Opinion
CIVIL ACTION NO. 3:17-CV-0392
10-16-2018
MICHAEL HOVERMALE for J.T.H., a minor Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of Social Security Defendant.
(Chief Judge Conner)
( ) REPORT AND RECOMMENDATION
I. Introduction
This is an action brought under Section 42 U.S.C. §1383(c) of the Social Security Act, 42 U.S.C. §405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Michael Hovermale's claim for Supplemental Security Income under Title XVI of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, it is recommended that the final decision of the Commissioner of Social Security denying J.T.H.'s claim be VACATED and REMANDED.
Michael Hovermale ("Hovermale") is acting on behalf of his minor daughter, J.T.H., who shall be referred to as the plaintiff/claimant herein.
II. Procedural History and Background
On December 2, 2013, J.T.H. filed a claim for Supplemental Security Income under Title XVI of the Social Security Act, alleging a disability onset date of October 1, 2013. Tr. 93. J.T.H. alleged that she is disabled due to speech and language delays, a learning disability, and an adjustment disorder. Doc. 10 at 2. J.T.H. was born on January 22, 2008. Tr. 22. On December 2, 2013, the date of her application, J.T.H. was classified as a preschooler. Tr. 22. On May 14, 2015, the date of J.T.H.'s disability hearing, J.T.H. was categorized as a school-age child. Id. At the time of her hearing, J.T.H. was seven years old, and was repeating kindergarten for the second time. Doc. 10 at 2.
The actual date on J.T.H.'s application for Supplemental Security Income is December 5, 2013. The ALJ, however, identifies December 2, 2013, as the date of the application. The Court will use the December 2, 2013 date.
J.T.H. was not allowed to testify or appear at the hearing because "[p]rior to the hearing, Plaintiff's father and counsel were informed" that it is the administrative law judge ("ALJ") Randy Riley's "standard practice not to meet child claimants." Doc. 10 at 22. As a result, with the assistance of counsel, Hovermale appeared and testified at the hearing before the ALJ on May 14, 2015. Tr. 38-48.
At the hearing, the ALJ questioned Hovermale about J.T.H.'s progress in school and asked how J.T.H. was coping with her mother's absence. Tr. 38-42. Hovermale testified that in the past two years J.T.H. has only seen her mother for roughly twelve hours. Tr. 42. He claimed that J.T.H's mother only comes to see J.T.H. "like maybe two hours every six months and then doesn't show up for a while," and that J.T.H. has a separation disorder and abandonment issues as a result. Tr. 42.
J.T.H.'s mother left J.T.H. and Hovermale in August 2014. Doc. 10 at 3.
According to Hovermale, J.T.H. has been struggling in school. Tr. 39. He testified that even though it is her second time in kindergarten, "she's still not up to par with the normal kids." Tr. 39. Hovermale claimed that it is extremely difficult to understand J.T.H. and that he and others "constantly ask her to repeat things." Tr. 39. He explained that J.T.H. is easily frustrated because she thinks "she's saying something that makes sense," but then people keep asking her to repeat what she has said. Tr. 39.
Hovermale testified that J.T.H. does not "have a lot of friends," that she is bullied at school, that other kids make fun of the way she speaks, and that she comes home from school crying about kids taunting her. Tr. 39-41. He repeatedly stated that it's not J.T.H.'s fault that she has been struggling with school. Tr. 42. He remarked that he knows that she is "doing her best in school" and that "[s]he tries hard, but that he "can't get her to understand that it's not her fault." Tr. 42. Hovermale claimed that J.T.H. has a learning disability, is lacking in reading skills, has poor writing, is very difficult to understand, particularly "when she tries to complete a full sentence," has trouble focusing for more than thirty seconds, and is slow. Tr. 38-41.
On June 11, 2015, the ALJ denied J.T.H.'s application for benefits in a written decision. Tr. 16-31. The ALJ concluded that J.T.H. "has not been disabled, as defined in the Social Security Act, since December 2, 2013, the date the application was filed." Tr. 31. J.T.H. appealed the ALJ's decision to the Appeals Council, but the Appeals Council denied J.T.H.'s request for review on February 17, 2017. Tr. 1. The denial by the Appeals Council makes the ALJ's June 11, 2015 decision the final decision of the Commissioner subject to judicial review.
