatççinterferesveryseriously with (theclaimant'slabilityto independently initiate,sustain,orcompleteactivities'' 1d.j416.926a(e)(3). An ddextreme''limitationRalsom eansalim itationthatisEm orethanm arked-''' ld. 3 sources. 20 C.F.R- j 416.924a. Although tçthere is no rigid requirement thatthe ALJ specifcally referto every piece ofevidence in his decision,''Reid v.Com m 'r of Soc.Sec.,769 F.3d861,865(4th Cir.2014)(citationand internalquotationmarksomitted),heçlcannotsimply cherry-pick facts thatsupporta finding ofnon-disability w hile ignoring evidence thatpointsto a disabilityfindinp''Dentonv.Astrue,596F.3d419,425(7thCir.2010). TheUnitedStatesCourt ofAppealsfortheFourthCircuithasheldthatççlaqnecessarypredicatetoengaginginsubstantial evidence review is a rçcord ofthe basis for the A LJ'S l'uling,''including ç$a discussion ofw hich evidence the ALJ found credible and w hy, and specific application of the pertinent legal requirementstotherecordevidence.'' Radfordv.Colvin,734F.3d288,295(4thCir.2013). ççlf the reviewing courthasno way ofevaluating the basisforthe ALJ'Sdecision,then the proper course,except in rare circum stances,is to rem and to the agency for additional investigation or çxplanation.p Id.(citationandinternalquotationmarksomitted). Theplaintifffrstarguesthatthe Law Judge erred in determ ining thattheplaintiffhasççless than m arked'' lim itations in the area of attending and com pleting tasks. In this functional . dom ain,the Law Judgeconsidershow w elltheclaim antisableto focusand maintain herattention, and how wellshe begins,canies through,and fnishes heractivities,including the pace atw hich sheperformsheractivitiesandtheeasewithwhichshechangesthem. 20C.F.R.j416.926a09. The regulations provide that adolescents should be able to pay attention to increasingly longer presentations and discussions, maintain their concentfation while reading textbooks, and indepepdentlyplanandcompletelong-rangeacademicprojects. Id.j416.926a(h)(2)(v). They should also be ableto m aintain theirattention on atask forextended periodsoftim ew ithoutbeing unduly distracted ordistracting. 1d. 4 In hisdecision,theLaw Judgesum m arized the rulesand regulationsapplicableto thisarea of functioning. (Tr.22). The Law Judge then provided the following explanation for his determination thatthe plaintiffhasççless than marked''limitationsin attending and completing tasks: M s.Brown initially reported the claim antcould notkeep busy on her own or fnish what she started,including her hom ew ork and chores. W hile herteachernoted no problem s in this area,records show the claim ant and her m other endorsed problem s w ith hyperactivity,im pulsivity,and organizational skills. A s detailed above, the claim ant w as not initially placed on m edication until October 2013. She 'initially required som e m edication m odifcations and providers noted issues w ith compliance, speciicàlly attending the required appointm ents to ob/in her m edications. W ith com pliance, the claim ant endorsed improvem ent in her focus and grades. She did require another medication increase in Septem ber 2016 after reporting poor concentration and forgetfulness. H ow ever,the m ostrecentrecords show the claim antcontinued to take the m edication atthatdosage. Overall,w hiletheclgim apthassom eissues,especially w hen offher m edications,the record supportsonly a lessthan m arked lim itation. . (Tr.23)(citationsomitted). N oticeably absentfrom the Law Judge'sassessm entofthisdom ain isany discussion ofthe findings contained in a reportfrom Betty L.Gillespie,Ph.D . Dr.G illespie,a licensed clinical psychologist,evaluated theplaintiffon June29,2014,atthe requestofthe Virginia Departm entof RehabilitativeServices. (Tr.297). Atthetimeoftheevaluation,theplaintiffhadbeentaking increasingdosagesofVyvanse,anADHD medication,forovereightmonths. (Tr.260,280,287, 297). Dr.Gillespienotedthattheplaintiffhadbeengivenherprescribedmedicationpriortothe psychological evaluation and that the assessment Gappearled) to provide an accurate representation of Ethe plaintiffs)currentfunctioning and abilities-'' (Tr.298). During the assessm ent, the plaintiff tçevidenced extrem ely poor ability to complete w ork carefully'' and ttengaged in very carelessres 'pondinp'' (Tr.300). Dr.Gillespie observed thattheplaintifrs 5 ççdistractibility ranged from mildto severedepending