United States District Court, E.D. Virginia, Norfolk Division
Plaintiff, Pro Se.
Carolyn W. Colvin, Defendant, represented by Daniel Patrick
Shean, U.S. Attorney's Office.
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK, Magistrate Judge.
Matthews brought this action on behalf of her minor son, L.H.
("plaintiff"), pursuant to 42 U.S.C. Â§Â§ 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.
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. Â§ 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)
Matthews filed an application for SSI on January 9, 2012 on
her son's behalf, R. 135-40, 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. 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.
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. Â§Â§ 405(g), 1383(c)(3); 20 C.F.R. Â§Â§
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.
RELEVANT FACTUAL BACKGROUND
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.
Relevant Medical Records from November 2, 2009
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.
Counseling Services Records
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") 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.
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.
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
Evaluation by Glenn Ellis, Ph.D.
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.
Point Children's Clinic Records
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.
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.
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.
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.
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.
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.
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.
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 ...