On March 2, 2017, Hovermale, on behalf of J.T.H., initiated this action by filing a complaint. Doc. 1. Hovermale claims that his daughter is disabled and that the ALJ's decision is neither supported by substantial evidence, nor based on the correct application of the law. Doc. 1 at 2. As relief, Hovermale requested that the Court reverse the ALJ's decision and award benefits or remand the case to the Commissioner for a new hearing. Id. On May 19, 2017, the Commissioner filed an answer to Hovermale's complaint. Doc. 8. In her answer, the Commissioner maintained that the decision denying J.T.H.'s application for benefits is correct, is in accordance with the law and regulations, and that the Commissioner's findings of fact are supported by substantial evidence. Doc. 8 at 3-4. Together with her answer, the Commissioner filed a certified transcript of the administrative proceedings in this case. Doc. 9. This matter has been fully briefed by the parties and is ripe for decision. Doc. 10; Doc. 11; Doc. 12.
III. Legal Standards
A. Substantial Evidence Review - the Role of This Court
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); id. § 1383(c)(3); 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 (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). 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 J.T.H. 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 [Commissioner]'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 . . . .").
B. Initial Burdens of Proof, Persuasion, and Articulation.
To receive Supplemental Security Income pursuant to Title XVI of the Social Security Act, a claimant under the age of eighteen must demonstrate that he or she has "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i); see also 20 C.F.R. § 416.906. A claimant is generally responsible for proving disability and for submitting evidence to that effect. See 20 C.F.R. § 416.912(a) ("In general, you have to prove to us that you are . . . disabled").
A new version of 20 C.F.R. §416.912 has been published since the ALJ issued his decision in this case. After reviewing these changes, the Court notes that the updated versions do not materially alter the proposition that a claimant bears the initial burden of demonstrating that he or she cannot engage in other work, or that the Commissioner must provide evidence about the existence of other work in the national economy that the claimant can perform. See 20 C.F.R. §416.912(a)(1) (effective Mar. 27, 2017); 20 C.F.R. §416.912(b)(3) (effective Mar. 27, 2017). Several of the relevant regulations have been amended since the ALJ issued his decision in this case. The Court cites to the regulations that were in effect on the date of the ALJ's decision, specifically June 11, 2015. --------
The ALJ follows a three-step sequential-evaluation process to determine whether a child claimant is disabled. See 20 C.F.R. § 416.924(a). Through this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has an impairment or combination of impairments that is severe; and (3) whether the claimant's severe impairment (or combination of impairments) meets, medically equals, or functionally equals one of the disability listings. Id.
Should the analysis proceed to step three, the ALJ must determine not only whether a claimant's impairment meets or medically equals a disability listing, but also whether a claimant's impairment is "functionally equivalent" to a disability listing in terms of six "domains of functioning." 20 C.F.R. § 416.926a(b)(1). These domains include: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical wellbeing. Id. An impairment is functionally equivalent to a disability listing if it results in a "marked" limitation in two domains or an "extreme" limitation in one domain. 20 C.F.R. § 416.926a(a). In making this assessment, the ALJ considers the effects of all of a claimant's impairments, including those impairments that the ALJ does not identify as severe at step two of the analysis. Id.
The ALJ's disability determination must also meet certain basic substantive requirements. Most significant is the requirement that the ALJ adequately explain the legal and factual basis for the disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must provide "a clear and satisfactory explication of the basis on which" his or her decision rests. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved, and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-07. In other words, "[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). Further, "[a]lthough the ALJ may weigh the credibility of the evidence, the ALJ must give some indication of the evidence which he or she rejects and his or her reason(s) for discounting such evidence. In the absence of such an indication, the reviewing Court cannot tell if significant probative evidence was not credited or simply ignored. Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (internal citations and quotations omitted).
