Griffin v. Wolvin

Filing 25

MEMORANDUM AND ORDER regarding Complaint 1 filed by Eric A. Griffin. Judgment shall be entered by separate document, providing that the Commissioner's decision is reversed and the case remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC A. GRIFFIN, A Minor Child;
Plaintiff,

8:13CV365

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security;
Defendant.
Plaintiff Eric A. Griffin (“Griffin”), a child under the age of 18, seeks review of
the decision by the defendant, Carolyn W. Colvin, Commissioner of the Social Security
Administration (the “Commissioner”), denying his application for disability benefits
under Title XVI of the Social Security Act. Social Security Transcript (“TR”) at 12-25.
After carefully reviewing the record, the Commissioner’s decision will be reversed and
remanded for proceedings consistent with this Order.

I.

PROCEDURAL BACKGROUND

Griffin, by and through his legal guardian, protectively filed for SSI disability
benefits on December 3, 2010. (TR. 60). The application was denied on March 3, 2011.
(TR. 63). Plaintiff requested reconsideration and that request was denied on July 21,
2011. (TR. 67 & 71). Plaintiff requested a hearing. A hearing was held before an
Administrative Law Judge (“ALJ”) on September 13, 2012. (TR. 31). The ALJ issued a
written decision determining Griffin was not disabled. (TR. 12-25). Plaintiff timely filed
a Request for Review of the ALJ’s decision. The Appeals Council denied the request on
October 22, 2013. (T.1). Plaintiff now appeals from that decision.

II.

THE ALJ’s DECISION

The ALJ evaluated Griffin’s claim through the three-step sequential evaluation
process to determine whether Griffin – an individual under the age of 18 – was disabled.
See 20 CFR 416.924(a). As reflected in his decision, the ALJ made the following
findings:

1.

The claimant was born on October 23, 2004. Therefore, he was a schoolage child on December 3, 2010, the date the application was protectively
filed, and is currently a school-age child (20 CFR 416.926a(g)(2)).

2.

The claimant has not engaged in substantial gainful activity since
December 3, 2010, the protective filing date of the application (20 CFR
416.924(h) and 416.971 et seq.).

3.

The claimant has the following severe impairments: Hearing loss on the
right; and attention-deficit hyperactivity disorder ("ADHD") (20 CFR
416.924(c)).

4.

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

2

6.

The claimant has not been disabled, as defined in the Social Security Act,
since December 3, 2010, the date the application was protectively filed (20
CFR 416.924(a)).

(TR. 15-25).

III.

ISSUES RAISED FOR JUDICIAL REVIEW

Griffin’s complaint requests judicial review of the ALJ’s decision. He raises the
following arguments in support of his claim for reversal.1

1)

The ALJ erred by failing to have a qualified medical expert testify
regarding the claimant’s ADHD to determine whether Griffin had an
impairment that met or equaled the severity of one of the impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1.

2)

The ALJ abused his discretion and erred in failing to give sufficient weight
to claimant’s treating medical provider.

3)

The ALJ erred by ignoring substantial evidence that supports the treating
physician’s opinion.

IV.

THE RECORD AND PROCEEDINGS BEFORE THE ALJ

The Claimant was six years old and in kindergarten when his grandmother and
legal guardian, Terri Hoskins, applied for SSI benefits based on childhood disability.

1

Griffin did not submit arguments regarding whether Griffin’s hearing loss constitutes a
disability for the purposes of SSI. Accordingly, the court will not address that issue.

