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Woodall v. Colvin

United States District Court, Sixth Circuit

August 12, 2013

ROSLYN WOODALL on behalf of J.W.[1], Plaintiff,
v.
CAROLYN W. COLVIN[2], COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT & RECOMMENDATION OF MAGISTRATE JUDGE

GEORGE J. LIMBERT, Magistrate Judge.

Roslyn Woodall ("Plaintiff"), acting on behalf of J.W., a minor ("Claimant") and Plaintiff's grandson, seeks judicial review of the final decision of Carolyn W. Colvin ("Defendant"), Commissioner of the Social Security Administration ("SSA"), denying Claimant's Supplemental Security Income ("SSI") claim. ECF Dkt. #1. Plaintiff asserts that the ALJ erred in failing to perform a proper analysis of whether Claimant's impairments met or equaled Listing 112.08 for Personality Disorders and lacked substantial evidence for finding that J.W. had less than marked limitations in the "caring for yourself" domain for functional equivalence. ECF Dkt. #16. For the following reasons, the undersigned recommends that the Court REVERSE the ALJ's decision and REMANDS the instant case for a more thorough Step Three meets or equals and functional equivalence analysis:

I. PROCEDURAL HISTORY

On May 21, 2009, Plaintiff, acting on behalf of Claimant, protectively filed an application for children's SSI, alleging disability beginning August 1, 2003 due to Attention Deficit Hyperactivity Disorder ("ADHD") and behavioral problems. ECF Dkt. #12 at 110, 131, 135.[3] The application was denied initially and on reconsideration. Id. at 69-77.

Plaintiff filed a request for a hearing by an ALJ and on February 9, 2011, an ALJ conducted an administrative hearing, where Plaintiff and Claimant appeared and were represented by counsel. ECF Dkt. #12 at 77-82, 36. At the hearing, the ALJ accepted testimony from Claimant and Plaintiff. Id. On February 18, 2011, the ALJ issued a Notice of Decision - Unfavorable. Id. at 16-29. Plaintiff requested review of the ALJ's decision to the Appeals Council, but on May 10, 2012, the Appeals Council denied Plaintiff's request for review. Id. at 1-11.

On July 16, 2012, Plaintiff filed the instant suit seeking review of the ALJ's decision. ECF Dkt. #1. On January 28, 2013, Plaintiff filed a brief on the merits. ECF Dkt. #16. On April 15, 2013, Defendant filed a brief on the merits. ECF Dkt. #18. Plaintiff filed a reply brief on April 29, 2013. ECF Dkt. #19.

II. RELEVANT MEDICAL/SCHOOL HISTORY

Claimant's school records show that he received speech and language therapy through Head Start which ended on December 19, 2002. ECF Dkt. #12 at 190. An evaluation team report prepared by Terry Bendo, school psychologist of the Akron Public Schools Integrated Preschool Program, indicated that Claimant had been in foster care and his most recent foster mother reported that he had not developed age-appropriate social or behavioral skills and he needed constant supervision for safety reasons. Id. Claimant's foster mother indicated that he resolved conflicts by hitting, swearing and breaking things. Id. Claimant was born to a teenage mother who did not bond with him and he never knew his biological father. Id. at 49, 219.

Mr. Bendo further reported that Claimant had been reunified with his mother in 2003 but was now in the legal custody of Summit County Children Services but in the care of his grandmother, a former drug addict who lived in her home with three of Claimant's aunts, two of whom are minors, and four cousins who were all minors. ECF Dkt. #12 at 64, 190. Claimant had no contact with his biological father. Id. Mr. Bendo further reported that Claimant was identified as a preschooler with a social-emotional behavioral disability and placed in a preschool behavior-specific classroom. Id. Claimant made progress and his educational environment became less restrictive and he was in a traditional integrated preschool program. Id. Mr. Bendo administered testing which showed that Claimant had average nonverbal abilities and low average verbal abilities. Id.

A July 23, 2004 parent questionnaire completed by Claimant's grandmother indicated that he would not sit still and was constantly hitting other children. ECF Dkt. #12 at 191. The results of the Behavior Assessment System for Children, Teacher Rating Scales-2 ("BASC-II") administered by his teacher showed concerns with Claimant's externalization or acting-out behaviors. Id. at 211. Claimant's teacher reported that in the classroom, he was excessively active and prone to verbal and physical aggression, often bullying others and talking back to teachers. Id. Other behaviors observed in the classroom included Claimant picking at things, such as his hair, nails or clothing, babbling, staring blankly, and trouble adjusting to new teachers. Id. He also threw tantrums, threatened to hurt others, and used foul language. Id.

