Ortiz v. Kijakazi

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AUREA ORTIZ, : Civil No. 3:23-CV-1020

o/b/o B.C.B., :

:

Plaintiff, :

: (Magistrate Judge Carlson)

v. :

:

MARTIN O’MALLEY,1 :

Commissioner of Social Security, :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction

The Social Security Act provides a social safety net for children who face

profoundly disabling physical or emotional impairments but, in order to qualify for

these benefits, a child must have “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). The

Commissioner has interpreted this statutory provision in regulations which provide

1 Martin O’Malley became the Commissioner of Social Security on

December 20, 2023. Accordingly, pursuant to Rule 25(d) of the Federal Rules of

Civil Procedure and 42 U.S.C. § 405(g), Martin O’Malley is substituted for Kilolo

Kijakazi as the defendant in this suit.

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that a child whose condition meets, or medically or functionally equals, the criteria

of a listed impairment must be found disabled. 20 C.F.R. § 416.924(a). When

determining this issue of childhood disability, there are six domains of functioning

which an Administrative Law Judge (ALJ) must consider: (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 Yourself; and

(6) Health and Physical Well-Being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). In order to

establish disability, an ALJ must conclude that a child exhibits either a “marked”

limitation in two of these six domains, or an “extreme” limitation in any single

domain. 20 C.F.R. § 416.926a(d).

Once a childhood disability determination has been made, the Supreme Court

has underscored for us the limited scope of our substantive review of that decision

on appeal, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S. Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-

evidence standard, a court looks to an existing administrative record

and asks whether it contains “sufficien[t] evidence” to support the

agency’s factual determinations. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S. Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). And whatever the meaning of “substantial” in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial

evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S. Ct. 1420 (internal quotation marks

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omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S. Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S. Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

The plaintiff, Aurea Ortiz, appeals from an adverse decision of the

Commissioner of Social Security denying her minor grandson, B.C.B.’s, application

for Supplemental Security Income (SSI) under the Social Security Act. On appeal,

the plaintiff challenges the ALJ’s decision, arguing that it was not supported by

substantial evidence. However, after a review of the record, and mindful of the fact

that substantial evidence “means only—‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion,’” Biestek, 139 S. Ct. at 1154,

we find that substantial evidence supported the ALJ’s findings in this case.

Accordingly, for the reasons set forth below, the decision of the Commissioner will

be affirmed.

II. Statement of Facts and of the Case

On February 19, 2019, Aurea Ortiz applied for supplemental security benefits

on behalf of her minor grandson, B.C.B., alleging an onset of disability in February

of 2019. (Tr. 50). B.C.B. was born in March of 2009 and was nine years old at the

time of this disability application. (Tr. 51).

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In assessing whether B.C.B. suffered from marked or extreme impairments in

any of the six domains of functioning which an Administrative Law Judge (ALJ)

must consider, 20 C.F.R. § 416.926a(b)(1)(i)-(vi), the ALJ was presented with an

academic and clinical record which revealed that, aside from the normal symptoms

of B.C.B.’s attention deficit hyperactivity disorder (ADHD) and learning disorder,

which were being addressed through an IEP at his school, the bulk of his behavioral

problems were situational and were exhibited exclusively in the home setting.

B.C.B.’s academic records revealed that for the most part, B.C.B. attained

passing grades in his classes, though he struggled with math and reading. (Tr. 471-

515). His teachers observed that he was smart with good attendance but that he

lacked stamina and motivation to complete work, had poor organization and

preparedness for class and poor reading and writing skills. (Tr. 99-100). But B.C.B’s

fourth grade teacher completed an evaluation noting he had no problems in the

domains of attending and completing tasks, interacting and relating with others, and

moving about and manipulating objects, and caring for himself, but in the area of

acquiring and using information he had problems functioning, including obvious

problems in reading and comprehending written material, comprehending and doing

math problems, providing organized oral explanations and adequate descriptions,

expressing ideas in written form, learning new material, and applying problem-

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solving skills in class discussions. (Tr. 385-92). She noted no unusual degree of

absenteeism. (Tr. 385). In October 2019, B.C.B.’s fifth grade teacher completed an

evaluation which indicated he often exhibited symptoms such as difficulty sustaining

attention, was easily distracted and fidgeted and left his seat frequently, but that he

was never angry, never initiated fights or was physically cruel to people or lost his

temper. (Tr. 663).

