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Johnson v. Colvin

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

July 28, 2015

RONALD JOHNSON, o/b/o J.J., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


THOMAS C. MUMMERT, III, Magistrate Judge.

This 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application filed on behalf of J.J. (Plaintiff) by his father, Ronald Johnson, for supplemental security income benefits (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381-1383b, is before the undersigned Magistrate Judge for final disposition pursuant to the written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Mr. Johnson applied for SSI on Plaintiff's behalf in September 2011, alleging Plaintiff was disabled as of September 12, 2010, when he was ten years old, due to Attention Deficit Hyperactivity Disorder (ADHD); difficulty concentrating; difficulty sitting still; being disruptive, defiant, and occasionally violent; and having trouble keeping friends. (R.[1] at 130-38, 160.) This application was denied initially and following an administrative hearing held in April 2013 before Administrative Law Judge (ALJ) Ken H. Chau. ( Id. at 8-28, 44-77, 80-84.) The Appeals Council denied a request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. ( Id. at 1-4.)

Testimony Before the ALJ

Plaintiff and Mr. Johnson testified at the administrative hearing. They were represented by counsel.

Plaintiff testified that he is in the seventh grade. ( Id. at 49.) He is "doing pretty good" in school and is passing some of his classes. (Id.) His favorite subject is math. (Id.) He has "a lot" of friends at school, but does not hang out with them after school. ( Id. at 50.) He has friends at home that he plays with. (Id.) He likes to play football, ride bikes, barbeque, go for walks, and play video games. (Id.) He plays the video games online with other people. (Id.)

Plaintiff has to sit in front on the school bus because otherwise he gets into trouble. ( Id. at 52.) He will be allowed to go to the back if he doesn't get "any referrals." (Id.) There was a time when he was not allowed to ride the bus. (Id.) Also, he has been sent to off-base (the high school) suspension twice because he got into a fight. ( Id. at 52-53.) He gets angry whenever anyone talks about someone in his family. ( Id. at 53.) Almost every day he gets into a dispute with a specific teacher. (Id.) About twice a week, he has to leave the classroom. (Id.) When he is angry, he refuses to do his homework. (Id.) This occurs approximately twice a month. (Id.) Approximately once a week, he forgets to turn in his homework. ( Id. at 54.)

Plaintiff takes medicine for ADHD: Vyvanse, Concerta, and Kapvay. (Id.) He also takes clonidine[2] and melatonin. (Id.) He takes medication every morning. ( Id. at 55.) If "it gets in his system early, " he does not get into trouble on the bus. (Id.) As the medication wears off during the day, he gets into more trouble. (Id.)

Plaintiff also takes medication for sleeping.[3] (Id.) The length of time before it is effective varies. ( Id. at 56.) He has trouble getting up in the morning and, approximately once a month, has trouble getting to school. (Id.) If he misses any more school without an excuse, he will be on probation. ( Id. at 57.)

Plaintiff sees his doctor, Dr. Derlukiewicz, once a month. (Id.) He talks with a counselor, Kate Whitehead, about every other week.[4] (Id.)

Mr. Johnson testified that Plaintiff has switched to Vyvanse from Concerta. ( Id. at 60.) He is sometimes called to pick up Plaintiff at school because he is sleeping. ( Id. at 61.) He sometimes has to force Plaintiff to take his medications, i.e., he watches him take them and makes sure he swallows. ( Id. at 61-62.)

Plaintiff has good days and bad days. ( Id. at 62.) Approximately once or twice a month, Mr. Johnson gets a phone call from Plaintiff's teachers about him sleeping or having difficulties with other children. ( Id. at 63.) He is also called when Plaintiff disrupts classes. ( Id. at 69.) Mr. Johnson has trouble getting Plaintiff to follow his rules. ( Id. at 64.) For instance, Plaintiff has to be reminded again and again to take out the trash and is threatened with having his game taken away or not being allowed to go fishing with Mr. Johnson. (Id.) Currently, Plaintiff is not allowed to ride the bus for two weeks. ( Id. at 65.) Asked what happened to get him kicked off, Mr. Johnson explained that it was "[n]othing really." (Id.) The bus driver has had trouble with all seven of Mr. Johnson's children. (Id.)

Plaintiff sometimes fights with the brother who lives with them. ( Id. at 66.) Plaintiff does not like being corrected; he gets frustrated and kicks or throws things. (Id.) If he goes outside, he gets over it in about thirty minutes. (Id.) Plaintiff does not have any problem with other people's property, but sometimes steals change from Mr. Johnson. ( Id. at 67.) One time, Plaintiff took his truck and turned it on its side. (Id.)

Plaintiff does not like to shower or brush his teeth. ( Id. at 68.)

Medical, School, and Other Records Before the ALJ

The records before the ALJ included reports completed as part of the application process, school records, and medical records.

