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Lovato v. Berryhill

United States District Court, D. Kansas

April 2, 2018

ANTONIO LOVATO, o/b/o A.J.L. Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying childhood disability and Supplemental Security Income (SSI) benefits under section 1614(a)(3)(C) of the Social Security Act, 42 U.S.C. § 1382c(a)(3)(C) (hereinafter the Act). Finding no error as alleged by Plaintiff in the Commissioner's final decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

         I. Background

         An application for SSI benefits was protectively filed for the minor claimant, A.J.L., alleging disability beginning January 1, 2011. (R. 23, 152)). The claimant exhausted administrative proceedings, and his father (hereinafter Plaintiff) filed this action on his behalf seeking judicial review of the Commissioner's decision. (R. 1, 67, 77); (Doc. 1). Plaintiff argues that the Administrative Law Judge (ALJ) erred in evaluating two of six domains which are “broad areas of functioning intended to capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(1).

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether she applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

         The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

A child under eighteen years of age is “disabled” if the child “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). A sequential three-step process guides the Commissioner's determination of whether a child meets this criteria. The administrative law judge (“ALJ”) must determine, in this order, (1) that the child is not engaged in substantial gainful activity, (2) that the child has an impairment or combination of impairments that is severe, and (3) that the child's impairment meets or equals an impairment listed in Appendix 1, Subpart P of 20 C.F.R. Pt. 404. 20 C.F.R. § 416.924(a).
In making the third determination-whether a child's impairment meets or equals a listed impairment-the ALJ must consider whether the impairment, alone or in combination with another impairment, “medically equals, or functionally equals the listings.” Id. The ALJ assesses all relevant factors, including (1) how well the child initiates and sustains activities, how much extra help he needs, and the effects of structured or supportive settings; (2) how the child functions in school; and (3) how the child is affected by his medications or other treatment. Id. § 416.926a(a)(1). The ALJ considers how a child functions in his activities “in terms of six domains”: “(i) Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and relating with others; (iv) Moving about and manipulating objects; (v) Caring for yourself; and, (vi) Health and physical well-being.” Id. § 416.926a(b)(1)(i)-(vi).

Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237-38 (10th Cir. 2001).

         Functional equivalence will be found only if a child has “marked” limitations in two domains of functioning, or an “extreme” limitation in one domain. Id. § 416.926a(a). A “marked” limitation is “a limitation that is more than moderate but less than extreme.” Id. To constitute a “marked” limitation, the claimant's impairment must interfere seriously with his ability to independently initiate, sustain or complete activities. Id. § 416.926a(e)(2)(i). This may mean serious limitation exists in only one activity, or in several activities. Id.

         “Extreme” is the rating given the worst limitations, and occurs when a claimant's impairment interferes very seriously with his or her ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(3)(i). An “extreme” limitation does not necessarily mean a total lack or loss of ability to function, but is more than “marked.” Id.; see also, Briggs, 248 F.3d at 1238, n.1 (stating definition of “functional equivalency, ” and “marked” and “extreme” limitations).

         Plaintiff does not allege error in the legal standard applied; his only argument of error is that the ALJ erred in evaluating two of the six domains used in determining whether the claimant's condition is functionally equivalent to a Listed Impairment- (ii) Attending and completing tasks, and (iii) Interacting and relating with others. He argues that, contrary to the ALJ's findings, the claimant has at least “marked” limitations in both domains and his condition should have been found functionally equivalent to a Listed Impairment. Therefore, the court addresses only the ALJ's consideration of these two domains.

         II. Discussion and Analysis

         Plaintiff argues that the ALJ erred in evaluating these two domains because “she assigned significant weight” to the opinion of the claimant's 6th grade teacher, Ms. Gandy, “but assessed limitations inconsistent with the opinion.” (Pl. Br. 8). In the domain of attending and completing tasks he argues that Ms. Gandy “noted ‘a very serious' problem on a daily basis completing classwork and working at a reasonable pace or finishing on time.” (Pl. Br. 10). He points out that Ms. Gandy noted the claimant failed to complete his assignments, and she spent one-on-one time with the claimant, redirecting him and keeping him from distracting the class. Id. He argues that Ms. Walker, the claimant's 5th grade teacher, also opined that the claimant had “a very serious” problem completing classwork and working at a reasonable pace or finishing on time on a daily basis. Id. Regarding the domain of interacting and relating with others, Plaintiff points out that Ms. Gandy opined that the claimant “had a ‘very serious problem' seeking attention appropriately and interpreting meaning of facial expressions, body language, hints, and sarcasm, ” and “a ‘serious problem' expressing anger appropriately and following rules.” Id. at 9. He argues that “a serious problem, ” or “a very serious problem” are the most extreme categories of behavior on the forms used by the claimant's teachers to express their opinions, and are ...


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