B.C.B.’s standardized test scores revealed some degree of impairment on his

part and were at basic or below basic levels, reflecting lower strength in academic

matters, (Tr. 534), and cognitive and academic achievement testing revealed below

average range of intelligence, with an IQ of 76, and low average to very low scores

in all subjects of academic achievement. (Tr. 101, 105).

It was not until 2021 when B.C.B. was evaluated for an individual education

plan (IEP) and provided accommodations such as extended time on tests and large

assignments and seating close to the instructor. (Tr. 486). The IEP evaluation did not

identify a specific learning disability, but rather noted his learning profile was

consistent with his ADHD diagnosis. (Tr. 110). IEP testing in 2021 noted

discrepancies in reading fluency, reading comprehension, writing, and basic math

skills but noted that he exhibited no behaviors that impeded his learning or that of

others, interacted well with adults, and was not defiant, oppositional, or

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argumentative or easily frustrated. (Tr. 478, 516). He was noted to be cooperative at

school and had a good relationship with his peers. (Tr. 486). His records through

seventh grade show no disciplinary incidents. (Tr. 532-33). And B.C.B.’s school

records note that B.C.B.’s grandmother reported very elevated concerns in all areas

of functioning, while his teachers reported no concerns in several areas, indicating

“an overly negative response style, which may be an indicator of her feeling

overwhelmed with his behavior at home and wanting help for him.” (Tr. 103).

Clinical counseling records also typically recorded that B.C.B’s emotional

impairments were generally related to his ADHD, and he primarily had behavior

issues at home. An April 2018 psychological evaluation diagnosed him with

unspecified disruptive, impulse-control, and conduct disorder, citing physical

aggression with his family, irritability, mood disruption, anger outbursts, and

oppositional defiance in the home. (Tr. 551-56). But the examiner noted that B.C.B.

maintained good eye contact, normal thought process, good recent and remote

memory, good mood, and appropriate speech. (Tr. 555). She noted that he was

honest about his negative behaviors, alert and oriented, but with poor to fair insight

and judgment. (Id.) Medication management, psychological case management, and

participation in community activities was recommended. (Tr. 556)

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Counseling records from 2018 indicate that B.C.B. exhibited behavior issues

mostly at home and had been attending school without any issues. (Tr. 562). It was

noted that he does not demonstrate behavior issues at school but refused to attend

every day and had difficulty completing homework and struggled academically. (Tr.

577-79). But these notes also state that he was very respectful toward his

caseworkers. (Tr. 580). He was attending an after-school program at Philhaven four

days per week and stated that he liked the program and was receiving medication

management and counseling. (Tr. 583)

Psychiatry notes from 2019 state B.C.B. was diagnosed with oppositional

defiant disorder in 2016 and adjustment disorder with mixed disturbance of emotions

and conduct and attention deficit hyperactivity disorder (ADHD) in 2017. (Tr. 587-

88). Progress notes from early 2019 stated that he was compliant with medications

with good focus and concentration, school was going well but that he struggled with

behavioral problems at home and struggled to regulate his emotions, especially his

anger. (Tr. 587-613). Throughout 2019 and early 2020 B.C.B. reported he had been

doing well at home and school, listening more, attending school and that his mood,

concentration, and focus had been good, but did not some instances of trouble paying

attention in class. (Tr. 679, 681, 683, 685, 705, 707, 709, 716). His grandmother

continued to report that he was defiant and exhibited behavioral problems at home.

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(Id.) They began family-based therapy in 2020, (Tr. 703), and notes from May 2021

indicate that B.C.B. and his grandmother were working on communicating more

effectively and emotional regulation. (Tr. 897-901). Examinations during 2019 and

2020 showed appropriate grooming, fair to good insight and judgment, that he was

fully oriented and cooperative. (Tr. 675, 682, 684, 695, 704, 708, 710, 712, 715).

In April 2019, B.C.B. underwent a pediatric evaluation by consultative

examiner NP Karena Hammon. (Tr. 625-28). Nurse Hammon noted diagnoses of

asthma, learning disability, and ADHD. (Tr. 628). She noted his history of behavior

problems with ADHD but that he interacted appropriately throughout the exam. (Tr.

