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Silver v. Commissioner of Social Security

United States District Court, D. Maryland

October 20, 2016

Daniel M. Silver
v.
Commissioner of Social Security,

         Dear Counsel:

         On November 12, 2015, Daniel M. Silver petitioned this Court to review the Social Security Administration's denial of his mother's claim for Children's Supplemental Security Income (“Children's SSI”) on his behalf, and the denial of his claim as an adult for SSI. (ECF No. 1). I have considered both parties' cross-motions for summary judgment, and Mr. Silver's reply. (ECF Nos. 18, 20, 25). I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). This Court must uphold the Commissioner's decision if it is supported by substantial evidence and if proper legal standards were applied. 42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (superseded by statute on other grounds); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Under that standard, I will grant the Commissioner's motion and affirm the Commissioner's judgment pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.

         As a child, Mr. Silver was found disabled in 2003 and received Children's SSI. (Tr. 459). In 2007, his benefits were terminated due to failure to provide information. Id. A new application for benefits was protectively filed on Mr. Silver's behalf on July 13, 2007. (Tr. 698-704). The claim was denied initially and on reconsideration. (Tr. 140-43, 145-46). A hearing was held on July 21, 2010, before an Administrative Law Judge (“ALJ”). (Tr. 28-63). Following the hearing, the ALJ issued an opinion denying benefits on July 30, 2010. (Tr. 7-27). The Appeals Council (“AC”) denied a request for review. (Tr. 1-6). Subsequently, however, this Court remanded the case for further evaluation. A second hearing was held before an ALJ on December 4, 2014. (Tr. 488-541). After that hearing, on March 25, 2015, the ALJ again denied benefits. (Tr. 456-87). Once again, the AC denied a request for review, (Tr. 447-52), meaning that the ALJ's 2015 decision is the final, reviewable decision of the Agency.

         Children's SSI

         The ALJ evaluated Mr. Silver's claim using the three-step sequential process for claims involving Children's SSI, as set forth in 20 C.F.R. § 416.924. First, the ALJ determines whether the child has engaged in substantial gainful activity. 20 C.F.R. § 416.924(a), (b). If the child has not engaged in substantial gainful activity, the ALJ proceeds to step two and determines whether the child has a severe impairment or combination of impairments. § 416.924(a), (c). At step two “[i]f [the child] do[es] not have a medically determinable impairment, or [the] impairment(s) is a slight abnormality or combination of slight abnormalities that cause[] no more than minimal functional limitations, ” then the ALJ will determine that the child is not disabled. § 416.924(c). However, if the ALJ determines that the child has a severe impairment or combination of impairments, then the ALJ proceeds to step three of the evaluation to determine whether the child's impairment or combination of impairments meets, medically equals, or functionally equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). § 416.924(d).

         For children, listings describe impairments that cause marked and severe functional limitations. § 416.926a. In general, a child's impairment(s) is of “listing-level severity” if it causes “marked limitations in two domains of functioning or an extreme limitation in one domain” of functioning. Id. (internal quotations omitted). However, an impairment may meet a listing even if it does not result in marked or extreme limitations if the listing in question does not require such limitations to establish that the impairment is disabling. § 416.926. If an impairment(s) does not meet a listing, an ALJ may determine that the impairment(s) medically equals a listed impairment if: (1) there are other findings related to the child's impairment, not included in the listing requirements, that are at least of equal medical significance to the required criteria; (2) the child has an impairment not described in the listings with findings that are at least of equal medical significance as a closely analogous listed impairment; or (3) if the child has a combination of impairments, none of which meets a listing, but which result in findings that are at least of equal medical significance as a closely analogous listed impairment. Id.

         If an impairment(s) neither meets nor equals a listing, an ALJ may determine that the child's impairment(s) is functionally equivalent to a listed impairment. 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 including 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 assigns 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). 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. § 416.926a(d).

         The ALJ proceeded in accordance with applicable law at all three steps of the evaluation. The ALJ's findings at steps one and two favored Mr. Silver's claim. At step one, the ALJ found that Mr. Silver had not engaged in any substantial gainful activity at any time relevant to the application. (Tr. 464). At step two, the ALJ found that Mr. Silver suffered from the severe impairments of borderline intellectual functioning and history of attention deficit hyperactivity disorder. Id. At step three, however, the ALJ found that Mr. Silver did not have an impairment or combination of impairments that met any listing. (Tr. 465-74). The ALJ specifically considered Listing 112.05 for intellectual disability and Listing 112.11 for ADHD, and expressly indicated the criteria she found to be absent. (Tr. 465-66).

