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L.H. v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

June 21, 2016

L.H., as mother and next friend, JUANITA MATTHEWS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          L.H., Plaintiff, Pro Se.

          Carolyn W. Colvin, Defendant, represented by Daniel Patrick Shean, U.S. Attorney's Office.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ROBERT J. KRASK, Magistrate Judge.

         Juanita Matthews brought this action on behalf of her minor son, L.H. ("plaintiff"), pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a decision of the Acting Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying plaintiff's application for supplemental security income ("SSI") under Title XVI of the Social Security Act.

         An order of reference dated November 16, 2015, assigned this matter to the undersigned. ECF No. 10. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Local Civil Rule 72, it is hereby recommended that plaintiff's motion for summary judgment (ECF Nos. 15-16) be DENIED, and that the Commissioner's motion for summary judgment (ECF No. 19) be GRANTED.

         I. PROCEDURAL BACKGROUND

         Juanita Matthews filed an application for SSI on January 9, 2012 on her son's behalf, R. 135-40[1], alleging he became disabled on March 29, 2010 due to asthma, chronic bronchitis, allergies, attention deficit hyperactivity disorder ("ADHD"), oppositional defiant disorder ("ODD"), and enuresis. R. 97, 101. The Commissioner denied plaintiff's claim on March 5, 2012 and, upon reconsideration, on May 31, 2012. R. 98-100, 105-08. At plaintiff's request, an Administrative Law Judge ("ALJ") heard the matter on January 14, 2014, and at that hearing received evidence and testimony from L.H. and his mother.[2] R. 35-95, 113-14. On February 28, 2014, the ALJ denied plaintiff's claim, concluding that L.H. was not disabled as of January 9, 2012, the date of his SSI application. R. 16-30.

         On April 24, 2015, the Appeals Council denied plaintiff's request for review of the ALJ's decision. R. 6-10. Therefore, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481. Having exhausted all administrative remedies, plaintiff filed a pro se complaint with this Court on September 9, 2015. ECF No. 3. The Commissioner answered on November 12, 2015. ECF No. 9. In response to the Court's order, the parties filed motions for summary judgment, on February 11 and April 21, 2016, respectively. ECF Nos. 15-16, 19-20. In response to plaintiff's request for additional time to prepare an adequate summary judgment filing, on February 22, 2016, the Court granted plaintiff an additional thirty days to file a supplemental motion for summary judgment. ECF No. 18. Plaintiff, however, neither submitted such a filing nor filed a reply to the Commissioner's motion for summary judgment. As neither party has indicated special circumstances requiring oral argument, the case is deemed submitted for a decision.

         II. RELEVANT FACTUAL BACKGROUND

          A. L.H.'s Background

         L.H. is a ten year old boy, who was born in 2005 and, at the time of the hearing before the ALJ, was in the third grade. R. 44, 85. L.H. was four years old on March 29, 2010, the alleged onset date of disability. R. 97.

          B. Relevant Medical Records from November 2, 2009

         Hospital Records

         L.H. received treatment at the Clay County Medical Center on three occasions in 2011 and 2012. First, on January 17, 2011, L.H. received treatment at the emergency room for having broken off the cotton tip of a Q-tip in his right ear, while cleaning the ear. R. 271-77. The emergency physician's notes regarding past history contains notations for "ADD" and asthma. R. 272. Second, on November 27, 2011, L.H. received treatment at the emergency room for a cough, congestion, fever, sore throat, and stomach pain. R. 259-60. A patient history taken on this date noted the medications Zyrtec, Singulair, and Albuterol. Following an examination, a negative strep test, and laboratory results showing normal blood and urine samples, L.H. was discharged with prescriptions for Zyrtec, Nystatin cream (for jock itch), and Amoxicillin. R. 261, 264, 267. Third, on February 16, 2012, L.H. was treated for cellulitis, associated with a skin wound that had become infected. R. 357-39.

         Community Counseling Services Records

         L.H. received services from Community Counseling Services ("CCS") of the Department of Mental Health from November 2, 2009 through April 8, 2013. On the November 2, 2009 visit, L.H. was diagnosed as having ADHD and ODD (axis I), asthma and anemia (axis III), family stressors (axis IV), and assigned a global assessment functioning ("GAF")[3] score of 35. The provider noted that L.H., who was then five years old, was reported to display behaviors "such as acting out, throwing temper tantrums, hitting, and not following directions for the last [four] years." R. 291. The provider notes further report that L.H. failed to stay in his seat at school, struggled academically and in expressing his feelings, had bladder and bowel control issues, and cried uncontrollably when awakened from sleep. R. 291.

