United States District Court, D. Kansas
KYLE W., o.b.o. T.D.W. Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
seeks review of a decision of the Commissioner of Social
Security denying Supplemental Security Income (SSI) benefits
to his minor son pursuant to sections 1602, and 1614(a) of
the Social Security Act, 42 U.S.C. §§ 1381a, and
1382c(a) (hereinafter the Act). Finding no error in the
Administrative Law Judge's (ALJ) decision, the court
ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING the
Commissioner's final decision.
application for SSI was filed for Plaintiff's minor son
on December 16, 2014. (R. 13, 182-86). After exhausting
administrative remedies before the Social Security
Administration (SSA), Plaintiff filed this case seeking
judicial review of the Commissioner's decision pursuant
to 42 U.S.C. § 405(g). Plaintiff argues that the ALJ
erroneously concluded that his son has “less than
marked limitations” in the functional equivalence
domains of interacting and relating with others and of caring
for himself, and that she should have found at least a marked
limitation in both of these areas. (Pl. Br. 5-6).
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”
refers to the weight of the evidence. It 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.
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.
Commissioner uses a three-step sequential process to evaluate
a minor's claim for disability. 20 C.F.R. §§
416.924, 416.924a, 416.924b, 416.926a; Briggs, ex rel.
Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir.
2001). “If a determination can be made at any of the
steps that a claimant is or is not disabled, evaluation under
a subsequent step is not necessary.” Wilson v.
Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (quoting
Lax, 489 F.3d at 1084). In these three steps, the
Commissioner determines whether the minor claimant is engaged
in substantial gainful activity, whether he has a severe
impairment or combination of impairments, and whether the
severity of his impairment(s) meets, medically equals, or
functionally equals the Listings (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Briggs, 248 F.3d at 1237 (citing 20
C.F.R. § 416.924(a)). As relevant here, in considering
functional equivalence, the ALJ considers how the claimant
“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.'” Briggs, 248 F.3d at 1238
(quoting 20 C.F.R. § 416.926a(b)(1)(i)-(vi)). The
Commissioner will determine that a child's condition
functionally equals the listings if he has marked limitations
in two domains or an extreme limitation in one domain. 20
C.F.R. § 416.926a(d).
argues the level of handholding T.D.W. requires “to
understand, navigate, and get through social situations poses
much more than a less than marked limitation.” (Pl. Br.
8). He argues that in 2016 T.D.W. was re-evaluated by the
Kansas Department for Aging and Disability Services and found
“eligible for placement in an immediate care facility
based on his developmental delay, ” and that,
“The State of Kansas would not have found T.D.W.
eligible for essentially institutional care if he only
suffered less than marked limitations.” Id.
(citing R. 398). Plaintiff recites record evidence including
observations of Alex Bruce,  “a social worker, ”
id., and argues that:
A less than marked limitation is inconsistent with the high
degree of supervision T.D.W. requires and his inability to be
alone at home or in the community more than briefly. As an
adolescent, he shouldn't need his parents to remind him
regularly to address his hygiene. And, he shouldn't need
a case worker to come to his home and convince him to go out
or teach him basic life skills.
Id. at 9.
argues that in evaluating the area of caring for yourself,
“the ALJ's analysis was simply wrong.” (Pl.
Br. 9). He argues that “the ALJ underrepresented
T.D.W.'s hygiene deficits, ” id., and that
“T.D.W., an adolescent, is unable to even manage being
asked to do a chore without absconding.” Id.
at 10. He argues it was error for the ALJ to rely on the
opinion of the state agency psychologists because their
opinions are not accompanied by thorough written reports or
supported by the record and did not recognize T.D.W.'s
eligibility for an immediate care facility or his need for
daily caseworker support. Id. at 11. Moreover, he
points out it is the ALJ's responsibility, not the
psychologist's, to assess T.D.W.'s limitations.
Commissioner argues that the evidence supports the ALJ's
findings. (Comm'r Br. 8). He argues that the ALJ
considered the evidence appealed to by Plaintiff and
reasonably reached a different conclusion, noting that T.D.W.
“interacted with friends and family, was not noted to
be a behavioral problem at school, and his case worker
recognized that some of his issues were merely typical of an
adolescent boy of his age.” Id. at 9 (citing
R. 18-19, 24-25, 454, 466, 478). He argues, “Even if
the record could support a conclusion that T.D.W. had marked
limitations in this domain, that is still an insufficient
basis to reject the ALJ's finding where-as here-she
supported it with substantial evidence.” Id.
(citing Lax, 489 F.3d at 1084).
the Commissioner argues the ALJ's findings regarding the
domain of caring for yourself are reasonable and supported by
the record. He argues the ALJ recognized T.D.W. had deficits
in this domain but explained the reasons he found them not to
result in marked limitations. Id. at 10. He argues
that the ALJ considered the evidence to which Plaintiff
appeals, again directs the court to Lax, and argues
that even if the court found one of the domains to result in
marked limitation that would not change the result of the
decision below because the regulations require marked
limitations in two domains before a claimant's
condition may be found functionally equal to the Listings.
(Comm'r Br. 10).
Reply Brief, Plaintiff reiterates his earlier arguments and
citation to certain evidence in the record and argues that
these facts carry the day rather than the ALJ's
“citation to isolated statements” which have
resulted in her “missing the forest for the
trees.” (Reply 1). He argues, “The average
adolescent does not require two case managers to ensure he
does not run off, ensure he showers, and ensures [sic] he
learns basic life skills, ” and “is able to be
along by himself and around younger siblings without
supervision. To suggest that these facts only constitute a
less than marked limitation is simply not reasonable.”
Id. 2-3 (citations omitted). He argues that the
opinion of the state agency psychologist, Dr. Bergman-Harms
is deficient because he did not address the evidence
mentioned in Plaintiff's reply brief, he did not cite to
the need for daily case management and for assisted living,
and his discussion of interacting and relating with others
focused on speech issues rather than T.D.W.'s inability
to develop friends and need to become more independent and be
more vocal without assistance. Id. at 2. He
concludes his argument, “This is not a matter of asking
the Court to reweigh the facts. The issue is that the
ALJ's interpretation of the evidence is such an outlier
that no reasonable factfinder would have reached a similar