Burton v. Astrue

Filing 33

MEMORANDUM Opinion and Order Plaintiffs motion for summary judgment is granted, the governments motion is denied, and this case is remanded for further proceedings. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 5/8/2015: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
DOROTHEA BURTON
on behalf of L.V., a minor
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 13 CV 50042
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Dorothea Burton brings this action under 42 U.S.C. § 405(g), seeking remand of
the decision denying her son social security disability benefits based on his attention deficit
disorder. For the reasons set forth below, the decision is remanded.
BACKGROUND
On July 3, 2006, Dorothea Burton, on behalf of her minor son L.V., filed an application
for benefits as a disabled child under Title XVI of the Social Security Act. R. 15. On April 30,
2009, a hearing was held before an administrative law judge (“ALJ”). R. 15. Plaintiff was
represented by counsel. L.V. was then 12 years old and in the fifth grade.
At the hearing, Dr. Kathleen O’Brien, a medical expert, testified that L.V.’s attention
deficit hyperactivity disorder (“ADHD”) did not functionally equal a listing because his
symptoms were “variable” depending on whether he was “treatment-compliant.” R. 677.
L.V.’s mother testified next. She testified that she lives with L.V. and sees him every
day. She started seeking help for him when he was in kindergarten, although he was not formally
diagnosed with ADHD until the second or third grade. R. 696. At that time, she was advised to
put him on medication, but resisted initially. R. 697 (“Because I wanted him to be a normal

child. I wanted him to be functioning as any other child would be.”). She was actively involved
in this decision-making process, talking with school administrators every other month and sitting
in the classroom with L.V. R. 699. Although she was concerned about side effects of the ADHD
medication, she eventually agreed that he should take it. She testified that he started taking it in
the second grade. R. 706. Initially, “the first couple of weeks,” he was given the medication at
home, but then would spit it out on the bus ride to school. When the school figured this out,
everyone agreed that the school nurse would give him the medication when he first got to school.
R. 703-04. If there was a substitute nurse, L.V. would sometimes “spit the pill out or get rid of
the pill,” but then the school would call and tell her he did not get the medicine. R. 708.
Still, she continued to worry about the side effects she was observing: “It’s like he’s on
drugs, like a zombie. He’s just slow-motion, drags, and he’s not himself. He’s a totally different
child.” R. 699. At the same time, she recognized that the medication “helped a lot.” R. 700. She
took him off the medication in the summers and when he was not in school. She explained:
To get him – because they say that if he take it all the time it could mess up his
kidneys; his urine, the way he goes to the bathroom; and his – taking away his
appetite. That’s the only way I get [L.V.] to eat, if I take him off the medicine.
When [] he’s on the medication, he doesn’t eat. That’s another reason why he’s
underweight also.
Id. She described the ongoing problem of getting L.V. to eat enough:
I try to give [him] applesauce, and I have snacks around the house, and I try to
make sure – once the medicine is calmed down around – about 9:00 or 10:00 at
night, that’s when [L.V.] wants to eat. And then they gave me another medication
to give him to go to sleep. So after I make sure that he eats, I give him the other
medication so he can go to sleep.
R. 702-03. 1

1

The ADHD medicine is Focalin, and the sleep medicine is Clonidine. R. 703, 705.
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The mother also testified that L.V. is distractible and “does stuff to get attention” such as
screaming. R. 711. She has to watch him when he goes to the store because he will steal things if
not on the medication. R. 712. He punches his sister when they get in arguments. R. 714. He
was in the fifth grade but his math and reading were at second grade level even though he had
individual tutoring. R. 713.
L.V. testified that he took his medication once a day from the nurse and always took it.
The ALJ seemed to question this assertion in the following line of questioning:
Q.

Now, have you ever – ever, ever, ever – put the medicine in your mouth,
pretend that you take it, and then, like, spit it out later and not take it?

A.

No.

Q.

No? You always take your medicine?

A.

Yes.

