United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Knepp II United States Magistrate Judge
Lucas (“Lucas”) filed a Complaint against the
Commissioner of Social Security (“Commissioner”)
on behalf of “M.B” (“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. 14). For the
reasons stated below, the undersigned affirms the decision of
filed an application for SSI on behalf of Plaintiff in
September 2012, alleging a disability onset date of August
30, 2012. (Tr. 10, 303-11). The claim was denied initially
and upon reconsideration. (Tr. 230-32, 233-36). Lucas then
requested a hearing before an administrative law judge
(“ALJ”). (Tr. 237). On October 28,
and May 12, 2015, Lucas and Plaintiff (represented by an
attorney) appeared and testified in at a hearing before the
ALJ. (Tr. 156-67, 168-209). On September 25, 2015, the ALJ
found Plaintiff not disabled in a written decision. (Tr.
10-25). The Appeals Council denied Plaintiff's request
for review, making the hearing decision the final decision of
the Commissioner. (Tr. 1-6); 20 C.F.R. §§ 416.1455,
416.1481. Lucas filed the instant action on behalf of
Plaintiff on February 23, 2017. (Doc. 1).
was born in December 2009 (Tr. 303), making him two years old
on the date of his disability application, and five years old
on the date of his hearing. (Tr. 156).
Plaintiff and Lucas testified at the May 2015 hearing before
the ALJ. See Tr. 168-209.
testified he was born on December fifteenth lived with
“Mommy and Nina”. (Tr. 172-73). When asked if he
does what they tell him to do, Plaintiff responded:
“sometimes”. (Tr. 174). Plaintiff testified that
he was in preschool, got into “a little bit” of
trouble in school, but got along with other children
“fine”. Id. Plaintiff testified he saw
his counselor Diane “once a week” and
“plays with her a lot”. (Tr. 176).
testified Plaintiff had been in her custody since he was 5
weeks old. (Tr. 180). Lucas is Plaintiff's paternal
great-aunt. Id. Plaintiff does not have any contact
with his biological mother, and minimal contact with his
biological father. Id.
detailed the mental and physical difficulties faced by
Plaintiff. She testified that Plaintiff “does not
listen at all” to his teachers, Lucas, or Lucas's
mother - his paternal great- grandmother. (Tr. 178). Lucas
testified that Plaintiff did not relate well with other
children, often separated himself from them, and got into
physical altercations over toys. Id. She testified
Plaintiff had also become physically violent with both
herself and her mother. (Tr. 180). Plaintiff saw a
psychiatrist, Dr. Shah, “once a month.”
Id. He took daily medications: Adderall in the
morning, and Risperdone, Benadryl, and melatonin in the
evening. (Tr. 181).
testified Plaintiff would sleep “four hours tops, but
it is broken sleep”, and would yell for her or her
mother when he woke, suggesting that he was awakened by
nightmares. (Tr. 181). She noted Plaintiff had trouble
dressing himself and “keeps putting his shoes on the
wrong feet”. (Tr. 183). Lucas stated Plaintiff
“makes a mess” while toileting and “will
not sit on the toilet without the little child seat on
there”. Id. She testified Plaintiff is a
“picky” eater and mainly ate with his hands. (Tr.
2012 developmental summary report from Cuyahoga County Help
Me Grow noted concerns with Plaintiff's delays in
adaptive functioning and personal-social development.
See Tr. 461-94. The report noted “no
delay” in receptive communication, gross motor skills,
and cognitive development. Id. The report
recommended Plaintiff receive specialized instruction to
address behavior issues, as well as occupational therapy to
address his “self-regulation issues.” (Tr. 461).
November 2012, Plaintiff underwent an early childhood mental
health assessment at Guidestone to address issues with anger
and nightmares. See Tr. 400-37. Ms. Helen Cuswick, a
caseworker, interviewed and assessed Plaintiff. (Tr. 400).
Ms. Cuswick noted sensory patterns associated with ADHD. (Tr.
416). She incorporated a mental health status exam into the
assessment; it revealed Plaintiff had above average
intelligence, but was agitated, withdrawn, and restless. (Tr.
424-425). Ms. Cuswick diagnosed Plaintiff with anxiety state
NOS, and disruptive behavior NOS. (Tr. 435). She assigned a
Global Assessment of Functioning (“GAF”)
score of 47. Id.
January 2013, Plaintiff saw Dr. Nicole Leisgang, Psy.D., for
a consultative psychological evaluation. See Tr.
600-05. Dr. Leisgang found Plaintiff interacted appropriately
with her, was generally in good spirits, and appeared to have
considerable energy. (Tr. 602). Dr. Leisgang noted Plaintiff
was “playful” but “somewhat difficult to
redirect.” Id. She also found him alert,
responsive, and oriented to person and situation, but not
fully oriented to time or place. Id. Dr. Leisgang
noted “[Plaintiff's] general level of intelligence
appeared to fall in at least the average range.” (Tr.