3

Hoskins protectively filed the application on Griffin’s behalf on December 3, 2010. (TR.
153, 110, and 106). Plaintiff alleges an onset date of October 25, 2010. (TR. 107). The
alleged disability is due to Griffin’s ADHD, complete hearing loss in his right ear, and
partial hearing loss in his left ear. (TR. 136). Griffin was a school-age child during the
relevant time period. See, e.g., 20 C.F.R. § 416.926a(g)(2)(iv).
Plaintiff’s treating physician is Dr. Robert Drvol. On September 16, 2010, Griffin
saw Dr. Drvol because Griffin was having difficulty at school and staying on task. (TR.
424). Dr. Drvol’s notes also reflect that Hoskins was concerned because Griffin was
“wild,” “inattentive,” and “never sits still.” (TR. 424). Dr. Drvol diagnosed Griffin with
ADHD and prescribed Concerta. (TR. 424). On October 19, 2010, Griffin visited Dr.
Drvol again. (TR. 423). Dr. Drvol’s notes indicate Griffin was “doing better” with his
ADHD and that his teachers reported he was “much improved.” (TR. 423). However,
when Griffin ran out of medication, he experienced an increase in “bad behavior.” (TR.
423). Dr. Drvol opined that Griffin would benefit from an increase in dosage of his
ADHD medication and wrote a prescription accordingly. (TR. 423).
At a November 18, 2010 appointment, Dr. Drvol again indicated Griffin’s
behavior was improved at school. (TR. 421). But Dr. Drvol noted that Griffin’s weight
had decreased and Griffin was not eating well. (TR. 421). He further noted that the
eating problem was chronic and predated the time Griffin began taking medicine, but that
if the weight loss continued, Griffin may need to stop taking Concerta. (TR. 421).

Griffin apparently stopped taking his medication due to concerns with his lack of
appetite and weight loss. During a visit with Dr. Drvol on January 18, 2011, Dr. Drvol
noted that since Griffin was off Concerta, Griffin had gained weight, but his behavior was
“much worse.” (TR. 469). He was “not staying on task” and doing “poorly in school.”
(TR. 469). Dr. Drvol apparently prescribed Strattera at that time, but Griffin’s insurance

4

would not cover the cost of the new medication.

(TR. 469-70).

Dr. Drvol then

prescribed Adderal. (TR. 465).
In December of 2011, Dr. Drvol reported that Griffin was having “trouble at
school,” was “very hyper,” and was “behind and doesn’t complete assignments.” (TR.
596). Dr. Drvol recommended that he begin taking Concerta again. (TR. 596). In
January of 2012, Dr. Drvol noted the Concerta was “working tremendously,” but Griffin
was still losing weight and was still struggling with activities of daily living (“ADLs”)
such as tying his own shoes and properly writing letters and numbers. (TR. 595). He
further noted that Griffin reported trouble getting to sleep at night. (TR. 595).

Griffin visited Dr. Drvol yet again on March 8, 2012. (TR. 591). At that time
Griffin had stopped taking the Concerta due to headaches and weight loss. Dr. Drvol
noted that his behavior was only “ok” since discontinuing use of Concerta, but that
Griffin had gained weight and stopped having headaches. (TR. 591). Dr. Drvol ordered
Griffin to stay off medication until directed otherwise. (TR. 593).
In January of 2011, Griffin’s kindergarten teacher, Adele Klima, completed a
questionnaire about Griffin’s functional abilities. (TR. 153-60). The assessment was
divided into five categories assessing Griffin’s behavior: (I) Acquiring and Using
Information; (II) Attending and Completing Tasks; (III) Interacting and Relating with
Others; (IV) Moving About and Manipulating Objects; (V) Caring for Himself or
Herself. Klima was asked to rate Griffin’s behaviors within these categories on a scale of
1 to 5, with “1” representing “no problem;” “2” representing a “slight problem;” “3”
representing “an obvious problem;” “4” representing a “serious problem,” and “5”
representing a “very serious problem.” (TR. 153-60).

