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Pope v. Commissioner of Social Security

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

August 5, 2019

CHANDRA POPE, Natural Parent on behalf of R.T.S., [1] a minor, Plaintiff,



          Elizabeth A. Preston Deavers Chief United States Magistrate Judge

         Plaintiff, Chandra Pope (“Plaintiff”), on behalf of her minor child (“R.T.S.”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) finding his disability ceased on May 1, 2014 and he no longer qualified for 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. 8), (“SOE”), the Commissioner's Memorandum in Opposition (ECF No. 13), Plaintiff's Reply (ECF No. 14), 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.T.S., alleging that R.T.S. has been disabled since June 3, 2009. (R. at 160-62.) R.T.S. was found disabled due to speech and language disorder that caused an extreme limitation in the domain of Acquiring and Using Information as of June 3, 2009. (R. at 10-14.) The Commissioner conducted a continuing disability review on May 5, 2014. (R. at 72-79.) Plaintiff requested reconsideration and the decision was affirmed on June 20, 2015, by a State Agency Disability Hearing Officer. (R. at 83-94, 95-105.) Thereafter, Plaintiff filed a written Request for Hearing on September 4, 2015. (R. at 113.) Administrative Law Judge Paul Yerian (“ALJ”) held a hearing on June 12, 2017, at which Plaintiff and R.T.S., who was represented by counsel, appeared and testified. (R. at 41-65.) On July 19, 2017, the ALJ issued a decision finding that R.T.S. was not disabled within the meaning of the Social Security Act. (R. at 10-26.) On January 26, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-6.) Plaintiff then timely commenced the instant action.


         R.T.S. was eleven years old at the time of the administrative hearing. (R. at 40-41.) R.T.S.'s mother testified at the hearing that R.T.S.'s medications include Clonidine and Strattera. (R. at 44.) She testified that the family went to church every other Sunday and R.T.S. interacted with other kids at church. (R. at 55.) Plaintiff indicated that the Sunday school teachers would come get her out of church services if R.T.S. was acting up. (R. at 56.) Plaintiff testified that R.T.S. was passing his classes. (R. at 56.) He was in a small classroom setting with some additional help and resources. (Id.) Plaintiff testified that R.T.S. fought with his older sibling over videogames because his older brother would take over the game. (R. at 57.) He did not perform his chores, and needed constant reminding or a threat of punishment such as taking the game away, until he cleaned his bedroom. (Id.) He did not have his own friends but got along well with his sister and her friends. (R. at 58.) Plaintiff acknowledged that R.T.S. can ride a bicycle. (Id.) Plaintiff testified that R.T.S. was no longer receiving speech therapy at school. She testified that R.T.S. could use a tablet to watch videos. (R. at 59.) Plaintiff testified that he was combative at home. (R. at 60-61.) She testified that R.T.S. recently had been disciplined at school for behavior and that she had received three or four calls stating that he was cussing at the teachers. (R. at 63.)

         R.T.S. testified at the hearing that he had just finished the fourth grade.[2] (R. at 46.) He enjoyed playing video games. (R. at 46-47.) He played outside, and had some friends at school with whom he played football. He does not have friends in his neighborhood, but he plays with his sister's friends. (R. at 50.) He enjoyed sports. (R. at 49, 51.) He testified to some problems at school with bullying. (R. at 48.) He reported fighting with other students. (R. at 50, 52.) He indicated that he got mad at school and threw a chair. (R. at 53.) He testified that he “used to have bad dreams” since he was five years old but that he was sleeping okay. (R. at 53.)


         A. Nationwide Children's Hospital

         R.T.S. underwent a speech/language evaluation in June 2009, when he was 3 years old, which demonstrated significantly delayed language skills and delayed social language (pragmatic) skills. (R. at 374-77.) R.T.S. was determined disabled in 2009, due to his significant delay in language skills, resulting in an extreme limitation in the domain of acquiring and using information. (R. at 378-83.)