603). His communication, socialization, and self-help
abilities fell within average limits. Id. Dr.
Leisgang indicated that Plaintiff's responses were not
indicative of significant developmental delays, but
Plaintiff's grandmother's comments suggested his
motor skills were slightly delayed for his age group.
Id. Dr. Leisgang did not provide any formal
diagnosis. (Tr. 605).
April 2013, Nikhil Koushick, Ph.D, at the Metrohealth Medical
Center provided a mental health assessment of Plaintiff.
See Tr. 611-15. Dr. Koushick diagnosed Plaintiff
with disruptive behavior disorder NOS, and provided a
rule-out diagnosis of ADHD, anxiety disorder, stereotyped
movement disorder, and sensory processing disorder. (Tr.
615). Dr. Koushick assigned Plaintiff with a GAF score of 61
to 70, indicating “mild symptoms.” (Tr. 616).
records indicate that his treatment at Guidestone continued
beginning in May 2013 with Dr. Aditi Sheth, a psychiatrist.
(Tr. 809). During that visit, Dr. Sheth noted concerns of
hyperactivity, anxiety, and impulsivity. (Tr. 806). Plaintiff
was diagnosed with Asperger's Disorder. Id. Dr.
Sheth continued to see Plaintiff through a series of
follow-up visits from May 2013 to August 2013. (Tr. 792-825).
Throughout that time, a diagnosis of Asperger's Disorder
was continued, and Plaintiff's GAF score fluctuated
between 50 and 55. See id. In a July 2013 visit, Dr.
Sheth noted Plaintiff was stable, but was walking around the
office and pacing, only sitting a few times. (Tr. 803-04).
Dr. Sheth increased Plaintiff's Risperdal dosage from
0.25 to 0.5. Id.
a visit in August of 2013, Dr. Sheth noted that Plaintiff was
“unable to interact as he is so much in motion.”
(Tr. 799-800). Dr. Sheth continued with a diagnosis of Autism
Spectrum Disorder and assigned a GAF score of 50.
April 2014, Plaintiff's guardian reported to Dr. Sheth
that Plaintiff was “not doing well at this time”
and his “behavior is all over the place.” (Tr.
794). Dr. Sheth increased Plaintiff's Risperdal dosage to
1.5, and added Concerta to take in the mornings Id.
It was reported to Dr. Sheth in a June 2014 follow-up visit
there was no improvement in Plaintiff's behavior on
Concerta as he was “still impulsive.” (Tr. 792).
Dr. Sheth changed Plaintiff's medication to Vyvanse.
December 2, 2014, Dr. Sheth completed a Child Functional
Assessment Form (CFAF) for Plaintiff. See Tr.
812-13. In it, Dr. Sheth indicated she saw Plaintiff
“every few months” for a “couple
years”. (Tr. 812). Plaintiff's listed diagnosis was
“Autism Spectrum Disorder / very limited”.
Id. Dr. Sheth checked the box for “extremely
limited” regarding Plaintiff's ability to sustain
every listed mental function over a normal day and on an
ongoing basis. Id.
Sheth completed another CFAF in June 2015. See Tr.
1046-47. Dr. Sheth again checked the boxes indicating
Plaintiff was “extremely limited” in his ability
to sustain every listed mental function over a normal day and
on an ongoing basis. Id. Dr. Sheth stated Plaintiff
“has been through multiple meds & therapy”
and was “still not completely stable”.
Id. She further stated that Plaintiff's family
is “very caring” and “he has come a long
way but it is a huge struggle.” (Tr. 1047).
saw Dr. Alison Flowers, Psy.D., in November 2014 for a
consultative psychological evaluation. See Tr.
783-90. On examination, Dr. Flowers noted Plaintiff's
demeanor and responsiveness were cooperative, but his manner
of relating and social skills were poor. (Tr. 786). Dr.
Flowers described Plaintiff as “restless and
hyperactive”, and observed that he “would not sit
for any period of time during the evaluation.”
Id. Plaintiff's speech intelligibility ranged
from good to fair, and expressive and receptive language
appeared age appropriate. Id. Plaintiff's
thought processes and content were coherent and
goal-directed, and his affect was full and appropriate.
Id. Plaintiff's attention and concentration were
“age appropriate” and he was able to count and
say the letters of the alphabet. (Tr. 787). Dr. Flowers noted
that Plaintiff's “intellectual functioning is
estimated in the average range”, and that his
“general fund of information is age appropriate.”
Flowers diagnosed Plaintiff with Autism level II, ADHD, an
unspecified anxiety disorder, and a developmental
coordination disorder. (Tr. 789). Dr. Flowers noted that
“[Plaintiff's] symptoms related to autism may limit
his abilities to acquire and use information relative to
others his age.” Id. When asked to describe
Plaintiff's abilities and limitations in interacting and
relating with others relative to children his age, Dr.
