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Anderson v. Commissioner of Social Security

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

August 6, 2019

MARIAH ANDERSON ON BEHALF OF M.C.B., JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          James R. Knepp II United States Magistrate Judge.

         Introduction

         Plaintiff Mariah Anderson (“Anderson”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) on behalf of M.C.B. 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). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 12). For the reasons contained herein, the undersigned reverses the decision of the Commissioner and remands for further proceedings.

         Procedural background

         Anderson filed an application for SSI on behalf of Plaintiff in July 2014, alleging a disability onset date of March 21, 2014. (Tr. 110). The claim was denied initially and upon reconsideration. (Tr. 81-83, 87-89). Anderson then requested a hearing before an administrative law judge (“ALJ”). (Tr. 90-92). On February 16, 2017, Anderson (represented by an attorney) appeared and testified at a hearing before the ALJ. (Tr 41-61). On March 10, 2017, the ALJ found Plaintiff not disabled in a written decision. (Tr. 15-29). The Appeals Council denied Anderson's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-3); 20 C.F.R. §§ 416.1455, 416.1481. Anderson filed the instant action on behalf of Plaintiff on March 22, 2018. (Doc. 1).

         Factual Background[1]

         Personal Background and Testimony

         Plaintiff, born in March 2014, was a newborn on his alleged onset date, and almost three years old at the time of the hearing. See Tr. 110.

         Anderson, Plaintiff's mother, testified her son was born with a cleft lip and cleft palate. (Tr. 45-46). In the weeks following his birth, Plaintiff had breathing difficulties, fluid in his ears, and pneumonia; he also had difficulty eating. (Tr. 46). Anderson further testified Plaintiff had a “half vertebrae” and a missing rib; he had surgery to repair a tethered spinal cord. Id. Anderson noted Plaintiff's missing rib caused back pain and he leaned to one side when he walked. (Tr. 47). Plaintiff's walking improved following surgery, but he was “still falling”. (Tr. 46-47). He attended physical and occupational therapy to help improve his gait. (Tr. 47).

         Plaintiff had difficulty speaking. He was “talking, but [] not using sentences, or [] not even putting more than three words together.” (Tr. 47-48). Plaintiff saw a speech therapist who found that, at 30 months old, his language skill level was around that of an 18-month-old. (Tr. 48). Anderson noted Plaintiff's speech improved “slightly” with speech therapy, but he still drooled when he spoke and was unable to correctly pronounce words because his cleft palate prevented his lips from fully closing. (Tr. 58-59). He was unable to clearly express himself and threw tantrums in frustration. (Tr. 48-49). When angry, Plaintiff banged his head, even outside on the concrete. (Tr. 49) (“he'll just fall and bang his head”). Anderson described Plaintiff's tantrums as “extreme” and noted he was “just a very angry two-year-old.”. (Tr. 53).

         Plaintiff also had difficulty interacting with other children. (Tr. 49). He fought with his siblings “all the time” and “[did not] want to play with them”. Id. Anderson further noted Plaintiff was violent when interacting with other children at daycare. (Tr. 57). She had to pick Plaintiff up early “once or twice every two weeks” due to such behavioral issues. (Tr. 58). Relevant Medical Evidence Following his birth, Plaintiff was admitted to the neonatal intensive care unit. (Tr. 425). Providers diagnosed a cleft hard palate (with a unilateral cleft lip); hemivertebra; and a ventricular septal defect. (Tr. 333-34). He was discharged at approximately three weeks old. (Tr. 336).

         At a physical therapy evaluation in July 2014, Laura Redman, P.T., observed Plaintiff had “clear evidence of vertebral body abnormality”. (Tr. 1567). Ms. Redman observed decreased neck rotation and lateral flexion with “severe” lateral neck creasing, redness, and taut skin. (Tr. 1568). She found Plaintiff “moderately hypotonic” in his neck, trunk, and upper extremities. Id. The same day, occupational therapist Tina Davis, O.T.R, observed Plaintiff exhibited poor handling/behavior; abnormal tone and weakness; balance/postural deficits; range of motion deficits/asymmetries; gross and fine motor deficits; and a risk of feeding deficits. (Tr. 1577).