25). She reported that he enjoyed watching TV, listening to music, and playing with

friends and that he did his homework with encouragement and direction from his

family and will do chores. (Tr. 626). She also noted that his grandmother reported it

had been about four years since he had an asthmatic episode and did not use any

inhalers. (Tr. 625).

B.C.B. also underwent a comprehensive psychiatric, intellectual, and

achievement evaluation with Kathleen Lederman, Psy.D. in May 2019. (Tr. 636-42).

The evaluation noted that he was receiving academic and emotional support in

special education at that time, (Tr. 636), though his school records indicate he was

not evaluated for an IEP until 2020 and was in regular education. B.C.B.’s family

8

reported to the examiner that he had angry outbursts several times a day and could

be both physically and verbally aggressive to his grandmother, siblings, and other

adults. (Tr. 637). It was reported that he had lying and stealing behavior and

threatened to leave home. (Id.) They reported symptoms of his ADHD including

inattention, problems focusing, impulsivity, and hyperactivity. He also reported

depression. (Id.) The mental status examination revealed coherent and goal directed

thought process, but impaired attention and concentration and mildly impaired

memory, though it was noted his ADHD medication was wearing off during the

evaluation. (Tr. 638). The examination also revealed borderline intellectual

functioning and fair insight and judgment but cooperative and friendly behavior and

did not exhibit significant emotional distress during the evaluation. (Tr. 639). As to

his intellectual functioning, the examination revealed borderline intellectual ability

indicating moderate deficits, with a full-scale IQ of 71. (Tr. 640). Dr. Lederman

noted diagnoses of ADHD, learning disability, unspecified depressive disorder,

oppositional defiant disorder, intermittent explosive disorder and recommended he

continue with his current educational placement and psychological intervention

therapy and treatment. (Tr. 641).

In August 2020, B.C.B. returned from a six-week trip to Puerto Rico when he

was not on his medications. (Tr. 699). He denied feeling depressed but reported

9

auditory and visual hallucinations since returning from Puerto Rico. (Tr. 694, 696,

699). In September 2020 his grandmother reported that he procrastinates and avoids

schoolwork but B.C.B. again reported that he had been doing his work but school

had been hard for him and admitted being stressed about school. (Tr. 694). By the

end of 2020, B.C.B. and his grandmother reported that he was doing better, had been

attending school online which had been going well and was medication compliant

and had good focus and concentration. (Tr. 809). They were working on getting him

evaluated for an IEP at school and he was attending a counseling after school

program. (Tr. 811). Psychiatry records throughout 2021 note B.C.B. doing well with

some reports of defiance and arguing with his grandmother, but he stated he was no

longer hearing voices and examination findings were overall normal. (Tr. 813-824).

In 2021, B.C.B. continued participating in an after-school counseling program. (Tr.

785-808, 827-54, 863-90). It was noted that B.C.B. was working on improving his

social skills and actively participated in the program and interacted appropriately

with staff and peers. (Id.)

Records indicate that B.C.B. underwent a partial psychiatric hospitalization

program from October 27, 2021, to November 16, 2021. (Tr. 892). His intake forms

note that he had an IEP in school but that he reported no issues or concerns with

academics (other than math and spelling), noted that he understood the materials but

10

sometimes struggled to complete homework. (Tr. 902). His family reported no

concerns within the school setting until the 2021-22 school year when he began

being reported for disruptive behavior. (Id.) He was exhibiting signs of depression.

(Tr. 904-05). Discharge notes state that he was being treated for behavioral problems

including verbal aggression, not following rules, threatening others, and not getting

along with siblings and that he punched a wall and broke a mirror in the bathroom

in October 2021. (Tr. 891-82). It was also noted that he struggled with personal

hygiene. (Id.) However, again, these notes state that, “all behaviors/symptoms have

only been demonstrated within the home setting.” (Id.) His discharge notes state that

he struggled to understand the DBT skills that were taught in the group room and

that he was unable to recall skills, define them, and apply them to situations

appropriately, impacting his ability to complete activities and apply the skills at

home. (Tr. 892). B.C.B. reported having better communication with his support

system and a decrease in depressive symptoms but continued to struggle with

completing hygiene tasks. (Id.)

