FRANK H. McCARTHY, Magistrate Judge.
Plaintiff seeks judicial review of a decision of the Commissioner of the Social Security Administration denying Social Security disability benefits.
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C. § 405(g) is limited to a determination of whether the record as a whole contains substantial evidence to support the decision and whether the correct legal standards were applied. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if supported by substantial evidence, the Commissioner's decision stands. Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Plaintiff
The procedures for evaluating disability for children are set out at 20 C.F.R. § 416.924(a). The first step is to determine whether the child is performing substantial gainful activity. If not, the next consideration is whether the child has a "severe" mental or physical impairment. A "severe" impairment is one that causes more than minimal functional limitations. If a "severe" impairment is identified, the claim is reviewed to determine whether the child has an impairment that: 1) meets, medically equals, or functionally equals the listings of impairments for children;
The ALJ determined that Plaintiff does not have an impairment or a combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. § 416.926a(e)(2)(I). The ALJ also determined that Plaintiff does not have an impairment or combination of impairments that functionally equal the severity of the listings. In this regard the ALJ found that Plaintiff has less than marked limitation in the domain of Acquiring and Using information; a marked limitation in the domain of Attending and Completing Tasks; a less than marked limitation in the domain of Interacting and Relating with Others; a less than marked limitation in the domain of Moving About and Manipulating Objects; a less than marked limitation in the domain of the Ability to Care for Himself; and less than marked limitation in the domain of Health and Physical Well-Being. [R. 26-33]. Because Plaintiff does not have an impairment or combination of impairments that result in either "marked" limitation in two domains of functioning or an "extreme" limitation in one domain of functioning, the ALJ found that Plaintiff is not disabled as defined by the Social Security Act.
Plaintiff asserts that: 1) the ALJ's Step Three findings are conclusions that are not specific as required by law; 2) the ALJ erred in his findings regarding the functional equivalence domains; and 3) the Decision in this case was rendered by an Administrative Law Judge whose appointment was invalid at the time he rendered his decision. [Dkt. 15, p. 5].
Plaintiff argues that the evidence in this case provides documentation that he meets or equals listings in §§ 112.10 and 112.11. [Dkt. 15, p. 6-9]. The following criteria must be met for a finding of disability under §§ 112.10 and 112.11:
Plaintiff contends that the ALJ erred in failing to follow clear evidence, specifically the psychological examinations and reports of John Stewart, Ph.D., [R. 545-551], and consultative examiner Paul Schwartz, Ph.D., [R. 448-450], which provide documentation that Plaintiff's mental impairments are disabling and establishes he meets or equals Listing 112.10 and 112.11. [Dkt. 15, p. 7-9].
An intellectual evaluation was performed by Dr. Schwartz on April 14, 2015. As noted by the ALJ, Plaintiff was happy, polite, highly verbal, and cooperative. Plaintiff spoke quickly with age appropriate sentence structure, grammar, and he had no articulation problems. Plaintiff was highly impulsive, unfocused, and very restless. Plaintiff was prompted to slow down and pay attention many times which helped to a certain degree. Dr. Schwartz indicated Plaintiff's full-scale I.Q. score was 88 and determined that he exhibited functioning in the low average range with respect to his overall cognitive-intellectual abilities. Plaintiff's composite scores fell within the low average to average levels, however, test results were probably an underrepresentation of his optimal functioning. [R. 449-50].
Plaintiff presented to Dr. Stewart on May 9, 2017 for psychological examination. Plaintiff's mother reported he did not have significant difficulties in relationships with household members or peers, and had no behavioral difficulties at home or school. Plaintiff was not defiant and did not throw tantrum type behaviors. Plaintiff got stressed easily and would fidget and shake his hands. Plaintiff had difficulty speaking and problems learning, understanding, or remembering academic material. Plaintiff was also involved in the computer coding club and golf. As noted by the ALJ, Dr. Stewart found Plaintiff did not appear to become easily frustrated and his thought process was organized and reality based. He was cooperative throughout testing and responded to encouragement and compliments. His eye contact was poor and interactions were odd in nature. Plaintiff did not exhibit any difficulty sustaining attention, controlling his activity level, or with memory recall. He was not impulsive; insight appeared to be appropriate; and judgment was logical. Cognitive functioning revealed Plaintiff's Full-Scale I.Q. was 71, which is classified as very low. Verbal comprehension and fluid reasoning were average. Testing revealed Plaintiff had significant difficulties with inattention and visualmotor abilities were in the low average range. Plaintiff tended to isolate himself and had few interpersonal relationships. Plaintiff exhibited symptoms of Autism Spectrum Disorder and difficulties with inattentiveness.
Dr. Stewart opined that Plaintiff's cognitive deficits might interfere with his ability to function efficiently. Outpatient therapy was recommended to address his irritability and ADHD symptoms and indicated Plaintiff's mother should be a part of the therapy process to learn parenting skills and effective child management techniques. Plaintiff would also benefit from participation in organizations that would promote social interaction with same age peers such as church groups or athletic organizations. [R. 545-51].
The ALJ also noted that Christopher Klein, Ph.D., found Plaintiff was respectful, quick, active, cleaned up before moving to a new activity at the request of his mother, and frequently changed interests often returning back to some activities. In February 2015, Johna K. Smasal, Ph.D., observed Plaintiff complying with his mother's requests to clean up before moving on to another activity/toy, he gave good effort on cognitive and neuropsychological tasks, was overall focused and cooperative, and provided appropriate responses. In March 2015, consultative examiner, Keivan Abtahi, D.O., noted Plaintiff was cooperative, speech was one hundred percent intelligible, thought processes were normal, he was calm, not fidgety, and paid attention to questioning. [R. 24-25].
The ALJ clearly considered Listings §§ 112.10 and 112.11 as he specifically noted:
[R. 19].
The court finds that the ALJ's decision demonstrates that he adequately considered the evidence and the evidence does not demonstrate that Plaintiff met those listings. Accordingly, substantial evidence supports his conclusion. Plaintiff also argues that the ALJ engaged in picking and choosing the evidence to support his decision. [Dkt. 15, p. 7]. The court finds that the ALJ appropriately cited to the record to support his findings and that his findings are supported by substantial evidence.
As previously discussed, the ALJ found Plaintiff has a less than marked limitation in all six functional equivalence domains with the exception of a marked limitation in Attending and Completing Tasks. Plaintiff argues that he demonstrates "marked" limitations in the domains of Acquiring and Using Information and Interacting and Relating with Others. Further, he demonstrates an "extreme" limitation in the domain of Attending and Completing Tasks. According to Plaintiff, the ALJ failed to properly consider the Teacher Questionnaire which includes seven very serious problem responses to thirteen points. [Dkt. 15, p. 10-11, R. 378-85].
It is Plaintiff's burden to show that his impairments are equivalent to a listing. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Furthermore, all of the specified medical criteria must be matched to meet a listing. An impairment that manifests only some of the criteria, no matter how severely, does not qualify. Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 891, 107 L.Ed.2d 967 (1988). To "meet" a listed impairment, a child must demonstrate both the "A" and "B" criteria of the impairment. See 20 C.F.R. pt. 404, subpt. P, app. 1. "Paragraph A of the listings is a composite of medical findings which are used to substantiate the existence of a disorder" whereas the "purpose of the paragraph B criteria is to describe impairment-related functional limitations which are applicable to children." Id. Further, to be found disabled based on meeting a listed impairment, the claimant must exhibit all the elements of the Listing. If a child's impairment(s) do not "meet" a listed impairment, the impairment(s) may still be medically or functionally equal in severity and duration to the medical criteria of a listed impairment. See 20 C.F.R. § 416.926a. Medical equivalency is covered by 20 C.F.R. § 416.926; functional equivalency is covered by § 416.926a.
