Matlock v. Social Security Administration

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and plaintiff's Complaint is dismissed with prejudice.Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 9/19/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIDGET MATLOCK, o/b/o D.S.,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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Case No. 4:11CV1322 FRB

MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse determination by the Social Security Administration.
All

matters are pending before the undersigned United States

Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
I.

Procedural History

On April 7, 2009, the Social Security Administration
denied plaintiff Bridget Matlock’s November 20, 2008, application
for Supplemental Security Income filed on behalf of her son, D.S.,
pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.

(Tr. 43, 44-48.)

At plaintiff’s request, a hearing

was held before an Administrative Law Judge (ALJ) on January 29,
2010, at which plaintiff and D.S. testified.

(Tr. 27-42.)

17, 2010, the ALJ denied plaintiff’s claim for benefits.
22.)

On May
(Tr. 7-

On May 27, 2011, the Appeals Council denied plaintiff’s

request for review of the ALJ’s decision.

(Tr. 1-4.)

The ALJ’s

decision is thus the final decision of the Commissioner.

42 U.S.C.

§ 405(g).
II.
A.

Evidence Before the ALJ

Testimony of D.S.
At the hearing on January 29, 2010, D.S. testified in

response to questions posed by the ALJ.
At the time of the hearing, D.S. was eight years of age
and in the first grade at Armstrong Elementary School.

D.S.

testified that math was his favorite subject and that science was
his least favorite subject.

D.S. testified that he had friends at

school and that he wanted to be a football player when he grew up.
D.S. testified that he had brothers and sisters at home, both older
and younger than him, and that he got along with them “fine.”

(Tr.

30-32.)
B.

Testimony of Plaintiff
At

the

hearing,

plaintiff

testified

in

response

to

questions posed by the ALJ and counsel.
Plaintiff testified that D.S. was currently in the first
grade and had repeated first grade.

Plaintiff testified that D.S.

had disciplinary problems at school and had sustained both inschool and out-of-school suspensions.

Plaintiff testified that

since his enrollment in school, D.S. had been suspended on five
occasions.

(Tr. 33.)

Plaintiff testified that D.S.’s teacher

-2-

reported D.S. to be difficult to redirect and difficult to calm
down on a bad day.

(Tr. 35.)

Plaintiff testified that D.S. does not understand or like
to do his homework.

Plaintiff testified that she helps D.S. with

his homework when he allows her to but that D.S. sometimes hides in
the closet when it is time to do his homework, hides his homework,
or will not bring it home from school.

(Tr. 37.)

Plaintiff testified that D.S. has three brothers and one
sister and that all of the children live with her.
testified

that

D.S.’s

father

was

incarcerated.

Plaintiff
(Tr.

34.)

Plaintiff testified that she was not currently working and that
D.S. receives assistance from Medicaid.

(Tr. 40.)

Plaintiff testified that D.S. was currently being treated
by a psychiatrist and that D.S.’s current medications included
Adderall and Risperdal.

(Tr. 34-35.)

Plaintiff testified that

D.S. had previously been prescribed Tenex, but that she determined
to stop the medication because it caused D.S.’s heart to race.
Plaintiff testified that D.S. had been born with a heart murmur.
(Tr. 40.)
Plaintiff testified that D.S.’s problems included anger,
fighting, bullying, and blaming others.

Plaintiff testified that

D.S. displays hostility toward authority figures such as teachers,
security guards, and his brothers and sister.

Plaintiff testified

that D.S. picks fights with his brothers, his few friends, and

-3-

children

in

the

neighborhood

and

at

school.

(Tr.

35-36.)

Plaintiff testified that D.S. also fails to understand consequences
and does not want to follow safety rules. Plaintiff testified that
she must lock up knives and sharp objects to keep them from D.S.
Plaintiff testified that D.S. previously had “pulled a knife” on a
child from the neighborhood.

Plaintiff testified that D.S. also

had problems on the school bus with throwing things, not sitting
down, and cursing at the bus driver. Plaintiff testified that D.S.
had been suspended from riding the bus but was allowed to return.
(Tr. 37-39.)
Plaintiff testified that D.S. likes to draw but does not
stay with a project beyond fifteen minutes.

Plaintiff testified

that D.S. will later come back to the project. Plaintiff testified
that D.S. has chores assigned to him at home, such as washing
dishes and cleaning his room, but that he throws tantrums and will
eventually perform the work if plaintiff “stay[s] on him.”

(Tr.

39-40.)
III.

Medical, School and Counselor Records

D.S. underwent a psychological evaluation on September
11, 2007, in response to plaintiff’s concerns regarding D.S.’s
behavior and suspicions of Attention Deficit Disorder (ADD) and
Behavior Disorder. D.S. was five years of age and in kindergarten.
Plaintiff arrived at the evaluation with D.S. and two of his
brothers. Dr. Lisa Dahlgren observed the brothers to actively play

-4-

which quickly escalated into arguing and physical fighting, to the
point where plaintiff had to physically pull the brothers apart.
Dr. Dahlgren noted that D.S. was choking his younger brother with
his hands around his throat before plaintiff could pull them apart.
Once apart, the fighting between the boys resumed with fist punches
to the face and stomach.

Plaintiff reported to Dr. Dahlgren that

she had been concerned with D.S.’s behavior since he was two years
of age because of extreme and violent temper tantrums.

Plaintiff

reported that D.S.’s temper tantrums became more dangerous as he
grew older because he became stronger.

Plaintiff reported that

D.S. once threatened to kill his brother and went searching in the
kitchen for a knife sharp enough to cut and kill him.

Plaintiff

reported that D.S.’s daycare facility warned plaintiff that they
would call the police because of D.S. Plaintiff also reported that
D.S. was eventually expelled from daycare. Plaintiff reported that
D.S. is often “in his own world” and does not seem to be in touch
with his surroundings.

Plaintiff reported that D.S. was seeing a

therapist who had come to the home during the previous month.
Plaintiff reported D.S. to be on a waiting list for medication.
During D.S.’s evaluation, Dr. Dahlgren noted it difficult to
establish rapport with D.S. and that D.S. appeared not to easily
comprehend what was asked of him. Mental status examination showed
D.S. to be oriented times three with no evidence of hallucinations.
D.S. did not follow commands well and needed reminders with two-

-5-

step commands.
task.

D.S. needed to be redirected frequently to stay on

Memory tasks were unremarkable.