5

With respect to “Acquiring and Using Information,” Klima noted Griffin had a
“serious problem” with comprehending and doing math problems and expressing ideas in
written form. (TR. 154). She identified at least two other areas that she considered
“obvious problems” and one area that fluctuated between a “slight problem” and a “very
serious problem.” Klima also commented:

When Eric is not medicated (for ADHD) he has difficulty completing
independent work. My para and I work with him in close proximity as
much as possible (daily). I notice he cannot stay focused on tasks at all,
when not in direct proximity to an adult. . . . He is, at this time, my second
oldest student, and one of my least mature.
(TR.154)(emphasis in original).
With respect to the second category, “Attending and Completing Tasks,” Klima
identified four areas as “very serious problems” including: carrying out multi-step
instructions, changing from one activity to another without being disruptive, working
without distracting himself or others, and working at a reasonable pace/finishing on time.
(TR. 155).

In addition, she identified five other categories as “serious problems”

including: focusing long enough to finish an assigned activity or task, refocusing to task
when necessary, carrying out single-step instructions, organizing his own things or school
materials, and completing work accurately without careless mistakes. She qualified that
her answers were based on his actions when he was not on medication for his ADHD.
(TR. 155).

With respect to the third category, Interacting and Relating with Others, Klima
indicated that Griffin had a “very serious problem” with taking turns in conversation, and
behavior modification strategies did not work. (TR. 156). She further noted that Griffin
“is not independent with assigned tasks except work on the computer (he has particular

6

problems with writing activities).” (TR. 156).

She again indicated that this was a

problem when Griffin was not taking ADHD medicine. (TR. 156).
In the fourth category, “Moving About and Manipulating Objects,” Klima reported
that Griffin had a “very serious problem” with integrating sensory input with motor
output. (TR. 157). And she stated Griffin had a “serious problem” with moving from
one place to another, managing pace of physical activities or tasks, and showing a sense
of his body’s location and movement in space. (TR. 157). She noted “Eric exaggerates
all we do. He swings his arms, hops too hard, get in another’s space. (Because he is so
small and very charming, his classmates readily forgive his intrusions).” (TR.
157)(emphasis in original).
Klima noted no problems with the fifth category, “Caring for Himself.” (TR.
158). In conclusion she stated: “Medication has been prescribed for Eric by his doctor.
He is a very different child when he takes it. He still has difficulty writing and makes
careless mistakes in math. However his grandmother was concerned about his losing
weight.” (TR. 157)(emphasis in original).

On February 7, 2011, Daniel Fudge, Ph.D. performed a consultative psychological
examination. (TR. 436-40). Griffin was taking Concerta at that time of Dr. Fudge’s
examination. (TR. 437). Dr. Fudge noted that “Griffin’s intellect, emotional responses,
personality, daily activities, and memory are not affected by his ADHD.” (TR. 437). But,
Griffin “did appear to be hyper and had to be redirected several times during the
evaluation.” (TR. 438). Dr. Fudge opined that Griffin “should be able to concentrate and
sustain attention for two-step directions; however, he may have problems with more
complicated procedures. There are no other functional limitations that he presents with.”
(TR. 438).

7

State agency consultants Christine Wright, M.D. and Patricia Newman, Ph.D.,
evaluated the record evidence and concluded that Griffin had severe impairments of
hearing loss and ADHD, but was not disabled. (TR. 442-48). This opinion was based
primarily on Dr. Fudge’s evaluation and the reports from Griffin’s teacher stating Griffin
was better behaved, and was “progressing” in reading and math when his ADHD was
controlled by medication. Drs. Wright and Newman acknowledged that Griffin did not
take his medication regularly. (TR. 447).

