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Taylor v. Berryhill

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

December 21, 2017

SHONTE L. TAYLOR, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          UNITED STATES MAGISTRATE JUDGED REPORT AND RECOMMENDATION

          Robert J. Krask United States Magistrate Judge

         Shonte L. Taylor, proceeding pro se, brought this action on behalf of her minor son, S.T., 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 plaintiffs application for supplemental security income ("SSI") under Title XVI of the Social Security Act.

         An order of reference dated March 8, 2017, assigned this matter to the undersigned. ECF No. 12. 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 plaintiffs motion for summary judgment, ECF No. 15, be GRANTED in part and DENIED in part, and that the Commissioner's motion for summary judgment, ECF No. 18, be DENIED.

         I. PROCEDURAL BACKGROUND

         Shonte L. Taylor ("plaintiff) filed an application for SSI on October 18, 2013 on behalf of her son, S.T. ("claimant"), alleging he became disabled on June 1, 2012 due to attention deficit hyperactivity disorder ("ADHD") and oppositional defiant disorder ("ODD"). R. 11, 72, 134-43.[2] The Commissioner denied plaintiffs claim on April 3, 2014 and, upon reconsideration, on June 18, 2014. R. 92-96, 102-10. At plaintiffs request, an Administrative Law Judge ("ALJ") heard the matter on February 22, 2016, and at that hearing received evidence from the claimant, plaintiff, and Eugene Leftwich, claimant's in-home counselor.[3] R. 29-71. On May 18, 2016, the ALJ denied plaintiffs claim, concluding that S.T. was not disabled from October 18, 2013 through the date of the decision. R. 8-24.

         On September 1, 2016, the Appeals Council denied plaintiffs request for review of the ALJ's decision. R. 1-3.[4] 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. §416.1481. Having exhausted all administrative remedies, plaintiff filed a pro se complaint with this Court on December 20, 2016, alleging that the SSA improperly denied benefits to her son. ECF No. 3.[5] The Commissioner answered on February 27, 2017. ECF No. 9. In response to the Court's order, the parties filed motions for summary judgment, on April 18 and May 19, 2017, respectively. ECF Nos. 15, 18. Plaintiff replied to the Commissioner's motion for summary judgment on June 9, 2017. ECF No. 22.[6]

         II. RELEVANT FACTUAL BACKGROUND

         A. S.T.'s Background

         S.T. is a 13 year old boy, who was born in 2004. R. 14. He was a school age child (between the ages of 6 and 12) in 2013, when the application was filed, and is now an adolescent (between the ages of 12 and 18). R. 14; see 20 C.F.R. § 416.926a(g)(2). He was 8 years old on June 1, 2012, the alleged onset date of disability.

         B. Relevant Medical Records

         Records of North Shore Pediatrics. LLC

         On June 7, 2013, Joseph Toland, M.D., evaluated S.T. for ADD/ADHD. R. 288. Dr. Toland noted that S.T. was generally well, but had many features of attention deficit disorder ("ADD"). R. 291. Dr. Toland discussed ADD with plaintiff and prescribed Ritalin. R. 291. At that evaluation, plaintiff indicated that S.T. was struggling with school, was poorly organized, but was well supported by his teachers, well connected with his peers, and was not hyperactive. R. 290. Dr. Toland noted that S.T.'s concerns about his absent father, the family's recent move to Arkansas, and his brother's diabetes likely played a role in his ADD. R. 291.

         On July 16, 2013, S.T. was seen by Rebecca Myers, N.P., for a medication check. R. 285. Nurse Myers indicated that S.T. was struggling in school and barely passed third grade, that his mood was labile, that he was hyperactive, and that he had major family problems. R. 287. She noted that S.T. did not improve much while on medication. R. 287. However, S.T. appeared active, alert, and attentive. R. 287.

         Nurse Myers performed another medication check on October 23, 2013. R. 282. S.T.'s school performance had improved; he was learning and doing well in school. R. 283. S.T.'s mother noted, however, that he was having issues at home after school once his medication wore off. R. 284. Nurse Myers suggested adding an afternoon dose of Ritalin to combat this problem. R. 284. S.T.'s diagnosis was updated to ADHD. R. 284.

