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Long v. Berryhill

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

February 16, 2017

ALICIA LONG, on behalf of D.L., a minor, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM AND ORDER [2]

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         Alicia Long (“Plaintiff”), on behalf of D.L., appeals the decision of the Acting Commissioner of Social Security (“Defendant”), denying disability benefits under Title XVI of the Social Security Act. 42 U.S.C. § 1381 et seq. Substantial evidence supports Defendant's decision, and it is therefore AFFIRMED. See 42 U.S.C. § 1383(c)(3).

         I. Factual and Procedural Background

         A. Factual Background[3]

         D.L. is a minor child who was ten years old at the time of the original disability application in this case, which Plaintiff (D.L.'s mother) filed on April 12, 2012. In the application, Plaintiff alleges that D.L. qualifies as disabled due to “speech problems.” (Tr. 59) At the administrative hearing in this matter, Plaintiff also testified that D.L.'s “main problems are with reading, ” and that he has learning disabilities. (Tr. 46) In response to questioning by counsel, Plaintiff also testified that D.L. reads books every day when he gets home from school. Nevertheless, Plaintiff represented that D.L. does not “understand what he's reading” and cannot “explain what he just read.” (Tr. 52) Plaintiff also alleged that D.L. has multiple issues with expressive communication. With regard to his speech, Plaintiff testified that D.L. has longstanding issues with pronunciation and articulation, and those issues make him difficult to understand. (Tr. 46-47) Plaintiff acknowledged, however, that those issues improved after the implementation of an individualized education plan (“IEP”) at D.L.'s school along with specialized speech instruction. (Tr. 48-49) Plaintiff acknowledged that “the help he's getting in speech” has led to “an improvement, ” and she “can understand him now.” (Tr. 48) As to other modes of expressive communication, Plaintiff testified that D.L. can write complete sentences, but he needs extra help. (Tr. 53)

         D.L. testified about his classes at school, such as speech, arithmetic, science, social studies, and P.E. (Tr. 37-38) D.L. testified that he likes P.E. and math, that he has friends at school and in his neighborhood, and that he plays football with friends. (Tr. 38-41) Plaintiff appeared to agree with D.L., testifying that D.L. gets along “fine” with other kids in school, he does not get into fights or arguments, he has not been disciplined by the school, and he receives good grades. (Tr. 50)

         The medical records indicate that D.L. had no behavior problems, normal attention span, responds well to discipline, gets regular exercise, and socializes well with peers. (Tr. 225) D.L.'s pediatrician noted two problems: hypopigmentation, which required a dermatological referral, and decreased vision at 20/40. (Tr. 226) Educational records from D.L.'s school, as well as other records document D.L.'s speech, reading, and learning issues. As noted earlier, D.L. is subject to an IEP, which documents issues with basic reading, comprehension, and language. (Tr. 139-69) The IEP documents D.L'.s difficulties in reading at grade level, and answering comprehension questions after reading or listening to a story. (Tr. 140)

         As of the time of D.L.'s last IEP review, he spent most of his class time in regular classes, and 120 minutes per week in special reading instruction and 60 minutes per week of extra language therapy. As will be relevant to the discussion later of D.L.'s abilities to interact with others, the IEP noted that D.L. “works well with his peers, is polite, and respectful of the school and speech room rules, routines, and expectations.” (Tr. 142)

         The IEP further noted that D.L. made significant progress as a result of the IEP. For instance, an IEP review dated October 12, 2011 noted that “[D.L.] has made good progress with his language skills and IEP language goals. Language therapy minutes were reduced due to significant progress on his language goals, improved language performance in the classroom, and to allow more participation in the least restrictive environment.” (Tr. 142)

         As to the opinion evidence in this case, both of D.L.'s teachers-Ms. J. Bober, his classroom teacher, and Ms. Olivia Richardson, his special education teacher-rated D.L.'s functional limitations. Ms. Bober completed an Individual Functional Assessment, dated January 26, 2013. Ms. Bober rated D.L. with marked limitations in the domains of: (1) acquiring and using information; (2) attending and completing tasks; and (3) interacting and relating to others. (Tr. 190-91) Ms. Bober rated D.L. with less than marked limitations in moving about and manipulating objects, and no limitations in caring for himself, and his health and physical well-being. (Tr. 191) Ms. Bober's ratings were in the form of check box answers on a form-she did not elaborate on the basis for her opinions, although the form requested the rater to describe the child's functioning and provided a space for comments relative to each domain. (Tr. 190-91)

         Ms. Richardson completed an Individual Functional Assessment form, dated February 6, 2013. Ms. Richardson rated D.L. with marked limitations in acquiring and using information and attending and completing tasks. Ms. Richardson explained her ratings by noting that: (1) D.L. receives services in a resource setting for reading; and (2) D.L. makes noises but Ms. Richardson does not think D.L. is aware of it, and that he also makes careless mistakes and does not like to be corrected. (Tr. 193) Ms. Richardson rated D.L. with less than marked limitations in all other areas, except health and physical well-being, where she rated him with no limitations. (Tr. 194) As it relates to the domain of interacting and relating to others, Ms. Richardson commented that D.L. works well in a group, he does not willingly make friends, and he is able to express his views and ideas. (Tr. 194)

