STEPHANIE B., o/b/o B. M. R. v. KILOLO KIJAKAZI, Acting Commissioner of Social Security
No. 21-1181-JWL
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
September 9, 2022
CIVIL ACTION
Plaintiff2 seeks review of a decision of the Commissioner of Social Security denying Supplemental Security Income (SSI) benefits for her minor son B.M.R. pursuant to
I. Background
The court‘s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The 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
To qualify for SSI benefits, the child‘s income and assets (including those imputed from the child‘s parents) must fall below a certain amount and he must have a “medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”
The Commissioner has promulgated regulations which establish a three-step sequential evaluation process to evaluate a child disability case.
An impairment meets a listing if it meets all the medical criteria contained in a listing.
To determine functional equivalence, the Commissioner must analyze six domains, which are “broad areas of functioning intended to capture all of what a child can or cannot do.”
In evaluating a child claimant‘s ability to function in each domain, the Commissioner will seek information to answer the following questions about whether the claimant‘s activities are typical of other children the claimant‘s age who do not have impairments: (1) What activities can the claimant perform? (2) What activities is the claimant unable to perform? (3) Which of the claimant‘s activities are limited or restricted compared to other children the claimant‘s age who do not have impairments? (4) Where does the claimant have difficulty with his/her activities—at home, in child care, at school, or in the community? (5) Does the claimant have difficulty independently initiating, sustaining, or completing activities? (6) What kind of help does the claimant need to do his/her activities, how much help is needed, and how often is the help needed?
Functional equivalence will be found only if a child has “marked” limitations in two domains of functioning, or an “extreme” limitation in one domain.
“Extreme” is the rating given the worst limitations and occurs when a claimant‘s impairment interferes very seriously with his or her ability to independently initiate,
The court addresses the error alleged in Plaintiff‘s Social Security Brief.
II. Discussion
Plaintiff argues that in finding B.M.R. has less than a “marked limitation in acquiring and using information, the ALJ relied heavily on notations in the record that B.M.R. showed progress in reading comprehension and had the ability to receive grade-level math.” (Pl. Br. 7) (citing R. 20). She argues such heavy reliance is erroneous because the remainder of the record documents “a marked limitation in this domain” and “the ALJ downplayed the extensive accommodations B.M.R. received to obtain any progress and failed to resolve the inconsistency between the evidence he found supported by the record and his conclusions about functional equivalency.” Id., at 7-8. She argues the ALJ acknowledged only that B.M.R. required a slower pace than other students despite that the record shows he required extensive help. Id. at 8. She argues that despite B.M.R.‘s progress in school the record supported finding a marked limitation in acquiring and using information. Id. This is so, in Plaintiff‘s view because B.M.R. remained
tested “well-below average” in the ability to understand the meaning of words (without context), a below average ability to understand literacy and informational text, and a well-below average ability to read stories aloud. The evaluator indicated that B.M.R. needed extra cues/prompts, inclusion support, additional time, and a separate quiet setting in reading class and general education math class. The evaluator noted that B.M.R. struggled with writing due to illegibility unless reminded to slow down, and he required extra cues and prompts. Similarly, he struggled with spelling so he received a modified list of spelling words for weekly spelling. His IEP [Individualized Education Plan] also required him to use the Resource Room for instruction outside of the classroom in order to make progress.
Id. at 9 (citations omitted, citing R. 2151, 2152, 2154). She argues “the ALJ ‘effectively ignored’ this highly probative evidence by indicating that B.M.R.‘s only setback in acquiring and using information was ‘a slower pace.‘” Id.
Plaintiff argues the ALJ failed “to acknowledge the significant efforts that B.M.R.‘s teachers put into his learning to make any progress possible,” and should have discussed in further detail “the extensive level of intervention B.M.R. required in school.” Id. at 10. She argues, “The ALJ‘s failure to address the extent of accommodation and help that B.M.R. required – daily special education services in a resource room with prompting, cues, quiet places, and lower expectations in workload or level of complexity – violated SSR 09-3p and rendered the ALJ‘s assessment of functioning in this domain unsupported by substantial evidence.” Id. at 11.
Plaintiff argues, “The remaining evidence also supported a marked limitation in acquiring and using information.” Id. She cites in support of this proposition B.M.R.‘s testing scores (at the beginning of his first grade year and expressed in percentiles and
Plaintiff argues the ALJ‘s reliance on the prior administrative medical findings of the state agency consultants is misplaced because the consultants were not able to review the most recent IEP. Id. She argues, “the State [sic] agency consultants’ opinions conflict with the record documenting a serious limitation in acquiring and using information [(]as reflected in the teacher questionnaire and recent IEP[)], but the ALJ also failed to resolve this conflict.” Id.
