Milleville v. Social Security Administration

Filing 17

MEMORANDUM OPINION re: 11 SOCIAL SECURITY BRIEF re 1 DCM Complaint, filed by Plaintiff Janet Milleville, 16 SOCIAL SECURITY CROSS BRIEF re 11 SOCIAL SECURITY BRIEF re 1 DCM Complaint, filed by Defendant Michael J. Astrue. Case to be remanded to the Commissioner for further proceedings. Signed by Magistrate Judge Lewis M. Blanton on 3/6/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JANET MILLEVILLE,
o/b/o S.P.M., A Minor Child
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 4:12CV 27 LMB

MEMORANDUM
This is a proceeding under 42 U.S.C. § 405(g) for judicial review of the defendant’s final
decision denying Janet Milleville’s application for Supplemental Security Income benefits on
behalf of her grandson, S.P.M., under Title XVI of the Social Security Act. This case has been
assigned to the undersigned United States Magistrate Judge pursuant to the Civil Justice Reform
Act and is being heard by consent of the parties. See 28 U.S.C. § 636(c). Plaintiff has filed a
Brief in Support of Complaint (Document Number 11), and defendant has filed a Brief in Support
of the Answer (Doc. No. 16).
Procedural History
Ms. Milleville filed an application for Supplemental Security Income (SSI) benefits on
behalf of S.P.M. on November 29, 2007, alleging an onset of disability date of March 1, 2004.
(Tr. 87-89). The application was denied initially and, following an administrative hearing,
plaintiff’s claim was denied in a written opinion by an Administrative Law Judge (ALJ), dated

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April 21, 2010. (Tr. 55-59, 12-28). Ms. Milleville thereafter filed a request for review with the
Appeals Council of the Social Security Administration (SSA), which was denied on November 8,
2011. (Tr. 9, 1-4). Thus, the decision of the ALJ stands as the final decision of the
Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
Evidence Before the ALJ
A.

ALJ Hearing
Plaintiff’s administrative hearing was held on September 30, 2009. (Tr. 34). Plaintiff was

present and was represented by counsel. (Id.). Also present was plaintiff’s mother, Bonnie
Carter. (Id.).
Plaintiff’s attorney made an opening statement, in which he indicated that plaintiff has
attention deficit hyperactive disorder (ADHD) and bipolar disorder. (Tr. 36). Plaintiff’s attorney
stated that plaintiff’s impairments prevent him from remaining on task, and cause him to hurt
people and animals. (Id.). Plaintiff’s attorney stated that plaintiff has marked and extreme
limitations, which are disabling. (Id.).
The ALJ examined plaintiff’s mother, Ms. Carter, who testified that she lived with her son
and her husband. (Tr. 37). Ms. Carter stated that her son is eleven years of age. (Id.). Ms.
Carter testified that she applied for benefits on behalf of her son because he gets out of control,
anxious, nervous, “gets an attitude,” and cannot stay on task. (Id.).
Ms. Carter stated that plaintiff has gone from the “A” honor roll to earning “D”s and “F”s.
(Id.). Ms. Carter testified that plaintiff is in the sixth grade. (Id.). Ms. Carter stated that plaintiff
has never appeared in juvenile court, nor has he repeated a grade. (Tr. 38).

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Ms. Carter testified that her family lives in a mobile home that sits on four acres. (Id.).
Ms. Carter stated that she rents the mobile home, and that a housing agency pays for half of her
rent. (Id.). Ms. Carter testified that her family’s source of income is Social Security Disability
and Social Security Income. (Tr. 39). Ms. Carter stated that she and her husband both receive
disability benefits. (Id.). Ms. Carter testified that the family also receives food stamps. (Id.).
Ms. Carter stated that plaintiff receives Medicaid benefits. (Id.).
Ms. Carter testified that plaintiff saw Clayton Davis for a one-time consultation. (Tr. 40).
Ms. Carter stated that plaintiff has seen three to four psychiatrists, and he has seen a counselor.
(Tr. 41). Ms. Carter testified that plaintiff saw the counselor, Nathan Lundin, eight to ten times
but he stopped going over a year prior to the hearing because plaintiff would not talk to him.
(Id.). Ms. Carter stated that plaintiff continues to see psychiatrist Dr. Michael Kent. (Id.).
Ms. Carter testified that plaintiff was hospitalized on one occasion in 2006 or 2007 for his
psychiatric impairments. (Tr. 42).
Plaintiff’s attorney next examined Ms. Carter, who testified that it is difficult to get
plaintiff up in the morning and get him ready for school. (Id.). Ms. Carter stated that she has to
continually ask plaintiff to get dressed, brush his teeth, and get ready, and that they argue every
morning. (Id.). Ms. Carter testified that she repeatedly tells plaintiff to do chores after school,
but he will not do them. (Tr. 43). Ms. Carter stated that plaintiff stomps, runs down the hallway,
and screams if he does not get his way. (Id.).
Ms. Carter testified that plaintiff has had three or four physical altercations with her
husband. (Id.). Ms. Carter stated that she has been married six years. (Id.). Ms. Carter testified

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that, on one occasion, plaintiff punched and kicked her husband because he did not want to go to
school. (Tr. 44).
Ms. Carter stated that plaintiff picked a fight with a fifth grader when he was in
kindergarten. (Id.). Ms. Carter testified that plaintiff has also had verbal altercations with other
children. (Id.).
Plaintiff’s attorney indicated that plaintiff’s medical records noted an incident plaintiff had
with puppies. (Tr. 45). Ms. Carter testified that plaintiff was at his father’s home and wanted to
bring a puppy to her home. (Id.). Ms. Carter stated that, when plaintiff was told he could not
bring the puppy home, he tried to drown the puppies in a pool. (Id.).
Ms. Carter testified that plaintiff wrestles with her small dog and makes him yelp and cry.
(Id.).
Ms. Carter stated that plaintiff takes Tenex,1 Lithium,2 Celexa,3 and a “stomach pill.” (Tr.
46). Ms. Carter testified that plaintiff does not willingly take his medication. (Id.). Ms. Carter
stated that she has to struggle with plaintiff for about twenty minutes to get him to take his
medication. (Id.).
Ms. Carter testified that the night before the hearing plaintiff told her that he had acted like
so many people that he did not know who he was. (Id.). Ms. Carter stated that she found this

