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J.M. v. Berryhill

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

February 13, 2017

J.M. by her next friend Jessica Nunley, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          ROBERT G. DOUMAR, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court by Jessica Nunley's ("Plaintiff) Objection. ECF No. 26, on behalf of her minor daughter. J.M., to Magistrate Judge Lawrence R. Leonard's Report and Recommendation (L1R&R,, ), ECF No. 23. For the reasons slated herein, the Court: (1) ACCEPTS the R&R. ECF No. 23; (2) DENIES Plaintiffs Motion for Summary Judgment, ECF No. 12; (3) GRANTS the Acting Commissioner of the Social Security Administration's ("Defendant")[1] Motion for Summary Judgment, ECF No. 13; and (4) A KIT RMS the final decision of the Defendant. Accordingly, this matter is DISMISSED WITH PREJUDICE.

         I. PROCEDURAL BACKGROUND

         On May 23, 2012, Ms, Nunley initially filed J.M.'s application for Disability Insurance Benefits ("DIB"), alleging disability due to developmental delay, expressive language disorder. and pica with an onset date of August 1, 2009. R. 156-57.[2] Her application was initially denied on November 9, 2012, Id. at 90-94, and again denied upon reconsideration on July 2, 2013, Id. at 97-105. Ms. Nunley then requested a hearing in front of an administrative law judge ("ALJ"), which was conducted on March 26, 2014. Id. at 38-66. The ALJ, Judge Alfred J. Costanzo, issued a decision denying Ms. Nunley's DIB application for J.M. on May 5, 2014. Id. at 10-30. In the decision, the ALJ concluded that J.M. has not been disabled, as defined in the Social Security Act, since May 23, 2012, the date the application was filed. R. 27. On May 5, 2014, Ms. Nunley filed a request with the Appeals Council to reconsider Judge Costanzo's decision. Id. at 1. On August 28, 2015, the Appeals Council denied Ms. Nunley's request for review because the ALJ's decision was supported by substantial evidence and Plaintiffs claims did not warrant review, making the ALJ's decision the Commissioner's final decision. Id. at 1-6.

         Having exhausted her administrative remedies, Ms. Nunley filed the instant complaint for judicial review, pursuant to 42 U.S.C. § 405(g), of the Acting Commissioner's decision on October 29, 2015. ECF No. 3. The Acting Commissioner filed an Answer on December 30, 2015. ECF No. 8.

         On January 6, 2016, pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to U.S. Magistrate Judge Lawrence R. Leonard. ECF No. 10. Ms. Nunley filed her Motion for Summary Judgment on February 11, 2016, ECF No. 12, and the Acting Commissioner filed a Cross-Motion for Summary Judgment and a Memorandum in Support on March 11, 2016, ECF Nos. 13 and 14. On May 6, 2016, Ms. Nunley filed a reply brief in support of her own motion for summary judgment and in opposition to the Acting Commissioner's motion. ECF No. 19.

         On December 22, 2016, Magistrate Judge Leonard issued his R&R, which recommended that the Court deny Ms. Nunley's Motion for Summary Judgment, grant the Defendant's Motion for Summary Judgment, and affirm the Acting Commissioner's final decision. ECF No. 23. On January 13, 2017, Ms. Nunley filed a Motion for Extension of Time, ECF No. 24, requesting an extension of time to submit written objections to the R&R. ECF No. 23. On January 17, 2017, the Court granted the Motion and ordered that Ms. Nunley file any written objections by January 24, 2017.[3] ECF No. 25. On January 23, 2016, Ms. Nunley timely filed and served on Defendant her Objection. ECF No. 26. Defendant did not timely file a Response.[4] ECF No. 27.