The Commissioner argues the state agency consultants’ prior administrative medical findings constitute substantial record evidence supporting the ALJ‘s findings. (Comm‘r Br. 10). She argues the state agency consultants’ opinions are not stale because B.M.R.‘s most recent IEP did not differ significantly from the earlier IEPs reviewed by the consultants and did not suggest a worsening in B.M.R.‘s condition. Id. at 10-11. She
The Commissioner also points to additional record evidence supporting the ALJ‘s decision. Id. 13-15. She argues the ALJ discussed evidence tending to support finding a marked limitation and that tending to support a contrary finding. Id. 13. She points to his discussion of IQ scores and progress in school. Id. She noted the ALJ‘s consideration of the record regarding B.M.R.‘s progress when on his medications and when not on his medications. Id. 14. She notes the ALJ‘s consideration of group therapy and attendant care notes. Id. The Commissioner argues Plaintiff‘s challenges to the decision “effectively ask the Court [sic] to re-weigh the same evidence considered by the ALJ and reach a different conclusion about what that evidence showed,” but that “is beyond the limited scope of the Court‘s [sic] review under the substantial evidence standard.” Id. 14-15.
The Commissioner counters Plaintiff‘s assertion that even with improvement B.M.R. was still well-below average in his ability to understand and use information:
While test scores showed below average reading and math abilities, he was reading “at the late 1st to early 2nd grade level independently“—only “a slight gap between [B.M.R.] and his peers,” according to his IEP. Moreover, he was covering the same math materials as others in his class but at a slower pace and with more assistance. The ALJ reasonably found that this evidence supported a finding of less than marked impairment in the domain of acquiring and using information.
The Commissioner quotes from the 2019 IEP to argue that B.M.R.‘s “accommodations were far from ‘extensive:‘” He had “the capability to spend the majority of the school day in the general classroom.” He could “follow[] directions, complete assignments, and stay organiz[ed] at the same level as other second graders.” he had “done well . . . during his second grade school year but he d[id] participate in the low math group“—alongside one-third of his classmates—“which move[d] at a slower pace with additional staff present to help students but still use[d] the same curriculum, covering the same skills.” He did not receive any modifications to daily work or tests; he completed the same work given to his peers. He had “been able to complete written assignments adequately in the general classroom without needing modifications made to the work.” His study skills were “similar to those of same-age peers.” (Comm‘r Br. 15-16) (quoting R. 272, 273, 275, 278, 279). The Commissioner concludes, “B.M.R.‘s 2020 IEP showed a similar level of accommodation. He remained in the low tiered math class (covering the same materials as his peers, but at a slower pace and with more assistance). He understood the concepts being taught, but at a slower pace than his peers.” Id. 16 (citations omitted, citing R. 2150).
In her Reply Brief, Plaintiff asserts the Commissioner‘s “argument highlights the same mistakes that the ALJ made, namely, failing to account for the significant special services B.M.R. received to make the headway in school that he did.” (Reply 2). She argues that the Commissioner missed the point of Plaintiff‘s questioning the ALJ‘s consideration of Ms. Thomas‘s questionnaire because the ALJ found the opinion
A. The ALJ‘s Relevant Findings
The ALJ found B.M.R. has severe mental impairments of “personality disorder, borderline intellectual functioning, intermittent explosive disorder, anxiety disorder, attention deficit/hyperactivity disorder, and an impulse control disorder.” (R. 16) (bold omitted). He found the claimant‘s impairments do not meet or medically equal the severity of any impairment in the Listing of Impairments, 20 C.F.R., Pt. 404, Subpt. P, App. 1, Pt. B. Id. at 16-18. In making this determination, the ALJ considered the claimant‘s limitations in the four broad areas of mental functioning described by the Commissioner—the “paragraph B” criteria. Id. at 17-18. He found the claimant has moderate limitations in the areas of understanding, remembering, or applying information; concentration, persistence, or maintaining pace; and adapting and managing oneself. Id. He found the claimant has a marked limitation in the area of ability to interact with others. Id. The ALJ noted, “With medication, the claimant‘s IEPs indicated he was able to complete written assignments adequately in the general classroom without
The ALJ explained that when assessing functional equivalence in accordance with Social Security Ruling (SSR) 09-1p he was to evaluate “the ‘whole child’ by considering how the claimant functions at home, at school, and in the community; the interactive and cumulative effects of all of the claimant‘s medically determinable impairments on the claimant‘s activities; and the type, extent, and frequency of help the claimant needs.” Id. at 18. He explained he was to “compare how appropriately, effectively and independently the claimant performs activities compared to the performance of other children of the same age who do not have impairments.” Id.
