Opinion
CASE NO. 4:10 CV 2215
02-16-2012
EMMA FRANKLIN, o/b/o L.F., a minor, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
JUDGE JOHN R. ADAMS REPORT & RECOMMENDATION
Introduction
This is an action for judicial review of the final decision of the Commissioner of Social Security denying the application of the plaintiff, Emma Franklin, on behalf of L.F., a minor, for children's supplemental security income.
The Administrative Law Judge ("ALJ"), whose decision became the final decision of the Commissioner, found that L.F. had severe impairments consisting of attention deficit hyperactivity disorder and disruptive behavior disorder. The ALJ determined, however, that the child did not have an impairment or combination of impairments that met, equaled, or functionally equaled any impairment listed in Appendix 1. He concluded, therefore, that L.F. was not under a disability.
Transcript ("Tr.") at 16.
Id.
Id. at 3.
Emma Franklin, on behalf of L.F., has challenged the decision of the Commissioner on the ground that substantial evidence in the record does not support the ALJ's finding that his impairments did not functionally equal the requirements of a listing. Specifically, Franklin argues that substantial evidence does not support the finding that the child has a less than marked limitation in the domain of interacting and relating with others. She maintains that the ALJ should have found a marked limitation in that domain. With such a finding, combined with the ALJ's finding of a marked limitation in the domain of attending and completing tasks, L.F. would be disabled.
As more fully explained below, I conclude that the ALJ's finding on functional equivalency does not have the support of substantial evidence in the administrative record. I, therefore, recommend the reversal of the Commissioner's decision to deny the application for children's supplemental security income and remand for further proceedings.
Analysis
1. Functional equivalency for children's supplemental security income claims
Functional equivalency to a listing for purposes of a child's claim for supplemental security income is governed by 20 C.F.R. § 416.926a. Under the regulation, the inquiry is whether the impairment imposes an extreme or marked limitation in connection with six domains - acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, caring for one's self, and health and physical well-being. If a claimant has an extreme limitation in one of these domains or marked limitation in two domains, he or she is considered functionally equivalent to a listing and, therefore, disabled.
The regulations provide that the Commissioner will consider as evidence of limitations and restrictions "all the relevant information in your case record and helps us determine your functioning, including your signs, symptoms, and laboratory findings, the descriptions we have about your functioning from your parents, teachers, and other people who know you...."
2. Burden of proof and articulation
The claimant bears the burden of proof at step three of the sequential evaluation process, the step in the process at which the Agency determines functional equivalency in children's supplemental security income cases.
Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).
No heightened articulation standard exists at step three. As Chief Judge Oliver recently admonished in Hunter v. Commissioner of Social Security, in declining to adopt this Magistrate Judge's report and recommendation, an ALJ must nevertheless provide articulation of step three findings that will permit meaningful judicial review of those findings. Conclusory evaluation of the evidence will not suffice. The ALJ must describe the evidence on which he relies. The ALJ must not base his findings on selective, favorable evidence but must evaluate the record as a whole. The ALJ's analysis of the evidence must be sufficient to allow the reviewing court to trace the path of his reasoning. Finally, the reviewing court may not rely on the Commissioner's post-hoc rationalizations to affirm the ALJ's finding.
Bledsoe v. Barnhart, 165 F. App'x 408, 411 (6th Cir. 2006).
Hunter v. Comm'r of Soc. Sec., No. 1:09cv2790, 2011 WL 6440762, at *3-4 (N.D. Ohio Dec. 20, 2011).
Id.
Id., at *4.
Id.
Lowery v. Comm'r of Soc. Sec., 55 F. App'x 333, 339 (6th Cir. 2003).
Id.
Hunter, 2011 WL 6440762, at *4.
There exists no bright line test to determine when an ALJ has provided sufficient articulation in support of the kind of finding at issue here. Rather, there is a continuum between unsatisfactorily deficient articulation and articulation sufficient enough to demonstrate substantial evidence in support of the finding at issue. The articulation provided by the ALJ here, a single paragraph, falls somewhere on that continuum. The issue is whether the ALJ has done enough to meet the substantial evidence standard.
3. Substantial evidence does not support the ALJ's finding at step three that L.F. has a less than marked limitation.
The ALJ addressed the evidence of record as to the interacting and relating with others domain in a single paragraph.
Tr. at 19.
