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Davis v. Colvin

United States District Court, Fourth Circuit

December 30, 2013

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JOHN F. ANDERSON, Magistrate Judge.

This matter is before the undersigned magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on cross-motions for summary judgment. (Docket nos. 13, 15)[1] Kamonte Davis ("plaintiff") seeks judicial review of the final decision of Carolyn W. Colvin, Acting Commissioner of the Social Security Administration ("Commissioner"), denying his application for Supplemental Security Income ("SSI"), pursuant to Title XVI of the Social Security Act (the "Act"), 42 U.S.C. § 1381. The Commissioner's final decision is based on findings by the Administrative Law Judge ("ALJ") and Appeals Council (the "Council") that plaintiff was not disabled as defined by the Act and applicable regulations.

For the reasons discussed below, the undersigned recommends that plaintiffs motion for summary judgment (Docket no. 13) be denied; the Commissioner's cross-motion for summary judgment (Docket no. 15) be granted; and that the Commissioner's final decision be affirmed.


In his SSI application, plaintiff complained of attention deficit hyperactive disorder ("ADHD"), borderline intellectual functioning, and limited use of his tell arm. (AR 189). Because plaintiff challenges whether the Council and the ALJ erred in determining that he was not disabled under the Act, plaintiff's medical history, plaintiff's school records, third-party function reports, and plaintiff's and his mother's hearing testimony are summarized below.[2]

A. Personal Background

Plaintiff was born in May 1993, and was therefore in the "Adolescents" age group on October 6, 2009, the date the application was filed. (AR 27). Plaintiff attained age 18 in May 2011. Id. Plaintiff was enrolled in special education through the tenth grade, and at the time of the ALJ hearing, plaintiff planned to complete his GED. (AR 48). Plaintiff has held one job since the date of his alleged disability, as a maintenance worker/cleaner, working two days per week for the five months prior to his ALJ hearing. (AR 49-51).

B. Medical History

In 1999, when plaintiff was five years old, plaintiff's mother complained to plaintiff's pediatrician, Dr. Nora J. Jose, that plaintiff was hyperactive at home and attention deficit at school. (AR 413). During plaintiff's January 18, 2001 appointment with his pediatrician, plaintiffs mother indicated that she wanted plaintiff checked due to hyperactivity at school. (AR 415). Plaintiff was referred to the Department of Neurology at Children's National Medical Center. (AR 435-36).

On January 28, 2001, plaintiff sought treatment from Bennett L. Lavenstein, M.D., at the Department of Neurology, and underwent an initial psychiatric evaluation. (AR 435-36). In his report, Dr. Lavenstein noted that plaintiff was in the LD (Learning Disability) program, and that plaintiff's school had reported behavioral problems, poor attention span, inability to concentrate and perform tasks, and a marked disinhibition in plaintiff's ability to control his impulses. (AR 435). Plaintiff was cooperative during the exam: in no distress, his performance ability was adequate, and the findings revealed no specific abnormality. (AR 435). Dr. Lavenstein recommended further evaluation and suggested that plaintiff begin a trial of Adderall 15 mg. (AR 436).

On October 25 and November 21, 2004, Kelly Rowe ("Rowe"), the school psychologist at Hybla Valley Elementary School, performed psychological testing on plaintiff (AR 27, 303-307). At the time plaintiff was eleven years old and in the fifth grade. (AR 303). In her report, Rowe noted that plaintiff had received special education services since kindergarten because of a learning disability. Id. Rowe noted that plaintiff's disability resulted from auditory memory delays, motor coordination, and attention delays. Id. Rowe administered a Wechsler Intelligence Scale for Children-Fourth Edition ("WISC-IV") test to plaintiff, a developmental test of Visual Motor Integration ("VMI") and a developmental Neuropsychological Assessment ("NEPSY"). (AR 304-306). On the WISC-IV test, plaintiff earned a Full Scale Composite Score of 89, which indicated functioning within the low average range. (AR 304). Plaintiff scored in the high-average range for short-term memory. (AR 305). Although one test placed plaintiff in the low average range of intellectual functioning, Rowe suggested that plaintiff's Full-Scale score might be underestimated, because of his distractibility. Id. Plaintiff scored within borderline to average ranges on the VMI test, and below average in visual memory and coordination in NEPSY. (AR 305-306). Rowe also noted that plaintiffs medications helped to reduce his ADHD. (AR 303). Overall, Rowe stated plaintiff's cognitive skills appeared to be within normal limits. (AR 305).

