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Tucker v. Commissioner of Social Security

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

June 10, 2019

CAPRI TUCKER, ON BEHALF OF PCW, JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          James R. Knepp II Judge

          REPORT AND RECOMMENDATION

          James R. Knepp II United States Magistrate Judge

         Introduction

         Capri 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 proceedings.

         Procedural background

          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).

         Factual Background

          Personal Background

         Born in 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).

         Educational Records

         In March 2014, providers from the Cleveland Municipal School District completed an IEP[1]progress 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).

         In 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).

         Plaintiff 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).

         An IEP 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).

         In 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).

         In 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).

         He lost 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).

         Another 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).

         Medical Records

         In 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.

         In October 2014, State agency providers[2] 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[3] again reviewed Plaintiff's records and reached the same conclusions. (Tr. 506-11).

         In 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).

         In 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. Id.

         Plaintiff 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. Id.

         In 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.

         In 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).

         In 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.

         In May 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).

         A July 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).

         Plaintiff 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 hyperactive”. Id.

         Hearing Testimony[4]

         Tucker 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.

         Tucker, 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).

         Tucker 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).

         Tucker 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).

         ALJ Decision

         In her 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.

         The ALJ 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 date. Id.

         Standard of Review

          In 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).

         Standard for Disability

         Eligibility for SSI is predicated on the existence of a disability. 42 U.S.C. § 1382(a).

         “Disability” 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 ...

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