Clinkscales ex rel. T.S. v. Colvin

• Decision Date: 08 February 2017
• Docket Number: CIVIL ACTION No. 15–5509
• Citation: 232 F.Supp.3d 725
• Parties: Alexis CLINKSCALES O/B/O T.S., Plaintiff v. Carolyn W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant
• Court: U.S. District Court — Eastern District of Pennsylvania

232 F.Supp.3d 725

Alexis CLINKSCALES O/B/O T.S., Plaintiff

v.Carolyn W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant

CIVIL ACTION No. 15–5509

United States District Court, E.D. Pennsylvania.

Filed February 08, 2017

Jonathan M. Stein, Community Legal Services, Inc., Robert J. Lukens, Philadelphia, PA, for Plaintiff.

Andrew C. Lynch, M. Jared Littman, Robert S. Drum, SSA/OGC Region 3, Philadelphia, PA, for Defendant.

ORDER

Berle M. Schiller, District Judge

AND NOW, this 8 day of Feb, 2017, upon review of the Report and Recommendation of Carol Sandra Moore Wells, United States Magistrate Judge, it is hereby ORDERED as follows:

1. The Report and Recommendation be APPROVED and ADOPTED:

2. That Plaintiff's Request for Review be GRANTED;

3. That this case be REMANDED to the Commissioner of Social Security, pursuant to sentence six of 42 U.S.C. § 405(g), so that the Administrative Law Judge can: (a) reassess the weight accorded the opinions of Noelle Renner, treating speech pathologist and Donna Reaves, special education teacher; (b) reconsider the extent of limitation experienced by T.S. in the domains of acquiring and using information and attending and completing tasks; (c) consider the evidence of record in light of the directives contained in SSR 98–1p.

REPORT AND RECOMMENDATION

CAROL SANDRA MOORE WELLS, UNITED STATES MAGISTRATE JUDGE

Alexis Clinkscales ("Plaintiff") brings this action on behalf of her minor daughter, T.S., seeking judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), denying T.S.'s application for Supplemental Security Income ("SSI") childhood disability benefits under Title XVI of the Social Security Act. Plaintiff has filed a brief in support of her request for review, the Commissioner has responded to it, and Plaintiff has filed a reply. For the reasons set forth below, it is recommended that Plaintiff's Request for Review be granted, and that this case be remanded for further action, as directed in this Court's order.

I. PROCEDURAL HISTORY¹

On September 28, 2012, Plaintiff filed an application for SSI on behalf of T.S., alleging disability, since December 1, 2011, caused by developmental delay and anger problems. R. 11, 136. Her claim was denied initially so Plaintiff requested a hearing. R. 11. On February 25, 2014, a hearing was held before Nadine Overton, Administrative Law Judge ("the ALJ"). Id. Plaintiff, represented by Jonathan Stein, testified at that hearing. R. 32–63. On April 18, 2014, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. R. 11–30. On August 17, 2015, the Appeals Council denied Plaintiff's request for review, making the ALJ's findings the final determination of the Commissioner. R. 1–3. This case was referred to the undersigned by the Honorable Berle M. Schiller, under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a Report and Recommendation.

II. FACTUAL BACKGROUND

A. Personal History

T.S., born on December 28, 2010, was eleven (11) months old on the alleged onset date and only three (3) years old at the time of the administrative hearing. R. 14. At the time of the hearing, T.S. lived with her mother and four (4) year-old brother. R. 44, 123.

B. Plaintiff's Testimony

At the administrative hearing, Plaintiff testified that T.S. had difficulties in the areas of communication and retaining information. R. 37. At the age of one, T.S. was evaluated for her difficulty absorbing information and provided with speech therapy one hour each day and special instruction once per week by Child Link. R. 37–38. At age two-and-a-half, Elwyn began providing similar services two hours daily at The Early Learning Center, T.S.'s daycare center. R. 38–39. Additionally, speech therapist Noelle Renner provided in-home services. R. 39.

T.S. has difficulty retaining information. She does not remember colors, numbers, letters of the alphabet, or names of objects. She uses signals—including pointing and crying—to communicate what she needs or wants. R. 40. T.S. reportedly recognizes certain articles of clothing, but cannot name them. She cannot count to three without assistance. R. 41.

T.S. plays well with her brother, but not other children. R. 41. She is prone to tantrums when asked to share. R. 42. She does not appear to understand what other children say to her. Id. At the time of the hearing, T.S. had been at her then current daycare center for one month, but did not play with the other children. R. 43. At daycare, T.S. had issues separating from her mother; she did not follow directions or listen. R. 44.

