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Blair v. Colvin

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

September 28, 2016

RAYMOND BLAIR on behalf of G.B., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

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

         BACKGROUND

         On August 6, 2012, Plaintiff's father filed an application for Child's SSI on behalf of Plaintiff, who was born on November 6, 2001. Disability was claimed based on learning disability, attention deficit hyperactivity disorder (“ADHD”) (“can't concentrate during school or at home, unable to stay on task”), depression, and impulse control issues. (Tr. 160.) After the application was denied at the initial administrative level, Plaintiff requested an evidentiary hearing before an administrative law judge (“ALJ”), and on January 7, 2014, such a hearing was held, at which Plaintiff (then 12 years old and in fifth grade) and his father testified. On February 27, 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 June 9, 2015. Plaintiff has thus exhausted all administrative remedies, and the ALJ's decision stands as the final agency action now under review.

         Plaintiff argues that the ALJ's decision that Plaintiff did not have a marked limitation in his ability to attend and complete tasks is not supported by substantial evidence in the record. 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 on pages 1 to 6 of his brief (Doc. No. 14) along with Defendant's Statement of Additional Material Facts (Doc. No. 15-2), as amended by Plaintiff (Doc. No. 19). 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.

         ALJ's Decision

         The ALJ found that Plaintiff had the severe impairments of ADHD; major depressive disorder; anxiety disorder, not otherwise specified; and learning disorder, not otherwise specified. The ALJ then found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a deemed-disabling impairment listed in the Commissioner's regulations at 20 C.F.R. part 404, subpart P, Appendix 1 (“Appendix 1”). Next, the ALJ considered whether Plaintiff had an impairment or combination of impairments that functionally equaled the severity of a listed impairment. As discussed below, a child with a “marked” limitation in two of six domains of functioning[1] will be found to have an impairment that functionally equals a listed impairment, and to be entitled to disability benefits. 20 C.F.R. § 416.926a(d). The ALJ determined that Plaintiff had a marked limitation in the domain of acquiring and using information, but less than a marked limitation in the other five domains, including attending and completing tasks. Consequently, the ALJ found that Plaintiff was not disabled.

         In reaching these findings, the ALJ stated that she afforded “great weight” to the Teacher Questionnaire “taken as a whole, ” completed on October 24, 2012, by Plaintiff's third grade teacher, Kendra Haun. In the section on “Attending and Completing Tasks, ” the Questionnaire lists 13 activities, with the option of rating each activity as presenting “no problem, ” “a light problem, ” “an obvious problem, ” “a serious problem, ” or “a very serious problem.” Ms. Haun indicated that Plaintiff had an obvious problem in three of the activities (focusing long enough to finish an assigned activity or task, refocusing to task when necessary, and completing work accurately without careless mistakes); a serious problem in one of the activities (completing class/homework assignments); a slight problem in three activities (including carrying out multi-step instructions); and no problem in the remaining six activities (including sustaining attention during play/sports activity). (Tr. 216.)

         The ALJ gave “partial weight” to the October 2, 2012 opinion of non-examining state agency psychological consultant Elissa Lewis, Ph.D., who opined that Plaintiff had less than marked limitations in each of the six domains of functioning (Tr. 80-85); and “partial weight” to the September 7, 2012 report prepared by a non-treating psychiatrist Charles Doyle, Ph.D., who examined Plaintiff and diagnosed a Global Assessment of Functioning score (“GAF”) of 50, which indicates a “serious” impairment in social, occupational, or school functioning. The ALJ accepted each of these two opinions only to the extent that they were consistent with her finding of a marked limitation in acquiring and using information, and less than a marked limitation in the other domains.

         Similarly, the ALJ credited the Individual Functional Assessments (“IFA”) prepared by special education manager Tanya Grant on November 17, 2013 (Tr. 323), and by Plaintiff's fourth grade teacher Karen Waller on November 20, 2013 (Tr. 328) only to the extent that they indicated (by checks) a marked limitation in acquiring and using information. The ALJ discredited these same educators' conclusions that Plaintiff also had a marked limitation in attending and completing tasks. The ALJ stated, without elaboration, that Plaintiff's Individualized Educational Plan (“IEP”) showed a lesser degree of limitation in this domain. The IEP in the record was instituted for the 2011-2012 school year, when Plaintiff was in third grade. For the Fall reporting period of that year, the IEP shows a score of 2 on a scale of 1 to 4, with 1 indicating the lowest performance, for “completes work on time” and “follows directions”; and a score of 1for “produces quality work, ” and “uses organizational skills.” (Tr. 235.) The record does not indicate subsequent improvements of these scores.

         The ALJ also stated, without elaboration, that Grant's and Waller's comments on the IFAs with respect to attending and completing tasks were not consistent with the criteria for a marked degree of limitation, and “with the evidence of record.” Waller's comment was: “Staying focused is hard at times.” (Tr. 328.) Grant's comment was: “[Plaintiff] loses focus in the general classroom due to inability to read for himself. He is easily distracted by his own thoughts, objects in desk, or his peers around him. At times he is defiant when asked to follow along in reading or attempt to read even in small group.” (Tr. 323.)

         The ALJ explained her finding that Plaintiff had a less than marked limitation in attending and completing tasks, by stating that Plaintiff's ability in this domain improved with Adderall (used to treat ADHD), and that Plaintiff was able to focus “on areas of interest, ” with the one example provided by the ALJ being that Plaintiff was able to use the internet in order to watch car ...


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