Given these academic and treatment records demonstrating that B.C.B.

exhibited symptoms of ADHD and learning disability in school, but that his

behavioral issues were primarily isolated to the home setting, four state agency

experts who assessed B.C.B.’s impairments all agreed that he did not suffer from

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marked or extreme limitations in any of these six basic realms of functioning. On

May 30, 2019, State agency consultants, Dr. John Gavazzi and Dr. Chevaughn

Daniel evaluated B.C.B.’s functional abilities to determine if his impairments met

or equaled a listing. They opined that he had a less than marked impairment in

acquiring and using information, attending and completing tasks, interacting and

relating with others, and caring for himself. (Tr. 129-30) They further opined that

B.C.B. had no limitations in his health and physical wellbeing and moving about and

manipulating objects. (Id.) As to those areas where the consultants found less than

marked limitations, they noted B.C.B. had limitations with learning new

information, attention, concentration and task persistence, self-regulation and coping

skills, but noted that he managed in regular education with no special education

services needed at that time, and that his difficulties in attention and concentration

and inappropriate and out of control behavior at home were not consistent over time

and across situations. (Id.) Dr. Daniel also opined that B.C.B.’s breathing problems

were under control, that he had no problems breathing for the past four years and

was not using any inhalers. (Id.) On reconsideration, State agency consultants Dr.

Thomas Fink and Dr. Anjana Popat similarly found that B.C.B.’s impairments did

not functionally equal the listings as he had less than marked or no limitations in all

areas of functioning. (Tr. 142-43).

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The mental status examinations of B.C.B. conducted by Dr. Kathleen

Ledermann in May of 2019, (Tr. 636-42), and NP Hammon in April of 2019, (Tr.

625-28), also failed to disclose any marked or extreme impairments. While these

consultative examinations had only limited value due to the failure of the examining

sources to specifically evaluate whether B.C.B. had marked or extreme impairments

in any of these six realms of functioning, the reports generally indicated that B.C.B.

exhibited symptoms of ADHD and learning disability, including impaired attention

and concentration when his medication was wearing off, (Tr. 638), but that his

thought process was coherent and goal directed, he was cooperative and interacted

appropriately, was friendly, and did not exhibit emotional distress. (Tr. 625, 639).

Both examiners noted a history of behavior problems associated with ADHD, and

Dr. Lederman noted borderline intellectual function but fair insight and judgment.

(Tr. 625, 639-40).

It was against this backdrop that the ALJ conducted a hearing in B.C.B.’s case

on November 16, 2021. (Tr. 66-96).B.C.B., his grandmother, and his aunt, Rebecca

Caravello, testified at this hearing. (Id.) The ALJ summarized the testimony and

statements of B.C.B. and his family members as follows:

Aurea Ortiz, the claimant’s grandmother, testified and stated in the

record that the claimant became disabled on February 19, 2019 due to

attention deficit hyperactivity disorder, learning disability, behavioral

issues, and breathing problems. She reported that the claimant had a

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case manager, primary care physician, outpatient psychology and

wraparound services, and Individualized Education Program in school,

and outpatient counseling at the time of filing (Ex. B-7E). Handwritten

notes received from Ms. Ortiz suggest that the claimant has ongoing

serious issues at home with respect to caring for himself and

concentration (Exs. B-9F, P. 3 translated in Ex. B-12F). Ms. Ortiz

testified that the claimant has been living with her since he was born.

She said he has some contact with his parents. She indicated that his

room is messy, and he does not do chores or anything she asks him to

do. She noted that he sometimes has friends. She said he sometimes

argues with his sister, stated that he loses his temper, and said he gets

upset if she sends him to do something. She further stated that he does

not let her talk and tells her that she is dumb, stupid, and an old lady.

