Petty v. Comm'r of Soc. Sec. Admin.

TAMMARA PETTY, o/b/o T.A.P.N. Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

No. 4:21-cv-0033

United States District Court, N.D. Ohio, Eastern Division

April 20, 2022

SOLOMON OLIVER, DISTRICT JUDGE

REPORT AND RECOMMENDATION

AMANDA M. KNAPP, UNITED STATES MAGISTRATE JUDGE

Plaintiff Tammara Petty (“Plaintiff” or “Ms Petty”), on behalf of a minor child, T.A.P.N (“T.A.”), seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying the child's application for Supplemental Security Income (“SSI”). (ECF Doc. 1.) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2.

For the reasons set forth below, the undersigned recommends that the final decision of the Commissioner be VACATED and that the case be REMANDED, pursuant to 42 U.S.C. § 405(g) sentence four, for further proceedings consistent with this Report and Recommendation.

On remand, the ALJ should consider the record as a whole in assessing whether T.A. functionally equals the listings should accurately discuss the significant probative evidence, should resolve any conflicts in evidence, and should ensure that he builds an accurate and logical bridge between the evidence and the result.

I. Procedural History

On December 28, 2018, Plaintiff filed an application for SSI on behalf of her grandson, T.A.^[1] (Tr. 149.) She alleged T.A. had a disability onset date of October 25, 2016. (Id.) She alleged disability due to developmental delays, behavior issues, emotional problems, laryngomalacia (breathing condition), atopic dermatitis, GERD, blood in stool, excessive sweating, allergic rhinitis, gross motor delay, chronic constipation, and otogenic otalgia of both ears. (Tr. 162.) Plaintiff's application on behalf of T.A. was denied at the initial level (Tr. 93) and upon reconsideration (Tr. 101), and she requested a hearing (Tr. 105). On May 27, 2020, a hearing was held before an Administrative Law Judge (“ALJ”). (Tr. 28-58.)

On June 3, 2020, the ALJ issued a decision finding T.A. had not been under a disability within the meaning of the Social Security Act from December 28, 2018 through the date of the decision. (Tr. 14-23.) On November 3, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.) On January 7, 2021, Plaintiff filed a Complaint challenging the Commissioner's final decision. (ECF Doc. 1.) The parties have completed briefing in the case. (ECF Docs. 16, 18, 19.)

II. Evidence

A. Personal, Educational, and Vocational Evidence

T.A. was born in 2015, making him a preschooler under Social Security Regulations on the date the application was filed. (Tr. 18.) T.A. had not worked since December 28, 2018, the application date. (Id.)

B. Medical Evidence

Although the ALJ identified multiple severe physical and mental impairments (Tr. 18) and made findings as to six domains of functioning (Tr. 20-22), T.A.'s challenge in this appeal relates specifically to the ALJ's evaluation of the evidence relating to a single domain: “interacting and relating to others.” (ECF Doc. 16 pp. 1, 10, 12-18.) The evidence summarized herein is accordingly focused on evidence pertaining to that domain.

1. Relevant Treatment History

On January 8, 2018, a 6-month review from Pennsylvania Early Intervention (“Early Intervention”) noted that T.A. had “made fair progress,” but continued to be unwilling to eat or try new foods, eating only a few bites before he became distracted. (Tr. 354.) Although his vocabulary had “grown significantly,” T.A.'s family reported he was difficult to understand by unfamiliar people and became frustrated when others did not understand him. (Id.)

During an April 12, 2018 call discussing T.A.'s transition out of Early Intervention, T.A.'s family reported they remained concerned about T.A.'s articulation of words, eating enough calories, and his ability to cooperatively play with peers. (Tr. 348.) On May 29, 2018, an Early Intervention service coordinator and physical therapist made a joint home visit to T.A.'s grandmother and guardian, Ms. Petty. (Tr. 344.) Ms. Petty reported concerns with T.A.'s aggressive behaviors and refusal to comply with adults. (Id.)

