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I.V. v. Berryhill

United States District Court, D. Massachusetts

August 8, 2017

I.V., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         The mother of Plaintiff I.V. filed a claim for supplemental security income (“SSI”) with the Social Security Administration (“SSA”) on behalf of I.V. R. at 174.[1] Pursuant to the procedures set forth in the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), I.V. brought this action for judicial review of the final decision of Nancy A. Berryhill, [2] Acting Commissioner of the SSA (“the Commissioner”), issued by an Administrative Law Judge (“ALJ”) on January 23, 2015, denying her claim. D. 14. Before the Court are I.V.'s motion to remand, D. 14, and the Commissioner's motion to affirm the ALJ's decision, D. 18. For the reasons explained below, the Court DENIES the Commissioner's motion to affirm and ALLOWS I.V.'s motion to remand.

         II. Factual Background

         IV. was born on June 15, 1997, and she was an adolescent when the application was filed on June 15, 2012. R. at 19. Her alleged disability onset date was May 1, 2009. R. at 174. IV. alleged Type 1 Juvenile Diabetes, Depression and related conditions. R. at 196; D. 1 at 1.

         III. Procedural Background

         IV. filed her application for SSI benefits on June 15, 2012. R. 19. After initial review, the SSA denied her claims on August 17, 2012. R. at 101. Upon reconsideration, the SSA again denied her claims on April 9, 2013. R. at 105. On May 16, 2013, IV. filed a timely request for a hearing before an ALJ. R. at 108. A hearing was held before the ALJ on January 30, 2014. R. at 41-47. A second ALJ hearing was held on October 28, 2014. R. at 48-77. In a written decision, dated January 23, 2015, the ALJ found that IV. was not disabled within the definitions of the Social Security Act and denied her claims. R. at 16-35. On April 21, 2016, the Appeals Council denied a request to review I.V.'s claim, rendering the ALJ's decision the Commissioner's final decision. R. at 1-5.

         IV. Discussion

         A. Legal Standards

         1. Standard for Entitlement to Social Security Disability Insurance Benefits and Supplemental Security Income

         Social Security regulations set out a three-step evaluation to determine whether a child under the age of 18 is disabled within the meaning of Title XVI of the Act. 20 C.F.R. § 416.924(a).

         All three steps are not applied to every applicant; the determination may be concluded at any step of the process. See id. At the first step, if the child is engaged in gainful activity, the child is not disabled. 20 C.F.R. § 416.924(b). At the second step, if the child does not possess a severe medically determinable impairment or combination of impairments, the child is not disabled. 20 C.F.R. § 416.924(c). At the third step, the child's impairment or combination of impairments must meet, medically equal, or functionally equal any of the listings set forth in the disability regulations at 20 C.F.R. § 404, Subpart P, Appendix 1 (“Appendix 1”) for the child to be found disabled. 20 C.F.R. §§ 416.924(d), 416.925(a).

         An impairment or combination of impairments meets a listing in Appendix 1 if the objective medical and other findings satisfy the specific criteria set forth in the listing, and is expected to result in death or last for at least twelve continuous months. 20 C.F.R. § 416.925(c)(3). An impairment or combination of impairments medically equals a listing if “it is at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 416.926(a).

         A child's impairment or combination of impairments functionally equals a listing if the impairment rises to “listing-level severity; i.e., it must result in ‘marked' limitations in two domains of functioning or an ‘extreme' limitation in one domain.” 20 C.F.R. § 416.926a(a). The six domains of functioning (“domain” or “domains”) concern the child's age-appropriate functioning in: 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 himself; and 6) health and physical well-being. 20 C.F.R. §§ 416.926a(b)(1)(i)-(vi).

         In assessing whether the child has a “marked” or “extreme” limitation, the ALJ must consider the functional limitations from all medically determinable impairments, including impairments that are not severe. Id. The regulations define a “marked limitation” in a domain as one that “interferes seriously” with a child's ability to “independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). An “extreme limitation” in a domain is one that is more than marked and interferes “very seriously” with a child's ability to “independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). 2. Standard of Review The Court may enter a judgment affirming, modifying, or reversing the final decision of the Commissioner. See 42 U.S.C. §§ 405(g), 1383(c)(3). The court reviews questions of law de novo, but must defer to the ALJ's findings of fact if they are supported by substantial evidence. See Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000) (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). In applying the substantial evidence standard, the court must be mindful that it is the province of the ALJ, and not the Court, to determine issues of credibility, resolve conflicts in the evidence and draw conclusions from such evidence. See id.

         The ALJ's findings of fact, however, “are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35 (citations omitted). Thus, if the ALJ made a legal or factual error, Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (citation omitted), the Court may reverse or remand such decision to consider new material evidence or to apply the correct legal standard. See 42 U.S.C. § 405(g).