R. 717-18. LV testified that the medication “slow[ed] him down” and that he felt that was “a bad
thing” because he would forget things like his folder. R. 718.
On May 20, 2009, the ALJ issued his first decision. In finding L.V. did not have any
“marked” limitations in the six domains, the ALJ relied heavily on Dr. O’Brien and repeatedly
referred to the failure to take his medication and asserted that L.V. was much better when on the
medication. R. 35-36; see also R. 37 (“most of his academic difficulty is secondary to his lack of
sustained compliance with prescribed treatment”). The ALJ also referred several times to the
mother’s reluctance in giving him medication. See R. 37 (“she balked at teachers’
recommendations that the claimant receive medical treatment”); id. (in the summer “she
suspends his treatment with his prescribed medication”).
After the decision was issued, plaintiff obtained new counsel who filed a letter to the
Appeals Council arguing for a remand because the ALJ failed to consider, among other things,
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questionnaires completed by two of L.V.’s teachers in May 2009. Based on this and other
arguments, the Appeals Council remanded the case to the ALJ. R. 48-49.
On May 13, 2011, the same ALJ held a second hearing. This hearing was a little over two
years after the first one, and L.V. was then in the 7th grade. A new medical expert (Dr. Larry
Kravitz) testified that L.V. did not have any marked difficulties in the six domains. Like Dr.
O’Brien, Dr. Kravitz noted that L.V. performed better in school while on medication. He found
that the domain of interacting and relating to others was the most significant area of impairment
because some evidence suggested that L.V.’s “behavior problems were escalating again” after
some improvement. R. 619. Dr. Kravitz agreed that the ADHD medication generally has the
side effects of loss of appetite and sleep problems, but would not elaborate any further because,
he said, “I’m not a psychiatrist.” R. 643. Dr. Kravitz was asked about an incident in December
2010 when L.V. stole something from a Wal-Mart: “The interventions have not been [] 100percent. The mother’s testimony is that it continues to be a problem. [] I don’t doubt that it would
continue to be a problem in the future, as well.” R. 653-54. Dr. Kravitz conceded that the mother
would not be able to ever let L.V. go to the store by himself but he thought that this was a
relatively small thing, stating that “the only consequence, in my opinion, is [] she needs to be
with him in the store so he doesn’t steal.” R. 654. He pointed out that L.V. had been described by
some “as a sweet child” and “has a number of friends.” Id.
The mother testified that L.V. was still receiving special education services in three of his
classes and was working with a social worker, a teacher, and a counselor. R. 622. She stated that
the medication “slows his thinking” and that L.V. can “stay mostly controlled when he [is] on the
medication.” R. 622. She testified that she helps LV with his homework every time he brings it
home. Id. L.V. was kicked out of summer school in 2009 because he stole an item from another

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student’s book bag. R. 623. He was not then on medication. She explained why she stopped the
medication in the summers:
Because in the summertime I try to take him off the medication so he can grow
and – so he can grow and try to get more focused. But that’s the only reason why
I took him off, because the medication takes his appetite away. And I want him,
like, to try to gain his weight and try to grow, because the medication stops his
growth, and it don’t let him eat – takes his appetite away.
Id. She testified that the medication continued to make L.V. nervous and irritated. R. 628. His
medication had been adjusted several times to try to lessen these side effects. Id.
L.V. testified that he sometimes had trouble understanding things at school. R. 657. His
mom and sisters sometimes helped him with homework. R. 659. He denied having any problems
focusing on his homework. R. 658. He stated that he has problems with other students at school,
“[n]ot getting along, saying things that are rude.” R. 659. These problems emerge when he gets
teased about his small size. R. 660. He does not like taking the medication because “it makes
[him] feel weird.” R. 661.
On November 17, 2011, the ALJ issued a second decision, again finding plaintiff not
disabled. In this decision, like the first one, the ALJ relied on the medical expert to find that L.V.
was not marked in any of the six domains. The ALJ continued to believe that failure to take the
medication was the key variable in explaining L.V.’s problems.
DISCUSSION
A reviewing court may enter judgment “affirming, modifying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). If supported by substantial evidence, the Commissioner’s factual findings are
conclusive. Id. Substantial evidence exists if there is enough evidence that would allow a
reasonable mind to determine that the decision’s conclusion is supportable. Richardson v.

