United States District Court, D. Maryland
Latasha G. o/b/o K.G.
Commissioner, Social Security Administration;
October 30, 2017, Plaintiff petitioned this Court to review
the Social Security Administration's
(“SSA's”) final decision to deny her claim
for Children's Supplemental Security Income
(“SSI”) on behalf of her minor child, K.G. ECF 1.
I have considered the parties' cross-motions for summary
judgment, and Plaintiff's Response. ECF 16, 21, 22. I
find that no hearing is necessary. See Loc. R. 105.6
(D. Md. 2016). This Court must uphold the decision of the
Agency 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); Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that
standard, I will grant the SSA's motion and affirm the
SSA's judgment pursuant to sentence four of 42 U.S.C.
§ 405(g). This letter explains my rationale.
filed a claim for Children's SSI on behalf of K.G. on
January 16, 2014, alleging a disability onset date of
September 1, 2011. Tr. 152-60. The claim was denied initially
and on reconsideration. Tr. 96-99, 103-04. A hearing was held
on June 29, 2016, before an Administrative Law Judge
(“ALJ”). Tr. 43-67. Following the hearing, the
ALJ issued an opinion denying benefits. Tr. 15-38. The
Appeals Council (“AC”) denied Plaintiff's
request for further review, Tr. 1-5, so the ALJ's
decision constitutes the final, reviewable decision of the
evaluated Plaintiff'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. § 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, if the child “do[es] not have a
medically determinable impairment, or [the] impairment(s) is
a slight abnormality or combination of slight abnormalities
that causes 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”).
impairment medically equals the listings “if it is at
least equal in severity and duration to the criteria of any
listed impairment.” § 416.926(a). An ALJ may
determine that the impairment 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 to those of 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
to those of a closely analogous listed impairment. §
impairment neither meets nor medically equals a listing, an
ALJ may determine that the child's impairment is
functionally equivalent to a listed impairment. §
416.926a. The ALJ uses a “whole child” approach,
when making a finding regarding functional equivalence. SSR
09- 1p, 2009 WL 396031, at *2 (S.S.A. Feb. 17, 2009). The ALJ
begins this approach by first considering the child's
every-day functioning in all settings including
“everything [the] child does throughout the day at
home, at school, and in the community, ” as compared to
children of the same age who do not have impairments.
Id.; 20 C.F.R §416.926a(b). The ALJ then uses
six domains or broad areas of functioning to assess the
child's capacity to perform or not perform activities.
SSR 09-1p, 2009 WL 396031, at *2. 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). A child's impairment functionally
equals the listings if the ALJ determines that the child has
“marked” limitations in two domains or an
“extreme” limitation in one domain. §
evaluated Plaintiff's claim using the three-step
sequential process for claims involving childhood SSI, as set
forth in 20 C.F.R. § 416.924. The ALJ's findings at
steps one and two favored Plaintiff's claim. At step one,
the ALJ found that K.G. had not engaged in any substantial
gainful activity since the application date. Tr. 18. At step
two, the ALJ found that K.G. suffered from the severe
impairments of Attention Deficit Hyperactivity Disorder
(“ADHD”), Expressive Language/Speech Disorder,
and Oppositional Defiant Disorder. Id. At step
three, the ALJ found that K.G. did not have an impairment or
combination of impairments that met or medically equaled any
listing. Id. Additionally, the ALJ determined that
K.G. did not have an impairment or combination of impairments
that would be functionally equivalent to any listing. Tr.
19-37. Therefore, the ALJ determined that K.G. was
not disabled for purposes of Children's SSI benefits. Tr.
initial matter, Plaintiff asserts in her Motion that
“the ALJ[‘s step three analysis] was wrong on
both counts.” P. Mot. 6-7. However, Plaintiff does not
include any further argument that K.G.'s impairments meet
or medically equal the listings, does not identify any
particular listing that K.G. may meet, and does not point to
any particular evidence suggesting K.G. meets or medically
equals the listings. Claimants bear the burden of showing
their impairments meet or medically equal the listings.
See Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012) (stating claimants bear the burden in steps one through
four of evaluating adult disability claims, where step three
involves deciding if the impairment meets or medically equals
the listings) (citing Hunter v. Sullivan, 993 F.2d
31, 35 (4th Cir. 1992) (per curiam)). Here, Plaintiff has not
met her burden on the issue of whether K.G's impairments
meets or medically equals the listings.
primary argument in support of her appeal is that the
ALJ's findings of less than marked limitations in the
functional areas of acquiring and using information,
attending and completing tasks, and interacting and relating
with others were not supported by substantial evidence.
Plaintiff argues that the ALJ impermissibly
“averaged” and “diluted” K.G.'s
areas of impairment with areas of lesser or no impairment,
and devalued indications of K.G.'s limitations by
focusing on the lack of limitations in other areas. Pl. Resp.
