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.

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

(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

(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

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(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,

(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.,

(1966). See also Richardson v. Perales,

(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

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

(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."

.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.

.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."

.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."

(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."

.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

.

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

, 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..

at 451

and 551. See generally Tsarelka v. Secretary of Health & Human

Services,

(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

); Irlanda Ortiz,

("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

.926a(h) (describing the factors considered when assessing an

individual's ability to attend and complete tasks);

.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,"

.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,

(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.

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