         Thereafter, during the school year from November 2009 through June 2010, L.H. received group and individual therapy on approximately 28 occasions with CCS therapists to work on increasing his attention span, self-control, academic progress, social skills, ability to follow directions, and compliance with medications. R. 284-90. During this time period, the therapists' notes indicate that L.H. generally experienced improvement and made progress (although sometimes intermittent) towards meeting these treatment goals. R. 284-90.

         This therapy continued during the next school year over the course of approximately 18 sessions from September 2010 through April 2011. This therapy sought to improve L.H.'s attention span, social skills, behavior at school, self and impulse control, coping skills, and to monitor his academic performance. R. 270-83. On October 26, 2010, L.H.'s mother reported to the therapist that L.H. had been identified as being 18 months behind developmentally. R. 283. In November 2010, L.H.'s teacher reported that his academic performance was below average and therapist notes indicate that, during this month, L.H. struggled with social skills, repeatedly got out of his seat at school, "express[ed] defiant behavior, " and was generally non-compliant with directions to control his behavior. R. 282. In the months that followed, however, L.H.'s behavior and academic performance generally improved significantly, as reported by both the therapist and the teachers with whom she spoke. R. 279 (March 23, 2011: mother and therapist both indicate L.H. making "great progress" towards behavioral and therapeutic goals); 280 (January and March 2011: "received good reports from his teacher" and "has greatly improved academically"); 281 (January 19, 2011: "Teacher reported... greatly improved behavior").

         On December 21, 2011, L.H. was evaluated by Dr. S. Aleem at CCS. A mental status examination revealed normal findings. R. 278. L.H.'s mother reported, as discussed further below, that he had been prescribed a Daytrana patch for ADHD and L.H. was not doing well and that his grades were "not at all good." R. 278. Dr. Aleem recommended that L.H. continue with the Daytrana and his CCS therapy and that he undergo psychological testing. R. 278. Dr. Aleem's diagnoses at this time were ODD, ADHD NOS, and intermittent explosive disorder. R. 278.

         During the 2011-2012 school year, L.H. met with his therapist on February 7 and April 11, 2012. R. 346. During the first meeting, L.H. reported doing well that week ("received all greens") and the therapist noted he was making progress. During the second session, the therapist noted that his teachers had reported that L.H. was not making progress with following class rules and doing his work. R. 346.

         On June 20, 2012, L.H. had a follow-up appointment with Dr. Aleem. R. 372. The assessment reflected in Dr. Aleem's medical progress notes recited both "ODD" and "ADHD NOS." R. 372. Dr. Aleem's mental status exam again reviewed normal findings. R. 372. During the visit, L.H.'s mother reported that L.H.'s medications were "helping somewhat, " but that he exhibited "hyperactivity [and] disruptive behavior." R. 372. Dr. Aleem noted that, although L.H. had not received any medication on the day of the appointment, he was able "to sit mostly quietly [and] answer smartly...." R. 372. At Dr. Aleem's suggestion, L.H.'s mother agreed to a "drug holiday" for the summer, but she requested continuing therapy and counseling for her son. R. 372.

         L.H.'s therapy then resumed in September 2012 and apparently concluded for the school year, after approximately 18 sessions, in April 2013. R. 360-71. Therapist notes from September 5, 2012, indicate that the therapist counseled L.H. for twisting another classmate's arm, reportedly while playing in the bathroom, and that L.H. admitted that he knew his behavior was wrong and apologized. R. 371. On October 8, 2012, L.H.'s mother expressed concerns about his "extremely hyper" behavior upon returning home from school and a recent series of episodes of vomiting and coming home from school due to an upset stomach. R. 370. The therapist referred the mother to the family doctor and noted L.H. had mild behavioral issues and needed to work on impulse control and coping skills. R. 370. While noting that L.H.'s behavior was "mild" on October 8, 2012, the therapist also reported he needed to work on impulse control and following directions. R. 369. On November 5, 2012, the therapist noted that L.H. displayed a positive attitude, remained on task, and followed directions at school. R. 369.