On February 1, 2010, plaintiff was seen by Gustavo Rife, Psy. D., for a consultative psychological examination as a part of his SSI claim. (AR 333-37). Plaintiff was cooperative, alert, and oriented. (AR 335). Rife diagnosed plaintiff' with ADHD and borderline intellectual functioning. (AR 336-37). Rife administered the WISC-IV test, on which plaintiff earned a Full Scale Composite Score of 77, which indicated plaintiff's general cognitive functioning was within the borderline range. (AR 334). Plaintiff's verbal reasoning abilities were in the low average range, and his perceptual, non-verbal reasoning skills were in the average range. Id. Plaintiff's ability to sustain attention, concentrate, and exert mental control was in the borderline range. (AR 335). Plaintiff's abilities to process routine information without making errors and to process visual information were in the borderline range. Id. Rife also performed a Mental Status Examination and made some behavioral observations. Id. In this evaluation, plaintiff demonstrated an average level of attention and concentration, and his intellectual ability was estimated to be above average. Id. Plaintiff was able to initiate and sustain social connections with others. (AR 336). Rife ultimately concluded that while plaintiff had borderline mental limitations, plaintiff's impairments and their mild limitations would not interfere with his ability to perform work-related jobs, though Rife suggested that plaintiff would benefit from minimal redirection and special supervision when completing tasks. Id.

C. School Records

In December 2004, Ellen Colehower ("Colehower"), plaintiff's special education teacher at Hybla Valley Elementary School, conducted an educational evaluation on plaintiff. (AR 308-11). Colehower administered the Woodcock-Johnson III Test of Achievement ("WJ Ill"), and reported scores in the low average range for reading and math, and in the average range for written expression. (AR 310). Plaintiffs oral language was his strength. Id. Colehower concluded that plaintiff's oral language and written expression skills were average; his academic skills, his ability to apply those skills, and his fluency with academic tasks were in the low average range; and his performance in reading, mathematics, math calculation skills, and written language was in the low average range. (AR 311).

On December 18, 2009, Catherine Allen ("Allen"), the Mt. Vernon High School Special Education Department Chair, completed a Teacher Questionnaire. (AR 257-64). Allen reported that plaintiff had a slight problem in his ability to acquire and use information. (AR 258). Allen reported plaintiff had a slight problem in attending and completing tasks, such as carrying out single-step instructions and working at a reasonable pace; plaintiff had no problem in sustaining attention during play and sports activities, hut he had obvious problems in several other categories including carrying out multi-step instructions, changing from one activity to another, and working without distractions. (AR 259). In the area of interacting and relating with others, Allen stated plaintiff had slight problems in playing cooperatively with children, making and keeping friends, expressing anger appropriately, and using adequate vocabulary to express thoughts. (AR 260). Allen stated plaintiff had no problem relating experiences and telling stories, and interpreting the meaning of facial expressions, body language, hints, and sarcasm. (AR 260). Allen reported obvious problems with seeking attention appropriately, following rules, asking permission appropriately, respecting/obeying authority, and taking turns in a conversation. (AR 260). Allen stated plaintiff had no problems in the area of moving about and manipulating objects. (AR 261). Lastly, Allen stated plaintiff had a slight problem in certain tasks related to caring for oneself; specifically, in handling frustration appropriately and in using good judgment regarding personal safety, and obvious problems in being patient, asserting emotional needs, calming himself, using coping skills, and knowing when to ask for help. (AR 262).

D. Functioning Reports[3]

Plaintiff's mother completed two function reports in connection with plaintiff's SSI application. (AR 198-207, AR 217-26). On December 13, 2009, plaintiff's mother completed a Child Function Report for a child aged 12 to 18. (AR 198-207). She reported that plaintiff had difficulty concentrating on more than one task at a time. (AR 201). She stated that plaintiff could read simple sentences and write short sentences, but he had difficulty remembering an entire story. (AR 202). She noted that some of plaintiff's physical activities were limited due to a left arm hairline fracture. (AR 203). Plaintiff's mother noted that plaintiff needed a written task list to help him stay focused. (AR 206).

On August 5, 2010, plaintiff's mother completed a second Child Function Report for a child aged 12 to 18. (AR 217-26). She reported no significant changes in plaintiff's condition. Id. She noted that plaintiff generally got along with his school teachers. (AR 223).

E. Testimony

1. Plaintiff's Testimony

At the November 15, 2011 hearing before the ALJ, plaintiff testified that he had completed schooling through the tenth grade, and that he planned to pursue a GED, but was not actively doing so. (AR 48-49). Plaintiff testified that he had been diagnosed with ADHD. (AR 52). Plaintiff testified that he had been prescribed Adderall for the treatment of his ADHD, though he experienced lazy-like symptoms from the medication. Id. Plaintiff testified that the medication helped him. Id. Plaintiff testified that his ADHD caused him to have difficulty remembering certain things. Id.

Plaintiff also testified that he had been working for the five months prior to the ALJ hearing as a part-time cleaner at Bottom Dollar, working approximately two days per week, or sixteen hours per week. (AR 49-51). Plaintiff testified that he would have no problem working additional hours, and could work four days a week. (AR 49-50). Plaintiff testified that his supervisor usually checked his work. (AR 51).