It was noted that a parent version of the BASC-II was sent home with Claimant multiple times, but never returned. ECF Dkt. #12 at 211. Eventually, Claimant's teacher read the results of the BASC-II for Claimant to his grandmother at a meeting, and the team warned in the report to interpret the grandmother's behavioral profile for Claimant cautiously because she tended to be excessively negative and internally inconsistent in describing Claimant's home behavior. Id.

Staff notes of Claimant's behavior in the classroom indicated that he had very poor attendance initially and his family had moved twice in one month. ECF Dkt. #12 at 212. It was reported that Claimant was quite bright as he had learned the concept of opposites after only one exposure. Id. Claimant's typical classroom behavior was described as requiring frequent, but not unusually excessive, adult redirection. Id. Mr. Bendo opined that Claimant would benefit from increased exposure to behavior-typical peers. Id.

Claimant's gross motor skills were evaluated as his strength and his fine motor skills were adequate. ECF Dkt. #12 at 214. It was reported that he had a difficult time staying with tasks or skills that he was not interested in or those that presented a challenge. Id. at 217. He needed firm guidance and directives in following classroom rules and needed adult support in group, and he talked loud and used inappropriate language. Id.

It was opined that Claimant's behavioral conditions were the result of social maladjustment. ECF Dkt. #12 at 219. Bases for this determination indicated that Claimant was born to a single teenage mother, had no contact with his father, and had been in the custody of Summit County Children Services Board and in numerous foster homes. Id. Further, Claimant was living with his grandmother and seven other aunts and cousins who ranged in age from 3 to 27. Id. It was surmised that Claimant's behavior was more likely the result of a difficult adjustment to his "tumultuous life circumstances" rather than a long-standing and deep-seated emotional disturbance. Id. On September 7, 2004, Claimant's grandmother and teacher signed the evaluation report, as well as Mr. Bendo and a coordinator. Id. at 220.

A printout of Claimant's discipline report from school shows that he was suspended numerous times and disciplined over 50 times for fighting, insubordination, improper language, and violating school rules from 2006-2009. ECF Dkt. #12 at 242-254. One of the incidents involved Claimant forcing himself on another child and urinating in his mouth. Id. at 253. Claimant also punched other children, urinated in the direction of other students, made racial slurs and spat at other students. Id. at 254.

On September 9, 2009, a follow-up evaluation team report from the Akron Public Schools was prepared. ECF Dkt. #12 at 262. School Psychologist Rasheed Bonner indicated that Claimant was now ten years old and was last assessed for behavioral concerns in 2004 and did not qualify for special education. Id. at 264. Teachers' behavioral observations indicated that Claimant exhibited behaviors such as verbally and physically assaulting other students, crawling and flopping down on the floor, spitting, leaving the class without permission, roaming the class and hallways, refusing to complete classwork, yelling and talking out in class, and throwing books and other materials. Id.

Ms. Bonner also administered the Woodcock-Johnson III Tests of Cognitive Abilities which showed that Claimant's intellectual functioning was in the average range, with adequate skills in verbal ability, thinking ability and cognitive efficiency, which ruled out the possibility of a cognitive disability or mental retardation. ECF Dkt. #12 at 267. Ms. Collier, Claimant's teacher, administered the Conners-3 Teacher Rating system in which she assessed information regarding Claimant's behavior compared to children of the same age. Id. at 272. She also administered the BASC-II for children and found that Claimant measured clinically significant elevations on the scales of hyperactivity, aggression, conduct problems, atypicality, adaptability, externalizing problems and behavioral symptoms index. Id. at 274. Claimant also measured as at-risk elevations for depression, somatization, attention problems, learning problems, and social skills. Id. Ms. Bonner also administered the House-Tree-Person Projective Test, and Claimant's drawings showed that he had paranoid tendencies, anxiety, emotional immaturity, impulsivity, environmental constriction, little satisfaction in environment, frustration, inadequacy, assertiveness, reluctance to show feelings, and physical aggression. Id. at 276. Based upon the entire evaluation, Claimant qualified for special education and services in the category of emotional disturbance. Id. at 284.

The school psychologist indicated that Claimant may benefit from intense behavioral interventions to support his academic progress in school. ECF Dkt. #12 at 265.

In the second grading period of Claimant's fourth grade report card, his teacher commented that he was making progress in controlling his inappropriate behavior and it was recommended that he read more at home to improve his fluency and comprehension skills. ECF Dkt. #12 at 339. The teacher's comments for the third grading period of his fourth grade report card indicating that Claimant was making "tremendous" progress in controlling his behavior and it was recommended that he read more at home. Id. The comments for the fourth grading period indicated that Claimant needed to read more at home, he was doing very well in math, and he needed to control his inappropriate behaviors when he was not supervised by adults. Id.

