Branning v. Astrue

Filing 24

MEMORANDUM OF OPINION; Upon review of the record as a whole, the court concludes that the ALJ's decision is supported by substantial evidence and proper application of the law. Accordingly, the decision of the Commissioner is due to be AFFIRMED. A separate judgment will be entered. Signed by Honorable Susan Russ Walker on 9/20/2010. (jg, )

Branning v. Astrue(CONSENT)

Doc. 24

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION C H R IS T Y BRANNING for H.T.B, P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner o f Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 1:09CV122-SRW (W O )

M E M O R A N D U M OF OPINION C h ris ty Branning for H.T.B.1 brings this action pursuant to 42 U.S.C. §§ 405(g) and 1 3 8 3 (c )(3 ) seeking judicial review of a decision by the Commissioner of Social Security (" C o m m is s io n e r" ) denying her daughter's second application for Supplemental Security In c o m e under the Social Security Act. The parties have consented to entry of final judgment b y the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record and b rie f s submitted by the parties, the court concludes that the decision of the Commissioner is d u e to be affirmed. BACKGROUND P la i n t i f f was born on August 11, 2000. On July 6, 2004 (protective filing date), p la in tif f 's mother filed the present application for Supplemental Security Income (SSI) on p la in tif f 's behalf, alleging that plaintiff has been disabled since January 9, 2002 (when she

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The court refers to H.T.B. as the "plaintiff" in this memorandum of opinion.

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was seventeen months old) due to ADHD and compulsive behavior (See Exhibits 2D, 3D, 1 0 E ).2 The claim was denied initially on August 23, 2004. (Exhibit 2D). On January 11, 2 0 0 6 , an ALJ conducted an administrative hearing. (R. 619-33). The ALJ rendered a decision o n August 24, 2006, in which he found that plaintiff has not been disabled, as defined in the S o c ia l Security Act, since July 6, 2004, the date the present SSI application was filed. (R. 1 8 -3 1 ). On December 23, 2008, the Appeals Council denied plaintiff's request for review (R . 7-10) and, on February 18, 2009, plaintiff filed the present appeal.3 STANDARD OF REVIEW T h e court's review of the Commissioner's decision is narrowly circumscribed. The c o u rt does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings. Davis v. S h a la la , 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145 Plaintiff's previous application for supplemental security income was filed on January 10, 2002, the day after the alleged onset date in the present application. In the previous application, however, plaintiff's mother alleged that plaintiff was disabled on the basis of asthma and allergies. The claim was denied on February 28, 2002. (See Exhibits 1A, 1D, 2E-8E). On December 23, 2008, the Appeals Council entered an order identifying the additional evidence it had received in this case, and making that evidence part of the record. The Appeals Council order lists two exhibits: (1) AC-1, "Medical records from Wiregrass Medical Center and Children's Hospital" and (2) "Attorney brief." (R. 10). In the transcript filed with the court, Exhibit AC-1 includes four pages. (R. 6, 611-14). All four pages are records from Children's Hospital; Exhibit AC-1 includes no medical records from Wiregrass Medical Center. Accordingly, the court directed plaintiff's counsel to file the Wiregrass Medical Center records he submitted to the Appeals Council with his May 31, 2007 brief, along with confirmation of the facsimile transmission to the Appeals Council. He has done so (see Doc. # 21, 22), and the court has considered those records in resolving the present appeal. 2
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(11th Cir. 1991). "Substantial evidence is more than a scintilla, but less than a p re p o n d e ra n c e . It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). F a c tu a l findings that are supported by substantial evidence must be upheld by the court. See M a rtin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)("Even if the evidence p re p o n d e ra te s against the [Commissioner's] factual findings, we must affirm if the decision re a c h e d is supported by substantial evidence."). The ALJ's legal conclusions, however, are re v ie w e d de novo because no presumption of validity attaches to the ALJ's determination of th e proper legal standards to be applied. Davis, 985 F.2d at 531. If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient re a s o n in g for determining that the proper legal analysis has been conducted, the ALJ's d e c is io n must be reversed. Cornelius, 936 F.2d at 1145-46. D IS C U SS IO N A n a ly s is of Childhood Disability Claims " F e d e ra l regulations set forth the process by which the SSA determines if a child is d is a b le d and thereby eligible for disability benefits." Shinn ex rel. Shinn v. Commissioner o f Social Sec., 391 F.3d 1276, 1278 (11th Cir. 2004) (citing 42 U.S.C. § 1382c(a)(3)(C)(I) a n d 20 C.F.R. § 416.906). "The process begins with the ALJ determining whether the child is `doing substantial gainful activity,' in which case she is considered `not disabled' and is in e lig ib le for benefits." Id. (citing 20 C.F.R. §§ 416.924(a), (b)). "The next step is for the

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ALJ to consider the child's `physical or mental impairment(s)' to determine if she has `an im p a irm e n t or combination of impairments that is severe.'" Id. (citing 42 U.S.C. § § 416.924(a), (c)). "For an applicant with a severe impairment, the ALJ next assesses w h e th e r the impairment `causes marked and severe functional limitations' for the child." S h in n , 391 F.3d at 1278 (citing 20 C.F.R. §§ 416.911(b), 416.924(d).) This determination is made according to objective criteria set forth in the Code of Federal Regulations (C.F.R.). As the Eleventh Circuit has explained, [ t]h e C.F.R. contains a Listing of Impairments ["the Listings", found at 20 C .F .R . § 404 app.] specifying almost every sort of medical problem (" im p a irm e n t" ) from which a person can suffer, sorted into general categories. S e e id. § 416.925(a). For each impairment, the Listings discuss various lim ita tio n s on a person's abilities that impairment may impose. Limitations a p p e a rin g in these listings are considered "marked and severe." Id. ("The L is tin g of Impairments describes ... impairments for a child that cause[ ] m a rk e d and severe functional limitations."). A child's impairment is recognized as causing "marked and severe f u n c tio n a l limitations" if those limitations "meet[ ], medically equal[ ], or f u n c tio n a lly equal[ ] the [L]istings." Id. § 416.911(b)(1); see also §§ 416.902, 4 1 6 .9 2 4 (a ). A child's limitations "meet" the limitations in the Listings if the c h ild actually suffers from the limitations specified in the Listings for that c h ild 's severe impairment. A child's limitations "medically equal" the lim ita tio n s in the Listings if the child's limitations "are at least of equal m e d ic a l significance to those of a listed impairment." Id. § 416.926(a)(2). Id . at 1278-79. "Finally, even if the limitations resulting from a child's particular impairment a re not comparable to those specified in the Listings, the ALJ can still conclude that those lim ita tio n s are `functionally equivalent' to those in the Listings. In making this

d e te rm in a tio n , the ALJ assesses the degree to which the child's limitations interfere with the c h ild 's normal life activities. The C.F.R. specifies six major domains of life: 4

(i) Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and relating with others; (iv) Moving about and manipulating objects; (v) Caring for [one]self; and (vi) Health and physical well-being." Shinn, 391 F.3d at 1279 (citing 20 C.F.R. § 416.926a(b)(1)). "The C.F.R. contains various `b e n c h m a rk s ' that children should have achieved by certain ages in each of these life d o m a in s ." Id. (citing 20 C.F.R. §§ 416.926a(g)-(l)). "A child's impairment is `of listing-level s e v e rity,' and so `functionally equals the listings,' if as a result of the limitations stemming f ro m that impairment the child has `marked' limitations in two of the domains [above], or a n `extreme' limitation in one domain." § 416.925(a)).4 A d d itio n a lly, a child is not disabled within the meaning of the Social Security Act u n le s s the impairment or combination of impairments which meets, medically equals or f u n c tio n a lly equals the listings either has lasted or can be expected to last for a continuous Id. (citing 20 C.F.R. § 416.926a(d) and

