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Wilson v. Berryhill

United States District Court, W.D. Missouri, Western Division

April 25, 2017

ALBERTA WILSON, on behalf of J.G., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner Of Social Security, Defendant.

          ORDER

          NANETTE K. LAUGHREY United States District Judge

         Plaintiff Alberta Wilson appeals the Commissioner of Social Security's final decision denying the application of her child, J.G., for supplemental security income under Title XVI of the Social Security Act. The decision is reversed and the case is remanded for further proceedings.

         I. Background

         J.G. is a minor with an alleged disability onset date of September 30, 2005 (his date of birth). The Administrative Law Judge held a hearing on May 27, 2014 and a supplemental hearing on October 6, 2014, and denied the application for benefits on January 23, 2015. The Appeals Council denied review on March 23, 2016. Wilson's appeal to this Court on behalf of J.G. involves the ALJ's evaluation of the opinion of one of J.G.'s teachers concerning the severity of his impairments, and the finding regarding J.G.'s ability to acquire and use information.

         A. J.G.'s medical history

         J.G. was born prematurely. He has been treated for asthma since at least 2009 and attention deficit hyperactivity disorder (ADHD) since at least 2012.

         In October 2012, Catherine Benitez, M.D., J.G.'s primary care physician, reviewed questionnaires (referred to as "Vanderbilt forms") filled out by J.G.'s teacher and mother. The results were consistent with ADHD and oppositional defiant disorder. Dr. Benitez prescribed Concerta, 18 m.g., and referred J.G. for counseling.

         In November 2012, J.G.'s mother reported that he was "doing pretty well" and "doing better" on the Concerta, although he still got into problems "every once in awhile." Tr. 510. Dr. Benitez renewed the prescription.

         J.G. next saw Dr. Benitez in March 2013. J.G. was taking the Concerta and doing well in school during the first part of the day, but after a few hours would be inattentive and hyperactive. In the record of the visit, the doctor noted under the subheading "Constitutional" that J.G.'s "overall appearance [was] hyperactive" and under the subheading "Psychiatric" that J.G. "behave[d] appropriately for age." Tr. 529. The doctor renewed the Concerta.

         J.G. and his family moved from Michigan to Missouri in August 2013. In April 2014, he was seen at Children's Mercy Pediatric Clinic to establish care for ADHD and asthma. He was prescribed Concerta, 36 m.g., and Vanderbilt forms were provided for his parents and teachers to fill out.

         In July 2014, J.G. returned to Children's Mercy Pediatric Clinic. His mother reported that J.G.'s teacher noticed a difference with the Concerta, but the medication seemed to wear off in the afternoons. The doctor renewed the prescription and provided Vanderbilt forms to be filled out for the start of the coming school year.

         Dr. Hannah Johnson saw J.G. for follow up in August 2014 for ADHD and asthma. J.G. had begun the school year and the teacher had been calling J.G.'s mother to report that he was getting out of his seat and leaving class. Dr. Johnson renewed the Concerta. At a follow up the next month, the doctor renewed the Concerta.

         J.G. was seen at Truman Medical Center in September 2014 by Lisa Wolfe, Licensed Qualified Mental Health Professional, to establish services for ADHD treatment in the medication clinic. He was also referred to psychiatry due to temper outbursts, impulsivity, difficulty focusing, and high activity level.

         In October 2014, J.G. saw Christopher Stone, M.D. in the ADHD Screening Clinic at Children's Mercy. During the visit, Dr. Stone noted that J.G. "was quiet for awhile with minimal interruptions, sat for awhile then moved around a bit during the visit" and that he was "cooperative" and displayed "normal mood and affect[.]" Tr. 600. Dr. Stone noted "negative" under both "Constitutional" and "Psychiatric" in the record of the exam. Tr. 598-99. J.G.'s diagnoses included ADHD, aggressiveness, expressive language disorder, and oppositional defiant disorder. The doctor renewed the Concerta, 36 m.g., for one month and noted that J.G.'s care would be transferred to a psychiatrist at Truman Medical Center Behavioral Health.

