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Copeland v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

March 29, 2017



          James R. Knepp, II Magistrate Judge


         Plaintiff John Copeland (“Copeland”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) on behalf of his son, A.C. (“Plaintiff”), seeking judicial review of the Commissioner's decision to deny supplemental security income (“SSI”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 13). For the reasons stated below, the undersigned affirms the decision of the Commissioner.

         Procedural background

         Copeland filed an application for SSI on behalf of Plaintiff on March 5, 2013, alleging a disability onset date of July 1, 2011. (Tr. 172-75).[1] The claims were denied initially and upon reconsideration. (Tr. 135-37, 143-45). Copeland then requested a hearing before an administrative law judge (“ALJ”). (Tr. 150). On February 11, 2015, Copeland appeared and testified in Cleveland, Ohio, at a hearing before the ALJ. (Tr. 82-105). On March 11, 2015, the ALJ found Plaintiff not disabled in a written decision. (Tr. 62-77).[2] The Appeals Council denied Copeland's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-6); 20 C.F.R. §§ 404.955, 404.981. In denying the request for review, the Appeals Council noted:

We also looked at medical records from Ohio Guidestone, dated March 12, 2015 through May 13, 2015. The Administrative Law Judge decided your case through March 11, 2015. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before March 11, 2015.
If you want us to consider whether you were disabled after March 11, 2015, you need to apply again.

(Tr. 2). Copeland filed the instant action on behalf of Plaintiff on March 8, 2016. (Doc. 1).

         Factual Background[3]

         Medical Records

         In February 2013, Plaintiff saw Dr. Peter Corpus at the Center for Families and Children (“CFC”). (Tr. 298). The chief complaint was “continued hyperactivity and aggression in the PM” but “[b]ehavior [was] good at school.” Id. Dr. Corpus noted Plaintiff's diagnoses of ADHD and ODD, discontinued Ritalin, and started Adderall in the afternoon. (Tr. 299). He recommended Community Psychiatric Supportive Treatment (“CPST”) service (“in home therapy to help the mother set better parameters and boundaries[.]”). Id.

         In March 2013, Copeland reported to Dr. Corpus his concern about Plaintiff's non-volitional vocalizations, and continued oppositional behaviors at home. (Tr. 300). Dr. Corpus continued diagnoses of ADHD and ODD. (Tr. 301).

         At an appointment at CFC in April 2013, Vince Caringi, M.D., noted Plaintiff had a history of temper tantrums occurring when Plaintiff did not get his way. (Tr. 319). Adderall was “working well and lasting through the school day”, with teachers also reporting improvement. Id. Dr. Caringi continued Plaintiff's medications and recommended individual behavioral health counseling. (Tr. 320). At a follow-up appointment in June, Plaintiff reported the school year ended “awesome” and his mother reported he had a good final report card. (Tr. 321). She also reported “a few more episodes of acting out near the end of the year.” Id.

         In August 2013, Dr. Caringi noted Copeland stated “summer has been filled with ‘ups and downs' with [Plaintiff's] behavior” and that Plaintiff's “moods have been shifting more rapidly”. (Tr. 333). Copeland also reported an increase in obsessive behavior, including repeating sounds. Id. A questionnaire Dr. Caringi submitted that same day indicated Plaintiff had daily hyperactivity and impulsivity as well as frequent oppositional and defiant behavior. (Tr. 335). Plaintiff responded to his psychiatrist in a “generally appropriate” way but “require[d] redirection” and had difficulty completing tasks. Id. Plaintiff's response to treatment was noted to be “fair”. (Tr. 338).

         Plaintiff's mother completed a “Case History Form” in late August 2013. (Tr. 349). She indicated Plaintiff had some speech problems, and that he became frustrated by them. (Tr. 349, 353). Plaintiff's mother also indicated Plaintiff had a high activity level, difficulty following directions and maintaining attention, impulsivity, was aggressive and had behavior problems, and was both overly sensitive to stimuli and had a low response to stimuli. (Tr. 357).

         In October 2013, Plaintiff again saw Dr. Caringi. (Tr. 422). His mother reported “some trouble with peers during recess” and “ongoing concern for mood swings and persistent irritability.” Id. In November 2013, Dr. Caringi noted Plaintiff's parents reported his school performance was better but “anger and violence” was worse with more difficulty with frustration tolerance and mood swings. Id. Copeland also “admit[ted] that they have not been adherent to counseling/therapy.” Id.