         R.T.S. returned to Nationwide Children's Hospital Behavioral Health Department due to developmental and speech delays in July 2012 when he was 6 years old. (R. at 499-512.) It was noted that R.T.S. sought shared enjoyment and attempted to have others involved in his play. R.T.S. presented with a significant speech delay and did not begin speaking single words until 4 years of age. At the time of this evaluation, R.T.S. spoke in three to four-word phrases. He did provide eye contact and used gestures when communicating with others. R.T.S. did not present with any repetitive behaviors or repetitive motor mannerisms. Based on direct observation and parent report, R.T.S. does not meet criteria for Autism Spectrum Disorder. (R. at 506.) R.T.S. was assessed with a learning disorder, nos; and mixed receptive-expressive language disorder; status: rule out. (Id.) It was recommended that R.T.S continue with the services that he is receiving through the board of developmental disability. His family was encouraged to have R.T.S. connected with private speech therapy by requesting a prescription through his pediatrician; and his family was encouraged to have R.T.S. connected with outpatient therapy to work through the trauma that he witnessed.[3] (R. at 507.)

         R.T.S. was referred back to Nationwide Children's Hospital Behavioral Health Department on May 19, 2014, noting he had been previously evaluated for autism and was still experiencing extreme poor social interactions, he was shy, and had inappropriate response, speech delay and developmental delay. (R. at 498.)

         B. Access Ohio/Marilynn J. Peters, M.D.

         R.T.S. underwent a diagnostic assessment on November 14, 2014, due to concerns autism, Post-traumatic stress disorder (“PTSD”)-related nightmares, and possibly Attention-deficit hyperactivity disorder (“ADHD”). (R. at 773-88.) The intake social worker noted that R.T.S. had a good relationship with his family. (R. at 774.) He got along “okay” with everyone, and his peer relationships and social functioning were noted to be “good.” (R. at 775, 777.) It was also reported that R.T.S. saw his mom and biological father fight a lot as a young child, and he witnessed his father shoot his mother. R.T.S. reported he experienced nightmares related to his father getting released from prison and the shooting incident being “stuck in my head, ” which effected his sleep. His mother reported R.T.S. lost focus, was easily distracted, and had difficulty completing tasks. (R. at 784.) On mental status examination, R.T.S. was well groomed, with average demeanor and activity. He exhibited no delusion and was not aggressive; thought process was concreate, mood euthymic, with cooperative behavior. He was impaired in his attention/concentration and his intelligence was estimated to be borderline with fair to poor insight and judgment. (R. at 787.) The intake social worker assessed R.T.S. with Autism spectrum disorder, with accompanying intellectual impairment, per history, PTSD and ADHD, predominately inattentive presentation. (R. at 784.) R.T.S. was referred for community psychiatric supportive treatment (CPST), psychotherapy, medication and psychiatric services. (R. at 785.)

         R.T.S. underwent an initial psychiatric evaluation with another psychiatrist (not Dr. Peters) that same day who prescribed him Adderall. (R. at 748-51.)

         On May 5, 2016, Marilynn J. Peters, M.D., completed a functional assessment in which she found that R.T.S. had marked limitations in the domains of acquiring and using information as well as attending and completing tasks and interacting appropriately with others. (R. at 581-82.) Dr. Peters based her assessment on R.T.S.'s diagnosis of receptive-expressive language disorder, his learning disorder, and ADHD (Impulsive). Dr. Peters noted that R.T.S. was not diagnosed on the autism spectrum. (R. at 581.) Dr. Peters could not comment on the domains of moving about and manipulating objects; caring for self; and health and physical well-being. (R. at 582-83.)

         On June 2, 2016, Dr. Peters saw R.T.S., who reported that the end of the school year was great and that he passed this school year with all good grades. Dr. Peters noted that R.T.S. was well-groomed, cooperative, with logical thought processes, and positive thought content. He was euthymic with full affect, had no abnormalities with perception and no gross defect with insight or judgment, and no side effects from medication. She continued R.T.S. on Adderall and Clonidine for sleeping issues. (R. at 578-79.)

         In August 2016, Dr. Peters noted that R.T.S. was attending a new school after having had an enjoyable summer vacation in Florida. R.T.S. had been taking only the Clonidine, having run out of his Adderall. Dr. Peters noted that R.T.S. was very pleasant, more spontaneous, and that he reported he had not gotten hyper at school. (R. at 766-67.)