1

Tenex is indicated for the treatment of ADHD. See WebMD,
http://www.webmd.com/drugs (last visited February 8, 2013).
2

Lithium is indicated for the treatment of bipolar disorder. See WebMD,
http://www.webmd.com/drugs (last visited February 8, 2013).
3

Celexa is indicated for the treatment of depression. See Physician’s Desk Reference
(PDR), 1161 (63rd Ed. 2009).
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remark troubling. (Tr. 47).
Ms. Carter testified that plaintiff has told her that he hears voices on a couple occasions.
(Id.). Ms. Carter stated that plaintiff has reported this to his psychiatrist. (Id.).
Ms. Carter testified that plaintiff sees his biological father, who is an alcoholic. (Id.).
Ms. Carter stated that plaintiff will not do homework. (Tr. 48). Ms. Carter testified that
she has tried to force plaintiff to do his homework, but she has given up. (Id.).
Ms. Carter stated that plaintiff was on the honor roll in third and fourth grade but he
currently receives “D”s and “F”s. (Id.). Ms. Carter testified that plaintiff changed schools around
this time. (Id.). Ms. Carter stated that plaintiff became angry and mean when he changed
schools, and that he wanted to return to his old school. (Id.). Ms. Carter testified that she sent
plaintiff back to his old school, but his behavior did not change. (Tr. 49).
Ms. Carter stated that plaintiff will not do chores even if she gives him instructions and
reminds him. (Id.). Ms. Carter testified that plaintiff loses his train of thought and wanders off.
(Id.). Ms. Carter stated that the only chore plaintiff can concentrate on performing is picking up
cigarette butts. (Id.). Ms. Carter indicated that she pays plaintiff ten cents for each cigarette butt
he picks up. (Id.). Ms. Carter testified that she occasionally has to supervise plaintiff while he
performs this chore, and plaintiff sometimes performs it without being asked. (Id.).
Ms. Carter stated that plaintiff goes to bed on a regular basis. (Id.).
Ms. Carter testified that, for the past six to seven months, plaintiff has been staying in his
room from the time he gets home from school until the time he goes to bed. (Tr. 50). Ms. Carter
stated that plaintiff is not forced to stay in his room. (Id.). Ms. Carter testified that plaintiff

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watches television and movies, plays video games, and listens to music. (Id.). Ms. Carter stated
that plaintiff is able to concentrate on watching a movie or playing a game if it is a “good” movie
or game, but he screams if it is not going well. (Id.).
Ms. Carter testified that plaintiff screams and kicks the trash can when he is asked to take
out the trash. (Tr. 51).
Ms. Carter stated that plaintiff talks to friends on the phone and attends Youth Group.
(Id.). Ms. Carter testified that plaintiff had only been attending Youth Group for one month, and
he had not gotten into any trouble there yet. (Id.).
The ALJ indicated that he was placing the case in post-development status. (Id.). The
ALJ requested that plaintiff’s attorney obtain the following evidence: records from counselor
Lundin; records from plaintiff’s psychiatric hospitalization; and a complete, up-to-date school
transcript. (Tr. 52). The ALJ also indicated that he would request a psychological evaluation
with testing. (Id.).
B.

Relevant Medical Records
The record reveals that plaintiff received counseling services from Nathan E. Lundin, MA,

from February 2006 through December 2007. (Tr. 281-93). In February 2006, it was noted that
plaintiff was taking Adderall4 and Risperdal.5 (Tr. 289). In March 2006, Mr. Lundin noted that
plaintiff’s mood had improved, although plaintiff reported concerns about getting along with his
father and stepfather. (Tr. 286-87).

4

Adderall is indicated for the treatment of ADHD. See PDR at 3013.

5

Risperdal is indicated for the treatment of schizophrenia. See PDR at 1754.
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On October 5, 2006, Katie Jones, MA, at Crider Center for Mental Health conducted a
Child & Family Assessment, upon referral by plaintiff’s school counselor. (Tr. 203-20).
Plaintiff’s mother reported disruptive behavior, including physical aggression, problems with
authority, property damage, theft, and cruelty to animals. (Tr. 204). Plaintiff was not taking
medication at the time, but he had taken Adderall and Risperdal in the past six months. (Tr. 213).
When asked why he thought he was referred for services, plaintiff responded “because I am evil.”
(Tr. 215). Upon mental status examination, Ms. Jones found that plaintiff was oriented to time
and place, plaintiff was cooperative but arrogant, his memory was normal, and his judgment
appeared appropriate. (Tr. 217). Ms. Jones diagnosed plaintiff with oppositional defiant
disorder6 and attention deficit hyperactivity disorder. (Tr. 218). Ms. Jones assessed a current
GAF score of 55,7 with the highest GAF score in the past year of 58. (Id.). Ms. Jones stated that
plaintiff would benefit from the school based mental health services. (Tr. 217). Plaintiff was to
work on his behavior in the classroom and at home by gaining listening skills, anger management
skills, and organization skills. (Id.). Ms. Jones noted that plaintiff had previously been diagnosed
with ADHD and had been on Adderall. (Tr. 218). Plaintiff was taken off his medication by his
father. (Id.). Ms. Jones stated that plaintiff has difficulty staying on task and is easily distracted.
(Id.). Ms. Jones stated that plaintiff’s social and academic functioning has been impaired by his