The claimant reportedly interacts poorly with others his age.
However, this was reported to be improving. He tends to play
by himself. There has been one instance of him being
aggressive towards one of his peers. While he answered
questions appropriately in the evaluation setting, he was
observed to have poor eye contact and at times would lay on
the evaluator's floor and make noises, indicating that
his interactions were poor.
(Tr. 789-790). Dr. Flowers further noted there were
difficulties in activities in daily living such as washing
his face independently, pulling his clothes on and off,
buttoning and zipping, toileting, and refusing to use a fork
and spoon due to sensory issues. (Tr. 790).
November 29, 2012, at the request of Lucas and
Plaintiff's great-grandmother, Sally Reeves, Ph.D., wrote
an opinion letter to the Cuyahoga Board of Developmental
Disabilities (CCBD), regarding her assessment of Plaintiff.
See Tr. 580-81. Her assessment was based on
information provided by Plaintiff's caregivers, reviewing
his medical records, and a brief home observation. (Tr. 580).
Based on her personal observation, Dr. Reeves noted Plaintiff
“does present as somewhat withdrawn, anxious, fearful
child with social awkwardness and sensory issues.” (Tr.
581). She found that he “also shows extreme reactivity,
and unexplained aggression and anger, with what appears to be
some atypical ideation.” Id. Dr. Reeves
concluded Plaintiff showed characteristics of
high-functioning Autism Spectrum Disorder. Id.
January 2013, state agency physician Dr. Todd Finnerty,
Psy.D., reviewed Plaintiff's records. See Tr.
210-218. Dr. Finnerty found no medically determinable
impairment “and therefore consideration of symptoms and
credibility is not applicable to this claim.” (Tr.
214). He offered no diagnosis and “found average
cognitive abilities.” Id.
2013, state agency psychologist Dr. Carl Tishler reviewed
Plaintiff's records. See Tr. 219-28. He
concluded Plaintiff had less than marked limitation in
interacting and relating with others. (Tr. 224).
Specifically, he added that “[Plaintiff] is reported to
have difficulty interacting with caregivers, but has been
able to interact appropriately with counselors. Will respond
to positive reinforcement.” Id. Dr. Tishler
found less than marked limitation in the domain of attending
and completing tasks. Id. He noted that
“[Plaintiff] is able to sit still and focus when he is
interested in activity. [Plaintiff] has noted distractibility
but was able to be redirected appropriately.”
Id. Finally, in the area of caring for oneself, Dr.
Tishler found a less than marked limitation. Dr. Tishler
added that Plaintiff “with noted difficulty controlling
his behavior. Has frequent tantrums, and has trouble
transitioning from task to task.” Id. In sum,
Dr. Tishler concluded Plaintiff's “medically
determinable impairment or combination of impairments is
severe, but does not meet, medically equal, or functionally
equal the listings [. . .]” (Tr. 225).
Records and IEP
records indicate Plaintiff received special education
services under an individualized education plan (IEP).
See Tr. 116-53. Plaintiff was eligible for special
education based on a diagnosis of Autism. (Tr. 573).
December 3, 2012 Plaintiff underwent an “Evaluation
Team” assessment through the Cleveland Municipal School
District. See Tr. 557-73. Evaluator Natasha Howard,
a speech and language pathologist, found that Plaintiff
“needs to improve his language skills . . . needs to
follow multi-step directions.” (Tr. 558). However, she
found that Plaintiff “does not require specialized
direct instruction in the area of communication in order to
improve his receptive language skills”, noting
“he should continue to gain speech and language skills
as he is exposed to typically developing peers . . .”
Id. Ms. Sharon Eng, an occupational therapist,
evaluated Plaintiff's motor skills. (Tr. 559). She opined
that his “fine motor skills are age appropriate and
should not impede his ability to participate in classroom
activities.” Id. Evaluator Ashley Linnert, a
school psychologist, found that Plaintiff “demonstrates
difficulty with social interactions, engages in unusual
behaviors and stereotypical behaviors, has difficulty
tolerating changes in his routine, overreacts to sensory
stimulation, and has problems with inattention and/or motor
and impulse control.” (Tr. 570). Ms. Linnert found that
“these behaviors have not impeded his ability to grasp
foundational pre-academic skills.” Id.
November 2014, Plaintiff's Intervention Specialist,
Alicia Glover, of Paul Dunbar School in Cleveland, completed
a teacher questionnaire. See Tr. 375-82. As the
Plaintiff's schoolteacher, Ms. Glover had contact with
him nearly six hours per day, five days per week during the
school year. (Tr. 375). In the domain of attending and
completing tasks, Ms. Glover found “a serious
problem” with Plaintiff's ability to refocus on
task when necessary, as well as working without distracting
himself or others. (Tr. 377). She noted “an obvious
problem” with Plaintiff's ability to: pay attention
when spoken to directly, organize things, and work at a
reasonable pace. Id. She found “no
problem”, or ...