She noted that her son tells the claimant to behave but after that

moment, he forgets and does it again. She stated that the claimant takes

medication as prescribed noting that she gives him his medications

every morning before school and one at night to help him relax. She

added that he does not refuse to take medications. She further noted that

he does not get homework from school. Ms. Ortiz testified that he was

in the partial program for the last two weeks and explained that he made

a comment that he will kill his family and himself and that he is going

to get a knife. She further stated that the claimant is able to dress himself

but sometimes he does not want to change his clothes for a week. She

stated that she has to tell him to shower, brush his teeth, and change his

clothes. She indicated he does not want to cut his hair. She testified that

he broke a wall and glass in the bathroom noting that he has outbursts

almost every day. She noted that the next step after the partial program

is an appointment with psychiatry. She testified that during the

pandemic last year, she had trouble getting the claimant on the camera

for school. She stated that he would sneak and go into YouTube or a

game during last school year (Testimony).

Rebeka Caraballo, the claimant’s aunt, indicated that the claimant has

difficulty progressing in learning, interacting with others, caring for

himself, and attending/completing tasks and did not report any physical

deficits (Ex. B-3E). Ms. Caraballo testified that she sees the claimant

1-2 times a week at his house. She said the claimant likes to argue and

wants to be right all the time. She indicated that the claimant loses his

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temper and argues more often than others. She said he does not punch

walls or hit things while she is there. She stated that he listens to her

when she is there but is disrespectful to his grandmother when she is

not there. She said the claimant is excited to see her when she comes

over. She stated that after discharge from PPI the next step was a

recommendation to go to an after-school program and a

recommendation for a neuropsychological evaluation, noting that he is

on a waiting list (Testimony).

The claimant testified that he lives with his grandmother and sister. He

said he does not listen to his grandmother to do chores around the

house, because he does not like to do anything. He stated that he hangs

out with kids in his area at the park and playing football. He noted that

he takes his medications as he is supposed to. He stated that medications

make him sleepy. The claimant indicated that he gets angry with his

grandmother and his sister stating that he throws or hits things mostly

every time he gets mad and noted that this occurs mostly every day. He

said he does not get homework to complete at home. He noted that his

grades are “looking okay.” He testified that he prefers having school in

class rather than over the internet because of the pandemic. The

claimant said he goes to church with his grandmother every Sunday. He

further stated that he takes the bus to school. He noted that he will

sometimes get angry at school but does not act out to teachers. He

indicated that he attends the after-school program Wednesdays and

Fridays for 3 hours. He stated that they teach them skills to do things at

home, do crafts, and go to parks and added that he attends all of these

sessions. He testified that he last went to school at Camp Curtin 15 days

ago and explained that he was in a partial program for the last 15 days

and was released the day of the hearing (Testimony).

(Tr. 54-55).

Following this hearing, on February 10, 2022, the ALJ issued a decision,

denying Ortiz’s application for SSI on behalf of B.C.B. (Tr. 43-59). The ALJ

employed the three-step evaluation process to determine whether a child is eligible

15

for SSI payments by reason of disability. As part of this analysis the ALJ sequentially

addressed: (1) whether the child was engaged in substantial gainful activity; (2)

whether the child had a medically determinable, severe impairment; (3) whether the

child's impairment or combination of impairments met, medically equaled, or

functionally equaled an impairment listed in part B of 20 C.F.R. Part 404, Subpart

P, Appendix 1. See 20 C.F.R. § 416.924.

In this decision, the ALJ first concluded that B.C.B. had not engaged in

substantial gainful activity since February 19, 2019, the application date. (Tr. 51).

At Step 2 of the sequential analysis, the ALJ found that the B.C.B. had the following

severe impairments: learning disorder/borderline IQ, oppositional defiant disorder,

and attention deficit hyperactivity disorder. (Id.) At Step 3 the ALJ determined that

the claimant did not have an impairment or combination of impairments that met or

medically equaled, or functionally equaled the severity of one of the listed

impairments. (Tr. 52-58).