on the task duringthecurreniassessment'' and thatthe plaintiff'scarelessness and impulsivity negatively affected scores on diagnostic tests adminikered during the evaluation. (Tr.300). Dr.Gillespie's clinicalimpressions included diagnoses of ADH D , depressive disorder, and oppositional defiant disorder, as well as a ' provisionaldiagnosisofdisruptivebehaviordisorder. Asrelevanthere,Dr.Gillespienoted that the plaintiff ççdem onstrates m arked ' problem s w ith im pulsive or careless responding as w ell as distractibilityordifficultyconcentratingandattendingtoauditorystimuli-'' (Tr.302)(emphasis added). In assessing theplaintiffsability to focus,m aintain attention,and com plete tasks,the Law Judgedid notaddresstheforegoing portionsofDr.Gillespie'sreporqmuch lessexplain why the psychologist'ssndings were insufficientto establish am arked lim itation in the second ftm ctional domaip. TotheextentjheLaw JudgedeclinedtocreditDr.Gillespie'sreporq hefailçd to provide . . any explanation for doing so. The courtconcludesthatsuch deficiencies prùclude m eaningful review of the determ ination that the plaintiff has less than m arked lim itations in this area of functioning. SeeMasciov.Colvin,780F.3d632,636(4thCir.2015)(holdingthatremandwas necessarybecausethecourtwaslslefttoguessabouthow theALJarrivedathisconclusions'');see alsoJacob G.y.Berryhill,No.7:18-cv-00015,2019U.S.Dist.LEXIS46092,at*30(W .D.Va. Feb.26,2019),reportandrecommendation adooted.2019 U.S.Dist.LEXIS 45552 (W .D.Va. Mar.20,2019)(remanding forfurtherproceedingswhere,among otherdefciencies,theLaw Judge failed to explaip w hy she did notcreditportions ofa consultative exam iner's assessm ent indicatingthattheclaimanthadissueswithattentionandhyperactivity). Theplaintiffalso arguesthqtthe Law Judge erred in determ ining thattheplaintiffhasççless than m arked''lim itations in the area of interacting and relating w ith others. In this functional 6 dom ain,the Law Judge considers how w ellthe claim ant is able to initiate and sustain em otional connections with pthers,cooperate with others,comply with rules,respond to criticism ,and respectand take carq ofthe possessions ofothers. 20 C.F.R.j416.926a(i). The regulations provide thatadolescentsshould be qble to develop friendships with children ofa sim ilar age and relate appropriately to children and adults, both individually and in groups. 20 C.F.R. j416.926a(i)(2)(v). Theyshouldalsobeabletosolvecontlictsbetweenthemselvesandpeers, fam ily m embers,orotheradults. Id. In hisdecision,theLaw Judgesummarizedtherulesandregulationsàpplicabletothearea ofinteractingandrelatingwithothers. (Tr.23-24). Hethenprovidedthefollowingexplanation forhisdeterm ination thattheplaintiffhasGlessthan m arked''lim itationsin thisfunctionaldom ain: M s.Brow n endorsed ongoing behavioral problem s at hom e and school, initially stting the claim ant did not have and could not . niakçfriends,didnotgetalonjwithherorotheradults,including teachers,did not get along w lth siblings, and did not play team sports. She later reported the claim ant had friends,butstated she alienated herself. Records confirm in-school suspensions for defiance, disrespect, and fghting. H ow ever, records from providers suggest the claim ant did have friends. She reported being close w ith one of her siblings as w ell. N otes generally described the claim antas friendly,pleasant,cooperative,and eager to please. These records show the claim ant played team sports. ThoughV s.Brownreportedtheclaimantwould notcommunicate w ith her,no issuesw ere seen atherappointm entsand the claim ant was noted as interacting w ell. These records support a less than m arked lim itation. (Tr.24)(citationsomitted). Upon review of the record, the court agrees with the plaintiff that the Law Judge's explanation failsto painta complete and fully accurate picture oftheplaintifps ability to interact and relate w ith others. In particular,the Law Judge's assessm ent understates the nature and extentofthe plaintiffsdisciplinary problem sand is devoid ofany discussion regarding relevant 7 recordsfrom BlueRibgeBehavioralHealthcareand InterceptYouth Services. Schoolrecords indicate thatthe plaintiff received in-schoolsuspension on nine separate occasions forfghting, disnlption,and defancewhile shewasin middle school. (Tr.332-34). Theplaintiffshigh schoolrecordsdepictsim