A psychological examination conducted on September 9, 2009 by Dr. Leidal at the request of the agency indicated that Claimant was ten years old and his grandmother reported that he was getting kicked out of school every other day because of his bad behavior. ECF Dkt. #12 at 234. She further indicated that she had gotten three calls to take Claimant home from school since the fall because of oppositional and disruptive behaviors and "was told that she could get a check for this." Id. Plaintiff reported that Claimant has had behavioral problems since he was four years old and he seemed to be depressed because neither his mother nor his father have been there for him. Id. She indicated that she had been told for some time to get Claimant psychiatric help or counseling, but she had not done so, although she stated that she planned to "in a minute." Id. at 235.

Upon examination, Dr. Leidal found that Claimant was alert and clearly well oriented. ECF Dkt. #12 at 236. He noted that Claimant was only marginally cooperative because he refused to sit up or respond to his grandmother or Dr. Leidal without considerable prompting or cajoling and he tended to suck his thumb for most of the evaluation. Id. Dr. Leidal found that Claimant's responsiveness to environmental stimuli was normal for his age and his attention and concentration was fair for his age. Id. Claimant's pace in responding was adequate and while his fund of information was below average, his general intelligence appeared average. Id. His speech and language were normal for his age, but his mood during the examination was irritable and congruent. Id. Dr. Leidal found Claimant's anxiety to be within normal limits and his ability to perform activities of daily living. Id.

Dr. Leidal concluded that Claimant's most serious mental symptoms were oppositionally defiant behaviors, fighting, and irritable moods. ECF Dkt. #12 at 237. He scored his global assessment of functioning at no greater than 40. Id. Dr. Leidal found that Claimant's most serious functional problems were moderate to marked in social and academic functioning in judgment, which resulted in a GAF score of no more than 55. Id.

Dr. Leidal diagnosed Claimant with Oppositional Defiance Disorder ("ODD") and adjustment disorder with mixed disturbance of emotions and conduct. ECF Dkt. #12 at 237. He opined that Claimant had: low average intellectual functioning that was moderately impaired; memory functioning at 3/4ths of age expectation; normal communication and language skills; normal fine and gross motor skills; unimpaired attention and concentration; mild to moderately impaired pace and persistence; social development and relating to others was approximately 2/3rds of age expectations; adaptive skills were below average for age expectations; and Claimant's personal behavioral patterns, such as self-control and response to limit setting, were moderately to markedly impaired and approximately 2/3rds to ½ of age expectations. Id.

Dr. Goldsmith, an agency reviewing psychologist, had reviewed Claimant's records on September 17, 2009 upon Plaintiff's initial application and found that his ODD and adjustment disorder with mixed disturbance of emotions and conduct were severe, but did not meet or medically equal any of the Listings. ECF Dkt. #12 at 255. Dr. Goldsmith further found in determining functional equivalence that Claimant had less than marked limitations in acquiring and using information, interacting and relating with others, caring for self, and in health and physical well-being, and he had no limitations in attending and completing tasks or in moving about and manipulating objects. ECF Dkt. #12 at 256-258. In finding Claimant less than markedly limited in interacting and relating to others, Dr. Goldsmith cited to Dr. Leidal's finding that Claimant was functioning at 2/3rds age expectation in this domain. Id. at 257. He also cited evidence of Claimant's ODD, the cajoling and prompting it took to get Claimant to participate in the interview with Dr. Leidal, his refusal to sit up and response to his grandmother and Dr. Leidal, reported poor interactions between Claimant and others, his few friends and his behavioral problems at school. Id. As support for his less than marked opinion as to Claimant's domain of caring for self, Dr. Goldsmith relied upon Dr. Leidal's note of below average adaptive skills and Claimant's oppositional and disruptive behaviors at school. Id. at 258.

On February 9, 2010, Dr. Taggart, Claimant's family practice physician, completed an agency questionnaire indicating that he had first seen Claimant on August 21, 2008 and last saw him on October 2, 2009. ECF Dkt. #12 at 223. He diagnosed Claimant with behavioral problems not elsewhere classified ("NEC") and reported that starting in the fourth grade, Claimant was getting into daily trouble for "fighting and acting bad in class.'" Id. He thereafter referred Claimant to child psychiatry for evaluation and treatment. Id. Dr. Taggart's medical notes indicated that Claimant met with Dr. Taggart's nurse practitioner and Claimant's grandmother told the nurse of Claimant's behavioral problems at school. Id. at 228-229.

