United States District Court, W.D. Virginia, Harrisonburg Division
C. Hoppe, United States Magistrate Judge.
Werner, on behalf of Plaintiff A.L.M., a child under the age
of eighteen, asks this Court to review the Commissioner of
Social Security's (“Commissioner”) final
decision denying A.L.M.'s application for supplemental
security income (“SSI”) under Title XVI of the
Social Security Act, as amended (“The Act”), 42
U.S.C. § 1381, et seq.; 20 C.F.R. §
416.1481. The case is before me by the parties' consent
under 28 U.S.C. § 636(c)(1). Having considered the
administrative record, the parties' briefs and oral
arguments, and the applicable law, I find that the
Commissioner's decision is not supported by substantial
evidence and that the case must be remanded for further
Standard of Review
Social Security Act authorizes this Court to review the
Commissioner's final decision that a person is not
entitled to disability benefits. See 42 U.S.C.
§ 405(g); Hines v. Barnhart, 453 F.3d 559, 561
(4th Cir. 2006). The Court's role, however, is limited-it
may not “reweigh conflicting evidence, make credibility
determinations, or substitute [its] judgment” for that
of agency officials. Hancock v. Astrue, 667 F.3d
470, 472 (4th Cir. 2012). Instead, the Court asks only
whether the Administrative Law Judge (“ALJ”)
applied the correct legal standards and whether substantial
evidence supports the ALJ's factual findings. Meyer
v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
evidence” means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971). It is “more than a mere
scintilla” of evidence, id., but not
necessarily “a large or considerable amount of
evidence, ” Pierce v. Underwood, 487 U.S. 552,
565 (1988). Substantial evidence review takes into account
the entire record, and not just the evidence cited by the
ALJ. See Universal Camera Corp. v. NLRB, 340 U.S.
474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d
231, 236 (4th Cir. 1984). Ultimately, this Court must affirm
the ALJ's factual findings if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled.” Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (quoting Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996)). However,
“[a] factual finding by the ALJ is not binding if it
was reached by means of an improper standard or
misapplication of the law.” Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987).
person under the age of eighteen is “disabled”
under the Act if he or she “has 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.” 42 U.S.C. § 1382c(a)(3)(C)(i). Social
Security ALJs follow a three-step process to determine
whether an applicant under the age of eighteen is disabled.
The ALJ asks, in sequence, whether the applicant (1) is
working; (2) has a severe impairment; and (3) has an
impairment that meets or equals an impairment listed in the
Act. 20 C.F.R. § 416.924. If the ALJ determines that the
child has a severe impairment, at step three the ALJ must
compare how appropriately, effectively, and independently the
child performs activities compared to other children of the
same age without such impairments. 20 C.F.R. §
416.926a(b). In doing so, the ALJ must ascertain which of six
domains of functioning are implicated and rate the severity
of the limitations in each affected domain. Id. The
six domains are: (1) acquiring and using information; (2)
attending and completing tasks; (3) interacting and relating
with others; (4) moving about and manipulating objects; (5)
caring for himself or herself; and (6) health and physical
well-being. Id. To functionally equal the listings,
the child's impairment or combination of impairments must
result in a “marked” limitation in two domains of
functioning or an “extreme” limitation in one
domain. 20 C.F.R. § 416.926a(d). The applicant bears the
burden of proving disability. See 20 C.F.R. §
on behalf of A.L.M., filed for SSI on August 12, 2011.
Administrative Record (“R.”) 78, ECF No. 10.
A.L.M. was nine years old at the time. Id. He
alleged disability beginning at his birth on February 21,
2002, because of post traumatic stress disorder and autism.
Id. On February 11, 2013, he amended the disability
onset date to August 1, 2011. R. 162. Disability
Determination Services (“DDS”), the state agency,
denied his claim initially and on reconsideration. R. 78-86,
87-96. A.L.M. appeared with Werner and his counsel at an
administrative hearing on February 15, 2013. R. 47-77. He
testified regarding his daily activities, his performance in
school, and his physical capabilities. R. 56-62. Werner, who
is A.L.M.'s grandmother, also testified regarding his
medication, school performance, and daily activities. R.
denied A.L.M.'s application in a written decision dated
June 28, 2013. R. 20- 41. He found that A.L.M. had severe
impairments of Asperger Syndrome,  Attention Deficit
Hyperactivity Disorder (“ADHD”),  and pervasive
developmental disorder. R. 23. He determined that these
impairments, alone or in combination, did not meet or equal a
listing pursuant to 20 C.F.R. §§ 416.924 and
416.926a. R. 23-41. Assessing the six functional domains, the
ALJ concluded that A.L.M. had marked limitation in attending
and completing tasks, but less than marked limitation in
acquiring and using information, interacting and relating
with others, moving and manipulating objects, and caring for
himself, and no limitation in health and physical well-being.
R. 34-40. He therefore determined that A.L.M. was not
disabled under the Act. R. 41. The Appeals Council declined
to review that decision, R. 1-5, and this appeal followed.
Statement of Facts
Norwood, M.D., evaluated A.L.M. for autism on August 11,
2011. R. 292-96. Dr. Norwood diagnosed A.L.M. with Autism
Spectrum Disorder and noted that he thought Asperger Syndrome
was the most likely fit. R. 295. Dr. Norwood evaluated A.L.M.
in person, reviewed a questionnaire filled out by
A.L.M.'s grandparents, and discussed A.L.M. with his
family. R. 292. At the time of the evaluation, A.L.M. was
nine years old, but his grandmother noted that he acted like
a five-year-old and had very poor social interaction.