" A `marked' limitation is defined as a limitation that `interferes seriously with [the] ability to independently initiate, sustain, or complete activities,' and is `more than moderate.'" Henry v. Barnhart, 156 Fed. Appx. 171, 174 (11th Cir. 2005)(unpublished opinion)(citing 20 C.F.R § 416.926a(e)(2)(I)). "An `extreme' limitation is reserved for the `worst limitations' and is defined as a limitation that `interferes very seriously with [the] ability to independently initiate, sustain, or complete activities,' but `does not necessarily mean a total lack or loss of ability to function.'" Id. (citing 20 C.F.R. § 416.926a(e)(3)(I)). 5

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period of twelve months or to result in death. 42 U.S.C.A. § 1382c(a)(3)(C)(i)("An individual u n d e r the age of 18 shall be considered disabled for the purposes of this subchapter if that in d iv id u a l has a medically determinable physical or mental impairment, which results in m a rk e d and severe functional limitations, and which can be expected to result in death or w h ic h has lasted or can be expected to last for a continuous period of not less than 12 m o n th s ." ); 20 C.F.R. § 416.924 ("If your impairment(s) is severe, we will review your claim f u rth e r to see if you have an impairment(s) that meets, medically equals, or functionally e q u a ls the listings. If you have such an impairment(s), and it meets the duration requirement, w e will find that you are disabled. If you do not have such an impairment(s), or if it does not m e e t the duration requirement, we will find that you are not disabled."); Cf. Barnhart v. W a lto n , 535 U.S. 212 (2002)(upholding, in the adult disability context, the Commissioner's re g u la to ry interpretation that it is the inability to engage in substantial gainful activity, rather th a n the impairment(s), which must meet the 12 month duration requirement). P la in tiff's Contentions T h e ALJ found that plaintiff suffers from severe impairments of attention deficit h yp e ra c tiv ity disorder, mood disorder, and oppositional defiant disorder. He concluded that s h e does not have an impairment or combination of impairments that meets or equals any lis te d impairment and, further, that she does not have an impairment or combination of im p a irm e n ts that functionally equals the listings. In his decision, the ALJ indicated that he specifically considered Listings 112.02 (organic mental disorder), 112.04 (mood disorder),

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112.08 (personality disorder), and 112.11 (attention deficit hyperactivity disorder). Plaintiff d o e s not argue that she meets or medically equals one or more of the Listings identified by th e ALJ, nor does she identify specifically any other listing which she contends is applicable. Rather, she asserts that the Commissioner's decision should be reversed because: (1) the ALJ e rre d by rejecting the medical opinion of Dr. Srilata Anne, plaintiff's treating psychiatrist; a n d (2) the ALJ failed to state with particularity the weight he gave the medical opinion e x p re s s e d by Dr. Simpson, the reviewing state agency psychologist. On December 21, 2005, Dr. Anne signed a mental RFC form indicating that plaintiff is mildly impaired in her ability to acquire and use information, moderately impaired in her a b ility to attend and complete tasks and her ability to move about and manipulate objects, and m a rk e d ly impaired in three domains: (1) the ability to interact and relate with others; (2) the a b ility to care for herself; and (3) health and physical well-being. (Exhibit 17F). On August 2 0 , 2004, the non-examining state agency psychologist Dr. Simpson concluded, based on his re v ie w of the then-available medical records, that plaintiff had no limitation in the domains o f acquiring and using information, moving about and manipulating objects, caring for h e rs e lf , and health and physical well-being; a less than marked limitation in the domain of in te ra c tin g and relating with others; and a marked limitation in the domain of attending and c o m p le tin g tasks. (Exhibit 11F). The ALJ found plaintiff to have no limitation in the domains o f acquiring and using information, moving about and manipulating objects, and health and p h ys ic a l well-being. He found that she has less than marked limitations in the remaining

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three domains of attending and completing tasks, interacting and relating with others, and c a rin g for herself. Thus, while the ALJ found that plaintiff does suffer limitations as a result o f her impairments, he did not find those limitations to be disabling. (R. 24-31). P la in tif f 's mother first complained of plaintiff's behavior problems to a nurse p ra c titio n e r at plaintiff's two-year "well baby" exam on August 12, 2002.5 She reported that th e "police came to the house to pick [plaintiff] up and take her to her father's" and that, after p la in tif f had returned home from spending a month with her father, she was "extremely w h in y and throwing frequent temper tantrums." She stated that plaintiff had not responded w e ll to time-outs or to being told not to hit or throw tantrums. The nurse referred plaintiff to D r. Jordan, a psychologist, for further evaluation and treatment. (R. 482-83). There are no medical treatment notes evidencing further complaints of mental health s ym p to m s until January 2004, when plaintiff's mother sought treatment from plaintiff's p e d ia tric ia n for plaintiff's cold symptoms. She reported that plaintiff had not slept well and h a d started, the previous day, taking Adderall XR prescribed by Dr. Tessama. Dr. Brown a d v is e d plaintiff's mother to resume giving her Tenex (which had been prescribed for her in D e c e m b e r 2003) and to follow up with Dr. Tessama soon. (R. 461, 464).6 The records from

Plaintiff's pediatric medical record demonstrates that she has been treated for a variety of physical illnesses and conditions. The court has considered the entire record but here discusses only the evidence relating to plaintiff's mental impairments. In the disability report she filed in support of the application, plaintiff's mother did not include Dr. Tessema or Dr. Jordan in her list of medical providers. (R. 113-14). She listed SpectraCare as a service provider, but the record does not indicate whether either Dr. Tessema or Dr. Jordan is associated with SpectraCare and, when the claims examiner sought records from 8
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plaintiff's pediatrician reflect that plaintiff remained on Tenex for the next couple of months a n d that, during this period, she was evaluated by psychologist Melanie Cotter Ph.D. (R. 453-62; Exhibit 8F). Dr. Cotter, on referral from plaintiff's pediatrician, evaluated p la in tif f in three sessions over a one-month period; she diagnosed anxiety disorder NOS (w ith a "strong obsessive-compulsive flavor"); oppositional defiant disorder; parent-child re la tio n a l problem (with "questionable support and engagement"); relational problem NOS (w it h "social withdrawal and avoidance") and "monitor emerging mood pattern." She re c o m m e n d e d close monitoring of plaintiff's medication, with possible changes to address th e mood pattern; she further recommended that plaintiff's mother "follow-up with i n t e r v e n tio n s that have been previously addressed by Dr. Jordan" and to attend parenting c la s s e s or receive counseling on parenting skills. When Dr. Cotter discussed her re c o m m e n d a tio n s with plaintiff's mother, plaintiff's mother "acknowledge[d] child does not ta k e her seriously." (Exhibit 8F). On March 26, 2004, plaintiff was started on Paxil; Dr. Benak advised plaintiff's

