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Miller v. Commissioner of Social Security

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

June 27, 2019

JAMIE MILLER o/b/o C.T. a minor, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Jamie Miller, acting on behalf of C.T., a minor, filed this action seeking review of a decision of the Commissioner of Social Security denying C.T.'s application for supplemental security income. For the reasons that follow, Plaintiff's Statement of Errors (Doc. 16) is OVERRULED and judgment is entered in favor of Defendant.

         I. BACKGROUND

         Plaintiff is C.T.'s mother, who filed an application for supplemental security income on his behalf on June 17, 2014, alleging he became disabled on March 13, 2014. (Doc. 11, Tr. 239). After initial administrative denials of the claim, an Administrative Law Judge (“ALJ”) held a hearing on April 5, 2017. (Tr. 38-57). The ALJ issued a decision denying benefits on June 13, 2017. (Tr. 11-32).

         Plaintiff filed this action on May 24, 2018 (Doc. 1), and the Commissioner filed the administrative record on July 26, 2018 (Doc. 11). Plaintiff filed a Statement of Specific Errors (Doc. 16), the Commissioner responded (Doc. 17), and no reply was filed.

         A. Hearing Testimony

         C.T. was born in 2009 (Tr. 14), and was 7-years-old at the time of the administrative hearing. (Tr. 41). The ALJ summarized the relevant hearing testimony:

[T]he claimant's mother testified that claimant gets good grades but his behavior is a problem and he has been expelled more than ten times. She further testified that the claimant has household chores of cleaning the washroom, but he does not clean it without fighting. The claimant's mother also testified that the claimant will hit other children and he wets the bed at night and will wet his pants during the day. She additionally testified that the claimant would get up out of his seat during class and leave the classroom. She stated that she would get calls from the school every day regarding the claimant's behavior. Finally, the claimant's mother testified that the claimant is working with a speech therapist however, she cannot always understand [her child's] speech.

(Tr. 17).

         B. Educational Evidence

         The ALJ also usefully summarized C.T.'s educational records:

