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Lucas v. Commissioner of Social Security

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

March 27, 2018



          James R. Knepp II United States Magistrate Judge


         Rachelle 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 the Commissioner.

         Procedural background

         Lucas 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, 2014[1] 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).

         Factual Background[2]

         Personal Background

         Plaintiff 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).

         Both Plaintiff and Lucas testified at the May 2015 hearing before the ALJ. See Tr. 168-209.

         Plaintiff 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).

         Lucas 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.

         Lucas 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).

         Lucas 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. 183-84).

         Medical Records

          A July 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).

         In 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[3] of 47. Id.

         In 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).

         In 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).

         Plaintiff's 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.

         During 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. Id.

         In 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. Id.

         On 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.

         Dr. 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).

         Plaintiff 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.” Id.

         Dr. 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. Flower's opined:

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).

         Medical Opinion Evidence[4]

         On 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.

         In 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.

         In May 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).

         Educational Records and IEP[5]

         The 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).

         On 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.

         In 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 ...

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