Social evaluation was

difficult given D.S.’s demeanor, both with physically fighting with
his brothers and ignoring Dr. Dahlgren’s presence.
noted no unusual affective features.
evaluation,
Dahlgren

D.S.

observed

returned
him

to

to

the

grab

Upon conclusion of the

waiting

items,

Dr. Dahlgren

room

run,

whereupon

topple

magazines, and physically fight with his brothers.

lamps

Dr.
and

Dr. Dahlgren

diagnosed D.S. with ADD, combined type; and Oppositional Defiant
Disorder (ODD).

Dr. Dahlgren assigned a Global Assessment of

Functioning (GAF) score of 45.1

(Tr. 231-34.)

Dr. Dahlgren

opined:
[D.S.] is not functioning like a typical 5
year old.
It is unclear if he is able to
process information in a timely or even
accurate manner.
He exhibited a lack of
focus, and inattention.
Socially, he is
either immersed in his own fantasy of who he
is, attempts to dominate others through
physical means, or appears to disregard those
around him as one may disregard the furniture.
The constellation of symptoms [D.S.] exhibits
is consistent with children who have moderate
to severe attachment issues.
He will most
likely have difficulty learning at a rate
consistent with his peers, already has social
1

A
GAF
score
considers
“psychological,
social,
and
occupational functioning on a hypothetical continuum of mental
health/illness.”
Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 41-50
indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).
-6-

difficulties
with
peers
and
those
in
authority, and has an energy level and focus
limitations that make him difficult to
control. Medication may be helpful for [D.S.]
Other helpful tools his mother is seeking at
this time are in-home therapy services, and
her own education regarding discipline and
structure around the house. Given the degree
of impairment observed in this office, his
school will most likely also make plans for
interventions
to
decrease
environmental
stimulation and increase daily structure.
Once these measures are all in place, [D.S.]
should be able to respond with greater
learning and social potential. The degree to
which
his
difficulties
will
remit
is
uncertain.
(Tr. 234.)
D.S. underwent an initial psychiatric evaluation with Dr.
Muddasani on July 20, 2008.

D.S. was six years of age.

Dr.

Muddasani noted D.S. to have been expelled from school.

D.S.’s

mood was noted to be depressed with decreased affect.

D.S.’s

thought processes were noted to be normal.

D.S. was diagnosed with

Attention Deficit Hyperactivity Disorder (ADHD) and Concerta2 was
prescribed.

(Tr. 251-52.)

In an undated Care Team Report from Armstrong Elementary,
it was noted that in the 2008-09 school year, D.S. was in the first
grade and demonstrated strengths in music and art, and liked
numbers and math concepts.

It was reported that D.S. exhibited

disruptive behavior, was out of his seat frequently, and had
2

Concerta is used to control symptoms of ADHD. Medline Plus
(last revised Jan 1, 2011)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a682188.html>.
-7-

trouble retaining information.

(Tr. 120.)

An ADD Rating Scale

completed October 23, 2008, showed D.S. to meet the behavior
criteria for ADD.
In

a

(Tr. 121.)

report

dated December 12, 2008, Dr. A. Menon

reported that he last saw D.S. on March 29, 2007, at which time
there was no concern regarding ADHD.

Dr. Menon stated that

physical

milestones

examination

and

normal limits at that time.

developmental

were

within

(Tr. 235-36.)

On January 14, 2009, Michele Chitwood, D.S.’s classroom
teacher at Armstrong Elementary, completed a Teacher Questionnaire
for disability determinations.

D.S. was in the first grade.

Ms.

Chitwood reported that she taught all core subjects to D.S. five
days a week, seven hours a day.

Ms. Chitwood reported that D.S.

did not receive special education but received reading support for
half an hour every day.

Ms. Chitwood reported that D.S. performed

at grade level in reading and math, and below grade level in
written language.

Ms. Chitwood reported that there was no degree

of excessive absenteeism with D.S.’s attendance at school.

Ms.

Chitwood opined that D.S. had problems functioning in the domain of
acquiring and using information in that D.S. had very serious
problems reading and comprehending written material, expressing
ideas in written form, and learning new material; serious problems
comprehending

and/or

school

content

and

following

oral

vocabulary,

-8-

directions,
providing

understanding

organized

oral

explanations and adequate descriptions, recalling and applying
previously learned material, and applying problem-solving skills in
class

discussions;

and

an

obvious

participating in class discussions.

problem

understanding

and

Ms. Chitwood reported that

D.S. needed a great deal of support and supervision to complete
reading and writing tasks, and that D.S. received assistance from
a peer tutor and the reading teachers.

Ms. Chitwood opined that

D.S. had very serious problems in all areas of the domain of
attending and completing tasks, with D.S. exhibiting such problems
on an hourly basis in the areas of paying attention when spoken to
directly,
focusing

sustaining

attention

during

play/sports

activities,

long enough to finish assigned activities or tasks,

refocusing to task when necessary, carrying out single-step and
multi-step instructions, waiting to take turns, and changing from
one activity to another without being disruptive.

Ms. Chitwood

reported that D.S. struggled to do any work without supervision or
assistance and that D.S. received peer or teacher help on most
tasks daily.

In the domain of interacting and relating with

others, Ms. Chitwood reported that D.S. had problems with focusing,
becoming frustrated easily, and giving up or refusing to try.

Ms.

Chitwood reported that behavior modification strategies had been
implemented, including rewards for good choices and completed
tasks.

Ms.

Chitwood

reported

understood almost all of the time.

-9-

that

D.S.’s

speech

could

be

In the domain of moving about

and manipulating objects, Ms. Chitwood reported that D.S. had no
problems.

In the domain of caring for himself or others, Ms.

Chitwood opined that D.S. had very serious problems in the area of
knowing when to ask for help; serious problems in the areas of
identifying

and

appropriately

assessing

emotional

needs,

and

responding appropriately to changes in his own mood; and obvious
problems handling frustration appropriately, being patient when
necessary, and using appropriate coping skills to meet daily
demands of the school environment. Ms. Chitwood reported that D.S.
had no or slight problems in the areas of taking care of personal
hygiene,

caring

responsible
regarding

for

for

physical

taking

personal

needs,

medications,

safety

and

cooperating
and

dangerous

using

in
good

or

being

judgment

circumstances.

Ms.

Chitwood reported that D.S. slammed things or yelled at others when
he was angry, and often blamed others for his choices.

Ms.

Chitwood reported that she was unaware of any physical condition or
effect which affected D.S.’s functioning at school.

Ms. Chitwood

reported that D.S. was prescribed medication, that D.S. did not
take the medication on a regular basis, and that D.S.’s functioning
changed after taking medication.

Ms. Chitwood reported that D.S.

took medication when he first started school and could do his class
work much better at that time.

(Tr. 112-19.)