On March 14, 2014, the claimant's mother met with his school to establish an Individualized Education Plan (IEP). The claimant's IEP provided for speech therapy services, a specialized learning program with an intervention specialist/teacher, and noted that the claimant may benefit from strategies such as forced choices to help him feel in control, positive reinforcement, including praise, redirection to task, structured environment with clear rules and expectations. The claimant's follow up IEP meeting in March 2016, noted that the claimant still needs prompting and redirection in group settings and often times moves out of his seat. The March 2016, review also noted that the claimant will access a resource classroom focusing on behavior, reading, writing, and math, and be in a general education classroom for other areas. The claimant will also continue to receive specialized instruction in a speech-language therapy room.
The claimant had an Evaluation Team Report (ETR) re-evaluation, which noted that the claimant needed additional fine motor practice, as well as guided practice responding appropriately to his same-age peers and following directions from his teacher. The claimant should be given repeated directions from his teacher, additional positive reinforcement when performing correct behavior, reminders to stay in his seat, and preferential grouping to limit his distractions. The claimant was observed in the classroom on February 9, 2015, and was noted to be moving while in his seat and was able to participate in classroom activities. He was able to move to his assigned group and complete an activity sorting pictures. While he moved out of his seat several times during the observation he was easily redirected. Testing showed that letter and word recognition, reading comprehension, and written expression were all in the average range, while math concepts and applications were noted to be in the below average range.
On October 4, 2016, the claimant was suspended from school for two days as a result of inappropriate language and exposure of his private parts. The claimant was suspended for two days in December 2016, for hitting another student, cursing at a student, telling his teacher no, and trying to leave the recovery room.
The claimant's third quarter interim report from . . . school noted that he was meeting the standards for mathematics, however he needed improvement in reading, language arts, and science. The claimant had an annual review of his IEP on March 2, 2017, and it was noted that he was in a general education classroom and receiving speech services as well as services in the resource room with the intervention specialist in the areas of math, reading, behavior, and writing. His teacher noted that the claimant was in a general education classroom for the majority of the day, with some difficulty, as the claimant had difficulty sitting in a whole group setting and could only stay on task for approximately ten to fifteen minutes; which is about half the time of his same age peers. The review further noted that the claimant would steal food from other students and is often aggressive or inappropriate during lunch. The review also noted that the claimant's social interactions were a concern and the claimant has difficulty respecting the personal space of others. The claimant was slightly behind his same age peers in reading and excels in math. The review noted that the claimant would be given accommodations such as: small groups, preferential seating, extended time for assignments, positive reinforcement for good behavior, shorter assignments, sensory breaks, and the use of a compression vest.
In February 2017, the claimant was suspended on multiple occasions for hitting other students, throwing objects, and for inappropriately touching other students. The claimant was suspended on April 13, 2017, for one day due to making threats with a makeshift gun.
[K.K.], early childhood intervention specialist, completed a teacher questionnaire on February 24, 2015, noting that the claimant has a pre-school IEP under the category of developmental delay. [She] opined that under the category of acquiring and using information the claimant has no more than slight problems. She noted that the claimant was impulsive and often speaks out of turn and leaves his seat.
She further noted that he misses instructions due to his distractability and needs reminders to stay quiet in class until he is called upon. In the area of attending and completing tasks, [K.K.] noted obvious problems paying attention when spoken to, refocusing to task when necessary, waiting to take turns, and working without distracting himself or others. The remaining areas were marked as either a slight problem or no problem. [K.K.] noted that the claimant was disruptive to the class with talking out of turn and making noises, and he needed many reminders. Under the area of interacting and relating with others, [K.K.] opined that claimant had an obvious problem with following the rules. All other areas under this section were noted to be either no problem or a slight problem. [K.K.] noted under this section that the claimant needs adult facilitation for some conflict resolution with peers. Positive reinforcement is used in the classroom and have significantly reduced his frustrations. No. problems were indicated regarding the claimant's health and physical well-being and, other than a slight problem managing his pace of physical activities or tasks, no problems were noted moving about or manipulating objects. Under the area of caring for himself, [K.K.] noted an obvious problem being patient when necessary, however, the remaining areas were noting to have either a slight problem or no problems. She noted that the claimant is impulsive and needed reminders for asking permission before doing something and for his safety. . . .
[S.S.], the claimant's kindergarten teacher, completed a school activities questionnaire on December 14, 2015, and noted that the claimant is on an IEP and he has a limited attention span and concentration in class, and he struggles to follow instructions. [S.S.] noted that he is highly distracted but can work independently of teacher supervision sometimes. Further, [S.S.] opined that the claimant can usually adapt to a change in his routine but will shut down when criticized. He is progressing with learning the skills involved in reading, writing, and mathematics although is inattentiveness impedes his progress compared to his peers. [S.S.] also opined that the claimant was very distracted and impulsive, always touching, struggled with space and reading other people's reactions to his actions. The claimant had age-appropriate self-care, excellent attendance, and was able to keep up with his same age peers in extracurricular activities . . .

(Tr. 18-24 (internal citations omitted)).

         C. Relevant Medical Evidence

         Again, the ALJ's summary is helpful here:

The claimant received behavioral health counseling at Ohio GuideStone and on August 21, 2014, the claimant and his mother met with [H.C.], the claimant's caseworker. During this appointment, [H.C.] helped the claimant develop an individualized service plan (ISP) and she noted that the claimant needed extra time to understand goals, methods and problems. [L.L.], LISWS completed a medical necessity determination on August 24, 2014, and stated that the claimant had a moderate impairment of functioning and a moderate degree of symptoms. She further noted that treatment was medically necessary to help his functioning in the areas of family relations and his mood, and would consist of behavioral health counseling. [She] . . . stated that without the treatment the claimant would suffer prolonged or new symptoms or impairments of functioning and that he had a moderate level of symptoms that severely ...

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