United States District Court, N.D. Ohio, Eastern Division
R. Knepp II Judge
REPORT AND RECOMMENDATION
R. Knepp II United States Magistrate Judge
Tucker (“Tucker”) filed a Complaint against the
Commissioner of Social Security (“Commissioner”)
on behalf of her child, PCW, Jr. (“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). For the reasons stated
below, the undersigned recommends the decision of the
Commissioner be reversed and remanded for further
Plaintiff was previously determined to be disabled as of June
1, 2010 at the age of two. (Tr. 76-105). In November 2014,
the Social Security Administration performed a continuing
disability review and found Plaintiff (then five years old)
was no longer disabled. (Tr. 69, 106-09). That determination
was upheld on reconsideration, see Tr. 121-38, and
Tucker then requested a hearing before an ALJ. (Tr. 139). On
April 5, 2016, Tucker appeared before an ALJ at a hearing,
but requested a postponement in order to obtain
representation after the ALJ explained her rights.
See Tr. 60-68; see also Tr. 151. Four
months later, on August 9, 2016, Tucker and Plaintiff
appeared and testified at a hearing before the ALJ without
representation. (Tr. 35-59). On March 31, 2017, the ALJ found
Plaintiff not disabled in a written decision. (Tr. 11-28).
The Appeals Council denied Tucker's request for review,
making the hearing decision the final decision of the
Commissioner. (Tr. 1-5); 20 C.F.R. §§ 416.1455,
416.1481. Tucker timely filed the instant action on behalf of
Plaintiff on May 4, 2018. (Doc. 1).
2009, Plaintiff was two years old when he was found disabled
(Tr. 82), based on a diagnosis of “failure to
thrive” (Tr. 69, 482). He was five years old at the
time the Agency found his disability had ceased. (Tr. 106).
At that time, the Agency explained that Plaintiff “now
has a near normal BMI w/o any chronic phys[ical] health
conditions” and that his behavioral issues did not
render him disabled. (Tr. 69); see also 123-30
(Hearing Officer's decision).
March 2014, providers from the Cleveland Municipal School
District completed an IEPprogress report. (Tr. 425-27). Providers
noted Plaintiff was making adequate progress toward his
goals. See Id. His teacher commented that he
“has been a pleasure”, and “loves to play
with the other students in the classroom”, and was
“steadily improving with all of his goals”, but
that “[r]ecently . . . his attitude ha[d] gone
down” and he had trouble sharing. (Tr. 426-27).
April 2014, Cleveland Public Schools completed an Evaluation
Team Report. (Tr. 429-47; 465-78). Therein, evaluators found
Plaintiff's auditory and expressive communication skills
were comparable to his peers. (Tr. 436). He was “on
track with understanding and using basic concepts within the
classroom for following directions, answering questions
effectively . . ., and following routines. (Tr. 437).
Plaintiff had no educational needs involving his
language/communication skills. Id. Plaintiff's
teacher reported he was aggressive and unable to sit still
for any length of time. (Tr. 438). He was impulsive and had a
short attention span, and “thrives in a structured
environment where he is provided with enrichment that is at
his instructional level.” (Tr. 440). “Without
continued intensive interventions”, Plaintiff would
“be unable to progress through the curriculum at the
pace of same-age peers.” (Tr. 444).
was assigned an IEP by the Cleveland Municipal School
District for April 2014 through April 2015. (Tr. 449-61). He
was to spend most of his kindergarten day in a general
education classroom, but attend a resource room classroom for
language arts, math, and “[a]ttending/[r]outines”
for small group and individual instruction. (Tr. 461).
for April 2015 through April 2016 showed Plaintiff made
progress in phonics, and writing, but was still behind his
peers. (Tr. 417-18). Plaintiff remained in a regular
classroom, but received language arts and math with an
intervention specialist. (Tr. 523).
March 2016 (first grade), Plaintiff's test scores were
higher than average in reading, foundation skills, literature
and informational, language, writing, and vocabulary. (Tr.
319). His math scores were mostly high average, with one low
average score. Id. He had difficulty with phonetics,
sight words, and writing with correct grammar and
punctuation. Id. A reading delay affected his oral
fluency and comprehension of reading material. (Tr. 323).
Because of this, he “require[d] intensive direct
instruction to access the general education classroom.”
Id. The IEP stated Plaintiff would continue to work
in the resource room for language arts, and math. (Tr. 328).