SpectraCare, he received a response stating that SpectraCare had no records as of July 20, 2004 pertaining to the plaintiff. (Exhibit 10F). A few of Dr. Jordan's treatment notes are included within the medical records from plaintiff's pediatric clinic for visits in early 2005 (R. 405, 407, 410), but there are no earlier records from Dr. Jordan and no records at all from Dr. Tessema. There is also an indication in plaintiff's pediatric clinic treatment notes in August 2004 ­ two and a half months after she filed the present application ­ that she is "followed by Dr. Lopez" for behavioral problems (R. 440); in a disability appeal report that she completed on August 25, 2004, plaintiff's mother indicated that plaintiff had started seeing Dr. Lopez and Gwen Downing, a therapist, at SpectraCare in July 2004 (R. 133-38). However, plaintiff ­ who has been represented by counsel since October 2004 (R. 59) ­ submitted no treatment records from Dr. Lopez or Ms. Downing. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)(ALJ is not required to develop the record for the period after the claimant applies for benefits). 9

mother to discontinue the Paxil four days later, after plaintiff's mother reported that plaintiff w a s exhibiting violent behavior. In the early morning hours of March 31, 2004, plaintiff was tre a te d at the Wiregrass Medical Center for extreme hyperactivity soon after she had stopped th e Paxil. She was treated by the ER staff with Ativan, and required a second dose by mouth w h e n the first dose, administered by shot in her left thigh thirty minutes earlier, did not calm th e plaintiff. Plaintiff was sent home with her mother, with instructions to follow up with h e r doctor. That morning, plaintiff's mother took her to the pediatrician's office, reporting th a t plaintiff had begun to hallucinate. Plaintiff was observed for approximately five hours a t the pediatrician's office; she slept during that entire time. She awoke at 3:00 p.m., " a p p ro p ria te to exam and verbal stimuli." The pediatrician, Dr. Barron, believed that plaintiff h a d experienced a reaction to the Ativan. (R. 453-455; Doc. # 22, pp. 32-35). On April 14, 2004, plaintiff's mother took plaintiff to Dr. Srilata Anne of the B e h a v io ra l Health Department of Children's Hospital in Birmingham for evaluation. She to ld Dr. Anne that plaintiff had been on Tenex with minimal improvement, on Adderall and P a x il which were discontinued because of side effects, and that she had also taken Strattera. Dr. Anne noted that plaintiff was "very hyperactive" in the office; she was running and th ro w in g things; she ran into the corridor and her mother had to chase her; she was hitting h e r mother and tried to poke her mother's eyes with a pencil; and she was crying and s c re a m in g toward the end of the session because she "couldn't get her way." Dr. Anne re c o m m e n d e d that plaintiff be admitted to the hospital for evaluation and medication

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management. (R. 580-83). P la in tif f was admitted to Children's Hospital on March 16, 2004 and remained there f o r four days. She was started on Tenex with "positive results" and no side effects. Plaintiff's diagnosis, upon discharge on March 20th, was disruptive behavior disorder; she w a s to be followed after discharge by Dr. Anne for medication management, Steve Bell for in d iv id u a l therapy and social worker Carolina Endert for case management. (Exhibit 9F). Nine days after her discharge, plaintiff's mother took her back to Dr. Anne. The doctor re p o rte d that plaintiff was doing better after her discharge initially but that, over the past few d a ys , she was "back to normal" with regard to her hyperactivity. During the appointment w ith Dr. Anne, plaintiff was touching things and constantly moving, and she again tried to ru n out into the corridor. Dr. Anne first recommended trying low dosages of stimulant m e d ic a tio n s Ritalin or Dexedrine; citing plaintiff's previous problems with medications, p la in tif f 's mother refused to consent to trying any stimulant medication on an outpatient b a s is . She stated that she wanted plaintiff to be admitted again before trying the medication, e x p la in in g that she was reluctant to try Ritalin because of the "bad things" she had heard a b o u t it and because her family did not want plaintiff to be on Ritalin. Dr. Anne discussed th e possibility of increasing the dosage of Tenex instead; plaintiff's mother "was not keen o n it" and "wanted [plaintiff] to be admitted before any medication changes can be made." Dr. Anne then had nurse Hinton join the meeting, and Hinton explained the medications R ita lin and Dexedrine, and their possible side effects, to plaintiff's mother. Plaintiff's

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mother stated that she wanted to try the medication, but "only on an inpatient unit [and] not a s [outpatient]. Dr. Anne stated, "Since [plaintiff's mother] is reluctant to try any medications [ a s outpatient] and insisted on in[patient] treatment, [patient] was put on waiting list," as th e re were no beds then available. (R. 578-79). Plaintiff was readmitted to the hospital on M a y 7, 2004. (R. 347). O n May 12, 2004, while she was working to set up post-discharge in-home services " to assist with parenting issues," social worker Carolina Endert consulted with Dr. Maxwell, w h o told her that he understood that plaintiff had been "kicked out of the Head Start P ro g ra m ." Endert contacted the Special Education Coordinator, Steve Swann; Swann c o n t a c t e d the Head Start Coordinator, Monette Barr, who told him that plaintiff had been " w ith d ra w n from Head Start[.]" Barr "indicated that [plaintiff's] behaviors were not of c o n c e rn t[o] them, and her behaviors were not greater th[a]n those of other children. The s c h o o l teachers have no difficulty managing her. [Plaintiff's] progress is at an agea p p ro p ria te level[.]" (R. 577). At plaintiff's follow-up visit with Dr. Anne on June 10, 2004, Endert was present. Plaintiff's mother reported that plaintiff had initially done well after discharge from the s e c o n d hospitalization but that she had been difficult to manage for the "past 10 days." She s ta te d that plaintiff had been angry and "went back to her bad ways." She said that, with the m e d ic a tio n s , plaintiff was not able to focus. Dr. Anne noted "[Discussed with mother] about th e report Ms[.] Carolina had from the Head Start ­ Rep[o]rt fr[o]m Head Start stated that

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they had no problems [with plaintiff] and that [plaintiff's behavior] was same as any child o f her age."7 Dr. Anne observed, in her mental status evaluation, that plaintiff was c o o p e ra tiv e , was playing with the doll house, was calm, and was not hyperactive, and that s h e listened when her mother told her to do something and said "I love you" to her mother. Endert informed plaintiff's mother about parenting classes and in-home services. Dr. Anne n o te d that "[plaintiff] has been more calm + less hyperactive in this session compared to the p re v io u s sessions." (R. 575-76). Eight days later, on June 18, 2004, plaintiff was readmitted to the hospital after her mother reported that the medications were "not controlling child's b e h a v io r." (R. 347).8 O n July 8, 2004, a week after plaintiff's third discharge from the hospital, Dr. Anne a n d Endert met with plaintiff and her mother. Plaintiff's mother reported that plaintiff was " d o in g real good," and that she was going to day care from 8 a.m. to 5 p.m., Monday through F rid a y. She said that plaintiff was less impulsive, less "hyper," and that she could " `u n d e rs ta n d ' better." Dr. Anne indicated that plaintiff was compliant with her medications Dr. Anne's note does not indicate how or whether plaintiff's mother explained the report from Head Start. There is no indication in the record that Dr. Anne saw plaintiff again before this third admission, and the record does include any additional notes regarding the circumstances of plaintiff's admission or the course of her inpatient treatment during this third hospitalization. The record includes only a short note on a "Patient Data Report" that plaintiff was "[r]eadmitted to 5-E on 6-1804; per [legal guardian] meds not controlling child's behavior" (R. 347), and later references by Dr. Anne and plaintiff's pediatrician in early July to plaintiff's discharge from this hospitalization around the first of July 2004 (R. 444, 573). Plaintiff's pediatrician's note indicates that plaintiff had been started on Ritalin, in addition to the Clonidine previously prescribed, and that she was "doing a whole lot better" according to her mom, except that she had been having difficulty urinating for a couple of days. (R. 444). 13
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with "no side effects." In her mental status evaluation, Dr. Anne noted that plaintiff was c o o p e ra tiv e , was building things [with] blocks, was focusing well, and was not hyperactive. Plaintiff's mother asked to continue plaintiff on the same medications as she was given on d is c h a rg e from the hospital. Dr. Anne continued plaintiff on Ritalin and Clonidine. (R. 5737 4 ). There are no treatment notes indicating that Dr. Anne saw plaintiff thereafter until M a rc h 17, 2005. (See Exhibit 15F).9 O n August 27, 2004, plaintiff's mother took her to the Wiregrass Medical Center e m e rg e n c y room. She stated that plaintiff had been very hyperactive all day and that the day c a re had reported that she was "acting strange." Plaintiff's mother advised the ER nurse that p la in tif f had been started on Trileptal two weeks earlier, and that she was also taking Ritalin a n d Clonidine. The emergency room physician instructed plaintiff's mother to stop giving p la in tif f the Trileptal and to follow up with Dr. Lopez the next week. (Doc. # 22, pp. 14-20). On the morning of Monday, January 3, 2005, plaintiff took plaintiff to Dr. Benak, c o m p la in in g of a fever which began two weeks previously. Dr. Benak saw plaintiff just b e f o re 11:00 a.m., and ordered blood work.1 0 About two hours later, at 12:58 p.m., plaintiff's