         In December 2016, Dr. Peters noted that R.T.S. reported he was doing “fine, real good” in school, including all A's. His teachers were attentive to his complaints of a single bully. Dr. Peters noted that R.T.S. was calm and organized, and no abnormalities were noted, and R.T.S. denied negative side effects from medication. (R. at 758-59.)

         In May 2017, R.T.S. reported he “said the F word on accident” in school, but he was better functioning in school, and no problems at home. (R. at 752.) While R.T.S. reported taking Strattera, his stepfather noted issues of non-compliance. On mental status examination, Dr. Peters found R.T.S. was well groomed, calm, cooperative, with logical thought processes, and he was “motivated.” He was euthymic with full affect, had no abnormalities with perception and no gross defect with insight or judgment, and no side effects from medication. (R. at 752-53.)

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

         On April 21, 2014, Dr. Kramer evaluated R.T.S. for disability purposes. (R. at 483-89.) At the time of this evaluation, R.T.S. was 8 years 3 months old. Dr. Kramer noted R.T.S. presented as healthy and well groomed, and was noted to be a “compliant and happy youngster throughout both the interview and testing portions of the examination.” Dr. Kramer noted “[h]e responded appropriately when asked questions . . . [and] sat calmly next to his mother.” (R. at 483.) Plaintiff reported to Dr. Kramer that R.T.S. worked with a speech therapist and an occupational therapist at school and that academic skills had been harder for him to learn. Plaintiff reported that R.T.S. was “well behaved at school” with “no history of school suspensions.” He received instructions in both a regular first grade classroom and in a special education classroom for a portion of the day. R.T.S. was “pleasant, compliant, and cooperative” and Plaintiff said behavior problems at home were minimal. (R. at 484.)

         Dr. Kramer administered the WISC-IV (Wechsler Intelligence Scale for Children), which resulted in verbal comprehension index of 69; perceptual reasoning of 75; working memory of 77; and processing speed index of 80 with a Full-Scale IQ score of 70. (R. at 485.) Dr. Kramer concluded that R.T.S. cognitive skills appear to be within a borderline range. (R. at 486.) Dr. Kramer wrote that R.T.S. worked hard but was a “little slow to process information and that skills are harder for him.” (R. at 484.) Dr. Kramer reported that R.T.S. was responsive to questions and his concentration, pace, and persistence were adequate, or better, for all interactions. (R. at 484-85.) His speech was mostly intelligible, and his language was relevant and coherent, although a little developmentally immature. R.T.S. said he enjoyed playing with his toys and siblings, being outside, and playing video games. He liked going to school and had a few friends. R.T.S. was able to pick out his clothes and dress in the morning, do chores like taking out the trash and cleaning his room with reminders, and get his own snacks. (R. at 485.)

         As to R.T.S.'s functional assessment, Dr. Kramer concluded that in the area of acquiring and using information, R.T.S. “appeared alert, but slow to process answers and well behind expectations in his ability to problem-solve.” In Interacting and Relating with Others, his skills were noted to be “a little immature, ” but no serious social problems were noted. His abilities and limitations in Self-Care were mostly normal, with only some reminders and occasional assistance needed. R.T.S.'s abilities and limitations in Attending to and Completing Tasks suggests some limitations in ability to concentrate, but he “seems able to focus and complete tasks he enjoys and did a good job with attention and task persistence during th[e] examination.” (R. at 486-87.)

         D. State agency review

          Twice in 2014 R.T.S.'s childhood disability claim and medical record were reviewed, analyzed, and his limitations evaluated in each of the six functional domains. (R. at 491-96, 519-23.) In May, John L. Marmol, M.D., and Tonnie Hoyle, Ph.D. determined that R.T.S.'s impairments did not meet, medically equal, or functionally equal any listed childhood impairment. (R. at 491.) They concluded that the educational and medical record demonstrated “less than marked” limitation in the domains of acquiring and using information, attending and completing tasks, and interacting and relating with others; and “no” limitation in the domains of moving ...

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