DONALD E. O'BRIEN, Senior Judge.
This matter is before the Court pursuant to Rochelle Dean (Plaintiff's) appeal from a final decision of the Commissioner of Social Security (Commissioner). Plaintiff seeks supplemental security income (SSI) disability benefits under Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 1381 et. seq, on behalf of her minor son, Elijah Dean. Docket No. 4. This Court has authority to review the final decision of the Commissioner pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g).
Plaintiff filed for SSI benefits on behalf of her son on February 2, 2007. Tr. 323. On October 21, 2009, an administrative law judge (ALJ) issued a decision denying Plaintiff's request. Tr. 33. On January 14, 2009, the Appeals Council then denied Plaintiff's request for review of the ALJ's decision. On March 18, 2011, Plaintiff timely filed her complaint with this Court. Docket No. 3. Since SSI disability benefits are only payable from the month following the date of the claim, this Court must determine whether Plaintiff's son was disabled between February of 2007, to the time of the ALJ's decision, October 21, 2009. 20 C.F.R. 416.335.
Elijah R. Dean (Elijah), Plaintiff's son, was born on June 26, 2001. Tr. 53. At the time his mother filed for SSI benefits, he was 5 years old. At the time the ALJ issued his decision denying him benefits, he was 8 years old.
Elijah was born to a complicated birth and presented with a flaccid right arm. Tr. 148. At three weeks, Elijah exhibited no right elbow flexion,
At just over two months, Elijah again exhibited some finger and thumb flexion. Tr. 152. On December 6, 2001, "Elijah underwent supraclavicular
On May 20, 2003, Elijah, under sedation, underwent an electroneuromyorgraphy
On March 5, 2004, Elijah underwent another surgery: "an. . . exploration of the brachial plexus with axillary
On November 27, 2006, Occupational Therapists, Mrs. Henderson and Mrs. Britt, reported on Elijah's progress at school. Tr. 344. They indicated,
On February 21, 2007, Elijah's kindergarten teacher, Mrs. McGuire, filled out a questionnaire for Disability Determination Services. In a category labeled "Moving About and Manipulating Objects," Mrs. McGuire indicated Elijah had a serious problem moving and manipulating things and an obvious problem demonstrating strength, coordination, and dexterity in activities or tasks. Tr. 330. She concluded,
In a category labeled "Caring for Himself or Herself," Mrs. McGuire indicated Elijah had an obvious problem caring for his physical needs on an hourly basis, an obvious problem using appropriate coping skills to meet daily demands of the school environment, and a slight problem knowing when to ask for help on a daily basis. Tr. 331. She concluded,
On October 11, 2007, Dr. Kranz of the Mayo Clinic issued Elijah a splint to help him steady his right wrist. Tr. 408.
A reading test on January 14, 2008, indicated Elijah's comprehensive score was below his grade level. Tr. 354. Another reading test a year later again indicated his comprehensive score was below his grade level, though not alarmingly so. Tr. 365.
On May 20, 2009, Dr. Shaughnessy of the Mayo Clinic listed several problems Elijah continued to suffer from despite his surgeries: lack of elbow flexion beyond 90 degrees, lack of wrist extension, lack of forearm pronation,
On June 2, 2009, Rochelle Dean, Elijah's mother, completed an interrogatory with Disability Determination Services. Ms. Dean indicated Elijah, in addition to his problems with his right arm, suffered from a learning disability with "difficulty in reading and math." Tr. 350. Elijah was then attending a reading program through the Area Education Association. Tr. 352. She also indicated that Elijah "can stand okay but he trips a lot when he walks as he loses balance." Tr. 351. When questioned as to Elijah's ability to self-care, Ms. Dean indicated that he needed help applying toothpaste to his toothbrush, holding his toothbrush, and dressing himself. Tr. 352.
At the ALJ hearing of August 11, 2009, Ms. Dean indicated Elijah can not lift his arm more than half way up his body and could not lift his wrist up and down. Tr. 436. While he does use his right arm in order to carry things, this is only accomplished by holding things between his arm and hip.