IV. The ALJ's Decision
The ALJ evaluated J.T.H.'s claims at each step of the sequential evaluation process. Tr. 22-30. At step one, the ALJ found that J.T.H. has not engaged in substantial gainful activity since her application date of December 2, 2013. Tr. 22. Next, at step two the ALJ found that J.T.H. has medically determinable severe impairments of speech and language delays. Id. Then, at step three the ALJ determined that during the relevant period J.T.H. does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the version of 20 C.F.R. Part 404, Subpart P, Appendix 1 in effect on the date the ALJ issued his decision. Tr. 22. Additionally, the ALJ determined that J.T.H. does not have an impairment or combination of impairments that functionally equals the severity of the listings. Id. The ALJ stated that in making his determination he has "considered all of the relevant evidence in the case record." Tr. 22. Per the ALJ:
all of the relevant evidence includes objective medical evidence and other relevant evidence from medical sources; information from other sources, such as school teachers, family members, or friends; the claimant's statements (including statements from the claimant's parent(s) or other caregivers); and any other relevant evidence in the case record, including how the claimant functions over time and in all settings (i.e., at home, at school, and in the community). Tr. 23.The ALJ found "that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms" but stated that Hovermale's "statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible." Tr. 24.
Addressing the six domains of functioning, the ALJ concluded that "while the record supports that the claimant's speech/language impairment causes difficulties in some of the functional domains, these [difficulties within the functional domains] do not rise to marked or extreme levels." Tr. 24. More specifically, the ALJ found that J.T.H. has: (1) less than marked limitation in acquiring and using information; (2) less than marked limitation in attending and completing tasks; (3) less than marked limitation in interacting and relating with others; (4) no limitation in moving about and manipulating objects; (5) no limitation in the ability to care for herself; and (6) no limitation in health and physical well-being. Tr. 25-31. Based on this analysis, the ALJ determined that J.T.H. "does not have an impairment or combination of impairments that result in either marked limitations in two domains of functioning or extreme limitation in one domain of functioning." Tr. 31. Thus, the ALJ found J.T.H. not disabled. Id.
V. Analysis
J.T.H. contends that the ALJ's decision contains four errors. Doc. 10 at 10. She argues that the ALJ erred: (1) in finding J.T.H's adjustment disorder a non-severe impairment; (2) in finding that J.T.H's speech impairment does not medically equal Listing 111.09; (3) in finding that J.T.H. has less than marked impairments in acquiring and using information, attending and completing tasks, and interacting and relating with others; and (4) in declining to allow J.T.H. to appear at the hearing and to testify on her own behalf, violating her due process rights. Id. In this instance, having concluded that J.T.H's case should be remanded to afford J.T.H. the opportunity to appear and testify on her own behalf the Court will not address J.T.H.'s remaining claims of error. "A remand may produce different results on these claims, making discussion of them moot." Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. Dec. 30, 2015) (Cohn, M.J.), report and recommendation adopted, 156 F. Supp. 3d at 582 (M.D. Pa. Jan. 13, 2016) (Kane, J.).
A. Whether the ALJ erred in Declining to Allow J.T.H. to Appear at the Hearing and to Testify on her Own Behalf.
J.T.H. asserts that the ALJ erred when he forbade J.T.H. from appearing and testifying at her own hearing on May 14, 2015. Doc. 10 at 22. According to J.T.H., she "was at the hearing office and was ready and willing to testify" but was prevented from doing so by the ALJ. Id. J.T.H. claims "[h]er testimony in this case was of particular importance as the primary impairment at issue [was her] speech and language impairment." Id. The Court agrees that J.T.H.'s testimony is an important part of the evidentiary record, which the ALJ erroneously prevented J.T.H. from submitting. See Cotter, 642 F.2d at 704 (stating that "[t]he ALJ has a duty to hear and evaluate all relevant evidence in order to determine whether an applicant is entitled to disability benefits").
The Commissioner argues that because J.T.H.'s counsel did not object to the ALJ's policy during the hearing that J.T.H. has waived her argument to do so now. The Commissioner is mistaken, as the claimant cannot waive the ALJ's duty to afford the claimant a full and fair hearing, or waive the ALJ's duty to adequately develop the record. See Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (discussing how "Social Security proceedings are inquisitorial rather than adversarial" and that "[i]t is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits"); Saez v. Colvin, 216 F. Supp. 3d 497, 514 (M.D. Pa. 2016) (remarking how "[t]he Third Circuit has repeatedly emphasized the special nature of proceedings for disability benefits" and that "the agency must take extra care in developing an administrative record and in explicitly weighing all evidence").