The ALJ noted that in accordance with
receives extra time on assignments, an in class aide, and assistance in the resource room secondary to below average reading and math skills. He also attends medication management every 60 to 90 days, aftercare meetings three to four times a week, and group therapy four days a week.
Id. 19-20. The ALJ explained his evaluation of the first domain
First, the undersigned finds the claimant has less than marked limitations in the first and [second] domains, acquiring and using information and
attending and completing tasks. In March 2019, while in the second grade, the claimant had a first grade reading level and a second grade math level. However, he had moved up several reading levels and completed his written assignments adequately in the general classroom without modifications to assignments. Around the same time, intellectual testing revealed a Full Scale IQ of 73, but the scores were “cautioned” because he had difficulty attending during the assessment. Nevertheless, he continued to show progress in his reading comprehension, and by February 2020, he was provided grade level materials in math although he continued to complete the tasks at a slower pace. Without medication, the claimant exhibited significant hyperactivity at least once a week, but with medication, he was not as impulsive and was generally redirectable. In March 2020, his medication provider noted his ADHD was under reasonable control, and the claimant reported he could perform household chores, such as laundry, without prompting. This observation was further supported by group therapy and attendant care notes. For example, in April 2020, he took his medication after exhibiting elevated energy at the beginning of a session, and he appeared calmer by the end of the session. Similarly, he was observed doing flips on his bed and leaving the room during a group Zoom session, but he responded positively to redirection. Therefore, the undersigned finds the record as a whole is inconsistent with marked limitations in the first and [second]3 domains: acquiring and using information and attending and completing tasks.
(R. 20) (citations omitted).
The ALJ discussed the opinion evidence at issue, explaining he found:
the State [sic] agency psychological and medical consultants’ initial opinions and opinions upon reconsideration are persuasive because they are supported by narrative reports of the evidence considered and they are consistent with the claimant‘s ongoing mental health treatment, intellectual testing and his below average reading and math skills. However, the undersigned finds the opinion upon reconsideration that he has marked limitations in interacting and relating with others, and the initial opinion that he has less than marked limitations in his ability to care for himself, is more persuasive. These findings are consistent with the record as a whole, including reports that he engaged in self-harm by his head on the wall [sic],
The undersigned also considered the report of Cori Thomas, the claimant‘s special education teacher. In March 2019, Ms. Thomas reported the claimant had serious problems providing organized oral explanations and adequate descriptions, recalling and applying previously learned material and applying problem-solving skills in class discussions. She also indicated he had obvious problems in attending and completing tasks, but only on a weekly basis, no difficulty caring for himself, and no more than slight problems interacting. Although these reports are generally consistent with the claimant‘s school records and his IEP, the undersigned finds this report is not consistent with the record as a whole, including reports of ongoing outbursts at home and occasional self-harm. However, Ms. Thomas is not an acceptable medical source eligible to provide a medical opinion. Nevertheless, the undersigned has considered Ms. Thomas‘s report when evaluating the degree of limitation in the claimant‘s functional capacity.
(R. 21) (citations omitted).
