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Oltmann v. Commissioner of Social Security

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

July 26, 2018

SANDRA OLTMANN, Natural Parent on behalf of R.O.,[1] a minor Plaintiff,



          Elizabeth A. Preston Deavers, Chief United States Magistrate Judge.

         Plaintiff, Sandra Oltmann (“Plaintiff”), on behalf of her minor child (“R.O.”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for child's Social Security Supplemental Security Income benefits (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 11), the Commissioner's Memorandum in Opposition (ECF No. 16), Plaintiff's Reply (ECF No. 22), and the administrative record (ECF No. 7). For the reasons that follow, it is RECOMMENDED that the Court REVERSE the Commissioner of Social Security's nondisability finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of § 405(g).

         I. BACKGROUND

         Plaintiff filed an application for benefits on behalf of her minor child, R.O., in April 2013, alleging that R.O. has been disabled since January 1, 2012, due to hypertonia, global delays and ataxia foot deformities. (R. at 151-56, 465.) Plaintiff's application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. (R. at 103-05.) Administrative Law Judge Thomas L. Wang (“ALJ”) held a hearing on November 13, 2015, at which Plaintiff and R.O., who was represented by counsel, appeared and testified. (R. at 42-73.) On March 4, 2016, the ALJ issued a decision finding that R.O. was not disabled within the meaning of the Social Security Act. (R. at 18-36.) On April 17, 2017, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-7.) Plaintiff then timely commenced the instant action.


         At the administrative hearing, R.O.'s mother testified that R.O. is not always able to understand or comply. He suffers mental setbacks when things change or his daily routine is disrupted. (R. at 48.) She stated that R.O. is not able to keep up during the day and sometimes is unable to complete physical therapy due to pain. (Id.)

         When asked how R.O. is different from other children, Plaintiff testified that she felt R.O.'s maturity level is that of a five-year old even though he is eight. (R. at 49.) She stated that his mobility is at least two and half years behind. Plaintiff testified that R.O. does not accept spontaneous play with other children and his communication is very slow. She testified that R.O. exhibits infant-type behaviors such as eating non-food items. She stated that when he greets another child, he will rub his/her hair. (R. at 50.)

         Plaintiff also testified that R.O. has difficulty with getting up in the morning and getting ready for school. Plaintiff testified that R.O. “sleeps a lot, ” but he still seems fatigued in the morning. R.O. is stiff when he gets out of bed and bathing, showering and general hygiene present significant problems for R.O. (R. at 52.) She also testified that eating is difficult for R.O. because his mouth gets fatigued so he prefers to eat soft food or items he can pick up with his hands. (R. at 53.) He will become distracted if other people are around and will not eat. He often has difficulty in the school cafeteria because it is loud or there are too many people around. (R. at 54.)

         According to Plaintiff, R.O. has difficulty identifying emotions of others and has difficulty processing communication. R.O.'s speech is slow when conversing and if he is distracted he will not communicate. (R. at 56-57.) She testified that R.O. can become physical in a situation that is unexpected or not explained ahead of time. Plaintiff continued that she “walk[s] on eggshells” because she does not want something “to set R.O. off, ” leading to a bad day. (R. at 58.) She testified that R.O. does not have a best friend or a group of friends. He has difficulty processing rules and directions in certain situations. (R. at 60.)

         Plaintiff further testified that R.O. has difficulty paying attention in school and staying on task. He will get up from his desk and walk around, he fidgets and eats erasers. It takes R.O. much longer to complete assignments and he has trouble completing homework because he does not remember instructions. (R. at 62.)

         When asked whether she has noticed R.O. making any progress in light of the various treatments and therapies he has tried, Plaintiff stated that he makes a little progress with respect to physical or occupational therapy but quickly loses the skill. She said that she has not seen significant progress in other areas of deficit. (R. at 68.)

         R.O. also testified during the hearing, answering the ALJ's questions regarding hobbies, family, friends, and school. (R. at 69-71.)


         A. Nationwide Children's Hospital

         R.O. underwent a psychological evaluation by Michelle Sprader, Psy.D. in December 2011, when he was 4 years old due to concerns about autism. (R. at 581-92.) Adaptive Behavior Assessment (ABAS-II Composite-60) testing showed that R.O. had low average to below average cognitive scores, generally average pre-academic skills, and mildly delayed adaptive skills. (R. at 583.) R.O.'s nonverbal and verbal cognitive skills were in the low average to below average range. (Id.) Nonverbal skills of matching and pattern completion were strengths. (Id.) R.O.'s score on the Autism Diagnostic Observation Schedule (“ADOS”) was at the autism cut-off, and his mother's Autism Spectrum Rating Scale (“ASRS”) ratings were all significant for autism and consistent with the ADOS. (R. at 583, 591-92.) Teacher ratings were not significant for autism. (Id.) Dr. Sprader noted that R.O.'s language and socialization skills for daily purposes are lower than would be expected given his cognitive and language testing scores. (R. at 583.) Language problems include that he does not initiate conversations or make requests, he had stereotyped language in the past, and his pretend play is primarily imitative of his brother. (Id.) Social problems include decreased use of eye contact and gestures, poor direction of facial expressions toward others, and reciprocity that is only toward primary family members. (Id.) R.O. has difficulty with change and engages in spinning of objects. (Id.) At the time of this evaluation, Dr. Sprader concluded that R.O. met the criteria for pervasive disability disorder, not otherwise specified, which would likely be referred to as Autism Spectrum Disorder. (Id.)

         When seen in the physical medicine clinic for a leg brace check, Plaintiff reported that R.O. was having increased behavioral issues at home and at school. (R. at 1105.)

