United States District Court, E.D. Virginia, Norfolk Division
J.M. by her next friend Jessica Nunley, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
G. DOUMAR, UNITED STATES DISTRICT JUDGE
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") 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.
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. 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.
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.
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.
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. 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. ECF No. 27.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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 ...