6

A disorder of childhood or adolescence characterized by a recurrent pattern of
negativistic, hostile, and disobedient behavior toward authority figures. Stedman’s Medical
Dictionary, 570 (28th Ed. 2006).
7

A GAF score of 51-60 denotes “[m]oderate 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).” Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV), 32 (4th Ed. 1994).
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behaviors, and that the behaviors had been occurring for the past two years. (Id.). Ms. Jones
noted that plaintiff initiates conversations at inappropriate times, touches things he is not
supported to touch, and talks excessively. (Id.).
A School Based Mental Health Specialist (“MHS”) Child & Family Plan was developed on
October 23, 2006. (Tr. 221-24). It was noted that plaintiff was admitted because he was
disruptive in class and it was impacting his learning difficulty in class. (Tr. 221). The objectives
were listed as assisting plaintiff in getting a tutor or after school help; to practice the study skills
after learning the skills; to monitor plaintiff functioning at home weekly; to assist plaintiff in
finding a psychiatrist and therapist; to teach plaintiff appropriate behaviors (social skills); and to
monitor plaintiff’s classroom once a week. (Tr. 222-24). On April 13, 2007, Ms. Jones noted
that goals were achieved and the family no longer wanted to participate in MHS services. (Tr.
227).
Plaintiff presented to Ashok Yanamadala, M.D. on December 4, 2006, at which time it
was noted that plaintiff needed medication. (Tr. 241). Dr. Yanamadala prescribed Adderall and
Risperdal. (Tr. 243). Plaintiff continued to see Dr. Yanamadala for medication management
through October 2007. (Tr. 233-40).
Plaintiff presented to St. Joseph Health Center on May 20, 2007, at which time it was
noted that plaintiff had been off his medications for two days and was “out of control.” (Tr. 334).
Plaintiff’s medications were refilled. (Id.).
On May 24, 2007, Dr. Yanamadala noted that plaintiff was disrespectful, and was
experiencing mood swings. (Tr. 237). Dr. Yanamadala described plaintiff’s mood as labile. (Id.).

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Dr. Yanamadala started plaintiff on Depakote.8 (Id.). In July 2007, Dr. Yanamadala noted that
plaintiff was “doing fine.” (Tr. 233).
Plaintiff presented to the emergency room at SSM Health Care on May 20, 2007, at which
time he was out of control and agitated. (Tr. 334). Plaintiff had been out of medications for two
days and needed his medications refilled. (Id.). Plaintiff was prescribed Adderall and Risperdal.
(Id.).
Plaintiff was hospitalized from November 7, 2007, through November 10, 2007 after
threatening to harm a teacher at school. (Tr. 361). Plaintiff had been suspended after threatening
to hurt the teacher with a sledge hammer, breaking his eyeglasses, and leading him into a casket.
(Id.). Plaintiff did not appear to show any remorse regarding this incident. (Id.). Plaintiff
admitted that he threatened to kill himself and the teacher together. (Id.). It was noted that
plaintiff tied a seat belt around his neck, and made gestures of stabbing a pencil through his chest.
(Tr. 401). Plaintiff also tried to hurt his mother and others. (Id.). Plaintiff had sudden mood
swings and anxiety every day. (Id.). Plaintiff had been seeing Dr. Yanamadala for his anger
problems, stress, and violent behaviors. (Tr. 361). Plaintiff had run away from home and had
been involved with the police. (Id.). Saaid Khojasteh, M.D. found that plaintiff was a danger to
himself and others. (Tr. 402). Plaintiff received medication management during his
hospitalization until he was stabilized. (Tr. 361). Plaintiff received individual and group
counseling, anger management and behavior modification. (Id.). Plaintiff’s mood and behavior
improved to the extent he was safe to be discharged. (Id.). Plaintiff’s discharge diagnoses were
8

Depakote is indicated for the treatment of manic or mixed episodes associated with
bipolar disorder. See PDR at 423.
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impulse control disorder, ADHD, and probable bipolar disorder, with a GAF score of 50.9 (Id.).
Plaintiff’s discharge medications were Depakote and Tenex. (Id.). Dr. Khojasteh referred
plaintiff to Catholic Family Services, and noted that plaintiff must see a psychiatrist. (Id.).
Plaintiff presented to Catholic Family Services on December 7, 2007, with reports of
“outrage, anger, uncontrollable.” (Tr. 246). Upon mental status exam, plaintiff had a sullen
demeanor. (Tr. 247). Plaintiff was diagnosed with generalized anxiety disorder, with a GAF
score of 50. (Id.). Plaintiff’s medications were continued. (Id.).
Plaintiff saw Mr. Lundin on December 10, 2007. (Tr. 281). It was recommended that a
police officer talk to plaintiff about his behavior the past two weeks. (Id.).
On December 20, 2007, plaintiff underwent a Child & Family Assessment at Crider Health
Center. (Tr. 312). When asked how he had been feeling, plaintiff reported “mad, angry and sorta
breaking the rules.” (Id.). Plaintiff’s mother reported that plaintiff had been physically
aggressive, had problems with authority, had problems with theft, and was cruel to animals. (Tr.
313). Plaintiff was scared of the dark and of being alone because he was afraid someone would
take him. (Id.). Plaintiff had mood swings daily, anxiety, irritability, increased energy,
uncontrolled anger, was isolative, depressed, and withdrawn. (Id.). Pamela Fox, MA, observed
that plaintiff seemed very angry at other kids and said that he wanted to hurt them, but he had no
real plan to do it. (Tr. 323). Plaintiff also reported suicidal thoughts about hanging himself.
(Id.). Ms. Fox found that plaintiff’s memory was very good and his recall was excellent. (Tr.