         Also in October 2013, Plaintiff underwent a Mental Health Assessment at Metro Health Medical Center with Deborah Casciato, MSSA, LISW-S. (Tr. 435-39). Plaintiff's parents reported that medication (Adderall twice per day and Intuniv once per day) was helpful, but that Plaintiff continued to have behavioral problems. (Tr. 435). Plaintiff had outbursts, yelled, did not like change, and had to be bribed and coaxed to get ready for school. Id. However, once at school, he would get out of the car without a problem. Id. Plaintiff's parents reported he has lots of friends in his neighborhood and classroom, but is sometimes teased and gets aggressive with peers. (Tr. 436). His parents thought he was not trying at school, which resulted in poor grades. (Tr. 437). Diagnosis was disruptive behavior disorder, not otherwise specified. Id.

         Later that same month, Plaintiff's parents saw Nikhil S. Koushik, Ph.D. (Tr. 442-46). They reported Plaintiff was violent, angry, and oppositional at home-arguing, interrupting, and hitting his mother. (Tr. 442). Copeland reported working on behavioral contingencies at CFC and he perceived that to be helping. Id. Plaintiff does “very well” academically, but recently had not been completing his work, or refusing to do his work. (Tr. 444). Plaintiff's parents reported rewarding Plaintiff with money for good behavior at school. (Tr. 445). He also helped at home by taking out the dog, cleaning up after himself, and helping with the dishes. Id. Plaintiff's behavior was better at school than at home. (Tr. 446). Dr. Koushik diagnosed ADHD, ODD, mood disorder, not otherwise specified, and assigned Plaintiff a GAF score of 61-70[4], indicating “[m]ild symptoms.” Id.

         In November 2013, Plaintiff saw Dr. Florence V. Kimbo, M.D. (Tr. 450-52). Copeland reported Plaintiff was hyperactive, aggressive toward his mother, had broken things, damaged walls, and thrown objects at the television. (Tr. 450). Since Plaintiff stopped seeing his therapist at CFC, his anger had gotten worse. Id. Diagnoses were ADHD-Combined Subtype by history, mood disorder (not otherwise specified), conduct disorder childhood onset, and questionable autism spectrum disorder. (Tr. 452). Dr. Kimbo noted Plaintiff was to continue current medications, discussed the possibility of Adderall making aggression worse, and noted Plaintiff “[w]ill need a therapist.” Id.

         Progress notes from an appointment with Dr. Koushik, in December 2013 state Copeland “indicated he has been trying to be more firm with contingencies which has been helping.” (Tr. 470). One of Plaintiff's anger triggers was having to wait or be patient. Id. Dr. Koushik encouraged Copeland to “double reward him for waiting” (“if he waits until the next day for something and is able to stay calm he gets the original privilege and then a bonus privilege”). Id. Plaintiff was “very compliant with examiner requests”, “was polite and followed instructions well” and “stayed calm even when examiner broke a few rules or enforced his own rules.” (Tr. 471). Dr. Koushik assessed ADHD-Combined Type, ODD, and mood disorder not otherwise specified. Id. Plaintiff was again assessed with a GAF score of 61-70, indicating “[m]ild symptoms.” Id.

         On December 16, 2013, Plaintiff again saw Dr. Kimbo. (Tr. 481). Plaintiff reported he was in the second grade, liked his teacher, and had friends at school. Id. He also “talked about playing C[a]ll of Duty and described how it had 7 chapters” and said he has both an X-Box and a Wii-U at home. Id. He was “fidgety but remain[ed] seated” and was cooperative during the appointment. (Tr. 482). Dr. Kimbo continued prior diagnoses. Id.

         In January 2014, Dr. Koushik noted Plaintiff's mother had been off work and school for a few weeks and “things have been a lot better” with Plaintiff better able to manage his temper. (Tr. 487-88). Plaintiff had anxiety symptoms, and struggled with transitions (being told to stop playing video games or watching movies). (Tr. 488).

         In February 2014, Plaintiff reported to Dr. Koushik that he had been getting angry two to three times per week but had not been destroying things. (Tr. 519). Instead, he would go to his room and hit, stomp, or yell into his pillow. Id. Plaintiff's mother confirmed that he was doing a better job of managing his anger, and was somewhat better at transitions. Id. Dr. Koushik noted information from Plaintiff's teacher “indicate[d] sub-clinical thought problems at school (i.e., frequently having trouble getting off topics, occasional strange behaviors), but no difficulties in other areas”, a “preoccupation with gaming”, “difficulty transitioning between activities” and hitting. Id. Diagnoses were anxiety disorder (not otherwise specified), ADHD by history, ODD per history, rule out obsessive compulsive disorder, and rule out separation anxiety disorder. Again, Dr. Koushik assessed a GAF of 61-70 indicating “[m]ild symptoms.” (Tr. 521).

