# Williams v. Saul

> District Court, M.D. Pennsylvania · September 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10410730

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating that the court may not weigh the evidence or substitute our conclusions for those of the ALJ
- explaining the meaning of substantial evidence

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALICE MAE WILLIAMS o/b/o J.H., : CIVIL NO.: 1:20-CV-00624
:
Plaintiff, : (Magistrate Judge Schwab)
v. :
:
:
KILOLO KIJAKAZI,1 :
Acting Commissioner of :
Social Security, :
:
Defendant. :

MEMORANDUM OPINION
I. Introduction.
This is a social security action brought under 42 U.S.C. §§ 405(g) and
1383(c)(3). Alice Williams (“Ms. Williams”) seeks judicial review of the final
decision of the Commissioner of Social Security denying her minor son’s claim for
supplemental security income benefits. Because the Commissioner’s decision is

1 Kiolo Kijakazi is now the Commissioner of Social Security, and she is
automatically substituted as the defendant in this action. See Fed. R. Civ. P.
25(d) (providing that when a public officer sued in his or her official capacity
ceases to hold office while the action is pending, “[t]he officer’s successor is
automatically substituted as a party”); 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in
such office.”).
supported by substantial evidence, the court will affirm the Commissioner’s
decision.

II. Background and Procedural History.
We refer to the transcript provided by the Commissioner. See docs. 8-1 to 8-

9.2 On November 8, 2016, Ms. Williams protectively applied3 for supplemental
security income benefits on behalf of her minor son J.H., alleging that J.H. has
been disabled since August 22, 2016. Admin. Tr. at 10. After the Commissioner
denied the claim at the initial level of administrative review, Ms. Williams

requested an administrative hearing. Id. On October 26, 2018, J.H. and Ms.
Williams, with the assistance of counsel, testified at a hearing before
Administrative Law Judge (“ALJ”) Patrick S. Cutter. Id. at 10-26.

After the hearing, J.H. underwent a consultative examination. Id. at 10. The
report from this examination was received by the Social Security Administration
and notice of the receipt was sent to Ms. Williams and her counsel on November

2 The facts of the case are well known to the parties and will not be repeated here.
Instead, we will recite only those facts that bear on Ms. Williams’ claims.

3 “Protective filing is a term for the first time an individual contacts the Social
Security Administration to file a claim for benefits.” Stitzel v. Berryhill, No. 3:16-
CV-0391, 2017 WL 5559918, at *1 n.3 (M.D. Pa. Nov. 9, 2017). “A protective
filing date allows an individual to have an earlier application date than the date the
application is actually signed.” Id.
21, 2018. Id. After ten days of no response from Ms. Williams, the report was
entered into evidence, and the record was closed. Id.

The ALJ determined that J.H. has not been disabled since November 8,
2016, the date of his application, and so he denied him benefits. Id. at 11. Ms.
Williams appealed the ALJ’s decision to the Appeals Council, which denied her

request for review on February 26, 2020. Id. at 1-4. This makes the ALJ’s decision
the final decision of the Commissioner subject to judicial review by this court.
Ms. Williams filed this action on April 15, 2020. Doc. 1. The Commissioner
filed an answer to the complaint and a transcript of the proceedings that occurred

before the Social Security Administration. Docs. 7-8. The parties consented to
proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c), and the case was
referred to the undersigned. Doc. 10. The parties then filed briefs, see docs. 17, 20,

and this matter is ripe for decision.

III. Legal Standards.
A. Substantial Evidence Review—the Role of This Court.
When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, “the court has plenary review of all legal issues decided by
the Commissioner.” Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).
But the court’s review of the Commissioner’s factual findings is limited to whether
substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v.
Berryhill, 139 S. Ct. 1148, 1152 (2019). “[T]he threshold for such evidentiary

sufficiency is not high.” Biestek, 139 S. Ct. at 1154. Substantial evidence
“means—and means only—‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. of

New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence “is less than a preponderance of the evidence but more
than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs.,
48 F.3d 114, 117 (3d Cir. 1995). A single piece of evidence is not substantial

evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict
created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ’s] finding
from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,
383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

supported by substantial evidence the court must scrutinize the record as a whole.”
Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The question before this court, therefore, is not whether J.H. is disabled, but
whether substantial evidence supports the Commissioner’s finding that he is not

disabled and whether the Commissioner correctly applied the relevant law.

B. Initial Burdens of Proof, Persuasion, and Articulation.
To receive supplemental security income pursuant to Title XVI of the Social
Security Act, a claimant under the age of eighteen must demonstrate that 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); see also 20 C.F.R. § 416.906.

The ALJ follows a three-step sequential-evaluation process to determine whether a
child claimant is disabled. See 20 C.F.R. § 416.924. Under this process, the ALJ
must sequentially determine: (1) whether the child is engaged in substantial gainful

activity; (2) if not, whether the child has an impairment or combination of
impairments that is severe; and (3) if so, whether the child’s severe impairment (or
combination of impairments) meets, medically equals, or functionally equals one
of the disability listings. Id.

If the analysis proceeds to step three, the ALJ must determine whether a
child’s impairment meets, medically equals, or functionally equals a disability
listing. Id. Whether a child’s impairment functionally equals a disability listing is
analyzed in terms of six domains of functioning. 20 C.F.R. § 416.926a(b). “These
domains are broad areas of functioning intended to capture all of what a child can

or cannot do.” 20 C.F.R. § 416.926a(b)(1). 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 oneself; and

(6) health and physical wellbeing. Id. When determining whether an impairment is
functionally equivalent to a listing, the ALJ considers the effects of all the child’s
impairments, including those impairments that the ALJ does not identify as severe
at step two of the analysis. 20 C.F.R. § 416.926a(a).

An impairment is functionally equivalent to a disability listing if it results in
a “marked” limitation in two domains or an “extreme” limitation in one domain.
Id. A “marked” limitation is one that seriously interferes with the child’s “ability

to independently initiate, sustain, or complete activities.” 20 C.F.R.
§ 416.926a(e)(2)(i). A ‘“[m]arked” limitation also means a limitation that is “more
than moderate” but “less than extreme.”’ Id. An “extreme” limitation is one that
very seriously interferes with the child’s “ability to independently initiate, sustain,

or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). An ‘“[e]xtreme” limitation
also means a limitation that is “more than marked.”’ Id.
The ALJ uses a “whole child” approach in determining whether an

impairment is functionally equivalent to a listing. Title XVI: Determining
Childhood Disability Under the Functional Equivalence Rule-the "Whole Child"
Approach, SSR 09-1P, 2009 WL 396031 (Feb. 17, 2009). Under this approach, the

ALJ begins “by considering the child’s functioning without considering the
domains or individual impairments.” Id. at 1. After identifying “which of a child’s
activities are limited,” the ALJ then determines “which domains are involved in

those activities,” and “whether the child’s impairment(s) could affect those
domains and account for the limitations.” Id. at *2. An impairment “may have
effects in more than one domain” and limitations caused by an impairment must be
evaluated “in any affected domain(s).” Id. (quoting 20 C.F.R. § 416.926a(c)).

Finally, the ALJ “rate[s] the severity of the limitations in each affected domain.”
Id. “This technique for determining functional equivalence accounts for all of the
effects of a child’s impairments singly and in combination—the interactive and

cumulative effects of the impairments—because it starts with a consideration of
actual functioning in all settings.” Id.
The ALJ’s disability determination must also meet certain basic substantive
requirements. Most significantly, the ALJ must provide “a clear and satisfactory

explication of the basis on which” his or her decision rests. Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 1981). “The ALJ must indicate in his decision which
evidence he has rejected and which he is relying on as the basis for his finding.”

Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The
“ALJ may not reject pertinent or probative evidence without explanation.” Johnson
v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, ‘“the

reviewing court cannot tell if significant probative evidence was not credited or
simply ignored.’” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d
Cir. 2000) (quoting Cotter, 642 F.2d at 705).

IV. The ALJ’s Decision Denying J.H.’s Claim.
The ALJ evaluated J.H.’s claim at each step of the sequential-evaluation
process. Admin. Tr. at 13-26. At step one, the ALJ found that J.H. had not engaged

in substantial gainful activity since his application date of November 8, 2016. Id.4
Next, at step two, the ALJ found that J.H. had severe impairments of speech delay
and developmental delay. Id. Then, at step three, the ALJ determined that J.H. did

not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 in effect on the date of the ALJ issued his decision. Id.
As to this latter determination, addressing the six domains of functioning,

the ALJ concluded that “the claimant does not have an impairment or combination
of impairments that result in either ‘marked’ limitations in two domains of

4 J.H. was born on June 25, 2014. Admin Tr. at 13. The ALJ noted that J.H. was an
older infant on November 8, 2016, the date of his application, and is currently a
preschooler. Id.
functioning or ‘extreme’ limitation in one domain of functioning.” Id. at 25.
Specifically, the ALJ found that J.H. had: (1) less than marked limitation in

acquiring and using information; (2) less than marked limitation in attending and
completing tasks; (3) less than marked limitation in interacting and relating with
others; (4) less than marked limitation in moving about and manipulating objects;

(5) less than marked limitation in the ability to care for himself; and (6) no
limitation in health and physical well-being. Id. at 18-25. Based on this analysis,
the ALJ determined that J.H. “has not been disabled, as defined in the Social
Security Act, since November 8, 2016, the date the application was filed (20 CFR

416.924(a)).

V. Discussion.

Ms. Williams contends that the ALJ erred and abused his discretion by failing
to properly consider J.H.'s limitations under the functional domains, particularly
regarding J.H.'s severe impairment of speech delay and developmental delay.
Specifically, Ms. Williams argues that J.H.’s impairments should have resulted in

marked limitations in the domains of acquiring and using information, attending
and completing tasks, and interacting and relating with others. Additionally, Ms.
Williams contends that the ALJ erred and abused his discretion by failing to afford

appropriate weight to the consultative examiner's opinion and affording too much
weight to the State Agency consultants' opinions. We conclude that the ALJ did
not err and that his decision is supported by substantial evidence.

A. The ALJ’s decision that J.H.’s impairments did not functionally
equal a listing is based on substantial evidence.
Ms. Williams argues that the ALJ’s finding that J.H. has no marked
limitations in the functional domains of acquiring and using information, attending
and completing tasks, and interacting and relating with others is not based on
substantial evidence. Ms. Williams argues that the ALJ did not properly consider

J.H.’s impairments under the functional domains analysis, specifically, J.H.’s
speech delay and developmental delay. But to the extent that Ms. Williams asks
this Court to re-weigh the record evidence or make new factual findings, this Court
may not invade the ALJ’s province as finder of fact in disability proceedings, for

“our inquiry is not whether an alternate conclusion could have been reached but
whether substantial evidence supported the ALJ’s decision.” See Daub v. Colvin,
No. 3:15–CV–1066, 2015 WL 8013037, at *9 (M.D. Pa. Dec. 7, 2015). For the

sake of completeness, therefore, we will explain why substantial evidence supports
the ALJ’s finding that J.H. has a less than marked limitation in the functional
domain of acquiring and using information, attending and completing tasks, and
interacting and relating with others.
i. Substantial evidence supports the ALJ’s decision that J.H. has a
less than marked limitation in the functional domain of acquiring
and using information.

The ALJ set forth the general standards that apply regarding the domain of
acquiring and using information:
This domain involves how well children perceive, think about,
remember, and use information in all settings, which include
daily activities at home, at school, and in the community (20
CFR 416.926a(g) and SSR 09-3p).

Social Security rules provide that an older infant or toddler (i.e.,
a child age 1 to attainment of age 3) without an impairment
should be learning about the world around him. When the child
is playing, he should learn how objects go together in different
ways. The child should learn that by pretending, his actions can
represent real things. This helps the child understand that
words represent things, and that words are simply symbols or
names for toys, people, places, and activities. The child should
refer to himself and things around him by pointing and
eventually by naming. The child should form concepts and
solve simple problems through purposeful experimentation
(e.g., taking toys apart), imitation, constructive paly (e.g.,
building with blocks), and pretend play activities. The child
should make simple choices between two things. The child
should begin to respond to increasingly complex instructions
and questions, and to produce increasing number of words and
grammatically correct simple sentences and questions (20 CFR
416.926a(g)(2)(ii) and SSR 09-3p).

Social Security rules provide that a preschooler (i.e., a child age
3 to attainment of age 6) without an impairment should begin to
learn and use the skills that will help him to read and write and
do arithmetic when he is older. 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 he
means, and tell stories allow the child to acquire and share
knowledge and experiences of the world around him. The child
should be able to understand the order of daily routines (e.g.,
breakfast before lunch), understand and remember his own
accomplishments, and begin to understand increasingly
complex concepts such as time, as in yesterday, today, and
tomorrow. All of these are called “readiness skills,” and the
child should have them by the time he begins first grade (20
CFR 416.926a(g)(2)(iii) and SSR 09-3p).

Social Security regulation 20 CFR 416.926a(g)(3) and SSR 09-
3p set forth some examples of limited functioning in this
domain that children of different ages might have. The
examples do not apply to a child of a particular age; rather, they
cover a range of ages and developmental periods. In addition,
the examples do not necessarily describe “marked” or
“extreme” limitation in the domain. Some examples of
difficulty children could have in acquiring and using
information are: (i) does not understand words about space,
size, or time (e.g., in/under, big/little, morning/night); (ii)
cannot rhyme words or the sounds in the words; (iii) has
difficulty recalling important things learned in school
yesterday; (iv) does not use language appropriate for age; (v) is
not developing “readiness skills” the same as peers (e.g.,
learning to count, reciting ABCs, scribbling); (vi) has difficulty
comprehending written or oral directions; (vii) struggles with
following simple instructions; (viii) has difficulty solving
mathematics questions or computing arithmetic answers; or (ix)
talks only in short, simple sentences, and has difficulty
explaining what he means.

Id. at 18-19.
After setting forth the above standards that apply to the domain of acquiring
and using information, the ALJ reasoned and concluded:
The claimant has less than marked limitation in acquiring and
using information. In his function report, he was alleged to
have difficulty understanding and learning (Exhibit 1E, p. 5).
He could play with dolls or stuffed animals, use his own name,
follow two-step directions, and point to parts of the body when
asked but he could not listen at least five minutes to stories
being read. Memory reports were reported by his mother
during hearing testimony. Treatment notes from October 2016
indicate the claimant had a language delay and he was still
using just a few words (Exhibit 3F, p. 20). Two months later, a
child development evaluation found he was beginning to show
understanding of objects when described by their use. (Exhibit
2F, p. 12). He was not matching colors or sorting them on
demand but could memorize lines from songs or TV shows.
Slightly below average cognitive development was the overall
assessment (Id. at 24).

The claimant was beginning to name colors and could correctly
orient a book but was not yet recalling familiar objects that had
been removed from his sight in April 2017 (Exhibit 8F, p. 10).
Standardized assessment results did not indicate a delay in
cognitive development. Overall, he was not demonstrating a
need for specially designed instruction for cognitive issues at
this time but would continue to be monitored due to his history
of lead poisoning. However, the claimant’s classroom
performance by February 2018 demonstrated a need to
specialized instruction in participation and academic when in a
classroom setting (Exhibit 11F, p. 10). During his consultative
examination in November 2018, it was difficult to assess his
memory and cognitive functioning due to his age and
diminished language skills but he demonstrated a capability to
learn and retain (Exhibit 12F). The doctors who reviewed the
evidence of record for the State agency thought he had less than
marked limitation in this functional domain (Exhibit 1A). The
undersigned finds this opinion consistent with the evidence of
record and persuasive.

Id. at 19-20.
Here, the ALJ determined based on his review of the record that J.H. had a
less than marked limitation in the functional domain of acquiring and using

information. Id. The ALJ then explained the basis for his determination with
specific references to record evidence.
Ms. Williams claims that the ALJ erred in his decision that J.H. had a less

than marked limitation in the functional domain of acquiring and using
information, however, she fails to specify as to how the ALJ erred in this regard.
Thus, Ms. Williams’ brief lacks specific argument on this issue and fails to show
error. See Hutcheson v. Berryhill, 2017 U.S. Dist. LEXIS 132167, at *26 (M.D. Pa.

Aug. 18, 2017) (finding that the Plaintiff needed to specify how the ALJ erred in a
functional domain analysis).
The limitations that Ms. Williams mentions that seem related to the function

domain of acquiring and using information are: (1) he can only identify four out of
eight shapes; (2) he is not recognizing his name; (3) he cannot count accurately
past five; (4) he has a need for specially designed instruction in cognitive
development; (5) he has low scores on testing in attention and memory; (6) he has

difficulty sorting objects by size; (7) he has trouble answering simple logic
questions; and (8) he does not understand relative time. The ALJ properly
addressed all of these limitations.
Regarding J.H.’s limitation in identifying four out of eight shapes, the ALJ
discussed this by referencing an evaluation where J.H. showed improvement by

correctly identifying certain shapes. Admin. Tr. at 20. Regarding J.H.’s inability to
recognize his name, the ALJ addressed this by referencing a hearing test in which
J.H. demonstrated a response to hearing his name whispered. Id. at 17.

Additionally, the ALJ noted J.H.’s function report, which indicated he could use
his own name. Id. at 19. While the ALJ did not directly address J.H.’s counting
abilities, he referenced J.H.’s November 2018 consultative examination, which
noted J.H.’s inability to count to ten, but still suggests that J.H. has demonstrated a

capability to learn and retain. Id. at 20. Regarding J.H.’s potential need for
specially designed instruction in cognitive development, the ALJ acknowledged
that J.H. was slightly below average cognitive development, but his standardized

assessment results did not indicate a delay in cognitive development. Id.
Regarding J.H.’s test scores in attention and memory, the ALJ addressed
J.H.’s memory and cognitive functioning by referencing the November 2018
consultative examination, which proved inconclusive due to J.H.’s age and

diminished language skills. Id. Additionally, the ALJ noted J.H.’s ability to
memorize lines from songs and TV shows. Id. The ALJ addressed J.H.’s difficulty
in sorting objects by size when he noted an evaluation where J.H. was capable of

correctly sorting certain objects into a form board. Id. Regarding J.H.’s ability to
answer simple logic questions, the ALJ referenced J.H.’s function report, which
indicated that J.H. was capable of pointing to parts of the body when asked. Id. at

19. While the ALJ does not squarely address J.H.’s inability to understand relative
time, he noted that J.H. was assessed with only slightly below average cognitive
development for his age. Id. at 20.

In sum, the ALJ both considered and explained sufficient relevant evidence
to persuade a reasonable mind that J.H. has a less than marked limitation in
acquiring and using information. See Pierce v. Underwood, 487 U.S. 552, 565
(1988) (explaining the meaning of substantial evidence). Thus, the ALJ’s finding

on this narrow question of degree is supported by substantial evidence and should
not be disturbed.

ii. Substantial evidence supports the ALJ’s decision that J.H. has a
less than marked limitation in the functional domain of attending
and completing tasks.

The ALJ set forth the general standards that apply regarding the domain of
attending and completing tasks:
This domain considers how well a child is able to focus and
maintain attention, and how well he is able to begin, carry
through, and finish activities, including the mental pace at
which he performs activities and the ease of changing activities.
Attending and completing tasks also refers to a child’s ability to
avoid impulsive thinking and his ability to prioritize tasks and
manage his time. (20 C.F.R. 416.926a(h); SSR 09–4p).
Social Security rules provide that an older infant or toddler
without an impairment should be able to attend to things that
interest him (e.g., looking at picture books, listening to stories),
and have adequate attention to complete some tasks (e.g.,
putting a toy away). As a toddler, he should demonstrate
sustained attention, such as when building with blocks, and
when helping to put on his clothes (20 CFR 416.926a(h)(2)(ii)
and SSR 09-4p.

Social Security rules provide that a preschooler without an
impairment should be able to pay attention when he is spoken
to directly, sustain attention to his play and learning activities,
and concentrate on activities like putting puzzles together or
completing art projects. The child should also be able to focus
long enough to do many more things independently, such as
gathering clothes and dressing, feeding, or putting away toys.
The child should usually be able to wait his turn and to change
his activity when a caregiver or teacher says it is time to do
something else. The child should be able to play contentedly
and independently without constant supervision (20 CFR
416.926a(h)(2)(iii) and SSR 09-4p).

Social Security regulation 20 CFR 416.926a(h)(3) and SSR 09-
4p set forth some examples of limited functioning in this
domain that children of different ages might have. The
examples do not apply to a child of a particular age; rather, they
cover a range of ages and developmental periods. In addition,
the examples do not necessarily describe “marked” or
“extreme” limitation in the domain. Some examples of
difficulty children could have in attending and completing tasks
are: (i) is easily startled, distracted, or over-reactive to everyday
sounds, sights, movements, or touch; (ii) is slow to focus on, or
fails to complete, activities of interest (e.g., games or art
projects); (iii) repeatedly becomes side-tracked from activities
or frequently interrupts others; (iv) is easily frustrated and gives
up on tasks, including ones he is capable of completing; (v)
requires extra supervision to remain engaged in an activity; or
(vi) cannot plan, manage time, or organize self in order to
complete assignments or chores.
Admin. Tr. at 20-21.
After setting forth the above standards that apply to the domain of attending

and completing tasks, the ALJ reasoned and concluded:
The claimant has less than marked limitation in attending and
completing tasks. He could not listen at least five minutes to
stories being read at the beginning of 2017 (Exhibit 1E, p. 5).
Trouble sitting still and focusing were noted during the hearing.
However, just a month earlier, he was able to occupy himself
for at least five to ten minutes and attend to an activity for at
least three minutes if self-directed and he was interested.
(Exhibit 2F, p. 12). In April 2017, the claimant was able to
remain focused in order to complete a ten piece colored puzzle
and remained seated at an evaluation table for close to thirty
minutes (Exhibit 8F, p. 10). Later that year, he was able to
concentrate on a favorite YouTube video but not on other tasks
such as playing with toys (Exhibit 12F). While attention issues
have been noted, the claimant is capable of focusing on things
he is interested in doing. Accordingly, less than a marked
limitation attending and completing tasks is warranted.

Id. at 21.
Here, the ALJ determined based on his review of the record that J.H. had a
less than marked limitation in the function domain of attending and completing
tasks. Id. The ALJ then explained the basis for his determination with specific
references to record evidence.
Ms. Williams argues that the ALJ only noted some of J.H.’s limitations but
that he failed to review the record as a whole, however, Ms. Williams fails to
specify what limitations the ALJ did not consider for the function domain of
attending and completing tasks. The limitations that Ms. Williams mentions that
seem related to the function domain of attending and completing tasks are: (1) he

ignores tasks; (2) he has difficulty completing and learning tasks that have two
steps or more; (3) he does not pay attention in class; (4) he gets distracted easily;
and (5) he experiences staring spells. The ALJ properly addressed these

limitations.
Regarding J.H.’s tendency to ignore tasks, the ALJ discussed J.H.’s
struggles with completing certain tasks, however, the ALJ also noted that J.H. was
capable of completing certain tasks, particularly if he was interested. Id. The ALJ

also addressed J.H.’s difficulty in completing and learning tasks that have two or
more steps by referencing J.H.’s ability to complete a ten-piece colored puzzle. Id.
Regarding J.H.’s distracted behavior in the classroom, the ALJ noted that

distracted behavior was demonstrated in early 2018 and that J.H. required
redirection, however, the ALJ also referenced J.H.’s ability to concentrate on tasks
he is interested in, such as watching his favorite YouTube video. Id. Regarding
J.H.’s staring spells, the ALJ noted that J.H. engages in staring spells; however, he

failed to directly refer to the limitation when he decided that J.H. had a less than
marked limitation in the function. Even so, the ALJ thoroughly addressed J.H.’s
concentration limitations with numerous references to J.H.’s ability to concentrate

when interested. Id.
Additionally, the ALJ found that J.H. had a less than marked limitation in
the function domain of attending and completing tasks, unlike the State Agency

consultants, who found that J.H. had no limitation in this domain. Id. at 110.
Accordingly, the ALJ both considered and explained sufficient relevant evidence
to persuade a reasonable mind that J.H. has a less than marked limitation in

attending and completing tasks. See Pierce, 487 U.S. at 565. Thus, the ALJ’s
finding on this narrow question of degree is supported by substantial evidence and
should not be disturbed.
iii. Substantial evidence supports the ALJ’s decision that J.H. has a
less than marked limitation in the functional domain of
interacting and relating with others.

The ALJ set forth the general standards that apply regarding the domain of
attending and completing tasks:
This domain considers how well a child is able to initiate and
sustain emotional connections with others, develop and use the
language of the community, cooperate with others, comply with
rules, respond to criticism, and respect and take care of the
possessions of others. Interacting and relating with others
relates to all aspects of social interaction at home, at school, and
in the community. Because communication is essential to both
interacting and relating, this domain considers the speech and
language skills children need to speak intelligibly and to
understand and use the language of their community (20 CFR
416.926a(i) and SSR 09-5p).

Social Security rules provide that an older infant or toddler
without an impairment is dependent upon caregivers, but should
begin to separate from them. The child should be able to
express emotions and respond to the feelings of others. The
child should begin initiating and maintaining interactions with
adults, but also show interest in, then play alongside, and
eventually interact with other children of the same age. The
child should begin to understand the concept of “mine” and
“his” or “hers.” The child should be able to spontaneously
communicate his wishes or needs, first by using gestures, and
eventually by speaking words clearly enough that people who
know he can understand the child most of the time (20 CFR
416.926a(i)(2)(ii) and SSR 09-5p).

Social Security rules provide that a preschooler without an
impairment should be able to socialize with children as well as
adults. The child should begin to prefer playmates and start
developing friendships with children who are his own age. The
child should be able to use words instead of actions to express
himself, and also be better able to share, show affection, and
offer to help. The child should be able to understand and obey
simple rules most of the time, and sometimes asks permission.
The child should be able to relate to caregivers with increasing
independence, choose his own friends, and play cooperatively
with other children, one-at-a-time or in a group, without
continual adult supervision. The child should be able to initiate
and participate in conversations, using increasingly complex
vocabulary and grammar, and speaking clearly enough that both
familiar and unfamiliar listeners can understand what he says
most of the time (20 CFR 416.926a(i)(2)(iii) and SSR 09-5p).

Social Security regulation 20 CFR 516.92a(i)(3) and SSR 09-5p
set forth some examples of limited functioning in this domain
that children of different ages might have. The examples do not
apply to a child of a particular age; rather, they cover a range of
ages and development periods. In addition, the examples do
not necessarily describe “marked” or “extreme” limitation in
the domain. Some examples of difficulty that children could
have in interacting and relating with others are: (i) does not
reach out to be picked up and held by caregiver; (ii) has no
close friends, or all friends are older or younger than the child;
(iii) avoids or withdraws from people he knows, or is overly
anxious or fearful of meeting new people or trying new
experiences; (iv) has difficulty playing games or sports with
rules; (v) has difficulty communicating with others (e.g., in
using verbal and nonverbal skills to express himself, in carrying
on a conversation or in asking others for assistance); or (vi) has
difficulty speaking intelligibly or without adequate fluency.

Admin. Tr. at 21-22.
After setting forth the above standards that apply to the domain
of interacting and relating with others, the ALJ reasoned and
concluded:
The claimant has less than marked limitation in interacting and
relating with others. His mother reported he had a very small
vocabulary and struggled to talk (Exhibit 1E, p. 4). Testimony
indicated he goes to speech therapy twice a week and fights
with other children his age. Treatment notes from October
2016, when he was two years old, indicate the claimant had a
language delay and he was still using just a few words (Exhibit
3F, p. 20). Therapy had not been started yet. He was using
over ten words and beginning to communicate in a back and
forth style two months later (Exhibit 2F, p. 14). However, he
was not using words to relate information about other people.
At the same time, the claimant seemed to enjoy playing with
others and showed both affection and sympathy towards other
children. (Id. at 16). Speech and language services were
recommended. Less than marked limitation interacting and
relating with other was opined by the State agency doctors
(Exhibit 1A).

The claimant had delayed speech sound production, trouble
understanding language such as questions and directions, had
slightly weak reception vocabulary skills, and demonstrated
articulation errors in April 2017 (Exhibit 8F, p. 11).
Appropriate affection could be shown towards people and he
would play with others but he could also be mean or prefer to
play by himself (Id. at 12). The claimant was still speaking in
short word utterances in February 2018 (Exhibit 11F, p. 11).
Articulation errors were present, which made it very difficult
for him to communicate with others and his overall speech
intelligibility was judged to be ten to fifteen percent. Trouble
understanding what he said was still occurring in late 2018 and
language delay continued to be noted (Exhibit 12F). The
claimant was able to testify in an understandable manner at his
hearing for a very brief period but he did not always address the
question asked of him. While speech delay has been a
persistent issue for him, considering he still has not reached the
age of five years old and is able to play with others, a marked
limitation interaction and relating with others is not present.

Id. at 22.
Here, the ALJ determined based on his review of the record that J.H. had a
less than marked limitation in the function domain of attending and completing
tasks. Id. The ALJ then explained the basis for his determination with specific
references to record evidence.
Ms. Williams argues that the ALJ failed to address J.H.’s limitations,
however, she fails to specify what limitations the ALJ did not consider for the
function domain of interacting and relating with others. The limitations that Ms.
Williams mentions that seem related to the function domain of interacting and
relating with others are: (1) he has a hard time playing with others and difficulty
interacting with peers; (2) he makes noise for the sake of making noise; (3) he has
issues with communication development, social and emotional development; (4) he
has frequent meltdowns at home and school; and (5) he was limited in his ability to
communicate when addressing the ALJ. The ALJ properly addressed these
limitations.

Regarding J.H.’s difficulty in playing with others, the ALJ noted that J.H.’s
April 2017 evaluation indicated that he could play with other children, but that he
sometimes is mean or prefers to play alone. Id. Additionally, the ALJ referenced a

2016 childhood development evaluation which indicated J.H. showed both
affection and sympathy towards other children. Id. Regarding J.H.’s tendency to
make noise, the ALJ considered that J.H. demonstrated articulation errors. Id.
Regarding J.H.’s social development issues, the ALJ addressed this by

noting J.H.’s speech improvement over time. Id. Notably, the ALJ referenced
J.H.’s speech therapy and that he was using over ten words and beginning to
communicate in a back-and-forth style during an evaluation. Id.