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Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the
decision by reconsidering facts or evidence, or by making independent credibility
determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the Seventh Circuit
has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593
(7th Cir. 2002) (a “mere scintilla” is not substantial evidence). If the Commissioner’s decision
lacks evidentiary support or adequate discussion, then the court must remand the matter. Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Moreover, a reviewing court must conduct a critical
review of the evidence before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534
F.3d 663, 665 (7th Cir. 2008). Indeed, even when adequate record evidence exists to support the
Commissioner’s decision, the decision will not be affirmed if the Commissioner does not build
an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d
539, 544 (7th Cir. 2008).
To determine whether a child under the age of 18 is disabled within the meaning of the
Social Security Act, the ALJ applies a three-step evaluation. 20 C.F.R. § 416.924(a). The ALJ
must inquire whether: (1) the claimant is engaged in substantial gainful activity; (2) the claimant
has a medically determinable impairment that is “severe” or a combination of impairments that is
“severe”; and (3) the claimant has an impairment or combination of impairments that meets or
medically equals or functionally equals a listing. Id. To functionally equal a listing, the
impairment must cause a “marked” limitation in two domains of functioning or an “extreme”
limitation in one of them. 20 C.F.R. § 416.926a(a). The domains are: (1) acquiring and using
information; (2) attending and completing tasks; (3) interacting and relating with others; (4)
moving about and manipulating objects; (5) caring for yourself; and (6) health and physical wellbeing. 20 C.F.R. § 416.926a(b)(1)(i)-(vi).

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In this appeal, plaintiff raises two arguments. The first is that the ALJ failed to consider
the two teacher questionnaires from May 2009 showing that L.V. had marked limitations in
several of the six domains. The second is that the ALJ improperly discounted L.V.’s mother’s
testimony. The arguments overlap in that they ultimately both relate back to the ALJ’s
overarching rationale that L.V. did not consistently take his ADHD medication and that when he
began doing so, his symptoms improved to the point that he was not disabled.
This Court will begin by considering the two teacher questionnaires, which were
submitted after the first hearing and which the Appeals Council argued required a remand.
Because they are central to plaintiff’s main argument, the Court will describe them in detail. 2
Both are dated May 8, 2009, and both are a standard form questionnaire. The form asks the
teacher to answer a general yes-or- no question about whether the student has “problems” in each
of the domains. Then, under each domain, there are specific questions requiring the teacher to
circle a number from 1 (“No problem”) to 5 (“A very serious problem”). The form contains
several places for written comments and a final section asking about medication.
Theresa Kraiss filled out such a questionnaire. Ex. 9F. She identified herself as a special
education manager who had known L.V. for three years and saw him from one to one and half
hours a day, five days a week. R. 433. She checked “yes” in the box stating that L.V. had
problems in the domains of acquiring and using information, attending and completing tasks,
interacting and relating with others, moving and manipulating objects, and caring for himself. In
her written comments, she stated that L.V. often has to work one-on-one with the classroom
2

Because the Appeals Council initially remanded with clear instructions to the ALJ to properly
analyze these documents, the Court’s review of these letters is fairly extensive. The Court’s review of
these letters is in contrast to what appears to be a less exacting review conducted by the ALJ, as
evidenced by the following quote from the ALJ: “Without detailing every note, even a random recitation
of them does not support the argument of the claimant’s representative that the claimant’s impairments, in
combination, functionally equal the listing.” R. 23. As shown in this opinion, a thorough – as opposed to
random – review of these detailed letters does, in fact, support the claimant.