         The ALJ then proceeded to determine whether Mr. Silver's impairments functionally equal a listing. The ALJ first evaluated the “whole child” in making findings regarding functional equivalence. In doing so, the ALJ reviewed the testimony of Mr. Silver and his mother, and the child function report submitted by Mr. Silver's mother. (Tr. 466-67). The ALJ also conducted a review of Mr. Silver's medical and education records from the relevant time frame. (Tr. 467-68). The ALJ concluded that the information provided by Mr. Silver and his mother was “not entirely credible” and assigned it “limited weight, ” because the extent of the limitations was unsupported by medical evidence and appeared to be based primarily on subjective complaints. (Tr. 467).

         Finally, the ALJ assigned weight to the opinions of various educational and medical sources. The ALJ assigned “little weight” to a questionnaire completed by special education teachers who had taught Mr. Silver for just three months. (Tr. 468-69). The ALJ noted that those teachers had opined that Mr. Silver was “more focused whenever he has his medicine, ” and that the limitations they suggested seemed inconsistent with other evidence, including a consultative examination conducted the same month as their questionnaire was drafted. Id. The ALJ assigned “some weight” to a questionnaire completed in 2010 by a special education teacher who had been working with Mr. Silver for about nine months. (Tr. 469). That teacher opined that Mr. Silver could “generally understand instructions if thoroughly explained to him.” Id. The ALJ further assigned “great weight” to the opinions rendered by two non-examining State agency consultants, Drs. Sarno and Edmunds, who both made findings consistent with the ALJ's conclusions in the relevant domains of functioning. Id. Specifically, the ALJ concluded that Mr. Silver had (i) marked limitation in acquiring and using information; (ii) less than marked limitation in attending and completing tasks; (iii) less than marked limitation interacting and relating with others; (iv) no limitation in moving about and manipulating objects; (v) less than marked limitation in caring for himself; and (vi) no limitation in health and physical well-being. (Tr. 469-74). Because Mr. Silver did not have an impairment or combination of impairments resulting in either marked limitations in two domains or an extreme limitation in one domain, his impairments did not functionally equal the severity of any listed impairments.

         Mr. Silver asserts that the ALJ erred in various ways in assessing his eligibility for Children's SSI. First, he argues that this Court is entitled to review the Commissioner's 2007 termination of his Children's SSI benefits, and that principles of res judicata mandate an award of Children's SSI benefits. Second, he contends that the ALJ improperly deemed several of his diagnoses to be non-severe. Third, he argues that the evidence supports a determination that he met or equaled the requirements of Listing 112.05. I disagree.

         First, Mr. Silver (or, at the time, his mother acting on his behalf) took no action to exhaust his administrative remedies or to appeal the 2007 termination of his Children's SSI benefits. Importantly, 42 U.S.C. § 405(g) requires that a civil action be commenced within 60 days of the mailing of notice of a final decision of the Commissioner. Mr. Silver did not file his lawsuit until more than eight years later. It is unclear from the record whether or not the ALJ in this case made an express decision about reopening the termination, but, even if she did, her determination not to reopen the case is within her discretion and is not subject to appeal. See McGowan v. Harris, 666 F.2d 60, 67 (4th Cir. 1981) (citing Califano v. Sanders, 430 U.S. 99 (1977)). There is simply no evidence that she engaged, in this case, in any reconsideration of the 2007 decision on the merits. Mr. Silver's arguments about advice his mother may have received from Social Security employees, Pl. Reply 11-12, do not alter the limited jurisdiction this Court has to review administrative actions. See 42 U.S.C. § 405(g).

         Moreover, principles of res judicata do not dictate a particular result with respect to Mr. Silver's 2007 application for benefits. The ALJ appropriately reviewed the 2007 claim using all of the evidence presented at that time. It is readily evident from the record that Mr. Silver's condition evolved over the years, and there is insufficient proximity between 2003 and 2007 to suggest that the finding of disability in 2003 would necessarily carry over four years later. In fact, the very reason benefit recipients have to provide regular documentation of disability is to allow reevaluation of eligibility where there are changed medical circumstances.

         Next, with respect to Mr. Silver's other diagnoses including Tourette's syndrome, speech impairment, and traumatic foot and shoulder injuries, the ALJ engaged in a thorough analysis explaining why she deemed them non-severe. (Tr. 464-65). The ALJ described that symptoms of Tourette's syndrome were absent on examination and that consultative examiners had no difficulty understanding Mr. Silver's speech. (Tr. 465). Although his receptive and expressive language skills were significantly below average, his fluency, articulation, and speech intelligibility were within normal limits, and he was able to use target vocabulary in grammatically correct sentences. Id. With respect to his foot injury, Mr. Silver had emergency care on January 17, 2011 for a gunshot wound and a follow-up excision of a bone fragment two months later, with no further treatment until after the age of 18. Id. Mr. Silver was also treated in October, 2010 for a stab wound to the ...


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