On May 11, 2011 the Omaha Public Schools issued an Evaluation Report at the
request of the Student Assistance Team to determine if Griffin met the Nebraska
Department of Education eligibility requirement for special education services and to
prepare an Individual Education Plan (“IEP”) for Griffin. (TR.332). Kyle Hesser, a
school psychologist conducted the evaluation. (TR. 335). Griffin took the Wechsler
Nonverbal Scale of Ability Test and ranked in the fifth percentile. (TR. 332). Hessler’s
notes reflect the following:
Eric’s cognitive ability was measured in the Borderline range for his age.
However, the results should be interpreted with caution due to Eric’s young
age and effort. Eric was engaged in the activities but he was fidgety,
talkative, and easily distracted. For example, during the timed subtest that
measures processing speed, Eric would work for a few seconds then stop to
say something. The examiner had to prompt him to look at the next test
item because Eric would get lost or start items at random. Although the
results are likely an underestimation of Eric’s actual cognitive ability, he
demonstrated appropriate visual recognition, or visual memory skills. It is
likely that Eric has low-average or average ability but his inattention and
hyperactivity clearly inhibited his performance, even in the highlystructured environment.
(TR. 332).

Hessler also observed Griffin in the classroom setting and reported:

8

The School Psychologist observed Eric during their opening activities on
April 13. Students were seated on the carpet and were engaged in opening
activities such as calendar, Eric was frequently off task and needed to be
redirected 11 times during the 15 minute observation period. Most
redirections were for talking out. Eric spoke out 13 times during the
observation period. Although his teacher had to redirect him more than
others, she also provided him more praise than other students. His teacher
reported that the behaviors displayed during the observation period were
typical. The observed classroom behaviors were observed at other times
and in other environments too. Just prior to the observation period, Eric had
to be separated from the class in the hallway during a restroom break for
not keeping his hands to himself. Eric argued with the teacher after being
redirected. During testing, Eric was fidgety, frequently spoke out of turn
about anything (on- or off-topic), and he had difficulty waiting his turn to
do or say something.
(TR. 333).
Hessler opined that “Eric’s medical condition significantly impacts his ability to
attend to instruction and lessons. It also impairs his ability to practice new skills and
complete assignments independently.” (TR. 334). In recommending special education
services, Hessler stated “Eric’s inattention and hyperactivity significantly impacts his
progress through the general education curriculum.

He will require more intense

instruction and additional support.” (TR. 334-5).
Additional agency consultants – Thomas Calvert, M.D., Glenda Cottam, Ph.D.,
and certified speech pathologist Terry Vontz– reviewed the evidence of record and
concluded that Griffin had less than marked limitations in all the functional domains.
(TR. 473, 475). The consultants relied heavily upon the opinion of Dr. Fudge. (TR. 47377).

9

At the hearing, the only medical professional that testified was Dr. Kendrick
Morrison, an otorhinolaryngologist. (TR. 38). And his testimony related specifically to
Griffin’s hearing loss, which is not at issue in Griffin’s appeal. The ALJ also elicited
testimony from Griffin and Hoskins. Hoskins testified that Griffin was disruptive in
school and did not stay on task for very long. (TR. 50). She also explained that Griffin
had been prescribed “four or five” different types of medications for his ADHD, but that
Dr. Drvol “[took] him off each one” because Griffin wouldn’t eat, was losing weight and
experienced headaches. (TR. 53). She also noted Griffin had been disciplined several
times for disrupting class. (TR. 54). Hoskins also testified Griffin has great difficulty
staying on task and she had to help Griffin with his homework every night for an hour.
(TR. 54). Hoskins explained that Griffin needed assistance with zipping up his clothes
and tying his shoes. (TR. 55-56). Hoskins further explained that Griffin required oneon-one attention at school and worked with a “specialist” at school on his behavior and
academic work. (TR. 57). Finally, she testified that his doctor felt the ADHD medicine
was causing more harm than good to Griffin. (TR. 58).

After the ALJ issued his unfavorable decision, Griffin obtained a questionnaire
opinion from his treating physician Dr. Drvol. In the opinion, dated October 8, 2012, Dr.
Drvol opined that Griffin had marked limitations in two functional domains: acquiring
and using information and attending and completing tasks. (TR. 608-10). This evidence
was submitted to the Appeals Council.