D.S. underwent a psychological evaluation on March 31,
2009, for disability determinations. (Tr. 240-44.) D.S. was seven

- 10 -

years of age.

It was noted that D.S. was in the first grade and

had repeated kindergarten.

It was noted that D.S. did not receive

special education services, but that he received reading support at
school.

Psychologist

diagnosed

with

ADHD

Alison
and

Risperidone3 and Concerta.

Burner

ODD

and

noted
to

D.S.

have

to

been

have

been

prescribed

Ms. Burner questioned plaintiff as to

why the medication bottles were full when the prescriptions had
been filled two months prior, but plaintiff did not respond.
Plaintiff reported D.S. to engage in bad behavior at home, such as
jumping on furniture, arguing with siblings, and failing to do
homework; and that D.S. engaged in similar behavior at school. Ms.
Burner

noted

the

Teacher

Questionnaire

weaknesses and attention problems.

to

indicate

reading

Ms. Burner noted plaintiff and

D.S.’s teacher to report D.S. to have a very short attention span,
poor concentration, impulsiveness, and constant movement and noise
making.

Ms. Burner noted D.S.’s reported and observed symptoms to

be consistent with ADHD, but not consistent with ODD.

During the

evaluation, Ms. Burner noted D.S. to be cooperative with the
testing process and his affect to be within normal limits.
psychomotor agitation was present.

No

D.S.’s speech was intelligible

and his social language functioning was within normal limits.
3

Risperidone (Risperdal) is used to treat the symptoms of
schizophrenia; episodes of mania or mixed episodes persons with
bipolar disorder; and behavior problems such as aggression,
self-injury, and sudden mood changes in children who have autism.
Medline Plus (last revised June 15, 2011)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a694015.html>.
- 11 -

D.S.’s full scale IQ was measured to be 90, which placed D.S. in
the average range of intellectual functioning.
D.S.

placed

in

the

average

range

In IQ subtesting,

throughout.

Mental

status

examination showed D.S. to be appropriately oriented times three
and able to provide specific demographic information.

D.S. denied

having any psychiatric difficulties, including hallucinations,
depression, paranoia, and anxiety.
control

were

noted

to

be

D.S.’s mental calculations and

adequate,

with

basic

calculations

performed at an age appropriate and functional level.
noted D.S.’s insight and judgment to be average.
noted in adaptive functioning.
at home and at school.

Ms. Burner

No deficits were

D.S. reported that he had friends

Ms. Burner noted D.S. to be able to take

care of himself and able to perform chores with reminders and
supervision.

Upon

conclusion

of

the

evaluation,

Ms.

Burner

diagnosed D.S. with ADHD–combined type, assigned a GAF score of
65,4 and opined:
Based upon this evaluation, [D.S.] does appear
to meet criteria for ADHD. With appropriate
medical and educational intervention, he
should be able to obtain a high diploma [sic].
His ability to relate to the world socially,
occupationally, and adaptively, may be below
normal limits without treatment.
With
treatment, his symptoms should be sufficiently

4

A GAF score of 61 to 70 indicates some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or
theft within the household), but generally functioning pretty well,
has some meaningful interpersonal relationships.
- 12 -

controlled and he should be able to attain at
a level commensurate with his ability.
(Tr. 244.)
On April

7,

2009, Dr. Kyle DeVore, a psychological

consultant with disability determinations, completed a Childhood
Disability Evaluation Form in which he opined that D.S. had no
limitations in the domains of acquiring and using information,
interacting and relating with others, moving about and manipulating
objects, caring for himself, and health and physical well-being.
Dr. DeVore opined that D.S. had less than marked limitations in the
domain of attending and completing tasks.

(Tr. 245-49.)

On April 29, 2009, Dr. Muddasani noted that D.S. did not
keep appointments and was not on any medications.
Risperdal were prescribed.

Concerta and

(Tr. 253.)

D.S.’s report card for the first grade in the 2008-09
school year showed him to generally perform at or below basic level
in communication arts, but to perform at the proficient level in
the subcategories of developing and applying effective speaking
skills, developing and applying skills to analyze and evaluate
information, and analyzing and evaluating oral and visual media.
D.S. was generally at the proficient level in math; at the basic or
proficient level in science and vocal music; and at the proficient
level in physical education and art.

It was reported that D.S.

generally had satisfactory behavior in physical education, art and

- 13 -

music.

As

to

work

habits,

it

was

reported

that

D.S.

had

unsatisfactory behavior in the areas of following oral and written
directions,

starting

and

completing

work

on

time,

focusing

attention to task, and demonstrating consistent effort.

D.S.

exhibited satisfactory behavior in the area of using technology and
resource

materials.

(Tr.

126,

172-73.)

In

the

areas

of

communication arts, science, health, and social studies, it was
reported that D.S. was not meeting first grade essential skills.
“[D.S.] is often out of his seat, talking to others instead of
completing his assignments, or staring off into space.

This lack

of concentration throughout the day causes him to miss important
information during our lessons.”

(Tr. 127.)

At the end of the 2008-09 school year, it was recommended
that D.S. be retained in first grade for the following year.

Staff

concerns supporting this recommendation included that D.S. was
unable to work appropriately with peers, that D.S.’s reading level
was inhibited due to missed instruction on account of behavioral
consequences, and that medical diagnoses of ADHD and ODD had been
reported.

(Tr. 175.)
On July 22, 2009, Dr. Muddasani noted D.S.’s anger to be

reported as horrible with others.
diagnosis

and

medications.

instructed

that

Dr. Muddasani included ODD as a
D.S.

(Tr. 253.)

- 14 -

continue

on

his

current

On September 1, 2009, D.S. engaged in behavior at school
which resulted in a two-day out-of-school suspension. On September
4, 2009, D.S. engaged in behavior which resulted in a three-day
out-of-school suspension as well as a three-day bus suspension. On
September 21, 2009, D.S. engaged in behavior which resulted in a
one-day bus suspension.

On September 30, 2009, D.S. engaged in

behavior which resulted in a one-day in-school suspension.

On

October 1, 2009, D.S. engaged in behavior which resulted in a oneday out-of-school suspension.

On October 7, 2009, D.S. engaged in

behavior which resulted in a five-day out-of-school suspension.
(Tr. 191.)
For the term ending October 9, 2009, it was reported that
D.S. performed below the basic level in communication arts, science
and health.

D.S. performed at the basic level in math and social

studies, and at the proficient level in physical education, art and
vocal music.

D.S.’s behavior and work habits were reported to be

unsatisfactory.

(Tr. 189-90.)

On October 13, 2009, D.S. underwent a school psychiatric
consultation at Armstrong Elementary School.

