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Spikes v. Commissioner of Social Security

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

August 22, 2019

GARY SPIKES, o/b/o D.S., Plaintiff,



         I. Introduction

         Plaintiff 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.

         II. Procedural History

         Spikes applied for children's disability benefits on behalf of his minor child, D.S., on June 23, 2014. (Tr. 163).[1] 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).

         III. Evidence

         A. Relevant Medical and Educational Evidence

         D.S. 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).

         In 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).

         Spikes 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).

         D.S. 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. (Tr. 522).

         On 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).

         In the 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.

         He also 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).

         State 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).

         D.S. 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).

         Dr. 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).

         When 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).

         In 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).

         D.S. 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[2] 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).

         D.S.'s 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).

         On 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).

         D.S.'s 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. 311).

         On 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).

         D.S. 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).

         His 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 others.
[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. 317).

         D.S.'s 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).

         On 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. 657).

         On 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 ...

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