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Lewis v. Colvin

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

September 2, 2014

VALERIE K. LEWIS, on behalf of L.M.R.J., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the Court for review of an adverse ruling by the Social Security Administration.

I. Procedural History

On April 8, 2010, Valerie Lewis filed an application on behalf of her minor daughter, plaintiff L.M.R.J., for supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. ยงยง 1381 et seq. (Tr. 137-140). The application alleged that disability began on January 1, 2005. After the application was denied on initial consideration (Tr. 71-74), plaintiff requested a hearing from an Administrative Law Judge (ALJ). See Tr. 78-83 (acknowledging request for hearing).

Plaintiff, Lewis, and counsel appeared for a hearing on February 29, 2012. (Tr. 31-69). The ALJ issued a decision on April 12, 2012 denying plaintiff's application (Tr. 11-26), and the Appeals Council denied plaintiff's request for review on April 19, 2013. (Tr. 1-6). Accordingly, this decision stands as the Commissioner's final decision.

II. Evidence Before the ALJ

A. Disability Application Documents

According to the application for SSI benefits, plaintiff was born in September 1999. (Tr. 137). The Disability Report lists plaintiff's disabling conditions as attention deficit hyperactivity disorder (ADHD), Asperger's syndrome, and obsessive-compulsive disorder (OCD). Her medications were Zoloft, [1] Tenex, [2] and Strattera.[3] (Tr. 159-166). In the Supplemental Questionnaire, plaintiff's mother stated that plaintiff is able to play video games and use a computer, but that she has difficulties focusing for an extended period of time. Plaintiff's mother wrote that plaintiff challenges authority, is disrespectful, and "throws fits." (Tr. 168-169).

According to the Function Report, plaintiff wears eyeglasses for nearsightedness; has problems speaking clearly, but she can be understood some of the time by people who do not know her well and most of the time by people who do know her well; is able to deliver telephone messages, talk with family and friends, repeat stories, tell jokes accurately, explain why she did something, and use sentences with "because, " "what if, " and "should have been;" does not have hearing difficulties; is able to progress in learning; is not limited in her physical abilities; is able to make new friends; generally gets along with adults and teachers; and is able to take care of her personal needs, such as brushing her teeth, eating, or washing herself, but has difficulties paying attention and sticking with a task. (Tr. 144-155).

B. School Records

The record contains an Individualized Education Program (IEP) report, dated April 19, 2011. (Tr. 195-211). Plaintiff was then a 5th grade student in the Laclede County School District. The report states that plaintiff underwent an initial evaluation in April 2008, which resulted in a diagnosis of speech impaired-sound system disorder. This disorder causes her "to display a w/r substitution and a tongue thrust which results in a distortion of the/s and z/sounds." (Tr. 207). For example, plaintiff pronounces the words horse as "horth, " stove as "thtove, " and eggs as "eggth." Testing revealed that "sound errors [were] occasionally noticed in continuous speech." (Tr. 208). Her overall speech intelligibility was judged to be understandable, but distortions "made her speech have an immature sounding quality." (Tr. 195, 209). No concerns were noted in areas of intellectual/cognitive, hearing, or vision (other than requiring glasses for distance vision).

Plaintiff's classroom teacher, April Pulley, described plaintiff's motor skills to be average, while plaintiff's mother described them to be of "lower quality." (Tr. 206). Pulley described plaintiff's adaptive behavior to be age-appropriate, while plaintiff's mother found her to be "lazy" and "sloppy." (Tr. 207). Pulley reported that plaintiff performed at average levels in math, reading, and language, but that "many times her medicine or home routine [made] her very tired" and that she had trouble staying awake in class.

Plaintiff scored average in reading and reading comprehension and her current grades were listed as a B in language arts, a B-in spelling, a C in math, a B-in science, and a B in social studies. In terms of social and emotional behavior, Pulley noted the following areas of concern: "defiance of rules, off-task behaviors, attentionseeking behaviors, outbursts of anger, improper interaction with authority, does not get along well with peers, emotional difficulties and home problems." (Tr. 209). The IEP determined that she would participate in regular classes 80% of the time (Tr. 202).