The Commissioner argues that the ALJ "afforded [J.T.H.] a 'full and fair' hearing because [J.T.H.'s] counsel had no objections to the records submitted into evidence" and because "[t]he ALJ gave [J.T.H's] counsel an opportunity to question [J.T.H's father]." Doc. 11 at 26. In Social Security cases, ALJs have a duty to fully and fairly develop the record. Richards v. Colvin, 223 F. Supp. 3d 296, 307 (M.D. Pa. 2016); Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995); see also Robaczewski v. Colvin, No. 4:14-CV-01686, 2015 WL 4930115, at *9 (M.D. Pa. Aug. 18, 2015) (explaining that because an "ALJ did not fulfill her duty to fully develop the record" the Court held that "[i]n the absence of a record fully and fairly developed, the Court must remand the case"). Thus, the ALJ providing an opportunity for J.T.H's counsel to question J.T.H.'s father during the hearing does not cure the ALJ's error that J.T.H. herself was barred from testifying. Doc. 10 at 22. See Charlier, ex rel. Charlier v. Colvin, No. CIV.A. 13-1661, 2014 WL 5713272, at *3 (W.D. Pa. Nov. 5, 2014) (finding that the "ALJ did not adequately develop the record" when he forbade a thirteen-year-old minor from testifying about his impairments unless the child's mother left the room). Additionally, the Hearings Appeals and Litigation Manual ("HALLEX"), which is not binding on the Agency or the Courts but provides insight on child disability testimony, states that the ALJ "should always allow the child to testify if the child or the child's representative, parent, guardian, etc. so requests." HALLEX I-5-4-30. HALLEX further explains that:
the fact that a child is a minor, and may, therefore, be considered incompetent to present testimony in formal court proceedings, does not preclude the child from testifying in our [disability] proceedings. Id.
Furthermore, neither party has pointed to any statute, regulation, rule, or policy that would prohibit J.T.H. from testifying. Moreover, case law belies such a policy as children often testify in their own Social Security cases. See Ortiz on behalf of A.L. v. Berryhill, No. 3:16-CV-01613, 2017 WL 9324737, at *1 (M.D. Pa. Aug. 11, 2017), report and recommendation adopted sub nom. Ortiz on Behalf of A.L. v. Colvin, No. 3:16-CV-1613, 2018 WL 2169963 (M.D. Pa. May 10, 2018) (describing nine-year-old A.L.'s testimony at his Social Security Income (SSI) hearing); Barlet v. Berryhill, No. 3:17-CV-278, 2017 WL 4180025, at *1 (M.D. Pa. Sept. 21, 2017) (detailing the testimony eleven-year-old Elizabeth Barlet gave to the ALJ during her SSI hearing); Rios v. Barnhart, 365 F. Supp. 2d 637, 639 (E.D. Pa. 2005) (stating that eleven-year-old Andre Alvarez testified to the ALJ at his SSI hearing); Jones v. Berryhill, No. CV 16-6393, 2017 WL 4170353, at *1 (E.D. Pa. Sept. 20, 2017) (discussing how the ten-year-old claimant testified to the ALJ at his SSI hearing); Johnson v. Astrue, 563 F. Supp. 2d 444, 449 (S.D.N.Y. 2008) (recounting the testimony that eight-year-old Theorian gave to the ALJ at his SSI hearing).
Here, J.T.H., her father, and her representative counsel desired and planned for J.T.H. to testify. Doc. 10 at 22. J.T.H.'s father testified at the hearing that J.T.H. has a short attention span, is "very difficult" to understand, and has "really, really bad speech." Tr. 38-41. By forbidding J.T.H. from testifying and demonstrating first-hand the degree to which her speech and language impairments affect her, the ALJ thwarted his own ability to adequately evaluate the relevant evidence and to fully develop the record. Thus, the decision of the Commissioner should be remanded to afford J.T.H. the opportunity to testify.
VI. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that:
1. Final Judgment should be entered in favor of J.T.H. and against the Commissioner of Social Security as set forth in the following paragraph;
2. The final decision of the Commissioner of Social Security denying J.T.H.'s application for benefits should be VACATED and this matter
should be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. §405(g) to conduct a new administrative hearing.The parties are further placed on notice that pursuant to Local Rule 72.3:
3. This matter should not be returned to ALJ Randy Riley on remand. A new administrative hearing should be conducted with an alternate ALJ.
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or his discretion or where required by law, and may consider the record developed before the magistrate judge, making his or his own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Submitted October 16, 2018
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge