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Gilpin v. Commissioner of Social Security Administration

United States District Court, S.D. Ohio, Western Division, Dayton

December 11, 2019



          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         Plaintiff Katelynn R. Gilpin previously received Supplemental Security Income based on disability as a child. When she turned eighteen years old, the Social Security Administration redetermined her eligibility for benefits as an adult and concluded that, as of December 1, 2015, she was not under a disability. Upon reconsideration, the determination was upheld. At Plaintiff's request, Administrative Law Judge (ALJ) Mark Hockensmith held two hearings after which he concluded that she was not eligible for benefits because she is not under a “disability” as defined in the Social Security Act. Plaintiff brings this case challenging the Social Security Administration's denial of her application for Supplemental Security Income.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #8), the Commissioner's Memorandum in Opposition (Doc. #12), Plaintiff's Reply (Doc. #13), and the administrative record (Doc. #7).

         Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner asks the Court to affirm ALJ Hockensmith's non-disability decision.

         II. Background

         Plaintiff asserts that she has been under a “disability” since December 1, 2015. She was eighteen years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. § 416.963(c). She has a limited education. See Id. § 416.964(b)(3).

         A. Plaintiff's Testimony

         At her first hearing before ALJ Hockensmith, Plaintiff did not have an attorney. (Doc. #7, PageID #s 118-34). The ALJ offered to postpone the hearing if she wanted time to find counsel. After considering her options, Plaintiff decided to postpone it.

         A few months later, at the second hearing, Plaintiff testified that she struggles with depression and anxiety. She sees a counselor at New Creation Counseling. Id. at 87. Plaintiff has a panic attack once or twice a week. Id. She has panic attacks when she has to make decisions, if something changes, or when she tries something new. Id. at 87-88. When she has one, she usually runs into a bathroom or into her room to hide and to try to breathe. Id. at 87. Additionally, “I see things that I shouldn't be seeing like in the mirror…. [I]f I go to the bathroom just to splash my face with some water to calm myself down, I will see these little things of myself being like a monster or like a beast … and then I start to cry because I'm getting worked up and I'm not feeling safe.” Id. at 88. Plaintiff has crying spells at least once or twice a month. Id. at 91. She cries if she gets yelled at or has to calm herself down when she is anxious. Id.

         She has trouble staying focused on one task at a time. For example, when she is washing dishes, if she sees a basket of towels, she will stop washing dishes and start folding towels. Id. at 89-90. She cannot concentrate on one thing for very long. Id. at 92. She cannot make it through an entire movie without thinking of other things and leaving the room. Id. She also has some problems with her short-term memory but can remember things from her childhood. Id.

         Plaintiff lives in a house with her grandparents. Id. at 86. During a typical day, she sits in her room and gets on her computer to talk to her friends or she gets herself ready to do chores around the house. Id. Plaintiff does not have very many friends; she only has one best friend who comes to see her. Id. at 100. Her chores include washing dishes, sweeping, doing laundry, and taking care of her pets. Id. at 86.

         Plaintiff tried to work at a daycare with the assistance of her job coach. Id. at 93-94. After a week, she thought her job was going to change, her anxiety increased, and “that's when that all went down.” Id. at 94. For the three months before the hearing, Plaintiff volunteered at a nursing home, helping two men play bingo. Id. She goes three times a week-once for an hour and twice for an hour and a half. Id. at 95. She likes volunteering because it makes her feel good. Id. at 96. But when she is having a rough day, she does not go. Id. at 96-97. She also volunteers to help with kids at her church. Id. at 97. She tries to make a little lesson and then they play games. Id. However, this sometimes leads to increased anxiety and as a result, she does not help unless they need her to. Id. She started babysitting her neighbor's five-year-old child in late fall 2016. Id. at 98. Although it depended on the parents' schedule, she usually babysat three days a week from 8:00 a.m. to 12:30 p.m. Id. at 99. At the time of the hearing she was not babysitting because it was summer and she was not sure if she would babysit the child again in the fall. Id. at 99.