         On November 4, 2012, CCS created an individual service plan for L.H. R. 367-68. The plan identified diagnoses of ADHD and ODD on axis I and asthma on axis III and specified a global assessment function score of "50/55." R. 367. The plan focused on L.H.'s impulsive behavior and problems in following directions and in expressing himself and his feelings, which issues reportedly dated back three to four years and recurred frequently. R. 367. The plan identified a long term goal of completion of high school and short-term objectives of using impulse control techniques, developing and using coping skills in connection with learning how to verbalize and express himself, and improving his ability to follow directions. R. 368.

         Therapist notes from November and December 2012 document the completion of paperwork for L.H. to take medication at school (as he was now taking such medication three times per day) and that he had also been prescribed medication for bladder control and to increase his appetite. R. 365-66. The notes from these visits indicate L.H. reportedly was doing "okay" or "good" and that his behavior was mild or stable. R. 365-66.

         In January 2013, the notes indicate that the therapist counseled L.H. to be sure to respond when spoken to by others, rather than just staring and looking back at them. R. 365. Other notes from January 2013 report that a family member said that a teacher indicated that L.H. had been doing "little things every day" and had refused to follow the teacher's requests at times. R. 364. The therapist expressed concern that the defendant's medications either were not being given to L.H. or that an adjustment was needed. R. 364.

         In February 2013, L.H. reported to the therapist that he was "good, " had been keeping his hands to himself, and was interacting well with others. R. 363. The therapist also noted that she had received "no reports of negative interaction with peers" and identified L.H.'s behavior as "stable." R. 363. Also in February, the therapist discussed how to ensure L.H. took his medication. R. 363.

         In March and April 2013, therapist notes indicate that L.H. began to exhibit unstable behavior, involving "being a little disrespectful, not following directions, and not being verbal, " and the therapist reported noticing that L.H. had "to have instructions or directions given to him [three] or more times" before responding. R. 361-62. The therapist recommended visiting the family doctor and seeking a medication adjustment. R. 361. Similar problems were noted on April 8, 2013, when L.H. appeared to be off his medication and awaited a re-fill of a prescription. R. 360.

         Psychological Evaluation by Glenn Ellis, Ph.D.

         In late June 2012, Dr. Glenn Ellis conducted a psychological evaluation of L.H. at the request of CCS. R. 412-15. As part of this evaluation, Dr. Ellis assessed L.H. on two occasions, administered certain tests to him, and spoke with his mother, who accompanied L.H. to the appointments. R. 412. During the evaluation, Dr. Ellis noted that L.H. was "mildly hyperactive, " "stood throughout the assessment process, " and had difficulty sitting "without squirming or fidgeting." R. 414. Dr. Ellis also noted that he found it difficult to understand L.H.'s speech due to the fact that he either "spoke very softly or possibly exhibited a speech impediment." R. 414. Intelligence testing by Dr. Ellis revealed a full-scale IQ score of 85, indicative of a low average range of ability. R. 413. Based on L.H.'s performance on a word recognition test, Dr. Ellis judged him to be at a "third grade reading level, " at a time when L.H. would be starting second grade in the fall. R. 413-14. Dr. Ellis further noted that, while testing showed L.H.'s pure recall to be "exceptionally strong, " L.H. "functionally got lost" when engaging in "mental manipulations to use his memory, " consistent with ADHD. R. 413. Other testing and evaluation tools used by Dr. Ellis indicated that L.H. had difficulty maintaining attention to and in organizing tasks, in following instructions, and in avoiding distractions. R. 414. Based on his examination, Dr. Ellis diagnosed ADHD and assigned a GAF score of 70. R. 414-15. Dr. Ellis also recommended that: (a) L.H. continue his treatment with CCS and medication to address his hyperactivity and impulse control problems; (b) L.H. be evaluated by a speech therapist; (c) L.H. receive counseling to address apparent emotional dependence upon his mother; (d) his teachers be advised of his weaknesses and capabilities and that his academic performance be monitored to assess the utility of his medication; and (e) a CCS case worker be assigned to assist L.H.'s mother. R. 415.