         B. J.G.'s school history

         J.G. was in second grade in the 2013-2014 school year and had an Individualized Educational Plan (I.E.P.) assessment in November 2013. His medical diagnoses of ADHD and asthma were noted. His teachers indicated that he frequently instigated negative interaction with his peers, had difficulty following adults' instructions, and exhibited negative reactions by throwing chairs, yelling, crying, and refusing to work. His inadaptability, behavioral symptoms, anxiety, conduct problems, aggression, and hyperactivity were assessed as clinically significant. Testing showed cognitive ability in the low-average range; a deficit in processing speed; significantly inappropriate behavior; motor skills in the low range and discrepant from his cognitive ability; academic achievement in the sixth percentile and consistent with grade level 1; deficits in all areas of reading ability; poor written expression skills; and below-average skills in math. Tr. 271-72.

         Based on observations of J.G. in different environments, an in-depth social history, and the testing, "a group of qualified professionals and the parent(s) determined that [J.G. met] the Missouri Department of Education Special Education eligibility criteria for Emotional Disturbance." Tr. 272.[1] His I.E.P. provided that he would participate in a regular classroom for about 12% of the school day. Full-time participation was not appropriate because of his level of frustration and the need to master his I.E.P. goals. Tr. 222. The I.E.P. provided for accommodations in the form of extra time to complete tests, taking tests in small groups, being given oral instead of written exams, special seating in the classroom, extended work time, repeated reviews, frequent reminders of rules, frequent breaks, preferential seating in the classroom, and the opportunity for a setting separate from his usual classroom for calming down. J.G. was also provided occupational therapy services for problems with handwriting.

         In December 2013, J.G. had a two-day, out-of-school suspension for fighting, and in March 2014 had a three-day, out-of-school suspension for chronic misconduct. Progress ratings recorded in his I.E.P. reflect that on 3/25/2014 and 5/15/14 that J.G. was "[n]ot making sufficient progress" on behavior goals and his teachers did "not anticipate [J.G.] meeting" them. Tr. 232. In total, J.G. missed 18 days of school during the second grade.

         On his May 2014, year-end report card, his special education teacher, Donna Carter, noted "Needs improvement" under all areas of Academic Foundation (e.g., persistence, self-discipline, following directions, sense of responsibility to others), Math, and Social Studies, and under "Comments" noted that he needed to improve self-control, lacked interest in work, lacked effort, did not show an interest in school, and did not work at grade level. Tr. 199-201. His grades in Communications and Math declined from C's to a D by the end of the school year, and in Science declined from A's to a C. His Computer teacher noted that he was self-challenging and progressing; his Music teacher commented that he grasped new ideas easily; and his Physical Education teacher noted he had good participation in class. Tr. 200-01.

         The following school year, when J.G. was in third grade, it was determined that he continued to meet Missouri's eligibility criteria for Emotional Disturbance. His November 2014 I.E.P. indicates that he repeatedly asks to call his mother or begins crying if he cannot talk to her; will attempt to walk out of the classroom or stand outside of the classroom door; has a hard time letting go if he feels he has been wronged; and that his emotions and reactions affect his academics. He had not had a suspension from the bus or school since the prior year; had improved his attendance, computation skills, handwriting; and was learning how to manage his reactions to situations without verbal or physical aggression. The I.E.P. contained goals for handwriting, reading, math, behavior, and socialization, and provided that J.G. could not participate in a regular classroom 100% of the time. Modifications and accommodations included oral rather than written exams, extended time for exams, preferential seating, repeated reviews and drills, and "frequent eye contact/proximity control[.]" Tr. 471. The I.E.P. contains November 2014 progress ratings on annual goals: J.G. was "making progress" in handwriting, "making slow progress" in reading and math goals, and "making progress" in behavior goals. Tr. 476-80.