November 2016, Plaintiff underwent a reevaluation with Avon
Lake City Schools. (Tr. 344-50, 368-74). The Evaluation Team
Report noted Plaintiff was “pleasant and upbeat”
but at times “would become silly and frequently asked
when the testing would be completed.” (Tr. 346).
focus when presented with more challenging tasks, was
“easily distracted”, and “constantly
moving”. Id. Testing revealed mostly
low-average to average scores, with some below average
scores. See Tr. 346-47. He had average fluid
reasoning and processing speed, but below average working
memory. (Tr. 348). Plaintiff needed to increase phonological
processing, sight word recognition, decoding,
spelling/written expression, math reasoning, and vocabulary
skills. Id. A teacher indicated he was below grade
level in all areas of the curriculum. (Tr. 349). Plaintiff
had problems with aggression at school. (Tr. 369). The report
noted that: “Overall, [Plaintiff's] hyperactivity,
attention problems, learning problems, atypicality, conduct
problems, aggression, anxiety, depression, executive
functioning, anger control, emotional self-control,
leadership skills, functional communication skills, and
activities of daily living may be of a concern.”
Id. He needed to increase his ability to remain calm
and focused, follow rules, stay on task, manage his emotions,
complete multi-step tasks, and communicate. (Tr. 370).
Plaintiff's “overall level of adaptive
behavior” was “moderately low to adequate”
and in the 21st percentile. (Tr. 371).
IEP was completed for the time period of November 2016
through November 2017. (Tr. 375-82). Plaintiff's reading,
math, and written expression skills were in the low average
range, and his math computation and reading skills
(fluency/comprehension) were average. (Tr. 376). His
communication and language skills (grammar/vocabulary) were
below average, and his receptive language skills were
average. Id. Plaintiff continued to receive daily
reading, writing, and math instruction in the resource room;
he also received speech services. (Tr. 379-80).
September 2014, Plaintiff (then five years old) underwent an
evaluation with clinical psychologist Deborah Koricke, Ph.D.
(Tr. 480-88). Dr. Koricke noted Plaintiff “put forth
consistently good effort and appeared eager to interact, but
he is difficult to keep on task.” (Tr. 483). He was not
taking medication for ADHD. Id.; see also
Tr. 486. He was impulsive, distracted, and hyperactive, but
had no difficulty understanding simple or complex directions,
or expressing thoughts and feelings. (Tr. 483-84). Dr.
Koricke diagnosed ADHD, combined presentation. (Tr. 486). She
opined Plaintiff would have difficulty learning and retaining
new information, sustaining attention for long periods of
time, and sustaining attention for interpersonal interactions
due to ADHD symptoms. (Tr. 486-87). He was also likely to be
disruptive and would require a higher level of supervision to
complete tasks. (Tr. 487). Finally, she noted he was able to
complete self-care activities with structure and reminders
from his mother. (Tr. 488). Plaintiff had a limited
frustration tolerance and acted impulsively, but was
responsive to redirection and discipline. Id.
October 2014, State agency providers reviewed Plaintiff's
records and offered an opinion regarding his functional
limitations. (Tr. 489-96). They opined Plaintiff had a marked
limitation in the domain of attending and completing tasks,
but less than marked limitation in the domains of acquiring
and using information, interacting and relating with others,
and caring for self. (Tr. 491-92). They opined Plaintiff had
no limitation in the domains of moving about and manipulating
objects or health and physical well-being. (Tr. 492). In
March 2015, State agency providers again reviewed
Plaintiff's records and reached the same conclusions.
February 2015, Plaintiff saw social worker Eureka Marshall,
LSW. (Tr. 499-502). Tucker brought Plaintiff for an
assessment due to his difficulty focusing in school and
inability to sit still, as well as aggressive behavior with
peers and family members. (Tr. 500). Ms. Marshall diagnosed
ADHD, combined type. (Tr. 502).
August 2015, Plaintiff underwent a psychiatric assessment
with Vince Caringi, M.D., to evaluate disruptive behavior.
(Tr. 534-35). Plaintiff's diagnosis remained ADHD,
combined type, and Dr. Caringi planned to start medication.
was prescribed medication for his ADHD. See Tr.
555-56. At a follow-up visit in November 2015,
Plaintiff's mother reported the medication “was
very helpful” with Plaintiff's ability to focus at
school. (Tr. 549). However, he had run out of medication
three weeks prior and “since then ha[d] been getting
into more trouble at school.” Id. After
consultation with Dr. Caringi, a nurse instructed Tucker to
re-start, and then increase, Plaintiff's medication.
January 2016, Tucker reported “that she never made the
adjustment” to Plaintiff's medication dose and that
he had some daytime sedation. (Tr. 626). She also reported
his school behavior improved, though he could still be
irritable and easily frustrated. Id.
February 2016, Plaintiff saw Phyllis Elinson, M.D. (Tr. 610).
Plaintiff had a previous diagnosis of failure to thrive, and
was a picky eater. Id. Dr. Elinson assessed a
vitamin D deficiency, tinea capitis, a food aversion, and
constipation. (Tr. 611). She also noted Plaintiff had
behavioral problems, for which he received counseling and
medication. (Tr. 610).
March, Tucker reported Plaintiff's behavior worsened, and
he required frequent redirection at school. (Tr. 628). He was
impulsive and had recently cut his own hair. Id.