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teacher because “he can’t complete grade level work independently,” that he “needs help
completing assignments, maintaining organization, and maintaining peer relationships,” that his
“actions can be excessive and extreme,” and that he is “sometimes difficult to understand
because he lacks the vocabulary to explain situations appropriately.” R. 434, 436-37. In the
medication section, she checked “yes” to the question asking whether he regularly takes
medication. She noted that while on medication L.V.’s “impulse control improves but he still
struggles in all areas.” R. 439. She further elaborated:
The medication isn’t effective for the whole school day. It starts to be effective
around 9:30 a.m. [L.V.] continues to need a high level of adult support even on
medication[.] [L.V.] benefits from the medication but still needs intensive
services to function.
Id.
Christine Perkovich also filled out a questionnaire. Ex. 10F. Ms. Perkovich was L.V.’s
fifth grade teacher and saw him five days a week, from 8:45 to 3:30 pm, during the 2008-09
school year. R. 441. She had known him for five years. She answered “yes” to the general
question whether L.V. had problems in the domains of acquiring and using information,
attending and completing tasks, interacting and playing with others, and caring for himself.
Unlike Ms. Krauss, Ms. Perkovich answered “no” to the question about the domain of moving
about and manipulating objects. In her written comments, she stated that LV. is given a number
of learning adaptions that include extended time for assignments, modified workload, reading
aloud directions, and directions given in close physical proximity. R. 442. She stated that he
needs “daily, continuous support” and “redirection” to complete his work, stay on task, and stay
organized. R. 443, 446. She answered “yes” to the question whether he was regularly taking his
medication. R. 447. She handwrote the following about his medication:

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•

[L.V.’s] medication for ADHD takes away his appetite. [L.V.] rarely eats lunch.
This is an almost daily occurrence. R. 447 (emphasis in original).

•

[L.V.’s] medicine for ADHD helps him focus to a 70% degree. Unfortunately it
takes away his appetite and he is rarely seen eating lunch. If not reminded
verbally on a daily basis, [L.V.] would not voluntarily take his medicine. R. 447.

•

Although [L.V.] is clearly helped by the medicine he takes, his focus, selfdiscipline, and organizational habits still need much improvement and support on
a daily basis. I am concerned about his lack of food intake and the impact of this
on his focus in the afternoon. In order to succeed in school, [L.V.] needs daily
assistance to remain focused, disciplined , and organized. R. 448.

Ms. Perkovich also stated that L.V., who was in the fifth grade, was at second grade level in
reading, math, and written language. R. 441.
Turning to the ALJ’s opinion, this Court finds that the ALJ failed to adequately consider
these two questionnaires. The ALJ acknowledged that the Appeals Council had remanded the
case asking him specifically to give “particular attention” to them. R. 23. However, the ALJ
only briefly summarized the questionnaires in two short paragraphs but did not include most of
the specific details summarized above, nor did he analyze them in any way. Id. Rather than
addressing the specific observations and conclusions, the ALJ instead discounted the two
questionnaires in one fell swoop based on the following reasoning. He concluded that the
teachers mistakenly believed that L.V. “was taking his medication as prescribed at home” when
he was not due to the mother’s “personal preference” in not giving him the medication. R. 25.
The problem with this explanation is that the factual premises are not supported by the
record. To start with the questionnaires themselves, the teachers’ comments do not suggest that
they were in the dark about whether and when L.V. was taking his medication. Ms. Krauss
observed that the medication did not take effect until 9:30 in the morning and that it often wore
off in the afternoon. Ms. Perkovich observed that he was “70% effective” on the medication,
and noted that it caused L.V. to skip lunch on a daily basis. These comments do not reveal any
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uncertainty. Both teachers clearly believed that L.V. was on medication most days. It is not
surprising that these teachers could offer such fine-grained observations as they knew L.V. well,
having observed him for many years in the school as well as throughout the fifth grade school
year.
The other witnesses also indicated that L.V. was taking the medication at this time and
that he was receiving it from the school nurse, and not taking it “at home” as the ALJ stated in
his opinion. L.V.’s mother was consistent in her testimony that, despite her initial reservations
about giving L.V. the medication when he was in the second grade, she allowed him to take the
medication since that time (except for summers and possibly weekends) and that she believed
that he took it consistently because the school would call her if he did not. L.V.’s testimony was
even more unequivocal. He testified that he always got his medication at school and never once
spit it out. (As discussed below, the ALJ credited L.V.’s testimony over his mother’s.) There is
other documentary evidence to show that he had been receiving medication at school since well
before the questionnaires were completed. See, e.g., R. 548 (December 18, 2008 note from
school nurse: “[L.V.] currently takes Focalin XR 15 mg and the medication is taken at school.
[L.V.] started taking medication at school in January of 2007.”) (emphasis added). The ALJ
pointed to no evidence to the contrary. Even if there were days when L.V. did not take the
medication, such as when there was a substitute nurse, it is hard to see how this would have
fooled the teachers who saw L.V. over the entire school year.

