# Ortiz v. Kijakazi

> District Court, M.D. Pennsylvania · December 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10764410

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10764410

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.
1
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
2
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).
3
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-

4
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

5
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)

6
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.

7
(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

11
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).

12
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
13
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
14
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.
17
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
21
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

26
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

27
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10764410. Public record. Not legal advice.