T.S.'s tantrums include throwing objects, and are triggered by frustration stemming from her difficulty understanding spoken language and retaining information. R. 45–46.

In terms of completing tasks, such as putting away clothes or toys, T.S. begins a task, but becomes easily distracted, rarely finishing. R. 46. When prompted to continue, she will throw a tantrum. R. 47.

With respect to caring for herself, T.S. reportedly occasionally played with knives, attempting to scare her brother with them. R. 47. She, also, still puts inedible items into her mouth, such as barrettes, paper and smaller toys. R. 48. Outside, she runs away from her mother, seemingly unaware of the danger. R. 48. Plaintiff explains to T.S. that these behaviors are wrong, but T.S.'s inability to retain information results in repetition of these dangerous behaviors. R. 49.

Upon questioning by the ALJ, Plaintiff stated that T.S. tried to repeat words spoken to her, but could not correctly do so. She understands "no no," but not "bye bye," as she does not appear to distinguish between a person stepping out of a room, or leaving a place altogether. R. 51. T.S. does not combine words to make requests—she uses one word and points. R. 51. She does not use words such as me, you, I or my. R. 51. She recognizes cartoon characters (SpongeBob, Dora the Explorer) but cannot say their names. She cannot tell her mother what foods she likes, but can ask for a drink. R. 52, 53. When her clothes are wet or soiled, she will throw a tantrum, and non-verbally express her discomfort. R. 53. She is not toilet trained. She can point to a toilet to indicate a need, but cannot ask to go to the bathroom. R. 54. T.S. can identify her nose and ear, but no other body parts. R. 54.

When T.S. speaks, people outside of her family rarely understand what she is saying. R. 58. She becomes frustrated when she is not understood and throws a tantrum or retreats to her mother. R. 58. Plaintiff described T.S.'s habitual manner of speaking as "jibber jabber talk." R. 60.

Physically, T.S. can climb stairs holding a railing. R. 55. She frequently falls over when walking on level pavement. R. 55. She can drink from a regular cup. R. 55. T.S. does not pull up her pants or untie shoelaces; she washes her hands but cannot dry them. R. 56.

A typical day for T.S. reportedly includes throwing tantrums while dressing

in the morning and preparing for bed in the evening. She either eats her meals or throws her plate. On her way to daycare, she runs away from her mother and knocks on people's doors. At daycare, T.S. prefers to stay with her mother. At home, she watches television. R. 58–59.

III. THE ALJ'S FINDINGS

Plaintiff alleges disability based on speech and language development delays. In concluding that T.S. was not disabled, the ALJ made the following findings:

1. [T.S.] was born on December 28, 2010. Therefore, she was an older infant on September 28, 2012, the date application was filed, and is currently a preschooler (20 CFR 416.926a(g)(2) ).

2. [T.S.] has not engaged in substantial gainful activity since September 28, 2012, the application date (20 CFR 416.924(b) and 416.971 et seq. ).

3. [T.S.] has the following severe impairment: speech and language developmental delay (20 CFR 416.924(c) ).

4. [T.S.] does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix I (20 CFR 416.924, 416.925 and 416.926 ).

5. [T.S.] does not have an impairment or combination of impairments that functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a ).

6. [T.S.] has not been disabled, as defined in the Social Security Act, since September 28, 2012, the date the application was filed (20 CFR 416.924(a) ).

R. 14, 30. Thus, the ALJ determined that T.S.'s severe impairment did not meet or medically equal a listed impairment. Moreover, the ALJ determined that T.S.'s impairment did not "functionally" equal a listing, because T.S. did not suffer "extreme"² limitations in any of the six functional domains, R. 30, and suffered "marked"³ limitations in only one domain—her ability to interact and relate with others. R. 16, 23.⁴

IV. DISCUSSION

A. Standard of Review

Upon review of the ALJ's decision, the district court may "enter, upon 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" pursuant to sentence four of § 405(g). 42 U.S.C. § 405(g). Additionally, the court may remand a case for a calculation and award of benefits where appropriate. Mills–Sorrells v. Colvin , 153 F.Supp.3d 703, 713–14 (E.D. Pa. 2015) (citing Allen v. Bowen , 881 F.2d 37, 44 (3d Cir. 1989) ) (directing award of benefits where claimant had established prima facie case of entitlement to benefits and record was fully developed); Gilliland v. Heckler , 786 F.2d 178, 184 (3d Cir. 1986) (to avoid further delay, and where substantial evidence indicates claimant is entitled to benefits, court may direct award of benefits).

Judicial review of the Commissioner's final decision is as follows. The Commissioner's findings of fact will not be disturbed, if they are supported by substantial...