Plaintiff had a number of telephone conversations in January 2005 with Dr. Anne's nurse, Steven Singleton, about plaintiff's worsening behavior. Singleton spoke with Dr. Barefield, who authorized plaintiff's admission to the hospital, and Singleton met with plaintiff and her mother on January 5, 2005. He also spoke with Dr. Anne about plaintiff's care on January 20 and 27, 2005. (R. 370-80; see also R. 608 (nurse's typed signature block)). However, there is no treatment note from Dr. Anne during this period. Plaintiff had seen Dr. Benak or other physicians at the pediatric clinic in office visits on December 17, 20, 21, 27 and 30 with complaints of fever and cold symptoms; she was treated with medication for her cold symptoms and antibiotics. (R. 418-27). In the "history" portion of his 14
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mother called Dr. Anne's nurse, Steve Singleton, leaving a message that plaintiff's behavior w a s worse. When Singleton returned her call, plaintiff's mother said that it was plaintiff's f irs t day back at day care, and that plaintiff was having temper tantrums, and was irritable a n d aggressive. Plaintiff's mother reported that plaintiff had hit her.1 1 The following day, S in g le to n spoke with Dr. Barefield, who told him to admit plaintiff, "once she was seen by [ a nurse practitioner]." (R. 379-80). On January 5, 2005, plaintiff's mother met with S in g le to n . She reported that plaintiff was having sleep pattern disturbance and increasing irrita b ility, defiance, tantrums and violence toward plaintiff's mother and younger sister, in c lu d in g hitting and biting. She said that plaintiff was angry at her father during a visit over C h ris tm a s and had torn up his gifts. She stated that, now, plaintiff was showing aggression to w a rd her, toward plaintiff's sister, and toward her "peers at daycare." She indicated that p la in tif f was "isolating from peer group" and did not "seem to be herself." Plaintiff was a d m itte d to the hospital that day. (R. 377-78). The technician who performed plaintiff's intake screening observed, "Patient p re s e n te d [with] a calm affect. Denies knowing reason for hospitalization. Compliant [with] in ta k e screening." (R. 322). Plaintiff's admission note records her mother's complaint that s h e "has been more aggressive toward Mom and 21 mos sibling. Screams and attempt[s] to

treatment note for the December 27, 2004 office visit, Dr. Ramsey wrote, "[Plaintiff] has had several inpatient admissions for her behavior, and they are thinking about doing this again." (R. 420). The record does not indicate the identity of "they."
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Other portions of the nurse's note are illegible. (R. 379). 15

discipline sibling. Pt is easily-frustrated and aggravated. Mood swing[s] are more severe. P t does not sleep well. Awakens @ 2A and 3A every morning. Also pretends she [is] a p u p p y. Does not socialize [with] peer[s] her own age." The admitting physician, Dr. F r a n c is c a Mgbodile, diagnosed ADHD, ODD, and "rule out" mood disorder NOS and b ip o la r disorder; she assessed plaintiff's admission GAF score at 20. (R. 266-67). Nurse p ra c titio n e r Partridge performed a physical examination which was essentially unremarkable, a n d she noted that plaintiff was cooperative and had a "pleasant affect." When plaintiff's m o th e r escorted plaintiff to the inpatient unit, 5E, from the clinic, admitting nurse Wilson o b s e rv e d that plaintiff was calm and cooperative, but that her affect was "bland." At shift c h a n g e that evening, the staff found plaintiff under her desk; plaintiff said that she was s c a re d . After the staff comforted her, plaintiff was able to come out for "snacks and group." She was noted to be "a little slow to comply [with] participation during group," but was c o m p lia n t with "some prompting" and she exhibited no violent behavior; her behavior was " a g e appropriate." (R. 287). She awoke at 1:15 a.m. "very tearful" and crying out for her m o th e r. She went back to sleep an hour and a half later, after the staff reassured her. (R. 289). The following day, January 6th, plaintiff was "somewhat whiny" in the morning, but w a s "very bright and smiling a lot" by afternoon. She said that she "does not want to be a g irl[ ; she] wants to be a dog." She crawled around, acting like a dog, and appeared " u n c o m f o rta b le when made to sit up." She said that "a magician can turn her into a doggy."

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When a therapist met with plaintiff's mother that afternoon, plaintiff's mother stated that p la in tif f "goes into a state in which she acts like a dog to include barking, licking and s ta n d in g on all fours." The nurse noted that afternoon that plaintiff's mom could not get p la in tif f to do anything she asked; plaintiff "just said no." However, plaintiff exhibited no a g g re s s iv e behavior and no hyperactivity. (R. 291-93, 295). Dr. Mgbodile examined plaintiff that day, indicating "short attention span" and " d is tra c tib le " with checkmarks on a form recording plaintiff's mental status. She also noted " c o o p e ra tiv e play," "average IQ," "appropriate" relatedness, affect and mood, " u n re m a rk a b le " motor behavior and speech, and a "healthy" general appearance. (R. 2757 6 ). In handwritten notes, Dr. Mgbodile noted the complaints of plaintiff's mother regarding p la in tif f 's increasingly aggressive behavior and unstable mood, and her description of p la in tif f as an "easy child" until age 2 1/2 years, when her parents started having problems c o n c e rn in g visitation and custody. She wrote that plaintiff's physical examination and re v ie w of systems in the clinic were "within normal limits" and she observed good eye c o n ta c t, normal speech, cooperative behavior, no fidgeting, and happy mood. Other than " p o o r" judgment and "constricted" affect,1 2 Dr. Mgbodile noted no abnormalities. She d ia g n o s e d ADHD and mood disorder NOS, with "rule out diagnoses of ODD and bipolar d is o rd e r. (R. 281-83). Plaintiff was evaluated that same day by an occupational therapist. The therapist
12

In the form completed that same day, Dr. Mgbodile noted "appropriate" affect and mood.