9

A GAF score of 41 to 50 indicates “serious symptoms” or “any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IV at
32.
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324). Plaintiff’s judgment was normal. (Id.). Plaintiff was irritable and argumentative, and acted
as though the evaluation were a waste of his time. (Tr. 325). Plaintiff’s thought process was
normal. (Id.). Plaintiff exhibited some “magical thinking,” about being a wrestler or rock
star/rapper. (Tr. 326). Ms. Fox found that plaintiff’s intellect was above normal and described
plaintiff as “very smart.” (Id.). Ms. Fox noted concerns regarding the seriousness of comments
plaintiff made regarding hurting himself and others. (Id.). Ms. Fox diagnosed plaintiff with
bipolar disorder and ADHD, with a current GAF score of 50 and the highest GAF score in the
past year of 55. (Id.). Ms. Fox stated that plaintiff has a lot of difficulty managing his actions and
behavior and needs to learn strategies to help him express his feelings in more appropriate ways.
(Tr. 327). Ms. Fox stated that plaintiff also has a lot of trouble respecting authority and
frequently gets in power struggles with them. (Id.). She indicated that plaintiff is extremely
intelligent and believes he must act the way he does, which will make it hard to get him to change
his current way of dealing with problems. (Id.). Ms. Fox expressed the opinion that plaintiff
needs a structured, consistent environment that will allow him to learn how to express his feelings
safely. (Id.). Ms. Fox noted that plaintiff was currently taking medication and that plaintiff’s
mother reports plaintiff is “like the devil” when not taking medication. (Tr. 328).
On December 27, 2007, Ms. Fox authored “Critical Intervention Strategies.” (Tr. 311).
Ms. Fox indicated that a specific predictor of psychiatric decompensation for plaintiff was anxiety
about a situation where students were bullying or making fun of plaintiff and he was very paranoid
and needed control. (Id.). Plaintiff threatened to kill himself or someone else. (Id.).
Interventions were discussed. (Id.).

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On February 26, 2008, state agency psychologist Judith McGee, Ph.D. completed a
Childhood Disability Evaluation Form. (Tr. 250-54). Dr. McGee found that plaintiff’s ADHD
and bipolar disorder were severe but did not meet, medically equal, or functionally equal the
listings. (Tr. 250). Dr. McGee expressed the opinion that plaintiff had less than marked limitation
in the domains of Attending and Completing Tasks, Interacting and Relating with Others, and
Caring for Yourself; and no limitation in the domains of Acquiring and Using Information,
Moving About and Manipulating Objects, and Health and Physical Well-Being. (Tr. 252).
Plaintiff underwent an Annual Youth Update Assessment at Crider Health Center on
December 9, 2008. (Tr. 298-305). Plaintiff’s presenting problems were identified as
behavioral/emotional concerns. (Tr. 298). Plaintiff denied any thoughts of harming himself or
others. (Tr. 300). Plaintiff was pleasant and cooperative, his thought process was appropriate,
and his attention was appropriate. (Tr. 301-03). Dr. Holeman diagnosed plaintiff with bipolar
disorder and ADHD, with a GAF score of 55. (Id.). Dr. Holeman’s recommendations for
treatment goals were: social skills, communication skills, and anger management. (Tr. 303).
Plaintiff presented to Michael Kent, M.D. at Crider Health Center on July 24, 2009, for an
initial psychiatric assessment. (Tr. 296-97). Plaintiff’s chief complaint was described as
longstanding problems with emotional lability and poor impulse control. (Tr. 296). Dr. Kent
indicated that plaintiff tends to be oppositional when his wants are frustrated, but had not recently
been out of control. (Id.). Plaintiff’s overall mood was fair. (Id.). Plaintiff was reportedly
emotionally and physically abused by his father. (Id.). Plaintiff’s mother was bipolar. (Id.).
Plaintiff reportedly could achieve grades but “quit trying,” and did poorly in the past school year.

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(Id.). Plaintiff’s medications were listed as Celexa, Tenex, Risperdal, Lithium, and Ranitidine.10
(Id.). Dr. Kent described plaintiff as cooperative, gregarious, and spontaneous. (Tr. 297).
Plaintiff’s mood was good and his affect was bright and congruent with his mood. (Id.). Dr.
Kent diagnosed plaintiff with bipolar type I disorder,11 stable; ADHD; and a GAF score of 60.
(Id.). Dr. Kent continued plaintiff’s medications. (Id.).
On September 3, 2009, plaintiff underwent an annual MHS review. (Tr. 306-10). It was
noted that plaintiff continued to struggle with social skills, self-esteem issues, communication
issues, and possibly attachment issues. (Tr. 309). It was noted that MHS would continue to
work with school staff closely and would address appropriate anger management skills. (Id.).
Plaintiff presented to Walter Clayton Davis, MA, LPC, for an evaluation on September 10,
2009. (Tr. 263-67). Mr. Davis noted that plaintiff had difficulties remaining focused throughout
the interview, required redirection, and periodically would get out of his seat to move around the
conference room. (Tr. 266). Plaintiff denied any thoughts of harming himself or others. (Id.).
Plaintiff’s mother reported that plaintiff had progressively been having more behavioral issues
with outbursts and attention span difficulties, with noticeable increase in problems since the third
grade. (Id.). Plaintiff’s mother indicated that plaintiff had been having problems with peer
relations in the classroom as well as problems listening to instructions in the classroom, and that
his school considered holding him back one grade. (Id.). Plaintiff’s mother indicated that plaintiff
had difficulties at home with regard to chores, homework, and redirection. (Id.). Plaintiff and his

10

Ranitidine is indicated for treatment of gastric ulcer and GERD. See PDR at 1672.