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In sum, a remand is warranted so that the ALJ can consider the teacher questionnaires in
greater detail, and show that he properly considered those questionnaires. 3 This conclusion is
supported by Hopgood v. Astrue, 578 F.3d 696, 701 (7th Cir. 2009), a case upon which plaintiff
relies heavily. There, the Seventh Circuit reversed and remanded because the ALJ failed to
discuss portions of teacher reports that were favorable to the student claimant. Id. at 700. The
teacher forms were just like the forms here. Id. The teachers indicated, just as Ms. Krauss and
Ms. Perkovich did here, that the student had “serious or obvious problems” in certain domains as
a result of his ADHD. Id. The Seventh Circuit found that a remand was required even if the
teacher reports did not “conclusively establish marked or extreme limitations” by themselves.
Id. at 701. Hopgood is thus directly on point. The government, in its response brief, made no
effort to distinguish this key case, even though plaintiff cited to it multiple times in her opening
brief. Dkt. # 16 at pp. 10, 14, 17. If Hopgood is distinguishable (and it certainly does not look to
be from the Court’s perspective), the government has failed to show how it is inapplicable.
On remand, the ALJ should also further consider several related questions about the issue
of medication. First, the ALJ should specifically consider whether L.V. had marked limitations
in any domain even while on medication. It is true, as the ALJ noted, that L.V. performed better
while on the medication. This point is not in dispute. But the mere fact that the medication
helped or caused improvement to some degree does not necessarily mean that he was not still
marked in a domain. As the two teachers stated in their questionnaires, they both believed that

3

Plaintiff also faults the ALJ for not considering an earlier teacher questionnaire from
October 2006 completed by Lisa Haapoja. Ex. 5F. This questionnaire also supports plaintiff’s
argument for a remand. Because this questionnaire is similar to the two questionnaires analyzed
above, this Court has not discussed it in detail in this opinion, but the ALJ should also
specifically consider it on remand. It is possible that L.V. was not yet on medication when this
questionnaire was completed, but this is a question the ALJ can explore on remand.
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L.V. had significant limitations even while on medication. Ms. Krauss opined that L.V.
continues to need a “high level of adult support even on medication.” and Ms. Perkovich
concluded that, despite the medication, he still needs “support on a daily basis.”
Second, to the extent that the ALJ concludes on remand that medication indeed worked at
some point, such that L.V. was not disabled, the ALJ should still evaluate the period before this
time. In reading the ALJ’s opinion, it is not clear when the ALJ believed the medication began
working. The application was filed in July 2006. The government in its response brief takes the
position that the medication became effective “beginning in approximately June 2009,” which is
fortuitously right after the two teacher reports were completed. Dkt. # 28 at p.3. But this Court
could not find any evidence in the ALJ’s opinion that he made such a clear demarcation about
when the medication started working. In any event, as plaintiff persuasively argues, the ALJ
“should have differentiated his conclusions by time period.” Dkt. # 16 at p.12. It is possible that
L.V. was disabled for several years but then eventually, after learning to successfully manage his
medication, was no longer disabled.
Third, the ALJ should give greater attention to the issue of side effects. The ALJ seemed
to believe that L.V.’s taking the ADHD medication was a simple matter, akin to flipping on a
light switch in which the problems were easily solved once and for all. The ALJ also seems to
have blamed L.V.’s mother for not consistently giving him the medication, stating that she was
making a “personal preference,” which carries with it the suggestion that she was doing so
arbitrarily. But the record paints a more complex picture with evidence suggesting she was
diligently experimenting with ways to balance the benefits of the medication against serious
short- and long-term downsides.