B. Analysis
The court finds no error in the ALJ‘s decision. As the ALJ found, B.M.R. is a child who has severe mental impairments within the meaning of the Act and the regulations. Although the ALJ found that B.M.R.‘s impairments do not meet or medically equal the criteria of any listed mental impairment, he found B.M.R. has a marked limitation in the basic mental functional area of interacting with others. (R. 17). When the ALJ continued his evaluation, to determine whether B.M.R.s impairments functionally equal the severity of the listings, he determined B.M.R. has no limitation in two domains, less than a marked limitation in three domains, and a marked limitation in one domain—interacting and relating with others. Id. 19. Plaintiff accepts all of the
However, Plaintiff does not point to, and the court does not find, record evidence which compels finding the claimant has a marked limitation in acquiring and using information. Plaintiff‘s argument the ALJ downplayed the extensive accommodations received by the claimant is not supported by the record evidence. To be sure, Claimant‘s IEP states, “Extra cues/ prompts, inclusion support, additional time, and a separate quiet setting would benefit [Claimant] in his reading class. These would allow him to participate in the general education math” class. (R. 2151). It also notes a “Speech to text feature may benefit [Claimant] in the area of writing, along with extra cues and prompts. [Claimant] needs a modified spelling list.” (R. 2152). However the IEP also noted the accommodations actually needed and used. In math, it was noted Claimant was “participating and working nicely” and “He appears to understand the majority of skills presented on grade level but does benefit from being in the low group as described above. This appears to be meeting his needs in this area as he does not utilize any modifications to daily work or tests, completing the work as given to his peers.” (R. 2167). The reading discussion is to a similar effect. Claimant “participates in the general classroom‘s core reading time, completing daily work and unit tests at this time without modifications but with inclusion support. He is able to listen and understand information or details presented and this allows him to complete work well. He does not appear to struggle with comprehension if he is able to read the text at a level appropriate for him or hear/discuss materials that are on grade level.” (R. 2169). It reported Claimant was “able
Plaintiff‘s argument the ALJ “failed to resolve the inconsistency between the evidence he found supported by the record and his conclusions about functional equivalency” also fails. (Pl. Br. 8). Plaintiff bases this argument on the fact the ALJ recognized Claimant‘s special education teacher, Ms. Thomas, found B.M.R. has serious problems in three activities within the domain of acquiring and using information. She implies Ms. Thomas‘s opinion is inconsistent with finding less than a marked limitation in acquiring and using information, and argues that the ALJ failed his duty to resolve this inconsistency. The court does not agree with the premise that a “serious” problem in
As Plaintiff suggests, Ms. Thomas completed a Teacher Questionnaire regarding Claimant‘s functioning in the six domains compared to the functioning of same-aged children who do not have impairments. The Teacher Questionnaire form states, in bold font, ”If the child is receiving special education services, please be sure to compare his or her functioning to that of same-aged, unimpaired children who are in regular education.” (R. 295) (bold omitted, underline in original). The questionnaire asks the teacher to rate each of the first five domains on a list of activities within that domain regarding the amount of problem the child has with that activity according to a five-level rating key: 1 – No problem, 2 – A slight problem, 3 – An obvious problem, 4 – A serious problem, and 5 – A very serious problem. The rating form for Acquiring and Using Information contains a list of ten activities. Ms. Thomas reported that Claimant has a problem with all ten activities. (R. 296). She reported he has a slight problem with two activities, an obvious problem with five activities, and a serious problem with three activities. Id. She reported no activities with which Claimant had a very serious problem. Id. As the ALJ noted in his decision, “Ms. Thomas reported the claimant had serious problems [with the activities of] providing organized oral explanations and adequate descriptions, recalling and applying previously learned material and applying problem-solving skills in class discussions.” Id. at 21. The court also notes that a year earlier Ms. Thomas found Claimant had no serious problems in any activity in this domain. (R. 219).
Moreover, the regulation to which Plaintiff cites provides further explanation of a marked limitation:
If you are a child of any age (birth to the attainment of age 18), we will find that you have a “marked” limitation when you have a valid score that is two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and your day-to-day functioning in domain-related activities is consistent with that score.
Although there is no evidence Claimant was administered a comprehensive standardized test designed to measure ability or functioning in the domain of acquiring and using information, the 2019 IEP contains several standardized test scores relating to Claimant‘s performance at school. There are a number of subtest scores between 1 and 2 standard deviations below the mean, but only two subtest scores greater than two standard deviations and less than three standard deviations below the mean. (R. 2168-71). These greater-than-two-standard-deviations scores appeared in the “Verbal Comprehension” and “Processing Speed” scales of the Wechsler Intelligence Scale for Children – Fifth Edition (WISC-V). Id. 2171. However, as the ALJ noted the scores on this test were “cautioned,” and “may be an underrepresentation of his ability” because Claimant was distracted and fidgety when taking the test and they also “may reflect his level of function when he exhibits such behaviors.” Id. 2172. The WISC-V test results from the 2019 IEP are also included in the 2020 IEP. Id. 2152. They are the only test results in the 2020 IEP for which the record reveals the mean and standard deviation. That IEP also reports Claimant‘s results on an Aimsweb Reading test for the 2019-2020 school year reflecting a Composite score of 16, at the 4th percentile; a Vocabulary score of 52, at the 6th percentile; a Reading Comprehension score of 13, at the 16th percentile;
The ALJ explained his decision and cited evidence supporting his decision. The court‘s consideration above of the evidence supporting Plaintiff‘s contrary conclusion demonstrates that she has not met her burden to show an inconsistency between the evidence upon which the ALJ relied and his conclusion Claimant has less than a marked limitation in acquiring and using information. Thus, Plaintiff has shown no inconsistency requiring the ALJ‘s resolution.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the fourth sentence of
Dated September 9, 2022, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge