United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge.
Tiffany Brown filed this action on behalf of her daughter,
D.B., challenging the final decision of the Commissioner of
Social Security denying plaintiffs claim for child's
supplemental security income benefits under Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-1383(d).
Jurisdiction of this court is established pursuant to 42
U.S.C. § 1383(c)(3), which incorporates § 205(g) of
the Social Security Act, 42 U.S.C. § 405(g). As
reflected by the memoranda and argument submitted by the
parties, the issues now before the court are whether the
Commissioner's final decision is supported by substantial
evidence, or whether there is "good cause" to
necessitate remanding the case to the Commissioner for
further consideration. See 42 U.S.C. § 405(g).
December 9, 2013, Ms. Brown filed an application for
child's supplemental security income benefits on behalf
of D.B. In filing the application, plaintiff
alleged that she had been disabled since August 1, 2013, due
to attention deficit hyperactivity disorder (ADHD), emotional
problems, and learning difficulties. (Tr. 183). Plaintiffs
claim was denied upon initial consideration and
reconsideration. She then requested and received a de
novo hearing and review before an Administrative Law
Judge. In an opinion dated April 18, 2017, the Law Judge also
concluded that plaintiff is not entitled to child's
supplemental security income benefits. The Law Judge found
that plaintiff suffers from several severe impairments,
including ADHD, oppositional defiant disorder, and scoliosis,
but that none of the conditions meet or medically equal the
severity of a listed impairment. (Tr. 13). The Law Judge also
considered each of the six functional domains and concluded
that the plaintiff experiences "less than marked"
limitations in the first five domains and no limitations in
the sixth domain. (Tr. 21-26). Thus, the Law Judge found that
the plaintiff does not have an impairment or combination of
impairments that functionally equals a listed impairment.
(Tr. 14). Accordingly, the Law Judge concluded that plaintiff
is not disabled, and that she is not entitled to child's
supplemental security income benefits. See generally
20 C.F.R. § 416.924. The Law Judge's opinion was
adopted as the final decision of the Commissioner by the
Social Security Administration's Appeals Council. Having
exhausted all available administrative remedies, plaintiff
has now appealed to this court.
is disabled within the meaning of the Social Security Act if
she has a "physical or mental impairment, which results
in marked and severe functional limitations, and ... 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). Under the applicable regulations, the
determination of whether a child meets this definition is
determined via a three-step inquiry. 20 C.F.R. §
416.924. The first determination is whether the child is
working and performing substantial gainful activity.
Id. § 416.924(b). If the child is not working,
it must then be decided whether the child suffers from a
severe impairment or combination of impairments. Id.
§ 416.924(c). If the child suffers from a severe
impairment or combination of impairments, it must then be
determined whether the child's impairments) meets,
medically equals, or functionally equals an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix I. Id.
determine whether an impairment is functionally equivalent to
a listed impairment, the Law Judge evaluates its severity in
six domains: (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 oneself; and (6) health and physical well-being.
Id. § 416.926a(b)(1). Functional equivalence
exists if the Law Judge finds a "marked" limitation
in two areas of functioning or an "extreme"
limitation in one area of functioning. Id.
§ 416.926a(d). In this case, the Law Judge concluded
that plaintiff does not experience a "marked" or
"extreme" limitation in any functional domain, and
therefore does not qualify for supplemental security income
appeal to this court, the plaintiff raises several arguments,
including that the Law Judge erred in determining that she
has less than marked limitations in the areas of attending
and completing tasks and interacting and relating with
others. After reviewing the record, the court agrees with the
plaintiff that the Law Judge's analysis of each of these
areas of functioning is incomplete and precludes meaningful
review. Accordingly, the court finds "good cause"
to remand the case to the Commissioner for further
development and consideration. See 42 U.S.C. § 405(g).
regulations applicable to a claim for child's
supplemental security income benefits provide that the Social
Security Administration will "consider all evidence in
[the] case record" in determining a child's
functioning, including information from medical sources and
nonmedical sources. 20 C.F.R. § 416.924a. Although
"there is no rigid requirement that the ALJ specifically
refer to every piece of evidence in his decision,"
Reid v. Comm'r of Soc. Sec, 769 F.3d 861, 865
(4th Cir. 2014) (citation and internal quotation marks
omitted), he "cannot simply cherry-pick facts that
support a finding of non-disability while ignoring evidence
that points to a disability finding," Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010). The United
States Court of Appeals for the Fourth Circuit has held that
"[a] necessary predicate to engaging in substantial
evidence review is a record of the basis for the ALJ's
ruling," including "a discussion of which evidence
the ALJ found credible and why, and specific application of
the pertinent legal requirements to the record
evidence." Radford v. Colvin, 734 F.3d 288, 295
(4th Cir. 2013). "If the reviewing court has no way of
evaluating the basis for the ALJ's decision, then the
proper course, except in rare circumstances, is to remand to
the agency for additional investigation or explanation."