         On March 27, 2014, plaintiff and S.T. returned to Dr. Toland. R. 360. Dr. Toland noted that S.T.'s academic performance was poor and that he had a poor attention span, but no behavior problems. R. 362. He was active, alert, and attentive. R. 362. S.T.'s mother told Dr. Toland that S.T. was not doing well in third grade despite his Ritalin, but Dr. Toland noted that his prescription had not been filled since October 2013 and it was unlikely that he was taking Ritalin at all. R. 363. Plaintiff stated to Dr. Toland that S.T. was more agitated at home, which Dr. Toland attributed in part to the fact that S.T.'s father had recently been released from prison and had not initiated contact. R. 363. Dr. Toland restarted S.T. on Ritalin. R. 363.

         Plaintiff and S.T. saw Nurse Myers again on May 5, 2014. R. 357. She noted that S.T. had recently started Adderall and that it was working better for him than Ritalin did in the past, but that it was still wearing off by the time he got home from school. R. 357, 359. She noted that S.T. was previously on the honor roll, but that his grades had dropped that quarter. R. 359. She increased S.T.'s dosage of Adderall. R. 359.

         On June 26, 2014, plaintiff and S.T. once again saw Dr. Toland. R. 353. Plaintiff reported no issue with S.T.'s school performance and reported that he was doing much better on Adderall. R. 355. She reported that he was not hyperactive, was able to initiate and complete tasks, was able to move on to the next task, was able to multitask, and was well connected with his peers. R. 355. Dr. Toland kept S.T. on Adderall through summer vacation because he believed that being more organized would reduce the criticism S.T. received and improve his well-being. R. 356.

         On November 5, 2014, plaintiff and S.T. met with Dr. Toland. R. 349. Plaintiff told Dr. Toland that S.T.'s medication was not working and that S.T. was still struggling in school and failing. Id. She stated that a teacher recently informed her that the teacher could not tell that S.T. was on stimulant medication. R. 352. S.T. had also recently got into trouble for telling a little girl that he was going to "murder her." R. 352. Dr. Toland noted that S.T. may suffer from some degree of depression that may be exaggerated when his medication wears off in the evening. R. 352. He increased S.T.'s Adderall dosage. R. 352.

         On December 4, 2014, plaintiff and S.T. followed up with Dr. Toland regarding S.T.'s ADHD. R. 348. Plaintiff reported that S.T. was doing a little better with the higher dosage of Adderall, but continued to look sad and appeared "to take little pleasure in life." R. 348. Dr. Toland advised plaintiff about the relationship between ADHD and depression. R. 348. He prescribed Prozac for S.T.'s depression. R. 348.

         Other Medical Records

         On May 21, 2015, Child Mental Health Community Rehabilitation Services evaluated S.T. R. 379-87. They noted that S.T.'s behavior had escalated and that he was a danger to others. R. 383. He had substantial anger issues, did not complete his homework, and was easily distracted and disorganized. R. 383. He exhibited difficulty in cognitive ability, had a deficit in social skills, and a deficit in dealing with authority. R. 383. He was given a global assessment of functioning ("GAF") score of 55.[7] R. 384. He met the criteria for therapeutic day treatment and intensive in-home services. R. 383.

         On June 22, 2015, S.T. was evaluated by a licensed mental health practitioner with Brighter Futures Inc. R. 388-95. The practitioner indicated that S.T. had difficulty with behavioral and emotional regulation and exhibited physical and verbal aggression towards his mother, siblings, and peers. R. 389. S.T. was also noted as having "psychotic episodes, particularly visual and auditory hallucinations." R. 389. S.T.'s problems were deemed "significant enough to warrant the highest level of service in the home." R. 389. S.T. was diagnosed with disruptive mood dysregulation disorder, major depressive disorder, unspecified anxiety disorder, and ADHD. R. 392. The report also indicated that S.T. had relational problems with his parents and siblings, educational problems, and lived in a high crime environment. R. 392. The report set goals for S.T. to "demonstrate the ability to express anger through appropriate verbalization and healthy physical outlets, " "reduce irritability and depression while increasing normal social interaction, " "demonstrate the ability to significantly reduce or eliminate hallucinations and to attain control over his disturbing thoughts, feelings, and impulses, " and "demonstrate the ability to appropriately interact with age-level peers in a structured social environment." R. 395.