         B. Before the ALJ

         1. Medical History

         a) Type 1 Diabetes Mellitus

         In May 2009, then 11 year-old IV. was diagnosed with Type 1 diabetes mellitus. R. at 270. Over time since that diagnosis, doctors have suspected that IV. was not receiving all insulin as prescribed. Id I.V.'s mother and I.V., however, denied this possibility. See, e.g., id.; R. at 678, 711. Generally, I.V.'s mother or the school nurse gave her insulin injections in both the upper and lower extremities and on the anterior abdominal wall. R. at 678. IV. also gave herself some doses under supervision. Id IV.'s insulin dosage has been revised numerous times. See, e.g., R at 661, 672, 686.

         In July 2011, IV. went to Boston Children's Hospital's (“Children's”) Emergency Department due to vomiting and large ketones in urine, R. at 618, but her lab results were consistent with acidosis, R at 621.

         In September 2011, she was admitted to the intensive care unit (“ICU”) at Children's for diabetic ketoacidosis (“DKA”) due to an acute onset of vomiting and some abdominal pain. R. at 614, 617. IV. denied missing any insulin doses. R at 614.

         In October 2011, I.V.'s insulin dosage was increased because IV. reported hyperglycemia in the afternoon. R at 672.

         In December 2011, IV. was admitted to Children's from DKA due to vomiting and hyperglycemia. R. at 611. Dr. Amy Levenson wrote that it was possible that there was an omission of insulin over the past few days and inadequate administration of insulin once IV. became ill that led to IV. developing DKA. R at 722.

         On April 12, 2012, Dr. Joseph Wolfsdorf wrote that I.V.'s insulin dose had significantly increased. R. at 658. He encouraged I.V. to consider switching to an insulin pump and discussed the possibility of using Lantus or Levemir insulin as alternatives to NPH insulin. Id. Eight days later, on April 20, 2012, I.V. was admitted to Children's due to abdominal pain, vomiting, hyperglycemia and ketones in her blood. R. at 607. As a result of her persistently high glucose and ketonemia, which may have represented an adequate insulin administration at home, R. at 609, Dr. Elizabeth Hart and Dr. Sanjeev Mehta adjusted I.V.'s insulin regimen to long-acting insulin at lunchtime to be given under nursing supervision. R. at 718.

         In August 2012, Dr. Subbiah Doraiswami, an advising physician to the Disability Determination Service (“DDS”), assessed I.V. for her diabetes impairment and found that I.V. would have a “less than marked” limitation in the domains of acquiring and using information and attending and completing tasks as well as a “marked” limitation in the domain of interacting and relating with others with no limitations in the remaining domains. R. at 78-85.

         In November 2012, I.V. was admitted to Children's for DKA due to abdominal pain, nausea and vomiting. R. at 617, 711. Dr. David T. Breault agreed with Dr. Jonathan Swartz that “insulin omission is the most likely etiology of her DKA.” R. at 713, 714. I.V. elected begin to take Lantus at 9:00 p.m. so that her mother could administer it to her. R. at 714. Later that month, I.V. and her mother discussed insulin pump therapy with Jennifer Rein, a licensed independent clinical social worker, at Children's. R. at 831. Rein thought that I.V. “could be a candidate for insulin pump therapy but that it may be best to work on improving basic diabetes skills and further decrease [I.V.'s] HbA1c before seriously considering transitioning to the pump.” Id.

         In January 2013, I.V. was admitted to Children's for DKA due to abdominal pain, nausea and vomiting. R. at 596. Dr. Ian Zenlea wrote that “given the pattern of repeated admissions due to hyperglycemia and DKA without clear etiologies, we strongly suspect, insulin, specifically Lantus, omission.” R. at 708. Dr. Lisa Swartz Topor agreed that “insulin omission is the most likely etiology for today's episode of DKA.” R. at 710.

         In April 2013, I.V. was admitted to Children's due to body aches and abdominal pain. R. at 522. Due to the risk for DKA, I.V. was sent for further evaluation, hydration and insulin administration to Children's Emergency Department. Id. On April 4, 2013, Dr. John Jao, an advising physician to the DDS, assessed I.V. for her diabetes impairment and found that I.V. would have a “less than marked” limitation in the domains of acquiring and using information, attending and completing tasks, and health and physical well-being, as well as a “marked” limitation in the domain of interacting and relating with others with no limitations in the remaining domains. R. at 89-97.

         In August 2013, I.V. was admitted to Children's for DKA due to abdominal pain, vomiting and hyperglycemia. R. at 582. Drs. Iman Al-Gadi and Kim Shams wrote, “[I.V.'s] high hemoglobin A1c suggests poor compliance with her insulin regimen” but that “[i]t is also possible that she may have an element of insulin resistance related to her [PCOS] or related to being generally poorly controlled over a long period.” R. at 700. Dr. Melissa Crocker agreed that I.V. having had multiple admissions for DKA and being on very large doses of insulin “suggest noncompliance, although there is likely an element of insulin resistance both from her chronic hyperglycemia and possibly related to her PCOS.” R. at 701.

         In February 2013, I.V. was again admitted to Children's due to abdominal pain and nausea. R. at 591. Dr. Sarah Pitts thought polycystic ovarian syndrome (“PCOS”) was a likely diagnosis, R. at 528, that was ...


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