For purposes of this

consultation, Dr. Meg Corrigan interviewed the school counselor,
plaintiff and D.S. Plaintiff reported D.S. to have previously been
diagnosed

with

a

heart

murmur

for

which

he

was

subsequently

determined to be “fine.” Plaintiff also reported D.S. to have been
diagnosed with ADHD, ODD, and possible depression.

- 15 -

Plaintiff

reported that D.S. had been prescribed Risperdal which made him
calmer, but that she stopped the medication inasmuch as it caused
D.S.’s heart to race.

Plaintiff also reported that D.S. had been

prescribed Tenex,5 but that she stopped the medication because it
caused loss of appetite and hallucinations.6
D.S. to currently be taking Concerta.

Plaintiff reported

Dr. Corrigan noted D.S.’s

teachers to report that D.S. was calmer and more “zombie like” when
taking his medication.

Plaintiff reported D.S. to have problems

with anger and violent behavior, with reported examples including
kicking and hitting teachers and students, cursing at teachers and
bus drivers, threats to kill teachers and students, and tearing up
homework and books. It was noted that D.S.’s behavior had resulted
in

multiple

in-school,

out-of-school,

and

bus

suspensions.

Plaintiff reported that D.S. used to try to set fire to paper and
grass and stored items under his bed such as screwdrivers, nails,
and socks with rocks in them.

Plaintiff reported that D.S. did not

engage in self-injurious behavior.

Plaintiff reported that D.S.

had been seeing a psychiatrist for two and one-half years.

During

her observation of D.S., Dr. Corrigan noted D.S. to be generally
cooperative but to test boundaries and limits.

D.S. was twirling

5

Tenex is used to control symptoms of ADHD.
Medline Plus
(last reviewed Sept. 1, 2010)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a601059.html>.
6

Dr. Corrigan noted that on a parent information form,
plaintiff indicated that Tenex caused insomnia and Risperdal caused
hallucinations. (Tr. 198.)
- 16 -

in his chair, rolling food on the table, and banging on the window
trying to get the attention of children outdoors.
noted D.S.’s flow of thought to be concrete.

Dr. Corrigan

D.S. self-reported

that he angers easily and that he has been suspended for fighting
with his teacher.

D.S. also self-reported that he had a difficult

time paying attention in class.

D.S.’s mood was noted to be happy

and his affect was nearly euthymic, stable, playful, and somewhat
bright at times.
poor.

D.S.’s insight and judgment were noted to be

Dr. Corrigan diagnosed D.S. with ADHD, combined type; ODD,

rule out Conduct Disorder; Mood Disorder, not otherwise specified;
rule out Bipolar Disorder, not otherwise specified; and rule out
history

of

Psychosis, not otherwise specified.

assigned a GAF score of 45.
individual,

family

and

Dr. Corrigan

Dr. Corrigan recommended weekly

behavioral therapy;

frequent

follow-up

appointments with a psychiatrist; full IQ evaluation; psychological
testing; neurological evaluation; monitoring for possible sexually
inappropriate behaviors; returning to a cardiologist for follow up
on the reported heart murmur; remaining on a waiting list for a
Boys Town mentor; and following up with an eye doctor.

(Tr. 193-

207.)
D.S. returned to Dr. Muddasani on October 21, 2009, who
noted D.S. to have assaulted a teacher and was kicked out of
school.

Complaints that Concerta was not working were noted.

- 17 -

Dr.

Muddasani continued in his diagnoses of ADHD and ODD and prescribed
Adderall7 and Risperdal.

(Tr. 254.)

In a Diagnostic Report dated November 24, 2009 (Tr. 14658.), the Special School District of St. Louis County reported that
after a series of evaluations and reports, D.S. was determined to
have an educational diagnosis of “Emotional Disturbance.”
noted that D.S. was repeating the first grade.

It was

It was reported

that D.S. had been diagnosed with ADHD and ODD in 2007, was
prescribed Risperdal and Adderall to be taken daily, and was
inconsistent in taking his medication. It was noted that plaintiff
indicated a concern with home adaptive behavior with specific areas
of concern noted to include complying with family rules, responding
to

discipline,

displaying

adequate

easily frustrated and angry.

self-control,

and

becoming

It was reported that D.S. attended

church with his sitter and enjoyed video games, outdoor activities,
community

attractions,

and

music.

With

respect

to

school

performance, it was reported that D.S. performed in the lower third
of his classes in all academic areas, performing below the basic
level in communication arts, science, social studies, and health;
at the basic level in math; and at the proficient level in physical
education, art, and vocal music.
noted

in

the

areas

of

life

There were numerous concerns

skills,

7

daily

and

hourly

task

Adderall is used to control symptoms of ADHD. Medline Plus
(last revised Aug. 1, 2010)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a601234.html>.
- 18 -

orientation skills, and social/emotional skills.
Intelligence

Scale

for

Children

(4th

On the Wechsler

edition),

D.S.’s

verbal

comprehension index was measured to be 89, perceptual reasoning
index was measured to be 102, working memory index was measured to
be 91, with full scale IQ measured to be 87.
109 were within the average range.

Scores between 90 and

On the Kaufman Test of

Educational Achievement (2nd edition), D.S.’s reading composite was
measured to be 108, written language composite was measured to be
102, sound-symbol composite was measured to be 102, and decoding
composite was measured to be 108.

Scores between 85 and 115 were

within the average range.

On the Learning Disability Evaluation

Scale,

average

D.S.

scored

below

in

the

thinking, speaking, reading, and writing.
average

range

in

the

areas

of

areas

of

listening,

D.S. scored within the

spelling

and

mathematical

calculations. On the Behavior Assessment for Children completed by
plaintiff, D.S. scored in the clinically significant range in the
areas

of

externalizing

behavioral symptoms.
adaptive
completed

skills.
by

problems,

internalizing

problems,

and

D.S. scored in the low range in the area of
On

D.S.’s

the

Behavioral

teacher,

D.S.

Assessment

scored

in

for

the

Children

clinically

significant range in the areas of externalizing problems, school
problems, and behavioral symptoms.

In the area of internalizing

problems, D.S. scored in the at-risk range.

In the area of

adaptive skills, D.S. scored in the very low range.

- 19 -

On the

Behavior Inventory of Executive Function completed by plaintiff and
D.S.’s teacher, D.S. consistently scored in the significantly
elevated area.

On the Brown Child ADD Scales, D.S. scored in the

moderately atypical range.

The team determined D.S. to exhibit an

inability

maintain

to

build

or

satisfactory

interpersonal

relationships with peers and teachers and an inability to learn
that could not be explained by intellectual, sensory, or health
factors.