11

An affective disorder characterized b the occurrence of alternating (e.g., mixed, manic,
and major depressive) episodes. Stedman’s at 568.
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mother reported the following symptoms: difficulty with maintaining focus on instructions/tasks;
impulsiveness; verbal outbursts; inconsistent grades with drops in performance; mood swings; and
aggressive behaviors. (Tr. 267). Mr. Davis diagnosed plaintiff with ADHD, bipolar depression,
and assessed a GAF score of 40.12 (Id.). Mr. Davis also completed a Mental Residual Functional
Capacity Assessment, in which he expressed the opinion that plaintiff was markedly limited in the
majority of areas assessed, and moderately limited in the remaining areas. (Tr. 263-64).
Plaintiff presented to Dr. Kent on October 15, 2009, at which time it was noted that
plaintiff had received in-school suspensions and out -of-school suspensions for disruptive and
aggressive or silly behaviors. (Tr. 329). Plaintiff admitted to getting angry quickly and then
reacting before thinking. (Id.). It was noted that plaintiff’s mood was labile, and that plaintiff
would go from being fine to a very oppositional state, and then be fine again within minutes.
(Id.). Upon examination, plaintiff’s mood was “ok,” his affect was euthymic, and plaintiff was at
times silly and argumentative. (Id.). Plaintiff reported that his quick anger gets him in trouble.
(Id.). Dr. Kent diagnosed plaintiff with bipolar type I disorder, labile; and ADHD. (Id.). Dr.
Kent increased plaintiff’s dosages of Lithium and Risperdal. (Id.).
Plaintiff saw David A. Lipsitz, Ph.D. for a psychological consultation at the request of the
state agency on October 19, 2009. (Tr. 405-08). Dr. Lipsitz found that plaintiff was pleasant
appearing and appeared in some acute distress. (Tr. 407). Plaintiff’s affect was bright and his
mood was one of anger. (Id.). Plaintiff tended to be somewhat impulsive and showed a flight of
12

A GAF score of 31 to 40 denotes “[s]ome impairment in reality testing or
communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable to work...).” DSM-IV at 32.
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ideas and push of speech, but there was no evidence of any significant suicidal ideations or
impulses. (Id.). Dr. Lipsitz found that plaintiff’s intellectual functioning appeared to be within the
“borderline” range. (Id.). Plaintiff’s short-term memory was deficient, his general range of
knowledge appeared to be “quite narrow,” and his knowledge of mathematic functions was poor.
(Id.). Plaintiff’s social awareness and judgment were poor, and plaintiff was unable to make
adequate generalizations based on past social experiences. (Id.). Plaintiff’s thought processes
were primarily preoccupied with his anger, his mood swings, the “opposite sex,” and his difficulty
relating within society. (Id.). Dr. Lipsitz diagnosed plaintiff with bipolar disorder, oppositional
defiant disorder, rule out ADHD, borderline intellect, and a GAF score of 50. (Id.). Dr. Lipsitz
stated that plaintiff was “certainly in need of ongoing psychiatric treatment combining medication
with individual psychotherapy and behavior management counseling within the home
environment.” (Id.).
C.

School Records
Plaintiff’s report card for the school year ending June 2004 reveals that plaintiff either met

or exceeded expectations in every subject except Spelling, in which it was noted plaintiff was
“experiencing difficulty/requires additional practice.” (Tr. 118).
For the 2004-2005 school year, plaintiff met expectations in all subjects except Reading
and Writing/Language. (Id.).
For the 2006 school year, plaintiff met or exceeded expectations in every subject. (Id.).
For the 2007 school year, plaintiff’s grades ranged from “A+” to “B-.” (Tr. 118).
Plaintiff’s teachers commented that plaintiff was “working towards his full potential. He gets

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along well with his classmates and is a joy to have in class.” (Tr. 120). It was also noted that
plaintiff was “doing well in all aspects of school. He comprehends lessons quickly. He is a bright
student.” (Id.). Finally, a teacher stated that plaintiff was “a brilliant child. He is learning to take
responsibility for his choices. He is a thoughtful and humorous person and I loved having him in
my class. I have no doubt he will do well in all that he does!” (Id.).

The ALJ’s Determination
The ALJ made the following findings:
1.

The claimant was born on December 22, 1997. Therefore, he was a school-age
child on November 29, 2007, the date the application was filed, and is currently an
adolescent (20 CFR 416.926a(g)(2)).

2.

The claimant has not engaged in substantial gainful activity since November 29,
2007, the application date (20 CFR 416.924(b) and 416.971 et seq.).

3.

The claimant has the following severe impairments: attention deficit hyperactivity
disorder; bipolar disorder; oppositional defiant disorder. (20 CFR 416.924(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).

5.

The claimant does not have an impairment or combination of impairments that
functionally equals the listings (20 CFR 416.924(d) and 416.926a).

6.

The claimant has not been disabled, as defined in the Social Security Act, since
November 29, 2007, the date the application was filed (20 CFR 416.924(a)).

(Tr. 18-28).
The ALJ’s final decision reads as follows:
Based on the application for supplemental security income filed on November 29, 2007,
the claimant is not disabled under section 1614(a)(3)(C) of the Social Security Act.
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(Tr. 28).

Discussion
A.

Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to

the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner’s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner’s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). “[T]he court
must also take into consideration the weight of the evidence in the record and apply a balancing
test to evidence which is contrary.” Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998). The
analysis required has been described as a “searching inquiry.” Id.

B.