The ALJ did not directly reference J.H.’s meltdowns at home and school,
however, he noted the need for specialized instruction for participation and
academics in a classroom setting. Id. at 20. Also, the ALJ made numerous
references to J.H.’s ability to behave and follow instructions when he is

sufficiently interested in the task. Id. at 21.
Additionally, Ms. Williams contends that the ALJ did not consider J.H.’s
hearing loss, absence types seizures, and ADHD/anxiety. The ALJ properly

addressed these issues. Regarding J. H.’s hearing loss, the ALJ noted that J.H.
failed a January 2017 hearing test at school, but that it was unknown whether J.H.
failed due to true hearing loss or a lack of effort. Id. at 17. Further, the ALJ

referenced a later hearing test where J.H.’s ear drums functioned normally, as J.H.
responded to hearing his name whispered. Id.
The ALJ noted the November 2018 consultative exam where J.H. was

diagnosed with provisional ADHD. Id. at 13. The ALJ cited to the other medical
records in evidence that do not reference J.H.’s ADHD, and therefore, found it
failed to cause more than a minimal functional limitation. Id. at 14. The ALJ
referred to J.H.’s November 2018 evaluation where anxiety was noted. Id. at 18.

While the ALJ did not thoroughly address J.H.’s potential anxiety issues, we note
that Dr. John Tardibuono (“Dr. Tardibuono”), the consultative examination
physician, did not diagnose J.H. with anxiety after his consultative examination. Id.

at 873.
Regarding J.H.’s absence type seizures, as previously mentioned, the ALJ
noted J.H.’s staring spells, however, he failed to consider the purported seizures
that resulted from J.H.’s staring spells. Id. at 17. We conclude that the ALJ erred

in failing to mention the seizures that purportedly resulted from J.H.’s staring
spells. Accordingly, we must determine whether the ALJ’s error was harmless.
‘“[W]hether the error is harmless depends on whether the other reasons cited by

the ALJ . . . provide substantial evidence for [his] decision.’” Snyder v. Colvin, No.
4:16-CV-00261, 2017 WL 1732031, at *6 (M.D. Pa. May 3, 2017) (report and
recommendation of a magistrate judge), adopted, 2017 WL 2798320, at *1 (M.D.

Pa. June 28, 2017). Here, the record confirms that J.H. underwent a sleep EEG for
seizures due to staring spells and the results were negative for seizures. Admin. Tr.
at 266.

Additionally, regarding J.H.’s staring spells, the ALJ thoroughly addressed
J.H.’s concentration limitations with numerous references to J.H.’s ability to
concentrate when interested. Id. Thus, the ALJ’s error in failing to adequately
address J.H.’s staring spells and absence type seizures was a harmless error.

B. The weight assigned by the ALJ to the medical opinions is based on
substantial evidence.

Ms. Williams argues that the ALJ erred in affording appropriate weight to
the opinion of the consultative examination physician, Dr. Tardibouno.
Additionally, Ms. Williams contends that the ALJ afforded too much weight to the
State Agency consultants' opinions without proper explanation by the ALJ. Ms.
Williams also argues that the ALJ indicated he would use a medical expert, but
failed to do so, resulting in insufficient opinions of record at the time of the
hearing. We find that the weight assigned by the ALJ to the medical opinions is
based on substantial evidence.
Because Ms. Williams’ claims concern the ALJ’s handling of opinion
evidence, we start with a brief overview of the regulations regarding opinion

evidence. The regulations applicable to claims filed on or after March 27, 2017,
(“the new regulations”) changed the way the Commissioner considers medical
opinion evidence and eliminated the provision in the regulations applicable to

claims filed before March 27, 2017, (“the old regulations”) that granted special
deference to opinions of treating physicians. Because Ms. Williams’ claim was
filed before March 27, 2017, the old regulations apply in this matter.
Under the old regulations, the ALJ assigns the weight he or she gives to a

medical opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). And if “a treating
source’s medical opinions on the issue(s) of the nature and severity of [a
claimant’s] impairments is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record,” the Commissioner “will give it
controlling weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Under the old
regulations, where the Commissioner does not give a treating source’s medical

opinion controlling weight, it analyzes the opinion in accordance with a number of
factors: the “[l]ength of the treatment relationship and the frequency of
examination,” the “[n]ature and extent of the treatment relationship,” the

“[s]upportability” of the opinion, the “[c]onsistency” of the opinion with the record
as whole, the “[s]pecialization” of the treating source, and any other relevant
factors. Id. at §§ 404.1527(c)(2)–(c)(6), 416.927(c)(2)–(c)(6).

Ms. Williams contends that the ALJ failed to afford appropriate weight to
Dr. Tardibouno’s opinion. Specifically, Ms. Williams argues that Dr.
Tardibouno’s opinion should have been afforded more weight because he was the

only physician who examined J.H. in person. Ms. Williams argues that the other
medical opinions noted in the ALJ’s decision were from non-treating and non-
examining State Agency consultants.
Although Dr. Tardibouno did conduct an in-person evaluation of J.H., he is

not a treating source. Dr. Tardibouno did not have a treatment relationship with
J.H. Instead, Dr. Tardibouno conducted a one-time examination of J.H. A
physician who conducts a one-time examination is not a treating source, and thus,

his opinion is not entitled to controlling weight. See Thomas v. Kijakazi, 2021 U.S.
Dist. LEXIS 131691, at *12 (W.D. Pa. 2021) (finding that a one-time consultative
examiner is not a treating source, and therefore, his opinion is not entitled to
controlling weight).

