Deboe v. Colvin
Filing
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ORDER denying motion for summary judgment and affirming the decision of the Commissioner. Signed on 12/13/16 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LADONNA DEBOE o/b/o DDD-R,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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Case No. 16-0195-CV-W-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This is a proceeding under Title XVI of the Social Security Act (the Act), 42
U.S.C. §§ 1381, et seq. Section 1631(c)(3)of the Act, 42 U.S.C. §1383(c)(3), provides
that “[t]he final determination of the Commissioner . . . shall be subject to judicial review
as provided in section 205(g) [42 U.S.C. § 405(g)] to the same extent as the
Commissioner’s final determination under section 205.”
Plaintiff argues that the administrative law judge erred by (1) failing to find that
plaintiff’s impairments met or medically equaled Listing 112.11 and (2) inappropriately
weighing the evidence by (a) failing to give controlling weight to Latha Venkatesh, M.D.;
(b) failing to mention the opinion of Tamera Bryant, plaintiff’s kindergarten teacher; and
(c) giving controlling weight to the opinion of Dr. Isenberg who did not treat plaintiff.
I find that there is substantial evidence in the record to support the ALJ’s decision.
Therefore, plaintiff’s motion for summary judgment will be denied and the decision of
the Commissioner will be affirmed.
I.
BACKGROUND
On July 24, 2013, plaintiff’s mother, acting on plaintiff’s behalf, protectively filed
an application for child’s supplemental security income (“SSI”) benefits based on
disability under Title XVI, alleging disability beginning June 1, 2013, due to attention
deficit hyperactivity disorder (“ADHD”). The application was denied initially on
September 30, 2013. On November 19, 2014, Administrative Law Judge George Bock
held a hearing. The ALJ found on December 23, 2014, that plaintiff is not disabled. On
January 16, 2016, the Appeals Council denied plaintiff’s request for review. Therefore,
the opinion of the ALJ stands as the final decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
The standard of appellate review of the Commissioner’s decision is limited to a
determination of whether the decision is supported by substantial evidence on the
record as a whole. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial
evidence is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support the Commissioner’s conclusion. Juszczyk v. Astrue, 542
F.3d 626, 631 (8th Cir. 2008). Evidence that both supports and detracts from the
Commissioner’s decision should be considered, and an administrative decision is not
subject to reversal simply because some evidence may support the opposite
conclusion. Finch v. Astrue, 547 F.3d at 935 (citing Eichelberger v. Barnhart, 390 F.3d
584, 589 (8th Cir. 2004)). A court should disturb the ALJ’s decision only if it falls
outside the available “zone of choice,” and a decision is not outside that zone of choice
simply because the court may have reached a different conclusion had the court been
the fact finder in the first instance. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.
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2006) (citations omitted). The Eighth Circuit has further noted that a court should “defer
heavily to the findings and conclusions of the SSA.” Howard v. Massanari, 255 F.3d
577, 581 (8th Cir. 2001).
An individual under the age of 18 will be considered disabled if he has a
medically determinable physical or mental impairment that results in marked and severe
functional limitations, and that 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.
Notwithstanding, no individual under the age of 18 who engages in substantial gainful
activity may be considered to be disabled. The Social Security Administration has
established a three-step sequential evaluation process to determine whether an
individual under the age of 18 is disabled. 20 C.F.R. § 416.924(a).
1.
Is the claimant engaging in substantial gainful activity?
Yes = Not disabled.
No = Go to next step.
2.
Does the claimant have a medically determinable impairment or
combination of impairments that is severe?
No = Not disabled.
Yes = Go to next step.
3.
Does the claimant have an impairment or combination of impairments that
meets or medically equals the criteria of a listing or that functionally equals the listings
and has or is expected to last at least 12 months?
Yes = Disabled.
No = Not disabled.
Whether an impairment or combination of impairments functionally equals the
listings depends on how appropriately, effectively, and independently the claimant
performs activities in six domains -- (1) acquiring and using information, (2) attending
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and completing tasks, (3) interacting and relating with others, (4) moving about and
manipulating objects, (5) caring for himself, and (6) health and physical well-being -- as
compared to other children of the same age who do not have impairments. To
functionally equal the listings, the claimant’s impairment or combination of impairments
must result in “marked” limitations in two domains of functioning or an “extreme”
limitation in one domain of functioning. 20 C.F.R. § 416.926a(d).
A child has an “extreme” limitation in a domain when his impairment interferes
“very seriously” with his ability to initiate, sustain, or complete activities independently.
20 C.F.R. § 416.926a(e)(3). A child’s day-to-day functioning may be “very seriously”
limited when his impairment limits only one activity or when the interactive and
cumulative affects of his impairment limit several activities. An “extreme limitation” also
means:
1.
A limitation that is “more than marked.”
2.
The equivalent of functioning that would be expected on standardized
testing with scores that are at least three standard deviations below the mean.
3.
A valid score that is three standard deviations or more below the mean on
a comprehensive standardized test designed to measure ability or functioning in that
domain, and his day-to-day functioning in domain-related activities is consistent with
that score.
4.
For the domain of health and physical well-being, episodes of illness or
exacerbations that result in significant, documented symptoms or signs substantially in
excess of the requirements for showing a “marked” limitation.
A child has a “marked” limitation in a domain when his impairment “interferes
seriously” with the ability to initiate, sustain, or complete activities independently. 20
C.F.R. § 416.926a(e)(2). A child’s day-to-day functioning may be “seriously limited”
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when the impairment limits only one activity or when the interactive and cumulative
affects of the impairment limit several activities. A “marked” limitation also means:
1.
A limitation that is “more than moderate” but “less than extreme.”
2.
The equivalent of functioning that would be expected on standardized
testing with scores that are at least two, but less than three, standard deviations below
the mean.