Dr. Hoyle, an agency reviewing psychologist, reviewed Plaintiff's records on March 16, 2010 upon reconsideration of the denial of Plaintiff's application for SSI for Claimant and identified Claimant's impairments as ODD, adjustment disorder with mixed disturbance of emotions and conduct, and behavioral problems NEC. ECF Dkt. #12 at 286. She found that Claimant's impairments did not meet or medically equal any of the Listings. Id. As to functional equivalence, Dr. Hoyle opined that Claimant had less than marked limitations in acquiring and using information, attending and completing tasks, and caring for self, but he had a marked limitation in interacting and relating with others. Id. at 288. She further opined that Claimant had no limitation in the domain of health and physical well-being. Id. at 289. As support for her opinion that Claimant had a marked limitation in interacting and relating with others, Dr. Hoyle relied upon Dr. Leidal's consultative report and the May 9, 2009 Evaluation Team Report at Claimant's school which showed that Claimant's teacher had administered the Behavior Assessment System for Children, Teacher Rating Scales-2 ("BASC-II") and found that Claimant measured clinically significant elevations for hyperactivity, aggression, conduct problems, atypicality, adaptability, and externalizing problems. Id. at 274. In explaining her finding of "less than marked" limitations for Claimant in the domain of caring for self, Dr. Hoyle cited to Claimant's oppositional and disruptive behavior at school and Dr. Leidal's notes stating that Claimant's adaptive skills were below average for age expectations. Id. at 258. She also cited Plaintiff's report that Claimant threw sticks and threw tantrums. Id. at 289. Claimant was also assessed on June 23, 2010 by Child Guidance and Family Solutions. ECF Dkt. #12 at 293. The therapist, Ms. Williams, noted that when she came out to get Claimant for his assessment, he had run down the street and his family had to go and get him to come back. Id. at 295. He then laid under the chairs in the lobby with his thumb in his mouth and his socks and shoes thrown against the wall. Id. He then went into her office and sat on the floor in the corner with his thumb in his mouth looking angry. Id. He kept saying that he had no mom, no dad, no grandma and no family. Id. After a few minutes of talking, Claimant moved to a seat, took his thumb out of his mouth, and was smiling and acting appropriately. Id. By the time he left, Claimant was laughing, compliant and appeared happy. Id.

Claimant was uncooperative with the interview, and was impulsive, oppositional, fidgeting and agitated. ECF Dkt. #12 at 294. It was related that Claimant's mother lived near Claimant but did not want to spend time with him, although she did come to get his brother and spend time with him. Id. at 295. Claimant's father was in prison and Claimant had never met him. Id. Claimant indicated that his grandmother does not follow through with what she tells him she will do and it made him angry. Id. Plaintiff reported that she used to be a drug addict until three years ago and Claimant's mother was only 13 when she had Claimant. Id. Claimant reported that he sometimes hits his grandmother and brother, wets the bed sometimes, was often depressed, and thought about suicide but never attempted it and had no plan. Id. at 297.

Ms. Williams reported that Claimant was in the fifth grade at Legget Elementary School in a special education placement, and his general behaviors were that he became easily upset and frustrated, he defied authority and he acted inappropriately. ECF Dkt. #12 at 296. His academic functioning was restless and distracted and he had poor grades, behavioral problems and difficulty focusing, although he was good at math. Id. Ms. Williams diagnosed Claimant with depressive disorder not otherwise specified, relational problem not otherwise specified, and ODD. Id. at 298.

On September 10, 2010, Claimant underwent a diagnostic assessment for inappropriate behavior in the classroom. ECF Dkt. #12 at 306. It was noted that Claimant was defiant, oppositional, crawled on the floor and hid under desks and sucked his thumb. Id. Claimant was diagnosed with ODD and it was concluded that he would benefit from school-based mental health services and community psychiatric support services to improve his anger management skills, his coping skills, build his self-esteem, and to help him identify and express his feelings appropriately and safely. Id. at 319-320.

School records from Claimant's fifth grade individual education program beginning October 28, 2010 indicated that Claimant liked math and received math instruction in a regular fifth grade class. ECF Dkt. #12 at 326. The records indicated that district testing in the fall of 2009 showed that Claimant scored in the basic range of reading, and language arts, and above average in math. Id. As to his behavior, it was noted that Claimant needed to decrease his inappropriate behavior and responses to the actions of others, learn to ignore and refrain from teasing and taunting his peers, and learn to control his anger and comply with the requests of authority figures. Id. Claimant was determined able to participate in state and district wide testing, but needed accommodations in all areas by the use of frequent breaks, small groups and extended time, Id. at 333.

III. STEPS TO DETERMINE WHETHER CHILD IS ENTITLED TO SSI

In order to qualify for childhood SSI benefits, a claimant must show that he or she has a medically determinable physical or mental impairment which results in marked and severe functional limitations, and that is expected to cause death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 20 C.F.R. § 416.906. An ALJ must proceed through the required sequential steps for evaluating entitlement to childhood SSI. 20 C.F.R. § 416.924(a). The three-step procedure requires the ALJ to determine whether a child:

(1) is performing substantial gainful activity;
(2) has a "severe" impairment or combination of impairments; and
(3) whether the impairment or combination of impairments are of listing-level severity in that the impairment(s) either meets, medically equals or are the functional equivalent in severity to an impairment listed ...

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