Opinion

Gaines v. Social Security Administration

Court
District Court, N.D. Ohio
Filed
Sep 16, 2020
Cited by
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More cited than 28.0%

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The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TAHIRAH GAINES o/b/o J.F., ) CASE NO. 1:19-CV-0845

)

Plaintiff, )

)

v. ) MAGISTRATE JUDGE DAVID A. RUIZ

)

ANDREW SAUL, )

Commissioner of Social Security, ) MEMORANDUM OPINION AND

) ORDER

Defendant. )

Plaintiff, Tahirah Gaines (Gaines), acting on behalf of J.F., a minor (J.F.), challenges the

final decision of Defendant Andrew Saul, Commissioner of Social Security (Commissioner),

denying J.F.’s Supplemental Security Income (SSI) claim under Title XVI of the Social Security

Act, 42 U.S.C. §§ 1381 et seq. (Act). This court has jurisdiction pursuant to 42 U.S.C. § 405(g).

This case is before the undersigned United States Magistrate Judge pursuant to consent of the

parties. (R. 10). For the reasons set forth below, the Commissioner’s final decision is AFFIRMED.

I. Procedural History

On March 18, 2015, Gaines filed an application for SSI benefits on the behalf of her minor

son, J.F., with a disability onset date of January 15, 2012. (R. 9, Transcript (Tr.) 154). The

application was denied initially on October 7, 2015, (Tr. 96-98), and upon reconsideration on

December 2, 2015. (Tr. 84-94). On December 2, 2015, Gaines requested a hearing before an

Administrative Law Judge (ALJ). (Tr. 111-116). Gaines and J.F. participated in the hearing on

March 28, 2017, were represented by counsel, and testified. (Tr. 33-59).

On August 1, 2018, the ALJ denied Gaines’s application, concluding that J.F. was not

di sabled within the meaning of the Act. (Tr. 12-32). On February 22, 2019, the Appeals Council

denied Gaines’s request to review the ALJ’s decision, and the ALJ’s decision became the

Commissioner’s final decision. (Tr. 1-6). On April 16, 2019, Gaines filed a complaint challenging

the Commissioner’s final decision. (R. 1). The parties have completed briefing in this case. (R. 11

& 13). Gaines asserts the following assignments of error:

1. At step three, the ALJ found that J.F. did not have an impairment which met

a listed impairment. This finding lacks the support of substantial evidence

because the ALJ failed to conduct an adequate evaluation to determine

whether J.F.’s severe [Attention Deficit Hyperactivity Disorder (ADHD)]

met the requirements of Listing 112.11.

2. At step three, the ALJ found that J.F.’s impairments were not functionally

equivalent to a listed impairment. This finding is not supported by

substantial evidence when the record establishes that J.F. has marked

limitations in the domain of acquiring and using information and marked

limitations in the domain of attending and completing tasks.

II. Personal Background Information

J.F. was born on September **, 2011, and was three years old on his application date. (Tr.

70). Accordingly, J.F. was a preschooler on the application date and considered a preschooler for

Social Security purposes. See 20 C.F.R. §416.926a(g)(2)).

III. Evidence

A. Relevant Medical Evidence1

On April 28, 2015, J.F. visited Dr. Danielle Massarella, a pediatric gastroenterologist, for

general abdominal pain/cramps, and changes in bowel movements. (Tr. 228). J.F. presented with

a history of asthma, allergic rhinitis, eczema, and malrotation. Id. J.F. had abdominal surgery when

1 The recitation of the evidence is not intended to be exhaustive. It includes only those portions

of the record cited by the parties in their briefs and deemed relevant by the court to the assignments

of error raised.

he  was fourth months old. Id. Gaines stated that J.F. complained of abdominal pain since the

surgery, woke up at night due to abdominal pains, and refused food because of abdominal pain.

Id. Gaines informed the doctor that J.F. was toilet trained at age two, and since then has tended

towards constipation with a history of encopresis. Id. Gaines noted that she treated J.F.’s

constipation with MiraLAX. Id. Dr. Massarella diagnosed J.F. with generalized abdominal pain,

unspecified constipation, and altered bowel habits. (Tr. 231).

On July 7, 2015, J.F. visited his pediatrician, Dr. James Liang. J.F.’s chief complaints were

stomach problems, uncontrolled bowel movements and urine incontinence. (Tr. 253). Gaines

informed Dr. Liang that J.F. was toilet trained at age two but complained of abdominal pain and

could not control his bowel movements. Id. Gaines stated that some of J.F.’s words were not clear,

but that she could understand him and that he may have some behavioral problems because he was

hyperactive. Id. Dr. Liang noted that J.F. was well-developed and well-nourished. (Tr. 254). The

doctor noted that J.F. was taking MiraLAX to control his bowel movements, and that the bowel

movements have been improving daily. (Tr. 255). Dr. Liang diagnosed J.F. with bowel

incontinence and urine incontinence. Id.

On July 13, 2015, J.F. underwent an upper GI study, which revealed evidence of

malrotation but no evidence of stricture or obstruction in the small bowel. (Tr. 249).

