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Bush v. Colvin

United States District Court, D. Maryland

March 14, 2014

HOPE BUSH o/b/o D.B. Plaintiff (pro se),
v.
CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

WILLIAM CONNELLY, Magistrate Judge.

Hope Bush ("Mrs. Bush" or "Plaintiff"), on behalf of her son, D.B., brought this action pursuant to 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying D.B.'s claim for child's Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. The parties consented to a referral to a United States Magistrate Judge for all proceedings and final disposition.[1] See ECF Nos. 2, 5-6. Pending before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 28) and Defendant's Motion for Summary Judgment (ECF No. 34). No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons set forth below, Plaintiff's Motion for Summary Judgment will be denied and Defendant's Motion for Summary Judgment will be granted.

1. Background.

Mrs. Bush filed an application for child's SSI on behalf of her son D.B. on December 20, 2007, alleging disability since June 16, 2002, due to loss of hearing and learning disability. R. at 21, 127-33, 154. The application was denied initially on February 29, 2008. R. at 60-63. On August 8, 2008 Mrs. Bush requested reconsideration, R. at 65-67, and on October 31, 2008, the application was denied again, R. at 68-69. On November 18, 2008 Mrs. Bush requested a hearing by an Administrative Law Judge ("ALJ"). R. at 70-72. On March 8, 2010 an ALJ convened a hearing. Mrs. Bush and her son testified and were represented by counsel. R. at 40-57. At the hearing, with the advice of counsel Mrs. Bush, on behalf of D.B., amended the alleged onset date of disability to December 20, 2007, the same date as the application. R. at 42, 149. In the May 7, 2010 decision the ALJ found D.B.'s hearing loss and receptive expressive language delay do not meet, medically equal or functionally equal the severity of any impairment listed and therefore determined D.B. has not been disabled, as defined in the Social Security Act, since December 20, 2007, the date the application was filed. R. at 35. On June 16, 2010 Mrs. Bush requested a review of the ALJ's decision. R. at 16-17. On January 6, 2011 the Appeals Council denied Mrs. Bush's request for review, R. at 1-3, thus making the ALJ's determination the Commissioner's final decision.

2. ALJ's Decision.

The ALJ evaluated D.B.'s claim for child's SSI using the sequential evaluation process set forth in 20 C.F.R. § 416.924 (2010). This sequential evaluation process consists of three steps. Step one is whether the claimant is doing substantial gainful activity. If the claimant is doing substantial gainful activity, the Social Security Administration will not review the claim further. If the claimant is not doing substantial gainful activity, then the Social Security Administration proceeds to step two, whether the claimant's impairment or combination of impairments is severe. If the claimant's impairment or combination of impairments is not severe, the Social Security Administration will not review the claim further. If the impairment or combination of impairments is severe, then the Social Security Administration proceeds to step three, whether the impairment or combination of impairments meets, medically equals or functionally equals a listing.

In the May 7, 2010 decision the ALJ found at step one that D.B., born June 16, 2002 and a school-age child on December 20, 2007, has not engaged in substantial gainful activity since December 20, 2007. R. at 24. At step two the ALJ determined D.B.'s hearing loss and receptive expressive language delay are severe impairments within the meaning of 20 C.F.R. § 416.924(c) because "these impairments cause more than minimal functional limitations." Id. It is undisputed that D.B. has normal hearing in his left ear but profound hearing loss in his right ear. At step three the ALJ found the evidence does not establish D.B.'s impairments meet or medically equal any listed impairments, specifically, Listing 102.08.[2]

[T]he record is devoid of evidence of the claimant's inability to hear air conduction thresholds at an average of 70 decibels (db) or greater in the better ear; or speech discrimination scores at 40 percent or less in the better ear; or inability to hear air conduction thresholds at an average of 40 decibels (db) or greater in the better ear, and a speech and language disorder which significantly affects the clarity and content of the speech and is attributable to the hearing impairment. R. at 24.

The ALJ then proceeded to determine whether D.B's impairments functionally equal the listing. The ALJ must evaluate the "whole child" when making a finding regarding functional equivalence. Generally, the ALJ must first consider how the child functions daily in all settings as compared to children of the same age who do not have the impairments. In other words, the ALJ considers the child's activities, meaning, everything a child does at home, at school and in the community on a daily basis. Next, the ALJ must assess the child's capacity to perform or not perform activities and assign each activity to any or all of the six domains or broad areas of functioning. SSR 09-1p[3], 2009 WL 396031 at *2 (Feb. 17, 2009). The six domains are (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. 20 C.F.R. § 416.926a(b)(1)(i)-(vi).

In evaluating the claimant's ability to function in each domain, the Social Security Administration will consider information in answering the following six questions.

(i) What activities are you able to perform?
(ii) What activities are you not able to perform?
(iii) Which of your activities are limited or restricted compared to other children your age who do not have impairments?
(iv) Where do you have difficulty with your activities-at home, in childcare, at school, or in the community?
(v) Do you have difficulty independently initiating, sustaining, or completing activities?
(vi) What kind of help do you need to do your activities, how much help do you need, and how often do you need it? Id. § 416.926a(b)(2)(i)-(vi). An impairment functionally equals a listing-level severity if it is determined that a claimant has marked limitations in two domains or an extreme limitation in one domain. Id. § 416.926a(d).

After reviewing the evidence the ALJ found D.B. had less than marked limitations in (i) acquiring and using information and (ii) attending and completing tasks; marked limitation in (iii) interacting and relating with others, and no limitations in (iv) moving about and manipulating objects, (v) caring for yourself and (vi) health and physical well-being. R. at 26-35. Because D.B. does not have an impairment or combination of impairments resulting in either marked limitations in two domains or an extreme limitation in one domain, D.B.'s impairments do not functionally equal the severity of any listed impairments. The ALJ therefore concluded D.B. is not disabled. R. at 35.

3. Standard of Review.

The role of this court on review is to determine whether substantial evidence supports the Commissioner's decision and whether the Commissioner applied the correct legal standards. 42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d at 1202; Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla, but less than a preponderance, of the evidence presented, Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (citations omitted), and it must be sufficient to justify a refusal to direct a verdict if the ...


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