(R. 276). 17

observed that plaintiff's gross motor coordination skills were age appropriate: plaintiff was a b le to fully ambulate between rooms on the unit. She was noted to "run/jump/climb on and o v e r furniture well" and was able to bounce, toss and catch a large ball with fair success. If s h e missed the ball, she ran after it. She was "[v]ery playful ­ enjoyed ro lli n g /b o u n c in g /c a tc h in g ball ­ laughing[.]" The therapist assessed plaintiff's motor c o o rd in a tio n , visual-motor and visual perception skills using the Peabody scale ­ plaintiff s c o re d "above age appropriate skills" for grasping and visual motor integration, at 71 months a n d 57 months, respectively.1 3 Her cognitive/memory skills were a "concern" ­ plaintiff had d if f ic u lty identifying simple shapes, mixing up the names and shapes. However, she was a b le to identify all body parts, farm animals and colors well. She was noted to be "unable t o count past 4/May be [secondary] to lack of exposure ­ willingness or [illegible]." The o c c u p a tio n a l therapist noted that plaintiff was very quiet and shy initially, needing e n c o u ra g e m e n t to talk to others, but that ­after she became more comfortable ­ she was more ta lk a tiv e and increased her social interaction with others, even during free play time. She " a c t[ e d ] like a dog at times" ­ sitting on the floor, panting and whining, crawling on the floor a n d pretending to lick objects ­ but she was "redirectable ­ able to return focus to task well." She acted like a dog again later, but the therapist stated that this was "playful ­ somewhat age a p p ro p ria te ­ just needs to be limited/redirected to certain times of day." The therapist noted th a t it "proved difficult at times to recall/identify situations that make her mad," but that she

13

Plaintiff was then approaching 53 months of age. 18

admitted to hitting, kicking and fighting when not getting her way or having to do something s h e does not want to do. The therapist observed that plaintiff's "[a]ttention span is good [ w ith ] structured activity ­ noted to sit or kneel in chair ­ not as fidgety as last admits (2004). Did well with listening/following directions overall. [Positive] impulse control noted ­ yet m a y be less impulse control noted [with] other task[s] ­ esp[ecially] those that may involve d a n g e r ­ i.e., fires ­ wanting to touch." The therapist reported that, overall, plaintiff's m o tiv a tio n and participation levels were good, her attention span was increased, and she was h a p p y and playful after "warming up" to others. She noted that plaintiff "does have poor in s ig h t/re c a ll to bks [secondary] to age" but "age appropriateness noted." She stated, "Very in te ra c tiv e [with] peers noted at playtime." (R. 280). That evening, after quiet time, the nurse told plaintiff that "a puppy could not come o u t of her [room], but she wanted [H. (plaintiff's first name)] only to come out." She wrote, " A n d so be it. [Plaintiff] came out and ate snack, no more puppy tonight." That night, p la in tif f slept throughout the night, for nine hours, with no problems. (R. 291-93, 295). T h e following morning, January 7th, the nurse wrote that plaintiff was "[v]ery bright th is AM, smiling + happy. Sitting like little girl in chair." Dr. Mgbodile evaluated plaintiff n o tin g that she had "good eye contact," her speech was normal, her mood happy, her affect b rig h t, and her thought process and content "goal directed." Her only negative observations w e re that plaintiff's insight and judgment were "poor," and that she exhibited "[Positive] g ra n d io s ity, thinks she can be a `big doggy[.]'" She diagnosed ADHD by history, mood

19

disorder NOS and "rule out" bipolar disorder, and prescribed Depakote. In plaintiff's group s e s s io n that day, the occupational therapist noted that plaintiff demonstrated "[g]reat eye h a n d coordination" in performing a bead task, completing a "small dog design." (R. 284). That afternoon, plaintiff was noted to have a "[V]ery Bright, Happy affect" and "[g]ood peer in te ra c tio n ," but she occasionally pretended to be a puppy and was "redirected." That e v e n in g , nurse Wilson observed that plaintiff was playful with her mother, but was slow to f o llo w directions while her mother was on the unit. The nurse's shift change note indicated th a t plaintiff was "pleasant and cooperative. She was slow to comply and needed firm limits e ttin g ." She was "tearful after snack," and had to be persuaded to stay focused and not b e c o m e homesick. She went to sleep at 9 p.m.; she awoke briefly during the night, but was a b le to return to sleep without a problem, and slept for almost nine hours. (R. 284, 295-99). D r. Mgbodile evaluated plaintiff again the next morning, January 8th, noting fair eye c o n ta c t, normal speech, happy mood, a "brighter" affect, and that plaintiff was "calm and c o o p e ra tiv e ." Plaintiff told her, "I don't want to be a doggy, my mom will get me a puppy." Dr. Mgbodile diagnosed mood disorder NOS, "rule out" bipolar disorder, and ADHD "by [ h is to ry]." Plaintiff participated in group counseling later that morning; the counselor noted th a t she was "interactive and appropriate" and noted "no aggression or self-harm." In the a f te rn o o n , the nurse noted a "flat affect" and that plaintiff "completed ADL's this shift with a s s is ta n c e ." However, she noted that plaintiff participated in all unit activities, was "calm a n d compliant," "displayed appropriate peer behavior" and responded well to "redirection."

20

The nurse observed that plaintiff became bright in the afternoon when her mother visited. She ate well and slept for nine hours. (R. 299-303). T h e next day, on her fourth full day in the hospital, the counselor again noted plaintiff to be "appropriate and interactive" in group therapy, with "no aggression or self-harm noted." Dr. Mgbodile spoke with the nurse, who reported that plaintiff had exhibited no behavior p ro b le m s and a bright affect, and that plaintiff had a good visit the previous day with her m o th e r, exhibiting "no tantrums as before." The nurse reported no hyperactivity, fidgeting, o r depressed mood, and "[n]o mention of wanting to be a doggy, however she now wants to o w n a puppy." Dr. Mgbodile noted no abnormalities in plaintiff's mental status examination o t h e r than a "constricted" affect and "poor" insight and judgment, and observed, "[No] d e lu s io n of being a doggy." She discontinued plaintiff's morning dose of Ritalin, continued h e r on Clonidine and Depakote, and diagnosed mood disorder NOS and "rule out" bipolar d is o rd e r. Plaintiff lost two behavior "stars" that afternoon ­ one for arguing when she was a s k e d to do something and another for being slow to comply with the staff's request.1 4 The n u rs e 's note indicates that she does not "take responsibility for behavior." She was asleep b y 9:00 p.m. and had an uneventful night, sleeping for nine hours. (R. 303-07). T h e following day, on January 10th, Dr. Mgbodile observed no abnormalities during p la in tif f 's mental status examination and noted that she "seems to be doing well on Of the 114 behavior "stars" available to plaintiff (one for each 30-minute period of the five complete days she spent in the hospital, other than sleeping time and time she spent on leave of absence with her mother), plaintiff lost only six. (R. 349-53). One of these was for crying due to homesickness after her mother's visit to the unit. (R. 350). 21
14