It

difficulties

was
with

noted

that

compliance,

D.S.’s
acting

social
out,

history

peer

included

relationships,

violence, and fighting since daycare — having been suspended from
daycare and Head Start.

It was noted that D.S. engaged in numerous

incidents of disruptive and aggressive behaviors, resulting on one
occasion with a call to the police to escort D.S. and his older
brother home.

The team noted D.S. to engage in the following

behaviors with such frequency and to such a marked degree that they
adversely impacted D.S.’s educational performance: “inability to
build and maintain satisfactory peer relationships resulting in
incomplete work as well as lack of exposure to cooperative learning
experiences.
lead

to

his

instruction.”

[D.S.’s] lack of compliance and aggressive behaviors
being

absent

(Tr. 157.)

from

the

classroom

and

The team concluded:

[D.S.’s] academic achievement is commensurate
with his measured cognitive ability with
visual motor and fine motor skills that are
within normal limits for his age.
While
[D.S.] appears to possess skills to achieve in
- 20 -

presented

the academic setting, his behaviors
emotional state clearly interfere.

and

. . . [T]he significant behaviors
exhibited by [D.S.] best represent the
educational
disability
of
an
Emotional
Disturbance.
Additionally, the team has
considered the impact that current life
stressors have had on [D.S.], and have
determined that the concerns identified within
this evaluation have been long-standing and
not just associated with any specific crisis
or stressful situation.
(Tr. 158.)
An educational plan was recommended, which included intensive
social skills instruction as well as development of coping skills
to address anger, escalating aggression, and spiraling negative
thoughts.

(Tr. 146-58, 192.)

present at this meeting.

It was noted that plaintiff was not

(Tr. 164.)

On December 4, 2009, D.S. received a five-day out-ofschool suspension.

(Tr. 191.)

After a visit with Dr. Muddasani on December 10, 2009,
D.S. was prescribed Concerta and Tenex.

(Tr. 255.)

During an Individualized Education Program (IEP) meeting
held January 13, 2010, D.S.’s diagnoses of Emotional Disturbance,
ADHD, and ODD were noted.

D.S. was reported to be

very tense and reactive. . . . He does not
like confinement and has difficulty with close
proximity of peers and adults. He does not
have an appropriate sense of play and is often
very rough.
He wants to take the lead and
have control of situations and will become
- 21 -

verbally and physically aggressive if denied.
(Tr. 209.)
It

was

determined

that

D.S.

would

receive

special

education

instruction in social skills and task related skills, as well as
psychological counseling.

It was also determined that D.S. would

participate in regular physical education, as well as in the
general education environment seventy-six percent of the time with
accommodations
assignments,

including
allowance

reinforcement.

It

accommodations

during

preferential
of

was

frequent

determined

district

seating,
breaks,

that

and

D.S.

assessments.

timers

for

positive

did

not

(Tr.

need

208-22.)

Plaintiff did not attend this IEP meeting, having indicated that
she did not want to attend.

(Tr. 223.)

On January 23, 2010, Melissa Wright, D.S.’s first grade
teacher completed a School Activities Questionnaire at the request
of plaintiff’s counsel.
D.S. for six months.

Ms. Wright reported that she had known
Ms. Wright reported that D.S. had been

suspended, disciplined, or expelled many times.

In the domain of

acquiring and using information, Ms. Wright reported that D.S. was
markedly limited in all areas including learning new material,
reading

comprehension,

following

and

understanding

oral

instructions and classroom discussions, and solving math problems.
In

the

reported

domain

of

that

D.S.

attending
was

and

completing

moderately limited
- 22 -

tasks,
in

his

Ms.

Wright

ability

to

remember and organize school materials and to complete homework
assignments on time.

Ms. Wright reported that D.S. was markedly

limited in his ability to avoid careless mistakes; and extremely
limited in all other areas including remaining alert, focusing and
maintaining attention, maintaining pace, and avoiding being fidgety
and restless.

In the domain of interacting and relating with

others, Ms. Wright reported that D.S. was markedly limited in his
ability

to

make

and

keep

friends,

use

appropriate

facial

expression, and consider others’ feelings and points of view.

Ms.

Wright reported D.S. to be extremely limited in all other areas
including getting along with other children, following rules,
obeying

authority,

conversation.
objects,

Ms.

and

taking

turns

in

and

maintaining

a

In the domain of moving about and manipulating
Wright

reported

that

D.S.

had

no

or

slight

limitations. In the domain of caring for self, Ms. Wright reported
D.S. to have extreme limitations in his ability to imitate healthy
adult behavior; marked limitations in his abilities to avoid
harmful behavior toward himself, regard safety rules, cope with
stress, and cope with change; and moderate limitations in his
ability to maintain hygiene and cleanliness.

(Tr. 166-70.)

D.S. underwent a psychological evaluation for disability
determinations on March 17, 2010.

(256-61.)

Dr. Karen Hampton

noted D.S. to be receiving IEP services at school and that previous
records described ADHD as well as learning, mood, and behavioral

- 23 -

difficulties.

Dr. Hampton noted that D.S. received medication and

in-home family therapy. Plaintiff reported to Dr. Hampton that the
weekly in-home therapy was beneficial but that they had sessions
only during the previous couple of weeks.

Plaintiff also reported

D.S. to currently be taking Adderall. Plaintiff also reported that
D.S. had previously taken Risperdal, which was beneficial in that
it reduced D.S.’s aggressive behavior, but that Dr. Muddasani
recently discontinued the medication due to its effect being too
calming or sedating.

Plaintiff reported D.S.’s mood and behavior

to vary day to day with poor reactions to changes in routine.
Plaintiff reported that behavioral incentive plans have been put in
place at home and at school.

Plaintiff reported D.S. to be

physically resistant to limitations placed on him.

Plaintiff

reported that she tries to give D.S. his medication in the morning,
but that she must “sweep[] his mouth” to make sure he takes it.
Plaintiff reported D.S. to have “short” self-control during the day
and that he becomes impatient in stores or in church and tries to
leave.

Plaintiff reported that D.S. had shown some improvement

while being treated for ADHD but that he continued to have issues
with anger, noting as an example a fight which occurred at school
in December 2009 after which the police were called.

Plaintiff

reported D.S. to be in the second grade, but D.S. stated that he
was currently in first grade having previously flunked the grade.
Mental

status

examination

showed

- 24 -

D.S.

to

be

oriented

and

cooperative and mildly guarded in affect.

D.S. reported that he

used to see secret friends and a dog, but that when he rubbed his
eyes they would be gone.

Dr. Hampton noted D.S. to have some

difficulties with recall and appeared to have learned math skills
by rote memorization without flexibility in learning and paying
attention to different number patterns.

D.S.’s judgment in social

reasoning was questionable in that D.S. appeared to respond with
expected answers instead of what he actually would do in the posed
hypothetical situations.

When asked how he got along with his

brothers, D.S. responded “fine” but without example as to what
activities they engage in.

Dr. Hampton opined that D.S. was trying

to portray a positive self-concept to such an extreme so as to
downplay and minimize any signs of distress or behavioral problems.
D.S. expressed low emotional awareness.
D.S.’s abstract reasoning
average,

indicating

disturbances.
diagnosed

D.S.

Dr. Hampton determined

skills and intelligence to be low-

learning

difficulties

and

D.S.’s insight was noted to be poor.
with

Depression

with

psychotic

emotional
Dr. Hampton

features;

ADD,

combined type; Adjustment Disorder with mixed presentation, anxious
and depressed mood; and Behavioral Disturbance.
assigned a GAF score of 57.8

Dr. Hampton

Dr. Hampton concluded that D.S. was

8

A GAF score of 51 to 60 indicates moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).
- 25 -

mildly impaired in being able to understand
and recall simple instructions, and he would
be markedly limited in ability to understand
and follow through with complex directions.
Concentration
is
moderately
impaired,
consistent with ADHD, for which he had taken
prescribed stimulant medication today.
His
pace on cognitive tasks is similar to other
same-age children.
His ability to adapt to
social situations is moderately limited, with
some improvement with treatment, but also with
a continued high level of psychosocial
stressors.
(Tr. 261.)
IV.

The ALJ’s Decision

The ALJ found D.S. to be a school-aged child and not to
have engaged in substantial gainful activity since November 20,
2008, the date the application for benefits was filed.
found D.S.’s impairment of ADHD to be severe.

The ALJ

The ALJ found,

however, that D.S. did not have an impairment or combination of
impairments that met or medically equaled the severity of any
impairment in the Listings of Impairments.

The ALJ also found that

D.S. did not have an impairment or combination of impairments which
functionally equaled the Listings.

The ALJ thus determined D.S.

not to have been disabled at any time since the filing of the
application, that is, November 20, 2008.
V.

(Tr. 7-22.)

Discussion

A claimant under the age of eighteen is considered
disabled and eligible for Supplemental Security Income (SSI) under
the

Social

Security

Act

if

he

“has

- 26 -

a

medically

determinable

physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in
death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.”

42 U.S.C. §

1382c(a)(3)(C)(I).
The Commissioner is required to undergo a three-step
sequential evaluation process when determining whether a child is
entitled to SSI benefits.

First, the Commissioner must determine

whether the child is engaged in substantial gainful activity.

If

not, the Commissioner must then determine whether the child’s
impairment, or combination of impairments, is severe.
the

child’s

impairment(s)

is

severe,

the

Finally, if

Commissioner

must

determine whether such impairment(s) meets, medically equals or
functionally

equals

the

severity

of

an

impairment

Appendix 1 of Subpart P of Part 404 of the Regulations.

listed

in

20 C.F.R.

§ 416.924(a); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647
(8th Cir. 2004).

If the impairment(s) meets or medically equals a

Listing, the child is disabled.

Garrett, 366 F.3d at 647.

If a

child’s impairment does not meet or medically equal a listed
impairment, the Commissioner will assess all functional limitations
caused

by

the

child’s

impairment

to

determine

whether

the

impairment functionally equals the Listings. 20 C.F.R. § 416.926a.
To functionally equal a listed impairment, the child’s condition
must result in an “extreme” limitation of functioning in one broad

- 27 -

area of functioning, or “marked” limitations of functioning in two
broad areas of functioning.

20 C.F.R. § 416.926a(a).

The domains

are “broad areas of functioning intended to capture all of what a
child can or cannot do.”

20 C.F.R. § 416.926a(b)(1).

The six

domains used by the Commissioner in making such a determination
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 Oneself; and
6) Health and Physical Well-Being.

Id. If this analysis shows the

child not to have an impairment which is functionally equal in
severity to a listed impairment, the ALJ must find the child not
disabled.

Oberts o/b/o Oberts v. Halter, 134 F. Supp. 2d 1074,

1082 (E.D. Mo. 2001).9
The Commissioner's findings are conclusive upon this
Court if they are supported by substantial evidence.

42 U.S.C. §

405(g); Young v. Shalala, 52 F.3d 200 (8th Cir. 1995) (citing Woolf
v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).

Substantial

evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion. Briggs v.
Callahan, 139 F.3d 606, 608 (8th Cir. 1998).

In evaluating the

substantiality of the evidence, the Court must consider evidence

9

The ALJ here determined that D.S. suffered marked limitations
in one domain of functioning, and less than marked or no
significant limitations in all other domains. (Tr. 21.) Plaintiff
makes no specific challenges to the ALJ’s findings in the various
domains of functioning.
- 28 -

which supports the Commissioner's decision as well as any evidence
which fairly detracts from the decision.

Id.

Where substantial

evidence supports the Commissioner's decision, the decision may not
be reversed merely because substantial evidence may support a
different outcome.

Id.

In this cause, plaintiff claims that the ALJ erred in his
adverse determination by failing to find D.S.’s diagnosed condition
of ODD to be a severe impairment.

Plaintiff also claims that the

ALJ erred by his failure to properly consider the opinions of
D.S.’s teachers when conducting his functional analysis.

The

undersigned will address each of plaintiff’s contentions in turn.
A.

Step 2 Analysis – Failing to Find ODD as a Severe Impairment
Plaintiff claims that the ALJ erred by failing to find

D.S.’s diagnosed condition of ODD to be a severe impairment.
Assuming arguendo that such condition indeed constituted a severe
impairment, the ALJ’s failure to so find arises to nothing more
than harmless error.
As the second step of childhood disability cases, the
Commissioner is required to determine whether the child has an
impairment or combination of impairments that is severe. 20 C.F.R.
§ 416.924(a), (c).

Here, at Step 2 of the sequential evaluation,

the ALJ found D.S.’s ADHD to constitute a severe impairment but did
not separately analyze or find D.S.’s ODD to be severe.

The

failure of an ALJ to find an impairment to be severe at Step 2,

- 29 -

however, is harmless if the ALJ finds the claimant to suffer from
another severe impairment, continues in the evaluation process, and
considers the effects of the impairment at the other steps of the
evaluation process.

Jackson ex rel. K.J. v. Astrue, 734 F. Supp.

2d 1343, 1361 (N.D. Ga. 2010) (harmless error analysis at Step 2 of
child’s disability case).