VI. LEGAL ANALYSIS

A denial of benefits by the Commissioner is reviewed to determine whether the
denial is supported by substantial evidence on the record as a whole. Hogan v. Apfel,
239 F.3d 958, 960 (8th Cir. 2001) .

10

If substantial evidence on the record as a whole supports the
Commissioner=s decision, it must be affirmed. Choate v. Barnhart, 457 F.3d
865, 869 (8th Cir. 2006). A>Substantial evidence is relevant evidence that a
reasonable mind would accept as adequate to support the Commissioner=s
conclusion.=@ Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (quoting
Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). AThe ALJ is in the
best position to gauge the credibility of testimony and is granted deference
in that regard.@ Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Schultz v. Astrue, 479 F.3d 979, 982 (8th Cir. 2007). Evidence that both supports and
detracts from the Commissioner=s decision must be considered, but the decision may not
be reversed merely because substantial evidence supports a contrary outcome. Wildman
v. Astrue, 596 F. 3d 959 (8th Cir. 2010). The court should not overturn an ALJ’s
decision so long as it is in the “zone of choice” even if the court disagrees with the ALJ’s
conclusion. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).

For a child to be considered disabled for the purposes of SSI, the child must either
meet a listed impairment or have a “medically determinable physical or mental
impairment, which results in marked and severe functional limitations” and those
limitations must either last, or be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 1382c(a)(3)(C)(i).

A.

Development of the Record

Griffin asserts the ALJ failed to properly develop the record to determine if Griffin
met a listed impairment. That is, he argues the ALJ should have called a medical expert
to testify regarding Griffin’s ADHD symptoms when Griffin was not taking medication.
To decide if a case should be remanded because the ALJ failed to fully develop the
record, the court must consider whether the claimant was prejudiced. Onstad v. Shalala,
999 F.2d 1232, 1234 (8th Cir. 1993). The ALJ must typically seek additional medical
evidence in the form of examinations or consultations when the record does not contain
11

enough information for the ALJ to make an informed decision.

See, e.g., Boyd v.

Sullivan, 960 F.2d 733, 736 (1992) (ALJ should have ordered a consultative examination
when the record did not provide information on claimants emotional and mental
problems).
In this case, the record provides ample evidence of Griffin’s problems when he is
unable to take his medication and the ALJ did not err by failing to call an additional
medical expert.

However, the ALJ’s evaluation of whether Griffin’s ADHD meets a

listing deserved more than a cursory review. Section 112.11 contains the listing for
ADHD.
Attention Deficit Hyperactivity Disorder: Manifested by developmentally
inappropriate degrees of inattention, impulsiveness, and hyperactivity.
The required level of severity for these disorders is met when the
requirements in both A and B are satisfied.
A.

Medically documented findings of all three of the following:
1.

Marked inattention; and

2.

Marked impulsiveness; and

3.

Marked hyperactivity;

AND
for children (age 3 to attainment of age 18), resulting in at least two of the
appropriate age-group criteria in paragraph B2 of 112.02.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.

Paragraph B2 of 112.02 provides:

12

2.

For children (age 3 to attainment of age 18), resulting in at least two
of the following:
a.

Marked
impairment
in
age-appropriate
cognitive
/communicative function, documented by medical findings
(including consideration of historical and other information
from parents or other individuals who have knowledge of the
child, when such information is needed and available) and
including, if necessary, the results of appropriate standardized
psychological tests, or for children under age 6, by
appropriate tests of language and communication; or

b.

Marked impairment in age-appropriate social functioning,
documented by history and medical findings (including
consideration of information from parents or other individuals
who have knowledge of the child, when such information is
needed and available) and including, if necessary, the results
of appropriate standardized tests; or

c.

Marked impairment in age-appropriate personal functioning,
documented by history and medical findings (including
consideration of information from parents or other individuals
who have knowledge of the child, when such information is
needed and available) and including, if necessary, appropriate
standardized tests; or

d.

Marked difficulties in maintaining concentration, persistence,
or pace.