Id. He was, however, on time for development and
talking and could follow directions. Id. He had
difficulty with eye contact and would often get easily
sidetracked. Id. Further, he had difficulty
understanding body language and jokes and had no friends at
school. R. 293. He did play with his brother, watched a lot
of television, played pretend, and enjoyed swimming.
Id. A.L.M. was at an appropriate grade level for all
academics and loved reading. R. 294. A.L.M. had variable and
often fleeting eye contact, poor prosody, and some hand
flapping. Id. He had abnormal muscle tone and
abnormal coordination, was a slow, awkward runner, and was
unable to skip. R. 295. A.L.M. had mood issues related to
significant neglect early in his life and his inability to
make friends, but Dr. Norwood expressed the opinion that the
autism spectrum disorder was unrelated to the neglect. R.
295-96. Dr. Norwood provided A.L.M.'s grandparents with
an autism packet, suggested that he would benefit from an
individualized education program (“IEP”), and
encouraged extracurricular activities “to help with
socialization and motor development.” R. 296.
31, 2012, A.L.M. visited the University of Virginia
(“UVA”) Hospital for a follow-up appointment. R.
417-22. His grandmother was concerned that A.L.M. was
worsening because he would get frustrated and would blow up
when fighting with his brother. R. 421. Additionally, A.L.M.
had not interacted with other children during a school field
trip. Id. A.L.M.'s grandmother reported that he
was on level for reading and spelling, but not for math.
Id. She requested a counselor for A.L.M. given her
concerns about his behavior. Id.
began seeing Valeri Pineo, a Licensed Professional Counselor,
at Augusta Psychological Associates on August 16, 2012. R.
347. Ms. Pineo performed an intake evaluation, noting
A.L.M.'s family history was significant for numerous
mental illnesses and that his grandmother reported he had
“lived in chaos” since a very early age.
Id. A.L.M. had been diagnosed with ADHD, but his
grandmother refused to give him medication to treat it.
Id. A.L.M. reportedly did well in school, and,
despite his shyness with peers, his grandmother denied he had
major social issues. Id. Ms. Pineo noted that A.L.M.
was extremely guarded with poor eye contact and a flat and
depressive affect, but suicidal ideation, self-harm gestures,
and psychotic symptoms were denied. R. 348. A.L.M. refused to
speak, so she found his genuine level of cognitive processing
to be unknown, but noted he appeared oriented to the place
and situation. Id. She also noted that A.L.M. had
never been in counseling, except for a counselor at school.
Id. Ms. Pineo diagnosed A.L.M. with adjustment
disorder, assigned him a Global Assessment of Functioning
(“GAF”) score of 61,  and recommended further
visited Ms. Pineo three times in September 2012. On September
13, Ms. Pineo noted that A.L.M. was oriented and cooperative
and that he had the ability to care for himself. R. 349. She
noted that he was anxious, but that he allowed her to call
him by his name, R. 349, which he had not allowed at their
previous meeting, R. 347. On September 21, A.L.M. was
oriented, but hyperactive, distractible, and anxious, and Ms.
Pineo noted these behaviors are often present in children who
have Asperger Syndrome. R. 350. A.L.M. had difficulty
completing and handing in work at school, but he would
quickly verbalize excuses in his defense. Id. She
noted that he was still able to care for himself.
Id. On September 25, A.L.M. was oriented and
cooperative, although he remained hyperactive and anxious,
and he exhibited a flight of ideas. R. 351. At all three
appointments, Ms. Pineo's plan for the future included
establishing healthy boundaries with self and others,
relaxation techniques, and communication and coping skills.
October 26, 2012, A.L.M. returned for another session with
Ms. Pineo. R. 352. A.L.M. was oriented, his affect was
anxious and flat, and he was cooperative despite being
agitated. Id. Ms. Pineo noted that he continued to
struggle with task completion, especially when he arrived
home from school, and Ms. Pineo suggested making a schedule.
Id. Ms. Pineo felt that Werner “needs to be
needed” by A.L.M. and encouraged his separation
anxiety. Id. She noted that despite his pervasive
anxiety symptoms and Asperger Syndome, he was capable of
being much more independent than he currently was, and Ms.
Pineo believed that Werner created a “culture of fear,
” which caused A.L.M. to fear trying things on his own.
Id. Werner also blamed others for any failure by
A.L.M. and encouraged his reluctance to try again by telling
him he is “fine the way he is.” Id.
November, A.L.M. returned for therapy with Ms. Pineo three
times. On November 6, Ms. Pineo noted that A.L.M. had a
restricted range of interests, was oriented, had an
appropriate but anxious affect, and was hyperactive but
cooperative. R. 354. On November 16, Ms. Pineo noted that
A.L.M. had separation anxiety when he was away from his
grandmother and he had a difficult time when he visited his
father because the loud and busy household over-stimulated
and exacerbated his anxiety. R. 355. She felt that A.L.M. was
an excellent candidate for medication given his extremely
high anxiety level, but noted that A.L.M.'s grandmother
was resistant. Id. He was oriented, anxious and
euphoric, and again hyperactive but cooperative. Id.
On November 30, Ms. Pineo found that A.L.M. continued to
struggle with social situations, particularly at school. R.
357. She also noted that A.L.M.'s grandmother encouraged
and facilitated A.L.M.'s dependence on her and reinforced
his separation anxiety. Id. Ms. Pineo again
recommended medication, and A.L.M.'s grandmother