United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
M. PARKER MAGISTRATE JUDGE
Gary Spikes (“Spikes”) seeks judicial review of
the final decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
supplemental social security income (“SSI”) on
behalf of his minor child, D.S., under Title XVI of the
Social Security Act. This matter is before me pursuant to 42
U.S.C. § 405(g) and the parties consented to my
jurisdiction under 28 U.S.C. § 636(c) and Fed.R.Civ.P.
73. Because substantial evidence supported the ALJ's
decision and because Spikes has not identified any error of
law in the ALJ's evaluation of his claim, the final
decision of the Commissioner must be AFFIRMED.
applied for children's disability benefits on behalf of
his minor child, D.S., on June 23, 2014. (Tr.
163). The claim was denied initially and on
reconsideration. (Tr. 182-184, 190-192). Following a hearing
on January 26, 2017, Administrative Law Judge
(“ALJ”) Scott R. Canfield denied the claim in a
January 3, 2018 decision. (Tr. 12-28). The Appeals Council
denied further review, rendering the ALJ's decision the
final decision of the Commissioner. (Tr. 1-4).
Relevant Medical and Educational Evidence
was born on September 6, 2005. (Tr. 18). He was considered a
“school-age child during the relevant time period; he
was eight years old when the application for disability was
filed and eleven years old at the administrative hearing.
(Tr. 116, 164). When D.S.'s mother was pregnant with him,
she was reportedly using cigarettes, alcohol and PCP daily.
(Tr. 275). Until 2013, D.S. was in the custody of a great
aunt. (Tr. 275). Since then, he has resided with his father,
Gary Spikes. (Tr. 135). At first, Spikes struggled with
maintaining housing, and he and D.S. experienced homelessness
for a short while. (Tr. 429). Specialized Alternatives for
Families and Youth (“SAFY”) assisted Spikes with
attaining stable housing. (Tr. 418, 539). In February 2013,
D.S. received WISC-IV testing and achieved a full-scale IQ
score of 93. His cognitive abilities were in the average
range. (Tr. 20, 262).
2011, D.S. was diagnosed with attention-deficit/hyper
disorder (“ADHD”), rule out disruptive behavior
disorders, and disorder of infancy. (Tr. 371, 428).
Throughout the alleged period of disability, D.S.'s
treating physicians at SAFY, Drs. Spinner and Kemp,
prescribed ADHD medications including Vyvanse, Intuniv, and
Focalin. (Tr. 371, 428). He was also prescribed Seroquel, a
mood stabilizer. (Tr. 633).
was initially skeptical whether his son needed to take
medications every day. However, after receiving repeated
phone calls from the school about D.S.'s behavior, he
realized the medications were necessary. (Tr. 137-138).
began mental health treatment with SAFY in 2011. (Tr.
433-434) On January 27, 2014, Spikes reported that D.S. was
making progress after going back on medication. D.S. reported
having bad dreams. (Tr. 639). In July 2014, after moving with
his father, D.S. was having problems with stealing and not
being honest about not doing his homework. (Tr. 428-429). He
had developed head tics and was taking medications for them.
(Tr. 429, 625). He was assigned a global assessment of
functioning (“GAF”) score of 61. In October 2014,
D.S. was cordial and pleasant. Both he and Spikes reported
that things were a little better at home and school. D.S. was
less fidgety and more focused. However, he still struggled
with some adjustment to his new school and paying attention.
November 5, 2014, Michael Faust, Ph.D., performed a
consultative examination. (Tr. 360-365). D.S. had a normal
appearance but fidgeted in his chair and showed signs of
hyperactivity. He was fairly articulate for his age,
exhibited normal rate of responding, and did not display any
signs of anxiety. He was distracted and required assistance
to stay on task. (Tr. 362). D.S. did not display any signs of
depression or delusions. He was alert for the examination,
completed four digits forward and two backwards, could
perform abstract reasoning and his insight and judgment were
appropriate for his age. (Tr. 363). Spikes had not given D.S.
his medication before the examination so that Dr. Faust could
see his behavior without medication. (Tr. 362).
area of acquiring and using information, Dr. Faust stated,
that D.S. Was
likely to have difficulty learning and retaining new
information in a group situation due to his ADHD symptoms (he
is distracted by his surroundings.) He will require more
redirection to sustain focus to the task and given small
segments of information to be able to cognitively process and
learn didactic information due to ADHD symptoms.