20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The ALJ’s determination simply stated the “claimant’s ADHD is not associated
with marked inattention, marked impulsiveness, or marked hyperactivity.” (TR. 15).
However, “the severity of Plaintiff’s ADHD deserves more than a conclusory sentence,
especially because, when fully evaluated, the Plaintiff’s ADHD may meet or medically
equal in severity the criteria of a listed impairment.”

Pena v. Barnhart, case no.

01c504455, 2002 WL 31527202, *7 (N.D. Ill., November 13, 2002). The undersigned
believes the evidence of record warrants a thorough analysis and discussion of Claimant’s
13

symptoms – particularly since, as discussed below, Griffin was taken off his medication
by his physician due to medication-related side effects which hinder his growth and
overall health.
B.

The Functional Domains

Even if the ALJ determines Griffin does not meet a listing, the ALJ will need to
reassess whether Griffin has an impairment or combination of impairments that
functionally equals the severity of a listing. This requires the ALJ to analyze the child’s
functional limitations within six domains of functioning. See 20 C.F.R. §§ 416.924(d)
and 416.926a. “We may find functional equivalency to a listed impairment if a child has
an extreme limitation in at least one functional domain, or “marked” limitations in at least
two such domains.” Scales v. Barnhart, 363 F.3d 699, 703-04 (8th Cir. 2004).

The six functional categories are: (i) Acquiring and using information; (ii)
Attending and completing tasks; (iii) Interacting and relating with others, (iv) Moving
about and manipulating objects, (v) Caring for yourself; and (vi) Health and physical
well-being. 20 C.F.R. § 416.926a(b)(1).
The applicable regulations discuss what should be considered a “marked”
limitation in evaluating the child’s performance in the six functional categories.
(i) We will find that you have a “marked” limitation in a domain when your
impairment(s) interferes seriously with your ability to independently
initiate, sustain, or complete activities. Your day-to-day functioning may
be seriously limited when your impairment(s) limits only one activity or
when the interactive and cumulative effects of your impairment(s) limit
several activities. “Marked” limitation also means a limitation that is
“more than moderate” but “less than extreme.” It is the equivalent of the
functioning we would expect to find on standardized testing with scores
that are at least two, but less than three, standard deviations below the
mean.

14

20 C.F.R. § 416.926a(2).

In this case, the ALJ reviewed each of the six functional domains and determined
Griffin had “less than marked” limitations in each. Griffin argues the ALJ’s finding is
erroneous for two of the functional domains – “acquiring and using information” and
“attending and completing tasks.” (Filing No. 16 at CM/ECF pp. 16-19).

Before addressing the specific functional domains at issue, it is important to note
that the linchpin of the ALJ’s decision appears to be the opinion of Dr. Fudge, to which
the ALJ afforded “great weight.” However, Dr. Fudge completed his evaluation of
Griffin while Griffin was taking his ADHD medication. (TR. 437). The opinions of the
state agency consultants upon which the ALJ relied suffer the same flaw because they
rely heavily upon Dr. Fudge’s evaluation. However, the record is clear that Griffin was
on ADHD medications for only a limited time due to unfavorable side effects – loss of
appetite, weight loss, and headaches.2 And when Griffin was unable to take his ADHD
medications his behavior and functional capacity decreased significantly.

1.

Acquiring and Using Information

The ALJ determined Griffin did not suffer marked limitations in the area of
“acquiring and using information.” This domain involves how children “learn to read,
write, and do math, and discuss history and science.” 20 C.F.R. § 416.926a(g)(2)(iv).
Dr. Fudge concluded “[t]he psychological assessment indicated mild to moderate
challenges in several areas: However, there is no indication of any marked mental health

2

Griffin did not stop taking his medication arbitrarily or due to forgetfulness. Rather, he
experienced severe side effects that were both objective and subjective in nature. The
medication caused loss of appetite, sleep, and headaches, with an objective manifestation of
weight loss when Griffin was on the medication and weight gain when he was not. Griffin
stopped taking his ADHD medicine upon both the approval and recommendation of his treating
physician. (TR 593).