The Determination of Disability
A child is considered disabled if that child “has a medically determinable physical or mental

impairment, which results in marked and severe functional limitations” and which lasts for a
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period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(C)(i),(ii). The Commissioner has
established a three-step process for determining whether a child is disabled under the Social
Security Act. See 20 C.F.R. § 416.924. Under the first step, it is determined whether the child
was engaged in substantial gainful activity. If substantial gainful activity is being performed, then
a finding of no disability is warranted. See 20 C.F.R. §§ 416.924(b). Next, it is determined
whether the child’s impairments are severe. See 20 C.F.R. §§ 416.924(c). If a severe impairment
is found, the next issue is whether the child’s impairment meets or medically equals a listed
impairment found in Appendix One to 20 C.F.R. 404. See 20 C.F.R. §§ 416.924(d); 20 C.F.R.
pt. 404, subpt. P, App. 1. If it is determined that the impairment does not meet or medically equal
a listing, then the final consideration is whether the child’s impairment “functionally equals” a
listed impairment. See 20 C.F.R. § 416.924(d).
An ALJ is to evaluate, in determining functional equivalence, a child’s functional
limitations in: (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
himself/herself, and (6) health and physical well-being. See 20 C.F.R. § 416.926a (b)(1)(i)-(vi).
A medically determinable impairment or combination of impairments functionally equals a listed
impairment if it results in “marked” limitations in two domains or an “extreme” limitation in one
domain. See 20 C.F.R. § 416.926a(d).
A “marked” limitation is a limitation which is “more than moderate” but “less than
extreme.” 20 C.F.R. § 416.926a (e)(2)(i). A “marked” limitation can also be “equivalent to
standardized testing with scores that are at least two, but less than three, standard deviations

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below the mean.” Id.
An “extreme” limitation is “more than marked,” and is given “to the worst limitations,”
although it need not necessarily mean a total lack or loss of ability to function. 20 CF.R. §
416.926a(e)(3)(i).
C.

Plaintiff’s Claims on Appeal
Plaintiff first argues that the ALJ failed to fully and fairly develop the record. Plaintiff next

contends that the ALJ failed to consider a structured setting. Plaintiff finally argues that the ALJ
failed to properly consider plaintiff’s failure to follow prescribed treatment. The undersigned will
discuss plaintiff’s claims in turn.
As previously stated, plaintiff contends that the ALJ failed to fully and fairly develop the
record. Specifically, plaintiff argues that the ALJ should have obtained plaintiff’s most recent
school records. Plaintiff also argues that the ALJ should have obtained an opinion from plaintiff’s
treating sources. Finally, plaintiff contends that the ALJ erred in weighing the medical opinion
evidence.
“Because the social security disability hearing is non-adversarial, . . . the ALJ’s duty to
develop the record exists independent of the claimant’s burden in the case.” Stormo v. Barnhart,
377 F.3d 801, 806 (8th Cir. 2004). This duty includes the ordering of a consultative examination
when such an evaluation is necessary for an informed decision. Haley v. Massanari, 258 F.3d
742, 749 (8th Cir. 2001). Although the ALJ “must neutrally develop the facts,” the ALJ need not
“seek additional clarifying statements from a treating physician unless a crucial issue is
undeveloped.” Stormo, 377 F.3d at 806. The ALJ also need not order a consultative

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examination if the record contains substantial evidence to support the ALJ’s decision. Haley, 258
F.3d at 749. If an ALJ fails to fairly develop the record, the court may remand for the taking of
additional evidence. Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002). “‘There is no
bright line test for determining when the [Commissioner] has . . . failed to develop the record.
The determination in each case must be made on a case by case basis.’” Gregg v. Barnhart, 354
F.3d 710, 712 (8th Cir. 2003) (quoting Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994)).
In this case, the ALJ instructed plaintiff’s attorney to obtain an “up-to-date school
transcript.” (Tr. 52). In his decision, the ALJ acknowledged that the record contains reports
from plaintiff and his mother of significant disciplinary issues resulting in in-school suspensions,
out-of-school suspensions, detentions, and referrals; and reports by plaintiff’s mother that
plaintiff’s grades are failing. (Tr. 20-21). The ALJ indicated that plaintiff’s attorney had not
submitted up-to-date school records as of the date of the decision. (Tr. 21). The ALJ stated that
he had “drawn an adverse inference, noting that the missing school records must not support the
allegations of the claimant’s mother.” (Id.). The ALJ pointed out that the school records that are
in the evidence of record reveal that plaintiff was obtaining passing grades and was not a
disciplinary concern. (Id.).
The undersigned find that the ALJ erred in failing to obtain plaintiff’s school records. The
most recent school records available are from 2007, when plaintiff was in the third grade. As the
ALJ noted, these records reveal that plaintiff was achieving satisfactory grades and did not have
any disciplinary issues. Plaintiff’s mother testified that plaintiff received good grades and was
even on the honor roll when he was in third grade, but reported that his grades subsequently

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declined and he was earning “D”s and “F”s at the time of the September 2009 hearing. (Tr. 48).
Plaintiff’s mother’s testimony regarding a decline in plaintiff’s grades and behavior at school is
consistent with reports she provided to plaintiff’s treating mental health providers. (Tr. 314, 296,
266, 329, 405). All of these providers found plaintiff’s mother to be reliable. (Id.).
The ALJ acknowledged plaintiff’s mother’s testimony that plaintiff received failing grades
at the time of the hearing, but determined that her allegations were not credible due to the failure
of plaintiff’s attorney to submit these records. The record, however, contains other references to
plaintiff’s difficulties in school. For example, in a Child & Family Assessment conducted in
December 2007 by Pamela Fox, MA, at Crider Health Center, it is noted that plaintiff was in
fourth grade and was “currently failing in several subjects.” (Tr. 317). Ms. Fox also noted that
plaintiff had received in-school suspensions, out of school suspensions, and was experiencing
“academic problems.” (Id.). Ms. Fox stated that plaintiff “was suspended before Christmas break
for 10 days + recently had 3 days ISS.” (Id.). Ms. Fox indicated in her assessment that, in
addition to plaintiff and his mother, plaintiff’s school counselors were “informants” used to
conduct the assessment. (Tr. 312). Thus, the record is supportive of plaintiff’s mother’s
allegations of a decline in plaintiff’s grades and behavior at school after third grade. Under these
circumstances, the ALJ had an independent duty to obtain plaintiff’s up-to-date school records.