         West Point Children's Clinic Records

         From October 2010 through April 2013, L.H. also made routine visits for care at the West Point Children's Clinic from his primary care provider, Byron Watson, M.D. R. 293-322, 373-411. On October 26, 2010, treatment records note a past medical history of an enlarged heart, asthma, nasal surgery, and ADHD/ODD. R. 293. At that time, L.H.'s medications included Albuterol Sulfate, Pulmicort, Singulair, Proventil, Procentra, and DDAVP. R. 293.

         On August 11, 2011, L.H. saw Dr. Watson for an ADHD follow-up at which time his mother reported that L.H. had not taken his ADHD medication all summer because it caused stomach aches. R. 302. His mother also reported that L.H.'s teacher advised he did not perform well in school that day and L.H. was up until 11:30 p.m. the night before doing homework. R. 302. Dr. Watson noted his prior assessment of ADHD remained unchanged, but prescribed a one month trial of Vyvanse. R. 305. At a follow-up visit on September 21, 2011, Dr. Watson reported that, although L.H. reported having belly pains and headaches, that the medication was "working well, " the ADHD was "improved, " and that L.H.'s mother reported that his grades, home and classroom behavior, and self-esteem were all "good." R. 306, 308-09. To deal with stomach issues, Dr. Watson suggested that the medication be administered at school with breakfast. R. 309.

         On October 19, 2011, Dr. Watson's notes reflect that, while L.H.'s mother reported his classroom behavior was good, he was receiving failing grades at school and behaving poorly at home, and was still experiencing stomach distress from Vyvanse. R. 310, 312. Dr. Watson discontinued use of Vyvanse and instead prescribed Daytrana, to be administered via a medicine patch. R. 312-13.

         On January 2, 2012, Dr. Watson saw L.H. for an ADHD follow-up appointment and noted that, although L.H.'s school performance was poor and he was being evaluated for special education and an individualized education program ("IEP"), his behavior was "much improved" and the patient was "pleased with the medication and wishes to continue the current therapy." R. 322.

         During a visit on February 16, 2012, Dr. Watson observed contact dermatitis on L.H.'s trunk where the medicine patches were used and prescribed Hydrocortisone to deal with the rash. R. 374-76. Notes from this visit reflect that L.H. had no asthma spells in the last 30 days. R. 373.

         On April 16, 2012, Dr. Watson saw L.H. for an upper respiratory infection and an ADHD follow up appointment. R. 378. L.H. reported one prior asthma spell in the preceding 30 days and complained of wheezing and fatigue. R. 378. L.H.'s mother advised that L.H. was "doing well" on Daytrana and getting "green, " or good behavior reports, "most of the time" from school. R. 229, 378. Dr. Watson continued to note L.H.'s ADHD as "improved" and prescribed a medication for an upper respiratory infection, as well as Daytrana, and directed that L.H. take Albuterol for wheezing, as needed. R. 380-81.

         On August 24, 2012, L.H. visited Dr. Watson for an ADHD follow-up and the treatment notes report that L.H. lacked focus and attention at school, was not completing his work, and was "hyper" and not sleeping at home. R. 388. Dr. Watson directed that L.H. continue with Daytrana, but also prescribed a new medication, Ituniv, and referred L.H. to a urologist "for persistent enuresis." R. 388.

         On February 13, 2013, L.H. again visited Dr. Watson for an ADHD follow-up and the treatment notes report that L.H.'s ADHD had "deteriorated" and that patches were no longer working and caused skin irritation. R. 394, 396. In response, Dr. Watson discontinued L.H.'s use of Daytrana and Ituniv and prescribed Focalin. During this visit, L.H. reported having one asthma spell in the preceding 30 days. R. 394. When, on March 7, 2013, L.H.'s mother reported that L.H. could not tolerate Focalin and was vomiting after every dose, Dr. Watson substituted a prescription for Vyvanse and directed L.H.'s mother to dissolve the dose in water before administering it. R. 400. On April 4, 2013, Dr. Watson noted a "[d]ramatic improvement" in L.H.'s ADHD but, due to L.H. reportedly having some problems in the afternoons, increased the dosage from 20 to 30 mg. R. 404-05. During this visit, L.H.'s mother reported that his grades, self-esteem, and home behavior were "fair" and his classroom behavior was "good." R. 402. At this time, L.H.'s ...


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