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Kilbert v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

September 22, 2017

NANCY A. BERRYHILL, [1] Defendant.



         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff was not disabled, as defined by the Social Security Act, and was thus, not entitled to Child Supplemental Security Income (“SSI”). For the reasons set forth below, the decision of the Commissioner will be reversed and remanded.


         On December 12, 2012, Tina Thompson filed an application for SSI on behalf of her son, Westey Kilbert, Jr., (“Plaintiff”) who was born on June 2, 1997, and thus a minor child at the time the application was filed. Plaintiff had been previously found not disabled on November 6, 2012.

         Disability in the present SSI application was claimed based on learning disability, attention deficit disorder (“ADD”), a learning disorder, anxiety, and autism. After the application was denied at the initial administrative level, Plaintiff requested an evidentiary hearing before an administrative law judge (“ALJ”), which was held on October 2, 2014. Plaintiff (then 17 years old and in 12th grade) and his mother testified at the hearing. On November 25, 2014, the ALJ issued her decision finding that Plaintiff was not disabled under the Social Security Act. Plaintiff's request for review by the Appeals Council of the Social Security Administration was denied on January 16, 2015. Plaintiff has thus exhausted all administrative remedies, and the ALJ's decision stands as the final agency action now under review.

         Here, Plaintiff argues that the ALJ erred when she determined that Plaintiff had a less than marked limitation in his ability to interact and relate with others. Plaintiff asks that the decision of the Commissioner be reversed and the case remanded for further consideration.

         School and Medical Records, and Evidentiary Hearing

         The Court adopts Plaintiff's unopposed recitation of the facts of this case, as set forth in his Statement of Material Facts (ECF No. 12-1), along with Defendant's unopposed Statement of Additional Material Facts (ECF No. 15-2). Together, these facts present a fair and accurate summary of the record, including the testimony at the evidentiary hearing. The Court will discuss specific facts as they are relevant to the parties' arguments.

         Statutory and Regulatory Framework for Child's SSI

         For a child under the age of 18 to be considered disabled and eligible for Child's SSI under the Social Security Act, he must have a medically determinable physical or mental impairment that 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's regulations set out a three-step sequential evaluation process to determine whether a child's impairment or combination of impairments is disabling. The Commissioner begins by deciding whether the child is engaged in substantial gainful activity. If so, benefits are denied. If not, at step two, the child's impairment is evaluated to determine whether it is severe. If the child's impairment is not severe, there is no disability. If the impairment is severe, at step three, the ALJ compares the impairment to the deemed-disabling childhood impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the child's impairment meets, medically equals, or functionally equals a listed impairment, the child is disabled. 20 C.F.R. § 416.924; Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 856 (8th Cir. 2003).

         A child's impairment functionally equals a listed impairment if there is an “extreme” limitation in one of six functional domains, [2] or a “marked” limitation in at least two of the domains. 20 C.F.R. § 416.926a(b)(1); Hudson ex. rel Jones v. Barnhart, 345 F.3d 661, 665 (8th Cir. 2003). A marked limitation is one that “interferes seriously” with the child's ability to independently initiate, sustain, or complete domain-related activities.20 C.F.R. § 416.926a(e)(2)(i). Not every activity in a domain must be markedly limited in order for the child's functioning in the domain as a whole to be considered so. Id. A marked limitation is also defined as “the equivalent of the functioning” expected to be found “on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.”[3] Id.

         In the only domain at issue in this case-ability to interact and relate with others-the ALJ is to consider how well the child initiates and sustains emotional connections with others, develops and uses the language of his community, cooperates with others, complies with rules, responds to criticism, and respects and takes care of the possessions of others. 20 C.F.R. § 416.926a(i). By the time the child reaches adolescence (age 12 to attainment of age 18), the child should be able to initiate and develop friendships with children who are his age and to relate appropriately to other children and adults, both individually and in groups. He should begin to be able to solve conflicts between himself and peers or family members or adults outside his family. The child should recognize that there are different social rules for him and his friends and for acquaintances or adults. The child should be able to intelligibly express his feelings, ask for assistance in getting his needs met, seek information, describe events, and tell stories, in all kinds of environments (e.g., home, classroom, sports, extra-curricular activities, or part-time job), and with all types of people (e.g., parents, siblings, friends, classmates, teachers, employers, and strangers). 20 C.F.R. § 416.926a(i)(2)(v).

         Examples of limited functioning in interacting and relating with others include that the child has no close friends, or friends that are all older or younger than the child; avoids or withdraws from people the child knows; has difficulty playing games or sports with rules; and has difficulty communicating with others, i.e., in using verbal and nonverbal skills to express himself, in carrying on a conversation, or in asking others for assistance. 20 C.F.R. § 416.926a(i)(3).

         ALJ's ...

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