         Speech pathologist Barbara Schmidt, M.S., submitted an Individual Functional Assessment form, dated February 7, 2013. Ms. Schmidt rated D.L. with marked limitations in acquiring and using information, attending and completing tasks, interacting and relating to others, and caring for himself; and less than marked limitations in moving about and manipulating objects, and health and physical well-being. (Tr. 229-30) Ms. Schmidt's ratings were in the form of checked boxes; she did not elaborate or otherwise explain her ratings. (Id.)

         Lori Linder, M.A., CCC/SLP, from City Speech, Inc., examined D.L. and completed a Speech and Language Evaluation form, dated June 21, 2012. Ms. Linder diagnosed D.L. with moderate receptive language disorder and severe expressive language disorder. (Tr. 208, 210) Ms. Linder opined that D.L. had: (1) “moderate” difficulties in receptive language; (2) difficulty following complex oral directions and understanding word associations; (3) severe expressive language skills; and (4) difficulty generating grammatically correct sentences. (Tr. 210) Ms. Linder concluded that D.L.'s prognosis for developing appropriate language skills was “fair to good with continuing special education and language therapy.” (Id.)

         On January 11, 2014, D.L. underwent a consultative examination, with Shea Voelker, Psy.D. Dr. Voelker found that D.L. had a poor ability to communicate but that D.L. was “100% intelligible” and had a good ability to interact with family members, peers, and authority figures. Dr. Voelker also found that D.L. responded to questions from Dr. Voelker, and “warmed up to her over time.” Dr. Voelker thought D.L.'s prognosis was “fair with treatment.” (Tr. 234-35) Dr. Voelker diagnosed D.L. with mixed receptive and expressive language disorder, but noted that “none of today's diagnoses were based on testing.”[4] (Tr. 235)

         State agency consultants Tricia Petrillo, M.S., Kyle Devore, Ph.D., and Isabel Mora, M.D., jointly opined that D.L. had marked limitations in the domain of acquiring and using information but no other limitations. (Tr. 62)

         Plaintiff also completed a function report for D.L. Regarding D.L.'s communication skills, Plaintiff indicated that D.L. could: (1) deliver phone messages; (2) repeat stories he has heard; (3) tell jokes or riddles accurately; (4) explain why he did something; and (5) talk with family and friends. (Tr. 123) Plaintiff also noted that D.L. does not use sentences with “because, ” “what if, ” or “should have been.” (Id.)

         B. Procedural History

         On April 12, 202, Plaintiff applied for Title XVI disability benefits on behalf of D.L. After the application was initially denied, Plaintiff requested a hearing before an administrative law judge (“ALJ”). On December 13, 2013, an ALJ held a hearing. Plaintiff and D.L. appeared for the hearing, with counsel. Both Plaintiff and D.L. testified concerning D.L.'s functional limitations and symptomatology. In a decision dated April 21, 2014, the ALJ found Plaintiff not disabled. (Tr. 15-29) Plaintiff appealed the ALJ's decision. The Appeals Council denied review. (Tr. 1-4) Plaintiff has exhausted her administrative remedies, the Commissioner's decision is final, and the matter is properly before this Court.

         C. ALJ's Decision

         In evaluating D.L.'s claim for disability, the ALJ followed the three-step process applicable to child disability determinations. At step one, the ALJ found that D.L. was not engaged in substantial gainful activity as of the date of his application. (Tr. 18) At step two, the ALJ found that D.L. suffered from the following severe impairments: (1) mixed receptive and expressive language disorder; and (2) a reading disorder. (Tr. 18)

         At step three, the ALJ found that D.L.'s severe impairments did not “meet” or medically “equal” a listing. The ALJ also found that none of D.L.'s severe impairments (alone or in combination) “functionally” equaled a listing. (Tr. 18) In making this functional equivalence finding, the ALJ evaluated D.L. in six specific functional domains established under the Commissioner's regulations. The ALJ found that D.L. had “marked” limitations in the domain of acquiring and using information. The ALJ found D.L. had “less than marked” limitations in the domains of “interacting and relating with others, ” and “caring for yourself.” The ALJ found D.L. had no limitation in the domains of “attending and completing tasks, ” “moving about and manipulating objects, ” and “health and physical well-being.” (Tr. 22-28) Because D.L. had marked limitations in only one domain, and no “extreme” limitations in any domain, the ALJ found D.L. not disabled. (Tr. 29)

         In evaluating D.L.'s functioning, the ALJ also assessed Plaintiff's credibility, D.L.'s credibility, and the persuasiveness of the opinion evidence submitted in this matter. The ALJ found the testimony concerning D.L.'s functional limitations to be “not entirely credible, ” when viewed in the context of the medical records, ...


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