In reaching this result, the ALJ concluded that B.C.B. had a marked limitation

in acquiring and using information. (Tr. 53). However, he further found that B.C.B.

experienced no impairments in manipulating objects or physical well-being. (Tr. 53-

54). As for B.C.B.’s functioning in the realms of attending and completing tasks,

interacting with others, and the ability to care for himself, the ALJ found that he

16

displayed less than marked limitations. (Id.) The ALJ’s decision justified each of

these findings based upon the totality of the academic, clinical and medical opinion

record, citing B.C.B.’s school performance, teacher appraisals, activities of daily

living, and treatment records, all of which indicated that B.C.B.’s impairments were

neither marked nor extreme. (Tr. 54-58). The ALJ also noted that these findings were

consistent with the state agency expert opinions, which the ALJ deemed to be

persuasive based upon the academic and clinical record. (Tr. 58). Having made these

findings, the ALJ concluded that B.C.B. had not met the exacting standards for

childhood disability and denied his claim. (Tr. 59).

This appeal followed. (Doc. 1). On appeal, the plaintiff contends that the

ALJ’s decision was not supported by substantial evidence. This matter has been fully

briefed by the parties and is now ripe for resolution. As discussed in greater detail

below, having considered the arguments of counsel and carefully reviewed the

record under the deferential standard of review we are enjoyed to employ, the ALJ’s

decision will be affirmed.

III. Discussion

A. Child Disability Claims: Initial Burdens of Proof, Persuasion and

Articulation for the ALJ

The legal standards which govern an ALJ's consideration of a childhood

disability claim under the Act are familiar ones.

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The Social Security Act provides that in order to qualify for disability benefits,

a child must have “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). The Commissioner has

interpreted this statutory provision in regulations which provide that a child whose

condition meets, medically equals, or functionally equals the criteria of a listed

impairment must be found disabled. Similarly, a child whose impairment(s) do not

meet or equal (medically or functionally) the listing criteria contained in 20 C.F.R.

Part 404, Subpart P, Appendix 1 is not disabled. 20 C.F.R. § 416.924(a).

Under these regulations, when determining the issue of functional equivalence

to a listed impairment, there are six domains of functioning which an ALJ must

consider: (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 Yourself; and (6) Health and Physical Well-Being. 20 C.F.R.

§ 416.926a(b)(1)(i)-(vi). In order to establish a disabling level of functional

equivalence to a listed impairment, an ALJ must conclude that a child exhibits either

a “marked” limitation in two of these six domains, or an “extreme” limitation in any

18

single domain. 20 C.F.R. § 416.926a(d). The Commissioner defines a “marked”

limitation as one which:

[I]nterferes seriously with your ability to independently initiate, sustain,

or complete activities. Your day-today functioning may be seriously

limited when your impairment(s) limits only one activity or when the

interactive and cumulative effects of your impairment(s) limit several

activities. ‘Marked’ limitation also means a limitation that is ‘more than

moderate’ but ‘less than extreme.’ It is the equivalent of the functioning

we would expect to find on standardized testing with scores that are at

least two, but less than three, standard deviations below the mean.

20 C.F.R. § 416.926a(e)(2).

The Commissioner then defines an “extreme” limitation as one which:

[I]nterferes very seriously with your ability to independently initiate,

sustain, or complete activities. Your day-to-day functioning may be

very seriously limited when your impairment(s) limits only one activity

or when the interactive and cumulative effects of your impairment(s)

limit several activities. ‘Extreme’ limitation also means a limitation that

is ‘more than marked.’ ‘Extreme’ limitation is the rating we give to the

worst limitations. However, “extreme limitation” does not necessarily

mean a total lack or loss of ability to function. It is the equivalent of the

functioning we would expect to find on standardized testing with scores

that are at least three standard deviations below the mean.

20 C.F.R. § 416.926a(e)(3).

B. Substantial Evidence Review – the Role of this Court

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether the

findings of the final decision-maker are supported by substantial evidence in the

19

record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

(3d Cir. 2008); Ficca 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 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 Supreme Court has underscored for us the limited scope of our review in

this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

20

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-

evidence standard, a court looks to an existing administrative record

and asks whether it contains “sufficien[t] evidence” to support the

agency's factual determinations. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). And whatever the meaning of “substantial” in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial

evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

The question before this Court, therefore, is not whether the claimant is

disabled, but rather 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

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legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary

review of all legal issues . . . .”).

Several fundamental legal propositions flow from this deferential standard of

review. First, when conducting this review “we are mindful that we must not

substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d

607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.

2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather

our task is to simply determine whether substantial evidence supported the ALJ’s

findings. However, we must also ascertain whether the ALJ’s decision meets the

burden of articulation demanded by the courts to enable informed judicial review.