         On February 17, 2016, Dr. Dannah Cheri' Garr, Ph.D., of Christian Psychotherapy Services, completed a psychological evaluation of S.T. R. 367-78. She noted that S.T.'s ability to maintain his attention was severely impaired. R. 369. She administered the Wechsler Intelligence Scale for Children, Fourth Edition, and S.T. scored a full-scale 85, which is within the low average range. R. 374-75. Dr. Garr administered the integrated visual and auditory continuous performance test, which determined that S.T. has a severely impaired ability to maintain his attention. R. 368-69. Dr. Garr opined that "[t]his likely indicates that the medications he is taking for his ADHD symptoms are not effective in helping him focus his attention. R. 369. Dr. Garr also administered two standardized tests that were completed by S.T.'s mother and were meant to determine if S.T. had Asperger's Syndrome. R. 373-74. The results of the first test indicated that the probability of S.T. having Asperger's was in the moderate to very high range, while the second test indicated that the probability of S.T. having Asperger's was moderate to high. R. 373-74. Dr. Garr opined that S.T.'s moderate to high score on these tests was best explained by his anxiety. R. 375. Dr. Garr diagnosed S.T. with ADHD, ODD, and disruptive mood dysregulation disorder. R. 375.

         C. Records from Non-Medical Sources

         School Records

         On January 12, 2012, the Student Support Team ("SST") for the Norfolk Public Schools met to discuss S.T.'s progress in the second grade. R. 181-83. The SST determined that, while S.T. had made significant progress, intervention was needed as he was still behind benchmarks. R. 181. The SST noted that he should continue to receive small group reading instruction with a communication skills specialist. R. 181. The SST held a follow-up meeting on April 5, 2012, noting that S.T. had made significant progress, but that he was failing math, did not turn in assignments, and failed a test. R. 175-76. S.T.'s teachers felt that he was very bright, but they were concerned with his organizational skills. R. 175. Additional reading instruction with a reading specialist was used in the past. R. 175. The SST recommended further action, such as a timer, the minimization of distractions during tests, frequent redirection, and rewards. R. 175.

         The SST held another meeting on October 24, 2013, to discuss S.T.'s progress in third grade. R. 169-70. The SST noted that there were no behavioral concerns. R. 169. They also noted that S.T. was a good listener, followed directions, used his time wisely, turned in assignments on time, and was responsible and bright. R. 169-70. Further intervention was not recommended. R. 169-70. Plaintiff noted that she was happy that S.T. was being successful that year and that he made a connection with his teacher, but that he was still having difficulties at home completing his tasks. R. 170. He had environmental stressors at home. R. 170.

         On February 18, 2014, S.T.'s teacher, Shemika Edwards, completed a teacher questionnaire. R. 194-201. Ms. Edwards indicated that she observed no problems in the domains of acquiring and using information, attending and completing tasks, interacting and relating with others, moving and manipulating objects, and caring for himself. R. 195-99. On March 20, 2014, Ms. Edwards responded to a request from the SSA and indicated that S.T. was placed in regular education with no special instruction. R. 317-18. She noted that S.T. had ADHD and received medication management at school. R. 317.

         On December 11, 2014, S.T. was approved for a section 504 special education plan.[8] R. 324-332. S.T.'s teacher, Carrie Solano, stated that S.T. "displays a great ability to learn, comprehend, and apply all the skills in fourth grade." R. 324. However, she also noted that S.T. "has difficulty applying the skills during tests, independently, [and] has difficulty staying focused and engaged during independent work." R. 324. She had instructional concerns in reading comprehension, tests, and completing homework. R. 324. He received individual assistance in math and reading, and "quickly grasp[ed] concepts" during that individual assistance. R. 325. He was given re-teaching in English, and his teacher stated that he is able to "use these skills when he applies himself." R. 326. He was evaluated as having poor attention and concentration and an activity level that was excessively high or low, as well as fidgeting, squirming and being easily distracted. R. 327. Redirection, consistent monitoring, and re- engaging were used to target these problems. R. 327. His plan evaluation noted that he would become distracted and off task while concentrating, working, writing, reading, or doing math. R. 330. The plan called for small group testing accommodations, easy readers, independent breaks, cues to maintain his focus, and preferential seating. R. 333.

         S.T. remained on this 504 plan as of the fifth grade. R. 396. The plan form, dated December 9, 2015, indicated that he did not like completing independent reading and writing assignments and did not do well on a recent standardized test. R. 398. It also noted that he was able to complete the work but was not always motivated to do so. R. 398.