         Plaintiff does not think she could perform a full-time job because she is afraid she will see someone that bullied her in the past, panic, and not know what to do. Id. at 90. In addition, she would “freak out” and not want to return if something at the job changed. Id.

         B. Brenda Gilpin's Testimony

         Plaintiff's grandma, Brenda Gilpin, also testified at the hearing before ALJ Hockensmith. Id. at 101. Plaintiff moved in with her grandma when she was high school. Id. at 102. But, even before then, Ms. Gilpin took partial care of her when Plaintiff's mother was working. Id.

         Ms. Gilpin has witnessed Plaintiff's panic attacks. She explained, “She cries. She shakes…. [Y]ou can't hardly reason with her and you have to get her to a safe place and there's not much I can do but comfort her ….” Id. at 103. Plaintiff has meltdowns when something is not “on an even keel” or is “out of whack.” Id. Additionally, she sometimes has a meltdown when there are lots of people. Id.

         Plaintiff has outbursts too. Id. She gets mad if Ms. Gilpin tells her to do something that she does not think she can do or tells her something she does not want to hear. Id. at 107-08. There are some things that Ms. Gilpin can discuss with Plaintiff one day and Plaintiff is perfectly fine but then the next day, the same discussion might set Plaintiff off. Id. at 108. However, that does not happen very often at Ms. Gilpin's house because things are “pretty even keel.” Id. at 107-08. If Plaintiff is with her mother-who has a lot of the same issues as Plaintiff-she has more frequent outbursts. Id. at 108.

         Ms. Gilpin explained that Plaintiff has a difficult time with change. For example, if Plaintiff was working and one day her boss changed what she was doing, she would be scared and could have a “full panic attack.” Id. at 104. She would then need to find a safe place where she could try to calm herself down. Id. at 105. How long she needs to calm down depends on the situation. If it is not too bad, she may be able to just leave the room to calm herself down. However, it could take her hours or the rest of the day to calm down. Id. at 105.

         Ms. Gilpin sometimes has to help Plaintiff stay focused and has to remind her to do things like chores and cooking. Id. at 104. She sometimes has to remind her to take her medication. Id.

         Ms. Gilpin does not believe Plaintiff is able to work because she would get upset if something happened and other people are rude in the workplace. Id. at 106. Further, “[Plaintiff] is different and she says things off the wall that other people don't understand ….” Id. However, Ms. Gilpin hopes that Plaintiff can work someday in a safe environment where people are not mean to her. Id. Ms. Gilpin indicated that Plaintiff would need coworkers and a boss that always spoke to her in a nice and pleasant tone. Id. at 108.

         C. Medical Opinions

         i. Fred M. Sacks, Ph.D.

         Plaintiff was referred to Dr. Sacks for a neuropsychological evaluation “because of multiple functional deficits and concerns with cognitive, emotional and behavioral functioning.” Id. at 817. As part of his evaluation, Dr. Sacks reviewed Plaintiff's medical and school records and met with Plaintiff six times between April and July 2013. Id. at 817-18. He administered several tests to Plaintiff, including, for example, the Wechsler Intelligence Scale for Children-Fourth Edition; Halstead-Reitan Neuropsychological Test Battery; Personality Assessment Inventory-Adolescent; and Conners' Continuous Performance Test-II. Id. at 819. Dr. Sacks also administered two tests to Plaintiff's mother and grandmother-the Behavior Rating Inventory of Executive Function (BRIEF) and the Gilliam Autism Rating Scale-Second Edition.

