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J.L.V. v. Saul

United States District Court, D. South Carolina, Greenville Division

November 6, 2019

J.L.V., a minor, by his mother Michelle Volpe, parental natural guardian, Plaintiff,
v.
Andrew M. Saul, Commissioner of Social Security, Defendant.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).[1]

         The plaintiff brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her son's claim for supplemental security income benefits under Title XVI of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed an application for supplemental security income (“SSI”) benefits on behalf of her son (“J.L.V.” or “the claimant”), a child under the age of 18, on January 22, 2015, alleging disability commencing August 1, 2014. The application was denied initially and on reconsideration by the Social Security Administration. On September 30, 2015, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff, J.L.V., and their attorney appeared during a hearing on August 17, 2017, considered the case de novo, and on November 13, 2017, found that the claimant was not under a disability as defined in the Social Security Act, as amended (Tr. 13-25). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on September 14, 2018 (Tr. 1-3). The plaintiff then filed this action for judicial review.

         In making the determination that the claimant is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant was born on September 5, 2008. Therefore, he was a school-age child on January 22, 2015, the date application was filed, and is currently a school-age child (20 C.F.R. § 416.926a(g)(2))
(2) The claimant has not engaged in substantial gainful activity since January 22, 2015, the application date (20 C.F.R. §§ 416.924(b) and 416.971 et seq.)
(3) The claimant has the following severe impairments: autism, attention-deficit hyperactivity disorder, and anxiety (20 C.F.R. § 416.924(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.924, 416.925 and 416.926).
(5) The claimant does not have an impairment or combination of impairments that functionally equals the severity of the listings (20 C.F.R. §§ 416.924(d) and 416.926a).
(6) The claimant has not been disabled, as defined in the Social Security Act, since January 22, 2015, the date the application was filed (20 C.F.R. § 416.924(a)).

         The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.

         APPLICABLE LAW

         For purposes of eligibility for Title XVI children's disability benefits, an individual under age 18 will be considered disabled if he has a “medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.906; see also 42 U.S.C. § 1382c(a)(3)(C)(I). The Commissioner's regulations establish a three-part evaluation process: (1) determine whether the child is currently engaged in substantial gainful activity. If so, he is not disabled; if not, (2) determine whether the child has a severe impairment or impairments. If not, he is not disabled; if so (3) determine whether the child's impairments meet, medically equal, or functionally equal any impairment listed at 20 C.F.R. Pt. 404, Subpt. P, App.1 (the Listings). If not, he is not disabled. 20 C.F.R. § 416.924(b)-(d). If the claimant's impairment or combination of impairments does not meet or medically equal the requirements of a Listing, the Commissioner will decide whether it results in limitations that functionally equal such requirements. Id. § 416.926a(a). To assess functional equivalence, the Commissioner considers how the claimant functions in activities in terms of six domains, broad areas of functioning intended to capture all of what a child can or cannot do. Id. § 416.926a(b)(1). These domains 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 oneself, and (6) health and physical well being. Id.

         To establish functional equivalence, the claimant must have a medically determinable impairment or combination of impairments that results either in “marked” limitations in two domains or an “extreme” limitation in one domain. Id. § 416.926a(a). The Commissioner will find that a claimant has a “marked” limitation in a domain when the claimant's impairment or combination of impairments interferes seriously with his ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2)(I). “Marked” limitation also means a limitation that is “more than moderate” but “less than extreme” and may arise when several activities or functions are limited or when only one is limited. Id. The Commissioner will find that the claimant has an “extreme” limitation in a domain when the claimant's impairment or combination of impairments interferes very seriously with his ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(3)(I). Extreme limitation also means a limitation that is “more than marked” and may arise when several activities or functions are limited or when one is limited. Id.

         The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the correct law was applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. See Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase “supported by substantial evidence” is defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.”

Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citation omitted).

         Thus, it is the duty of this court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         EVIDENCE PRESENTED

         J.L.V. was six years old on the date the application was filed (January 22, 2015) and nine years old at the time of the ALJ's decision (November 13, 2017) (Tr. 16).

         In March and April 2013, a comprehensive assessment of J.L.V. was conducted to determine if he was eligible for special education services with the Berkeley County School District. J.L.V. was four years, seven months old at the time. The assessment consisted of interviews with J.L.V. and the plaintiff (his mother), psychometric and behavioral testing, and reports from the plaintiff. It was noted that he began receiving early intervention service through BabyNet in July 2010. In 2011, he had been diagnosed at the Coastal Autism Division with Pervasive Developmental Disorder - Not Otherwise Specified (“PDD-NOS”). In August 2011, he was determined eligible for special education services due to developmental delay and secondary language impairment. Services were declined at that time. On March 21, 2013, the plaintiff took J.L.V. to the Berkeley County School District Child Find office due to concerns with behaviors. He had recently been asked to leave his daycare due to aggression (Tr. 309.) Overall, the assessment found that J.L.V. demonstrated delays in visual motor integration skills and displayed sensory seeking behaviors, which could interfere with his ability to participate and engage in activities within the school setting independently (Tr. 310).