2016, Dr. Caringi noted Plaintiff improved academically, but
still got in trouble at school for “distracting and
defiant behaviors.” (Tr. 630). He noted Plaintiff
benefitted academically from stimulant medication and
behaviorally from non-stimulant medication, but
“[d]espite discussion and plan to do so in the past, he
never adhered to both medications together.”
Id. Dr. Caringi instructed Plaintiff to
“resume Intuiniv” and “continue
Vyvanse”. (Tr. 631).
2016 report from the Cuyahoga County Board of Developmental
Disabilities found Plaintiff had substantial functional
limitation in mobility, receptive and expressive language,
self-care, self-direction and was therefore eligible for
services. (Tr. 669).
saw Dr. Caringi again in September. (Tr. 632). Tucker
“maintained his medications over the summer and since
resuming school has been getting good reports” and
“completing his assignments.” Id. Tucker
reported Plaintiff was “episodically
appeared at the first hearing on April 5, 2016 without a
representative, and the hearing was adjourned to allow her
time to obtain representation. See Tr. 62-67.
accompanied by Plaintiff, appeared at the second hearing on
August 9, 2016 before the same ALJ. (Tr. 37). Plaintiff lived
with his mother, and nine-year-old sister. (Tr. 47). He also
had five siblings on his father's side, with whom he did
not always get along. (Tr. 47-48). He sometimes played with
his sister, but often hit her. (Tr. 56).
testified Plaintiff had a new IEP as of March 2016; he
finished first grade, and was entering second, in a mix of
regular and special education classes. (Tr. 50-51). He had
never been suspended, but often went to the principal due to
behavioral problems. (Tr. 52). Tucker stated she had to go to
school “[a]lmost every day” the prior year
because of behavioral problems. Id. Plaintiff had
trouble keeping his hands to himself, staying seated, and
remaining focused. (Tr. 53).
testified Plaintiff's ability to focus (and, as a result,
his grades) improved with counseling and medication. (Tr. 45,
53). She also noted speech therapy had helped, such that
Plaintiff no longer needed the service. Id. Tucker
testified Plaintiff started ADHD medication in 2014. (Tr.
46). His medication had recently been increased
“[b]ecause he was focusing but he was still all over
the place . . . hitting others and not keeping his hands to
hi[m]self.” Id. Tucker was awaiting an
appointment with an anger specialist through the Cuyahoga
County Board of Disability. (Tr. 49). Plaintiff could be
“very, very angry”, and hit people, scream, run
away, or throw tantrums. (Tr. 54).
written decision dated March 31, 2017, the ALJ found the most
recent favorable medical decision finding Plaintiff disabled
was dated March 21, 2011, and at the time of that decision,
disability was based on malnutrition, marasmus, failure to
thrive. (Tr. 15). The ALJ found medical improvement occurred
as of November 1, 2014, and since that date, the impairment
upon which disability was previously based did not meet or
medically equal the Listings, 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id. The ALJ then found Plaintiff was a
preschooler on November 1, 2014, and a school-age child at
the time of the decision. Id. Next, the ALJ found
Plaintiff's previous impairment did not functionally
equal the listings since November 1, 2014. Id.
co65ncluded that since November 1, 2014, Plaintiff had severe
impairments of ADHD and a history of failure to thrive, but
that these impairments - individually or in combination - did
not meet the requirements of a listed impairment. (Tr.
21-22). Moreover, the ALJ found that Plaintiff's
impairments did not functionally equal the listings. (Tr.
22). This was so because she found Plaintiff had marked
limitation in attending and completing tasks, but less than
marked limitation in acquiring and using information,
interacting and relating with others, moving about and
manipulating objects, and caring for self, and no limitation
in health and physical well-being. (Tr. 27-31). Therefore,
the ALJ found Plaintiff's disability ended as of November
1, 2014, and he had not become disabled again since that
reviewing the denial of Social Security benefits, the Court
“must affirm the Commissioner's conclusions absent
a determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact
unsupported by substantial evidence in the record.”
Walters v. Comm'r of Soc. Sec., 127 F.3d 525,
528 (6th Cir. 1997). “Substantial evidence is more than
a scintilla of evidence but less than a preponderance and is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v.
Sec'y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992). The Commissioner's findings
“as to any fact if supported by substantial evidence
shall be conclusive.” McClanahan v. Comm'r of
Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed
a preponderance of the evidence supports a claimant's
position, the court cannot overturn “so long as
substantial evidence also supports the conclusion reached by
the ALJ.” Jones v. Comm'r of Soc. Sec.,
336 F.3d 469, 477 (6th Cir. 2003).
for SSI is predicated on the existence of a disability. 42
U.S.C. § 1382(a).
is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 20 C.F.R. § 416.905(a); see also
42 U.S.C. § 1382c(a)(3)(A). For claimants under the age
of 18, the Commissioner follows a three-step evaluation
process-found at 20 C.F.R. § 416.924(a)-to determine if
a claimant is disabled:
1. Is claimant engaged in a substantial gainful activity? If
so, the claimant is not disabled regardless of their medical