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It is undisputed that the medication had multiple side effects. On a day-to-day
psychological level, L.V.’s mother testified that L.V. was “a zombie” and “a totally different
child.” R. 699. L.V. testified that it “slow[ed] him down” and that he felt that was “a bad thing.”
R. 718. At the second hearing, two years later, the problems had not gone away. L.V. again
complained that the medication made him feel “weird” and “shake” and stated that he
“sometimes [sees] things that’s not there.” R. 662. These side effects were undoubtedly one
reason L.V. would try to spit out the medication. As the Seventh Circuit has repeatedly noted,
ALJs should take into account the fact that staying on medication is not an easy task especially
where there are serious side effects. See, e.g., Voigt v. Colvin, 781 F.3d 871, 877 (7th Cir. 2015)
(“Nor did [the ALJ] note the natural reluctance of a person with psychiatric problems (perhaps of
any person) to take powerful pain medications, as they can have serious side effects if not
carefully used.”). This fact is even more important to consider when the patient is a child
dealing with ADHD.
In addition, L.V. experienced loss of appetite and sleep problems. The mother testified
how she tried to manage these problems, having him eat late at night when the ADHD
medication wore off and then giving him another medication to get him to sleep. The fact that he
rarely ate lunch worried Ms. Perkovich, who also noted that missing lunch hurt his performance
in the afternoon. The loss of appetite presented an additional problem because, as the ALJ noted
during both hearings, L.V. was small for his size which in turn led to fights when he was picked
on. See R. 694 (ALJ observing: “It’s, I think, pretty obvious he’s a very small child”). In light
of these issues, the mother’s decision to take him off the medication in the summers (and
sometimes on the weekends) does not seem unreasonable. In fact, when she did so, he gained
weight. R. 523. Rather than being a failure of compliance, as the ALJ suggested, the mother’s

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efforts seem like a reasonable attempt to navigate what appears to be a fine line between overmedication and no medication. The record as a whole suggests that the mother had been diligent
throughout this long process, appearing at two hearings, visiting her son in school on a monthly
basis, taking him to the public library so he could better focus on his homework, taking him to
the police station to scare him after he tried stealing things from the store, even taking
psychology classes at Northern Illinois to learn “more about my kids, ADHD and the ODD, and
stress.” R. 697, 699, 710. The government argues that the ALJ had the right to discount the
mother’s testimony because she was not an “acceptable medical source” who was “capable of
giving medical opinions.” Dkt. # 28 at p.12. However, the government cites to no case
suggesting that a mother would be deemed unqualified to offer testimony about how medication
affected her son’s appetite and sleep, especially when the child was 12 years old with a 70 IQ
and ADHD. If not the mother, then who else would be in a better position to observe these side
effects? As the Social Security regulations note, parents “can be important sources of
information because they usually see [the child] every day.” 20 C.F.R. § 416.924a(a)(2)(i). A
child’s sleeping and eating habits are not areas typically thought to be outside the expertise of
parents. 4
Having found that a remand is warranted, this Court will only briefly address plaintiff’s
second argument, which is that the ALJ failed to make a proper credibility determination of L.V.
or his mother. To a certain extent, this argument has already been covered in the discussion
regarding side effects. Murphy v. Astrue, 496 F.3d 630, 635 (7th Cir. 2007) (although an ALJ’s

