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Bradley v. Commissioner of Social Security

United States District Court, W.D. Michigan, Southern Division

December 21, 2016

ETHEL BRADLEY, o.b.o J.M.G., a Minor, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant,

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is a social security action brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security finding Plaintiff was no longer entitled to disability benefits. Section 405(g) limits the Court to a review of the administrative record, and provides that if the Commissioner's decision is supported by substantial evidence, it shall be conclusive. The Commissioner has found that J.M.G., the minor claimant, is no longer disabled within the meaning of the Act.

         STANDARD OF REVIEW

         The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).

         Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec'y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.

         PROCEDURAL POSTURE

         J.M.G. was twelve years of age on the date of the administrative law judge's (ALJ) decision. (PageID.54, 144.) Plaintiff first applied for Supplemental Security Income benefits on October 5, 2005. (PageID.261-264.) Finding J.M.G. was disabled due to speech and language deficits, this application was granted in a decision dated March 1, 2007, with an onset date of September 1, 2005. (PageID.57, 60.) A subsequent review determined that J.M.G. had experienced an improvement in his condition. (PageID.144-145). Accordingly, J.M.G.'s disability was deemed to have ended as of June 22, 2012. (PageID.144). Plaintiff thereafter requested an administrative hearing, and on February 18, 2015, appeared at a hearing during which time both Plaintiff and J.M.G. testified. (PageID.82-130.) On March 24, 2015, ALJ Michael Condon issued his decision finding that Plaintiff was no longer disabled. (PageID.54-82.) On January 13, 2016, the Appeals Council denied review, making it the Commissioner's final decision. (PageID.31-33.) This action followed.

         ALJ'S DECISION

         Federal law obligates the Commissioner to periodically review whether a disabled child continues to be eligible for disability benefits. See 42 U.S.C. § 1382c(a)(3)(H)(ii)(I). The Social Security regulations articulate a three-step sequential process by which determinations of continuing disability are made. See 20 C.F.R. § 416.994(a). The first step is to determine whether the child has experienced medical improvement[1] “in the impairment(s) [he] had at the time of [the] most recent favorable determination or decision.” 20 C.F.R. § 416.994(b)(1); Tubbs v. Comm'r of Soc. Sec., No. 1:11-cv-1046, 2013 WL 1305290, at *2 (W.D. Mich., Mar. 28, 2013). If the child has not experienced any medical improvement, his disability will be deemed to continue unless an exception to the medical improvement rule applies.[2] 20 C.F.R. § 416.994(b)(1); Tubbs, 2013 WL 1305290, at *2-3.

         If the child has experienced medical improvement, it must then be determined whether “the impairment(s) that [the Commissioner] considered at the time of [her] most recent favorable determination or decision still meets or equals the severity of the listed impairment it met or equaled at that time.” 20 C.F.R. § 416.994a(b)(2); Tubbs, 2013 WL 1305290, at *3. If the impairment(s) continues to meet or equal in severity the listed impairment in question, the claimant's disability will continue. Otherwise, the analysis proceeds to step three. 20 C.F.R. § 416.994a(b)(2); Tubbs, 2013 WL 1305290, at *3.

         At step three, the Commissioner must determine whether the claimant is currently disabled pursuant to the rules for determining disability for children. 20 C.F.R. § 416.994a(b)(3); Tubbs, 2013 WL 1305290, at *3. A child is considered disabled if he suffers from a severe impairment or combination of impairments which meet, medically equal, or functionally equal an impairment identified in the Listing of Impairments. 20 C.F.R. § 416.994a(b)(3); Tubbs, 2013 WL 1305290, at *3.

         Furthermore, when the Commissioner evaluates whether a claimant continues to qualify for benefits, the claimant is not entitled to a presumption of continuing disability. See Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Rather, the decision whether to terminate benefits must “be made on the basis of the weight of the evidence and on a neutral basis with regard to the individual's condition.” Id. Nevertheless, the burden of proof to establish that a claimant has experienced a medical improvement which supports a termination of benefits lies with the Commissioner. See, e.g., Kennedy v. Astrue, 247 F. App'x 761, 764-65 (6th Cir., Sept. 7, 2007); Couch v. Comm'r of Soc. Sec., 2012 WL 394878 at *10 (S.D. Ohio, Feb. 7, 2012).

         The ALJ observed that the most recent favorable determination finding that J.M.G. was disabled was the determination dated February 14, 2006. (PageID.60.) The ALJ further observed that as of this date, J.M.G. was found to suffer from a speech and language impairment which were found to functionally equal the listings. Specifically, J.M.G. had an extreme limitation in the domain of acquiring and using information. (PageID.60-61.) With respect to the subsequent termination of benefits, the ALJ found as follows:

The undersigned finds that the claimant's language issues are mild at this time and show evidence of improvement. On May 23, 2012, the claimant underwent a speech and language disability evaluation, and the results show improvement since the CPD. His Core Language yielded a low Average standard score of 91, which is a 27-percentile ranking. Receptive Language yielded a below-Average standard score of 81, which is a 10-percentile ranking. Expressive Language yielded an Average standard score of 90, which is a 39-percentile ranking. Language Memory yielded an Average standard score of 94, which is a 34-percentile ranking. Pragmatic language was functional for testing although mildly impulsive behavior was observed. His word level articulation yielded a Low Average standard Score of 86, which is a 7-percentile ranking. Stimulability for correct production of errored phonemes in isolation was 100 percent. Voice production and verbal fluency were both in the normal range. A rapid speech rate and reduced articulation precision were noted during connected speech. Conversational intelligibility with all listeners was 90 percent with known context and 80 percent with unknown context. Repetition improved intelligibility by 10 percent to 20 percent (Ex. 5F). The claimant's speech and language pathologist noted that the claimant last received speech and language services in 2006. She reported that the claimant had no speech or language problem that has ever been brought to her attention (Ex. 4F).
On June 1, 2012, the claimant['s] second grade teacher completed a Teacher Questionnaire regarding her observations of the claimant's functioning. In all of the functional domains, she reported that the claimant had no problems. She noted that almost all of the claimant's speech was understandable on the first attempt regardless of whether the topic was known or unknown. The teacher noted that she had no academic or behavioral issues with the claimant and that he is one of the top readers in her class. She reported that the claimant was very smart, very well behaved, very respectful, honest, and a “great kid” (Ex. 9E/13). On September 23, 2013, the school social worker completed a Teacher Questionnaire. Although she described other limitations that will be addressed below, her observations show an improvement in the speech impairment. She ...

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