         On October 29, November 20, and December 4, 2013, Jeffrey S. Selman, Psy.D, BCBA-D, conducted a psychological evaluation of J.L.V. (Tr. 321-30). He was five years, five months old at the time and in preschool. The evaluation did not provide objective evidence of attention deficit hyperactivity disorder (“ADHD”). However, Dr. Selman noted that many challenging behaviors were not uncommon in children with PDD-NOS. He also noted that a number of the reported symptoms of ADHD may not present fully until elementary school in full-day classes (Tr 326-30).

         On October 20, 2014, when J.L.V. was six years old, Zoe K. Pogue, M.D., at Lowcountry Pediatrics, P.A., conducted a well check (Tr. 335-39). The plaintiff expressed concerns about J.L.V. being a picky eater, possible adhesion, and waking up every night. He was mainstreamed in school and had resource. He tested well verbally but had trouble “transferring from brain to paper.” His school was revising his Individualized Education Program (“IEP”). He continued to have speech and occupational therapy (“OT”). He had been receiving social behavioral therapy, which was being changed to academic behavioral therapy. In OT, J.L.V. was working on buttoning, putting on socks, and pencil grip. He would not eat any fruits, and bacon was the only meat he would eat. On examination, Dr. Pogue noted his growth and development were normal. He showed appropriate behavior at home and at school and appropriate behavior when playing with friends. He could read and do math at grade level and showed pride in achievements. J.L.V. could talk about what goes on in school, and he completed school work. Dr. Pogue assessed oral/texture aversion, with referral to outpatient OT or speech therapy. Diagnoses included PDD, with continued OT, speech, and academic behavioral training/resource at school (Tr. 336-39).

         On October 23, 2014, J.L.V. underwent an OT evaluation at Charleston Pediatric Rehabilitation in North Charleston (Tr. 393).

         On December 15, 2014, faculty and staff at Boulder Bluff Elementary School developed an IEP for J.L.V.. He was six years old and in kindergarten. The primary area of disability was developmental delay, and the secondary area of disability was speech/language impairment. His behavior impeded his learning or the learning of others. He displayed an articulation disorder characterized by sound substitutions. He was strong in basic rote knowledge and used nice behaviors in play with peers and working with adults. He had difficulty with fine motor skills, speaking clearly, staying on task, applying his basic skills knowledge, and following directions when having to work independently. When J.L.V. was around a larger group of peers he demonstrated more difficulties with attention, distracting movements, and patience. He rushed through assignments. Due to his deficiencies in speech, sensory processing, motor skills, and behavior skills, he was unable to access the general education curriculum and required special education services. At the time of the IEP, J.L.V. was unable to complete age-appropriate fine motor/visual perceptual classroom activities without assistance (Tr. 354-55).

         It was noted in the IEP that the plaintiff reported that J.L.V. was a very picky eater. He did not like to have his teeth brushed. His teacher, Ms. Bell, reported that he had a hard time remaining attentive in class. He moved and wiggled a lot, and he required his own extra space to keep his body to himself. J.L.V. had difficulties with multi-step directions. He was able to be functionally independent within the classroom with some difficulties following routines and opening meal containers/packages. J.L.V. was unable to button or unbutton large buttons, tie his shoes, and required prompting and redirections while dressing or undressing (Tr. 357). He made frequent noises in the classroom but stopped when asked. He engaged in parallel play with peers. He needed frequent redirection in the classroom. Regarding motor skills, the evaluation team reported that J.L.V. had difficulties with grip dressing tasks and sensory differences. He had difficulties with intelligibility in the school setting (Tr. 357-69).

         Findings included speech/language skills were at a percentile rank of 12%, with an age-equivalent score of three years, 11 months. He had mild-moderate deficit in articulation, characterized by sound substitutions, and the phonological process of gliding was also present. His intelligibility decreased during connected speech, and it became more difficult to understand him. He had age-appropriate skills in the areas of receptive language, expressive language, pragmatic language, voice, and fluency. The team concluded that J.L.V. “is unable to complete age-appropriate fine motor/visual perceptual classroom activities without assistance at this time. He uses a loose grip on his writing utensil, writing very lightly and showing difficulties with letter formation and writing within a designated space.” A profile completed by the outside occupational therapist and the plaintiff indicated that J.L.V. “may have high thresholds for certain sensory stimuli and therefore seeks out and creates ...


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