The ALJ did so here.

As noted above, despite not identifying ODD to be a
severe impairment, the ALJ found D.S. to suffer from another severe
impairment,

that

is,

ADHD.

The

ALJ

then

continued

in

the

evaluation process and considered all aspects of D.S.’s reported
behavior when determining whether D.S.’s impairment or combination
of impairments functionally equaled a listed impairment.

Such

analysis included plaintiff’s report of D.S. fighting with and
bullying other children, throwing tantrums, cursing at the bus
driver, being suspended from school on multiple occasions, and
showing

hostility

to

authority.

(Tr.

14.)

The

ALJ

also

acknowledged educational reports that D.S. had difficulties with
social/emotional behavior, that his behavior adversely affected his
educational performance, and that he had been given an educational
diagnosis of Emotional Disturbance. (Tr. 14-15.) Finally, the ALJ
discussed

the

aggressiveness,

medical

and

difficulty

counselor

in

records

unstructured

which

settings,

noted
school

suspensions, testing boundaries and limits, below normal ability to

- 30 -

relate socially without treatment, and assaulting a teacher.

(Tr.

15-16.)
A review of the ALJ’s decision in toto shows that,
subsequent to his analysis at Step 2, the ALJ considered and
evaluated all of D.S.’s behavioral issues in determining whether
D.S.’s impairment, or combination of impairments, functionally
equaled a listed impairment.

Given the ALJ’s awareness that D.S.

had been diagnosed with ODD and his thorough discussion of the
evidence of record relating to D.S.’s oppositional behavior in
conjunction with D.S.’s symptoms of ADHD, the failure to include
ODD as a severe impairment at Step 2 was harmless.

Jackson, 734 F.

Supp. 2d at 1362; see also Murray v. Astrue, No. 1:12cv08, 2012 WL
3730675, at *20 (N.D. W. Va. July 27, 2012)

(noting, “importantly,

according to the DSMIV,10 ADHD and ODD share numerous traits,”
district court determined that failure of ALJ to find ODD as a
severe impairment was harmless where ALJ found ADHD and Bipolar
Disorder to be severe and continued in evaluation process).
Accordingly, plaintiff’s claim that the Commissioner’s
decision should be reversed on account of the ALJ’s failure to find
D.S.’s ODD to be a severe impairment at Step 2 of the sequential
analysis should be denied.

10

Diagnostic and Statistical Manual of Mental Disorders (4th
ed. 2000).
- 31 -

B.

Teacher Opinion Evidence
Plaintiff claims that the ALJ improperly evaluated the

opinion evidence obtained from D.S.’s first grade teachers, Ms.
Chitwood and Ms. Wright.
Teachers

are

relevant

sources

of

information

in

determining childhood disability. 20 C.F.R. § 416.924a(a)(2)(iii).
Indeed, Social Security Ruling 06-3p considers some non-medical
sources, such as teachers and other educational personnel, to be
“valuable sources of evidence for assessing impairment severity and
functioning” inasmuch as they often “have close contact with the
individuals and have personal knowledge and expertise to make
judgments about their impairment(s), activities, and level of
functioning over a period of time.”
at *3 (S.S.A. Aug. 9, 2006).

SSR 06-03p, 2006 WL 2329939,

When considering opinion evidence

from such a source, the Commissioner may consider such factors as
the nature and extent of the relationship
between the source and the individual, the
source's qualifications, the source's area of
specialty or expertise, the degree to which
the source presents relevant evidence to
support his or her opinion, whether the
opinion is consistent with other evidence, and
any other factors that tend to support or
refute the opinion.
Id. at *5.
Ruling 06-03p further counsels that, in his decision, the ALJ
should

explain

the

weight

given

- 32 -

to

teachers’

opinions,

“or

otherwise ensure that the discussion of the evidence in the . . .
decision allows a claimant or subsequent reviewer to follow the
Id. at *6.

adjudicator’s reasoning.”

Here, the ALJ identified and described the responses
given

by

Ms.

Questionnaires

Chitwood
completed

and

Ms.

in

January

Wright
2009

in

their

Teacher

and

January

2010,

respectively. Specifically, the ALJ noted Ms. Chitwood to indicate
that D.S. was performing on level in math, but below level in
written language; that D.S. was not getting special education
services but was receiving reading support; that D.S. had problems
with

acquiring

and

using

information,

and

attending

to

and

completing tasks; that D.S. had trouble focusing with difficult
tasks and was not asking for help; that D.S. needed a great deal of
support and supervision to complete reading and writing tasks; and
that D.S. was receiving rewards for behavior modification. The ALJ
also noted Ms. Chitwood’s observation that D.S. was able to perform
his class work much better while taking medication, but that D.S.
did not take his medication on a regular basis.

(Tr. 14-15.)

With

respect to Ms. Wright’s Questionnaire, the ALJ noted her opinion
that D.S. was markedly impaired in all areas of acquiring and using
information,

and

extremely

impaired

attending and completing tasks.

in

almost

all

areas

of

The ALJ also noted, however, that

the form was completed in a checklist format without written
comment or explanation.

(Tr. 15.)

- 33 -

Upon review of the other evidence of record, the ALJ
discussed the teachers’ opinions against the backdrop of the record
as a whole:
The claimant’s level of functioning for the
domains must be considered with proper
adherence to the following of recommended
treatment.
The claimant’s teacher, [Ms.
Chitwood],
specifically
noted
that
the
claimant’s functioning was better in school
when he was taking medication, but had
deteriorated as he reported that he was not
actually taking the prescribed medication.
Although a form was submitted . . . from the
claimant’s first grade teacher, [Ms. Wright],
it simply had marks indicating that almost
everything was markedly to extremely limited.
However, the teacher made no supporting
statements and did not indicate whether the
performance was in relation to the claimant
taking or not taking prescribed medications.
The severity of the problems described in the
form therein are not even consistent with the
Special School District assessments since with
the severity described in the form the
claimant would not be able to have placement
within a regular classroom.
The IEP shows
that the claimant is in a regular classroom 76
percent of the time, and does not require
placement in a classroom for children with a
behavior disorder. The claimant’s mother has
given conflicting statements about why she has
discontinued the giving of medications. For
example, she has on different occasions
reported that Tenex was discontinued due to
conflicting
reasons
of
insomnia,
hallucinations, and his heart racing.
When
the claimant was seen for psychological
evaluation by Allison Burner on March 31,
2009, the claimant’s mother reported that her
son was taking prescribed medications even
though both bottles prescribed two months
earlier remained totally full. At the recent
exam by Karen Hampton, Ph.D. the claimant’s
mother had quit giving her son the Risperdal
- 34 -

for the last two weeks.
The school
psychologist had recommended ongoing therapy,
family
therapy,
and
frequent
medication
monitoring, but the claimant is seen only
sporadically by the treating psychiatrist.
(Tr. 21.)
A review of the ALJ’s treatment of Ms. Chitwood’s and Ms.
Wright’s opinions shows him to have considered the factors set out
in SSR 06-03p and to have discussed the opinions in such a fashion
so as to ensure that his reasoning was understood.