3.
A valid score that is two standard deviations or more below the mean, but
less than three standard deviations, on a comprehensive standardized test designed to
measure ability or functioning in that domain, and his day-to-day functioning in domainrelated activities is consistent with that score.
4.
For the domain of health and physical well-being, frequent episodes of
illnesses because of the impairment or frequent exacerbations of the impairment that
result in significant, documented symptoms or signs that occur (1) on an average of
three times a year or once every four months, each lasting two weeks or more, (2) more
often than three times a year or once every four months but lasting longer than two
weeks, if the overall affect (based on the length of the episode or its frequency) is
equivalent in severity.
III.
THE RECORD
The record consists of the testimony of plaintiff’s mother in addition to
documentary evidence admitted at the hearing.
A.
SUMMARY OF RECORDS
1.
Administrative Records
a.
Child Supplemental Questionnaire
On September 11, 2013, plaintiff’s mother, Ms. Deboe, completed this form and
reported that plaintiff is able to play video games and puzzles or use a computer for ten
minutes at a time (Tr. at 143-145). If plaintiff goes out shopping, to eat, or to special
events with his mother, he has to go right after his early morning medicine. She has to
talk him through the whole outing to make sure he does not get out of hand. Plaintiff
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does not listen when he is told to do something, he throws temper tantrums, he will not
sit still, he talks back, and he fights. Plaintiff has not visited the school nurse because
of his impairment. His school has not recommended that he participate in summer
school.
b.
Letter from plaintiff’s sister
In a letter dated only “11/14” plaintiff’s sister, Tanisha Deboe, wrote that plaintiff
is very hyper, it is hard to keep him calm, she gets very frustrated with him at times due
to his inability to sit still, and he has a temper -- if he does not get his way, he screams
as loud as he can, kicks, and has outbursts (Tr. at 198). The age of plaintiff’s sister
Tanisha is unknown.
2.
School Records.
Plaintiff’s elementary school cumulative record shows that from 2011 through
2012 (age 3 through 4), his class work evaluation in every subject was 2 out of 5 with 5
being the highest (Tr. at 160). He was promoted to “P4.” During the academic year
2012 through 2013 (age 4 through 5), his class work in every subject was 3 out of 5
with 5 being the highest. He was promoted to kindergarten.
On May 29, 2013 (prior to plaintiff’s alleged onset date), when plaintiff was 5
years old and finishing grade “P4,” his report card showed that he was progressing
satisfactorily in the following:
Social/group/work activities
Group participation
Initiative
Attention to detail
Completing a work cycle
Choosing appropriate work
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Relating well with others
Responding to others’ needs and feelings
Expressing his own needs and feelings well
Language
Vocabulary
Phonetics
Word Building
Spelling
Mathematics
Quantity recognition
Symbol recognition
Linear counting
Decimal system
Sensorial
Visual discrimination
Sound discrimination
Touch discrimination
Terminology
Geometric shape/form
Practical life
Sense of order
Sequence
Large motor control
Care of environment
Attention to detail (care of self)
Art
Uses art skills to develop appropriate manipulative skills, fine & gross motor skills
Computers
Can open a document
Knows what the AUP stands for and its importance
Can explain how to stay safe online and off
Can use the tools in the toolbox to enhance graphic
Can format text by changing font, size, color and character style
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Can explain how technology is used in daily life
Can draw/use graphics that match what the author describes
Music
Sings/plays online and with others within varied styles and musical forms
Moves to, describes, analyzes or discusses music
Described functions of music and musicians in varied settings/cultures
Physical education
Demonstrates cooperation with partners and small groups to accomplish
objective
Participates in instructionally-appropriate moderate to vigorous physical activity
for at least 50% of a structured physical education class
Demonstrates the ability to share, be cooperative and safe with others
His report card reflected that he needed improvement in the following areas:
Social/Group/Work Skills
Attentive to groups
Works independently
Handles materials with care
Respects others’ work
Concentration
Controls own behavior
Responds to requests from adults
Politeness/courtesy
Language
Reading
Comprehension
Cursive writing
Mathematics
Addition (operations and memorization)
Practical life
Classroom etiquette
Fine motor control
Self reliance
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Art
Know the nature of human involvement in art as viewers, creators and
participants
Discusses own art work and art work of others, compare and contrast visual and
tactile qualities to works of art
Makes statements about the function of particular works of art in the cultures
which produced them
Plaintiff’s alleged onset date is June 1, 2013. He was 5 years of age, and he
was set to begin kindergarten a few months later.
On August 15, 2013, at the very beginning of kindergarten, plaintiff’s teacher,
Ms. Bryant, completed a “Teacher Short Form” (Tr. at 123-124, 195-196). Plaintiff was
5 years of age, and Ms. Bryant had known him for the past 2 1/2 years. The
assessment in this form covers the period during the one month preceding her
signature, or from July 15, 2013, through August 15, 2013.
Ms. Bryant reported that the following descriptions are “just a little true” with
respect to plaintiff:
He makes mistakes.
He cannot do things right.
He has poor social skills.
He cannot grasp arithmetic.
He tries to get even with people.
He does not understand what he reads.
He is hard to motivate even with highly desirable rewards.
He is good at planning ahead.
He behaves like an angel.
He is difficult to please or amuse.
Ms. Bryant cannot figure out what makes him happy.
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Mrs. Bryant reported that the following descriptions are “pretty much true” with
respect to plaintiff:
He is constantly moving.
He bullies, threatens or scares others.
He is angry and resentful.
He is excitable and impulsive.
He actively refuses to do what adults tell him to do.
He has trouble getting started on tasks or projects.
He does not pay attention to details or makes careless mistakes.
His spelling is poor.