         In July 2014, Plaintiff underwent surgical repair of his cleft lip. See Tr. 672, 2554.

         At an August 2014 physical therapy appointment, Ms. Redman assessed balance/postural deficits, range of motion deficits, and gross motor deficits. (Tr. 1766). She initiated a physical therapy program to address the asymmetries and motor deficits which impacted Plaintiff's development. Id.

         In September 2014, Ms. Redman found Plaintiff had continued abnormal head positioning with lateral neck restriction. (Tr. 1810). She found Plaintiff's deficits warranted an in-home physical therapy program. Id. Later that month, Ms. Davis observed Plaintiff did not close his lips on a spoon when feeding and demonstrated “significant tongue thrusting”, losing most of his food. (Tr. 1822).

         An October 2014 MRI of Plaintiff's spine revealed hemivertebra at T4 associated with scoliosis with no evidence of canal narrowing or cord abnormality. (Tr. 1550). It also showed a lipoma of the filum with attachment to the posterior aspect of the canal in the scrum, a finding that “can be seen in cord tethering”. Id.

         At an appointment later in October 2014, Lisa M. Torres, M.D., observed Plaintiff had scoliosis (to the right) and a developmental delay in sitting up. (Tr. 1849). Dr. Torres diagnosed developmental coordination disorder. (Tr. 1850).

         Plaintiff had a nine-month check-up in January 2015 with Emmanuel Boakye, M.D. (Tr. 1876-83). Dr. Boakye concluded Plaintiff was a “well” nine-month-old with delayed development, status post cleft lip repair, and a hemivertebrae at T4. (Tr. 1877). Plaintiff's parents completed an Ages and Stages Questionnaire, which Dr. Boakye reviewed and concluded the results fell within the “clinical concern” range, indicating an elevated risk of developmental delay. (Tr. 1883).

         Plaintiff underwent a surgical repair of his cleft palate in May 2015. (Tr. 1954, 2554).

         Plaintiff had a fourteen-month check-up in June 2015 with Dr. Boakye. (Tr. 2125-27). Dr. Boakye observed Plaintiff was unable to speak one to two words, stand on his own, or follow simple directions. (Tr. 2127). He concluded Plaintiff was a “well” fourteen-month-old with weight loss due to a recent cleft palate surgery. Id. Dr. Boakye observed a hemivertebrae at T4 and a tethered cord (per MRI), as well as an abnormal gait with incurved feet. Id.

         Plaintiff saw pediatrician Irene Dietz, M.D., in February 2016. (Tr. 2227-28). Dr. Dietz found Plaintiff was at “extremely high risk . . . for developmental expressive language delay.” (Tr. 2227). On examination, she observed Plaintiff had a “clear language delay” and referred him for speech and language services. (Tr. 2228).

         In May 2016, Plaintiff saw speech and language pathologist Sue Ann Phillippbar, CCC-SLP, who found “significant speech and language delays” and recommended a speech and language assessment and intervention. (Tr. 2265).

         That same month, Dr. Dietz observed Plaintiff was not stating words or babbling regularly. (Tr. 2242). She further noted Plaintiff's fine motor skills appeared to be age appropriate. Id. She recommended occupational therapy, noting gross motor delay. (Tr. 2244).

         Plaintiff attended a neurosurgery follow-up in July 2016 with Robert Geertman, M.D. (Tr. 2356-59). Plaintiff's parents noted he ambulated without significant gait dysfunction, leg pain, or weakness. (Tr. 2356). Dr. Geertman diagnosed a tethered cord and hemivertebra; he recommended surgical treatment of the tethered cord. (Tr. 2359).