found that D.S. had difficulty in the areas of attending and
completing tasks and interacting with others. (Tr. 365). In
the area of interacting with others, Dr. Faust found that
D.S. was likely to “interrupt peers and be disruptive
in a group situation as he is impulsive and
hyperactive.” (Tr. 365). Dr. Faust diagnosed attention
deficit/hyperactive disorder. He did not diagnose any other
behavior disorder because Spikes said that D.S. was not
defiant or oppositional and his acting out behavior was seen
as impulsive. (Tr. 364).
agency reviewing physician, Mark Garner, Ph.D., reviewed
D.S.'s records on December 3, 2014 and found that he had
less than marked limitations in the domains of attending and
completing tasks and interacting and relating with others. He
found that D.S. had no limitations in the domains of
acquiring and using information, moving about and
manipulations of objects, caring for self and health and
physical well-being. (Tr. 168). Jeffrey Swain, Psy.D.,
reviewed D.S.'s records on April 13, 2015 and agreed with
the opinions expressed by Dr. Garner. (Tr. 177-181).
began seeing Janet Kemp, M.D., a psychiatrist, in May 2014.
(Tr. 636-637). D.S. complained of head twitches. D.S.'s
behavior was fair but he still got into fights with his
peers. He still had impulsive behavior but it was manageable.
Spikes reported that D.S.'s mood and sleep were good and
his appetite was excessive. Mental status examination showed
that D.S. was casual and very forthcoming. He had good
insight into his medications and symptoms, but he was fidgety
and easily distracted. He had no suicidal or homicidal
ideation and no psychosis. Dr. Kemp diagnosed ADHD and
prescribed Vyvanse and Intuniv. (Tr. 636).
Kemp saw D.S. on July 24, 2014. She noted that Spikes had
taken D.S. off his medications because of the ongoing tics
and there was no worsening of behavior. Mental status
examination showed the same findings as at the previous
examination. Dr. Kemp noted that D.S. was very polite,
engaging and very bright. (Tr. 634).
D.S. met with Dr. Kemp on April 21, 2015, Spikes reported
that D.S. was doing fairly well at home but his teachers had
been calling every few days stating that D.S. was not
focusing, easily distracted, could not stay on task and had
deteriorating impulsivity. Spikes had not given Risperdal
except rarely when he had rebound ADHD afternoons. D.S. was
sleeping well and had no mood issues. (Tr. 617).
March 2016, D.S. told his therapist that he missed his father
after he had started a new job. (Tr. 439). On April 21, 2016,
D.S. and Spikes shared that things had not been going well
when his father was working. D.S. had run out of medication
and was acting out at school. Spikes had quit his job to be
with his son. (Tr. 437).
attends East Cleveland City Schools. In March 2013, he was
evaluated for a “504 Plan” to assess his
educational needs. (Tr. 257, 259). Both D.S.'s teacher
and guardian opined that he was working below grade
level in math. D.S.'s teacher rated D.S.'s total
problems, aggressive behavior syndrome, adaptive functioning,
conduct problems and externalizing in the clinical range. His
scores on the attention deficit/hyperactivity problems and
oppositional defiant problems were in the borderline clinical
range. (Tr. 261). Both D.S.'s teacher and guardian
reported very elevated or elevated concerns in the areas of
inattention, defiance/aggression, conduct disorder, and peer
relations. (Tr. 273). The team summary stated that D.S.'s
teacher was providing math intervention, but D.S. was not
making progress with the intervention. (Tr. 274). After the
504 Plan assessment, D.S.'s schooling was accommodated
with extra time to complete his math work, behavioral
intervention, and techniques to help quell the symptoms that
were interfering with his education. (Tr. 277-278).
fourth grade teacher, Marcia Wallace, completed a teacher
questionnaire on March 15, 2015. Ms. Wallace rated most of
D.S.'s interactions and behavior, including his capacity
for making and keeping friends, expressing anger
appropriately, respecting/obeying adults in authority,
seeking attention appropriately, using adequate vocabulary
and grammar to express thoughts, and playing cooperatively as
“a serious problem.” The evaluation also states
that D.S. had a serious problem maintaining relevant
appropriate topics for conversation, following rules, and
relating experiences. (Tr. 297). Ms. Wallace described D.S.
as suffering from “anxiety and depression” and as
having flash back episodes that made him emotional. Because
of his behavioral issues, Ms. Wallace was struggling with
teaching the rest of the class because D.S. was taking up a
“substantial amount of classroom time just to control
behavior.” She stated that D.S.'s “disability
[was] interfering with his access to the general
curriculum” and his “depression and
anxiety” were “inhibiting his academic
growth.” (Tr. 299).