He leaves his seat when he should stay seated.
He forgets things already learned.
Ms. Bryant reported that the following descriptions are “very much true” with
respect to plaintiff:
He has to struggle to complete hard tasks.
He is inattentive, easily distracted.
He is fun to be around.
He has trouble keeping his mind on work or play for long.
He acts in sneaky or manipulative ways.
He tells the truth; does not even tell “little white lies.”
He is restless or overactive.
He fidgets or squirms in his seat.
He talks out of turn.
He has a short attention span.
He is sidetracked easily.
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Finally, Ms. Bryant indicated that the following factors are “not true at all” with
respect to plaintiff:
He appears to be unaccepted by groups.
He is patient and content, even when waiting in a long line.
He is one of the last to be picked for teams or games.
He has trouble keeping friends.
He is perfect in every way.
He does not know how to make friends.
Ms. Bryant stated that plaintiff’s problems seriously affect his schoolwork or
grades, but his problems do not affect his friendships and relationships at all. She said
she was not sure he could keep up academically. She described him as a “good,
caring helper.”
In an undated1 Teacher Questionnaire, Ms. Bryant reported the following with
respect to the relevant domains (Tr. at 148-155).
Acquiring and Using Information
Plaintiff has an obvious problem with:
Understanding school and content vocabulary
Learning new material
Plaintiff has a serious problem with:
Comprehending and/or following oral instructions
Comprehending and doing math problems
Understanding and participating in class discussions
Recalling and applying previously learned material
Applying problem-solving skills in class discussions
1
Even though Mrs. Bryant left the date blank, she indicated that she had known
plaintiff for 2 1/2 years -- the same length of time as that listed in the form she
completed on August 15, 2013.
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Plaintiff has a very serious problem with:
Reading and comprehending written material
Providing organized oral explanations and adequate descriptions
Expressing ideas in written form
Attending and Completing Tasks
Plaintiff has a slight problem with:
Sustaining attention during play/sports activities
Organizing his own things or school materials
Plaintiff has a serious problem with:
Focusing long enough to finish assigned activity or task
Refocusing to task when necessary
Carrying out single-step instructions
Completing class/homework assignments
Working at a reasonable pace/finishing on time
Plaintiff has a very serious problem with:
Paying attention when spoken to directly
Carrying out multi-step instructions
Waiting to take turns
Completing work accurately without careless mistakes
Working without distracting self or others
Interacting and Relating with Others
Plaintiff has a slight problem with:
Making and keeping friends
Relating experiences and telling stories
Introducing and maintaining relevant and appropriate topics of
conversation
Using adequate vocabulary and grammar to express thoughts/ideas in
general, everyday conversation
Plaintiff has an obvious problem with:
Asking permission appropriately
Using language appropriate to the situation and listener
Taking turns in a conversation
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Plaintiff has a serious problem with:
Playing cooperatively with other children
Seeking attention appropriately
Interpreting the meaning of facial expressions, body language, hints,
sarcasm
Plaintiff has a very serious problem with:
Expressing anger appropriately
Following rules (classroom, games, sports)
Respecting/obeying adults in authority
Moving About and Manipulating Objects
Plaintiff has a slight problem with:
Demonstrating strength, coordination, dexterity in activities or tasks
Showing a sense of body’s location and movement in space
Planning remembering, executing controlled motor movements
Plaintiff has an obvious problem with:
Integrating sensory input with motor output
Plaintiff has a serious problem with:
Moving and manipulating things (e.g., pushing, pulling, lifting, carrying,
transferring objects; coordinating eyes and hands to manipulate
small objects)
Managing pace of physical activities or tasks
Plaintiff has a very serious problem with:
Moving body from one place to another (e.g., standing, balancing, shifting
weight, bending, kneeling, crouching, walking, running, jumping,
climbing)
Caring for Himself
Plaintiff has no problem with:
Taking care of personal hygiene
Caring for physical needs (e.g., dressing, eating)
Cooperating in, or being responsible for, taking needed medications
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Plaintiff has a slight problem with:
Using good judgment regarding personal safety and dangerous
circumstances
Knowing when to ask for help
Plaintiff has an obvious problem with:
Identifying and appropriately asserting emotional needs
Plaintiff has a serious problem with:
Handling frustration appropriately
Responding appropriately to changes in own mood (e.g., calming self)
Using appropriate coping skills to meet daily demands of school
environment
Plaintiff has a very serious problem with:
Being patient when necessary
Ms. Bryant noted that plaintiff takes medication on a regular basis,2 he does not
frequently miss school due to illness, and she does not know whether plaintiff’s
functioning changes after taking medication (Tr. at 154).
In another undated form, Request for Administrative Information, Ms. Bryant
noted that plaintiff had not been recently evaluated or tested, he had not been referred
for assessment team evaluation or special class placement or services, he had not
repeated any grades, and he was in regular education with no special instruction (Tr. at
156-157).
2
According to his medical records, plaintiff had first started taking medication three
weeks earlier.
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On August 26, 2013, Ms. Bryant wrote a note to plaintiff’s mother (Tr. at 197).
Today was a very disruptive day. He constantly bothered others work [sic]. Did
no lessons. Scribbled all over students’ art papers. Concerned about him.
Want to keep him on kindergarten.3
More than a year later, in a report card dated October 10, 2014, during first
grade, plaintiff’s teachers made the following comments:
Academic foundation: gaining self-confidence, lacks interest in work
Language arts: poor study habits, does not participate in class
Art: good attitude
Computers: has shown steady improvement
Music: enjoys learning
Physical education: good class participation
(Tr. at 192-193).