         On February 9, 2016, S.T.'s teacher, Beth Morin, completed a teacher's report form for S.T. R. 269-71. She noted that S.T. was at grade level in science and social studies, somewhat below grade level in math and writing, and far below grade level in reading. R. 269. She also noted that S.T. failed to carry out assigned tasks, could not concentrate or pay attention for long periods of time, and failed to finish things he started. R. 270-71. On February 10, 2016, S.T.'s teacher, Westley Madison, completed the same teacher's report form. R. 272-74. Mr. Madison indicated the same struggles as Ms. Morin in reading, math, science, social studies, and writing. R. 272. He indicated that S.T. had difficulty following directions, but had milder difficulties in finishing things, carrying out assigned tasks, and concentrating. R. 273-74.

         D. State Agency Opinion Evidence

         On March 28, 2014, state agency psychologist, Howard Leizer, Ph.D., assessed S.T.'s medically determinable impairments and their severity. R. 75-77. Dr. Leizer opined that S.T. had no limitations in acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulation of objects, and health and physical well-being. R. 75-76. Dr. Leizer stated that S.T. had a less than marked limitation in caring for himself, and determined that S.T. was not disabled. R. 76-77.

         On June 12 and June 13, 2014, psychologist Patricia Bruner, Ph.D., and pediatrician Pamela Duff, M.D., assessed S.T.'s medically determinable impairments and their severity. R. 85-88. Drs. Bruner and Duff opined that S.T. had a less than marked limitation in attending and completing tasks and caring for himself, and no limitation in the other domains. R. 86-87. They likewise determined that S.T.'s impairments did not functionally equal a listed impairment and that S.T. was not disabled. R. 87-88.

         E. Hearing Testimony - February 22, 2016

         At the hearing before the ALJ, S.T. testified that his best subject was math, where he was earning a "B" grade, but that generally he was not getting good grades at that time. R. 35. He testified that he plays four to five hours of videogames per day. R. 36. He stated that he has many siblings, two of which he lives with. R. 37-38. They bother him and he spends a lot of time by himself because he does not like being around people. R. 38-39. He has five or six friends that he spends time with at recess. R. 39. He gets dressed on his own, but he needs to be reminded to brush his teeth and get out of bed. R. 40.

         His mother testified next. She testified that S.T. repeated the third grade, and that the school had attempted to retain him in fourth grade as well, but that she did not allow it. R. 44. She testified that he has a 504 plan, and has been treated for ADHD, ODD, and depression. R. 45-46. She stated that he has to be redirected a lot, does not do chores, and talks back. Id. She remarked that her son is distant, stays to himself, and is aggressive with other children. R. 47. He does not do his homework, gets horrible grades, and did well for only one quarter while on medication. R. 48-49. She testified that he has seen multiple therapists from Christian Psychotherapy, and was undergoing in-home counseling. R. 48-51. He stays up all night because he cannot sleep, and then will not get up in the morning. R. 53. He only wants to play games, be on the phone, or watch television, and that he has a girlfriend that he talks to on the phone who is one of his classmates. R. 54. She testified that he is in regular education but that he has accommodations for testing and other work due to his concentration level. R. 55. She stated that he has problems learning, and was having a dispute with the school principal. R. 55-58. He does not spend time with classmates outside of school. R. 59. According to plaintiff, S.T. has behavioral problems, especially with female authority figures. R. 59-60.

         Eugene Leftwich, in-home counselor for Brighter Futures, Inc., testified next as a character witness. R. 63. He stated that he has been seeing S.T. for approximately six months. R. 64. He testified that he was seeing S.T. three days a week, after school. R. 65. He was referred to S.T. due to S.T.'s results on the Virginia Clinical Assessment Program ("VICAP"), which indicated that S.T. qualified for in-home, outpatient, and family therapy services. R. 65- 66. He opined that S.T. is severely depressed, which affects his social skills and home life. R. 67. He stated that it is extremely hard to motivate S.T. to do anything. R. 67. F. Documents Submitted After the ALJ Decision Plaintiff has also submitted several medical records to the Court which postdate the SSA's decision to deny benefits. In her motion for summary judgment, plaintiff attaches a letter from Dr. Chevette Scott Alston, Psy.D., with Christian Psychotherapy Services. ECF No. 15-1. The letter references an appointment between S.T. and Dr. Alston on January 19, 2017. Id. Dr. Alston notes that, based on her review of Dr. Garr's report, S.T. endorsed a significant level of autistic sequelae, and that autism is frequently misdiagnosed as ODD. Id. Dr. Alston advised Psychotherapy, and was undergoing in-home counseling. R. 48-51. He stays up all night because he cannot sleep, and then will not get up in the morning. R. 53. He only wants to play games, be on the phone, or watch television, and that he has a girlfriend that he talks to on the phone who is one of his classmates. R. 54. She testified that he is in regular education but that he has accommodations for testing and other work due to his concentration level. R. 55. She stated that he has problems learning, and was having a dispute with the school principal. R. 55-58. He does not spend time with classmates outside of school. R. 59. According to plaintiff, S.T. has behavioral problems, especially with female authority figures. R. 59-60.