4

The mother also mentioned concerns about long-term kidney damage from the ADHD
medication. Perhaps this is one side effect that might require medical expertise to properly
evaluate, but even then, the mother certainly could raise concerns on behalf of her son about
these risks. Neither side has pointed to any independent medical evidence either confirming or
rebutting the claim that kidney damage was a possible risk with this medication.
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credibility determination is normally given deference, the Seventh Circuit concluded it was not
warranted because that determination was “intertwined” with the ALJ’s failure to fully consider
observations by school officials). As noted above, the ALJ’s view of the mother’s credibility
may have been colored by the ALJ’s mistaken belief that L.V. was not regularly taking his
medication. See Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (remanding because the
ALJ’s credibility determination “misstated some important evidence and misunderstood the
import of other evidence”); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (an ALJ may
not base a credibility determination on “errors of fact or logic”).
Plaintiff complains that the ALJ failed to explain why he discounted the mother’s
testimony. This Court agrees. The ALJ stated: “Contrary to the level of cognitive functioning
described in school and medical records, the claimant’s mother attempted to portray him as
grossly impaired.” R. 24. The ALJ then briefly summarized her testimony about L.V.’s
impairments, homework habits, medication compliance, relations with siblings, and school
fights. Id. However, the ALJ provided little explanation as to what about this testimony was
unbelievable. For example, the ALJ noted that the mother testified that L.V. “requires help in
reading, writing, mathematics, and socials skills” and that “she helps him with his homework[,]
even taking him to the library to do so.” Id. It is not clear how this testimony contradicts the
teacher questionnaires summarized above. Ms. Perkovich and Ms. Krauss stated that L.V.
needed “continuous” redirection and that his reading, writing, and math skills were three grade
levels behind. Did the ALJ doubt the mother’s claim that she took him to the library or that she
saw him engage in aggressive physical behavior with his siblings? The ALJ also claimed that
the mother testified that the ADHD medication did not improve her son’s attention in school. Id.

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But the mother never denied this fact. She testified, for example, that the medication “helped a
lot” and made L.V. “more focused.” 5
The ALJ also concluded that the mother’s testimony “did not mirror” L.V.’s testimony.
R. 25. The ALJ stated that L.V. described “infrequent, inappropriate behaviors” while the mother
described “pervasive and sustained dysfunction.” R. 25. Aside from these general statements,
the ALJ did not cite to any specific contradiction. This Court has reviewed the transcript from
both the 2009 and 2011 hearings and cannot find any obvious major contradictions between
either the mother and L.V. or between the mother and the teachers. They all appear to be in
agreement on key points. Dr. Kravitz at the second hearing was asked whether the mother’s
testimony conflicted with psychiatric evidence, and he testified that it did not. See R. 649.
Without at least a few specific examples, this Court cannot assess the ALJ’s apparent decision to
credit L.V.’s testimony over that of his mother. L.V. was a child with serious cognitive
problems who testified only briefly. Dr. O’Brien at first hearing questioned whether it was even
worth calling him as a witness, telling the ALJ that he was “kind of young to be helpful.” R. 716.
CONCLUSION
For all the above reasons, plaintiff’s motion for summary judgment is granted, the
government’s motion is denied, and this case is remanded for further proceedings.

Date: May 8, 2015

By:

5

___________________________
Iain D. Johnston
United States Magistrate Judge

The only specific contradiction the ALJ referred to is the assertion that the mother told
one of the doctors in a January 2009 office visit that the medication was helping L.V. (see Ex.
13F at 1). While this piece of evidence certainly may be considered on remand, the ALJ should
weigh it along with all the evidence, including the teacher questionnaires, especially given that
the ALJ acknowledged that they were “consistent with” the mother’s testimony. R. 25.
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