         II. FACTUAL BACKGROUND

         A. J.M.'s Background

         In her application, Ms. Nunley alleged J.M.'s disability onset date was August 1, 2009. R. 156-57. J.M. was in kindergarten at the time of filing and had undergone occupational and speech therapy for her developmental delay, expressive language disorder, and pica. Id. at 157, 159. At the administrative hearing on March 26, 2014, Ms. Nunley was the sole witness, Id. at 39, where she provided the following testimony:

         Ms. Nunley testified that J.M. was in the first grade and lived with her in an apartment. Id. at 42-44. J.M. has a sister in kindergarten who does not live with them and Ms. Nunley has never been married and does not receive child support. Id. at 43. J.M. had an academic Individualized Education Program ("IEP") to help with her difficulties in writing, science, math, and reading comprehension. Id. at 45-46. Ms. Nunley said J.M. received mostly Ds and Cs in school, and that J.M.'s school would allow her to decide whether her daughter would repeat the first grade. Id. In addition, J.M. had good attendance at school and did not have any behavior problems. Id. at 45, 47. She had friends in school and in her neighborhood, and she also participated in Girl Scouts, which she enjoyed. Id. at 47.

         Moreover, Ms. Nunley testified J.M.'s biggest difficulty was handling her frustration. Id. at 48-50. She also said J.M. has an expressive speech disorder that inhibits her from answering open-ended questions, retelling stories, and being understood by people not familiar with her. Id. at 51-52. Ms. Nunley stated J.M. does not take any medication and has not experienced any health problems related to her sickle cell. Id. at 52-54. J.M. received occupational and speech therapy in school and additional speech therapy once a week outside of school. Id. at 57. J.M. did not suffer from any physical problems and can run, walk, feed herself, cut with scissors, bathe, and dress herself. Id. at 57-59. J.M. experienced some incontinence problems while at school, but her IEP allowed her to use the bathroom whenever she needed. Id. at 61.

         According to J.M.'s school records, an IEP from May 31, 2012, revealed that she had mastered 50% of her IEP goals, could speak in complete sentences, identify colors, letters, and numbers up to ten, recognize family members, and follow the classroom routine, Id. at 192-93. The IEP stated she had difficulty following multiple step directions and "answering yes/no and "wh[-]" questions on a consistent basis." Id., at 193. Additionally, the IEP provided J.M.'s "overall language skills have improved, " but that she "continues to have receptive and expressive language delays in the areas of vocabulary, responding to question, sentence structure, and sequencing skills" and "also delays in the area of pragmatic language skills." Id. at 194. However, J.M. does not have difficulty with her social/emotional functioning, motor and/or daily living skills, work habits/ work adjustment skills, home/independent living, or community participation. Id. Ultimately, the IEP concluded J.M. has a sensory integration disorder and that she would be placed in an inclusion kindergarten classroom and receive 600 minutes of Specially Designated Instruction and sixty minutes of speech therapy every week. Id. at 195.

         J.M.'s special education teacher and her kindergarten teacher completed a teacher questionnaire on April 9, 2013. Id. at 182-89. They noted that in the category of acquiring and using information, she had serious problems in eight of the ten indicators and obvious problems in the other two. Id. at 183. In the category of attending and completing tasks, J.M. had serious problems in seven of the thirteen indicators, obvious problems in two, slight problems in two, and no problems in two. Id. at 184. Further, in the category of interacting and relating with others, J.M. demonstrated obvious problems in four of the thirteen indicators, slight problems in one, and no problems in the remaining seven. Id. at 185. The teachers indicated that they could understand almost all of J.M.'s speech "after repetition and/or rephrasing." Id. at 186. In the category of moving about and manipulating objects, they noted J.M. had obvious problems in three of the seven categories, slight problems in two of them, and no problems in the other two. Id. The teachers wrote that J.M. "usually manages well, but seems to fall/trip more than average" and that she receives occupational therapy for handwriting and cutting. Id. In the category of caring for herself, the teachers said J.M. presented serious problems in four of the ten indicators, obvious problems in two, slight problems in one, and no problems in three. Id. at 187. In the section for medical conditions, the teachers wrote that J.M. has pica, eczema, and sickle cell anemia but they have "not impacted function in the classroom." Id. at 188.

         On January 14, 2014, J.M. underwent an IEP classification assessment. Id. at 206. She was in the 37th percentile for nonverbal cognitive ability, the 82nd percentile for academic skills, the 77th percentile for brief reading skills, the 65th percentile for math calculation skills, and the 70th percentile for brief writing skills. Id. Overall, her scores were considered in the "range from high average to above average." Id. The IEP report stated J.M. had a "supportive home environment, " but that she "demonstrates severe language difficulties which limit her communication" and "shows characteristics of Autism." Id. at 207.