depakote." She diagnosed mood disorder NOS, "rule out" bipolar disorder, and "[history] o f ADHD." She discontinued the Ritalin, continued the Depakote and granted plaintiff 8h o u r passes for that day and the next.1 5 In her third occupational therapy session, plaintiff w a s again observed to have good eye-hand coordination, to be "really focused/taking time [ w ith ] task[,]" to be very compliant, and in a happy mood. The unit nurse's note indicates th a t plaintiff "attended group but was qued [sic] for playing and not paying attention." She c o m p le te d her school assignments and "was compliant with the teacher." She did not d e m o n s tra te any violent behavior and, while she was slow to comply at times, she was " e a s ily redirectable." Plaintiff's counselor observed that plaintiff had "not exhibited any n o te w o rth y impulsivity, hyperactivity or aggression." Plaintiff left the hospital with her m o th e r and went to the zoo, returning to the unit at 6:45 p.m. She "displayed none of her ta rg e te d behavior." After her return, she "attended unit activities but was unable to focus on a c tiv itie s ," and she had to be "redirected for crawling on the floor and `barking' like a dog." She was asleep at 11:00 p.m. and slept for nine hours. (R. 285, 307-11). T h e next day, January 11th, plaintiff's therapist observed that she had been "agea p p ro p ria te and compliant," and that the plan was to discharge her "if all goes well" on her le a v e of absence with her mother. Dr. Mgbodile noted plaintiff's "difficulty following in s tru c tio n s " but that she was "otherwise normal" and had slept for nine hours the previous n ig h t. In plaintiff's mental status examination, Dr. Mgbodile noted no abnormalities other In her separate written order entered on that day, Dr. Mgbodile authorized passes of "6 hrs each day" instead of eight hours. (R. 317). 22
15

than "poor" insight and judgment; plaintiff was diagnosed with "Bipolar D/O NOS." At p la in tif f 's fourth and final session with the occupational therapist, plaintiff reported feeling h a p p y, stating that she liked to color and "make doggies," referring to the bead activity. She d e m o n s t r a te d a good attention span and eye-hand coordination, and was able to identify s im p le feelings (happy, sad, mad, scared, silly) by visual cues. Early that afternoon, plaintiff w a s observed on the unit "playing in age appropriate manner [with] peers and toys" and she w a s "able to following unit rules." Upon return to the unit after plaintiff's leave of absence, h e r mother reported that it "went well." Plaintiff was discharged to home, in her mother's c a re , with prescriptions (Depakote, 250 mg, to be taken twice a day, and Clonidine, 0.1 mg, to be taken at bedtime) and with appointments to follow up with Stephen Bell for therapy in tw o weeks and with Dr. Anne in five weeks. (R. 264-65, 285, 311-13, 344). In plaintiff's d is c h a rg e summary, Dr. Mgbodile noted that plaintiff initially presented as "calm and c o o p e ra tiv e ," that "[b]y the end of hospitalization she displayed consistent improvement in m o o d , affect, and behavior," her "aggression had resolved," her "[s]leep was stable," and she h a d exhibited no adverse side effects to medication. Dr. Mgbodile's discharge diagnosis was " [ b ]ip o la r disorder, not otherwise specified." (R. 264).16 O n January 17, 2005, plaintiff's mother took her to see Dr. Benak, reporting

In the discharge summary, Dr. Mgbodile notes ­ incorrectly ­ that the occupational therapist had assessed "slightly delayed" fine motor skills, visual motor skills, and visual perceptual skills. (R. 264; see R. 279 (summary of OT's assessment, indicating under the heading "Patient's Strengths," "age appropriate" gross motor skills, fine motor skills, visual motor skills and visual perceptual skills), see also R. 280 (observing that plaintiff scored "above age appropriate" skills for grasping and visual motor integration)). 23

16

symptoms of vaginal pain, frequent urination and headache which had begun "approximately o n e week ago." Dr. Benak noted that plaintiff appeared to have normal activity and energy le v e l and was in no apparent distress; he noted no abnormalities upon physical examination. He ordered a complete urinalysis. (R. 413-14). On January 20, 2005, plaintiff called Dr. A n n e 's nurse, Steve Singleton. She told him that plaintiff was "wetting herself up to six tim e s a day" and her "behavior was not any better." She said that, while plaintiff's mood was " m a yb e " somewhat better and she had exhibited no "dog-like activity," she was still "hyper." Plaintiff's mother told Singleton that plaintiff's pediatrician had ruled out a urinary tract in f e c tio n and other medical reasons as possible causes for plaintiff's problems with urinating, a n d that the pediatrician thought that Depakote was causing the problem. Singleton contacted D r. Anne, who was "not sure [that] Depakote [was] causing [the] problem." Dr. Anne wanted to know what lab tests the pediatrician had conducted. Singleton spoke with Dr. Benak's n u rs e , who said that Dr. Benak had not ordered any blood work done other than "sed rate," a n d that he had done a urinalysis. On Dr. Anne's verbal order, Singleton faxed to Dr. B e n a k 's office an order for blood testing for Depakote level, CBC with differential and p la te le ts , and a liver function test. (R. 372-73). On January 26, 2005, Singleton called plaintiff's mother; she reported that plaintiff's b e h a v io r was "better" and that her urinary frequency had decreased. On January 27, 2005, p l a i n t i f f 's mother took her to Children's Hospital for a sleep study. Singleton noted that p la in tif f "appeared calm [and] behaved," and was "[f]ollowing directions 1st cue ­ did not

24

appear hyperactive." Dr. Anne wanted the test for Depakote level repeated after the sleep s tu d y, so Singleton gave plaintiff written orders for blood work and directed her to the lab. Plaintiff's Depakote level was reported to be 4.3, below the normal therapeutic range of 501 0 0 mcg/ml. Dr. Anne told Singleton to have plaintiff's mother "continue to hold Depakote" u n til her office visit on February 19th. Singleton called plaintiff's mother and left her a m e s s a g e asking her to call him back. (R. 370, 397-98). At the overnight sleep study on January 27th, plaintiff was reported to be on no m e d ic a tio n s . (R. 391). Dr. Makris, the sleep specialist, indicated in a letter to Dr. Benak that p la in tif f had poor sleep efficiency, sleeping 429 minutes out of 617 recorded minutes. She f e ll asleep immediately but was awake between 1:30 and 3:45 a.m. Her sleep was "otherwise u n re m a rk a b le ." Dr. Makris stated, "Mom gives [plaintiff] clonidine at bedtime which typ ic a lly puts her to sleep without difficulty. One of the issues is that the clonidine wears off[ ] around 1:00 in the moning. We did recommend that she give a trial of clonazepam instead o f clonidine as this has a longer half life. She does have an adequate sleep hygiene." (R. 3 8 9 -9 6 ). On February 25, 2005, plaintiff's mother reported to psychologist Dr. Jordan that p la in tif f was "doing fine . . . from May until December" but that her behavior had declined a f te r plaintiff started back to day care in January. Dr. Jordan recommended that plaintiff's m o th e r cut back plaintiff's day care to two hours, "thinking that most likely [plaintiff] is h a v in g some anxiety, as well as possibly some jealousy, as sister is not having to be in

25

daycare right now." (R. 410). In a visit the following day to pediatrician Dr. Brown for c o m p la in ts of cold symptoms, plaintiff was still noted to be on clonidine. (R. 408). On March 11, 2005, plaintiff's mother told Dr. Jordan that plaintiff was "doing a little b it worse in terms of her hyperactivity," but that the reduction in day care hours "seemed to h a v e decreased her anxiety[.]" Dr. Jordan noted that plaintiff then had "almost all m e d ic a tio n s out of her system and is looking much more hyperkinetic" and that she was " h a v in g greater difficulty with some of the tantrum components." Dr. Jordan recommended in c re a sin g plaintiff's day care hours in increments of "1 hour every 2 weeks with [plaintiff] k n o w in g what is taking place." (R. 407). Plaintiff returned to Dr. Anne the following week, o n March 17, 2005, reporting problems for the "past few weeks." She stated that plaintiff h a d been "off all medication for past [one month]." She reported that plaintiff did "fairly w e ll" after her discharge from the hospital and that, after she stopped the Depakote and c lo n id in e , she "did well for [a] few weeks." Later in the visit, she reported that plaintiff had b e e n "more irritable [and] moody" for the past one month. Plaintiff's mother reported that p la in tif f "is fine as long as she gets what she wants," but that she wants to be the center of a tte n tio n and that plaintiff "starts hitting her" if she does not give plaintiff attention. She re la te d that plaintiff has "mood swings," and that she has them "when she doesn't get a tte n tio n and also if she does get attention." Dr. Anne's mental status evaluation notes in d ic a te no problems, and that plaintiff "played [with] toys" and "was great during session." Dr. Anne prescribed Risperdal. (R. 570). In his note regarding plaintiff's therapy session

