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Laura Salo, Obo D.P. v. Michael J. Astrue

November 16, 2011

LAURA SALO, OBO D.P. PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Vecchiarelli

MEMORANDUM OPINION AND ORDER

Plaintiff, Laura Salo ("Plaintiff"), challenges the final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("the Commissioner"), denying the application of Plaintiff's son, D.P. ("the claimant"), for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. ("the Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

I. PROCEDURAL HISTORY

On August 22, 2007, Plaintiff protectively filed an application for SSI on behalf of the claimant. (Tr. 8.) The application was denied initially and upon reconsideration, so Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 8.) On June 26, 2009, an ALJ held the claimant's hearing by video conference. (Tr. 8.) Plaintiff and the claimant appeared and testified. (Tr. 8, 22.) The claimant was represented by counsel. (Tr. 8, 21.) On July 23, 2009, the ALJ found the claimant not disabled. (Tr. 20.) On October 18, 2010, the Appeals Council declined to review the ALJ's decision, so the ALJ's decision became the Commissioner's final decision. (Tr. 1.) On December 7, 2010, Plaintiff timely filed her complaint to challenge the Commissioner's final decision. (Doc. No. 1.)

On June 21, 2011, Plaintiff filed her Brief on the Merits. (Doc. No. 16.) On September 13, 2011, the Commissioner filed his Brief on the Merits. (Doc. No. 20.) Plaintiff did not file a Reply Brief.

Plaintiff contends that the ALJ's decision is not supported by substantial evidence for two reasons: (1) the ALJ improperly gave the claimant's treating psychiatrist's opinion little weight; and (2) the ALJ's decision is not based on the record as a whole.

II. EVIDENCE

A. Personal and Vocational Evidence

The claimant was ten years old and in the fifth grade on the date of his hearing before the ALJ. (Tr. 25.)

B. Medical Evidence

On July 27, 2007, Plaintiff brought the claimant to psychiatrist Dr. Krishna Devulapalli, M.D., for psychiatric evaluation and treatment. (Tr. 411.) Dr. Devulapalli indicated that Plaintiff reported the following. The claimant had significant behavioral problems the prior school year and was unable to focus. (Tr. 411.) He had a history of inattention and hyperactive behaviors since his preschool years, but his symptoms had become worse. (Tr. 411.) He was "very fidgety" and "restless," and could not sit still to watch television or movies; however, he was not aggressive. (Tr. 411.)

Upon examination, Dr. Devulapalli reported the following. The claimant was "fairly cooperative," although he was "quite fidgety and restless." (Tr. 411.) His speech was clear and coherent. (Tr. 411.) There was no evidence of depressive symptoms, significant mood swings, or delusional or hallucinatory thinking. (Tr. 411.) "His insight and judgment appeared to be fair to limited," and "[h]e appeared to be at least at average intellectual functioning given the vocabulary and fund of knowledge." (Tr. 411.)

Dr. Devulapalli noted that, given the claimant's history and symptomatology, the claimant "appears to be having predominantly ADHD symptoms." (Tr. 411.) Dr. Devulapalli diagnosed the claimant with "ADHD Combined type"; noted that the claimant had "[p]roblems with primary support group [and] social & academic functioning"; and assigned the claimant a Global Assessment of Functioning ("GAF") score of 45.*fn1 (Tr. 411.) Dr. Devulapalli prescribed the claimant Concerta. (Tr. 411.)

On August 24, 2007, Dr. Devulapalli increased the claimant's dosage of Concerta. (Tr. 410.) On October 3, 2007, Dr. Devulapalli indicated that Plaintiff reported the claimant was "doing fairly well since the adjustment of his medicine," so Dr. Devulapalli continued the claimant on the current dosage. (Tr. 409.)

In October and November 2007, state agency reviewing physicians and psychologists Malika Haque, M.D., Karen Carver, M.A., and R. Kevin Goeke, Ph.D., authored a Childhood Disability Evaluation Form and indicated the following. (Tr. 338-44.) Plaintiff suffered mild expressive language delays and "ADHD, combined type." (Tr. 339.) These impairments, or a combination of them, were severe but did not meet, medically equal, or functionally equal the listings. (Tr. 339.) The claimant was less than markedly limited in the domains of acquiring and using information; attending to and completing tasks; and interacting and relating with others. (Tr. 341.) He had no limitations in the domains of moving about and manipulating objects; caring for himself; and his health and physical well-being. (Tr. 342.) In March 2008, state agency reviewing physicians and psychologists Melissa Hall, M.A., Steven Meyer, Ph.D., and Silvia Vasquez, M.D., affirmed these findings. (Tr. 345, 346, 347.)

Plaintiff continued to present the claimant to Dr. Devulapalli from November 2007 through March 2009. (Tr. 354-431.) Dr. Devulapalli reported the following throughout these evaluations.

