United States District Court, W.D. Missouri, Western Division
NANETTE K. LAUGHREY United States District Judge
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.
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.
J.G.'s medical history
was born prematurely. He has been treated for asthma since at
least 2009 and attention deficit hyperactivity disorder
(ADHD) since at least 2012.
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.
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
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.
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.
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.
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.
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
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.
J.G.'s school history
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.
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. 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.
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.
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.
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.
Wilson's hearing testimony
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.
The State of Michigan Disability Determination
had a consultative evaluation in January 2013 by Neil Reilly,
M.A. for the State of Michigan's Disability Determination
Service. 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.
State agency consultants
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'
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.
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 and directs
the rater to compare the child to other children of the same
age, who do not have limitations.
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 ...