KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff, Nichelle Johnson ("Plaintiff") on behalf of her son, JAVJ, a minor, ("Claimant"), seeks judicial review of the final decision of the Defendant, Commissioner of Social Security ("Commissioner"), denying Claimant's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (The "Act"). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 16.
For the reasons set forth below, the Commissioner's decision is
On or about May 5, 2010, Claimant's mother filed an application for SSI on behalf of Claimant. Tr. 28, 51, 135-139, 148. Plaintiff alleged that Claimant was disabled based on liver problems, sickle cell anemia, hepatitis C, and ADD. Tr. 29, 38, 71, 81, 161. Plaintiff alleged that Claimant's disability onset date was January 1, 2004.
Claimant was born in 2000. Tr. 135, 148. At the time of the hearing, Claimant was on summer break. Tr. 13. He had just finished summer school for math, language arts, and English. Tr. 13. Once school resumed, he would be entering the seventh grade. Tr. 13. Claimant has never been held back in classes but he has had to take summer school for the past three years in order to advance to the next grade. Tr. 13. Claimant has lived with his mother since his birth. Tr. 12-13.
Plaintiff was represented by counsel and testified at the hearing. Tr. 12-15, 15-17. Plaintiff stated that Claimant is a good kid but it is hard for him to sit still and follow directions. Tr. 14. Claimant is forgetful and has to be reminded to do things. Tr. 14. When Claimant is feeling well, he likes bouncing off the couch, playing video games and watching television. Tr. 14. He does not always feel well because he is highly fatigued and has no energy. Tr. 14. He gets fevers and complains of belly pain. Tr. 14. Because of health related issues, Claimant missed approximately 10-12 days of school during the prior school year. Tr. 15.
Dr. Milford Schwartz, M.D., a pediatrician, testified as a medical expert ("ME") during the hearing. Tr. 15-24, 123-124, 126. The ME indicated that Claimant had the following severe impairments: chronic hepatitis C, factor IX deficiency,
As a result of the foregoing, Claimant's counsel agreed to work on getting an updated teacher questionnaire and, because it was the summertime, the ALJ granted Claimant's counsel 60, rather than the customary 30, days in which to submit the additional evidence. Tr. 19-20, 25-26.
Claimant was exposed to drugs and alcohol in utero. Tr. 324, 453. He has hepatitis C and sickle-cell trait. Tr. 319, 363, 421, 424, 450. He contracted hepatitis C at birth. Tr. 363. He also has factor IX deficiency. Tr. 363, 427. Claimant has had multiple liver biopsies. Tr. 363. He has had problems gaining weight. Tr. 431. He also has attention deficit hyperactivity disorder. Tr. 328, 458.
Dr. Rachel B. Tangen, Ph.D., ABPP-CN, of Rainbow Babies & Children Hospital, completed two neuropsychological evaluations. Tr. 324-335, 453-464. The first evaluation was completed at the end of 2009 and the beginning of 2010 following reports from Claimant's mother that she was concerned about Claimant's inattention, impulsiveness, forgetfulness, hyperactivity, and a decline in his school grades. ("2009 evaluation) Tr. 324-335. The evaluation was conducted in order to assess Claimant's cognitive, academic, and behavioral functioning. Tr. 324-335. Two years later, in April 2012, Claimant was referred again to Dr. Tangen for a neuropsychological re-evaluation to reassess Claimant's cognitive problems related to his early medical history. ("2012 evaluation").
Based on her evaluation, Dr. Tangen diagnosed Claimant with: cognitive disorder, not otherwise specified (due to medical condition); executive function deficits (working memory, sustained attention, impulse control, planning, cognitive flexibility); fine motor and visual motor deficits; visual memory deficits; attention deficit hyperactivity disorder, combined type. Tr. 328. With respect to Claimant's attention/executive functions, Dr. Tangen concluded that overall Claimant showed significant deficits in attention and executive function skills. Tr. 327. As part of the summary portion of her opinion, Dr. Tangen stated:
Tr. 328.
In her 2012 evaluation, Dr. Tangen noted that, since his 2009 evaluation, Claimant had started taking Concerta, which had been prescribed by his pediatrician. Tr. 453; see also Tr. 382 (March 2010 office visit note indicating that Claimant was going to begin a trial of Concerta). Based on her 2012 re-evaluation, Dr. Tangen diagnosed Claimant with: attention deficit hyperactivity disorder, combined type; cognitive disorder, NOS (due to medical history); executive function deficits (working memory, sustained attention, impulse control, planning, cognitive flexibility); and mild motor and visual memory deficits. Tr. 458. With respect to Claimant's attention/executive functions, Dr. Tangen concluded that:
Tr. 456. As part of the summary portion of her opinion, Dr. Tangen stated:
Tr. 458.
In December 2009, while Claimant was in the fourth grade, school psychologist Michelle Woody observed and evaluated Claimant's behavior. Tr. 309-312. Claimant's mother reported that the transition from third to fourth grade had been hard for Claimant. Tr. 309. Claimant's fourth grade teachers reported that Claimant acted and reacted impulsively. Tr. 309. Based on Ms. Woody's observations, she made several classroom intervention suggestions, including preferential seating near his teacher to help prevent off task behavior; placing Claimant on a behavior contract; Claimant should try to wait until a question is asked before raising his hand; reinforcement of the importance of checking/editing work before turning it in; and more practice in being prepared and organized for class. Tr. 311-312.
On May 25, 2010, Claimant's homeroom teacher, Bonita Bohn, who taught Claimant spelling and religion, completed a Social Security Administration Teacher Questionnaire. Tr. 346-353. She rated Claimant's abilities in the six domains of: (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 himself; and (6) health and physical wellbeing. Tr. 347-352. With respect to the attending and completing tasks domain, Ms. Bohn rated Claimant in 13 categories.
(1) carrying out multi-step instructions; (2) waiting to take turns; (3) changing from one activity to another without being disruptive; (4) completing class/homework assignments; (5) completing work accurately without careless mistakes; and (6) working at reasonable pace/finishing on time. Tr. 348. She rated Claimant as having a very serious problem in 2 categories — (1) organizing own things or school materials; and (2) working without distracting self or others. Tr. 348. Also, with respect to the attending and completing tasks domain, Ms. Bohn noted that Claimant "needs constant cues to remain on task and reminders to stay in his seat and not walk around the room disturbing others." Tr. 348.
On May 22, 2012, Claimant's religion, math, science and social studies teacher, D'arcy A. Zeigler, completed a Social Security Administration Teacher Questionnaire wherein she also rated Claimant's abilities in the six domains.
The standard for evaluating a child's disability claim differs from that used for an adult. 42 U.S.C. § 1382c(a)(3)(C); see also Miller ex rel. Devine v. Comm'r of Soc. Sec., 37 Fed. Appx. 146, 147-148 (6th Cir. 2002). A child is considered disabled if he has a "medically determinable physical or mental impairment that results in marked and severe functional limitations and can be expected to result in death or 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).
To determine whether a child is disabled, the regulations prescribe a three-step sequential evaluation process. 20 C.F.R. § 416.924(a). At Step One, a child must not be engaged in "substantial gainful activity." 20 C.F.R. § 416.924(b). At Step Two, a child must suffer from a "severe impairment." 20 C.F.R. § 416.924(c). At Step Three, disability will be found if a child has an impairment, or combination of impairments, that meets, medically equals or functionally equals an impairment listed in 20 C.F.R. § 404, Subpt. P, App. 1; 20 C.F.R. § 416.924(d).
At Step Three, to determine whether a child's impairment functionally equals the Listings, the Commissioner will assess the functional limitations caused by the impairment. 20 C.F.R. § 416.926a(a). The Commissioner will consider how a child functions in the following six domains: (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 oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). If a child's impairment results in "marked" limitations
In his October 17, 2012, decision, the ALJ made the following findings:
Based on the foregoing, the ALJ determined that Claimant had not been under a disability since May 5, 2010, the date the application was filed. Tr. 62.
Plaintiff argues that, in addition to finding a marked impairment in the domain of health and physical well-being, the ALJ should have found a second marked impairment in the attending and completing tasks domain. Doc. 18, pp. 6-8, Doc. 21. Plaintiff argues that, when finding less than marked impairment in the domain of attending and completing tasks, the ALJ improperly relied entirely upon Dr. Tangen's April 2012 neuropsychological evaluation and failed to fully articulate his rationale for not finding a marked limitation in that domain. Doc. 18, pp. 6-8, Doc. 21. Plaintiff also adds that, because the ME stated that he needed more information in order to provide an opinion regarding functional equivalency, the ALJ erred by not sending the records submitted after the hearing to the ME or, alternatively, scheduling a supplemental hearing. Doc. 18, p. 8. Plaintiff also argues that the ALJ erred in evaluating the credibility of her statements regarding her son's impairments and the extent of his limitations. Doc. 18, pp. 8-10.
