examining Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986)
How later courts described this case
- examining Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986)
- “[T]he court has plenary review of all legal issues . . . .”
- “The Secretary’s determination as to the status of a claim requires the correct application of the law to the facts.”
- noting that the scope of review on legal matters is plenary
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EMILY JESSICA BONILLA, o/b/o
N.L.M.,
CIVIL ACTION NO. 3:20-CV-02217
Plaintiff,
v. (MEHALCHICK, M.J.)
KILOLO KIJAKAZI,1
Defendant.
MEMORANDUM
Plaintiff Emily Jessica Bonilla (“Bonilla”) brings this action on behalf of her minor
daughter (“N.L.M.”) under section 1631(c) of the Social Security Act, 42 U.S.C. § 1383(c) for
judicial review of the final decision of the Commissioner of Social Security (the
“Commissioner”) denying her application for Childs’ Supplemental Security Income (“SSI”)
on behalf of N.L.M. under Title XVI of the Social Security Act. (Doc. 1). For the following
reasons, the Commissioner’s decision will be AFFIRMED.
I. BACKGROUND AND PROCEDURAL HISTORY
On April 24, 2018, Bonilla filed an application for benefits under Title XVI of the
Social Security Act on behalf of N.L.M. for SSI benefits alleging an onset date of January 1,
2014. (Doc. 10-2, at 17). Bonilla’s application for benefits was initially denied on August 15,
1 The Court has amended the caption to replace, as the named defendant, Social
Security Commissioner Andrew M. Saul, with his successor, Social Security Commissioner
Kilolo Kijakazi. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer
who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the
action is pending. The officer’s successor is automatically substituted as a party.”).
2018, and Bonilla filed a timely request for a hearing, which Administrative Law Judge
Sharon Zanotto (“ALJ”) held on September 19, 2018. (Doc. 10-2, at 17). In a December 11,
2019, written decision, the ALJ determined that N.L.M. is not disabled and therefore not
entitled to benefits or income under Title XVI. (Doc. 10-2, at 40). On October 1, 2020, the
Appeals Council subsequently denied Bonilla’s request for review. (Doc. 10-2, at 2).
On November 28, 2020, Bonilla commenced the instant action. (Doc. 1). The
Commissioner responded on April 7, 2021, providing the requisite transcripts from N.L.M.’s
disability proceedings. (Doc. 9; Doc. 10). The parties then filed their respective briefs, with
Bonilla raising three principal bases for reversal or remand. (Doc. 18; Doc. 26). This matter
is now ripe for decision.
II. STANDARD OF REVIEW
Resolution of the instant social security appeal involves an informed consideration of
the respective roles of two adjudicators–the ALJ and the Court. At the outset, it is the
responsibility of the ALJ in the first instance to determine whether a claimant has met the
statutory prerequisites for entitlement to benefits. A claimant under the age of 18 (“child”)
shall be considered disabled for under Title XVI of the Social Security Act if 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 for a
continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(I); 20 C.F.R.
§416.906. Notwithstanding the above, no child who engages in substantial gainful activity, as
defined by the Social Security regulations, may be found disabled. 42 U.S.C. §
1382c(a)(3)(C)(ii); 20 C.F.R. §416.906.
2
The ALJ employs a three-step evaluation process to determine whether a child is
eligible for SSI payments because of disability. As part of this analysis, the ALJ must
sequentially determine: (1) whether the child is engaged in substantial gainful activity; (2)
whether the child has a medically determinable, severe impairment; (3) whether the child’s
impairment or combination of impairments meets, medically equals, or functionally equals
an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.924.
If the ALJ finds that the child is not disabled at any point in the sequence, review does not
proceed further. 20 C.F.R. § 416.924.
In determining functional equivalence, the ALJ evaluates the following six domains
of functioning: (1) acquiring and using information; (2) attending to and completing tasks; (3)
interacting and relating with others; (4) moving about and manipulating objects; (5) ability to
care for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). An
impairment is functionally equal to a listed impairment when it results in “marked”
limitations in two domains of functioning or an “extreme” limitation in one domain. 20
C.F.R. § 416.926a(a). A marked limitation is more than moderate but less than extreme. 20
C.F.R. § 416.926a(e)(2)(ii). An impairment that only meets some of the criteria of a listed
impairment, “no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990); see also Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).
When reviewing the denial of disability benefits, the Court’s review is limited to
determining whether those findings are supported by substantial evidence in the
administrative record. See 42 U.S.C. 405(g) (sentence five); Johnson v. Comm’r of Soc. Sec.,
529 F.3d 198, 200 (3d Cir. 2008); Ficc§a v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of evidence, but rather
3
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a
preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S.
389, 401 (1971). 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 decision]
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 the Court, therefore, is not whether N.L.M. is disabled,
but whether the Commissioner’s finding that she is not disabled is supported by substantial
evidence and was reached based upon a correct application of the relevant law. See Arnold v.
Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been
held that an ALJ’s errors of law denote a lack of substantial evidence.”) (alterations omitted);
Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination
as to the status of a claim requires the correct application of the law to the facts.”); see also
Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal
matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court has plenary review of all legal
issues . . . .”).
4
In reviewing the ALJ's decision, the Court is not permitted to weigh the evidence or
substitute its own conclusions for those reached by the ALJ. See Burns v. Barnhart, 312 F.3d
113, 118 (3d Cir. 2002). Rather, the court reviews the ALJ's findings to determine whether
they were supported by substantial evidence. See 42 U.S.C. § 405(g); Rutherford v. Barnhart,
399 F.3d 546, 552 (3d Cir. 2005). Substantial evidence is evidence that a “reasonable mind
might accept as adequate to support a conclusion.” Rutherford, 399 F.3d at 552 (internal
quotations omitted). “It is ‘more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.’” Rutherford, 399 F.3d at 552 (quoting Ginsburg v. Richardson,
436 F.2d 1146, 1148 (3d Cir. 1971)). If the decision of the ALJ is supported by substantial
evidence, the Court may not set it aside “even if [the Court] would have decided the factual
inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
For effective judicial review to take place, the court “need[s] from the ALJ not only an
expression of the evidence [she] considered which supports the result, but also some
indication of the evidence which was rejected. In the absence of such an indication, the
reviewing court cannot tell if significant probative evidence was not credited or simply
ignored.” Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
III. THE ALJ’S DECISION
The ALJ proceeded through the three-step sequential evaluation process to determine
whether N.L.M., as an individual under the age of eighteen (18), is disabled. 20 C.F.R. §
416.924(a); (Doc. 10-2, at 18-30). At step one, the ALJ concluded that N.L.M. has not been
engaged in any substantial gainful activity since her application date of April 24, 2018. (Doc.
10-2, at 18). The ALJ then proceeded to step two and determined that N.L.M. has the
following severe impairments: Attention Deficit Hyperactivity Disorder (“ADHD”),
5
disruptive mood dysregulation disorder, and unspecified anxiety disorder. (Doc. 10-2, at 18).
Next, at step three, the ALJ determined that N.L.M. does 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 the ALJ issued
her opinion. (Doc. 10-2, at 18-19). Specifically, the ALJ considered Listings 112.04 –
Depressive, bipolar and related disorders, 112.06 – Anxiety and obsessive-compulsive
disorders, and 112.11 – Neurodevelopmental disorders. (Doc. 10-2, at 18-19).
In determining step three, the ALJ addressed the six domains of functioning and
concluded that N.L.M. does not have an impairment or combination of impairments that
functionally equals the severity of one of the listed impairments. (Doc. 10-2, at 19). The ALJ
concluded that N.L.M. has: (1) less than a marked limitation in acquiring and using
information; (2) less than a marked limitation in attending and completing tasks; (3) less than
a marked limitation in interacting and relating with others; (4) no limitation in moving about
and manipulating objects; (5) less than a marked limitation in the ability to care for herself;
and (6) a marked limitation in health and physical well-being. (Doc. 10-2, at 20). Based on
this analysis, the ALJ concluded N.L.M. has not been disabled, as defined by the Social
Security Act, since April 24, 2018, the date the application was filed. (Doc. 10-2, at 29).
IV. DISCUSSION
Bonilla raises three issues on appeal. (Doc. 18, at 1-2). First, she contends that the ALJ
“erred and abused her discretion by failing to properly consider [N.L.M.’s] limitations under
the Functional Domains, when considering [her] severe impairments . . . including [ADHD],
disruptive mood dysregulation disorder[,] and unspecified anxiety disorder.” (Doc. 18, at 14).
Next, Bonilla asserts the ALJ erred in finding N.L.M.’s other impairments, including her
6
depressive disorder, obsessive compulsive disorder (“OCD”), developmental language
disorder, and insomnia, not severe, and thereby failing to consider them in her functional
domain analysis. (Doc. 18, at 19). Lastly, Bonilla argues that the ALJ erred in failing to afford
proper weight to the treating source opinion of Mr. Hartman and the teacher questionnaire
completed by Ms. Moyer. (Doc. 18, at 22). The Court concludes that substantial evidence
supports the ALJ’s decision.
A. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S DECISION THAT N.L.M.’S SEVERE
IMPAIRMENTS DO NOT FUNCTIONALLY EQUAL A LISTING.
First, Bonilla argues that “[t]he ALJ erred and abused her discretion by failing to
properly consider [N.L.M.’s] limitations under the Functional Domains, when considering
[her] severe impairments as identified by the ALJ, including [ADHD], disruptive mood
dysregulation disorder, and unspecified anxiety disorder.” (Doc. 18, at 14). Bonilla contends
the limitations caused by N.L.M.’s severe impairments are consistent with findings of marked
limitations in the domains of (1) acquiring and using information, (2) attending and
completing tasks, (3) interacting and relating with others, and (4) caring for herself. (Doc. 18,
at 17). However, to the extent Bonilla asks the Court to re-weigh the record evidence or make
new factual findings, the Court may not invade the ALJ’s province as a finder of fact in
disability proceedings, for “our inquiry is not whether an alternate conclusion would 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). Substantial
evidence supports the ALJ’s findings that N.L.M has less than marked limitations in acquiring
and using information, attending and completing tasks, interacting and relating to others, and
caring for herself. (Doc. 10-2, at 20).
7
Bonilla argues that the ALJ failed to consider her testimony regarding N.L.M.’s
limitations, the services that were provided to N.L.M., and N.L.M.’s response to and length
of treatment which would all indicate at least a finding of marked limitations in the functional
domains of acquiring and using information, attending and completing tasks, interacting and
relating with others, and caring for herself. (Doc. 18, at 16-19).
The ALJ specifically addressed Bonilla’s testimony as it applied to the functional
domains of caring for oneself, acquiring and using information, attending and completing
tasks, and interacting and relating with others. (Doc. 10-2, at 24-28). Additionally, the ALJ
discussed the lack of educational services that were provided to N.L.M. stating that she “does
not have any special education needs such as accommodations, or even summer school” and
outlined N.L.M.’s medical services that she received from WellSpan Philhaven Psychiatry
and Therapy group (“WellSpan”) and her medical history including “history of short statute
disorder, Pica of infancy and childhood, Developmental language disorder, and Behavioral
insomnia of childhood, combined type.” (Doc. 10-2, at 21-23, 25, 27; Doc. 10-6, at 74-78;
Doc. 10-7, at 4, 9-36). Finally, the ALJ outlined the medical treatment that N.L.M. received
in a detailed timeline spanning from February 10, 2018, to March 29, 2019, and specifically
discussed the therapy treatment provided to her by Mr. Hartman. (Doc. 10-2, at 22-23, 29;
Doc. 10-7, at 9-36).
1. Substantial evidence supports the ALJ’s finding that N.L.M. has less than a
marked limitation in the functional domain of acquiring and using information
and attending and completing tasks.
Bonilla argues that the ALJ erred in finding that N.L.M. suffers from a less than
marked limitation in acquiring and using information and a less than marked limitation in
attending and completing tasks. (Doc. 18, at 17).
8
When evaluating a child's limitations in the domain of acquiring and using
information, the ALJ must consider how well the child acquires or learns information, and
how well the child uses the information he or she has learned. 20 C.F.R. § 416.926a(g). Some
examples of limitations in this domain include: not demonstrating an understanding of words
about space, size, or time; an inability to rhyme words or the sounds in words; having
difficulty recalling important things that were learned in school the previous day; difficulty in
solving mathematics questions; only talking in short, simple sentences; and having difficulty
explaining what she means. 20 C.F.R. § 416.926a(g)(3)(i)-(v).
When evaluating a child's ability in the domain of attending and completing tasks, the
ALJ must consider how well the child is able to focus and maintain her attention, and how
well the child begins, carries through, and finishes her activities, including the pace at which
the child performs activities and the ease in which the child changes between them. 20 C.F.R.
§ 416.926a(h). Some examples of limitations in this domain include: being overly startled,
distracted, or over-reactive to sounds, sights, movements, or touch; being slow to focus on, or
failing to complete activities of interest to the child; repeatedly becoming sidetracked from
activities or frequently interrupting others; being easily frustrated and giving up on tasks,
including those the child is capable of completing; and requiring extra supervision to stay
engaged in an activity. 20 C.F.R. § 416.926a(h)(3)(i-v).
Bonilla argues that N.L.M.’s identified severe impairments of ADHD, disruptive
mood dysregulation disorder, and unspecified anxiety disorder warrant a finding of a marked
limitation in the functional domains of acquiring and using information and attending and
completing tasks. (Doc. 18, at 17). However, the ALJ addressed N.L.M.’s severe impairments
through substantial evidence from the record in deciding that she has less than marked
9
limitation in acquiring and using information and attending and completing tasks. (Doc. 10-
2, at 26-27).
The ALJ discussed relevant record evidence directly relating to the applicable
functional domain in reaching her determination. (Doc. 10-2, at 26-27). The ALJ considered
Bonilla’s testimony and responses to the agency function report; the teacher questionnaire
from N.L.M.’s school counselor, Ms. Moyer; N.L.M.’s education records; and N.L.M.’s
ability to learn and participate in new activities. (Doc. 10-2, at 26-27).
The ALJ concluded that N.L.M. “has a less than marked degree of limitation in the
domains of Acquire and Use Information and Attending and Completing Tasks.” (Doc. 10-
2, at 27). First, the ALJ examined Moyer’s answers to the teacher questionnaire form. (Doc.
10-2, at 26-27; Doc. 10-6, at 28-29).
In determining the persuasiveness of Ms. Moyer’s responses in the agency
Teacher Questionnaire, I considered that Ms. Moyer was a school counselor
and only saw [N.L.M.] once every few months. Ms. Moyer also added
comments that [N.L.M.] had significantly improved with medication. This
indicated to me that the severity of the limitations may not have been an
accurate assessment and instead, the objective grades, in 2018-2019, showing
excellent, advanced, and highly proficient in the most subjects is a better
indication of limitations under these domains. Further, [N.L.M.] has been in
the regular classroom and does not have any special education needs such as
accommodations, or even summer school.
(Doc. 10-2, at 27; Doc. 10-6, at 28-29).
Next, the ALJ considered and summarized Bonilla’s testimony and responses to the agency
function report. (Doc. 10-2, at 26-27). Bonilla stated that N.L.M. “takes 20 minutes to do her
homework and she gets distracted every five minutes. She loses focus. As for paying attention
and sticking to a task . . . [N.L.M.] can keep busy on her own.” (Doc. 10-2, at 26; Doc. 10-6,
at 13). The ALJ concluded that N.L.M.’s
10
ability to learn to ride horses, swim, and do gymnastics, also indicates that
[N.L.M.] is able to function in these areas with no more than a less than marked
limitation. I find for less than marked limitations in consideration of [Bonilla’s]
testimony that she is easily distracted and at times needs constant reminders.”
(Doc. 10-2. at 27, 52-55, 60).
Accordingly, the ALJ cited to substantial evidence indicating less than marked limitations in
the areas of acquiring and using information and attending and completing tasks. (Doc. 12-2,
at 20).
2. Substantial evidence supports the ALJ’s finding that N.L.M. has less than a
marked limitation in the functional domain of interacting and relating with
others.
Bonilla argues that the ALJ erred in finding that N.L.M. suffers from less than marked
limitation in interacting and relating with others. (Doc. 18, at 17). When evaluating a child's
limitations in the area of “interacting and relating with others” an ALJ considers how well
the child initiates and sustains emotional connections with others, develops and uses the
language of his or her community, cooperates with others, complies with rules, responds to
criticism, and respects and takes care of the possessions of others. 20 C.F.R. § 416.926a(i).
Examples of limitations in this domain include: having no close or age appropriate friends;
avoiding or withdrawing from people the child knows; being overly anxious or fearful when
meeting new people or trying new experiences; difficulty cooperating with others; having
difficulty playing games or sports with rules; and difficulty communicating with others (i.e.,
difficulty in using appropriate verbal and nonverbal cues when expressing him or herself,
carrying on a conversation, or asking others for assistance); and difficulty in speaking
intelligibly or with adequate fluency. 20 C.F.R. § 416.926a(i)(3)(i)-(vi); SSR 09-5p, 2009 WL
396026 at *6-7.
11
Bonilla argues that N.L.M.’s identified severe impairments of ADHD, disruptive
mood dysregulation disorder, and unspecified anxiety disorder warrant a finding of a marked
limitation in the functional domain of interacting and relating with others. (Doc. 18, at 17).
However, the ALJ addressed N.L.M.’s severe impairments through substantial evidence from
the record in deciding that she has less than marked limitation in interacting and relating with
others. (Doc. 10-2, at 27-28).
The ALJ considered the testimony and agency function report of Bonilla along with
Ms. Moyer’s teacher questionnaire and N.L.M.’s school reports and therapy notes. (Doc. 10-
2, at 28; Doc. 10-6, at 7, 10, 30, 32, 75; Doc. 10-8, at 10-35)
The ALJ noted that
[i]n 2018-2019, the school report included comments by her teachers that she
had a positive attitude and engaged in call discussions. [N.L.M.] was able to
make friends. Moreover, the mental therapy notes indicate periods of
hyperactivity, but they also generally show that [N.L.M.] is able to interact
effectively and showed significant improvement when medication was started.
(Doc. 10-2, at 28; Doc. 10-6, at 75; Doc. 10-8, at 10-35).
Additionally, the ALJ considered Bonilla’s testimony that N.L.M. sometimes has difficulty
being understood by others, has difficulty when she is in a bad mood or crying, will talk for
three days and then stop, and cannot explain why she does bad things. (Doc. 10-2, at 28; Doc.
10-6, at 6-7). The ALJ also comparted these facts with Bonilla’s testimony that N.L.M. “can
make new friends, gets along with friends her age, . . . likes younger children . . . and gets
along with teachers when she is on the medication.” (Doc. 10-2, at 28; Doc. 10-6, at 10). The
ALJ considered this testimony along with Ms. Moyer’s opinion that she had no difficulty
understanding N.L.M.’s speech; that N.L.M. has slight problems relating experiences, telling
stories, and using appropriate language; that N.L.M. has obvious problems playing with
12
others; and serious problems in expressing anger appropriately, following the rules, respecting
and obeying adults in authority, and seeking attention appropriately, playing cooperatively
with other children, and making and keeping friends. (Doc. 10-2, at 28; Doc. 10-6, at 30, 32).
Additionally, the ALJ noted Ms. Moyer’s statement that N.L.M. acted “significantly better
when on medication . . . [and when she is] not on medication [she] needs a lot of refocus and
repetition.” (Doc. 10-2, at 28; Doc. 10-6, at 30).
Thus, the ALJ considered and cited to substantial evidence regarding N.L.M.’s
limitations in the functional domain of interacting and relating with others. (Doc. 10-2, at 28).
3. Substantial evidence supports the ALJ’s finding that N.L.M. has less than a
marked limitation in the functional domain of caring for oneself.
Bonilla argues that the ALJ erred in finding that N.L.M. suffers from less than marked
limitations in the ability to care for herself. (Doc. 18, at 17). The regulations on the domain
of caring for yourself explain the evaluation criteria, in pertinent part, as follows:
In this domain, we consider how well you maintain a healthy emotional and
physical state, including how well you get your physical and emotional wants
and needs met in appropriate ways; how you cope with stress and changes in
your environment; and whether you take care of your own health, possessions,
and living area.
School-age children (age 6 to attainment of age 12). You should be independent
in most day-to-day activities (e.g., dressing yourself, bathing yourself),
although you may still need to be reminded sometimes to do these routinely.
You should begin to recognize that you are competent in doing some activities
and that you have difficulty with others. You should be able to identify those
circumstances when you feel good about yourself and when you feel bad. You
should begin to develop understanding of what is right and wrong, and what is
acceptable and unacceptable behavior. You should begin to demonstrate
consistent control over your behavior, and you should be able to avoid
behaviors that are unsafe or otherwise not good for you. You should begin to
imitate more of the behavior of adults you know.
20 C.F.R. §§ 416.926a(k); (k)(2)(iv).
13
Bonilla argues that N.L.M.’s identified severe impairments of ADHD, disruptive
mood dysregulation disorder, and unspecified anxiety disorder warrant a finding of a marked
limitation in the functional domain of caring for oneself. (Doc. 18, at 17). However, the ALJ
addressed N.L.M.’s severe impairments through substantial evidence from the record in
deciding that she has less than marked limitation in caring for herself. (Doc. 10-2, at 24-25).
The ALJ considered Bonilla’s testimony and agency function report, Ms. Moyer’s
teacher questionnaire responses, N.L.M.’s school record and medical history, and her ability
to engage in activities. (Doc. 10-2, at 24-25, 53-57, 65-66; Doc. 10-6, at 11, 31, 74-75; Doc.
10-7, at 4-5, 22, 34; Doc. 10-8, at 31, 34-35).
The ALJ found that
[t]he record is impressive as far as the [N.L.M.’s] ability to engage in a wide
variety of activities and to excel in school. [N.L.M.] is independent in self-care
activities, although she needs reminders and this is age appropriate for six and
seven year old school children. In consideration of [Bonilla’s] testimony
concerning [N.L.M.’s] eating habits, nail biting, and difficulty with
transitioning, I find less than marked limitations.
(Doc. 10-2, at 25).
First, the ALJ considered Bonilla’s answers to the agency function report. (Doc. 10-2, at 24;
Doc. 10-6, at 11). Bonilla stated that N.L.M has difficulty with buttons; needs assistance with
bathing, brushing her teeth, and doing her hair; and does not like to do these things. (Doc.
10-2, at 24; Doc. 10-6, at 11). The ALJ also considered Bonilla’s testimony that N.L.M. can
accomplish some daily tasks on her own like dressing and feeding herself. (Doc. 10-2, at 25,
55; Doc. 10-6, at 11). However, the ALJ also noted that Bonilla testified that “[g]etting ready
for school is very complicated” because she takes a lot of time to get ready and does not like
school. (Doc. 10-2, at 25, 53, 57; Doc. 10-7, at 22). Additionally, Bonilla stated that N.L.M.
14
“will resist doing activities that she does not want to do.” (Doc. 10-2, at 25, 54-55). Bonilla
also stated that she does not take N.L.M. out to dinner because it is too hard and that it is
difficult to take N.L.M. to the store because she will not stay around Bonilla. (Doc. 10-2, at
25, 65-66). Additionally, Bonilla states that N.L.M. fears getting older, does not put her toys
away, and is not good with transitioning. (Doc. 10-2, at 25, 55-56, 66; Doc. 10-6, at 11; Doc.
10-7, at 22). The ALJ also noted that N.L.M. enjoys a variety of activities that require
discipline and control and that she “can do these activities independently, showing she is able
to complete tasks without being unduly distracted.” (Doc. 10-2, at 25, 52-55, 60).
Next, the ALJ considered the teacher questionnaire completed by Ms. Moyer. (Doc.
10-2, at 24-25; Doc. 10-6, at 31). Ms. Moyer stated that N.L.M. has no problem taking care
of personal hygiene, caring for physical needs, cooperating in, or being responsible for, taking
needed medications; a slight problem using good judgment regarding personal safety and
dangerous circumstances on a month basis; an obvious problems handling frustration
appropriately, responding appropriately to changes in mood, identifying and appropriately
asserting emotional needs on a weekly basis; and serious problems being patient when
necessary, using appropriate coping skills to meet daily demands of the school environment,
and knowing when to ask for help on a daily basis. (Doc. 10-2, at 24-25; Doc. 10-6, at 31).
Third, the ALJ considered N.L.M.’s school performance noting that “she is able to
control her emotions for full school days, including time spent in the after school program.”
(Doc. 10-2, at 25; Doc. 10-6, at 75; Doc. 10-7, at 34; Doc. 10-8, at 31, 34-35). The ALJ noted
N.L.M.’s lack of disciplinary record that “shows that she is developing an understanding of
what is acceptable and unacceptable behavior.” (Doc. 10-2, at 25; Doc. 10-6, at 74-75).
15
Finally, the ALJ looked to N.L.M.’s medical history noting her “history of short
stature disorder, Pica of infancy and childhood, Developmental language disorder, and
Behavioral insomnia of childhood, combined type.” (Doc. 10-2, at 25; Doc. 10-7, at 4). The
ALJ also considered that N.L.M. has not demonstrated any developmental delays and her
pediatric records from March 7, 2017, demonstrate normal exams with her weight at the 44th
percentile and height at the 55th percentile. (Doc. 10-2, at 25; Doc. 10-7, at 5).
Thus, the ALJ considered substantial evidence regarding N.L.M.’s limitations when
she determined that N.L.M. has less than marked limitations in the functional domain of
caring for oneself. (Doc. 10-2, at 24-25).