Plaintiff also argues that the ALJ erred in weighing the medical opinion evidence. In
analyzing medical evidence, “[i]t is the ALJ’s function to resolve conflicts among ‘the various
treating and examining physicians’” Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001)

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(quoting Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995)). “Ordinarily, a treating physician’s
opinion should be given substantial weight.” Rhodes v. Apfel, 40 F. Supp.2d 1108, 1119 (E.D.
Mo. 1999) (quoting Metz v. Halala, 49 F.3d 374, 377 (8th Cir. 1995)). Further, a treating
physician’s opinion will typically be given controlling weight when the opinion is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] record.” Prosch v. Apfel, 201 F.3d 1010, 1012-1013 (8th
Cir. 2000) (quoting 20 C.F.R. § 404.1527 (d)(2) (bracketed material in original). Such opinions,
however, do “not automatically control, since the record must be evaluated as a whole.” Id. at
1013 (quoting Bentley, 52 F.3d at 785-786). Opinions of treating physicians may be discounted
or disregarded where other “medical assessments ‘are supported by better or more thorough
medical evidence.’” Id. (quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997)).
With regard to the opinion evidence, the ALJ indicated that he was assigning “great
weight” to the opinion of state agency psychologist Dr. McGee, and “little weight” to the
opinions of consulting counselor Mr. Davis and consulting psychologist Dr. Lipsitz. (Tr. 21).
On February 26, 2008, Dr. McGee completed a Childhood Disability Evaluation Form.
(Tr. 250-54). Dr. McGee found that plaintiff’s ADHD and bipolar disorder were severe but did
not meet, medically equal, or functionally equal the listings. (Tr. 250). Dr. McGee expressed the
opinion that plaintiff had less than marked limitation in the domains of Attending and Completing
Tasks, Interacting and Relating with Others, and Caring for Yourself; and no limitation in the
domains of Acquiring and Using Information, Moving About and Manipulating Objects, and
Health and Physical Well-Being. (Tr. 252).

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The undersigned finds that the ALJ erred in relying on the opinion of non-examining state
agency psychologist Dr. McGee. The ALJ acknowledged that additional evidence had been
added to the record since Dr. McGee provided her opinion, and that Dr. McGee did not have the
benefit of examining the claimant, yet nonetheless found that Dr. McGee was a “specialist” and
that her opinion was “widely consistent with the overall evidence of record.” (Tr. 21).
The medical evidence reveals that plaintiff experienced significant psychiatric symptoms
beginning around the end of 2007. Plaintiff was hospitalized from November 7, 2007, through
November 10, 2007, after threatening to harm a teacher at school. (Tr. 361). Plaintiff admitted
that he threatened to kill himself and the teacher together and showed no remorse regarding the
incident. (Id.). It was also noted that plaintiff had tried to hurt his mother and others, and
experienced sudden mood swings and anxiety daily. (Tr. 401). Plaintiff was found to be a danger
to himself and others and received medication management until he was stabilized. (Tr. 361,
402). In December 2007, plaintiff presented to counseling at Catholic Family Services with
reports of outrage, anger, and being uncontrollable. (Tr. 246). Plaintiff had a sullen demeanor,
and was diagnosed with generalized anxiety disorder. (Id.). Plaintiff later spoke to a police
officer about his behavior. (Tr. 281). On December 20, 2007, Ms. Fox noted that plaintiff
seemed very angry at other kids and indicated that he wanted to hurt them, and also reported
suicidal thoughts about hanging himself. (Tr. 323). While Ms. Fox described plaintiff as “very
smart,” he was irritable and argumentative during his examination, and exhibited magical thinking.
(Tr. 326). Ms. Fox expressed concern regarding the seriousness of comments plaintiff made
regarding hurting himself and others, and diagnosed him with bipolar disorder and ADHD. (Id.).

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Plaintiff denied any thoughts of harming himself or others in December 2008. (Tr. 300). When
plaintiff initially presented to Dr. Kent in July 2009, it was noted that plaintiff had not recently
been out of control, although plaintiff reportedly “quit trying” in school and performed poorly the
past school year. (Tr. 296). Plaintiff’s mood was fair and he was diagnosed with stable bipolar
type I disorder and ADHD. (Tr. 297). In a September 2009 MHS review, it was noted that
plaintiff continued to struggle with social skills, self-esteem issues, communication issues, and
possibly attachment issues. (Tr. 309). In October 2009, Dr. Kent noted that plaintiff had
received in-school and out-of-school suspensions for disruptive and aggressive or “silly”
behaviors. (Tr. 329). Dr. Kent found that plaintiff’s mood was labile and plaintiff admitted to
getting angry quickly. (Id.). Dr. Kent diagnosed plaintiff with bipolar type I disorder, labile; and
ADHD; and increased plaintiff’s dosages of medication. (Id.).
In light of the evidence discussed above, it cannot be said that Dr. McGee’s findings that
plaintiff has “less than marked” limitation in the domains of Attending and Completing Tasks,
Interacting and Relating with Others, and Caring for Yourself is consistent with the evidence of
record. “[T]he opinion of a consulting physician who examines a claimant once or not at all does
not generally constitute substantial evidence.” Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir.
2000). As the ALJ noted, not only did Dr. McGee not examine plaintiff, but she did not have the
benefit of reviewing plaintiff’s more recent medical records. This evidence reveals that plaintiff
continued to experience significant psychiatric symptomatology and experienced behavioral
problems in school.
The ALJ indicated that he was assigning little weight to the opinions of Mr. Davis and Dr.