         In September 2016, Dr. Dietz observed Plaintiff was speaking less than ten words. (Tr. 2408). She further noted that, at thirty months old, Plaintiff's language functioning was at the eighteen-month-old level; however, he walked without any gait abnormality, and self-fed from a sippy cup. Id. Plaintiff's results on the Modified Checklist for Autism in Toddlers (“M-CHAT”) fell in the “clinical concern” range. (Tr. 2409).

         At a pre-surgical sedation evaluation that same month, Dennis Super, M.D., observed Plaintiff had normal strength, tone, and gait. (Tr. 2420). He further noted Plaintiff's development was normal except for a speech delay. Id. (“one-word sentences, hard to understand”).

         Later that month, Plaintiff attended a pediatric speech and language screening with speech and language pathologist Deborah Lahey, CCC-SLP. (Tr. 2442-46). Plaintiff's mother reported he had delayed speech and language (Tr. 2443), and she could understand 80% of his speech (Tr. 2445). Ms. Lahey found Plaintiff had normal face symmetry but a moderate to severe drool. Id. Ms. Lahey estimated that Plaintiff understood language at a 21- to 24-month level and expressed language at a 15- to 18-month level. (Tr. 2446). His phonetic repertoire was limited for his age and he could only express ten to fifteen words. Id. Ms. Lahey found Plaintiff demonstrated a severe phonological disorder, severe oral-motor dysfunction, mild receptive language disorder, and severe expressive language disorder. Id.

         Plaintiff saw Ms. Davis in October 2016. (Tr. 2473-76). She observed Plaintiff was interactive with his environment, had a small stature, poor tolerance of handling (transitions), decreased play skills, poor self-regulation, and an expressive and receptive language disorder; he was distractible with decreased attention. (Tr. 2474). Ms. Davis found Plaintiff's lips sealed “occasionally”, and he generally demonstrated a “mouth open posture” with significant drooling. (Tr. 2475). Though Plaintiff was 31 months old, Ms. Davis assessed his overall functioning at the 26-month level. Id.

         The same day, Plaintiff saw physical therapist Jessica Smith, P.T., for an evaluation. (Tr. 2480-84). Ms. Smith found Plaintiff had decreased foot positioning, congenital scoliosis due to a hemivertebra at T4, and decreased coordination. (Tr. 2481). Plaintiff also had decreased trunk stability when standing on dynamic surfaces, a slight gait lean to the right, and some gait compensations due to scoliosis. (Tr. 2482). Ms. Smith observed Plaintiff presented with poor behavior, gross motor delay, range of motion deficits, asymmetries, strength and balance deficits, postural deficits, poor quality of movement, gait abnormality, sensory dysfunction, and poor endurance. (Tr. 2483). Later that same month, Ms. Smith noted a decreased overall gait quality. (Tr. 2501).

         Four days after his second meeting with Ms. Smith, early intervention specialist Katherine Tierney of “Help Me Grow” completed an evaluation. (Tr. 1093-1103). She noted Plaintiff enjoyed other children and played with his peers - “laughing and sometimes sharing.” (Tr. 1095). Plaintiff did not often use words to interact with peers. Id. Plaintiff recognized unfamiliar people and managed separation well. (Tr. 1096). He used approximately seven to ten words, “mostly to request or get his needs met.” (Tr. 1097). Plaintiff could walk up stairs on his own, but needed support going down. Id. Ms. Tierney found Plaintiff to have adaptive, cognitive, communicative, and physical delays; he had no social/emotional delay. (Tr. 1103). She determined Plaintiff required early intervention services. Id.

         Plaintiff also met with Ms. Lahey three times in October 2016. (Tr. 2458-59, 2492-93, 2505-06). She found Plaintiff “unintelligible”. (Tr. 2459). Ms. Lahey noted Plaintiff opened and closed his mouth successfully twice during one session (Tr. 2493), but failed to close his lips independently at another (Tr. 2506). Plaintiff demonstrated “refusal” during the session with negative behaviors such as whining, dropping to the floor, and arching his back. Id.