The ALJ identifies five pieces of evidence from the record in support of his finding. This critical paragraph reads as follows:
The claimant testified that he gets along with other children and has friends at school. Furthermore, both the claimant and his mother stated that the claimant enjoys participating in sports. The claimant's teacher observed no limitations in the claimant's ability to interact with others. (Exhibit 14E/5-6). Finally, the claimant was observed to be friendly, pleasant, and cooperative during two consultative examinations. (Exhibit 5F/1, 14F/2). The claimant's mother informed the consultative examiner that she believed the absence of the claimant's father affects his behavior. (Exhibit 14F/1). Furthermore, somewhat inconsistent with her hearing testimony, the claimant's mother informed the consultative examiner that the claimant interacts well with his teachers. (Exhibit 14F/2). Nevertheless, the claimant's mother has indicated extreme limits of the claimant's social functioning. (Exhibit 22E/2). However, the record better supports a finding that the claimant has a less than marked limitation in interacting and relating with others.Although perhaps not conclusory, the ALJ in this paragraph offers no significant analysis of the record cited. The summary set out in that paragraph states that L.F. is friendly and cooperative in demeanor, has no problems at school, and that his mother's reports of relational problems with others are exaggerated.
Id.
I have carefully reviewed the record references cited in the paragraph quoted above. The evidence is that Donald Degli, M.A., a consulting, examining psychologist, reported in August of 2006, based on an evaluation in which Franklin participated with her son, that L.F. had a tendency to get into fights in the neighborhood and at school. L.F. appeared engaged, friendly, and cooperative at the evaluation. Degli's summary nevertheless noted troublesome conduct problems that "do not necessarily warrant a separate diagnosis of disruptive behavior disorder."
Id. at 248, 250.
Id. at 248.
Id. at 250.
A pediatric psychologist, David Chiarella, Ph.D., evaluated L.F. in June of 2008. Franklin related to Dr. Chiarella complaints of anger and fights with L.F.'s peers. Dr. Chiarella, similar to Degli, reported L.F. as responsive, cooperative, positive, and pleasant. He did not observe a range of emotions. In his summary, Dr. Chiarella repeated Franklin's concern about difficulty interacting with peers. He concluded that L.F.'s socialization skills were poor particularly in school; he had poor ability to relate adequately with others and to demonstrate age appropriate coping skills. He gave as a dual primary diagnosis ADHD and Disruptive Behavior Disorder NOS.
Id. at 322-25.
Id. at 322.
Id. at 323.
Id.
Id. at 325.
Id.
The single school reference cited by the ALJ is a teacher questionnaire done by Marsha Guy, a language arts teacher, in October of 2008. She noted no problems with interacting and relating to others.
Id. at 192.
Consistently throughout, Franklin has maintained that L.F.'s problem is interacting with other children and maintaining friendships. He has no problem with teachers and other adults but cannot interact with other children without adult supervision. Specifically, she reported that L.F. fights constantly with his cousins, has pulled down their pants when left alone with them, and threatened her with a butcher knife. Her reports to psychological professionals have been consistent with her testimony before the ALJ. The record, therefore, presents a consistent picture of a child who interacts well with others in a structured, adult supervised environment, but cannot interact with peers outside of such an environment.
E.g., id. at 49, 222-23, 248, 322, and 324.
Id. at 323.
Id. at 46-47.
Id. at 55, 223.
Although Franklin's credibility is critical to the proper evaluation of the evidence here, the ALJ made no specific finding regarding her credibility. There is a brief reference to little weight being given to statements of third parties on page 16 of the transcript, which exhibit contains a written statement completed in 2009 by Franklin. That statement is consistent with the information given by Franklin to Degli in 2006, to Dr. Chiarella in 2008, and her testimony before the ALJ. The ALJ did not explain why he gave her written statement (and presumably her credibility) little weight.
Id. at 222-23.
ECF # 11.
Further, the ALJ gives "greater weight" to opinions of state agency reviewers, but those opinions regarding this domain address exclusively the ability to communicate and speech and make no mention of behavioral problems. That opinion, therefore, has no bearing on Franklin's credibility.
Id. at 333.
On balance, from the scant articulation given by the ALJ here, I conclude that his finding of a less than marked limitation in the interacting and relating with others domain relies on selective evidence not adequately analyzed. His articulation does not permit the reviewing court to trace the path of his reasoning. Accordingly, the finding does not have the support of substantial evidence. The case should be remanded for further analysis and articulation with respect to this domain.
Conclusion
For the foregoing reasons, I recommend finding that substantial evidence does not support the finding of the Commissioner that L.F. has no disability. Accordingly, I further recommend that this case be remanded with directions that the ALJ analyze and articulate with respect to the domain of interacting and relating to others consistent with this report and recommendation. Dated: February 16, 2012
s/ William H. Baughman, Jr.
United States Magistrate Judge
Objections
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order.
See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986). --------