Cynthia N. ex rel. Z.N.S. v. Saul

• Decision Date: 29 August 2019
• Docket Number: Civil Action No. 4:18-cv-00038
• Court: U.S. District Court — Western District of Virginia
• Parties: CYNTHIA N., on behalf of Z.N.S., a minor child, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.

CYNTHIA N., on behalf of Z.N.S.,¹ a minor child, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.²

Civil Action No. 4:18-cv-00038

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Danville Division

August 29, 2019

REPORT & RECOMMENDATION

By: Joel C. Hoppe United States Magistrate Judge

Plaintiff Cynthia N., on behalf of her granddaughter Z.N.S., asks this Court to review the Commissioner of Social Security's final decision denying the child's claim for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The case is before me under 28 U.S.C. § 636(b)(1)(B). ECF No. 11. Having considered the administrative record, the parties' filings, and the applicable law, I cannot find that substantial evidence supports the Commissioner's final decision. Accordingly, I recommend that the decision be reversed and the case be remanded under the fourth sentence of 42 U.S.C. § 405(g).

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. 42 U.S.C. §§ 405(g), 1383(c)(3); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited—it may not "reweigh conflicting evidence, make credibility determinations, or substitute[its] judgment" for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, a court reviewing the merits of the Commissioner's final decision asks only whether the Administrative Law Judge ("ALJ") applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); see Riley v. Apfel, 88 F. Supp. 2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98-100 (1991)).

"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" of evidence, id., but not necessarily "a large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review considers the entire record, and not just the evidence cited by the ALJ. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). Ultimately, this Court must affirm the ALJ's factual findings if "conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

II. Legal Framework

A child is "disabled" within the meaning of the Act if he or she "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). Social Security ALJs follow a three-step process to determine if a child claimant is disabled. The ALJasks in sequence whether the child: (1) is working; (2) has a severe medically determinable impairment; and, if so, (3) has an impairment or combination of impairments that meets, medically equals, or functionally equals any of the disabling childhood impairments listed in the Act's regulations. Bryant v. Barnhart, 63 F. App'x 90, 92-93 (4th Cir. 2003); 20 C.F.R. § 416.924(a).³

Step three has two parts. The ALJ must first consider whether the child's severe impairment(s) meets or medically equals the criteria for any specific listed impairment. 20 C.F.R. §§ 416.925, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 529-34 (1990). If it does, the child "is conclusively presumed to be disabled and entitled to benefits." Bowen v. City of N.Y., 476 U.S. 467, 471 (1986); see 20 C.F.R. § 416.924(d)(1). If it does not, the ALJ moves on to the "functional equivalence" part of step three. 20 C.F.R. § 416.926a. This holistic, fact-specific determination requires the ALJ to evaluate how appropriately, effectively, and independently the child performs in "six domains" of functioning when compared to other children the same age "who do not have impairments."⁴ Id. To "functionally equal" the listings, the child's medical impairment(s) must cause "marked limitation" in two domains or an "extreme limitation" in one domain. Id. § 416.926a(d). "Marked" and "extreme" mean that the impairment(s) "interferes seriously" or "interferes very seriously," respectively, with the child's "ability to independently initiate, sustain, or complete activities" within a domain. Id. § 416.926a(e)(2)-(3). The claimant bears the burden of proving that he or she is disabled. S.R. ex rel. R.R. v. Barnhart, 371 F. Supp. 2d 796, 799 (W.D. Va. 2005).

III. Procedural History

In September 2014, Cynthia filed an SSI application alleging that five-year-old Z.N.S. was disabled by Attention Deficit Hyperactivity Disorder ("ADHD") and cerebral palsy. See Administrative Record ("R.") 21, 76, 161-64, ECF No. 9-1. Z.N.S. was a "preschooler" until she turned six in June 2015, but she was considered a "school-age child" for most of the relevant period. R. 21. Disability Determination Services ("DDS"), the state agency, denied her claim in February 2015, R. 76-86, and upon reconsideration that September, R. 87-100. In February 2017, Cynthia appeared with a non-attorney representative and testified at an administrative hearing before ALJ Mark O'Hara. R. 18, 44-75. Z.N.S., age seven, attended the hearing, but did not testify. See R. 44, 52.