On August 17, 2015, J.F. had an initial examination with a pediatric surgeon for complaints

of abdominal pain and dark urine. (Tr. 260). The doctor noted that although previously prescribed

MiraLAX, Gaines was not giving it to him. (Tr. 261). A physical examination revealed an

umbilical hernia and no signs of obstruction. (Tr. 262). The doctor prescribed MiraLAX. (Tr. 263).

The doctor noted that J.F. had urinary incontinence and was not toilet trained. (Tr. 263). The doctor

further noted J.F. “has an incidental easily reducible umbilical hernia. Repair is indicated at age 5

ye ars if it has not resolved.” Id.

On August 26, 2015, J.F. met with clinical psychologist Natalie Meyer, Psy.D. (Tr. 266).

Gaines stated that she applied for benefits on behalf of J.F. due to his history of surgery. (Tr. 267).

Gaines reported that J.F. was very friendly and had no history of behavioral support or mental

health services. (Tr. 268).

Dr. Meyer noted that J.F. was able to name colors, recite part of the alphabet, and count to

four. (Tr. 270). Dr. Meyer opined that J.F. had adequate attention to task for his age, and that there

were no reported concerns about attention. Id. Dr. Meyer noted that J.F. interacted appropriately

with her and Gaines and that he reportedly got along well with his peers and teachers. Id. There

were few significant behavioral concerns reported at home or school. Id. Dr. Meyer noted that J.F.

did not have a history of early intervention or special education services. (Tr. 271). She explained

that J.F. required assistance to complete grooming and hygiene and was cooperative with tasks at

home. (Tr. 270).

On September 29, 2015, J.F. underwent a speech language evaluation. (Tr. 275). Gaines

reported that J.F. was smart and his medical issues were her main concern. Id. J.F.’s speech was

70% intelligible with a mild articulation disorder, mild receptive language disorder, and mild

expressive language disorder. (Tr. 276). J.F. scored in the tenth percentile for articulation, the

eighth percentile for auditory comprehension, the ninth percentile for expressive communication,

and his total language score was in the seventh percentile. Id. Examiners recommended speech-

language therapy. (Tr. 277).

In September and October of 2015, state agency consultants Leslie Rudy, Ph.D., Lisa

Lynch, MA, CCC-SLP, and Frank Stroebel, M.D. reviewed J.F.’s file. (Tr. 79). The consultants

determined that that J.F. had severe impairments of speech and language and disorder of the

ga strointestinal system. (Tr. 77). These impairments resulted in less than marked limitation in the

domain of inquiring and using information; no limitation in the domain of attending and

completing tasks; less than marked limitation in the domain of interacting and relating with others;

no limitation in the domain of moving about and manipulating objects; no limitation in the domain

of caring for yourself; and less than marked limitation in the domain of health and physical well-

being. (Tr. 78-79).

On October 8, 2015, J.F. visited Dr. Eric Friess to get immunizations to attend preschool.

(Tr. 348). The doctor’s note states “[patient] with unchecked behavior in the exam room and mom

hoping to get him into Head Start/Pre K soon.” (Tr. 348). On October 23, 2015, J.F. visited Dr.

Laurie Ekstein for a well child visit. (Tr. 358). Gaines informed Dr. Ekstein that J.F. was not

sleeping and had behavior problems. Id.

On November 4, 2015, J.F. visited Applewood Center for a mental health assessment for

hyperactivity. (Tr. 294). The Provider indicated that J.F. met the criteria for other specified

disruptive impulse-control disorder as evidence by hyperactivity and difficulty listening and

following directions, and sleep disturbance. (Tr. 300). The Provider recommended behavior health

counseling at least twice per month with family involvement to improve parenting skills,

behaviors. (Tr. 301). Gaines requested psychiatry for medication to help with J.F.’s hyperactivity.

Id. J.F. attended two out of eight scheduled therapy sessions between November 11, 2015 and

February 2, 2016. (Tr. 290). Due to J.F.’s failure to attend his scheduled sessions, the agency

terminated him for non-participation in services. (Tr. 292).

On January 24, 2017, J.F. visited Dr. Miyasake, a pediatric surgeon, for a routine health

maintenance check regarding his abdominal pain. (Tr. 448). Gaines stated that J.F. has had

abdominal pain since his surgery in 2011; and that he had pain every few weeks and would refuse

to  eat. (Tr. 448). J.F. did not exhibit anxiety, depression, or emotional problems. Id. Dr. Miyasake

noted his impression of abdominal pain of unclear etiology and sought J.F.’s prior medical records.

Dr. Miyasake suggested a follow up appointment after receipt of J.F.’s medical records. (Tr. 449).

J.F. followed up with Dr. Miyasake on February 7, 2017. (Tr. 450). Dr. Miyasake determined that

J.F. had a history of chronic abdominal pain and that his umbilical hernia repair could proceed

after a more thorough GI evaluation. (Tr. 451).

B. Opinion Evidence

The ALJ’s decision notes that “no treating physician, psychiatrist, or psychologist has

made a statement suggesting the claimant’s impairments have resulted in disabling functional

limitations.” (Tr. 21).

C. Other Source Information

On February 21, 2017, J.F.’s kindergarten teacher, Cristal Elkins-Chambers, completed a

teacher questionnaire. (Tr. 207-209). Ms. Elkins-Chambers reported that J.F. was in a regular

education classroom. (Tr. 207). In addition, the teacher noted that J.F. was absent from school

twenty-two out of one-hundred-fifteen days; he was struggling to master letters, sounds, number

identification and math; he was “in intensive interventions…for struggling readers” and that he

would “most likely be retained” in kindergarten. (Tr. 208). According to Ms. Elkins-Chambers,

J.F. “loses focus; moves a lot when involved in small group centers” but “[w]hen working [with]

teacher he tries hard and participates.” Id. She further noted that J.F. had issues with blending

sounds and could not recognize letters in his name. Id.

D. Relevant Hearing Testimony

The ALJ requested that J.F. appear at the hearing. J.F. stated that he was five years old and

in kindergarten. (Tr. 37). The ALJ then excused J.F. and took testimony from Gaines. Id.

Gaines testified that J.F. had abdominal surgery when he was four months old. (Tr. 39).

Since the surgery, J.F. experienced pain which affected his appetite, his sleep, and caused him to

miss school. (Tr. 43). Gaines explained that J.F. had problems controlling his urine and had about

three accidents a week. Id. J.F. had problems controlling his bowel movements about once a week

and would tell Gaines that he could not feel it happening. (Tr. 44). Gaines testified that J.F. used

an inhaler about three times a week for asthma, and sometimes required the use of a breathing

machine. Id. J.F. also had issues with eczema on his face and body. (Tr. 48).

Gaines testified that J.F.’s doctor suggested she take him to Applewood. (Tr. 46). Gaines

explained that J.F. was on sleeping medicine and that he was hyperactive. (Tr. 46). Before putting

J.F. on medication for hyperactivity, his doctors suggested counseling with Applewood twice a

week. (Tr. 46). Gaines testified that it was hard to calm J.F. down; he would “run all over the

place,” would not sit still, and it was “hard for him to stay focused.” (Tr. 47). Gaines reported that

J.F. had to repeat kindergarten. Id.

E. Post Hearing Psychological Evaluation

After the hearing, the ALJ referred J.F. for a psychological evaluation. (Tr. 453-58). On

May 2, 2017, Michael Faust, Ph.D., conducted the psychological evaluation. Id. Dr. Faust noted

that J.F. fidgeted in his chair and presented with signs of hyperactivity. (Tr. 455). J.F. exhibited

difficultly with distractions, impulsiveness and fidgeting. Id. Gaines reported that J.F. was

diagnosed with symptoms of ADHD by his primary care physician but had never been prescribed

medication to control the behavioral manifestations of the disorder. (Tr. 457). J.F.’s speech was

100% understandable, he showed no problems understanding directions, and he presented with

articulate speech for his age. (Tr. 455). Dr. Faust opined that J.F. would have trouble learning due

to significant deficits and increased behavioral levels in the classroom. (Tr. 457). He further noted

th at J.F. would have difficulty sustaining attention for prolonged periods of time and would require

redirection from adults in a group setting to complete assigned tasks. (Tr. 457). Dr. Faust further

opined that J.F. could be expected to exhibit some mild difficulty in interacting and relating to

others secondary to his continued symptoms of ADHD. (Tr. 458). Dr. Faust reported that J.F.

exhibited symptoms of attention deficit and increased behavioral levels, which would impact upon

his ability to engage in self-care activities daily. Id.

IV. Disability Standard

The standard for evaluating a child’s disability claim is different from the standard used

for an adult disability claim. Hernandez v. Astrue, No. 1:10CV1295, 2011 U.S. Dist. LEXIS

118601, at *9 (N.D. Ohio Sep. 28, 2011) (citing) 42 U.S.C. § 1382c(a)(3)(C)(i); Miller ex rel.

Devine v. Comm'r of Soc. Sec., 37 F. App’x 146, 147 (6th Cir. 2002)). A child is disabled if he or

she has a “medically determinable physical or mental impairment that results in marked and severe

functional limitations and can be expected to result in death or 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).

An ALJ must proceed through a sequential analysis to determine whether a child is entitled

to childhood SSI. 20 C.F.R. § 416.924(a). The three-step procedure requires the ALJ to determine

whether a child:

(1) is performing substantial gainful activity;

(2) has a “severe” impairment or combination of impairments; and

(3) whether the impairment or combination of impairments are of listing-level

severity in that the impairment(s) either meets, medically equals or are the

functional equivalent in severity to an impairment listed in 20 C.F.R. § 404, Subpart

P, Appendix 1 (“Listing”).

Phillips v. Astrue, No. 1:11CV2412, 2012 U.S. Dist. LEXIS 90497, *3 (N.D. Ohio June 29, 2012),

(c iting 20 C.F.R. § 416.924(a)-(d)).

For purposes of Step Three, to meet a Listing, the impairment(s) must be substantiated by

medical findings shown or described in the listing for that impairment. 20 C.F.R. § 416.925(d). To

medically equal a Listing, the impairment(s) must be substantiated by medical findings at least

equal in severity and duration to those shown or described in the listing for that impairment. 20

C.F.R. § 416.926(a). To functionally equal a Listing, the impairment(s) must be of listing-level

severity. In other words, it must result in “marked” limitations in two domains of functioning or

an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a).

When determining whether the impairment functionally equals the Listing, the ALJ

considers all relevant factors, including, but not limited to: (1) how well the child can initiate and

sustain activities, how much extra help he needs, and the effects of structured or supportive

settings; (2) how the child functions in school; and (3) the effects of the child’s medications or

other treatment. 20 C.F.R. § 416.926a(a)(1)-(3).

To make a functionally equivalent determination, the ALJ begins by evaluating how the

child functions on a daily basis and in all settings as compared to other children of the same age

who do not have impairments. 20 C.F.R. § 416.926a(b). The ALJ considers how the child’s

functioning is affected during his activities at home, school and in his community in terms of six

domains:

(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)(i)-(vi).

The ALJ reviews these domains to determine if the child’s limitations are marked or

extreme. 20 C.F.R. § 416.926a(e). When assessing whether J.F. has marked or extreme limitations,

the ALJ must consider the functional limitations from all medically determinable impairments,

including any impairments that are not severe. 20 C.F.R. § 416.926a(a). The ALJ must also

consider the interactive and cumulative effects of the impairment(s) in any affected domain. 20

C.F.R. § 416.926a(c).

A marked limitation is defined in part as a limitation that is “more than moderate” but “less

than extreme.” 20 C.F.R. § 416.926a(e)(1). It is the equivalent of the functioning expected on

standardized testing with scores that are at least two, but less than three, standard deviations below

the mean. 20 C.F.R. §416.926a(e)(2)(i). A child has a marked limitation in a domain when the

impairment “interfere(s) seriously with [the] ability to independently initiate, sustain, or complete

activities.” 20 C.F.R. § 416.926a(e)(2)(i).

An extreme limitation is the rating for the worst limitations. 20 C.F.R. §416.926a(e)(3).

“However, ‘extreme limitation’ does not necessarily mean a total lack or loss of ability to function.

It is the equivalent of the functioning that would be expected on standardized testing with scores

that are at least three standard deviations below the mean.” 20 C.F.R § 416.926a(e)(3)(i). An

“extreme” limitation exists when the impairment “interfere(s) very seriously with [the] ability to

independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i).

If the impairment meets, medically equals, or functionally equals the Listing, and satisfies

the Act’s duration requirement, then the child is considered disabled. 20 C.F.R. § 416.924(d)(1).

If both requirements are not satisfied, then the child is not disabled. 20 C.F.R. § 416.924(d)(2).

V . Summary of the ALJ’s Decision

The ALJ made the following findings of fact and conclusions of law:

1. The Claimant was born on *** 2011. Therefore, he was a preschooler on February

26, 2015, the date application was filed, and is currently a preschooler (20 CFR

416.926a(g)(2)).

2. The Claimant has not engaged in substantial gainful activity since February 26,

2015, the application date (20 CFR 416.924(b) and 416.971 et seq.).

3. The Claimant has the following severe impairments: asthma; intussusception,

malrotation and volvulus, status post Ladd's procedure; and attention-deficit

hyperactivity disorder (20 CFR 416.924(c)).

4. The Claimant does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).

5. The Claimant does not have an impairment or combination of impairments that

functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).

6. The Claimant has not been disabled, as defined in the Social Security Act, since

February 26, 2015, the date the application was filed (20 CFR 416.924(a)).

(Tr. 18-32).

In reaching the conclusion that J.F. was not disabled, the ALJ evaluated J.F.’s abilities

under all six domains of functioning and made the following findings:

1. Less than marked limitation in “acquiring and using information.” (Tr. 23).

2. Less than marked limitation in “attending and completing tasks.” (Tr. 24).

3. Less than marked limitation in “interacting and relating with others.” (Tr. 25).

4. No limitation in “moving about and manipulating objects.” (Tr. 26).

5. Less than marked limitation in “ability to care for yourself.” (Tr. 27).

6. Less than marked limitation in “health and physical well-being.” (Tr. 28).

V I. Law and Analysis

A. Standard of Review

Judicial review of the Commissioner’s decision is limited to determining whether it is

supported by substantial evidence and was made pursuant to proper legal standards. Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). Review must be based on the whole record.

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any

evidence in the record to determine if the ALJ’s decision is supported by substantial evidence,

regardless of whether it has actually been cited by the ALJ. Id. However, the court does not review

the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v. Sec’y

of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).