On June 9, 2011, plaintiff's speech therapist, Lori Hyde, completed an overall functioning questionnaire for the Social Security Administration (SSA). (Tr. 305-312). Hyde based her responses on observations that she made during biweekly speech therapy sessions with plaintiff. Hyde wrote that "during speech class, [plaintiff] always has trouble focusing. She never seems to know when it is her turn, where we are in the activity, etc." Hyde stated that plaintiff is "always lethargic and constantly reports being tired. She frequently falls asleep during speech. She often makes rude noises to distract others." (Tr. 307). In terms of interacting and relating with others, Hyde wrote that plaintiff "usually just requires reminders that what she is doing/saying are not appropriate." (Tr. 308). Hyde also noted that plaintiff sometimes did not exhibit good personal hygiene. (Tr. 310).

On February 10, 2012, Hyde, completed a questionnaire for the Social Security Administration. (Tr. 476-483). In regards to acquiring and using information, Hyde reported that plaintiff had no problems reading or comprehending written material; had slight problems understanding school/content vocabulary, providing organized oral explanations and adequate descriptions, and recalling and applying previously learned material; had obvious problems understanding and participating in class discussions; and had serious problems comprehending oral instructions. (Tr. 477).

In terms of attending and completing tasks, Hyde reported that plaintiff had no problem completing work accurately without careless mistakes; had slight problems carrying out single-step instructions, organizing her things and school materials, and completing assignments; had obvious problems paying attention when spoken to directly, sustaining attention during play/sports activities, focusing long enough to finish assigned activity or task, carrying out multi-step instructions, waiting to take turns, and changing from one activity to another without being disruptive; and had serious problems refocusing to task when necessary, working without distracting herself or others, and working at a reasonable pace. (Tr. 478).

In terms of interacting and relating with others, Hyde reported that plaintiff had no problem using adequate vocabulary or grammar to express thoughts/ideas in everyday conversation; had slight problems respecting/obeying adults in authority, relating experiences and telling stories, and interpreting meanings of facial expressions; had obvious problems playing cooperatively with other children, making and keeping friends, asking permission appropriately, following rules, and taking turns in a conversation; and had serious problems seeking attention and expressing anger appropriately and introducing and maintaining relevant and appropriate topics of conversation. (Tr. 479).

In terms of caring for herself, Hyde reported that plaintiff had no problem caring for her physical needs, cooperating in or being responsible for taking medications, or using good judgment regarding personal safety and dangerous circumstances; had slight problems identifying and appropriately asserting emotional needs, responding appropriately to changes in own mood, and using appropriate coping skills to meet daily demands of school environment; and had obvious problems handling frustration appropriately, being patient, and taking care of personal hygiene. (Tr. 481).

On February 13, 2012, plaintiff's 6th grade teacher, Kent Golchert, completed the same questionnaire. (Tr. 467-473). Golchert wrote that plaintiff was very independent, would rarely seek extra help on problems and often displayed defiance when confronted with correction. (Tr. 468). Golchert wrote that plaintiff turned in late assignments two to three times per month and that she had difficulties making friends in her grade level. (Tr. 468-470). He stated that she had no problems moving about, manipulating objects, or caring for herself.

In terms of acquiring and using information, Golchert reported that plaintiff had slight problems comprehending oral instructions, understanding school/content vocabulary, reading and comprehending written material, understanding and participating in class discussions, and learning new material; and had obvious problems comprehending and doing math problems, providing organized oral explanations and adequate descriptions, expressing ideas in writing, recalling and applying previously learned material, and applying problem-solving skills in class discussions. (Tr. 468).

In terms of attending and completing tasks, Golchert reported that plaintiff had no problems refocusing to task when necessary, carrying out single or multi-step instructions, waiting to take turns, or changing from one activity to another without being disruptive; had slight problems focusing long enough to finish an assigned activity or task, organizing her things or school materials, completing assignments, working without distracting herself or others, and working at a reasonable pace; had obvious problems sustaining attention during play/sports activities and completing work accurately without careless mistakes; and had a very serious problem with paying attention when spoken to directly. (Tr. 469).