         In March 2014, Nakita Heard, LSW, Case Worker, at Ohio Guidestone, performed a mental health assessment. (Tr. 568-75). Ms. Heard noted Plaintiff was hyper and unable to engage with her or maintain focus. (Tr. 568). Plaintiff's parents reported he is aggressive toward peers and family members, and will destroy their things-but not his own-when he becomes upset. Id. Plaintiff was reported to enjoy playing with Legos, playing video games, and was involved with Boy Scouts. (Tr. 569). The parents reported taking things away as punishment but that Plaintiff becomes upset (“has kicked holes in the wall, thrown objects at the tv, and . . . thrown objects at the wall”) and that Plaintiff “will manipulate them causing them to give his belongings back [to] him.” Id. A mental status examination showed intense eye contact, agitated activity, clear speech, full affect, loss of interest, average intelligence, hyperactive behavior, and impaired attention/concentration. (Tr. 572). Ms. Heard assessed Plaintiff's symptoms as “severe” and his level of functioning impairment as “serious”. (Tr. 573). Ms. Heard explained Plaintiff “would benefit from outpatient counseling services to address his ongoing mental health symptoms and the family could benefit from CPST services.” Id.

         Later in March 2014, Plaintiff saw Dr. Kimbo, where his parents reported Plaintiff's teachers sent home notes about “aggressive behavior [and] not keeping hands to himself.” (Tr. 542). Plaintiff was not listening at home, “annoys” other kids, and had hurt the dog at his uncle's house. Id. Dr. Kimbo increased Plaintiff's Adderall dosage, continued prior diagnoses, and assessed a GAF score of 65. (Tr. 543).

         In July 2014, Plaintiff was seen by Sonia Stanford, QMHS[5], Case Worker, at Ohio Guidestone, who established a treatment plan. (Tr. 558-65). Problems included aggressive behaviors, difficulty dealing with life stress, impulsive behaviors, and behaviors interfering with friendships. (Tr. 558). Diagnoses were ADHD and ODD. (Tr. 559). Treatment goals were: reducing aggressive behaviors and stabilizing mood, id.; reduce frequency and intensity of anxiety responses (Tr. 561); and maintain attention to a situation or task in spite of distractibility, fatigue, or boredom (Tr. 563). Later that month, Colleen Grabowski, PCC-S, completed a “medical necessity determination” and stated Plaintiff's symptoms were severe and that his level of functioning impairment was serious. (Tr. 566-67). His areas of functioning impairment included school, family relations, social, and mood. (Tr. 567).

         At an appointment with Dr. Kimbo in September 2014, Dr. Kimbo noted Plaintiff was “talkative, very hyperactive, rocking in the chair and leaning it dangerously backwards”. (Tr. 590). Attention was “sustained.” Id. Dr. Kimbo adjusted Plaintiff's medications and continued prior diagnoses. Id. She also assigned a GAF score of 65, indicating mild symptoms. Id.

         In December 2014, Dr. Kimbo wrote a letter to the principal of Plaintiff's school (at the request of Plaintiff's parents) in support of a multi-factored evaluation for special education. (Tr. 626-27). Dr. Kimbo stated she believed this was necessary due to speech/language issues, attention/concentration/focus issues, impulsivity, and getting along with others. (Tr. 626).

         Opinion Evidence

         In April 2013, state agency reviewing physician Mel Zwissler, Ph.D., concluded Plaintiff's impairments did not functionally equal a listed impairment because Plaintiff had marked limitation in the domain of interacting and relating with others, but less than marked limitation in acquiring and using information, attending and completing tasks, and caring for oneself. (Tr. 120). Dr. Zwissler also concluded Plaintiff had no limitation in health and physical well-being, and moving about and manipulating objects. Id. In August 2013, state agency reviewing physician Carl Tishler, Ph.D., affirmed Dr. Zwissler's conclusions. (Tr. 131-32).

         In October 2014, Ms. Stanford completed a questionnaire regarding functional equivalence. (Tr. 602-05). In it, she noted she had known Plaintiff since May of that year. (Tr. 602). She opined Plaintiff had marked limitations in acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for self. (Tr. 602-04). Ms. Stanford reported she provided weekly in-home services to Plaintiff. (Tr. 604). In response to the question of “[i]f this is an episodic disorder, how often and for how long does it interfere with [Plaintiff's] functioning?”, she replied “[n]ot in my scope of practice to answer.” Id.