He was noted to “need help” in 30 areas, he was noted to “need more practice”
in 10 areas. He was noted to be able to “do this all by myself” in 7 areas:
demonstrates cooperation; knows the nature of human involvement in arts; uses art
skills to develop appropriate manipulative skills; identifies parts of a computer; opens a
document on a computer; analyzes music; and demonstrates an awareness of personal
space, general space and boundaries while moving in different directions.
3.
Medical Records
On May 22, 2013, prior to plaintiff’s alleged onset date, he saw Dinah Clayton at
Swope Health Services (Tr. at 218). Plaintiff’s mother indicated that she had been
referred to the Swope Health Services Behavioral Health Clinic for a psychiatric
3
It appears that part of this form was cut off during copying.
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evaluation for plaintiff and possible medication management. Plaintiff had never been
diagnosed with a mental health condition.
On June 12, 2013, a few days after plaintiff’s alleged onset date, he was seen by
Suzanne Tanner at Swope Health Services (Tr. at 215-217). “Mother reports [he] has
issues at school, he got into a disagreement with another student at school, hit him and
then told the student I’m going to ‘fuck you up’. [He] doesn’t listen to me at home I have
to tell him things a thousand times. At school he’s disruptive in the classroom, he talks
back to the teachers, he’s easily distracted, uses profane language, will not sit still at
home or in class, he doesn’t focus. I get calls from his teacher constantly. He’s been
suspended twice this school year once for saying ‘he was going to bring a gun to
school.’” Ms. Tanner observed that plaintiff’s affect was extremely hyper. He had to be
redirected numerous times to sit still. She recommended that plaintiff be evaluated by
Latha Venkatesh, M.D., at Swope Health and that plaintiff’s mother apply for Medicaid
based on plaintiff’s mental health diagnosis.
On June 20, 2013, plaintiff was seen at Swope Health Services by Latha
Venkatesh, M.D., for intake (Tr. at 213). Plaintiff’s mother reported that he hits and
curses, he is disruptive in class and talks back, he has difficulty focusing and has been
suspended for threatening to bring a gun to school. At home he has difficulty following
directions and completing tasks. Dr. Venkatesh recommended a medication evaluation
and physical exam be scheduled.
On July 24, 2013, plaintiff saw Latha Venkatesh, M.D., for a medical evaluation
(Tr. at 209-211). He was reportedly hyperactive with defiance and anger problems, he
had just started kindergarten but was reportedly in trouble at school with frequent
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suspensions during preschool. Plaintiff’s mother reported a history of mood swings,
aggression with property destruction, irritability, lying, problems sitting still, problems
paying attention, and problems listening. He was not on any medication. The mental
status exam results are listed as follows: “Fairly well groomed, hyperactive and needs
constant redirection and very disruptive and easily distracted and he would smile at
every concern mom would voice. Mood is happy and affect is smiling and no evidence
of imminent danger to self or others. No evidence of thought disorder. Oriented times
two and memory for recent is good but immediate recall is poor because of distractibility
and 5 minute recall is also poor. Intelligence is average and insight and judgment is
poor.” Dr. Venkatesh assessed ADHD and prescribed Tenex and behavior therapy.
On August 20, 2013, plaintiff saw Tracy Turner, a social worker, for therapy from
3:30 p.m. to 4:30 p.m. (Tr. at 206). This was plaintiff’s first visit. Plaintiff’s mother
reported that he is hyperactive and has a difficult time staying on task. Ms. Turner
worked on building a rapport. Once this appointment was over, plaintiff saw Latha
Venkatesh, M.D. (Tr. at 203-204, 208). Plaintiff said he was tired and did not want to
talk. His mother said he was tired and very hungry and so he was irritable. Plaintiff’s
appointment time was 4:30 p.m. Problems at school were denied, he was reportedly
doing very well in school. His sleep was good, appetite was good. Mood was up and
down, “started his medicine just yesterday.” His mental status exam was normal except
affect was irritable. He was experiencing no symptoms of anxiety. Dr. Venkatesh
assessed ADHD and recommended plaintiff continue his Tenex but increase it after ten
days. “Addressed his irritability and since mom said that he was complaining of being
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hungry, recommended giving an evening snack. Could add 1/2 tab of Tenex if he is
having problem in the afternoon after 10 days and mom agreed to do that.”
On September 16, 2013, plaintiff was seen at Swope Health Services by case
worker Louis Goins to assess plaintiff’s current level of functioning and work on care
plan goals (Tr. at 201-202). Plaintiff’s problem was “productivity,” and his goal was, “I
want to get better at doing my work. I will not talk back or argue with my mom or school
officials 3 out of 5 times a day.” Plaintiff comprehended the discussion about not
touching other people’s property “but due to his age of 5 may have difficulty at times
communicating his feelings and responses.” A reward system was developed, and
plaintiff was taken to McDonald’s for an ice cream.
On September 24, 2013, plaintiff saw Latha Venkatesh, M.D. (Tr. at 200). Dr.
Venkatesh was told that plaintiff’s teachers had indicated problems with hyperactivity
and concentration. Dr. Venkatesh continued plaintiff’s Tenex and added Ritalin.
On September 30, 2013, case worker Louis Goins spent an hour in plaintiff’s
home (Tr. at 263-265). Plaintiff alternated between not wanting to be around anyone to
tearfully refusing to leave the proximity of his mother and Mr. Goins. “[Plaintiff] had to
be escorted approximately 4 times back to the residence after walking off and not
responding to those addressing him. [Plaintiff] appeared angry, would not speak, and
was very slow to move. [Mr. Goins] observed that near the end of the session, [plaintiff]
repeatedly attempted to get close or to be held by his mother who was folding clothes
and packing boxes. [Plaintiff] continued to exhibit these behaviors and on several
occasions shed tears. [Plaintiff] also entered into and sat in [Mr. Goins’s] vehicle
without permission and remained there crying and stating that he wanted to go with [Mr.
