United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
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
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,  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.
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.
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.
Standard for Entitlement to Social Security Disability
Insurance Benefits and Supplemental Security
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. §
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),
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).
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. §§
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.
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.
Before the ALJ
Type 1 Diabetes Mellitus
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.
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.
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.
October 2011, I.V.'s insulin dosage was increased because
IV. reported hyperglycemia in the afternoon. R at 672.
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.
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.
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.
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.
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.
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
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.
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 ...