Simply put, “this Court requires the ALJ to set forth the reasons for his decision.”

Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the

Court of Appeals has noted on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for

his decision. 220 F.3d at 119. Conclusory statements . . . are

insufficient. The ALJ must provide a “discussion of the evidence” and

an “explanation of reasoning” for his conclusion sufficient to enable

meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d

501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ

particular “magic” words: “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his

analysis.” Jones, 364 F.3d at 505.

Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

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Thus, in practice ours is a twofold task. We must evaluate the substance of the

ALJ’s decision under a deferential standard of review, but we must also give that

decision careful scrutiny to ensure that the rationale for the ALJ’s actions is

sufficiently articulated to permit meaningful judicial review.

It is against these legal benchmarks that we assess the instant appeal.

E. The ALJ’s Decision Will Be Affirmed.

In this setting, we are mindful that we are not free to substitute our

independent assessment of the evidence for the ALJ’s determinations. Rather, we

must simply ascertain whether the ALJ’s decision is supported by substantial

evidence, a quantum of proof which is less than a preponderance of the evidence but

more than a mere scintilla, Richardson, 402 U.S. at 401, and “does not mean a large

or considerable amount of evidence,” Pierce, 487 U.S. at 565, but rather “means—

and means only—‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’ ” Biestek, 139 S. Ct. at 1154. Judged against these

deferential standards of review, we find that substantial evidence supported the

ALJ’s decision that D.J.A. was not entirely disabled.

The plaintiff first challenges the ALJ’s decision not to address B.C.B.’s

depressive disorder. In our view, this argument fails on several scores. At the outset,

aside from the records from B.C.B.’s partial hospitalization in 2021 which note a

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diagnosis of “MDD (major depressive disorder), single episode, moderate” (Tr.

918), the balance of his psychiatry and counseling records, including during his

partial hospitalization, show that he repeatedly denied symptoms of depression

throughout his treatment. (Tr. 100, 639, 685, 694, 696, 711, 907, 913, 926). As the

Commissioner points out, “[i]t is well-established that a diagnosis alone cannot form

the basis of disability.” Tolan v. Kijakazi, No. 4:20-CV-1675, 2022 WL 905550, at

*11 (M.D. Pa. Mar. 28, 2022) (citing 20 C.F.R. § 404.1525(d)); see also Yarrison v.

Colvin, No. 1:15-CV-00683-YK-GBC, 2016 WL 4491858, at *6 (M.D. Pa. Aug. 2,

2016), report and recommendation adopted, No. 1:15-CV-683, 2016 WL 4479402

(M.D. Pa. Aug. 25, 2016) (“[O]bjective medical diagnoses alone are insufficient to

establish severity at step two; a claimant must also present evidence that these

limitations significantly limited his or her ability to do basic work activities or

impaired his or her capacity to cope with the mental demands of working); Williams

v. Colvin, No. 3:13-CV-2158, 2014 WL 4918469, at *9 (M.D. Pa. Sept. 30, 2014)

(“A claimant must establish that a medically determinable impairment affects his or

her functioning during the relevant period, and simply having a past history of

impairment does not establish that the impairment is relevant to the claimant's

case”). Indeed, where the omitted condition had no effect on the ALJ’s ultimate

conclusion regarding the sequential analysis of impairments under the regulations,

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the Third Circuit has affirmed. Winters ex rel. Meinert v. Barnhart, 80 F. App'x 249,

252 (3d Cir. 2003).

Moreover, where the ALJ found several of B.C.B.’s mental impairments

severe at Step Two, any error in failing to directly address this acute depression

diagnosis would be harmless, Orr v. Comm’r Soc. Sec., 805 F. App’x 85, 88 (3d

Cir. 2020), particularly where the ALJ analyzed B.C.B.’s psychological impairments

and symptoms under listings which consider the same “paragraph B” criteria. (Tr.