The ALJ presents substantial evidence in considering all of N.L.M.’s functional
domains. (Doc. 10-2, at 19-29). In so far as Bonilla contends that the ALJ failed to discuss
specific evidence pertaining to N.L.M.’s ADHD, disruptive mood dysregulation disorder,
and unspecified anxiety disorder “the possibility of drawing two inconsistent conclusions
from the evidence does not prevent [the ALJ's decision] from being supported by substantial
evidence.” Consolo, 383 U.S. at 620. The ALJ also adequately explained her decision because
she gave “not only an expression of the evidence [she] considered which supports the result,
but also some indication of the evidence which was rejected.” Cotter, 642 F.2d at 705. Thus,
substantial evidence supports the ALJ’s finding of a less than marked limitation in the
domains of acquiring and using information, attending and completing tasks, interacting and
relating with others, and caring for oneself. (Doc. 10-2, at 19-29).
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B. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S DECISION THAT N.L.M.’S OTHER
IMPAIRMENTS, INCLUDING DEPRESSIVE DISORDER, OCD, DEVELOPMENTAL
LANGUAGE DISORDER, AND INSOMNIA DID NOT FUNCTIONALLY EQUAL A LISTING.
Bonilla asserts that the ALJ failed to consider N.L.M.’s depressive disorder, OCD,
developmental language disorder, and insomnia when assessing her functional domains.
(Doc. 18, at 19). Bonilla states that the above limitations were not referenced in steps three,
four, or five of the ALJ’s decision; that the medical records and Bonilla’s testimony support
a finding that the above limitations are severe; and that the above limitations “clearly have
more than a slight impact on [N.L.M.’s] ability to function, and should have been considered”
by the ALJ. (Doc. 18, at 19-21). The Commissioner asserts that N.L.M.’s functional
limitations stemming from her mental conditions were fully contemplated. (Doc. 26, at 27-
28).
The ALJ’s severity determination at step two must be upheld if it is supported by
substantial evidence. Bricker v. Astrue, No. 10-cv-458, 2010 WL 4984214, at *4 (W.D. Pa. Dec.
2, 2010); citing McCrea v. Commissioner of Soc. Sec., 370 F.3d 357, 360–61 (3d Cir. 2004). “In a
child's claim for benefits, an impairment is not severe if the evidence establishes no more than
a minimal effect on a claimant's ability to function in an age-appropriate manner.” Bricker,
2010 WL 4984214, at *4 (citing 20 C.F.R. § 415.924(c)). Additionally, “even if the record
could sustain an alternative conclusion, the ALJ’s decision regarding disability will not be
overturned as long as there is substantial evidence to support it.” Sykes v. Apfel, 228 F.3d 259,
262 (3d Cir. 2000) (examining Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986)).
In considering N.L.M.’s mental impairments, the ALJ examined Listings 112.04 –
depressive, bipolar and related disorders, 112.06 – anxiety and obsessive-compulsive
disorders, and 112.11 – neurodevelopmental disorders and found that N.L.M.’s mental
17
impairments did not meet or medically equal any of the listed impairments. (Doc. 10-2, at 18-
19). The ALJ stated that N.L.M. has a moderate limitation in her ability to understand,
remember, or apply information; interact and relate with others; and concentrate, persist, or
maintain pace. (Doc. 10-2, at 18-19). The ALJ also stated that N.L.M. has a marked limitation
in adapting or managing herself. (Doc. 20-1, at 19). The ALJ supported these findings with
references to her determinations in assessing N.L.M.’s functional domains. (Doc. 10-2, at 18-
19). As discussed supra, the ALJ cited to substantial evidence in concluding that N.L.M.
exhibited less than marked limitations in acquiring and using information, attending and
completing tasks, interacting and relating with others, and caring for oneself. (Doc. 10-2, at
20-28). However, the ALJ found that “[b]ecause the claimant’s mental impairments do not
cause at least two ‘marked’ limitations or one ‘extreme’ limitation” the criteria for finding an
impairment is not satisfied. (Doc. 10-2, at 19). Additionally, the ALJ considered alternate
criteria in determining if N.L.M.’s impairments met or medically equaled a listed impairment.
(Doc. 10-2, at 19). However, the ALJ found that
the record fails to show indication of ongoing treatment or use of a highly
structured setting, which diminishes [N.L.M.’s] symptoms or signs. Nor is
there evidence of marginal adjustment (e.g., minimal capacity to adapt to
changes in the environment or to demands that are not already part of the
claimant’s daily life). [N.L.M.] does not live in a structured environment. She
was participating in monthly therapy in 2018 and was on medication for
ADHD symptoms and sleep. She has not required acute treatment for a mental
impairment. While in school, she is on grade level and in the regular classroom
without special education needs or accommodations.
(Doc. 10-2, at 19).
Additionally, the ALJ considered the opinion evidence from Dr. Gavazzi, PsyD and Mr.
Hartman, licensed professional counselor (“LPC”) who discussed N.L.M.’s mental
impairments. (Doc. 10-2, at 29; Doc. 10-3, at 4-7; Doc. 10-7, at 59).
18
The ALJ considered N.L.M.’s limitation of developmental language disorder in
assessing her limitations. Specifically, the ALJ mentioned N.L.M.’s developmental language
disorder when assessing the functional domain of caring for oneself. (Doc. 10-2, at 24-25;
Doc. 10-7, at 4). Additionally, the ALJ mentioned N.L.M.’s linguistic abilities throughout
her opinion. (Doc. 10-2, at 21). First, the ALJ noted that N.L.M. did not require speech
therapy and that during the 2018-2019 school year, N.L.M.’s educational records stated that
“she was advanced and outstanding” in Language. (Doc. 10-2, at 21; Doc. 10-6, at 75; Doc.
10-7, at 44). Next, when assessing N.L.M.’s ability to acquire and use information and her
ability to attend and complete tasks, the ALJ noted that in First Grade N.L.M. “was on grade
level for . . . Written Language” and was not in special education and in Second Grade
N.L.M. was “advanced and outstanding” in Language and that “she demonstrates a positive
effort, contributes to discussion, has a good attitude, and completes class work.” (Doc. 10-2,
at 26-27; Doc. 10-6, at 75; Doc. 10-7, at 39). The ALJ compared this evidence to the testimony
from Bonilla stating that N.L.M. was sometimes difficult to understand and that she will talk
for three days and then stop. (Doc. 10-2, at 28; Doc. 10-6, at 6-7). The ALJ also considered
Ms. Moyer’s testimony that she has no difficulty understanding N.L.M., but that N.L.M. has
slight problems with relating experiences, telling stories, and using language appropriate to
the situation and listener. (Doc. 10-2, at 28; Doc. 10-6, at 30, 32). Thus, the ALJ cited to
substantial evidence when considering N.L.M’s linguistic limitations.
The ALJ adequately considered N.L.M.’s insomnia in assessing her limitations. The
ALJ noted that N.L.M. was placed on prescription medication to help her sleep. (Doc. 10-2,
at 21; Doc. 10-7, at 25-27). The ALJ also noted that on March 31, 2018, Bonilla stated
N.L.M.’s sleep had improved. (Doc. 10-2, at 22; Doc. 10-7, at 18). However, on April 14,
19
2018, Bonilla stated that N.L.M. “continued to have difficulty with sleep and the psychiatrist
increased [N.L.M.’s] dose of [medication].” (Doc. 10-2, at 22; Doc. 10-7, at 8-10). On May
26, 2018, Bonilla stated that N.L.M. “was sleeping well” and on December 4, 2018, N.L.M.’s
“sleep was ‘fine.’” (Doc. 10-2, at 22; Doc. 10-7, at 10; Doc. 10-8, at 20-22). On January 28,
2019, N.L.M.’s ability to sleep had deteriorated and she was given a different prescription to
help her sleep. (Doc. 10-2, at 22-23; Doc. 10-8, at 15-17). On March 8, 2019, Bonilla stated
that N.L.M. was still having difficulty sleeping but had not been taking her new medication
because Bonilla had been too busy to refill the prescription. (Doc. 10-2, at 23; Doc. 10-8, at 9-
11). Thus, the ALJ thoroughly discussed N.L.M.’s limitations regarding her sleep and
insomnia. (Doc. 10-2, at 22-23).
It is not the role of the Court to substitute its judgment for that of the ALJ. See Social
Security Act, § 205(g), 42 U.S.C.A. § 405(g). The standard the Court must employ is
substantial evidence, which is deferential to the judgment of the ALJ. Rutherford, 399 F.3d
at552. It is the ALJ’s duty, not the Court’s duty, to weigh the evidence and resolve conflicts.
See Richardson, 402 U.S. at 410 (clarifying that when the record contains conflicting medical
evidence, the ALJ must weigh that evidence and resolve the conflict); Fargnoli v. Massanari,
247 F.3d 34, 40 (3d Cir. 2001). Substantial evidence supports the ALJ’s findings regarding the
severity of N.L.M.’s impairments. The ALJ relied on N.L.M.’s medical and educational
records along with testimony from Bonilla and Ms. Moyer in assessing the severity of her
limitations. (Doc. 10-2, at 19-29). Accordingly, substantial evidence supports the ALJ’s
consideration of N.L.M.’s other impairments.
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C. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S CONSIDERATION OF MR.
HARTMAN’S OPINION AND THE ALJ’S USE OF THE TEACHER QUESTIONNAIRE
COMPLETED BY MS. MOYER.
Bonilla contends that “[t]he ALJ erred and abused her discretion by not affording
proper weight to the Mental Residual Functional capacity Assessment from the treating
source, Steven Hartman, as well as in considering the teacher questionnaire, which supported
marked limitations in the functional domains.” (Doc. 18, at 22).
The ALJ adequately considered the opinion of Mr. Hartman, LPC. (Doc. 10-2, at 29).
As this matter involves a claim filed after March 27, 2017, the new regulatory framework
governing the evaluation of medical opinions applies to the ALJ’s evaluation of the medical
opinions in the record. See Revisions to Rules Regarding the Evaluation of Medical Evidence,
82 Fed. Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed. Reg. 15,132-01 (Mar.
27, 2017)); see also 82 Fed. Reg. 15263 (March 27, 2017); 82 Fed. Reg. 16869 (corrective
notice) (explaining that SSR 96-2p and 96- 5p do not apply to newly filed or pending claims
after March 27, 2017). The ALJ “will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior administrative medical
finding(s), including those from [the claimant’s] medical sources.” 20 C.F.R. § 416.920c(a).
