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Werner v. Colvin

United States District Court, W.D. Virginia, Harrisonburg Division

September 23, 2016

CAROLYN WERNER, on behalf of A.L.M., a minor child, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM OPINION

          Joel C. Hoppe, United States Magistrate Judge.

         Carolyn Werner, on behalf of Plaintiff A.L.M., a child under the age of eighteen, asks this Court to review the Commissioner of Social Security's (“Commissioner”) final decision denying A.L.M.'s application for supplemental security income (“SSI”) under Title XVI of the Social Security Act, as amended (“The Act”), 42 U.S.C. § 1381, et seq.; 20 C.F.R. § 416.1481. The case is before me by the parties' consent under 28 U.S.C. § 636(c)(1). Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that the Commissioner's decision is not supported by substantial evidence and that the case must be remanded for further administrative proceedings.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

         “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). Ultimately, this Court must affirm the ALJ's factual findings if “conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         A person under the age of eighteen is “disabled” under the Act if he or she “has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). Social Security ALJs follow a three-step process to determine whether an applicant under the age of eighteen is disabled. The ALJ asks, in sequence, whether the applicant (1) is working; (2) has a severe impairment; and (3) has an impairment that meets or equals an impairment listed in the Act. 20 C.F.R. § 416.924. If the ALJ determines that the child has a severe impairment, at step three the ALJ must compare how appropriately, effectively, and independently the child performs activities compared to other children of the same age without such impairments. 20 C.F.R. § 416.926a(b). In doing so, the ALJ must ascertain which of six domains of functioning are implicated and rate the severity of the limitations in each affected domain. Id. The six domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for himself or herself; and (6) health and physical well-being. Id. To functionally equal the listings, the child's impairment or combination of impairments must result in a “marked” limitation in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(d). The applicant bears the burden of proving disability. See 20 C.F.R. § 416.912(a).

         II. Procedural History

         Werner, on behalf of A.L.M., filed for SSI on August 12, 2011. Administrative Record (“R.”) 78, ECF No. 10. A.L.M. was nine years old at the time. Id. He alleged disability beginning at his birth on February 21, 2002, because of post traumatic stress disorder and autism. Id. On February 11, 2013, he amended the disability onset date to August 1, 2011. R. 162. Disability Determination Services (“DDS”), the state agency, denied his claim initially and on reconsideration. R. 78-86, 87-96. A.L.M. appeared with Werner and his counsel at an administrative hearing on February 15, 2013. R. 47-77. He testified regarding his daily activities, his performance in school, and his physical capabilities. R. 56-62. Werner, who is A.L.M.'s grandmother, also testified regarding his medication, school performance, and daily activities. R. 63-77.

         The ALJ denied A.L.M.'s application in a written decision dated June 28, 2013. R. 20- 41. He found that A.L.M. had severe impairments of Asperger Syndrome, [1] Attention Deficit Hyperactivity Disorder (“ADHD”), [2] and pervasive developmental disorder.[3] R. 23. He determined that these impairments, alone or in combination, did not meet or equal a listing pursuant to 20 C.F.R. §§ 416.924 and 416.926a. R. 23-41. Assessing the six functional domains, the ALJ concluded that A.L.M. had marked limitation in attending and completing tasks, but less than marked limitation in acquiring and using information, interacting and relating with others, moving and manipulating objects, and caring for himself, and no limitation in health and physical well-being. R. 34-40. He therefore determined that A.L.M. was not disabled under the Act. R. 41. The Appeals Council declined to review that decision, R. 1-5, and this appeal followed.

         III. Statement of Facts

         A. Medical Evidence

         Kenneth Norwood, M.D., evaluated A.L.M. for autism on August 11, 2011. R. 292-96. Dr. Norwood diagnosed A.L.M. with Autism Spectrum Disorder and noted that he thought Asperger Syndrome was the most likely fit. R. 295. Dr. Norwood evaluated A.L.M. in person, reviewed a questionnaire filled out by A.L.M.'s grandparents, and discussed A.L.M. with his family. R. 292. At the time of the evaluation, A.L.M. was nine years old, but his grandmother noted that he acted like a five-year-old and had very poor social interaction. Id. He was, however, on time for development and talking and could follow directions. Id. He had difficulty with eye contact and would often get easily sidetracked. Id. Further, he had difficulty understanding body language and jokes and had no friends at school. R. 293. He did play with his brother, watched a lot of television, played pretend, and enjoyed swimming. Id. A.L.M. was at an appropriate grade level for all academics and loved reading. R. 294. A.L.M. had variable and often fleeting eye contact, poor prosody, and some hand flapping. Id. He had abnormal muscle tone and abnormal coordination, was a slow, awkward runner, and was unable to skip. R. 295. A.L.M. had mood issues related to significant neglect early in his life and his inability to make friends, but Dr. Norwood expressed the opinion that the autism spectrum disorder was unrelated to the neglect. R. 295-96. Dr. Norwood provided A.L.M.'s grandparents with an autism packet, suggested that he would benefit from an individualized education program (“IEP”), and encouraged extracurricular activities “to help with socialization and motor development.” R. 296.