In terms of interacting and relating with others, Golchert reported that plaintiff had no problems seeking attention or expressing anger appropriately, asking permission appropriately, following rules, respecting/obeying adults in authority, relating experiences and telling stories, using language appropriate to the situation and listener, taking turns in conversation, and using adequate vocabulary and grammar to express thoughts/ideas in everyday conversation; had slight problems introducing and maintaining relevant and appropriate topics of conversation and interpreting meaning of facial expressions; and had obvious problems playing cooperatively with other children and making and keeping friends. (Tr. 470).

On February 23, 2012, plaintiff's 6th grade math and communication arts teacher, Tracey Huebner, completed the same questionnaire. (Tr. 222-229). Huebner wrote that plaintiff had "a great personality, however, she struggles to communicate properly with authoritative adults. She is always tapping/moving around in [the] classroom. [She] can be outright difficult at times, especially when it is challenging her to do something she doesn't want to do at the time." Huebner wrote that she feels as if plaintiff "has great potential as a learner if she can learn to control herself and accept criticism to improve her learning."

In terms of acquiring and using information, Huebner reported that plaintiff had no problems comprehending oral instruction or understanding school and content vocabulary; had slight problems expressing ideas in written form, recalling and applying previously learned material, and applying problem-solving skills in class discussions; had obvious problems reading and comprehending written material and learning new material; and had very serious problems comprehending and doing math problems, understanding and participating in class discussions, and providing organized oral explanations. (Tr. 223).

In terms of attending and completing tasks, Huebner reported that plaintiff had no problems carrying out single-step instructions, waiting to take turns, or working at a reasonable pace; had slight problems organizing school materials; had obvious problems paying attention when spoken to directly, focusing long enough to finish assigned activity or task, changing from one activity to another without being disruptive, and completing assignments; had serious problems refocusing to a task when necessary and carrying out multi-step instructions; and had very serious problems completing work accurately without careless mistakes and working without distracting herself or others. (Tr. 224).

In terms of interacting and relating with others, Huebner reported that plaintiff had no problems asking for permission or introducing and maintaining relevant and appropriate topics of conversation; had slight problems following rules, relating experiences and telling stories, using language appropriate to the situation and the listener, and using adequate vocabulary and grammar to express thoughts/ideas in general conversation; had obvious problems seeking attention appropriately, taking turns in a conversation, and interpreting meaning of facial expressions, body language, hints, or sarcasm; had serious problems making and keeping friends and respecting/obeying adults in authority; and had very serious problems playing cooperatively with other children and expressing anger appropriately. (Tr. 225).

In terms of caring for herself, Huebner reported that plaintiff had no problems caring for physical needs or personal safety; had slight problems taking care of personal hygiene; had obvious problems being patient, identifying and appropriately asserting emotional needs, and responding appropriately to changes in her own mood; had serious problems using appropriate coping skills to meet daily demands of school environment; and had very serious problems handling frustration appropriately and knowing when to ask for help. (Tr. 227).

C. Hearing on February 29, 2012

Richard Cowles, Psy.D., a licensed clinical neuropsychologist, provided testimony regarding plaintiff's impairments. (Tr. 129-136, 35-49). Dr. Cowles reviewed plaintiff's medical record and testified that, in his opinion, plaintiff's impairments did not meet or equal any of the medical listings. Dr. Cowles referenced plaintiff's IEP and noted that plaintiff was diagnosed with a sound system disorder and ADHD, that her speech was intelligible despite being affected by a lisp, that she had difficulties staying awake in class, that it was suspected that she was a victim of sexual abuse, and that she had a Global Assessment of Functioning (GAF)[4] score of 48.[5] (Tr. 36). Dr. Cowles referenced plaintiff's medical records from September 2009, which stated that plaintiff had mood swings and was missing school due to somatic complaints. Dr. Cowles referenced plaintiff's medical records from February and May 2010, which stated that she was able to focus and concentrate when on medication, that her tantrums were manageable, and that her defiance improved. (Tr. 36-37).

Dr. Cowles referred to the February 2011 psychological examination, which reported that plaintiff received all A's and one C, and that most of her medical issues began a year prior to the examination. The examination report diagnosed plaintiff with mood disorder and child relational problems, and provided her with a GAF score of 60.[6] (Tr. 37). Dr. Cowles noted that plaintiff's mother was diagnosed with Borderline Personality Disorder and that plaintiff had marked difficulties in interacting and ...


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