In response, the Commissioner argues that the ALJ properly relied upon Dr. Tangen's April 2012 evaluation and that the ALJ's finding of less than marked limitations in the attending and completing tasks domain was supported by substantial evidence. Doc. 20, pp. 6-8. With respect to Plaintiff's contention that the ALJ should have sent additional information to the ME or should have scheduled a supplemental hearing, the Commissioner argues that an ALJ has discretion to determine whether ME testimony is necessary and, in this case, the ALJ had sufficient information upon which to make his determination. Doc. 20, p. 8. The Commissioner also argues that the ALJ considered Plaintiff's testimony and reasonably evaluated the credibility of her testimony. Doc. 20, pp. 8-10.
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
A court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987). An "ALJ's failure to follow agency rules and regulations denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Cole, 661 F.3d 931, 939-940 (6th Cir. 2011) (citing Blakely v. Comm'r of Soc Sec, 581 F.3d 399, 407 (6th Cir. 2009) (internal quotations omitted)).
Plaintiff challenges that ALJ's finding of less than marked limitation in the attending and completing tasks domain. Doc. 18, pp. 6-8, Doc. 21. Plaintiff argues that, since the ALJ found a marked limitation in another domain, i.e., health and physical well-being, had the ALJ found a marked limitation in attending and completing tasks, Plaintiff would have an impairment that functionally equals a listing.
With respect to the domain of attending and completing tasks, the ALJ stated:
Tr. 58.
Plaintiff contends that the foregoing demonstrates that the ALJ did not fully consider the entire record and/or did not explain how the April 2012 evaluation correlated to mild difficulties in attending and completing tasks. However, the ALJ's finding of less than marked limitation in attending and completing tasks was supported by Dr. Tangen's 2012 evaluation. As reflected in the April 2012 evaluation, although Dr. Tangen found that Claimant showed deficits in attention and executive function, she opined that those deficits were mild and Claimant had shown significant improvement in cognitive functioning since he started taking his stimulant medication (Concerta). Tr. 458.
Plaintiff acknowledges that the April 2012 evaluation suggested that Claimant had mild problems and scored in the average range in many of the areas that were tested. Doc. 21, p. 3. However, she argues that there are other portions of Dr. Tangen's April 2012 evaluation that would support a finding of marked limitation in the attending and completing tasks domain. Doc. 21, p. 3. For example, Plaintiff points out that Dr. Tangen stated in the evaluation that, while there had been some improvement in Claimant's attention, according to his mother, he continued to have problems with organization and comprehension. Tr. 453. Also, Claimant was fidgety, over active and talkative. Tr.453, 454. Also, Plaintiff points out that, on examination, Dr. Tangen observed that Claimant's attention during one-on-one testing was appropriate but he had difficulty with self-directed attention tasks and he talked to himself during tasks. Tr. 454. While Plaintiff contends that there are statements within Dr. Tangen's report that the ALJ did not reference, an ALJ is not required to cite to each and every piece of evidence. See Kornecky v. Comm'r of Soc. Sec., 167 Fed. Appx. 496, 508 (6th Cir. 2006). Moreover, while Plaintiff contends that those statements support a finding of marked limitation in the attending and completing tasks domain, even if there is substantial evidence or indeed a preponderance of the evidence to support a claimant's position, a reviewing court cannot overturn the Commissioner's decision "so long as substantial evidence also supports the conclusion reached by the ALJ." Jones, 336 F.3d at 477. Additionally, in determining whether there is substantial evidence to support the Commissioner's decision, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Gaffney, 825 F.2d at 100. Here, as discussed, Dr. Tangen's April 2012 evaluation supports the ALJ's finding of less than marked limitation in the attending and completing tasks domain.
Plaintiff argues that the ALJ erred by not obtaining further ME testimony after receiving Dr. Tangen's April 2012 evaluation or a more current teacher questionnaire. Doc. 18, pp. 8, 10. However, whether or not ME testimony is necessary is within the ALJ's discretion. See 20 C.F.R. 416.927(e)(2)(iii) ("Administrative law judges may also ask for and consider opinions from medical experts on the nature and severity of your impairment(s) and on whether your impairment(s) equals the requirements of any impairment listed in appendix 1 to subpart P of part 404 of this chapter.") (emphasis supplied). Further, Plaintiff has not alleged special circumstances or that a heightened duty to develop the record applied in this case and, absent special circumstances, such as where a claimant is not represented by counsel, there is no heightened duty on an ALJ to develop the record and the claimant bears the burden of proving disability. See Wilson v. Comm'r of Soc. Sec., 280 Fed. Appx. 456, 459 (6th Cir. 2008). Thus, Plaintiff has failed to demonstrate that the ALJ committed error by not obtaining further ME testimony.