2-4. I disagree.
functional area of acquiring and using information refers to
a child's ability to learn information and how well a
child uses the information learned. 20 C.F.R. §
416.926a(g). In finding less than marked limitations in this
area the ALJ relied, in part, upon K.G.'s 2014 report
card showing “average to good” grades, a speech
language therapist's opinion that K.G. “had made
excellent progress in his speech, ” and a 2016
classroom observation report showing only a “minor
problem” with listening comprehension. Tr. 28-29. In
arguing for finding greater limitations in this area,
Plaintiff cites to educational and medical record evidence
suggesting limitations in this area, evidence which the ALJ
discussed in his decision. Pl. Mot. 15-22.
relied, in part, on K.G.'s 2013 IEP requiring only
“somewhat minimal” special education of five
thirty-minute sessions of special instruction per week. Tr.
28. The ALJ also noted that K.G. is in regular education in
the fourth grade with a “504 plan.” Tr. 29.
Plaintiff argues that under to SSR 09-3p, 2009 WL 396025
(S.S.A. Feb. 17, 2009), K.G.'s special education and
speech therapy needs should be a “clear
indication” of marked limitations in the area of
acquiring and using information. Pl. Mot. 16-17. The need for
special education services or speech therapy is a relevant
indicator for mental or physical impairments, but
“[t]he kind, level and frequency of special education .
. . or other accommodations a child receives can provide
helpful information about the severity of the child's
impairment(s).” SSR 09-3p, 2009 WL 396025, at * 3.
Thus, the ALJ properly considered the frequency and length of
the special education and speech therapy services in
determining K.G.'s functional limitations.
functional area of attending and completing tasks refers the
ability to focus, maintain attention, how well and at what
pace a child begins, carries through, and finishes
activities, and the ease with which a child can change
activities. 20 C.F.R. § 416.926a(h). Here, K.G.'s
alleged improvement while on ADHD medication was central to
the ALJ's finding of less than marked limitations. K.G.
was prescribed Metadate on August 20, 2013, with increases in
his Metadate dosage and the addition of Intuniv on November
20, 2013, and March 9, 2016. Tr. 441, 479. In finding
improvement in the functional area of attending and
completing tasks, the ALJ relied on K.G.'s nurse
practitioner note that he does well when on ADHD medication,
Tr. 493, notes from K.G.'s first grade teacher that he
was more focused and calmer on medication, Tr. 208, and a
2015 exam indicating the medication produced “good
symptom control, ” Tr. 482. Tr. 31. Plaintiff argues
that the record does not show clear improvement while on
medication, and points to medical treatment notes and
negative reports from school during the 2013-2014 school
year, Pl. Mot. 11-13, and a 2016 classroom observation
indicating K.G. had a “major problem” with
attentiveness, Pl. Resp. 3. A teacher questionnaire dated
February 14, 2014, also specifically describes K.G.'s
difficulty with completing tasks. Tr. 208. However, two
report cards from later in 2014 indicate grades of
“satisfactory” work habits, and the end of year
report card indicated K.G. “show[ed] a great deal of
growth this year. He has really blossomed.” Tr. 219,
argues the ALJ erred in describing K.G.'s treatment as
“conservative.” Pl. Mot. 14. The ALJ claimed that
K.G. “has received only conservative treatment for his
impairments (outpatient mental health treatment), and even
though his dosages of medication have been adjusted, he has
been on the same medications . . . for nearly 3 years.”
Tr. 23. I concur with Plaintiff's contention that the
ALJ's assertion was not adequately supported. The
suggestion by the ALJ that mental health treatment is
conservative if it only consists of outpatient treatment is
without basis. Furthermore, the prescribing of psychotropic
medications in increasing dosages, over a period of three
years, starting when a child is six years old, cannot be
summarily labeled “conservative.” However,
despite this error, the ALJ's full analysis is sufficient
to permit me to review the ALJ's decision and conclude
that it is supported by substantial evidence.
functional area of interacting and relating with others deals
with how well a child “initiate[s] and sustain[s]
emotional connections with others, develop[s] and use[s] . .
. language . . . cooperate[s] with others, compl[ies] with
rules, respond[s] to criticism and respect[s] and take[s]
care of the possessions of others.” 20 C.F.R. §
416.926a(i). In finding less than marked limitation in this
area, the ALJ relied on the 2013-2014 report cards commenting
on K.G.'s improvement interacting with his peers and his
“wonderful job” with regard to his behavior, Tr.
32-33, 219, 382, medical records from 2014 and 2015
indicating no behavior problems, Tr. 33-34, 444, 482, and a
2016 classroom observation report reporting K.G.'s social
interaction and general behavior were between “no
problem” and a “minor problem, ” Tr. 34,
501. The ALJ also gave “great weight” to the
opinion of K.G.'s nurse practitioner that there was
“no evidence ...