However, the opinion of Mr. Hartman is not an acceptable medical source as he is a
clinical mental health counselor. Morris v. Saul, 2021 WL 3889555, at *6 (M.D. Pa. Jan. 4,
2021) (“[C]lincial mental health counselors are not ‘acceptable medical sources’”); 20 C.F.R.
§ 416.902(a)(1). Further, under the new regulations, treating physicians are “not entitled to
any deference given [his or her] status as [a] ‘treating physicia[n].’” See Duhl v. Kijakazi, No.
20-1123, 2021 WL 5909819, at *3 (W.D. Pa. Dec. 14, 2021); (Doc. 12-8, at 70).
The ALJ still considered the opinion of Mr. Hartman and found that his opinion was
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not persuasive. (Doc. 10-2, at 29). The ALJ stated
Mr. [Hartman], LPC, a counselor with [WellSpan] completed a Mental
Residual Functional Capacity assessment on December 4, 2018. [N.L.M.] was
in therapy from February 1, 2018, through December 2018. (Exhibit 6F.) Mr.
[Hartman] opined that [N.L.M.] marked limitations in understanding,
remembering, or applying information, interacting with others, in the ability to
sustain concentration, persistence, and maintain pace, and in the ability to
adapt or manage oneself. (Exhibit 6F.) I do not find this opinion to be
supported or consistent with the overall evidence. [N.L.M.] was seen in therapy
on average once a month. [N.L.M.] was seen for a medication check in March
2019 and in therapy for the last time in December 2018. The [WellSpan]
discharge summary that was completed in March 2019 notes that [N.L.M.] had
improved in all areas. [N.L.M.’s] overall record, including her grades, show
she has much greater ability to function than Mr. [Hartman] has opined. For
these reasons, his opinion is not persuasive.
(Doc. 10-2, at 29; Doc. 10-7, at 59-63).
Thus, the ALJ adequately discussed the opinion of Mr. Hartman and compared it with the
other evidence in the record in finding that the opinion was not persuasive. (Doc. 10-2, at 29).
The ALJ also relied on the teacher questionnaire completed by Ms. Moyer in her
functional domain analysis and considered its persuasiveness along with other evidence in the
record. (Doc. 10-2, at 20-28). Specifically, the ALJ discussed Ms. Moyer’s teacher
questionnaire regarding N.L.M.’s ability to acquire and use information, attend and complete
tasks, and interact and relate with others. (Doc. 10-2, at 26-28).
For the domains of acquiring and using information and attending and completing
tasks the ALJ noted that “Ms. Moyer saw the claimant once every few months for counseling
and behavior” and discussed her answers in the teacher questionnaire under the two domains
and her notation that N.L.M.’s limitations are significantly less when on medication. (Doc.
10-2, at 26; Doc.10-6, at 28-29). Additionally, the ALJ explained her determination of the
persuasiveness of Ms. Moyer’s responses and stated that she “considered that Ms. Moyer was
22
a school counselor and only saw [N.L.M.] once every few months [and that] Ms. Moyer also
added comments that [N.L.M.] had significantly improved with medication.” (Doc. 10-2, at
27; Doc. 10-6, at 29). Thus the ALJ explained that Ms. Moyer’s responses “indicated . . . that
the severity of the limitations may not have been an accurate assessment and instead, the
objective grades, in 2018-2019, showing excellent, advanced, and highly proficient in the most
subjects is a better indication of limitations under these domains” along with N.L.M.’s regular
classroom attendance and lack of special education needs or summer school. (Doc. 10-2 at
27; Doc. 10-6, at 75).
For the domain of interacting and relating with others, the ALJ noted Ms. Moyer’s
responses to the teacher questionnaire and her comment that N.L.M. performs significantly
better when on medication, but when she is not on medication she needs a lot of refocusing
and repetition. (Doc. 10-2, at 28; Doc. 10-6, at 30, 32). The ALJ further considered N.L.M.’s
school reports and mental therapy notes in combination with Ms. Moyer’s answers to the
teacher questionnaire and found a less than marked limitation in the domain of interacting
and relating with others. (Doc. 10-2, at 28; Doc. 10-6, at 75; Doc. 10-8, at 10-35).
The ALJ clearly utilized and discussed Mr. Hartman’s opinion and Ms. Moyer’s
responses to the teacher questionnaire in her opinion and the court may not reweigh the
evidence in its determination. See Burns, 312 F.3d at 118. As such, substantial evidence
supports the ALJ’s use of the opinion of Mr. Hartman and the teacher questionnaire
completed by Ms. Moyer as the ALJ utilized a wide array of evidence from the record in her
analysis of N.L.M.’s functional domains.
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V. CONCLUSION
Based on the foregoing, IT IS ORDERED that the Commissioner’s decision to deny
Bonilla disability benefits be AFFIRMED, final judgment be issued in favor of the
Commissioner, and the Clerk of Court be directed to CLOSE this case.
An appropriate Order follows.
Dated: February 22, 2022 s/ Karoline Mehalchick
KAROLINE MEHALCHICK
Chief United States Magistrate Judge
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