As such, the ALJ was entitled to reject any portion of Dr. Tardibouno’s
opinion, so long as he provided adequate justification. See Corona v. Comm’r of
Soc. Sec., 2014 U.S. Dist. LEXIS 132131, at *5 (W.D. Pa. 2014) (finding that the

ALJ was at liberty to reject a one-time examiner’s opinion, as long as he provided
a legitimate reason for doing so). The ALJ provided adequate justification for why
he afforded limited weight to Dr. Tardibouno’s opinion. The ALJ noted that Dr.

Tardibouno was only able to examine and interview J.H. one time. Admin. Tr. at
18. The ALJ also noted that Dr. Tardibouno did not review any of J.H.’s medical
records or child development evaluation reports. Id. Additionally, the ALJ opined

that Dr. Tardibouno seemed to rely heavily on Ms. Williams’ allegations regarding
J.H. rather than objective findings. Id.
An ALJ may give an opinion less weight or no weight if it does not present
relevant evidence, if it does contain a sufficient explanation to support it, or if it is

inconsistent with the record as a whole. 20 C.F.R. § 416.927(c). The ALJ may
choose which medical evidence to credit and which to reject as long as there is a
rational basis for the decision. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).

Here, the ALJ provided adequate justification as to why he afforded limited weight
to Dr. Tardibouno’s opinion. Accordingly, we find that the ALJ’s decision to
afford limited weight to Dr. Tardibouno’s opinion is based on substantial evidence.
Ms. Williams also argues that the ALJ afforded too much weight to the State

Agency consultants' opinions without proper explanation by the ALJ. We find that
the ALJ properly explained his allocation of significant weight to the opinions of
the State Agency consultants.
The ALJ noted that the State Agency consultants, Dr. Roger Fretz and Dr.
Anjana Popat, reviewed the record and found that J.H. suffers from severe autism

spectrum disorder. Admin. Tr. at 18. The State Agency consultants found that
J.H.’s severe autism spectrum disorder caused a less than marked limitation in
acquiring and using information and interacting and relating with others. Id.

Additionally, they found that J.H.’s severe autism spectrum disorder caused no
limitation in attending and completing tasks. Id. The ALJ explained that he gave
the State Agency consultants’ opinions significant weight because both doctors are
familiar with the regulations and standards of the Social Security Act. Id. Further,

the ALJ concluded that the State Agency consultants’ opinions were consistent
with J.H.’s medical records and academic evaluations, which document
development speech delay but minimal treatment. Id. Contrary to Ms. Williams’

argument, the ALJ provided an explanation as to why he afforded significant
weight to the State Agency consultants’ opinions.
Ms. Williams also argues that the State Agency consultants finding that J.H.
suffers from severe autism spectrum disorder conflicts with their function domains

analysis. The Commissioner correctly points out that a severe impairment at step
two does not necessitate marked or extreme limitations at later steps of the
sequential process. Step three of the sequential process determines whether the
child’s severe impairment (or combination of impairments) meets, medically
equals, or functionally equals one of the disability listings. See 20 C.F.R.

§ 416.924. Here, the ALJ relied on the State Agency consultants’ opinions that
J.H.’s severe autism spectrum disorder did not meet, medically equal, or
functionally equal one of the disability listings. Admin. Tr. at 18. Because a

finding for a severe impairment at step two does not necessitate marked or extreme
limitations at later steps of the sequential process, the State Agency consultants’
finding of less than marked limitations is not inherently inconsistent.
The ALJ provided a rational basis as to why he afforded significant weight

to the State Agency consultants’ opinions. Accordingly, we conclude that the
ALJ’s decision to afford significant weight to the State Agency consultants’
opinions is based on substantial evidence.

Ms. Williams alleges that the ALJ indicated he would be using a medical
expert, and that the ALJ’s failure to do so resulted in insufficient opinions of
record at the time of the hearing. The Commissioner properly points out that it
was Plaintiff’s counsel who requested the medical expert examination, and upon

that request, the ALJ would proffer a medical expert consultative examination.
Admin. Tr. at 100. The ALJ noted that he offered the consultative examination to
Ms. Williams, however, no response was received. Id. at 10. The record is clear

that the ALJ offered the consultative examination to Ms. Williams, however, no
request was made, and thus, the examination did not occur. Accordingly, we find
no error on the part of the ALJ in this matter.

In sum, the ALJ chose between contrasting medical opinions, giving greater
weight to those opinions which he found were more congruent with J.H.’s medical
records and activities of daily living. It is the right and responsibility of the ALJ to

make such assessments, and we find that substantial evidence supported the ALJ’s
decision. “We will not set the Commissioner’s decision aside if it is supported by
substantial evidence, even if we would have decided the factual inquiry
differently.” Hartranft, 181 F.3d at 360. Ms. Williams’ argument simply asks the

court to reweigh the evidence, which we cannot do. See Messina v. Comm’r of Soc.
Sec., No. 20-1884, 2021 WL 422444, at *3 (3d Cir. Feb. 8, 2021) (“Yet we cannot
reweigh the evidence or make our own factual determinations.”); Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (stating that the court may not weigh
the evidence or substitute our conclusions for those of the ALJ). Because we are
not permitted to reweigh the evidence, we conclude that the ALJ did not err in his
consideration of the opinion evidence of record.
VI. Conclusion.
For the foregoing reasons, the decision of the Commissioner will be

affirmed, and final judgment will be entered in favor of the Commissioner and
against Ms. Williams. An appropriate order follows.

S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410730. Public record. Not legal advice.