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Lipsitz because these opinions appeared to be based on plaintiff’s subjective complaints and these
sources were not treating providers but were only one-time consultants. Plaintiff saw Mr. Davis
for an evaluation in September 10, 2009. (Tr. 263-67). Mr. Davis noted that plaintiff had
difficulties remaining focused throughout the interview, required redirection, and periodically
would get out of his seat to move around the conference room. (Tr. 266). Plaintiff denied any
thoughts of harming himself or others. (Id.). Plaintiff’s mother reported significant difficulties
plaintiff had been experiencing at school and at home. (Tr. 266-67). Mr. Davis expressed the
opinion that plaintiff was markedly limited in the majority of areas assessed, and moderately
limited in the remaining areas. (Tr. 263-64). The ALJ accurately pointed out that Mr. Davis did
not conduct any testing, nor is there a documented mental status examination. The ALJ’s finding
that Mr. Davis’ opinion appears to be based solely on plaintiff’s subjective complaints is also
supported by the record. In fact, Mr. Davis states in his report that “[plaintiff] and his mother
report that he has the following symptoms...” (Tr. 267). Thus, the ALJ provided sufficient
reasons for assigning little weight to the opinions of Mr. Davis.
Plaintiff argues that the ALJ erred in discrediting the opinions of Dr. Lipsitz. Plaintiff saw
Dr. Lipsitz for a psychological consultation at the request of the state agency in October 2009.
(Tr. 405-08). Upon mental status examination, Dr. Lipsitz found that plaintiff appeared in some
acute distress, his affect was bright, his mood was one of anger, he tended to be somewhat
impulsive, and he showed a flight of ideas and push of speech. (Tr. 407). Dr. Lipsitz found that
plaintiff’s intellectual functioning appeared to be within the borderline range; his short-term
memory was deficient; his general range of knowledge appeared to be quite narrow; his social

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awareness and judgment were poor; his knowledge of mathematic functions was poor; and his
thought processes were primarily preoccupied with his anger, mood swings, the opposite sex, and
his difficulty relating within society. (Id.). Dr. Lipsitz diagnosed plaintiff with bipolar disorder,
oppositional defiant disorder, rule out ADHD, borderline intellect, and a GAF score of 50. (Id.).
As support for assigning little weight to Dr. Lipsitz’s opinions, the ALJ noted that Dr.
Lipsitz did not have a treating relationship with plaintiff, his opinion appeared to be based on the
subjective complaints from plaintiff and his mother, and his findings were not supported by the
overall evidence of record. (Tr. 21-22). There is no indication in Dr. Lipsitz’s report, however,
that he based his findings on the subjective complaints of plaintiff or plaintiff’s mother. Rather,
Dr. Lipsitz described detailed findings he observed upon mental status examination. (Tr. 407).
While the ALJ discredited Dr. Lipsitz’s opinion, in part, because he did not have a treating
relationship with plaintiff, none of plaintiff’s treating providers expressed an opinion regarding
plaintiff’s limitations. Dr. Lipsitz did examine plaintiff on one occasion, whereas Dr. McGee’s
opinions are based solely on her review of the record.
The majority of Dr. Lipsitz’s findings are supported by the record. The only finding that
lacks support is Dr. Lipsitz’s diagnosis of borderline intellect. There is no other indication in the
medical or school records that plaintiff’s intellectual functioning is deficient. In fact, plaintiff’s
teachers described him as “bright,” and even “brilliant.” (Tr. 120).
In sum, the record reveals that plaintiff suffered from significant psychiatric symptoms,
including mood disturbances, and thoughts of harming himself and others. The record also lends
support to plaintiff’s mother’s testimony that plaintiff’s grades and behavior declined after the

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third grade. The ALJ, however, failed to fully develop the record by obtaining plaintiff’s up-todate school records. The ALJ also erred in relying on the opinion of a non-examining state
agency psychologist, when the psychologist’s opinion was not supported by the record and she
did not have the benefit of reviewing plaintiff’s more recent medical records. While the ALJ
provided some sufficient reasons for discrediting the findings of the consultative examiners, this
simply underscores the fact that there is no evidence from any treating sources regarding
plaintiff’s limitations.
Plaintiff also argues that the ALJ failed to consider a structured setting, and that the ALJ
improperly considered plaintiff’s failure to follow prescribed treatment. The undersigned finds
that these additional arguments lack merit. The decision of the Commissioner will be reversed
and remanded on the grounds previously discussed.

Conclusion
The ALJ erred in failing to fully and fairly develop the record by obtaining plaintiff’s
complete school records. The ALJ also erred in relying on the opinion of a non-examining state
agency psychologist. The ALJ’s determination that plaintiff has less than marked limitation in the
domains of Attending and Completing Tasks, Interacting and Relating with Others, and Caring for
Yourself is not supported by substantial evidence in the record as a whole. For these reasons, this
cause will be reversed and remanded to the ALJ in order for the ALJ to properly develop the
record by obtaining plaintiff’s complete school records; obtain additional medical evidence
regarding plaintiff’s limitations; and re-evaluating plaintiff’s limitation in the domains of Attending

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and Completing Tasks, Interacting and Relating with Others, and Caring for Yourself.
Accordingly, a Judgment of Reversal and Remand will be entered separately in favor of plaintiff in
accordance with this Memorandum.

Dated this 6th day of March, 2013.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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