Acquiring and Using Information concerns how well a child is able to acquire or learn information, and how well a child uses the information he has learned. This domain involves how well children perceive, think about, remember, and use information in all settings, which include daily activities at home, at school and in the community. 20 C.F.R. 416-926a(g) and SSR 09-03p.
The court does not agree with Plaintiff's assertion that he demonstrates a "marked" limitation in the domains of Acquiring and Using Information. The ALJ specifically noted that Plaintiff's first grade teacher reported a very serious problem in reading and comprehending written material, comprehending and doing math problems, expressing ideas in written form, learning new material, and recalling and applying previously learned material and a serious problem comprehending oral instructions and providing organized oral explanations and adequate descriptions. However, Ms. Barr reported only an obvious problem in understanding school and content vocabulary and applying problemsolving skills and no problem in understanding and participating in class discussions. Physical examination reports of Plaintiff's memory/judgment were reported as normal.
Moreover, in the March 2017 IEP report, it was recommended Plaintiff use the resource room for math but would be returning to a regular education classroom with monitoring in reading because he made good progress and was reading at a proficient level. [R. 22-23]. Dr. Stewart reported that Plaintiff appeared to understand the meanings of words and concepts as well as most peers his age. Further, Plaintiff did not exhibit any difficulty with memory recall, his insight appeared to be appropriate, and judgment was logical. [R. 19, 27]. The court finds that the ALJ's determination that Plaintiff has a less than marked limitation in the domain of Acquiring and Using Information properly applies the terms and that the determination is supported by substantial evidence.
This domain considers how well a child is able to focus and maintain attention, and how well he is able to begin, carry through, and finish activities, including the mental pace at which he performs activities and the ease of changing activities. Attending and completing tasks also refers to a child's ability to avoid impulsive thinking and his ability to prioritize competing tasks and manage his time. 20 C.F.R. 416.926a(h) and SSR 09-04p.
Plaintiff argues that the ALJ erred in finding his limitation in the domain of Attending and Completing Tasks was "marked" and as opposed to "extreme." [Dkt. 15, p. 11]. The ALJ noted that Plaintiff's teacher reported he had a very serious problem focusing long enough to finish assigned activity or tasks, refocusing to tasks when necessary, carrying out multi-step instructions, organizing own things or school materials, completing tasks/homework assignments, completing work accurately without careless mistakes, and working at reasonable pace/finishing on time. She also reported only an obvious problem carrying out single-step instructions and working without distracting self or others, only a slight problem paying attention when spoken to directly, and no problem waiting to take turns and changing from one activity to another without being disruptive.
The ALJ acknowledged Dr. Smasal found Plaintiff needed constant redirection to remain in his seat, needed breaks every 10 to 15 minutes in order to maintain focus, easily distracted, interrupted when being asked a question, needed frequent reminders to focus, and needed questions repeated frequently. Dr. Stewart reported Plaintiff's eye contact was poor, however, he responded to encouragement and compliments. Plaintiff did not exhibit any difficulty sustaining attention or controlling his activity level, his insight appeared to be appropriate, and his judgment appeared to be logical. Dr. Schwartz reported Plaintiff remained highly impulsive, unfocused, and very restless. Plaintiff had to be prompted to slow down and pay attention which only helped to a certain degree. [R. 28-29].
The ALJ also discussed evidence indicating Plaintiff was cooperative, focused, calm, paid attention to questions, and gave good effort in tasks. The ALJ determined that the records, at most, indicate Plaintiff has mild to moderate expressive language difficulties, but did not support a learning disorder. [R. 24]. The court finds that the ALJ properly considered all of the evidence and that the evidence cited by the ALJ constitutes substantial evidence in support of his findings in this domain. The court disagrees with Plaintiff's contention that the highest rating of the Teacher Questionnaire of "very serious" should equate with the term "extreme" on the Listing Equivalence findings. Plaintiff failed to provide any authority supporting that proposition.