         On July 31, 2012, A.L.M. visited the University of Virginia (“UVA”) Hospital for a follow-up appointment. R. 417-22. His grandmother was concerned that A.L.M. was worsening because he would get frustrated and would blow up when fighting with his brother. R. 421. Additionally, A.L.M. had not interacted with other children during a school field trip. Id. A.L.M.'s grandmother reported that he was on level for reading and spelling, but not for math. Id. She requested a counselor for A.L.M. given her concerns about his behavior. Id.

         A.L.M. began seeing Valeri Pineo, a Licensed Professional Counselor, at Augusta Psychological Associates on August 16, 2012. R. 347. Ms. Pineo performed an intake evaluation, noting A.L.M.'s family history was significant for numerous mental illnesses and that his grandmother reported he had “lived in chaos” since a very early age. Id. A.L.M. had been diagnosed with ADHD, but his grandmother refused to give him medication to treat it. Id. A.L.M. reportedly did well in school, and, despite his shyness with peers, his grandmother denied he had major social issues. Id. Ms. Pineo noted that A.L.M. was extremely guarded with poor eye contact and a flat and depressive affect, but suicidal ideation, self-harm gestures, and psychotic symptoms were denied. R. 348. A.L.M. refused to speak, so she found his genuine level of cognitive processing to be unknown, but noted he appeared oriented to the place and situation. Id. She also noted that A.L.M. had never been in counseling, except for a counselor at school. Id. Ms. Pineo diagnosed A.L.M. with adjustment disorder, assigned him a Global Assessment of Functioning (“GAF”)[4] score of 61, [5] and recommended further counseling. Id.

         A.L.M. visited Ms. Pineo three times in September 2012. On September 13, Ms. Pineo noted that A.L.M. was oriented and cooperative and that he had the ability to care for himself. R. 349. She noted that he was anxious, but that he allowed her to call him by his name, R. 349, which he had not allowed at their previous meeting, R. 347. On September 21, A.L.M. was oriented, but hyperactive, distractible, and anxious, and Ms. Pineo noted these behaviors are often present in children who have Asperger Syndrome. R. 350. A.L.M. had difficulty completing and handing in work at school, but he would quickly verbalize excuses in his defense. Id. She noted that he was still able to care for himself. Id. On September 25, A.L.M. was oriented and cooperative, although he remained hyperactive and anxious, and he exhibited a flight of ideas. R. 351. At all three appointments, Ms. Pineo's plan for the future included establishing healthy boundaries with self and others, relaxation techniques, and communication and coping skills. R. 349-51.

         On October 26, 2012, A.L.M. returned for another session with Ms. Pineo. R. 352. A.L.M. was oriented, his affect was anxious and flat, and he was cooperative despite being agitated. Id. Ms. Pineo noted that he continued to struggle with task completion, especially when he arrived home from school, and Ms. Pineo suggested making a schedule. Id. Ms. Pineo felt that Werner “needs to be needed” by A.L.M. and encouraged his separation anxiety. Id. She noted that despite his pervasive anxiety symptoms and Asperger Syndome, he was capable of being much more independent than he currently was, and Ms. Pineo believed that Werner created a “culture of fear, ” which caused A.L.M. to fear trying things on his own. Id. Werner also blamed others for any failure by A.L.M. and encouraged his reluctance to try again by telling him he is “fine the way he is.” Id.

         In November, A.L.M. returned for therapy with Ms. Pineo three times. On November 6, Ms. Pineo noted that A.L.M. had a restricted range of interests, was oriented, had an appropriate but anxious affect, and was hyperactive but cooperative. R. 354. On November 16, Ms. Pineo noted that A.L.M. had separation anxiety when he was away from his grandmother and he had a difficult time when he visited his father because the loud and busy household over-stimulated and exacerbated his anxiety. R. 355. She felt that A.L.M. was an excellent candidate for medication given his extremely high anxiety level, but noted that A.L.M.'s grandmother was resistant. Id. He was oriented, anxious and euphoric, and again hyperactive but cooperative. Id. On November 30, Ms. Pineo found that A.L.M. continued to struggle with social situations, particularly at school. R. 357. She also noted that A.L.M.'s grandmother encouraged and facilitated A.L.M.'s dependence on her and reinforced his separation anxiety. Id. Ms. Pineo again recommended medication, and A.L.M.'s grandmother ...


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