         C. Wilson's hearing testimony

         Wilson testified at both hearings before the ALJ. In May 2014, she testified that she received daily texts from J.G.'s teachers about his misbehavior and inattention; that she had to pick him up from school once per week on average; and that he endangered himself by running away from his classroom and his home for hours at a time. In October 2014, she testified that he ran in and out of his classroom, but later clarified that he had run out of the school once. She stated that he fought with and bit his teacher, and had some problems fighting with and pushing his classmates which led to him being sent to the buddy room for behavior management under the supervision of another teacher.

         D. Opinion evidence

         1. The State of Michigan Disability Determination Service

         J.G. had a consultative evaluation in January 2013 by Neil Reilly, M.A. for the State of Michigan's Disability Determination Service.[2] In the History portion of the report, Reilly noted that J.G. was in first grade and receiving full-time special education services for behavior and learning problems, and speech and language delays. Reilly stated that it was "too early to tell if there are learning disabilities." Tr. 517. In the Mental Status Examination portion of the report, Reilly noted that J.G. was a little fidgety; he appeared to have a good relationship with his mother and her boyfriend; he demonstrated appropriate judgment; and his mood appeared to be within normal limits. Under "Dynamic formulation, " Reilly noted that J.G. "[s]cholastically continues to struggle and gets a lot of special interventions." Tr. 521. Reilly listed diagnoses of "mood disorder NOS"; "ADHD-predominantly inattentive type"; and Communication disorder NOS ([history] of speech and language services), " among others. Id. Under "Prognosis, " Reilly stated that J.G.'s issues with learning and mood were being treated with medication and special education school placement, and that J.G. was likely to require intervention and special services for some time. Id. The ALJ gave significant weight to the Mental Status findings and little weight to the opinions. Tr. 22. In stating that the opinions would be given little weight, the ALJ noted that Reilly was not a fully licensed psychologist. Id.

         2. State agency consultants

         Shanthini Daniel, M.D., a pediatrician, and William Schirado, Ph.D., a psychologist, are State agency (Michigan DDS) consultants who reviewed J.G.'s file in January 2013, including the Reilly consultative evaluation. Dr. Daniel offered the opinions that J.G. had "no major motor delay/deficit alleged or noted" and "is growing well.. .[and] needs to avoid allergens, triggers and pulmonary irritants[.]" Tr. 72. Dr. Schirado opined that J.G. had no limitations in "Acquiring and Using Information." Tr. 71-72. He further opined that J.G. had "less than marked" limitations in "Attending and Completing Tasks, " noted J.G.'s diagnosis of ADHD, and noted that Reilly's consultative evaluation was consistent with "mild findings-partially supported allegations re severity/limitations[.]" Tr. 72. The Determination section of the reviewing consultants' report states:

We realize [J.G.] struggles in some areas due to his conditions. The medical information shows that he is receiving help for his breathing, attention, and learning difficulties. While he may need special consideration at times, overall, [J.G.] is able to complete simple tasks, interact appropriately with others and communicate adequately. We have determined that [J.G.]'s condition is not disabling at this time because it does not significantly interfere with his ability to function.

Tr, 74.

         3. Donna Carter

         Donna Carter, J.G.'s second-grade, special education teacher, completed an Individual Functional Assessment form in April 2014. Tr. 193-94. The form lists six domains[3] and directs the rater to compare the child to other children of the same age, who do not have limitations.

         Each domain includes bulleted definitions, a space for the evaluator to write in comments, and boxes to check to indicate "Extreme, " "Marked, " "Less than Marked, " or "No Limitations." Tr. 193-94. The form defines an "Extreme" limitation as one that:

[I]nterferes very seriously with ability to independently initiate, sustain or complete activities. This does not necessarily mean a total lack of or loss of ability to function. It is the equivalent of the functioning from standardized testing with ...

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