         Eugene Leftwich, in-home counselor for Brighter Futures, Inc., testified next as a character witness. R. 63. He stated that he has been seeing S.T. for approximately six months. R. 64. He testified that he was seeing S.T. three days a week, after school. R. 65. He was referred to S.T. due to S.T.'s results on the Virginia Clinical Assessment Program ("VICAP"), which indicated that S.T. qualified for in-home, outpatient, and family therapy services. R. 65- 66. He opined that S.T. is severely depressed, which affects his social skills and home life. R. 67. He stated that it is extremely hard to motivate S.T. to do anything. R. 67.

         F. Documents Submitted After the ALJ Decision

         Plaintiff has also submitted several medical records to the Court which postdate the SSA's decision to deny benefits. In her motion for summary judgment, plaintiff attaches a letter from Dr. Chevette Scott Alston, Psy.D., with Christian Psychotherapy Services. ECF No. 15-1. The letter references an appointment between S.T. and Dr. Alston on January 19, 2017. Id. Dr. Alston notes that, based on her review of Dr. Garr's report, S.T. endorsed a significant level of autistic sequelae, and that autism is frequently misdiagnosed as ODD. Id. Dr. Alston advised that adjustments to S.T.'s medication were likely appropriate, and that his current medication was not fully effective. Id.

         On April 20, 2017, plaintiff filed a letter, seemingly intended to be attached to her motion for summary judgment, from Stacey Mougl, PA-C. ECF No. 16. Dr. Mougl indicates that plaintiff, not ST., is her patient, and that the plaintiff meets the definition of disability under the Americans with Disabilities Act. Id. The letter does not include any medical information related to S.T.

         On May 2, 2017, plaintiff submitted several additional documents, requesting that they be attached as exhibits to her summary judgment motion. ECF No. 17. These documents relate to S.T.'s qualification for special education services for autism. Id. A notice of special education eligibility determination, dated April 27, 2017, noted that the Special Education Committee of the Norfolk Public Schools determined that S.T. had a disability, namely autism, within the meaning of the Individuals with Disabilities Education Act ("IDEA"). Id. at 2. The Wechsler Intelligence Scale for Children, Fifth Edition, was administered, and S.T. received a full-scale IQ score of 76, which falls within the borderline range. Id. at 8. Plaintiff also attached a report by school social worker Laura Gilmore, which was used to determine S.T.'s eligibility for special education. Id. at 15-18. Finally, plaintiff attached S.T.'s individual service plan from Compasion, LLC. Id. at 19-21. This plan indicates that S.T. experiences difficulty focusing for long periods of time, is disorganized, and requires several prompts and redirections to complete tasks. Id. at 19.

         III. THE ALJ'S DECISION

         To evaluate S.T.'s claim for supplemental security income for a child, the ALJ followed a three step analysis set forth in the SSA's regulations, see 20 C.F.R. § 416.924, by evaluating whether: (1) S.T. was engaged in substantial gainful activity; (2) S.T. had a medically determinable impairment or combination of impairments that was severe; and (3) such impairment met, medically equaled, or functionally equaled an impairment in the listing of impairments ("listing"), described in 20 C.F.R. § 404, Subpart P, App. 1. R. 8-28. At step one, the ALJ found that S.T. had not engaged in substantial gainful activity since October 18, 2013, the date of his SSI application. R. 14. At step two, the ALJ determined that S.T.'s ADHD, ODD, and disruptive mood dysregulation disorder constituted severe impairments. Id. At step three, the ALJ found that S.T.'s impairments (and the combination thereof) neither met nor medically equaled the severity of a listing. R. 14-16. Further, by examining the six domains of functioning, the ALJ determined that the limitations resulting from S.T.'s impairments did not functionally equal the listed impairments either. R. 16-24. Accordingly, the ALJ concluded that S.T. was not disabled from the date of his SSI application, October 18, 2013, through the date of the ALJ's decision on May 18, 2016. R. 24.

         IV. STAND ...


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