         R.O. underwent another psychological evaluation in November 2013, when he was 6 years, 5 months old, with Micheline Silva, Ph.D. as a follow-up in order to determine his levels of functioning to aid in his psycho-educational planning. (R. at 1129-47.) Plaintiff reported that since school had started R.O.'s behaviors had improved, but he still tended to isolate himself and get upset when abruptly approached by other children or pets. (R. at 1129.) She further noted that in the past six to nine months, R.O. had become more aggressive towards his brothers and had kicked his teacher and hit a classmate. (R. at 1131.) Dr. Silva noted that there were no difficulties with motor or with verbal communication. Eye contact was appropriate, but facial expression had limited range. Activity level was well-modulated with good impulse control. (R. at 1133.) R.O. was periodically distracted but able to refocus on tasks with minimal intervention. There were some symptoms of anxiety briefly observed during the initial portion of the testing. Verbal communication and social behavior were appropriate. Dr. Silva reported that R.O. grasped directions quickly with no elaboration needed. Perseverance was appropriate as was response time. He did tend to perseverate and use the same approach several times before switching. (Id.) Stanford-Binet intelligence testing resulted in a nonverbal IQ of 83, a verbal IQ of 85, with a full scale IQ of 83. (R. at 1134.) On the Leiter performance test, R.O.'s overall nonverbal cognitive abilities are in the borderline impaired range in comparison to his age group. His nonverbal fluid reasoning score was in the low average range, significantly higher than his score on the nonverbal fluid reasoning on the Stanford-Binet. This suggests that R.O.'s performance significantly improves in tasks measuring nonverbal fluid reasoning (from below average to low average) when instructions are provided nonverbally through the use of gestures and mimics. (R. at 1135.) Achievement testing for word reading, spelling, and math computation were all in the borderline range. Plaintiff completed the Vineland Adaptive Behavior Scales, which placed R.O. in the moderately low to low ranges in all areas. (R. at 1137.) On the Child Behavior Checklist and Teacher Report Form as well as the Conner's test, Plaintiff perceived “clinically significant symptoms” of anxiety, while R.O.'s teacher did not perceive any “clinically significant symptoms” of any of the disorders measured, i.e., anxiety, depression, social problems, thought problems, attention problems, aggressive behavior, depression, attention deficit/hyperactivity disorder, oppositional defiant disorder, and conduct problems. (R. at 1137-38.) Dr. Silva assessed R.O. with Pervasive Development Disorder not otherwise specified (PDD-NOS), Autism Spectrum Disorder, Language Disorder, Developmental Coordination Disorder, and Borderline Intellectual Functioning. (R. at 1140- 41.)

         R.O. attended occupational therapy between May 2014 and March 2015. (R. at 1882-2222.) His goals were to increase his overall developmental skills and improve his ability to grade muscle force and use appropriate muscle groups during fine motor activities. (R. at 1903.) When assessed in March 2015, R.O. was found to be happy/cooperative at beginning of session. He became frustrated during last 15 minutes with handwriting activity and demonstrated poor tolerance of therapist redirection and therapeutic recommendations. His assessment of progress was found to be less than expected. Overall, R.O. made inconsistent progress towards established goals. (R. at 2222.)

         R.O. underwent a two- day psychological assessment with Christine M. Eichelberger, Ph.D., in March 2015 when he was 8 years old. (R. at 2319-24.) Stanford - Binet Intelligence testing resulted in the full scale I.Q. test of 88. (R. at 2320.) Dr. Eichelberger noted that R.O.'s cognitive functioning scores were lower than his previous evaluation indicating failure to progress at the expected rate. (Id.) His language functioning scores indicated global receptive delays and expressive language deficits and significant delays in use of social language. With respect to adaptive behavior the teacher rating endorsed inattention, hyperactivity/impulsivity, defiance/aggression and peer relation scales in the very elevated range indicating many more concerns than typically reported for children of R.O.'s age. (R. at 2322.) Dr. Eichelberger concluded that R.O. continued to meet the criteria for diagnosis of Autism Spectrum Disorder with accompanying language impairment and cognitive impairment along with developmental coordination disorder, mixed receptive expressive language disorder and mild intellectual impairment. (R. at 2323.)[2] Dr. Eichelberger did recommend that R.O. continue to attend a general education classroom with paraprofessional support, and that he be re-evaluated in two to three years. (R. at 2323-24.)

         B. Consultative examination: Jack J. Kramer, Ph.D.

         On June 26, 2013, Jack J. Kramer, Ph.D. evaluated R.O. for disability purposes. (R. at 1095-1102.) At the time of this evaluation, R.O. was 6 years 3 months old. (R. at 1095.) R.O.'s mother indicated that he has no eating problems, and that he eats a wide variety of foods. (R. at 1096.) Dr. Kramer performed psychometric testing which resulted in a Full Scale IQ score of 79. (R. at 1097.) Dr. Kramer noted that R.O. “required a little redirection during testing to stay focused.” (R. at 1095.) R.O's mother she lays his clothes out the night before and needs assistance getting dressed. (R. at 1098.) He can bathe himself, but needs assistance setting the water temperature and getting himself completely clean. (Id.) He sleeps well. Dr. Kramer observed that R.O. was pleasant but immature during the examination. (R. at 1095.) He was not excessively active but struggled with remaining focused and paying attention nevertheless was responsive to redirection. (Id.) Eye contact was adequate with no evidence of depression or anxiety. He found R.O.'s test scores to be in the “borderline to low average range, with language skills a relative strength.” (R. at 1098.) Dr. Kramer further noted that, R.O.'s “[p]revious test scores reported in his records indicated cognitive and language scores in a borderline to low average range. He appears to be learning early skills, although skills are a little harder for him. During the current examination, he understood instructions and was responsive to questions.” (Id.) Dr. ...

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