Even if it was determined that the ALJ was required to take additional steps to develop the record by obtaining further ME testimony, Plaintiff has failed to demonstrate that the ALJ's failure to do so prejudiced Claimant. The ME indicated that he would be interested in seeing a more current teacher questionnaire to see the impact, if any, Claimant's medication had on his non-physical functional abilities. Tr. 18-19, 20. However, to the extent that Plaintiff claims that the ALJ erred in not providing the ME with a copy of Ms. Zeigler's May 22, 2012, teacher questionnaire (Tr. 253-260),
In light of the foregoing, the Court concludes that reversal and remand is not warranted for further ME testimony regarding additional evidence submitted after the hearing.
Plaintiff argues that the ALJ improperly discounted her statements regarding the severity of Claimant's symptoms when finding that Claimant had less than marked limitation in the attending and completing tasks domain. Doc. 18, pp. 8-10. In particular, Plaintiff argues that the record supported Plaintiff's statements regarding how fatigued Claimant was when he returned from school but the ALJ improperly discounted this testimony. Doc. 18, p. 10.
Social Security Ruling 96-7p and 20 C.F.R. § 404.1529 describe a two-part process for assessing the credibility of an individual's subjective statements about his or her symptoms. First, the ALJ must determine whether a claimant has a medically determinable physical or mental impairment that can reasonably be expected to produce the symptoms alleged; then the ALJ must evaluate the intensity and persistence associated with those symptoms to determine how those symptoms limit a claimant's ability to work.
When evaluating the intensity and persistence of a claimant's symptoms, consideration is given to objective medical evidence and other evidence, including: (1) daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c); Soc. Sec. Rul. 96-7p, 1996 WL 374186, at * 3 (July 2, 1996). "An ALJ's findings based on the credibility of the applicant are to be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Nevertheless, an ALJ's assessment of a claimant's credibility must be supported by substantial evidence." Calvin v. Comm'r of Soc. Sec., 437 F. Appx. 370, 371 (6th Cir. 2011) (citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)).
When assessing the credibility of Plaintiff's and Claimant's statements regarding the severity of Claimant's alleged symptoms, the ALJ stated:
Tr. 55. The ALJ thereafter proceeded to discuss each of the six domains. Tr. 56-62.
Plaintiff claims that the ALJ simply recited the boilerplate language. However, as noted above, the ALJ considered and relied upon medical and school reports in finding that Plaintiff's and Claimant's claim that Claimant had marked limitations in domains other than domain six, i.e., health and physical well-being, was not supported by the record. Tr. 55-62. To the extent that Plaintiff suggests that, because the ALJ acknowledged that there was evidence that Claimant's history of chronic hepatitis disorder was causing severe limitations, the ALJ was bound to accept Plaintiff's and Claimant's statements that he had marked limitations in at least two domains, Plaintiff's argument is unpersuasive. The ALJ's conclusion that there was evidence that Claimant's history of chronic hepatitis disorder was causing severe limitations was made with respect to his evaluation of domain six, i.e., health and physical well-being. Tr. 62. The ALJ ultimately concluded that the Claimant did in fact have a marked limitation in the health and physical well-being domain. Thus, the ALJ accepted Plaintiff's and Claimant's statements to the extent that the ALJ found those statements to be supported by the other evidence of record. However, the ALJ's finding of a marked limitation in the domain of health and physical wellbeing did not require the ALJ to find a marked limitation in one or more of the remaining five domains. As discussed above, the ALJ's finding with respect to the domain of attending and completing tasks was supported by substantial evidence.
Although Plaintiff disagrees with the ALJ's credibility assessment, the ALJ's analysis is sufficiently clear to allow this Court to determine whether the ALJ conducted a proper credibility assessment and whether that determination is supported by substantial evidence. Soc. Sec. Rul. 96-7p, 1996 WL 374186, at 4. In reviewing an ALJ's credibility determination, a court is "limited to evaluating whether or not the ALJ's explanations for partially discrediting [claimant's testimony] are reasonable and supported by substantial evidence in the record." Jones, 336 F.3d at 476; see also Gaffney, 825 F.2d at 100 (A court may not "try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.").
Having reviewed the ALJ's decision, and considering that an ALJ's credibility assessment is to be accorded great weight and deference, considering the improvement in Claimant's symptoms reflected in both medical records as well as school records, the undersigned finds that the ALJ's credibility analysis regarding the severity of Claimant's impairments is supported by substantial evidence. Accordingly, Plaintiff's request to reverse and remand the Commissioner's decision on the basis of the ALJ's credibility assessment is without merit.
For the foregoing reasons, the Court