         Education Records

         Plaintiff had an Accommodation Plan in place for the first grade year (2012-13). (Tr. 243).[6] It included: 1) being seated near the teacher to maintain focus during group activities, and to take tests; 2) if distracted while working, he would be given the option of completing his work at the table or in an empty desk; 3) permission to stand at his desk or kneel on his chair, if needed; 4) subtle cues (“a wink or thumbs up”) when he is on task and subtle cues (“a hand on his back or the teacher in close proximity to him”) when he needs to focus; 5) being asked to repeat directions to verify comprehension; and 6) being assigned an emergency drill buddy to ensure he stays with the class during drills. Id.

         A weekly progress report from late February 2013 stated Plaintiff had been in trouble for talking during a fire drill, and that his teacher had noticed more instances of Plaintiff “making random vocalizations”, which the teacher did not believe he could control. (Tr. 200). The teacher rated Plaintiff's actions in: 1) following class rules; 2) completing work neatly and on time; 3) turning in homework on time; 4) paying attention and participating; 5) treating others with kindness; and 6) responding properly to authority as “good”. Id. The teacher also rated Plaintiff's self-control as fair to good, and appropriateness of his behavior outside of class as fair. Id.

         In May 2013[7], Plaintiff's first grade teacher at West Park Catholic Academy, Kathryn R. Gibson, completed a questionnaire for the Social Security Administration. (Tr. 204-13). She noted Plaintiff was in first grade, and was at grade-level in reading, math, and written language. (Tr. 204). Regarding Plaintiff's ability to care for himself, Ms. Gibson noted Plaintiff had weekly “obvious problem[s]”[8] with handling frustration, being patient, and responding to changes in his own mood. (Tr. 209). She assessed a “slight problem” in the areas of using good judgment, identifying and appropriately asserting emotional needs, using appropriate coping skills, and knowing when to ask for help. Id. She explained Plaintiff has trouble “express[ing] himself in relation to how others react to him”, “will growl or shake” when frustrated, and taking turns is “a challenge for him.” Id. Regarding attending and completing tasks, Ms. Gibson indicated Plaintiff had daily “obvious problems” with waiting to take turns, changing from one activity to another without being disruptive, and working without distracting himself or others. (Tr. 206). He had a “slight problem” paying attention when spoken to directly, refocusing, carrying out multi-step instructions, and working at a reasonable pace. Id. Ms. Gibson explained Plaintiff: “has no problem attending to self-selected or ‘freetime' activities”, but “[w]hen asked to follow multi- step directions he often becomes distracted” and “[h]e has some behaviors which also distract others in the class.” Id. Ms. Gibson indicated in other areas of the questionnaire that Plaintiff only sits next to one person and is kept near the teacher “to help maintain his focus and minimize distractions to others.” (Tr. 207). She stated Plaintiff “often moves as if on ‘fast-forward'”. (Tr. 208). Finally, Ms. Gibson noted Plaintiff's “repetitive gestures and vocalizations . . . sometimes illicit a negative response from his peers” and that these worsened over the course of the school year. (Tr. 211). She also stated Plaintiff “knows he should not repeat words and sounds . . . but he cannot help himself.” Id.

         In June 2013, Ms. Gibson completed a “School Activities Questionnaire”. (Tr. 241-42). In it, she noted Plaintiff's attention span, ability to follow instructions, and ability to respond to criticism were “somewhat less” than others in the class. (Tr. 241). His ability to work independently, and to understand and complete assignments on time were “about the same” as others in his class. Similarly, his ability to learn reading, writing, and mathematics were “about the same with accommodations in place.” Id. His ability to respond to change of routine was, however, “considerably less” than his classmates. Id. Ms. Gibson noted Plaintiff had been excluded from recess “several times related to arguments” and that he was “well-liked by his peers, however, they do react negatively when he produces random vocalizations.” (Tr. 242).

         In January 2014, Plaintiff was given a conduct warning for “hitting, punching, [and] poking” another student. (Tr. 248). Plaintiff said he was just playing. Id.

         In May 2014, Plaintiff's teacher (Mrs. Link) wrote a letter to Plaintiff's attorney. (Tr. 253). In it, she described a November 2013 parent-teacher conference where she had discussed behavior related infractions (“talking and not participating fully in specials classes, threatening words to one classmate, and threatening gesture to another”). She also described a January 2014 conference where Copeland indicated “they were still trying to find a counselor who could help [Plaintiff].” Id. The teacher's “main concern at that conference was the incidents involving hitting and punching when the class was transitioning to recess to ...

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