         Relevant to the present case, Plaintiff's mother and grandmother collaboratively completed the Gilliam Autism Rating Scale-Second Edition (GARS-2). Their ratings yielded an Autism Index of 89 which is indicative of a “very likely” or probable diagnosis of autistic disorder. Dr. Sacks noted, “Review of item responses indicates that [Plaintiff] has stereotyped behaviors, communication problems, and difficulties in social interaction which are generally characteristic of individuals who present autistic disorder.” Id. at 824. Looking first at stereotyped behaviors, Plaintiff frequently avoids eye contact, stares at her hands or objects, has very significant preferences for foods and refuses to eat what most people usually will eat. She frequently whirls or turns in circles as well as rocking back and forth while seated and standing. Id. Turning to the domain of communication problems, Plaintiff frequently looks away or avoids looking at the speaker when her name is called. Id. She sometimes repeats words or phrases over and over, responds inappropriately to simple commands, and does not ask for things that she may want. Id. However, “More significant problems are reported in the domain in social interaction.” Id. For example, Plaintiff frequently avoids eye contact or looks away when someone is looking at her, withdraws or remains rather aloof and detached in group situations, becomes upset when her routines are changed, and responds negatively or with temper tantrums when given commands, requests or directions.” Id. She less frequently stares or looks unhappy or unexcited when praised or entertained; resists physical contact with others; is generally reticent or unwilling to give displays of affection; does things repetitively or ritualistically; and lines up objects in a precise, orderly fashion and then becomes upset when the order is disturbed. Dr. Sacks concluded, “The combination of these behaviors in multiple domains yields a ‘very likely' classification of [Plaintiff] as having autistic disorder.” Id. at 824.

         Dr. Sacks summarized his findings: “[Plaintiff] is functioning within the borderline range of intelligence and presenting with moderate cerebral impairment. Neurocognitive deficits are quite prominent in attentional functioning and higher cortical functioning including problem-solving and abilities to organize experience. Problems in social-emotional functioning are also quite prominent. [Plaintiff] is presenting with multiple and severe emotional problems. Her history is positive for a past episode of major depressive disorder, severe, with psychotic features.” Id. at 825. Dr. Sacks concluded that Plaintiff meets the diagnostic criteria for major depressive disorder, recurrent, mild; posttraumatic stress disorder; attention deficit hyperactivity disorder, combined type; autistic disorder; and borderline intellectual functioning. He recommended continued medication management and therapy. Id. at 817-26.

         Dr. Sacks evaluated Plaintiff again in 2017 “for the purpose of determining eligibility for social security insurance benefits.” Id. at 1381. He met with her five times and reviewed her medical and school records. He administered several of the same tests (some different versions) to Plaintiff. And, his finding from the second round of tests was “generally, consistent with the previous (2013) neuropsychological test findings ….” Id. at 1389.

         Dr. Sacks administered the Gilliam Autism Rating Scale-Third Edition to Plaintiff's grandmother. “Overall, the ratings by the grandparent are highly significant for [Plaintiff] meeting diagnostic criteria for autism spectrum disorder which further compounds her general problems in neurocognitive, social and emotional functioning.” Id. at 1388.

         Dr. Sacks diagnosed unspecified neurocognitive disorder; major depressive disorder, recurrent episode, severe; attention deficit/hyperactivity disorder, predominantly inattentive presentation; autism spectrum disorder; and borderline intellectual functioning. Id. at 1390. Dr. Sacks “strongly recommended that [Plaintiff] be viewed as eligible for continuation of her social security benefits.” Id. at 1389.

         In June 2017, Dr. Sacks completed a mental impairment questionnaire. He indicated that Plaintiff had marked or extreme limitations in every functional activity. Id. at 1392-93. He opined, “[Plaintiff] has multiple cognitive impairments and functions, generally, at a moderate level of cerebral impairment. Her capabilities to function effectively in a work environment are further compromised to an extreme degree by multiple and sometimes severe difficulties which contribute to significant difficulties in maintaining emotional equilibrium.” Id. at 1393.

         ii. Paul Tangeman, Ph.D., & Leslie Rudy, Ph.D.

         Dr. Tangeman reviewed Plaintiff's record in November 2015. He found that she had two non-severe impairments-obesity and sleep-related breathing disorders-and four severe impairments-affective disorders; schizophrenic, paranoid, and other functional psychotic disorders; ADD/ADHD; and anxiety disorders. Id. at 149. He opined that Plaintiff has the ability to complete any complexity of task in a ...

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