ilar,ifnotworse,behaviorproblem s. The plaintiffw as disciplined for notcomplying with directives,disruptingclass,leaving classwithoutpermission,using profanity towardateacher,andsghtingwithanothersmdent. (Tr.331-32). BetweenSeptember20,2016 and D ecem ber 19,2016,the plaintiffw as assigned to in-schoolsuspension fora totalofnineteen days. (Tr.244-46). Theplaintiffwasalsoplacedon out-of-schoolsuspension inNovemberof 2016,followingaconfrontationwithasecurityguard. (Tr.245,327,331). School adm inistrators subsequently referred the plaintiff to Blue Ridge Behavioral H ealthcare,w her' e she was evaluated by a m ental health counselor. The counselor's report indicatçsthatthe plaintiffGwasreferredby theschooldueto arecentout.ofschoolsuspension for . J arguing w ith a teacherand a security guard,''and thatthe plaintiff$$w illscream ,yell,and argue with teachers.'' (Tr.327). During the evaluation,the plaintiffindicated thatEçshe willstare blankly atteachersorwillarguew hen they ask herto do things,because she doesn'tagreew ith the reasoning behind theirrequests.'' (Tr.327). The plaintiffalso reported thatshe argueswith other students. Copsistent w ith the Gndings and diagnoses of other clinicians,including D r. . Gillespie and Dr.V arsha Desaiy3the m entalhealth counselorprovisionally diagnosed theplaintiff withoppositionaldefiantdisorderandADHD. (Tr.328). Thecounselorreferredtheplaintiffto lnterceptY outh Servicesfortherapeuticday treatmentEçto help w ith decreasing negative behaviors and increasing mentalhealth stability.'' (Tr.328). Records from InterceptYouth Services 3Dr.Desaidiagnosed theplaintiffwith ADTID and oppositionaldefiantdisorderin Juneof2013. W ith respectto thelatterdiagnosis,Dr.D esainotedthatplaintiffoftenarguesw ith adults,defiesrules,and refusesadult requests,andthatsheisoftenangry,resentful,spiteful,andvindictive. (Tr.253). 8 indicate thatthe treatm entsessions focused on (tanger controlissuesas evidenced by the client's verbalaggressiontowardspeers(and)schoolpersonnel.'' (Tr.365). Although the Law Judgereferenced theplaintiT sGl -schoolsuspensionsfordefiance, disrespect,and fightingy''he sum m arily discounted such evidence based on treatm entrecords suggestingthattheplaintiffhadfriepdsandwasclosewithoneofhersiblings. (Tr.24)(emphasis added). Asindicatedabove,however,theabilitytodevelop relationshipswith otherchildrenis justonecomponentoftherelevantanalysis. Thedomain ofinteractingandrelatingwithothers also addresseshow wellaclaim antcompliesw ith nlles,reactsto criticism ,respondsto personsin authority,and solves conflicts. ln this case,the plaintiffs disciplinary records are replete w ith instances in which she violated schoolrules and acted in a defant,disrespectfulm annertow ard school em ployees. lndeed,the plaintifps diffculties w ith anger and aggression were of such concern thathigh schooladm inistratorsplaced hçr on out-of-schoolsuspension and referred her . fora mentalhealth evaluation. N onetheless,the Law Judge did notaddressthereportsfrom Blue Ridge Behavioral Hea1th Care and Intercept Youth Services, or adequately explain w hy the behaviorproblemsdocumented in theplaintiffsschooland mentalhealth recordsdonotsupport moresigniGcantIim itationsinthisparticularfunctionaldomain. Inshorqthecourtconcludesthat the Law Judgefailed to build an ççaccurate and logicalbridge''from the evidence to hisconclusion thatthe plaintiffhas less than m arked lim itations in the dom ain of interacting and relating w ith others. W oodsv.Berrvhill,888F.3d686,694(4thCir.2018)(internalquotationmarksomitted). Accordingly,remandiswarranted. Ldxa 9 Forthe reasonssetfo% above,the court% dsRgood cause''to rem and thls case to the Commisjionerforfhrtherdevelopmentand conslderatiom4 See 42 U.S.C.j405(g). Ifthe Commlssionerislmnbletodecidethiscaseinplaintic sfavoronthebasisoftheexistingrecor; theCom mlssionerwillconductasupplementalndmlnlstraivehesHngatwhich both sldeswillbe allowed to presentadditionalevldence and argmnent. An appropdate orderofremrmd willbe enteied thisday. The Clerk fsdirectedto send copiesofthismemorandum opinionto allcolmqelofrecord. DATED:Thls day ofJune,2019. SeniprUnited StatesDistrictJudge 4In lightofthe court's decision to remand the case to theCommissionœ,the courtdeclinesto address plaintx sremnlnlngclnimsoferror. 10
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