Specifically,

the ALJ noted the nature of Ms. Chitwood’s and Ms. Wright’s
relationship with D.S. was that of a teacher-student; that Ms.
Chitwood taught D.S. in all core classes and that Ms. Wright was
D.S.’s current teacher; that Ms. Chitwood provided explanation for
her opinions — including that D.S. performed his class work much
better while taking medication,

while Ms. Wright provided no

supporting explanation for her opinions; that the marked and
extreme limitations opined by Ms. Chitwood and Ms. Wright were
inconsistent with other evidence in the record obtained from
educational personnel and evaluating psychologists; and that D.S.’s
failure

to

consistently

take

medication,

failure

to

undergo

recommended therapy, and failure to regularly see his psychiatrist
were significant factors in finding D.S. not to be so limited as
opined.

Substantial evidence on the record as a whole supports

this reasoning.

- 35 -

While the record is replete with evidence that D.S.
engaged

in

recalcitrant

behavior,

evidence

shows

that

many

professionals opined that D.S. would improve with medication,
therapy, and school intervention.

(See Tr. 234 - Dr. Dahlgren

(2007) opining that medication and therapy may be helpful and, with
school interventions, D.S. “should be able to respond with greater
learning and social potential”; Tr. 244 – Psychologist Burner
(2009) opining that “[w]ith appropriate medical and educational
intervention, he should be able to obtain a high [school] diploma.
.

.

.

With

treatment,

his

symptoms

should

be

sufficiently

controlled and he should be able to attain at a level commensurate
with his ability.”; Tr. 207 – Dr. Corrigan (2009) opining that D.S.
should participate in therapy, frequently follow up with

his

psychiatrist, and undergo psychological testing). However, despite
these repeated recommendations for treatment and therapy with
calculated improvement, and despite evidence of D.S.’s improvement
while

receiving

inconsistent

in

such
the

treatment

and

administration

of

therapy,

plaintiff

was

D.S.’s

medication

and

inconsistent in obtaining the recommended psychiatric treatment and
therapy.

Although plaintiff reported that she determined to cease

giving D.S. certain medications due to adverse side effects, there
is no independent evidence in the record regarding such side
effects.
effects

Nor is there any evidence that she reported such side
to

D.S.’s

treating

psychiatrist

- 36 -

or

that

she

sought

alternative treatment.

Instead, plaintiff determined unilaterally

to stop giving D.S. his prescribed medication. As evidenced in the
record, D.S.’s observed behavior deteriorated when he did not take
his medication.

A parent’s failure to consistently administer

effective medication as prescribed without good reason can be a
proper ground for denying childhood disability benefits.

Blake ex

rel. Blake v. Barnhart, 28 Fed. Appx. 597, 599 (8th Cir. 2002)
(unpublished) (per curiam) (citing Kelley v. Callahan, 133 F.3d
583, 589 (8th Cir. 1998)); Dunahoo v. Apfel, 241 F.3d 1033, 1039-40
(8th

Cir.

2001)

(failure

to

follow

through

with

recommended

treatment an appropriate basis to deny disability benefits).
In addition, although plaintiff reported in October 2009
that D.S. had been treated by a psychiatrist for a period of two
and a half years, the record shows D.S.’s initial treatment with
Dr. Muddasani to have occurred in July 2008.

Further, the record

also shows that for the seventeen-month period between July 2008
and December 2009, D.S. saw Dr. Muddasani on only four occasions.
Indeed, in April 2009, Dr. Muddasani noted that D.S. did not keep
appointments and was not on any medications.

Finally, despite

being advised in September 2007 that in-home therapy would be
beneficial to D.S., and receiving a recommendation in October 2009
that D.S. receive therapy services, plaintiff reported in March
2010 that such services had only recently begun.11
11

March

Cf. Wade for

Other than this statement by plaintiff to Dr. Hampton in
2010, there is no independent evidence in the record
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Robinson v. Callahan, 976 F. Supp. 1269, 1275 (E.D. Mo. 1997) (lack
of ongoing treatment inconsistent with claim of disability in
child-benefits case).
In light of the above, the ALJ properly considered the
opinions rendered by D.S.’s first grade teachers and, upon review
of the entire record as a whole, evaluated such opinions in
accordance with the factors set out in SSR 06-03p.

There was

sufficient evidence in the record upon which the ALJ made informed
findings

regarding

the

inconsistencies

between

the

teachers’

opinions and the other evidence of record, and such findings are
supported by substantial evidence on the record as a whole.

The

ALJ was therefore not required to more fully develop the record to
resolve any inconsistencies between the teachers’ opinions and
other record evidence.

Halverson v. Astrue, 600 F.3d 922, 933 (8th

Cir. 2010); Cox v. Astrue, 495 F.3d 614, 618 (8th Cir. 2007);
Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986).
VI.

Conclusion

For the reasons set out above on the claims raised by
plaintiff on this appeal, the ALJ did not legally err in his
determination to deny D.S. disability benefits, and the decision is
supported by substantial evidence on the record as a whole.
such, plaintiff’s claims of error should be denied.

As

Hensley v.

Barnhart, 352 F.3d 353, 355 (8th Cir. 2003) (even in close cases,

demonstrating that D.S. participated in such therapy.
- 38 -

the court’s role is “simply to review the record for legal error
and

to

ensure

that

the

factual

findings

are

supported

by

substantial evidence.”). Inasmuch as there is substantial evidence
to support the Commissioner's decision, this Court may not reverse
the decision merely because substantial evidence exists in the
record that would have supported a contrary outcome or because
another court could have decided the case differently.

Gowell v.

Apfel, 242 F.3d 793, 796 (8th Cir. 2001); Browning v. Sullivan, 958
F.2d 817, 821 (8th Cir. 1992).
Accordingly, the Commissioner's determination that D.S.
was not disabled at any time since the filing of the application,
that is, November 20, 2008, should be affirmed.
Therefore, for all of the foregoing reasons,
IT

IS

HEREBY

ORDERED

that

the

decision

of

the

Commissioner is AFFIRMED and plaintiff's Complaint is dismissed
with prejudice.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

19th

day of September, 2012.

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