On a Function Report form for children ages twelve to eighteen, Mr. Johnson reported that Plaintiff does not have any problems seeing or talking clearly, but does have problems hearing due to tubes in his ears. ( Id. at 148-49, 150.) He is not sure if Plaintiff's daily activities are limited. ( Id. at 150.) Plaintiff does not have any limitation in understanding other than refusing to do something he does not want to do. ( Id. at 151.) His physical abilities are not limited. (Id.) Plaintiff can make friends, but will frequently fight with them and then lose them. ( Id. at 152.) He needs to stay on his medications. (Id.) Plaintiff will wash and put away his clothes if he wants to. ( Id. at 153.) He can take care of his personal hygiene, e.g., brush his teeth and comb his hair. (Id.) He avoids accidents and, with Mr. Johnson's help, gets to school on time. (Id.) Plaintiff needs reminders to finish his homework. ( Id. at 154.)

Plaintiff's school records include a report listing twenty-one violations of school rules between September 2011 and February 2012. ( Id. at 243-46.) These violations ranged in severity from excessive tardiness and disrespectful behavior to vandalism and fighting. (Id.)

For grades three through six, Plaintiff's scores on the Missouri Assessment Program (MAP) tests were all at the "Proficient" level with the exception of being at the "Basic" level in Science in the fifth grade. ( Id. at 261.)

One of Plaintiff's sixth grade teachers, Paula Epter, completed a Teacher Questionnaire on his behalf. ( Id. at 177-86.) She had known him for three months and saw him, and twenty-seven other students, every day for ninety minutes for instruction in English and reading. ( Id. at 177.) He did not have an unusual degree of absenteeism. (Id.) She did not observe him having any problems in the domains of acquiring and using information, interacting and relating with others, moving about and manipulating objects, or caring for himself. ( Id. at 178, 180-82.) He did have problems in the domain of attending and completing tasks. ( Id. at 179.) Specifically, he had a serious problem in six of the thirteen listed activities and an obvious problem in four.[5] (Id.) She noted that "[Plaintiff] is very capable and responds to structure in the classroom. He works best with one-on-one attention. [He] is bright and reads on level." (Id.) Ms. Epter did not know if Plaintiff had been prescribed, or took, any medication. ( Id. at 183.) She did know that he did not frequently miss school due to illness. (Id.)

On a separate form, Ms. Epter reported that Plaintiff was at his grade (sixth) level in reading, math, and written language. ( Id. at 190.) His grades that year after the first semester were Cs in four subjects (Keyboarding, Chorus, Math, and World Geography), Ds in three subjects (English, Science, and Reading), and a B in Physical Education. ( Id. at 265.) It was noted that absences were the primary cause of the low grade in Science. ( Id. at 237.) He was present 62.91 percent of the time. ( Id. at 269.) His grades at the end of the first semester of seventh grade included two As (both in non-academic subjects), three Cs (in Science, Math, and World Studies), two Ds (in Educational Technology and Reading), and one F (in English). ( Id. at 262.)

In December 2011, a school counselor, Michael Blase, also completed a questionnaire.[6] ( Id. at 212-15.) This questionnaire did not ask that Plaintiff's degree of limitation in the various domains be rated; rather, it requested narrative descriptions of how Plaintiff was functioning in specific ways. Mr. Blase had known Plaintiff for four months. Plaintiff did not have any physical problems but did have ADHD, for which he took Concerta daily at school. ( Id. at 212.) Mr. Blase reported that Plaintiff "has extreme difficulty in following set guidelines and rules. He has been disciplined numerous times for his infractions both on the bus and at school." (Id.) Although he took medication, he continued to make poor decisions and cause disruptions. (Id.) Mr. Blase further noted that Plaintiff was "quite intelligent" and, when not being disruptive, could "be a solid contributor to the lesson." ( Id. at 213.) "Numerous adaptations" were employed to keep Plaintiff on task. (Id.) "[Plaintiff] interacts with adults and peers quite easily. However, he often makes inappropriate statements to [attract] negative attention...." ( Id. at 214.) Plaintiff was then passing seven of his eight classes. ( Id. at 215.)

Also in December 2011, the same questionnaire was answered by Plaintiff's sixth math teacher, Angie Odom. ( Id. at 217-20.) Her answers were consistent with those given by Mr. Blase.

Plaintiff's former fifth grade teacher, Kristin Doyle, submitted a completed, undated questionnaire. ( Id. at 256-59.) As did Ms. Odom and Mr. Blase, Ms. Doyle described Plaintiff as having problems staying on tasks, completing class work and homework, and getting along with others. ( Id. at 256, 258.) He often came to school looking "disheveled'" and sometimes wore unclean clothes. ( Id. at 258.) She also described him as ...

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