The Commissioner’s conclusions must be affirmed absent a determination that the ALJ

failed to apply the correct legal standards or made findings of fact unsupported by substantial

evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial

evidence is more than a scintilla of evidence but less than a preponderance and is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion. Brainard, 889

F.2d at 681. A decision supported by substantial evidence will not be overturned even though

substantial evidence supports the opposite conclusion. Ealy, 594 F.3d at 512.

As a rule, the ALJ must build an accurate and logical bridge between the evidence and her

conclusion. Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio 2011); see also Wilson v.

Comm. of Soc. Sec., 378 F.3d 541, 544-546 (6th Cir. 2004). “Where the ALJ’s decision lacks

evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be

remanded.” Castello v. Commissioner of Social Sec., 5:09 CV 2569, 2011 U.S. Dist. LEXIS 13659,

2011 WL 610590, at *2 (N.D. Ohio Jan 10, 2011) (quoting Giles v. Astrue, 483 F.3d 483, 486 (7th

C ir. 2007) (internal quotation omitted); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995) (the ALJ’s

analysis must allow reviewing court to trace the path of her reasoning) (Briscoe ex rel. Taylor v.

Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

B. Gaines’s Assignments of Error

Gaines asserts the ALJ committed two errors at Step Three of the sequential analysis. Both

assignments of error focus on the ALJ’s conclusions regarding the severe impairment of ADHD.

During the Step Three analysis, the ALJ was required to consider whether J.F.’s impairment or

combination of impairments either 1) meet, 2) medically equal(s) or 3) are the functional

equivalent in severity to a listed impairment. 20 C.F.R. § 416.924(a)-(d). The ALJ determined that

J.F.’s ADHD did not meet, medically equal, or functionally equal a listed impairment. Gaines

contends such conclusions lack the support of substantial evidence.2 The court will consider

Gaines’ second assignment error first, because the court’s conclusion regarding that issue is also

dispositive of the first assignment of error.

1. Second Assignment of Error - Whether J.F.’s impairments were not

functionally equivalent to a listed impairment.

Gaines contends that the ALJ erred in finding that J.F.’s impairments were not functionally

equivalent to a listed impairment, because according to Gaines the record evidence established

marked limitations in two of the six domains: 1) acquiring and using information and 2) attending

and completing tasks.3 (R. 11, PageID# 533). The Commissioner asserts that the ALJ’s

conclusions were reasonably supported by the evidence, and argues Gaines has failed to establish

2 Gaines does not take issue with the ALJ’s other findings regarding the listed impairments.

3 Gaines does not challenge the ALJ’s determinations regarding the four remaining domains; and,

therefore, they are not addressed here.

ot herwise. (R. 13, PageID# 551). The ALJ’s decision must stand if reasonable evidence supports

the ALJ’s conclusion, even if there is also evidence in the record that supports Gaines’s argument.

Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

The ALJ’s decision, before specifically addressing the individual domains, concluded:

The objective evidence, treatment history, and subjective allegations to treating

sources are also inconsistent with Ms. Gaines’s current testimony suggesting

disabling cognitive limitations. Mental status examinations throughout the period

revealed normal mood and affect. The consultative evaluation performed in May

2017 by Michael Faust, Ph.D., including Wechsler Preschool and Primary Scale

of Intelligence III testing revealed a full scale IQ of 81, which was in the low-

average range; but it was also noted that the claimant exhibited untreated ADHD

symptoms during that evaluation. (Exhibit B12F, p. 5). As explained further

below, a teacher questionnaire suggested the claimant struggled academically, but

also revealed a high number of absences that may have accounted for at least

some of his lack of progress. The evidence also demonstrated that the claimant's

mother sought minimal treatment for concerns of behavioral or attention deficit

symptoms, with only a brief period of services through Applewood Centers for

those complaints in late 2015.

(Tr. 21). Moreover, the ALJ gave “considerable weight to the opinion of the consultative

psychologists, Drs. Meyer and Faust, who opined the claimant had some limitations, but not to a

‘marked’ or ‘extreme’ degree, in his age-appropriate functioning in the domains below.” (Tr.

22). The ALJ noted “[t]here was no significant change in the claimant’s symptomology or

treatment between these two visits. In fact, Dr. Faust noted improvement in the claimant’s

language functioning compared to the earlier observations of Dr. Meyer.” Id.

a) Acquiring and Using Information.

In the domain of acquiring and using information, the Commission considers how the child

acquires or learns information and how well the child uses the information she or he has learned.

20 C.F.R. § 416.926a(g). This domain involves how well a child perceives, thinks, remembers,

and uses information in all settings, including daily activities at home, school, and in the

co mmunity. 20 C.F.R. § 416.926a(g). These considerations are age specific. Preschool children,

ages three to six, “should begin to learn and use the skills that will help [them] to read and write

and do arithmetic” when older. 20 C.F.R. § 416.926a(g)(2)(iii).

A child should have the “readiness skills” by the time she or he begins first grade. Id.

For example, listening to stories, rhyming words, and matching letters are skills

needed for learning to read. Counting, sorting shapes, and building with blocks are

skills needed to learn math. Painting, coloring, copying shapes, and using scissors

are some of the skills needed in learning to write. Using words to ask questions,

give answers, follow directions, describe things, explain what you mean, and tell

stories allows you to acquire and share knowledge and experience of the world

around you.

20 C.F.R. § 416.926a(g)(2)(iii).

In finding that J.F. has less than marked limitation in acquiring and using information, the

ALJ addressed the domain as follows:

The claimant’s mother has made conflicting statements regarding his functioning

in this area, describing the claimant as bright or “smart” to treating or examining

sources, stressing that his physical impairments were her main concern, but alleging

at the hearing that she feels he has an intellectual or learning impairment. (Exhibit

B5F, p. 3). While the claimant’s mother indicated that she was in the process of

working with his school to obtain special education services, there was no evidence

of such in the record at the time of the hearing. The claimant achieved low-average

achievement on intelligence testing during the most recent consultative

psychological evaluation, with a full-scale IQ of 81, but Dr. Faust also noted

distractibility and hyperactivity during the examination that may have affected that

performance. The psychologist noted that these symptoms were untreated with

medication. (Exhibit B12F, p. 6). Dr. Faust observed the claimant could understand

simple or more complex instructions, but would likely have some difficulty

learning and retaining new information in a group situation due to his ADHD

symptoms, which were untreated. Dr. Faust also emphasized he was unable to

confirm the presence of any diagnosable learning disorder without additional

achievement testing, and that the claimant’s attention symptoms were likely

interfering in this area. (Exhibit B12F, p. 7).

While the undersigned has considered the subjective reports, and additional

evidence received at the hearing level, to find some limitation in this area (contrary

to the findings of the DDS consultants, who indicated no limitations in this

functional domain), the weight of the evidence is inconsistent with “marked” or

“extreme” limitations in this area. The claimant has currently untreated attention

deficit and hyperactivity symptoms, which may interfere with his abilities in a

school environment, but would likely improve with appropriate interventions.

Despite the untreated nature of his ADHD, the claimant achieved low-average

scores on intellectual testing, and by the time of the 2017 evaluation with Dr. Faust,

demonstrated no significant receptive or expressive language problems.

(Tr. 23-4).

Gaines contends that the evidence shows that J.F.’s ADHD causes him to function below

the expected level of functioning based on his IQ score, as evidenced by his kindergarten teacher

Ms. Elkins-Chamber’s above-referenced questionnaire. (R. 11, PageID #533). Notably, the ALJ

considered the teacher’s questionnaire, but gave limited weight to the opinions therein because

“the post-hearing consultative examination with Dr. Faust demonstrated [J.F.] was in the low-

average range of intellectual functioning, and was most likely having academic issues due to

untreated ADHD symptoms.” (Tr. 22). The ALJ further relied upon the consultative psychological

examination performed by clinical psychologist Dr. Meyer, which also noted that J.F. functioned

in the low-average range of intelligence. Id. The ALJ reasonably concluded that these reports

contradicted Ms. Elkins-Chamber’s observations. In addition, as the ALJ concluded, “the teacher

noted that [J.F.] had been enrolled for 115 days at the time of her report, but had been absent 22

of those days due to ‘medical issues’ per the reports of his mother,” which the ALJ assessed may

account for some of his academic difficulties. Id. Gaines does not set forth an assignment of error

challenging the weight the ALJ afforded to Ms. Elkins-Chamber’s opinion. (R. 11, PageID# 532-

35). Instead, Gaines disagrees with the ALJ’s conclusion on this domain.

The underlying decision demonstrates that the ALJ sufficiently considered the evidence of

record—including the teacher’s questionnaire, Dr. Meyer’s report and Dr. Faust’s report—and

explained the decision regarding the domain of acquiring and using information. The relevant issue

is  not whether there is evidence to support a ruling different than that reached by the ALJ. LeBron

ex rel. R.L. v. Commissioner, No.1:13CV1355, 2014 U.S. Dist. LEXIS 103251, 2014 WL

3749221, at *11 (N.D. Ohio July 29, 2014). Rather, the Commissioner’s determination must stand

if supported by substantial evidence, regardless of whether some evidence might support another

conclusion. See Brown ex rel. JK v. Astrue, 306 Fed. Appx. 636, 2009 WL 59167, at *1 (2d Cir.

2009); Kidd v. Commissioner, 7 Fed. Appx. 483, 2001 WL 345787, at *3 (6th Cir. 2001); Martin

ex rel. Martin v. Chater, 91 F.3d 144, 1996 WL 428403, at *4 (6th Cir. 1996) (per curiam); Mullen,

800 F.2d at 545; Kinsella, 708 F.2d at 1059. Here, the ALJ’s determination is supported by

substantial evidence; and therefore, Gaines’s assignment of error on this issue is overruled.

b) Attending and Completing Tasks

The domain of “attending and completing tasks” considers:

how well you are able to focus and maintain your attention, and how well you begin,

carry through, and finish your activities, including the pace at which you perform

activities and the ease with which you change them.

20 C.F.R. § 416.926a(h).

Preschool children, ages three to six, “should be able to pay attention when you are spoken

to directly, sustain attention to your play and learning activities, and concentrate on activities like

putting puzzles together or completing art projects. You should also be able to focus long enough

to do many more things by yourself, such as getting your clothes together and dressing yourself,

feeding yourself, or putting away your toys. You should usually be able to wait your turn and to

change your activity when a caregiver or teacher says it is time to do something else.” 20 C.F.R.

§416.926a(H)(2)(iii).

In finding that J.F. has less than marked limitation in attending and completing tasks, the

A LJ addressed the domain as follows:

The claimant’s kindergarten teacher noted difficulty with focus, especially during

group situations, but this improves when working one-on-one with a teacher. As

explained above, the claimant exhibited hyperactivity and impulsiveness during the

consultative evaluation performed by Dr. Faust in May 2017, but a lack of treatment

for ADHD was noted. The claimant had a history of briefly treating at Applewood

Centers for behavior concerns, but was discharged from that agency within months

due to failure to return for follow-up appointments. (Exhibit B7F). Still, there is no

evidence that the claimant’s mother complained of significant behavioral problems

to their primary care pediatrician during well care visits or other specific visits for

acute concerns. Mental status evaluations generally revealed normal cognition and

behavior status during office visits.

While the undersigned has considered the subjective reports, and additional

evidence received at the hearing level, to find some limitation in this area (contrary

to the findings of the DDS consultants, who indicated no limitations in this

functional domain), the weight of the evidence is inconsistent with “marked” or

“extreme” limitations in this area. The Claimant has currently untreated attention

deficit and hyperactivity symptoms, which may interfere somewhat in this area.

Despite the untreated nature of his ADHD, the Claimant achieved low-average

scores on intellectual testing, and by the time of the 2017 evaluation with Dr. Faust,

demonstrated no significant receptive or expressive language problems.

(Tr. 24-5).

Gaines contends that the ALJ failed to fully consider the limitations set forth in Ms. Elkin-

Chambers’ report and Dr. Faust’s report. (R. 11, PageID# 534). According to Gaines, these reports

establish that J.F. had serious limitations in the domain of attending and completing tasks. Gaines

does not challenge the weight the ALJ assigned to these opinions, but rather contends that the ALJ

failed to fully consider the reports. (R. 11, PageID# 533-34).

Although Ms. Elkins-Chambers’ questionnaire addresses J.F.’s academic struggles, it does

not connect these academic issues with difficulties in attending and completing tasks, or any

specific issue with focus. With regard to focus, the kindergarten teacher’s report is limited. She

explained that J.F. “loses focus; moves a lot when involved in small group centers. When working

with teacher he tries hard and participates[.]” (Tr. 208). This information establishes that J.F. does,

in  fact, pay attention when his teacher speaks directly to him. 20 C.F.R. §416.926a(H)(2)(iii). The

teacher further reported that he is in a regular education classroom with twenty-three students (Tr.

207), and “[o]ther student behaviors seem to take [J.F] off task. [J.F.] enjoys playing w/other[s] so

if a student starts to play and not work[,] he follows.” (Tr. 209). This suggests J.F. moves off task

when other children are off task. (Tr. 208). The ALJ considers the domain of attending and

completing tasks by comparing J.F. to other children of the same age who do not have impairments.

20 C.F.R. § 416.926a(b). The teacher’s statement indicates that J.F’s behavior is not out of line in

comparison to his classmates in the regular education classroom.

Dr. Faust’s report stated that J.F. had difficulty with distractibility and inattention in a one-

on-one setting. (Tr. 457). Dr. Faust opined that J.F. would have difficulty sustaining attention for

prolonged periods of time and would require redirection to complete tasks. (Tr. 457). J.F. would

likely interrupt peers and be disruptive in a group situation because he is impulsive and

hyperactive. (Tr. 457). The ALJ considered these statements and also indicated that “a lack of

treatment for ADHD was noted[.]” (R. 24). Moreover, the ALJ reasonably relied upon the evidence

to determine that notwithstanding “the untreated nature of [J.F.’s] ADHD, the claimant achieved

low-average scores on intellectual testing, and by the time of the 2017 evaluation with Dr. Faust,

demonstrated no significant receptive or expressive language problems.” (Tr. 25). It is apparent

from the underlying decision, quoted above, that the ALJ considered these opinions and weighed

the record evidence—such as “no evidence that the claimant’s mother complained of significant

behavioral problems to their primary care pediatrician…” and “[m]ental status evaluations

generally revealed normal cognition and behavior status during office visits[]”—to determine that

J.F. had less than marked limitations in attending and completing tasks. (Tr. 24-25).

This court does not review the evidence de novo, make credibility determinations, or weigh

th e evidence. Brainard, 889 F.2d at 681. Rather, the Commissioner’s determination must stand if

supported by substantial evidence, regardless of whether some evidence might support another

conclusion. See Brown ex rel. JK v. Astrue, 306 Fed. Appx. 636, 2009 WL 59167, at *1 (2d Cir.