26

two weeks later, on March 30, 2005, Dr. Jordan indicated that plaintiff's psychiatrist in B irm in g h a m had started plaintiff on Risperdal, and "[s]he has had a pretty nice response to th is." (R. 405). The following day, pediatrician Dr. Ramsey noted that "[s]he was seen in B irm in g h a m by Dr. Sirlata [sic]. She was began [sic] on Risperdal. She is doing much better. Daycare is commenting on how good she is doing now." Plaintiff's mother reported "no p ro b le m s with the medication" but Dr. Ramsey indicated that he believed that plaintiff's r e p o r t e d increase in urinary frequency was a side effect of plaintiff's medication. He re c o rd e d , under her diagnosis of bipolar affective disorder, that her status was "[i]mproved." (R . 403-04). Plaintiff returned to Dr. Anne for follow-up on April 14, 2005. Her mother reported th a t she was "80% better [with the] medication," that her sleep and appetite were better, she w a s having "more good days than bad days" and had been "less modd [and] less irritable." She stated that plaintiff was "[d]oing well in day care [with] no behavioral problems." She s a id that plaintiff's teachers stated that she is "much better," can "focus on work" and "can re m e m b e r things better." Dr. Anne noted no abnormalities in plaintiff's mental status e v a lu a tio n . She diagnosed "mood D/O NOS." Plaintiff's mother reported that plaintiff was h a v in g no side effects about which she was concerned at the present time and stated that she " w a n ts [plaintiff] to continue same medications in same dose." Dr. Anne again prescribed R is p e rd a l and advised plaintiff's mother to return in two months. (R. 569). T w o months later, on June 13, 2005, plaintiff's mother took her to the pediatrician,

27

complaining that "Pt has been falling down, being off balance[,] started about 1 month ago. Thought it may be her meds. Started Benadryl to counter[]act it per B'Ham doctors. But she w a s no better. Pt also [complains of] headaches for 3-4 months. Going to B'Ham Thursday, m o m wants her checked out to make sure she is ok before they change her meds. She is g o in g to see psychiatry there." Dr. Ramsey observed that plaintiff's activity appeared to be " n o rm a l," and he noted no abnormalities in plaintiff's physical examination and "no p ro b le m s with [the] neuro exam today." He stated, "I would like to see if they change her m e d ic a tio n . If so, then observe. If not, then we will get MRI of brain to include posterior f o s s a ." (R. 609-10). At her appointment with Dr. Anne on June 16, 2005, plaintiff's mother said that p l a i n t if f was doing "`great' till 3 weeks ago," but that over the past three weeks she had " s ta rte d having problems like hitting teacher [and] punching other kids." She said that p la in tif f had cried for an hour when she could not get her shoes on properly, that she would n o t listen to her, and that she "wants everything her way." Plaintiff's mother told Dr. Anne th a t plaintiff "[h]as been clumsy, falling [and] tripping while walking[.]" and that she had b e e n having problems with her gait "over [the] past 2 months . . . like falling [and] tripping o v e r about 10x a day and everyday." Dr. Anne noted that plaintiff was "seen by PMD for th e gait problems and is thinking to get MRI. [Mom] said she gave [plaintiff] some Benadryl to see if her gait problem will go away and it didn't." In her mental status examination, Dr. A n n e observed that plaintiff was casually dressed and cooperative, her affect was euthymic,

28

her mood fine, her thought process logical, her cognitive function grossly within normal l i m its and her insight and judgment fair. She wrote that plaintiff "played [with] toys" and " [ w ] a s quiet," and that she talked about her new day care and teacher. Dr. Anne re c o m m e n d e d inpatient neurological evaluation for plaintiff's problems with gait but p la in tif f 's mother was "not keen on it," stating that she did not want to put plaintiff in the h o s p ita l. Dr. Anne proposed stopping the Risperdal to see how plaintiff's gait progressed, b u t plaintiff's mother said, "I don't think I or the daycare can deal [with] her behavior [ w i th o u t ] Risperdal and I don't want her behavior to get worse." Dr. Anne recommended th a t plaintiff's mother try decreasing her Risperdal to 1/2 of a 25 mg tablet and to "see how h e r [symptoms]/gait problem progresses [illegible]." Dr. Anne wrote that plaintiff's mother w a n te d to "go back to PMD to get [outpatient] neurological evaluation" and asked for a letter to her doctor explaining the treatment plan. Dr. Anne told plaintiff's mother to call C h ild re n 's Behavioral Health and take plaintiff to the emergency room or her primary care d o c to r if her symptoms got worse. (R. 567-68). Singleton signed and faxed a letter to Dr. B e n a k that day, stating: D r. Anne saw [plaintiff] in the clinic today and reduced the Risperdal to 0.25 m g 1/2 tablet at [bedtime] to see if this helps with the gait/balance problems. Dr. Anne agrees with your recommendation, as reported by Ms. Branning, to d o a complete Neurological work-up on [plaintiff]. Dr. Anne will return to the c lin ic on 6/23/05, if you have any questions please call 205-939-9193. (R . 608). Dr. Ramsey ordered a brain MRI, which was performed on June 23, 2005; it was u n re m a rk a b le . (R. 607).

29

On August 17, 2005, plaintiff returned to her pediatrician's office for her five year " w e ll child" check-up. She was still noted to be on Risperdal. The examining nurse p ra c titio n e r indicated, under the heading "Behavioral/Developmental" that plaintiff "[s]kips, w a lk s on tiptoes, jumps; names colors and coins; dresses and undresses without supervision; k n o w s nursery rhymes and songs; recognizes most of the alphabet; draws person with head, a rm s and legs." She stated that plaintiff "`appears' to have normal activity, no change in a p p e tite , sleeping normally." She noted no abnormalities in plaintiff's physical examination a n d did not reference any complaints or concerns from plaintiff's mother. (R. 597-99). A m o n th later, on September 14, 2005, plaintiff returned and saw Dr. Benak; her mother was " c o n c e rn e d about weight gain" but knew that it was a "side effect of the medicine." (R. 595). Plaintiff had an appointment with Dr. Anne two weeks later, on September 28, 2005. Plaintiff's mother said that plaintiff was having problems at school, and "[p]er teacher [ p la in tif f ] is in her own world, been disruptive in class, been disrespectful towards teacher, h a v in g difficulty to stay on task." Plaintiff's mother gave Dr. Anne "a note from teacher s ta tin g how pt was behaving in school."1 7 She reported that plaintiff has good and bad days a t home and has been "moody [and] feeling frustrated." Plaintiff told Dr. Anne that she was " le a rn in g to read at school." Plaintiff's mother said that she was giving plaintiff 25 mg of R is p e rd a l three times a day. In plaintiff's mental status examination, Dr. Anne noted no a b n o rm a litie s . She diagnosed mood disorder NOS and added a diagnosis of ADHD NOS. The referenced note from plaintiff's kindergarten teacher is not included in Dr. Anne's records, and was not provided to the ALJ. 30
17