Id. (citation and internal quotation marks omitted).
plaintiff first argues that the Law Judge erred in
determining that the plaintiff has "less than
marked" limitations in the area of attending and
completing tasks. In this functional domain, the Law Judge
considers how well the claimant is able to focus and maintain
her attention, and how well she begins, carries through, and
finishes her activities, including the pace at which she
performs her activities and the ease with which she changes
them. 20 C.F.R. § 416.926a(h). The regulations provide
that adolescents should be able to pay attention to
increasingly longer presentations and discussions, maintain
their concentration while reading textbooks, and
independently plan and complete long-range academic projects.
Id. § 416.926a(h)(2)(v). They should also be
able to maintain their attention on a task for extended
periods of time without being unduly distracted or
decision, the Law Judge summarized the rules and regulations
applicable to this area of functioning. (Tr. 22). The Law
Judge then provided the following explanation for his
determination that the plaintiff has "less than
marked" limitations in attending and completing tasks:
Ms. Brown initially reported the claimant could not keep busy
on her own or finish what she started, including her homework
and chores. While her teacher noted no problems in this area,
records show the claimant and her mother endorsed problems
with hyperactivity, impulsivity, and organizational skills.
As detailed above, the claimant was not initially placed on
medication until October 2013. She initially required some
medication modifications and providers noted issues with
compliance, specifically attending the required appointments
to obtain her medications. With compliance, the claimant
endorsed improvement in her focus and grades. She did require
another medication increase in September 2016 after reporting
poor concentration and forgetfulness. However, the most
recent records show the claimant continued to take the
medication at that dosage. Overall, while the claimant has
some issues, especially when off her medications, the record
supports only a less than marked limitation.
(Tr. 23) (citations omitted).
absent from the Law Judge's assessment of this domain is
any discussion of the findings contained in a report from
Betty L. Gillespie, Ph.D. Dr. Gillespie, a licensed clinical
psychologist, evaluated the plaintiff on June 29, 2014, at
the request of the Virginia Department of Rehabilitative
Services. (Tr. 297). At the time of the evaluation, the
plaintiff had been taking increasing dosages of Vyvanse, an
ADHD medication, for over eight months. (Tr. 260, 280, 287,
297). Dr. Gillespie noted that the plaintiff had been given
her prescribed medication prior to the psychological
evaluation and that the assessment "appear[ed] to
provide an accurate representation of [the plaintiffs]
current functioning and abilities." (Tr. 298). During
the assessment, the plaintiff "evidenced extremely poor
ability to complete work carefully" and "engaged in
very careless responding." (Tr. 300). Dr. Gillespie
observed that the plaintiffs "distractibility ranged
from mild to severe depending on the task during the current
assessment," and that the plaintiffs carelessness and
impulsivity negatively affected scores on diagnostic tests
administered during the evaluation. (Tr. 300). Dr.
Gillespie's clinical impressions included diagnoses of
ADHD, depressive disorder, and oppositional defiant disorder,
as well as a provisional diagnosis of disruptive behavior
disorder. As relevant here, Dr. Gillespie noted that the
plaintiff "demonstrates marked problems with
impulsive or careless responding as well as distractibility
or difficulty concentrating and attending to auditory
stimuli." (Tr. 302) (emphasis added).
assessing the plaintiffs ability to focus, maintain
attention, and complete tasks, the Law Judge did not address
the foregoing portions of Dr. Gillespie's report, much
less explain why the psychologist's findings were
insufficient to establish a marked limitation in the second
functional domain. To the extent the Law Judge declined to
credit Dr. Gillespie's report, he failed to provide any
explanation for doing so. The court concludes that such
deficiencies preclude meaningful review of the determination
that the plaintiff has less than marked limitations in this
area of functioning. See Mascio v. Colvin, 780 F.3d
632, 636 (4th Cir. 2015) (holding that remand was necessary
because the court was "left to guess about how the ALJ
arrived at his conclusions"); see also Jacob G. v.
Berryhill, No. 7:18-cv-00015, 2019 U.S. Dist. LEXIS
46092, at *30 (W.D. Va. Feb. 26, 2019), report and
recommendation adopted. 2019 U.S. Dist. LEXIS 45552
(W.D. Va. Mar. 20, 2019) (remanding for further proceedings
where, among other deficiencies, the Law Judge failed to
explain why she did not credit portions of a consultative
examiner's assessment indicating that the claimant had
issues with attention and hyperactivity).
plaintiff also argues that the Law Judge erred in determining
that the plaintiff has "less than marked"
limitations in the area of interacting and relating with
others. In this functional domain, the Law Judge considers
how well the claimant is able to initiate and sustain
emotional connections with others, cooperate with others,
comply with rules, respond to criticism, and respect and take
care of the possessions of others. 20 C.F.R.§
416.926a(i). The regulations provide that adolescents should
be able to develop friendships with children of a similar age
and relate appropriately to children and adults, both