United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Knepp, II Magistrate Judge
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.
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). 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). 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).
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[.]”).
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).
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.”
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).
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).
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
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.
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, indicating “[m]ild symptoms.”
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.
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
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.
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).
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).
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
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).
2014, Plaintiff was seen by Sonia Stanford,
QMHS, 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.
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.
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).
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).
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.”
had an Accommodation Plan in place for the first grade year
(2012-13). (Tr. 243). 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.
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.
2013, 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]” 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.
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).
January 2014, Plaintiff was given a conduct warning for
“hitting, punching, [and] poking” another
student. (Tr. 248). Plaintiff said he was just playing.
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 ...