This domain considers how well a child is able to initiate and sustain emotional connections with others, develop and use the language of the community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others. Interacting and relating with others relates to all aspects of social interaction at home, at school, and in the community. Because communication is essential to both interacting and relating, this domain considers the speech and language skills children need to speak intelligibly and to understand and use the language of their community. 20 C.F.R. 416.926a(i) and SSR 09-05p.
Plaintiff argues that his limitation in the domain of Interacting and Relating with Others is at least at the "marked" level as opposed to "less than marked" as determined by the ALJ. [Dkt. 15, p. 12]. Plaintiff contends that his mother reported that he cannot make new friends, play team sports, does not like to be with other children, cooperate, or share well. [R. 337]. Dr. Stewart stated that Plaintiff tends to isolate himself, has few interpersonal relationships, and fails to find pleasure in relationships although he desires to have those relationships. [R. 549].
The ALJ noted that Plaintiff's mother also reported that he has friends his own age and generally gets along with herself, other adults, and his school teachers. Plaintiff does not have any behavior problems and is very sweet, loving, and caring. Plaintiff also had best friend(s) and participated in extracurricular activities. [R. 19-20]. Plaintiff's teacher reported only a slight problem following rules and using language appropriate to the situation and listener, and no problems playing cooperatively with other children, making and keeping friends, seeking attention appropriately, expressing anger appropriately, asking permission, responding/obeying adults in authority, and taking turns in a conversation. Dr. Stewart found Plaintiff to be cheerful and cooperative throughout testing. [R. 30].
The court finds that Plaintiff has pointed out the existence of contrary evidence in the record, but not the absence of substantial evidence to support the ALJ's determination that Plaintiff has a less than marked limitation in the domain of Interacting and Relating with Others.
Plaintiff argues that the ALJ who decided his case was not appointed in compliance with the Appointments Clause of the Constitution.
The Appointments Clause issue has been raised in a number of recent cases in response to Lucia v. S.E.C., ___ U.S. ___, 138 S.Ct. 2044, 2055, 201 L.Ed.2d 464 (2018) which held that the ALJs in the Securities and Exchange Commission (SEC) were not constitutionally appointed. The courts reviewing Social Security decisions where the Appointments Clause issue has been raised mostly find that the issue was forfeited because it was not raised before the Social Security Administration.
A small number of cases rely on the Court's analysis in Sims v. Apfel, 550 U.S. 103, 105, 120 S.Ct. 2080, 147 L. Ed.2d 80 (2000) and conclude that the Appointments Clause issue was not forfeited.
While Sims does not address issue exhaustion before the ALJ, the reasons cited by the Supreme Court to reject an issue exhaustion requirement before the Appeals Council also apply to the other steps in the Social Security Administration process. The statute still does not require issue exhaustion. In the 20 years since the Sims decision, the Social Security Administration has not enacted any regulation requiring issue exhaustion. The Social Security Administrative process remains non-adversarial and claimants, many of whom are unrepresented, are still not notified of any issue exhaustion requirement. Finally, the undersigned notes that a ruling that Sims does not apply to the other steps in the administrative process would result in an issue exhaustion requirement at some steps of the process and not at subsequent steps.
The court is persuaded that the cases finding that no forfeiture occurs when the claimant fails to raise the Appointments Clause issue before the Social Security Administration are better reasoned in light of the Supreme Court's analysis in Sims.
The court finds that at the time the decision in this case was entered, September 28, 2017, the ALJ who issued the decision under review was not appropriately appointed under the Appointments Clause of the Constitution. The court further finds that Plaintiff did not forfeit the Appointments Clause claim by failing to raise that issue before the Social Security Administration. As a result, the ALJ's decision is REVERSED and the case is REMANDED to the Commissioner for further proceedings before a different constitutionally appointed ALJ.
SO ORDERED.
