United States District Court, D. Maryland, Southern Division
before this Court, by the parties' consent, are Motions
for Summary Judgment. (ECF Nos. 2, 3, 13, 14). The Court must
uphold the Social Security Administration
(“SSA”)'s decision if it is supported by
substantial evidence and if the Agency employed proper legal
standards. See 42 U.S.C. §§ 405(g),
1383(c)(3) (2016); Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996). The substantial evidence rule
“consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance.”
Id. This Court shall not “re-weigh conflicting
evidence, make credibility determinations, or substitute
[its] judgment” for that of the SSA. Id. Upon
review of the pleadings and the record, the Court finds that
no hearing is necessary. L.R. 105.6. For the reasons set
forth below, the Plaintiff's Motion is DENIED and the
Defendant's Motion is GRANTED. I am affirming the
filed a Title II Application for Disability Insurance
Benefits on behalf of her son, 7-year-old S.N., on July 31,
2012, alleging disability onset of May 29, 2012. (Tr. 143).
Plaintiff's application was denied initially (December 4,
2012), and upon reconsideration (July 24, 2013), by the SSA.
(Tr. 83, 90). Plaintiff filed a written request for a hearing
on September 9, 2013, (Tr. 93), that was granted and
conducted on August 12, 2015 by Administrative Law Judge
(“ALJ”) F. H. Ayer. (Tr. 39). The ALJ issued a
decision finding that S.N. was not disabled on October 30,
2015. (Tr. 15). The SSA Appeals Council denied
Plaintiff's request for review on March 10, 2017. (Tr.
1). Accordingly, the ALJ's decision became a final and
reviewable decision of the SSA. Id.
filed her appeal to this Court on May 15, 2017, (ECF No. 1),
and argues that the ALJ: 1) erroneously evaluated
Plaintiff's subjective complaints related to his
impairments by using the wrong standard; and 2) improperly
concluded that Plaintiff's impairments did not
functionally equal a Listing. (ECF Nos. 13 at 2, 6).
Evaluation of Subjective Complaints
first alleges that the ALJ erred in his evaluation of
Plaintiff's symptoms because he “applied an
improper standard in evaluating credibility” of the
parental reports regarding the same. (ECF No. 13 at 3). The
Credibility Evaluation Standard
general, an ALJ should follow the two-step process
established in Chater to evaluate a claimant's
subjective complaints of pain and/or symptoms. See
Chater, 76 F.3d at 591. The ALJ should first ensure that
subjective claims are supported by objective medical evidence
showing the existence of a medical impairment which could
reasonably be expected to produce the pain. Id.
After meeting that threshold, “the intensity and
persistence of the claimant's pain, and the extent to
which it affects her ability to work, must be
evaluated.” Id. at 595. The Fourth Circuit
clarifies that a claimant's allegations “need not
be accepted to the extent they are inconsistent with the
available evidence, including objective evidence of the
underlying impairment, and the extent to which that
impairment can reasonably be expected to cause the pain the
claimant alleges . . .” Id. (emphasis added).
same standard applies when evaluating a child's
subjective complaints through his parents' testimony.
See Allen ex rel. D.D.N. v. Commissioner, Social
Security, No. 12-2596, 2013 WL 3816744, at *3 (D. Md.
July 19, 2013) (evaluating Ms. Allen's testimony and
credibility with regard to ADHD symptoms); Gerette v.
Colvin, No. 15-12, 2016 WL 1254611, at *8 (W.D. Va. Feb.
2, 2016) (“The ALJ must make specific findings
concerning the credibility of the [caregiver's]
testimony, just as he would if the child were
testifying.”) (internal quotations omitted). The ALJ is
“not required to accept the caregiver's testimony
about the child's symptoms at face value.”
Gerette, 2016 WL 1254611, at *8 (noting that the
regulation requires the ALJ to weigh testimony with
“all of the evidence, including not only the objective
medical evidence, but statements and other information
provided by physicians or psychologists and other persons
about her symptoms and how they affect her and any other
relevant evidence in the case record.”).
Allen, the court noted that although the ALJ did not
“expressly assign any measure of weight to Ms.
Allen's testimony, it is abundantly evident from the
ALJ's opinion that he did not find Ms. Allen to be
credible on many issues.” Allen, 2013 WL
3816744, at *3. The ALJ specifically noted areas where Ms.
Allen's testimony directly contradicted other evidence in
the record to deem Ms. Allen's testimony regarding
certain symptoms as unreliable. Id. However, the ALJ
also relied on Ms. Allen's testimony “when it
appeared to be more consistent with other evidence.”
Id. That court found that the ALJ's
consideration of Ms. Allen's credibility and,
specifically, the ALJ's acceptance or rejection of the
testimony in light of the entire record was supported by
substantial evidence. Id.
instant case, S.N.'s complaints were, as in
Allen, expressed via his parents' statements.
The ALJ first found that claimant's medically
determinable impairments could reasonably be expected to
produce the alleged symptoms. (Tr. 24). The ALJ evaluated the
medical evidence, including physicians' reports. (Tr.
24-25). The ALJ noted that Dr. Diwahd, who wrote reports
dated from 2009 to 2014, referenced hyperactive behaviors and
recommended special education at school and at home. (Tr.
24). The ALJ also considered the reports of Dr. Calbert, a
neurodevelopmental pediatrician, who examined claimant in
2012, finding developmental skills that were not regressed
and above average Peabody developmental testing scores, but
also minor neural motor dysfunction and visual motor delay.
(Tr. 24-25). Dr. Calbert, the ALJ notes, prescribed behavior
modification and Focalin, which was effective and had no
significant side effects. (Tr. 25). The ALJ also took into
account the evaluations of state agency physicians Dr.
Vaidya, Dr. Holmes, and Dr. Oidick, who corroborated the
other physicians' finding of symptoms that could be
produced by claimant's impairments. (Tr. 25, 27- 33).
the ALJ properly evaluated the parents' statements in
light of all of the evidence on the record, including reports
and testimony related to S.N.'s symptoms, including those
of his parents. (See Tr. 24-25). The ALJ considered
the following objective evidence to assess credibility: (a)
S.N.'s lack of a special education plan; (b) positive
responses to medication; (c) a lack of parental “follow
through” with the prescribed behavior modification; and
(d) S.N.'s good behavior in school. Id. In doing
so, the ALJ concluded that: (1) the lack of a special
education plan was persuasive evidence of non-disabling
symptoms; (2) S.N.'s positive responses to medication
undermined allegations relating to symptoms severity and
disability; and (3) if S.N.'s parents could follow
through with behavioral modification at home, S.N.'s
behavior would improve to ...