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Goins.]” Mr. Goins engaged in role playing to help plaintiff with appropriate responses
and listening skills. He indicated he would “maintain weekly contact with [plaintiff] and
his mother to ensure medication compliance.”
On October 30, 2013, case worker Lois Goins met with plaintiff’s teacher and
also met with plaintiff one-on-one to talk about academic concerns (Tr. at 260-261). Mr.
Goins accompanied plaintiff to lunch and to his classroom. Plaintiff was observed to
have a good demeanor throughout the entire session. He was attentive and responded
quickly to the directives of Mr. Goins and the teacher. Plaintiff’s teacher, Ms. Bryant,
expressed concern because she had sent a lot of homework home and had not
received any back. She was concerned about plaintiff’s inability to read or write. She
said she had talked to plaintiff’s mother about how the work that was sent home could
help plaintiff academically. Ms. Bryant stated that plaintiff’s overall behavior had been
pretty good. Mr. Goins observed that plaintiff was attentive but not able to totally grasp
the significance of completing the extra homework that his teacher sends home. He
observed that “when directed, [plaintiff] was again quickly and appropriately
responsive.” Mr. Goins indicated he would contact plaintiff’s mother and encourage her
to implement a homework routine for plaintiff in the home.
On November 27, 2013, case worker Louis Goins met with plaintiff in his home
for approximately two hours (Tr. at 257-259). They worked on role playing to increase
positive interaction with peers and adults and to work on active listening skills. Mr.
Goins took plaintiff to the barber shop. He took him to the Community Center and
engaged him in physical activities. He encouraged him to play appropriately with other
children at the Community Center. Mr. Goins reported that plaintiff had a positive
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demeanor throughout the entire session. He interacted with his siblings appropriately,
he interacted with an acquaintance at the barber shop appropriately, and he interacted
with children at the Community Center appropriately. He needed little redirection efforts
this day.
On December 17, 2013, plaintiff saw Latha Venkatesh, M.D., at 3:22 p.m. (Tr. at
254-255). Plaintiff would not talk. The case worker who brought plaintiff to this
appointment indicated that plaintiff had been having problems with his grades the past
couple of weeks. At school he was reportedly impulsive, hyperactive and disruptive.
Although plaintiff was reported to be struggling academically, he did not have an IEP.
“Denied mood swings.” Plaintiff was observed to be fairly well groomed and not
hyperactive. He was calm and complaint. His speech and thoughts were normal. His
mood was fine and affect was quiet. Plaintiff’s medications were continued without
change. “Recommended compliance and if it is a concern, school could give him the
AM medication. Recommended giving Tenex regularly.”
On January 29, 2014, case worker Louis Goins met with plaintiff to assess his
current level of functioning (Tr. at 251-253). Mr. Goins picked plaintiff up from school
and talked to his teacher about his behavior over the past two weeks, he took plaintiff to
his individual therapy appointment, and he tried to role play with plaintiff on active
listening skills. Plaintiff’s teacher, Ms. Bryant, reported that plaintiff’s behaviors
continued to fluctuate between defiance and blank stares. His therapist, Tracy Turner,
said that he “shut down” during the session and refused to speak with her. While taking
plaintiff back to school, Mr. Goins attempted to engage him and coach him on following
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the directives of adults, but plaintiff appeared “highly disinterested.” Plaintiff was
observed to sit still during the session and no redirective efforts were required.
On February 18, 2014, case worker Debra Lee went to plaintiff’s mother’s place
of employment to introduce herself and build a rapport and review plaintiff’s behaviors
(Tr. at 249-250). Plaintiff’s mother was concerned about the change in case workers
since she said it had taken plaintiff some time to become accepting and engaging with
the previous case worker. She said she cried when the previous case worker indicated
he was leaving. She was concerned about the working hours of Ms. Lee, because she
said the previous case worker was able to work later hours. “Mother stated she has
seven children and works overtime and her boyfriend helps her with pickups for the
boys but she could use some assistance with transportation when the two of them are
unavailable.” Ms. Lee indicated that she would monitor plaintiff at school and speak
with his teachers.
On March 27, 2014, case worker Debra Lee went to plaintiff’s school to inquire
about his behavior since he was taking new medication (Tr. at 246-248). Plaintiff’s
teacher said that plaintiff was more focused but “appeared to not ‘be himself’. She
stated for the last week he appears almost ‘lifeless’ but is doing a little better with his
work but still has his days he is not on task.” Plaintiff indicated that he felt happy, not
sad or mad. Plaintiff’s teacher stated that he had a lot of incomplete assignments over
the past few weeks.
On April 14, 2014, plaintiff saw Latha Venkatesh, M.D., for a medication check at
11:15 a.m. (Tr. at 243-245). He was brought by his case worker. Plaintiff said he was
doing well, not having problems in school, and that he was paying attention. He said he
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was doing well at home. The caseworker stated that according to plaintiff’s mother,
plaintiff was doing better on the Vyvanse. Dr. Venkatesh made the following
observations: “fairly well groomed, not hyperactive, has good eye contact and is
pleasant and compliant and speech is RRR [regular rate and rhythm], no evidence of
tangentiality or circumstantiality and mood is happy and affect is congruent to mood
and no evidence of imminent danger to self or others and no evidence of thought
disorder. Oriented to time, place and person and memory for recent and remote is
good and intelligence is average and thoughts are concrete and insight and judgment is
fair.” The doctor continued plaintiff’s Vyvanse “since doing well”.
On May 13, 2014, plaintiff saw Latha Venkatesh, M.D., for a medication check at
11:45 a.m. (Tr. at 240-242). His great grandmother brought him to this appointment.
Plaintiff said he was doing OK. His great grandmother said he was doing OK but
“sometimes has a mood.” School had reported that he was doing pretty good and he
was promoted to the next grade and was not in summer school. Dr. Venkatesh
observed that plaintiff was fairly well groomed, not hyperactive. His mood was happy
but his affect was sulking and defiant and he did not want to talk much. He was fully
oriented with normal memory and intelligence, normal thoughts, judgment and insight.
His Vyvanse was continued “since doing better in school as per report.”
On June 2, 2014, caseworker Debra Lee went to plaintiff’s home to take him to
his medication management appointment (Tr. at 237-238). Ms. Lee told the doctor
what plaintiff’s mother had reported with respect to his behavior at home. The doctor
recommended changes in plaintiff’s diet since he was losing weight. Ms. Lee noted
plaintiff’s affect was “very flat and non-engaging” as opposed to the day before when he
22
was more hyper and talkative. “Doctor stated this is as a result of the medication and
that as the day goes by his medication wears down so this is normal for him to behave
in this manner. Doctor talked about importance of eating protein to help him maintain
his weight and also to help with irritability during the evenings.”
On June 30, 2014, plaintiff saw Latha Venkatesh, M.D., for a medication check
at 6:20 p.m. (Tr. at 234-236). Plaintiff reported that he was “doing good” but his mother
reported he was “doing fair.” She indicated that he would start tearing his shirt and
stomping when he was upset. Dr. Venkatesh performed a mental status exam: “He
was fairly well groomed, fidgety, had good eye contact, was pleasant and compliant, his
mood was happy, and he showed no evidence of thought disorder.” He was fully
oriented with normal memory and good insight and judgment. Dr. Venkatesh continued
plaintiff on Vyvanse and started Intuniv.
On July 29, 2014, Jamal Davis, a case worker at Swope Health Services, visited
plaintiff in his home for one hour (Tr. at 231-232). Plaintiff was taking no medications at
the time, even though Dr. Venkatesh had prescribed medications a month and a half
earlier. The caseworker indicated that he would accompany plaintiff on community
outings and practice following directions. Plaintiff said he did not want to be in an
alternative school. They discussed appropriate behavior in school. Plaintiff “stated that
he was pleased that this upcoming school year would be new and exciting. He
expressed joy that he would be going to a traditional school and would not have to deal
with the over structure of the alternative school setting. He stated that he is certain that
he will experience minor behavior issues because ‘I am a kid’, but feels sure that he
should not have any major behavior issues.”
23
On August 13, 2014, plaintiff saw Latha Venkatesh, M.D., at 4:00 p.m. (Tr. at
227-229). Plaintiff said he was doing better and denied getting in trouble at school. He
said he is able to concentrate well. Plaintiff was brought in by his grandmother, so the
doctor called plaintiff’s mother who verified that plaintiff was doing better on his current
medications. She said he was sleeping well without medication side effects. “Denied
aggression.” Plaintiff was fairly well groomed, he was not hyperactive, he had good eye
contact, his demeanor was observed to be pleasant and compliant. His mood was
happy, his thought content was normal. His recent and remote memory was good, his
recall memory was good. Nothing abnormal was noted in the medical record. Plaintiff’s
medications were continued with no changes.
On September 10, 2014, plaintiff saw Latha Venkatesh, M.D., for medication
management (Tr. at 224-226). His appointment began at 5:47 p.m. Plaintiff reported
he was doing OK, but his mother reported that she was having trouble getting plaintiff to
respond. She did not know whether the problem was hyperactivity, or defiance or
comprehension issues. Dr. Venkatesh conducted a mental status exam: “Fairly well
groomed, fidgety and distracted easily and mood is OK and affect is quiet.” He was not
experiencing symptoms of anxiety. She assessed ADHD and refilled plaintiff’s
medication. She increased his dosage of Intuniv “because of the disruptive behaviors
reported.” She also recommended testing for IEP or 504.4
4
An IEP (individualized education program) is a blueprint or plan for a child’s special
education experience at school. A 504 plan is a type of plan that falls under Section
504 of the Rehabilitation Act of 1973 which prohibits discrimination against public
school students with disabilities. A 504 plan outlines how a child’s specific needs are
met with accommodations, modifications and other services. The measures are meant
to remove barriers to learning. A 504 plan is less detailed than an IEP.
24
On November 6, 2014, plaintiff saw Latha Venkatesh, M.D. (Tr. at 267). He was
told to discontinue Vyvanse, start Adderal, and continuing taking Intuniv.
On November 13, 2014, Latha Venkatesh, M.D., completed a Childhood
Disability Evaluation Form (Tr. at 269-274). She checked the box indicating that his
impairment meets a listing; however, she left the listing blank and did not identify any
listing. She found that plaintiff’s limitation in acquiring and using information was less
than marked when taking medication. His limitation in attending and completing tasks
is markedly limited because he “is distracted easily.” She found that his limitation in
interacting and relating with others is markedly limited, but she provided no explanation.
He had no limitation in moving about and manipulating objects. His limitation in caring
for himself was less than marked. She was unable to assess his limitation in health and
physical well being because she had not done a physical exam. The rest of the form is
blank, including the section entitled, “explanation of findings.”
B.
SUMMARY OF TESTIMONY
During the November 19, 2014, hearing, plaintiff’s mother testified. At the time
of the hearing, plaintiff had just turned 7 (Tr. at 167).
Plaintiff is the youngest of 7 children (Tr. at 54). Plaintiff attends first grade at
Holiday Montessori (Tr. at 54).
Plaintiff is taking medication prescribed by a doctor at Swope Health Services
(Tr. at 54). When he is not on medication, he has problems focusing (Tr. at 54). One
day recently plaintiff did not have his medication because his doctor had “pulled the
medicine back” (Tr. at 55). His teacher called because she was having issues with
25
plaintiff bothering other students, not being able to concentrate, and not doing what he
was told to do (Tr. at 55). He does better when he is on medication (Tr. at 55).
When plaintiff is told to do something, he will not do it (Tr. at 55). After telling
him up to five times, Ms. Deboe will try to redirect him but he stomps, shouts and tries
to harm himself by scratching, pulling shoestrings out of shoes, tearing clothes and
yelling (Tr. at 55). One time recently plaintiff’s case worker tried to take him to a doctor
appointment (Tr. at 56). Plaintiff did not want to get out of the car (Tr. at 56). After he
was finally out of the car, he screamed and yelled that he did not want to go in (Tr. at
56). He missed that appointment (Tr. at 56). His grandmother came and was not able
to calm him down so she took him home with her (Tr. at 56). His behavior continued at
his grandmother’s, so plaintiff’s older sister came to get him and took him home (Tr. at
56).
Plaintiff does not pay attention (Tr. at 56). He constantly fights with his brothers
and sisters and instigates arguments even with his nieces and nephews (Tr. at 56-57).
Plaintiff interrupts his classmates’ learning at school (Tr. at 57). A few months before
the administrative hearing, plaintiff indicated he was having nightmares (Tr. at 57).
Plaintiff is not involved in social activities other than playing with his brothers, sisters,
nieces and nephews (Tr. at 57). Plaintiff’s grandmother, who is 65 years of age, takes
care of plaintiff after school, and it is taking a toll on her (Tr. at 58). She says plaintiff
throws temper tantrums and will not follow directions (Tr. at 58).
IV.
FINDINGS OF THE ALJ
On December 23, 2014, Administrative Law Judge George Bock found plaintiff
not disabled (Tr. at 33-46). Plaintiff was a preschooler the date his application was filed
26
and was a school-age child on the date of the ALJ’s decision (Tr. at 36). Plaintiff has
not engaged in substantial gainful activity throughout the pertinent period of this case
(Tr. at 36).
Plaintiff has attention deficit hyperactivity disorder, which is a severe impairment
(Tr. at 36).
Plaintiff does not have an impairment or combination of impairments that meets
or medically equals the severity of a listed impairment (Tr. at 36). Plaintiff’s ADHD does
not meet or equal the listing level of severity under Listing 112.11 because he does not
have marked inattention, marked impulsiveness, and marked hyperactivity along with
other appropriate age-group criteria (Tr. at 36).
Plaintiff does not have an impairment or combination of impairments that
functionally equals the severity of the listings (Tr. at 36-46). Therefore, plaintiff is not
disabled (Tr. at 46).
V.
ANALYSIS
Plaintiff argues that the ALJ erred in assessing the severity of plaintiff’s condition
based on how the opinion evidence was weighed.
The ALJ’s analysis of medical opinion evidence is guided by 20 C.F.R. §
416.927(c), which requires the ALJ to use a six-part analysis. Essentially, the ALJ will
assign greater weight to medical sources who have treatment experience with the
claimant, but any opinion can be rejected if it is not well supported by signs and
symptoms, or if it is inconsistent with the record as a whole. SSR 96-2p; 20 C.F.R §
416.927(c)(2) (if a treating doctor’s opinion is well supported and not inconsistent, it will
be afforded controlling weight); Halverson v. Astrue, 600 F.3d 922, 929-930 (8th Cir.
27
2010). Under the substantial evidence standard, the ALJ need only clarify whether he
discounted a treating physician’s findings, and, if so, why. Grable v. Colvin, 770 F.3d
1196, 1201-1202 (8th Cir. 2014).
On November 13, 2014, almost a year and a half after plaintiff’s alleged onset
date, plaintiff’s treating psychiatrist, Latha Venkatesh, M.D., completed a Childhood
Disability Evaluation Form. She checked the box indicating that plaintiff’s ADHD meets
a listing; however, she did not identify any listing. She found that plaintiff’s limitation in
acquiring and using information was less than marked when taking medication. She
found that his limitation in attending and completing tasks was markedly limited
because he “is distracted easily.” She found that his limitation in interacting and relating
with others was markedly limited, but she provided no explanation. He had no limitation
in moving about and manipulating objects. His limitation in caring for himself was less
than marked. She was unable to assess his limitation in health and physical well being
because she had not done a physical exam. The rest of the form is blank, including the
section entitled, “explanation of findings.”
In order to be found disabled, plaintiff must be “markedly” limited in two domains.
The two domains at issue here based on Dr. Venkatesh’s opinion are attending and
completing tasks and interacting and relating with others.
The ALJ had this to say about the opinion of Dr. Venkatesh:
The undersigned has given Dr. Venkatesh’s opinion little weight because it is
inconsistent with her own treatment records showing that the claimant underwent
numerous grossly normal examinations. There is no evidence of record that
supports a marked limitation in any domain.
(Tr. at 39).
28
Dr. Venkatesh supported her opinion that plaintiff is markedly limited in attending
and completing tasks by writing, “is distracted easily.” Below is a chart showing the
basis for her belief that plaintiff is easily distracted:
Reports by relative5/case worker/teacher
Observations by Dr. Venkatesh
June 20, 2013 - Mother reported plaintiff
has difficulty focusing, difficulty following
directions, difficulty completing tasks
July 24, 2013 - Plaintiff (on no medication
at the time) was hyperactive, needed
constant redirection, was very disruptive
and easily distracted. Memory poor due
to distractibility.
July 24, 2013 - Mother reported
hyperactivity with defiance, problems
paying attention, problems listening
September 24, 2013 - Mother reported
teachers said he had problems with
hyperactivity and concentration.
December 17, 2013 - Plaintiff was not
hyperactive. He was calm and compliant.
His speech and thoughts were normal.
His mood was fine, affect was quiet.
December 17, 2013 - Caseworker said
he/she had been told plaintiff was
hyperactive, disruptive, impulsive at
school.
April 14, 2014 - Plaintiff was not
hyperactive, was pleasant and compliant.
He had normal speech, eye contact,
thought processes, memory, insight and
judgment. His mood was happy. Dr.
Venkatesh noted he was “doing well.”
April 14, 2014 - Plaintiff said he was
paying attention and doing well.
May 13, 2014 - Plaintiff was not
hyperactive. His mood was happy. He
had normal memory, thoughts, judgment
and insight.
5
The ALJ found the substantive allegations of plaintiff’s mother to be not fully
credible, and plaintiff has not challenged this finding.
29
June 30, 2014 - Plaintiff was fidgety but
pleasant and compliant, his mood was
happy. He had normal thought process,
memory, insight and judgment. No
observation of hyperactivity or distraction.
June 30, 2014 - Mother said plaintiff
would start tearing his shirt and stomping
when upset and that he was only doing
“fair.”
August 13, 2014 - Plaintiff was not
hyperactive, had good eye contact, he
was pleasant and compliant. His mood
was happy, thought content normal,
memory good.
August 13, 2014 - Either plaintiff’s mother
or grandmother “denied aggression.”
Plaintiff said he was able to concentrate
well and was not getting in trouble at
school.
The only time Dr. Venkatesh observed plaintiff to be hyperactive or distractable
was during her first visit with him before he was prescribed any medication. After she
put him on medication, Dr. Venkatesh observed nothing but normal behavior through
the time she completed the Childhood Disability Evaluation Form almost two years
later. Additionally, it was infrequent that anyone reported hyperactivity or distractability
to Dr. Venkatesh.
Likewise, her finding that plaintiff is markedly limited in his ability to interact and
relate with others is unsupported by her treatment records as outlined above. The ALJ
properly gave her opinion in the disability evaluation form little weight.
Plaintiff argues that the ALJ erred in failing to consider the opinion of plaintiff’s
teacher Ms. Bryant. This argument is without merit. Although the ALJ did not use Ms.
Bryant’s name in his opinion, he clearly referred to her reports numerous times. He
referred to the meeting between plaintiff’s community support specialist and his teacher
in October 2013; he noted the teacher was concerned about plaintiff’s reading and
writing deficiencies and had said she contacted plaintiff’s mother about the homework
plaintiff was failing to complete in the evenings and return to school (Tr. at 38, 39). The
30
ALJ noted that in January 2014, plaintiff’s teacher was frustrated at his lack of
responsiveness and said she expected his mother to attend an upcoming conference
about this issue (Tr. at 38). The ALJ noted that plaintiff’s teacher noticed some
improvement in his behavior with medication (Tr. at 38). The ALJ noted plaintiff’s
steady improvement at school, his learning and class participation, and his
advancement to the next grade (Tr. at 41). He noted Ms. Bryant’s opinion that plaintiff
is a good, caring helper at school (Tr. at 43). He noted that the teacher reported that
plaintiff has no problem taking care of his personal hygiene and caring for his personal
needs (Tr. at 45). Failing to use her name does not discount the fact that the ALJ
considered all of the forms submitted by Ms. Bryant.
Finally, plaintiff argues that the ALJ erred in affording substantial weight to the
opinion of a non-treating, non-examining medical consultant. Martin Isenbrg, Ph.D.,
reviewed plaintiff’s records on September 30, 2013, and found that plaintiff had no
greater than a less-than-marked restriction in any domain of functioning (Tr. at 39). The
ALJ found this opinion consistent with the weight of the evidence. Plaintiff’s argument
on this issue is based solely on the fact that the ALJ gave more weight to the opinion of
Dr. Isenberg than to the opinion of plaintiff’s treating psychiatrist, Dr. Venkatesh. This
argument is without merit.
The regulations specifically state that the ALJ should consider any
non-examining doctors’ opinions in making a disability determination. SSR 96-6p. The
weight assigned to such opinions often relies on the degree to which the source
provides supporting explanations for his opinion. 20 C.F.R. § 404.1527(c)(3) (“because
nonexamining sources have no examining or treating relationship with you, the weight
31
we will give their opinions will depend on the degree to which they provide supporting
explanations for their opinions”). In fact, in some cases, opinions from state agency
medical and psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or examining sources.
Ponder v. Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014). In Tindell v. Barnhart, 444 F.3d
1002, 1006 (8th Cir. 2006), the court found an ALJ could give greater weight to the
opinion of a non-examining medical expert who testified at the hearing than to the
treating social worker and to an examining consulting psychologist. The ALJ in Tindell
had provided specific reasons for the weight given the differing opinions and sufficiently
explained the inconsistencies which led him to give greater weight to the medical
expert.
Here the ALJ provided his reasons for giving the weight he did to each of the
doctors’ opinions. As discussed above, Dr. Venkatesh’s opinion in the disability form
was not at all supported by her treatment records. However, the opinion of Dr. Isenberg
is consistent with the treatment records of plaintiff’s treating psychiatrist as well as the
other credible evidence in the record.
Plaintiff’s argument that the ALJ erred in finding that plaintiff’s impairment does
not meet or medically equal Listing 112.11 is based on the evidence found not credible
by the ALJ, i.e., the disability opinion of Dr. Venkatesh and reports from plaintiff’s
mother. I have considered plaintiff’s argument on this issue and find it to be without
merit.
32
VI.
CONCLUSION
Based on all of the above, I find that the substantial evidence in the record as a
whole supports the ALJ’s finding that plaintiff is not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
December 13, 2016
33
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