         Plaintiff had two speech therapy sessions with Ms. Lahey in November 2016. (Tr. 2510-11, 2526-27). Plaintiff had continued difficulty closing his lips. (Tr. 2511). He also had difficulty with self-regulation and refusals (Tr. 2511), and Ms. Lahey found these behavior overlays were “in the way [of] effective treatment.” (Tr. 2527).

         Plaintiff attended a physical therapy appointment with Ms. Smith in November 2016. (Tr. 2531-35). Plaintiff's presentation mirrored that from his visit the prior month. (Tr. 2535). Ms. Smith noted Plaintiff resisted directed activities and required encouragement throughout the session. Id. He demonstrated overall weakness of the left lower extremity and resisted using his right upper extremity throughout the session. Id.

         Also in November 2016, Plaintiff attended an intake assessment at the MetroHealth System Autism Clinic with Beth Bacon, LISW-S. (Tr. 2716-25). Plaintiff's mother was concerned he might be autistic due to his behavior at doctor's appointments and speech delay. (Tr. 2716). Ms. Bacon diagnosed disruptive behavior disorder and rule out autism spectrum disorder. (Tr. 2723).

         In late November 2016, Plaintiff underwent a laminectomy for de-tethering of his spinal cord. (Tr. 2559).

         Plaintiff saw Ms. Lahey again in December 2016. (Tr. 2767-68). Plaintiff continued to work on his lip closure, both in session with Ms. Lahey and at home with his mother. (Tr. 2768).

         Later in December 2016, Plaintiff attended an occupational therapy session with Ms. Davis. (Tr. 2772-76). She noted Plaintiff lacked fine motor skills. (Tr. 2774). He could occasionally seal his lips completely, but generally demonstrated a “mouth open” posture with significant drooling. Id. Ms. Davis assessed abnormal upper extremity skills, abnormal active and passive range of motion, delayed fine motor skills, abnormal oral motor/feeding skills, decreased language skills, and decreased play skills. (Tr. 2775). Plaintiff was 32 months old, but functioning at T26-month level. Id.

         Plaintiff attended a physical therapy appointment with Ms. Smith in January 2017. (Tr. 2782-87). This was Plaintiff's first physical therapy session since his cord de-tethering and Anderson reported that Plaintiff fell less frequently. (Tr. 2783). On examination, Plaintiff's upper extremities could not be fully assessed and his lower extremities were within normal limits. (Tr. 2784). Plaintiff had decreased trunk stability when standing on dynamic surfaces and his gait leaned slightly to the right with some compensations due to scoliosis. Id. He had decreased coordination while running. (Tr. 2785). Ms. Smith noted Plaintiff continued to exhibit decreased trunk control, hip strength, and overall balance. (Tr. 2786).

         Plaintiff saw Ms. Lahey later the same day. (Tr. 2790-91). She noted Plaintiff's refusals were strong during this session with lots of “no's” when she attempted to change tasks or manipulate his lips. (Tr. 2791). Plaintiff used two-word utterances beyond his goal level, but his intelligibility was compromised. Id. He did not advance his abilities to perform certain sounds because he did not demonstrate lip closure or lip rounding. Id. At a therapy session later that month, Plaintiff demonstrated lip closure for the first time. (Tr. 2806).

         In late January 2017, Plaintiff attended a physical therapy appointment with Ms. Smith. (Tr. 2810-15). Ms. Smith observed Plaintiff had decreased tolerance to activities during the session; he was irritable and resistant for the first fifteen minutes with multiple brief tantrums throughout. (Tr. 2814). Ms. Smith performed a Bayley Test for Infant Motor Performance and found Plaintiff (at 30 months old) had a 20-month age ...


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