United States District Court, S.D. Ohio, Western Division, Dayton
KATELYNN R. GILPIN, Plaintiff,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
DECISION AND ENTRY
L. Ovington United States Magistrate Judge.
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.
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).
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
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).
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
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.
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.
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.
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.
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.
Brenda Gilpin's Testimony
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.
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.
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.
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.
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.
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.
Fred M. Sacks, Ph.D.
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.
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.
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.
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.
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.
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.
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.
Paul Tangeman, Ph.D., & Leslie Rudy, Ph.D.
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 ...