         J.M.'s first grade teacher completed a teacher questionnaire on February 7, 2014. Id. at 216-27. The teacher wrote that J.M. was on grade level for reading, but below grade level for math and writing. Id. at 216. The teacher noted that in the category of acquiring and using information, J.M. had very serious problems in three of the ten indicators, serious problems in five of them, and slight problems in two. Id. at 217. In the category of attending and completing tasks, J.M. had very serious problems in six of the thirteen indicators, serious problems in one, obvious problems in three, and slight problems in three. Id. at 218. In the category of interacting and relating with others, J.M. demonstrated serious problems in four of the thirteen indicators, obvious problems in three, and slight problems in six. Id. at 219. J.M.'s teacher said she could not understand more than half of J.M.'s speech after repetition and/or rephrasing. Id. at 220. In the category of moving about and manipulating objects, she noted J.M. had obvious problems in two of the seven categories and slight problems in five of them. Id. In the category of caring for herself, J.M.'s teacher said J.M. presented serious problems in six of the ten indicators, obvious problems in one, and slight problems in three. Id. at 221. In the final section for medical conditions, J.M.'s teacher noted J.M. "experienced incontinence throughout the first semester of school, but has not had any problems lately." Id. at 222.

         J.M.'s update to her IEP placement on February 27, 2014, stated that she is "using a functional pencil grasp when writing" and "has made good progress with letter and number formation." Id. at 235. J.M. "is able to produce legible work with [minimal] verbal cues for spacing and line orientation, " but she "often requires moderate redirection throughout a treatment session to remain focused on the task and this affects her written work." Id. An instructional testing accommodation from the same date explained that J.M. "requires the use of a study carrel during testing to reduce stimuli and distractibility" and that she receives tests in a small group and is allowed to take "reasonable breaks ... to minimize fatigue." Id. at 236. An IEP Team Meeting Summary on March 11, 2014, stated that J.M. was "on grade level and does not require goals and objectives in academic areas, " but that she would receive sixty minutes per week of speech services and 120 minutes of occupational therapy services. Id. at 237.

         Furthermore, J.M.'s medical records date back to June 28, 2012, when she underwent an occupational therapy evaluation that showed she "performed below age level across all testing" and that "[d]efinite issues were noted with (1) sensory processing ... (2) sensory modulation ... and (3) behavior and emotional responses." Id. at 259. After occupational therapy from July 2012 to September 2012, Id. at 263-343, J.M. "made great progress across skill areas with improvement on both assessments." Id. at 342. J.M. "benefit[ed] well from modeling and appears to be a quick learner. No sensory deficits impacting function or performance at this time." Id.

         On August 9, 2012, J.M. went through a speech language assessment after "parental concerns with expressive language" such as not speaking much at school or around new people. Id. at 280. The speech therapist concluded she had a "moderate-severe receptive and expressive language disorder" due to her "difficulty understanding concepts, age appropriate grammatical structures (pronouns, possessives and plurals) and negation." Id. at 282. J.M. was recommended to undergo speech therapy services for one hour per week for a year. Id. After six months of speech therapy, on February 28, 2013, J.M.'s progress note stated that that her "goals [were] achieved for use of 4-5 word utterances and answering yes/no questions, " and that she had made "[i]mprovements with present progressive verbs." Id. at 422. J.M.'s speech therapy ran until August 12, 2013. Id. at 423-65.

         J.M. presented for a social/behavioral evaluation on January 15, 2014. Id. at 471. The doctor found she "was able to focus for brief periods up to two-to-three minutes with one-to-one instruction" and "attended to examiner questions and instructions with intrusive prompting." ]d During the assessment, J.M. "was able to communicate using simple phrases, gestures, and physical movement" and "had a good understanding of 'no, ' and 'yes' responses." Id. The doctor administered the Autism-Diagnostic Observation Schedule-Second Edition (ADOS-2) and found "[t]he results of this instrument indicate that [J.M.] shows behaviors consistent with the criteria for the autism spectrum cut-off score..... with a low level of evidence of autism related symptoms." Id. at ...


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