52). Compare 20 C.F.R. Pt. 404 subpt. P, app. 1, § 112.04 (depressive disorders), to

§ 112.08 (personality and impulse-control disorders). See also Rembert v. Comm'r

of Soc. Sec., 142 F. App'x 570, 572 (3d Cir. 2005) (affirming where the ALJ did not

explicitly focus on any one listed impairment but reviewed and analyzed the record

to support conclusion that claimant’s impairments did not meet any of the listed

impairments). Further, as previously noted, the plaintiff has failed to explain how

this depression diagnosis would have affected the ALJ’s analysis of the six domains

of functioning or changed the outcome of the decision. See Winters ex rel, 80 F.

App'x at 252.

Ortiz also incorporates several arguments into the overarching contention that

the ALJ’s analysis of the evidence was flawed, and the decision is not supported by

substantial evidence. This attack on the ALJ’s overall evaluation of the evidence

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fails. As we have noted, an ALJ must consider six domains of functioning when

making a childhood disability determination: (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 Yourself; and (6) Health

and Physical Well-Being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). A child can only be

found disabled if the ALJ concludes the child exhibits either a “marked” limitation

in two of these six domains, or an “extreme” limitation in any single domain. 20

C.F.R. § 416.926a(d). A “marked” limitation must “interfere[] seriously with [the

child’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R.

§ 416.926a(e)(2). An “extreme” limitation, in turn, must “interfere[] very seriously

with [the child’s] ability to independently initiate, sustain, or complete activities.”

20 C.F.R. § 416.926a(e)(3).

In this case, while the academic, clinical, and opinion evidence confirms that

B.C.B. faces some learning challenges related to his ADHD and unspecified learning

disability, the ALJ properly accounted for any limitations in finding B.C.B. had a

marked limitations in understanding, remembering, or applying information. The

evidence simply did not reveal serious or very serious interference with B.C.B.’s

ability to perform in the remaining realms of functioning. For example, as the ALJ

pointed out, the evidence suggests that the behavioral issues reported at home are

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not evident in the school setting, he is noted to be cooperative with treatment,

interacts well with his teachers and peers, receives decent grades in school, had no

real discipline problems, and a teacher questionnaire indicated he had no problems

in attending and completing tasks. Further, there is no evidence he has any physical

challenges. Finally, the ALJ’s decision is fully supported by the opinions of four

State agency consultants who all noted that B.C.B. exhibited less than marked or no

limitations in all areas of functioning. Therefore, substantial evidence; that is, such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion, supported the ALJ’s disability determination.

At bottom, it appears that the plaintiff is requesting that this court re-weigh

the medical evidence and subjective testimony. This we may not do. See Chandler

v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v.

Perales, 402 U.S. 389, 401 (1971) (“Courts are not permitted to re-weigh the

evidence or impose their own factual determinations.”); see also Gonzalez v. Astrue,

537 F.Supp.2d 644, 657 (D. Del. 2008) (“In determining whether substantial

evidence supports the Commissioner’s findings, the Court may not undertake a de

novo review of the Commissioner’s decision and may not re-weigh the evidence of

the record.”) (internal citations omitted)). Rather, our task is simply to determine

whether the ALJ’s decision is supported by substantial evidence, a quantum of proof

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which is less than a preponderance of the evidence but more than a mere scintilla,

Richardson, 402 U.S. at 401, and “does not mean a large or considerable amount of

evidence, but rather such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Pierce, 487 U.S. at 565. Finding that this

deferential standard of review is met here, we conclude that a remand is not

appropriate for the purpose of further assessing this opinion evidence.

In sum, on its merits the ALJ’s assessment of the evidence in this case

complied with the dictates of the law and was supported by substantial evidence.

This is all that the law requires, and all that a claimant can demand in a disability

proceeding. Thus, notwithstanding the argument that this evidence might have been

viewed in a way which would have also supported a different finding, we are obliged

to affirm this ruling once we find that it is “supported by substantial evidence, ‘even

[where] this court acting de novo might have reached a different conclusion.’ ”

Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190–91 (3d Cir. 1986) (quoting

Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly,

under the deferential standard of review that applies to appeals of Social Security

disability determinations, we find that substantial evidence supported the ALJ’s

evaluation of this case and recommend that this decision be affirmed.

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IV. Conclusion

For the foregoing reasons, the decision of the Commissioner in this case will

be affirmed and the plaintiff’s appeal denied.

An appropriate order follows.

/S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: December 19, 2024

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