In order for Elijah to qualify for SSI disability benefits, it must be demonstrated that he is disabled as defined in the Act. Under the Act, a person is disabled if they are:
42 U.S.C. § 1382c(a)(3)(A).
The Social Security Administration has developed a three-step sequential evaluation process for determining whether a child is disabled as defined in the Act: (1) determination of whether the child is engaged in "substantial gainful activity," (2) determination of whether the child's impairment or combination of impairments are severe, and (3) determination of whether the child's impairment or combination of impairments "meets, medically equals, or functionally equals" a listed impairment. 20 C.F.R. § 416.924(a).
At step one, if a child is engaged in substantial gainful activity, the child is not disabled. 20 C.F.R. § 416.924(b). The ALJ found Elijah had "not engaged in substantial gainful activity" since his mother applied for benefits on his behalf. Tr. 21.
At step two, if a child's impairment or combination of impairments only amounts to "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations," the child is not disabled. 20 C.F.R. § 416.924(c). The ALJ found that Elijah had "the following severe impairment: sequelae
At step three, if a child's impairment or combination of impairments does not "meet, medically equal, or functionally equal" a listed impairment, the child is not disabled. 20 C.F.R. § 416.924(d). A listed impairment is an impairment considered to be severe enough to prevent a child from doing any gainful activity and is characterized by "impairments that cause marked and severe functional limitations." 20 C.F.R. § 416.925(a). Listed impairments are found at 20 C.F.R. Part. 404, Subpart P, Appendix 1. The ALJ found Elijah did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 21.
When determining whether a child's impairment or combination of impairments is functionally equivalent to a listed impairment, an ALJ must consider six domains of functionality: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) ability to care for oneself, and (6) health and physical well being. 20 C.F.R. § 416.926a(b)(1). Ultimately, a child's impairment or combination of impairments "must result in `marked' limitations in two domains of [functionality] or an `extreme' limitation in one domain." 20 C.F.R. § 416.926a(a).
The ALJ found Elijah did not have an impairment or combination of impairments that functionally equaled a listed impairment. Tr. 22. Specifically, the ALJ found Elijah had a less than marked limitation in acquiring and using information, a less than marked limitation in attending and completing tasks, a less than marked limitation in interacting and relating with others, a marked limitation in moving about and manipulating objects, a less than marked limitation in his ability to care for himself, and a less than marked limitation in health and physical well-being. Tr. 25-32.
This Court's role in review of the ALJ's decision requires a determination of whether the decision of the ALJ is supported by substantial evidence on the record as a whole.
This Court may also ascertain whether the ALJ's decision is based in legal error.
Plaintiff's sole argument and the sole issue on review is whether the ALJ erred in failing to find that Elijah had a marked limitation in his ability to care for himself. Docket No. 11, at 4. If Elijah has a marked limitation in his ability to care for himself, this, together with his marked limitation in moving about and manipulating objects, would render his impairment functionally equivalent to a listed impairment, and he would be entitled to SSI benefits.
Both the Commissioner and the ALJ maintain that the domain of caring for oneself solely relates to the child's mental frame of mind; that is, if a child has the desire and drive to care for himself, he does not have severe or marked limitations. This Court disagrees. The ability to care for oneself logically involves both a child's frame of mind and his actual, physical capabilities.
The regulations provide that the ability to care for oneself refers to how well a child maintains "a healthy emotional and physical state, including how well" he gets his "physical and emotional wants and needs met in appropriate ways;" how he copes "with stress and changes in [his] environment; and whether" he actually takes "care of [his] health, possessions, and living area." 20 C.F.R. § 416.926a(k). Among other things, it involves an ability to respond to change, a sense of independence and competence to meet ones "physical needs, such as feeding, dressing, toileting, and bathing, appropriately for [one's] age;" it also indicates a child is developing appropriate confidence in his abilities and skills and displays consistent judgment, and a basic understanding of his body. 20 C.F.R. § 416.926a(k)(1).