In November and December 2007, Plaintiff reported that the claimant's medication wore off too quickly and that, when the claimant was not under the influence of his medication, he was "totally hyperactive." (Tr. 407-08.) Dr. Devulapalli indicated, however, that he would maintain the claimant on the current dosage of medication. (Tr. 407-08.)

In January and February 2008, Plaintiff reported that she had no significant complaints about the claimant and that the claimant was "doing well." (Tr. 405-06.) On March 19, 2008, however, Plaintiff was concerned about a decrease in the claimant's appetite, so Dr. Devulapalli prescribed the claimant Periactin to improve the claimant's appetite. (Tr. 404.) On April 23, 2008, Plaintiff reported that the claimant ate and slept well and did not exhibit hyperactive tendencies while on Concerta. (Tr. 403.)

On May 30, 2008, Plaintiff reported that the claimant's eating habits "have been still picky," and that the claimant "has been having overwhelming anxiety and phobias related to bugs and he has been afraid to go out and play." (Tr. 402.) Upon examination, the claimant's mood and affect appeared anxious. (Tr. 402.) He became frightened by a bee outside the window and moved "very close" to his mother. (Tr. 402.) Furthermore, "[h]e kept on saying that he did not want to be away from his mother going to Washington D.C." (Tr. 402.) In his assessment, Dr. Devulapalli indicated that the claimant had a history of ADHD and "also appears to be having Anxiety symptoms." (Tr. 402.) Dr. Devulapalli reduced the claimants dosage of Concerta and encouraged Plaintiff to give the claimant Periactin not only to increase his appetite, but also to help his anxiety. (Tr. 402.)

On July 2008, Plaintiff reported that the claimant's appetite had increased since the dosage of Concerta was reduced. (Tr. 357.) She also reported that the claimant had "missed his medications." (Tr. 357.) Upon examination, the claimant was "somewhat hyperactive" and needed frequent re-directions; Dr. Devulapalli attributed the claimant's condition to his failure to take his medication that day. (Tr. 357.) Dr. Devulapalli assessed the claimant with a history of ADHD, maintained the claimant's dosage of Concerta, and prescribed the claimant Atarax "to contain his anxiety as he was concerned about bees." (Tr. 357.) On August 4, 2008, Plaintiff had no significant complaints about the claimant and reported that the claimant was no longer afraid of bugs after taking Atarax. (Tr. 354.)

On October 10, 2008, Plaintiff reported that she discontinued the claimant on Concerta because, although it helped the claimant focus, it made the claimant "extremely emotional" and caused problems at school. (Tr. 431.) Upon examination, the claimant was "quite hyperactive" and "needed frequent redirection"; however, there was no evidence of depressive symptoms or major mood swings. (Tr. 431.) Dr. Devulapalli assessed the claimant with a "history of ADHD and Anxiety disorder." (Tr. 431.) Dr. Devulapalli began the claimant on Strattera and continued him on Atarax. (Tr. 431.) On November 21, 2008, Plaintiff reported that she had not noticed much improvement in the claimant's condition since the claimant was given Strattera, so Dr. Devulapalli increased the dosage. (Tr. 429.)

On December 19, 2008, Dr. Devulapalli completed a questionnaire on medical and functional equivalence and indicated the following. (Tr. 359-62.) The claimant was markedly limited in the domains of acquiring and using information; attending to and completing tasks; interacting and relating with others; and moving about and manipulating objects. (Tr. 359-60.) He was moderately limited in the domains of caring for himself and his health and physical well-being. (Tr. 361.) The claimant did not suffer side effects from his medications and did not have problems with school attendance. (Tr. 361.) Dr. Devulapali summarized that the claimant "has ADHD [and] it interferes with his functioning." (Tr. 361.)

On January 9, 2009, Plaintiff reported that she believed the claimant had done better while on Concerta, and that the claimant was still not focusing in school and "has a tendency for increased anxiety." (Tr. 428.) Dr. Devulapalli noted that the claimant's parents had split up and that the claimant may be experiencing anxiety as a result. (Tr. 428.) Upon examination, the claimant was "mostly focused on his Game boy," and "needed some redirection." (Tr. 428.) Dr. Devulapalli indicated that the claimant "has been diagnosed with having ADHD," and that the claimant was taking Concerta and Atarax. (Tr. 428.)

On March 30, 2009, Plaintiff wondered if the claimant's medication should be changed again; she believed the Concerta was not helping the claimant because the claimant's teachers had been complaining about the claimant's disruptive "hyper-talkativeness" in class. (Tr. 427.) Upon examination, the claimant was "hyperactive," but his mood was "euthymic." (Tr. 427.) Dr. ...


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