15

challenges at this time.” (TR. 477). Relying heavily on Dr. Fudge’s conclusions, the
state agency consultants determined Griffin’s limitation in this area was “less than
marked,’ (TR. 473), with Drs. Wright and Newman specifically noting that Griffin does
better on medication, (TR. 444-47). These conclusions are supported by Griffin’s third
quarter report card which indicated he was “progressing,” and an IEP evaluation which
stated he “demonstrated appropriate visual recognition, or visual memory skills.” (TR.
20-21 and TR. 332). Finally, the ALJ noted that when completing the questionnaire
addressing Griffin’s functional abilities, his teacher, Klima, did not indicate Griffin had a
“very serious” problem with any of tasks in the “acquiring and using information”
category. (TR. 21 and TR. 154).
The ALJ’s opinion regarding Griffin’s ability to acquire and use information did
not consider Griffin’s limitations when Griffin is unable to take his medication. Klima
explained that Griffin had a “serious problem” in comprehending and doing math
problems and expressing ideas in written form, (TR. 154), sometimes had a “very serious
problem” applying problem solving skills in class, (TR. 154), and has an “obvious
problem” reading and comprehending written material and recalling and applying
previously learned material when he was not taking his medication. (TR. 154). Although
Griffin was “progressing” as reflected on his report card, “progressing” is defined as
“Approaches but does not meet standards.” (TR. 194). That is, through 3 academic
quarters of his kindergarten year, Griffin had not yet met academic standards in reading,
writing, or math. (TR. 195). For the first two quarters in math, he was not even
approaching the academic standards. (TR. 195). The notes at the end of the second
quarter state: “When [Griffin] is not having a good day, he cannot complete work
correctly nor can he remain on task.” (TR. 197).
Griffin’s IEP evaluation results noted “limited progress” during his kindergarten
year. (TR. 199). For example, Griffin remained in the “Beginning” reading group,

16

learned the fewest High Frequency words of any student in his class, had difficulty
counting, and was not able to “write letters beyond 10” despite working with flash cards
“three times a day.” (TR. 199). The IEP evaluation also noted that Griffin “requires a lot
of repetition for learning skills.” (TR. 200).
Although the ALJ concludes the record as a whole indicated that “even without
medication” Griffin’s functional limitations are not of marked severity, (TR. 19), the
analysis within the opinion, and the medical providers relied upon, focused on Griffin’s
ADHD symptoms while using medication. (TR. 19 and TR. 21). The ALJ did not
consider Griffin’s limitations when, upon the advice of his physician, he is unable to take
ADHD medication. And, the ALJ did not address the records of Griffin’s treating
physician and largely discounted the information provided by his teacher and his IEP
evaluation. (TR. 19). The ALJ also discounted the testimony of Griffin’s grandmother
despite the fact it was completely consistent with the reports of Griffin’s teacher and his
in-school evaluation. For all of these reasons, the record does not support the ALJ’s
conclusion that Griffin does not have at least a “marked limitation” in the acquiring and
using information domain.

2.

Attending and Completing Tasks

The ALJ determined Griffin had a “less than marked limitation” in the domain of
“Attending and Completing Tasks.” The ALJ’s explanation for this determination, set
forth hereafter in its entirety, states:

In May 2011, it was reported that the claimant enjoyed listening to stories,
loved learning new things, and responded well to redirection. (Exhibit
16E/12). Mrs. Klima rated the claimant's performance as most limited in
this domain, but only when not taking medication. (Exhibit 5E/4) She noted
certain problems that were occurring on an hourly basis, but the record as a

17

whole fails to establish marked limitations since the claimant's ADHD
medication was most recently stopped.
(TR. 21).
The ALJ’s opinion is not support by substantial evidence of record. For the
reasons noted above, the ALJ relied too heavily on Griffin’s behaviors and limitations
while on medication. Klima reported significant limitations in this area when Griffin is
not medicated. She noted four to five areas of “very serious problems” and five to six
areas of “serious problems.”

(TR. 155).

Specifically, Griffin experienced serious

problems in:
 Carrying out multi-step instructions;
 Changing from one activity to another without being disruptive;
 Working without distracting self or others; and
 Working at a reasonable pace and finishing on time.
Klima reported “serious problems” in the following areas:
 Focusing long enough to finish assigned activity or task;
 Refocusing on task when necessary;
 Carrying out single-step instructions;
 Changing from one activity to another without being disruptive;
 Organizing own things or school materials; and
 Completing work accurately without careless mistakes.
(TR. 155).
Klima’s noted that Griffin was able to complete tasks at school only if the teacher
or para-educator was in close proximity. (TR. 155). And if he was not taking his
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medication, Griffin could not stay focused on tasks “at all” and “ha[d] difficulty
completing independent work.”3 (TR. 154). The disruptions occurred on a daily, and
sometimes hourly basis. (TR. 155).

Other evidence of record indicates Griffin has at least a marked, if not an extreme,
limitation in this area. For example, his IEP evaluation notes that the intellectual testing
results were likely an underestimation of Griffin’s ability, finding:
Eric’s cognitive ability was measured in the Borderline range for his age.
However, the results should be interpreted with caution due to Eric’s young
age and effort. Eric was engaged in the activities but he was fidgety,
talkative, and easily distracted. For example, during the timed subtest that
measures processing speed, Eric would work for a few seconds then stop to
say something. The examiner had to prompt him to look at the next test
item because Eric would get lost or start items at random. Although the
results are likely an underestimation of Eric’s actual cognitive ability, he
demonstrated appropriate visual recognition, or visual memory skills. It is
likely that Eric has low-average or average ability but his inattention and
hyperactivity clearly inhibited his performance, even in the highlystructured environment.
(TR. 332).

The observations within the IEP are consistent with the testimony of Hoskins,
Griffin’s grandmother, who explained Griffin’s inability to stay on task and his disruptive
behavior at school. (TR. 50, 54). Hoskins testified that Griffin’s ability to learn is
hindered because “he can’t stay focused long enough to complete things.” (TR. 54). She
also testified that she has to help him complete his homework and that they spend an hour
a night completing two pages because of his inability to focus and his perpetual desire to
get up and move around. (TR. 54-55).
3

Although these notes from Klima were under the “acquiring and using
information” domain, the content is more consistent with the “attending and completing
tasks” domain.
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The ALJ’s conclusory statement that “the record as a whole fails to establish
marked limitations since the claimant’s ADHD medication was most recently stopped” is
not supported by the record. To the contrary, the record as a whole supports the opposite
conclusion. For that reason, the case will be remanded for the ALJ to consider whether
Griffin has not only a “marked” limitation in this domain, but also whether the limitation
could be considered extreme.4

Accordingly,

IT IS ORDERED, that judgment shall be entered by separate document, providing
that the Commissioner’s decision is reversed and the case remanded for further
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

Dated this 7th day of November, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

4

“We will find that you have an ‘extreme’ limitation in a domain when your
impairment(s) interferes very seriously with your ability to independently initiate, sustain, or
complete activities. Your day-to-day functioning may be very seriously limited when your
impairment(s) limits only one activity or when the interactive and cumulative effects of your
impairment(s) limit several activities. ‘Extreme’ limitation also means a limitation that is ‘more
than marked.’ ‘Extreme’ limitation is the rating we give to the worst limitations. However,
“extreme limitation” does not necessarily mean a total lack or loss of ability to function. It is the
equivalent of the functioning we would expect to find on standardized testing with scores that are
at least three standard deviations below the mean.” 20 C.F.R. § 416.926a(e)(3).
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

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