While the regulations certainly emphasize that a child's emotional health relates to his ability to care for himself, this does not eliminate the common sense implication that it also involves a child's actual physical capabilities. "A single impairment . . . may result in limitations that require evaluation in more than one domain." SSR 09-1P, 3. The act of tying one's shoes typically involves both the domain of moving about and manipulating objects and the domain of caring for oneself. SSR 09-1P, 4. In addition, as an example of children with limited functioning in the domain of caring for oneself, the regulations repeatedly identify children that cannot dress or bathe themselves appropriately for their age. 20 C.F.R. § 416.926a(k)(3)(iii) and 20 C.F.R. § 416.926a(k)(2)(iv) (dealing with children the age of Elijah).
Furthermore, in order to determine whether a child's limitations are functionally equivalent to a listed impairment, the SSA has crafted the "whole child approach." SSR 09-1P. Under the whole child approach, an ALJ must identify limits on a child's activity, view those limits in the context of the domains involved in performing it, and then determine the severity of those limitations on activity within each domain to which they apply. SSR 09-1P, 1-2. In aid of this process, the ALJ should keep the following questions in mind: (1) What activities is the child able to perform? (2) What activities is the child unable to perform? (3) Where does the child have difficulty with his activities — at home, in childcare, at school, or in the community? (4) Does the child have any difficulty independently initiating, sustaining or completing activities? (5) What kind of help does the child need to do his activities, how much help does he need, and how often does he need it? 20 C.F.R. § 416.926a(b)(2). Clearly, under the whole child approach, a child's actual, physical abilities is significant as to the activities carried out under each domain. While emotional maladjustment is a factor in determining whether a child can care for himself, when, where, and if a child can perform the actual activities of caring for himself is also, obviously, significant.
The ALJ's failure to properly consider Elijah's actual, undisputed, physical limitations in relation to his ability to care for himself resulted in clear error, but the question remains: should this Court remand Elijah's case for further proceedings to determine whether Elijah's limitations are marked, or should this Court simply remand Elijah's case for the calculation of benefits? The Eighth Circuit has held that a remand for award of benefits is appropriate only where "the record `overwhelmingly supports'" a finding of disability.
A decision as to whether a limitation is marked or extreme must consider all of a child's "impairments, including their interactive and cumulative effects" as compared with typical children of the same age. 20 C.F.R. § 416.926a(e)(1)(I) and (f)(1). A "marked" limitation indicates that a child's impairments seriously interfere with his "ability to independently initiate sustain, or complete activities." 20 C.F.R. § 416.926(e)(2).
The Commissioner's brief argues that Elijah's school reports indicate his actual limitations in his ability to care for himself were not marked. Docket No. 12, 12. Two school therapists indicated that Elijah "demonstrated significant progress" in his ability to function in the classroom, though he still required some assistance. Tr. 344. Elijah's kindergarten teacher also indicated that he had only an "obvious"
While "progress" is certainly a good sign, it is, of course, relative to the individual child's starting point; and a child's limitations may still be marked for any given domain despite progress. In addition, a child's ability to care for himself in the classroom is not the same as a child's overall ability to care for himself, which naturally involves activities, such as bathing and dressing, that occur at home. Furthermore, opinions from teachers, though they are entitled to some weight, are not dispositive. Teachers lack familiarity with the rules, regulations, and terms of art specific to disability determinations. Finally, the opinions of teachers are not entitled to the same wight given to medically proven limitations on relevant activity.
Neither the ALJ, the Commissioner, nor the Plaintiff seem to disagree about the limitations on Elijah's activities or the scope of those limitations. As previously mentioned, Elijah's right arm is nearly completely paralyzed, and this affects his ability to care for himself in numerous respects. He has difficulty tying shoes, buttoning shirts, and operating zippers, without assistance. He also has difficulty brushing his teeth and doing basic chores. In general, Elijah is unable to do almost all activities which require the use of two hands and has not yet developed the techniques that older persons may develop to cope with similar limitations. Finally, his problems are compounded by the fact that his paralyzed arm, is his dominant arm.
The undisputed fact is that Elijah cannot perform basic activities of self-care that other children his age can, and therefore, the overwhelming weight of the evidence supports the conclusion that Elijah's ability to self-care is markedly limited.