On June 13, 2018, the Pennsylvania Office of Child Development and Early Learning completed an Evaluation Report. (Tr. 368-72.) T.A. was two years and seven months old at the time, and had received Early Intervention services for a year, including treatment by an occupational therapist (“OT”), physical therapist (“PT”), speech language pathologist (“SLP”), nutritionist, and special instruction from a visiting teacher. (Tr. 368, 371.) Ms. Petty reported concerns regarding T.A.'s behaviors, eating, speech, and diagnosis of tibial torsion. (Tr. 371.) The family reported he was easily distracted during meals and did not eat well, instead drinking two Pediasure a day. (Tr. 372.) They reported T.A. was loving, friendly, and wanted to take care of people, but frequently said “no” and refused to comply with directions, with larger reactions including screaming and running off when more people were around. (Id.) Ms. Petty reported that T.A. would bang his head on the floor, cry, and hit and kick family members when frustrated. (Tr. 372, 378.) With respect to cognitive development and communication, it was reported that T.A. used a variety of words, mostly in one-word utterances, and combined gestures with speech to seek attention and make requests. (Tr. 377-78.) He could follow one step directions if he wanted to, and was able to be comforted by Ms. Petty. (Id.) With regard to adaptive development, Ms. Petty reported T.A. did not show awareness of household dangers such as a hot stove or knife, and did not like a variety of foods because of sensory sensitivities. (Tr. 381.) Ms. Petty also reported T.A. was disturbed by too much light or touching, did not sit still, was impulsive, refused to do what he was told, had broken items, bit, kicked, and hit others, and could not comfort himself when he became upset. (Tr. 382.) T.A. was evaluated using the Battelle Developmental Inventory (“BDI”) and scored greater than two standard deviations below mean in relevant areas, including communication development, adaptive development, receptive expressive language, and cognitive development. (Tr. 383.)

On July 10, 2018, T.A. had an initial visit with pediatric gastroenterologist Sapana Shah, M.D. at Children's Hospital of Pittsburgh. (Tr. 710.) Dr. Shah noted T.A. had a history of a sensory processing disorder, developmental delay, reflux, feeding difficulties, constipation, and hematochezia (blood in stool). (Id.) Examination findings were normal except that T.A. was noted to have delayed verbal development. (Tr. 712.) Dr. Shah indicated T.A. was cooperative with the exam and showed appropriate behavior and interaction. (Tr. 712-13.)

On August 14, 2018, a physical therapist providing Early Intervention therapy in T.A.'s home described T.A. as “very oppositional,” including: “banging his head off the floor when he didn't get his way”; throwing things at people; and “demonstrat[ing] sensory seeking behavior like going on the floor.” (Tr. 425.) Two days later, T.A. “did well” when an occupational therapist encouraged him to touch and mold playdoh to accustom him to unfamiliar textures. (Tr. 426.) On August 21, 2018, T. A. greeted his speech and language pathologist happily and “played nicely throughout” their session. (Tr. 427.) The following day, his physical therapist again described him as “challenging” and indicated he was “sensory seeking throughout the session” and “throwing himself around.” (Tr. 428.) The physical therapist noted his “behavior ha[d] worsened over the past month.” (Id.) Ms. Petty reported that T.A. visited the zoo on August 26, 2018, and “had no behaviors at the zoo.” (Tr. 432.) The following day, he initially did well at his Early Intervention session, but then became distracted with blocks and refused to do anything else. (Id.) He threw himself on the floor twice that day and was very tired. (Id.) A nutritionist visited the same day and noted T.A. “has been progressing in all areas of development except eating.” (Tr. 431.)

On September 11, 2018, T.A. reluctantly began a session of physical therapy at his home in an unhappy mood, continued to demonstrate challenging behavior “and thr[ew] himself into people/furniture when sensory seeking.” (Tr. 434.) Three days later, T.A. greeted his speech language pathologist “happily” and “played nicely throughout,” although he “became a little bit active periodically.” (Tr. 435.) On that same date, T.A. had a follow-up visit with Dr. Shah.

(Tr. 668.) Examination results were in the normal range except for delayed verbal development. (Tr. 670.) He was cooperative and demonstrated appropriate behavior and interaction. (Tr. 671.)

At a physical therapy session on September 18, 2018, the therapist “attempted to give [T.A.] deep pressure input,” but he threw himself into furniture and “did not tolerate much handling.” (Tr. 436.) The same day, T.A. greeted his speech and language pathologist excitedly, “played nicely throughout [the] session,” and “was able to use words [and] phrases to meet his needs throughout [the] session.” (Tr. 437.)

When the physical therapist arrived at his home on October 9 2018, T.A. was “ready to play” and complied with the therapist's instructions every time. (Tr. 439.) The next day, T.A. greeted his speech and language pathologist happily, and was “excited to play” and “extremely active.” (Tr. 440.) At an October 16, 2018 physical...