She prescribed Risperdal, but told plaintiff's mother to decrease the number from three times a day to once. She also prescribed Ritalin, "[b]ased on reports from teacher that [plaintiff] is disruptive in class and not paying attention." (R. 564-66). A t her appointment on October 28, 2005 with Dr. Anne, plaintiff's mother reported th a t plaintiff was "not doing good." She said that plaintiff had been "refusing to do things, n o t able to complete work, fidgety, constantly busy doing something." Dr. Anne wrote, "Per te a c h e r [plaintiff] is disrupting the class, not focusing, beating on her [illegible] has difficulty to complete tasks." Plaintiff's mother reported that she was compliant with medication, with n o side effects. Dr. Anne noted "No [history] of aggressive behavior but has been getting [illegible] [with] sister." In her mental status examination, Dr. Anne noted that plaintiff was c o o p e ra tiv e , her affect euthymic and her mood fine, but that she was disruptive, loud and d if f ic u lt to redirect. She was "touching everything in the room" and interrupted her mother s e v e ra l times while her mother was talking. Dr. Anne diagnosed mood disorder NOS and A D H D NOS and adjusted plaintiff's medications. She prescribed an increased dosage of T rile p ta l and discussed trying plaintiff on another medication due to her hyperactivity and d if f ic u lty focusing in school. She spoke with plaintiff's mother about its side effects, in c lu d in g mood changes, and told plaintiff's mother to call if plaintiff's symptoms got worse. (R. 588).1 8

Dr. Anne's note includes the name of the medication, but her handwriting is illegible. Dr. Anne did note that she "Reviewed report from teacher. Copy in [illegible]." However, the teacher's report Dr. Anne reviewed at this office visit also was not provided to the ALJ. (R. 588). 31

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Two weeks later, on November 12, 2005, plaintiff returned to her pediatrician's office w ith complaints of upper respiratory symptoms. She was treated by CRNP Wakefield who n o te d , under "History," that plaintiff's behavioral problems were "better." (R. 591). Two w e e k s after that, a nurse practitioner from Dr. Anne's office, Brittany Rigsby, sent a letter to the attention of plaintiff's mother, and directed "To whom it may concern." The letter s ta te d : I am writing this letter to give information about treatment for [plaintiff]. She is a patient of Dr. Srilata Anne, M.D. She is currently being treated for Mood D is o rd e r, Not otherwise specified and Attention Deficit Hyperactivity D is o rd e r, Nos. We would recommend that [plaintiff] have her own bedroom a n d not have to share one with her 2 yo sister. [Plaintiff] can be aggressive, irrita b l e and has significant mood swings. It would be safest for her not to s h a re a room with a child as young as her sister. Please call if you have any q u e s tio n s . H e r current medications are: · Trileptal 300 mg BID · Clonidine 0.05 mg q hs (R . 587). At the administrative hearing on January 11, 2006, plaintiff's mother testified as f o llo w s : P l a i n t i f f is in kindergarten. She lives with her mother and her two-year-old sister, R ile y. She is doing "pretty good" academically but, behaviorally and socially, she is having a rough time. At home, she has good days and bad days. She is on medication but it does n o t do very much. She still has sudden outbursts or panic attacks over nothing. She will yell a t her sister or throw fits over nothing. When she has a panic attack, she will start screaming 32

and yelling. Sometimes, she kicks her mother ­ for some reason, she tends to "take it out" o n her mother. Other times, she wants to be in her room alone. For this reason, her family is having to move to a bigger home to allow her to have her own room. Plaintiff's moods w e re "getting out of control" and plaintiff's mother spoke with the psychiatrist who told her th a t a child like plaintiff needs her own space. The psychiatrist recommended that plaintiff h a v e her own room. She wrote a letter so that plaintiff could get approval from housing to g e t another apartment. There is a lot of tension between plaintiff and her sister. They fight a lot, and plaintiff is usually the one who instigates the problem. Plaintiff does not like a n yb o d y "messing with her stuff." Her medication has "taken the edge mostly off" of her outbursts and, right now, it is d o in g "fairly well," better than nothing at all. Because of her medication, she is losing w e ig h t, has trouble sleeping, and has trouble with her blood pressure. Plaintiff's mother has to monitor plaintiff's blood pressure and has been doing so ever since plaintiff has been ta k in g Clonidine, "off and on for about two years." They have been seeing Dr. Jordan in D o th a n "as [they] need him, like any time that [they've] had . . . drama or anything that goes o n [ .]" They have not had to go to Dr. Jordan lately because plaintiff is "doing okay." There is not a lot Dr. Jordan can do as far as counseling because he doesn't know what to do b e c a u s e of plaintiff's age. They go to plaintiff's psychiatrist in Birmingham in order to keep p la in tif f stable on her medication. Plaintiff does not have any physical limitations. She does h a v e seasonal allergies which affect her in the winter. Plaintiff is "hyper" and cannot get

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focused and it affects every aspect of her life. She is easily distracted and has problems s ittin g still. She is forgetful and talks a lot. She has problems waiting her turn and often in te rru p ts. P la in tif f has mood swings, and her teacher also "seems to notice them." Her OCD has " n o t gotten . . . severe. . . . It's not like a severe case." She has to have her belongings, like h e r baby dolls and blankets, a certain way. Sometimes she gets frustrated and cries for no re a s o n . Plaintiff withdraws from her mother, but she does not want her sister to be away f ro m her for long. She loves school and does not like to be out of school for very long. She d id not do well over the holidays; she wanted to be at school. She likes a structured e n v iro n m e n t. S h e is okay when her father visits, but she worries after he leaves about whether he w ill be there the next day and, when he is not, she "freaks out." She does not understand why h e is not there. After her father leaves, her problems are worse for about two weeks "and th e n it starts to mellow out and be back to . . . the way it was." (R. 624-33). T h e record includes no treatment notes from Dr. Anne between October 28, 2005 and July 31, 2006, nine months later.1 9 (Exhibit AC-1). At the July 2006 visit, plaintiff's mother

The dates written by Dr. Anne on the treatment notes plaintiff's counsel sent to the Appeals Council look like "7/31/08" and "10/11/08," rather than "06." (See R. 611, 613). However, the records bear a facsimile transmission legend at the top of each page indicating the date on which they were sent by plaintiff's counsel to the Appeals Council ­ that is, on May 31, 2007. Text within the treatment notes also indicate that the correct date is 2006; the July 31 note states that plaintiff "will be starting 1st grade," and Singleton's annotation on the record following Dr. Anne's October 11 treatment note is dated "10/13/06." (R. 612, 613). 34

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and Dr. Anne discussed adjustments in plaintiff's medication. Plaintiff's mother reported th a t plaintiff had been having problems with focus and had also been getting "hyper" after lu n c h tim e . She said that plaintiff's sleep was "still not good," but that plaintiff went to sleep a t 10 p.m. and "wakes up around 7 AM." She reported no history of attempts by plaintiff to h u rt herself or others, no aggressive behavior, no history of vocal tics, and that plaintiff was n o t "clapping hands like before." Dr. Anne noted no abnormalities in plaintiff's mental s t a t u s evaluation. (R. 613). Plaintiff next returned to Dr. Anne on October 11, 2006, re p o rtin g that she "knows how to spell now." Plaintiff's mother said that plaintiff's teacher re p o rte d that "[Plaintiff] makes big deal over little things