2009); Kidd v. Commissioner, 7 Fed. Appx. 483, 2001 WL 345787, at *3 (6th Cir. 2001); Martin

ex rel. Martin v. Chater, 91 F.3d 144, 1996 WL 428403, at *4 (6th Cir. 1996) (per curiam); Mullen,

800 F.2d at 545; Kinsella, 708 F.2d at 1059. Here, the underlying decision demonstrates that the

ALJ sufficiently considered the record and provided substantial evidence to explain the decision

regarding the domain of attending and completing tasks.

Gaines’s second assignment of error, therefore, is without merit.

2. First Assignment of Error

In her first assignment of error, Gaines contends that the ALJ failed to properly evaluate

whether J.F.’s ADHD met the listed impairment of Listing 112.11. (R. 11, PageID# 529). The

court agrees, but as explained below, such error was harmless when considering the underlying

decision as a whole.

To properly determine if J.F. met the listed impairment, Listing 112.11, the ALJ had to

consider the following:

112.11 Neurodevelopmental disorders (see 112.00B9), for children age 3 to

attainment of age 18, satisfied by A and B:

A. Medical documentation of the requirements of paragraph 1, 2, or 3:

1. One or both of the following:

a. Frequent distractibility, difficulty sustaining attention, and difficulty

organizing tasks; or

b. Hyperactive and impulsive behavior (for example, difficulty

remaining seating, talking excessively, difficulty waiting, appearing

restless, or behaving as if being “driven by a motor”).

2. Significant difficulties learning and using academic skills; or

3. Recurrent motor movement or vocalization.

AND

B. Extreme limitation of one, or marked limitation of two, of the following areas of

mental functioning (see 112.00F):

1. Understand, remember, or apply information (see 112.00E1).

2. Interact with others (see 112.00E2).

3. Concentrate, persist, or maintain pace (see 112.00E3).

4. Adapt or manage oneself (see 112.00E4).

20 C.F.R. Pt. 404, Subpt P, App. I, §112.11.

The relevant portion of the ALJ’s decision states:

Referencing Claimant’s attention-deficit hyperactivity disorder (ADHD), there is

also no evidence of a neurodevelopmental disorder that is serious and persistent,

requiring a highly structured setting or resulting in minimal capacity to adapt to

changes in the environment that are not a part of the J.F.’s daily life to meet Listing

112.11.

(Tr. 19). The Commissioner concedes that this statement does not reflect a proper evaluation of

whether J.F.’s ADHD met the requirements of Listing 112.11. (R. 13, PageID# 547). “The ALJ

appears to have mistakenly performed a brief analysis of the paragraph ‘C’ criteria of Listing

112.02 related to ‘Neurocognitive Disorders,’ instead of utilizing the criteria under Listing

112.11.” (R. 13, PageID# 547).

The Commissioner argues that the ALJ’s error is harmless because the ALJ’s discussion

of the elements pertaining to functional equivalence analysis is sufficient to establish that the J.F.

did not actually meet or medically equal the listing. Id. Listing 112.11 requires J.F. to meet both

paragraph A and paragraph B, quoted above. In reading the decision as a whole, the Commissioner

asserts that the error becomes harmless because the ALJ nonetheless determined that J.F. did not

meet the paragraph B requirements. (R. 13, PageID# 547).

An ALJ’s failure to directly list the elements of a listing and then discuss the evidence of

re cord showing that a claimant does or does not meet that listing can be harmless error if the ALJ’s

ultimate Step Three finding is supported by factual findings made elsewhere in the record.

Campbell v. Comm’r of Soc. Sec., No. 1:13 CV 329, 2013 U.S. Dist. LEXIS 182402, at *14 n.59

(N.D. Ohio Dec. 17, 2013) (citing White v. Colvin, No. 4:12-cv-11600, 2013 U.S. Dist. LEXIS

131775, at *21-22 (E.D. Mich. Sep. 16, 2013) (collecting cases, noting “[n]umerous courts have

read Bledsoe[v. Barnhart, 165 F. App'x 408 (6th Cir. 2006),] as “implicitly endors[ing] the practice

of searching the ALJ’s entire decision for statements supporting his [S]tep [T]hree analysis.”).

As set forth herein, the ALJ properly considered the six functional equivalence domains

and determined that J.F.’s ADHD did not functionally equal a listed impairment. The paragraph B

factors required for determining whether an impairment meets Listing 121.11 are encompassed in

the ALJ’s discussion of the six functional equivalence domains. Accordingly, because the ALJ

performed a proper analysis of the record evidence when determining that J.F. did not functionally

equal a listed impairment, the court finds the ALJ’s error was harmless.

Gaines’s first assignment of error does not provide a basis to reverse or remand the

Commissioner’s decision.

VII. Conclusion

For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.

IT IS SO ORDERED.

s/ David A. Ruiz

David A. Ruiz

United States Magistrate Judge

Date: September 16, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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