D.S.'s 2014-2015 report card, his mathematics teacher
noted that he needed to memorize basic addition, subtraction,
and multiplication facts. She reported that he refused to
participate or do his assignments. He couldn't follow
written directions and asked excessive questions regarding
directions. D.S. was also struggling with reading. His
teacher encouraged him to use reading strategies to increase
his comprehension. She noted that he did not complete his
make-up work and had low tests and incomplete work. (Tr.
327). His music teacher noted that he needed to follow the
music rules and participate. In the area of social skills,
his teacher noted that D.S. needed to remember that there
were others in the class and he would have to wait his turn
to speak. (Tr. 328).
504 Plan was updated in the fall of 2015. The evaluation
indicated that D.S.'s ADHD and PTSD continued to affect
his ability to learn, think, and concentrate in school. (Tr.
311). He had ongoing struggles with “organizational
skills” and “following through with directives
and completing tasks without teacher assistance.” He
also continued to be “very impulsive, ” which, in
turn, caused “him to make poor choices that result in
disciplinary action and loss of instruction time.” (Tr.
April 28, 2015, Dr. Kemp completed a questionnaire on
D.S.'s medical and functional equivalence. (Tr. 390-393).
She marked boxes indicating that he had marked limitations in
the domains of acquiring and using information, attending and
completing tasks, and caring for self. (Tr. 390-391). She did
not elaborate on her opinion regarding these domains. She
opined that he had moderate limitations in interacting and
relating with others and moving about and manipulating
objects. He had no limitations in the area of health and
physical well-being. She stated that he did not have any side
effects from medication and did not have any problem with
school attendance. (Tr. 392). She noted that D.S. needed
extra time with tests and projects and that he needed
tutoring and counseling at home and at school. She opined
that his condition was chronic. (Tr. 392).
was disciplined several times during the 2015-2016 school
year. (Tr. 314, 315). D.S.'s fourth referral for
discipline occurred on March 7, 2016. D.S. was hitting
another student while waiting for the bus. After he got on
his bus, he left his backpack and got off the bus to go after
the same girl. (Tr. 314).
report card from 2016 also documents behavioral issues.
[D.S.] does not turn in any homework. He is often off task
and disturbing others. His talking and offensive comments are
making it difficult for him to interact with his peers in a
positive way. These frequent disruptions are affecting his
academics. (Tr. 316).
Behavior is very disruptive to the class. Constantly bothers
[D.S.] intentionally distracts others in our classes. He will
go out of his way to annoy or irritate a peer. [D.S.] wants
to do well, but chooses not to control his actions and/or
behavior. His behavior and academics have declined. (Tr.
504 plan was reviewed again in October 2016. (Tr. 340). The
team added an accommodation to address D.S.'s frustration
and tendency to shut down in order to better address his
learning, concentrating and thinking. (Tr. 340). D.S. was
given extended time, up to time and a half, to complete
assignments in all of his school subjects. (Tr. 353). Despite
this, he got a D in math and a D- in Science. (Tr. 347).
October 22, 2016, D.S.'s therapist at SAFY noted that
D.S. had made some progress in several areas. However, she
also noted that he recently received some failing grades at
school and that he appeared to be affected and displayed
acting out behavior when his father's job or work hours
changed. (Tr. 643-644). D.S. began experiencing tics again
and was bullied by his school peers. (Tr. 651). On November
15, 2016, his tic was better but he had been listening less
to teachers and was more disruptive in class. The treating
psychiatrist increased D.S.'s dosage of Intuniv. (Tr.
January 24, 2017, Vanessa Ayers, a school counselor,
completed a school activities questionnaire. (Tr. 664-665).
Ms. Ayers stated that she was not in the classroom with D.S.
and that her assessment was based on a survey of his
teachers. (Tr. 665). She reported that D.S.'s functioning
in all areas was poor; “he is able, chooses not
to.” (Tr. 664). She noted that D.S. sought attention in
negative ways, by being silly and passive aggressive in
response to correction. D.S. laughed, talked back, or argued
when corrected by teachers. He was often non-compliant. She
commented that the “teachers agree that he is
completely capable to ...