ALJ O'Hara issued an unfavorable decision on May 5, 2017. R. 18-37. He found that Z.N.S. had the following "severe" medical impairments: ADHD, expressive speech disorder, autism spectrum disorder ("ASD"), disruptive mood dysregulation disorder ("DMDD"), oppositional defiant disorder ("ODD"), and "likely mild cerebral palsy." R. 21. Next, ALJ O'Hara considered whether those impairments met or medically equaled the corresponding childhood listings. See R. 21-23 (citing 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 111.07, 111.09, 112.04, 112.08, 112.10, 112.11). He cited specific, relevant educational records and opinion evidence to support his finding that Z.N.S.'s speech disorder did not meet the listing for disabling "communication impairment." R. 22; 20 C.F.R. pt. 404, subpt. P, app. 1 § 111.09. As for her other listed impairments, however, ALJ O'Hara simply concluded "there [was] no evidence of" the symptoms and functional limitations needed to establish disabling cerebral palsy, ADHD, or "personality or impulse control disorder," and no "medically document[ed] findings" of disabling ASD or DMDD. See R. 22-23.

ALJ O'Hara then summarized parts of the record, R. 23-27, and evaluated Z.N.S.'s impairment-related functional limitations in the six domains, R. 28-36. He found "less than marked limitation" in the first five functional domains, R. 29-35, and "no limitation" in overall health and physical well-being, R. 36. Thus, ALJ O'Hara concluded that Z.N.S. was not disabled between September 2014 and May 2017. R. 36. Cynthia asked the Appeals Council to review the decision and submitted two medical-source records showing that Z.N.S. walked with a left-sided limp on physical exam in August 2017, R. 9, and had "limited use of her left arm" and both hands secondary to cerebral palsy, R. 8 (undated letter). The Appeals Council explained that the "additional evidence [did] not relate to the period at issue" in ALJ O'Hara's decision, but that Cynthia could file a new application if she wanted the agency to consider whether Z.N.S. was "disabled after May 5, 2017."⁵ R. 2. The Appeals Council declined to review ALJ O'Hara's decision, R. 1-5, and this appeal followed.

IV. Discussion

Cynthia argues that the medical evidence, educational reports, and testimony in Z.N.S.'s record are "consistent" and "clearly support" a conclusion that the child was disabled because she had "marked limitations" acquiring and using information, attending and completing tasks, and interacting and relating with others, and an "extreme limitation" caring for herself at an age-appropriate level. See Pl.'s Br. 6-7. That question—whether Z.N.S. was disabled during the relevant time—is for the Commissioner to decide. The fundamental question before the Courttoday is whether the ALJ's conclusion that Z.N.S. was "not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (emphasis added).

A. The Relevant Law: "The 'Whole Child' Approach"

ALJs use a special technique called the "'whole child' approach" to determine whether a child's medical condition "functionally equals the listings." SSR 09-01p, 2009 WL 396031, at *1 (Feb. 17, 2009); see 20 C.F.R. § 416.926a. The ALJ "focus[es] first on the child's activities" and "evaluate[s] how appropriately, effectively, and independently the child functions compared to children of the same age who do not have impairments." SSR 09-02p, 2009 WL 396032, at *1 (Feb. 18, 2009). After the ALJ "determine[s] how the child functions in all settings" and identifies which "activities are limited," he considers which "domains are involved in those activities." SSR 09-01p *2. "Domains are broad areas of functioning intended to capture all of what a child can or cannot do," id. at *1, both on a day-to-day basis and over time, id. at *9-10 & n.17. The ALJ must account for "the interactive and cumulative effects" of the child's medical impairment(s) and related symptoms⁶ on her activities "in any and all of the domains that [she] uses to...