United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Knepp II United States Magistrate Judge.
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.
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).
Background and Testimony
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.
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.
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).
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).
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).
2014, Plaintiff underwent surgical repair of his cleft lip.
See Tr. 672, 2554.
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.
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).
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.
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).
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).
underwent a surgical repair of his cleft palate in May 2015.
(Tr. 1954, 2554).
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.
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).
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).
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).
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).
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).
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
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.
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.
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).
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.
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.
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).
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
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.
November 2016, Plaintiff underwent a laminectomy for
de-tethering of his spinal cord. (Tr. 2559).
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.
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.
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).
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).
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 ...