2. Plaintiff's Mother's Testimony

Plaintiff's mother ("Ms. Davis") also testified at the November 15, 2011 hearing before the ALJ. (AR 53). Ms. Davis testified that plaintiff had ADHD, problems with focusing, concentrating, and other mental limitations. (AR 53-56). Ms. Davis testified that plaintiff had difficulty executing multiple tasks when they were assigned at one time, that the medication helped plaintiff, and that plaintiff had no issues with compliance. (AR 54-55). Ms. Davis testified that plaintiff enrolled in the eleventh grade, but grew frustrated with the curriculum and the structure of the Individualized Education Program ("IEP"), and dropped out. Id. Ms. Davis testified that plaintiff was not pursuing his GED because school frustrated him. (AR 56).

F. SSA Proceedings

Plaintiff's application for SSI was tiled when he was 16 years old. (AR 22). In the initial disability report, plaintiff alleged that the following illnesses, injuries, or conditions very seriously limited his activities, compared to other children the same age who do not have the conditions: (1) ADHD; and (2) limited use of his left arm due to a hairline fracture. (AR 189). Plaintiff's alleged disability onset date is July 7, 2009.[4] (AR 22, 47).

Plaintiff's initial claim was denied by the Social Security Administration ("SSA") Regional Commissioner on February 26, 2010, [5] (AR 84-94). Plaintiff then filed a request for reconsideration of this initial denial. (AR 95). In the reconsideration, plaintiff argued that his ADHD had gotten worse, and his struggles with concentration and comprehension were growing increasingly difficult as the difficulty of his schoolwork increased. (AR 73). On September 14, 2010, the Regional Commissioner denied plaintiff's request for reconsideration, after considering an additional medical report received on August 18, 2010 from Dr. Nora Jose, and an additional Child Function Report received on August 31, 2010, in addition to medical reports already in his file. (AR 101-104), The Regional Commissioner found that while the plaintiff did have "some limitations, " and while his mother "may be concerned" about his functioning in school, the plaintiff's activities were not very seriously restricted by his conditions, and he was able to learn many new things and perform many daily tasks. (AR 101).

On September 29, 2010, plaintiff requested a hearing before an ALJ. (AR 22, 105). Plaintiff's request was acknowledged on January 19, 2011, and a hearing before an ALJ was scheduled for November 15, 2011. (AR 106-109, 116-21).


A. Administrative Proceedings

On November 15, 2011, plaintiff and counsel appeared before ALJ Eugene Bond for a hearing in Washington, DC, (AR 22, 43). At the hearing, plaintiff and his mother testified and exhibits 1A-10F were made part of the record. (AR 43-57).

On December 12, 2011, the ALJ issued a decision finding that plaintiff, prior to the age of 18, did not meet, medically equal, or functionally equal a listing and therefore was not disabled as defined in section 1614(a)(3)(C) of the Act, 42 U.S.C. § 1382c(a)(3)(C). (AR 22-42). At the time of the ALJ's decision, plaintiff was 18 years old. Accordingly, the ALJ also considered plaintiff's disability under the adult standard, finding that plaintiff, since attaining the age of 18 in May 2011, could perform his past relevant work as a maintenance worker, and therefore was not disabled within the meaning of the Act, section 1614(a)(3)(A), 42 U.S.C. § 1382c(a)(3)(A). (AR 22-42).

On December 28, 2011, plaintiff submitted a request for review of the ALJ's December 12, 2011 decision to the SSA Appeals Council (the "Council"). (AR 18). The Council granted plaintiff's request for review on February 7, 2013. (AR 144-47). On April 13, 2013, the Council issued a decision, adopting the ALJ's findings that plaintiff was not disabled, as defined in the Act, at any time though the date of the ALJ's December 12, 2011 decision. (AR 4-7). The Council did not adopt the ALJ's findings as to plaintiff's residual functional capacity upon attainment of age 18, or the finding at step four, that plaintiff could perform his past relevant work. (AR 4-6). Nonetheless, the Council concluded that plaintiff was not eligible for SSI under sections 1602, 1614(a)(3)(A), or 1614(a)(3)(C) because his limitation to simple repetitive tasks did not significantly affect his RFC to perform work related activities. (AR 4-7).

At the time of the Council's unfavorable decision, plaintiff was nineteen years old. (AR 22). As such, plaintiff alleges his claim is both a child's SSI claim, as well as an adult SSI claim. (Docket no. 14 at 2). The Council's April 13, 2013 decision is the final decision of the Commissioner for purposes of review tinder 42 U.S.C. § 405(g).

B. Proceedings in this Court

On June 14, 2013, plaintiff filed a civil action for review of the Commissioner's final decision. (Docket no. 1). The Commissioner filed an answer to plaintiff's complaint on September 12, 2013 (Docket no. 4) along with the Administrative Record (Docket nos. 5, 7). On October 1, 2013, the District Judge entered an Order stating that the case was appropriate for disposition on the record or on cross-motions for summary judgment and that if the parties consented to the jurisdiction of a magistrate judge, the case would be referred to a magistrate judge for entry of judgment pursuant to 28 U.S.C. § 636(c), otherwise, the case would be referred to a magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 8). The parties have ...

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