Allen v. Commissioner of Social Security
Filing
26
MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge REVERSES the Commissioner's decision and REMANDS the matter for further administrative proceedings. Signed by Magistrate Judge Shon T. Erwin on 9/16/16. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHANTELLA R. ALLEN, on behalf of
S.N.A., a minor,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case No. CIV-15-1290-STE
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. §405(g) for judicial review of
the final decision of the Commissioner of the Social Security Administration denying
her child’s application for Supplemental Security Income benefits (SSI) under §
1614(a)(3)(C) of the Social Security Act and 42 U.S.C. § 1382c(a)(3). The parties
have consented to jurisdiction over this matter by a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c).
The Commissioner has answered and filed a transcript of the administrative
record (hereinafter TR. ____). The parties have briefed their positions, and the
matter is now at issue. It is ordered that the Commissioner’s decision be REVERSED
and REMANDED for further administrative proceedings.
I.
PROCEDURAL BACKGROUND
Plaintiff’s application for benefits on behalf of her minor child S.N.A., was
denied initially and on reconsideration. Following a hearing, an Administrative Law
Judge (ALJ) issued an unfavorable decision. (TR. 14-25). On appeal, Plaintiff
submitted additional evidence to the Appeals Council. (TR. 280-298). The Appeals
Council considered the evidence1 but denied Plaintiff’s request for review. (TR. 1-4).
Thus, the decision of the ALJ became the final decision of the Commissioner.
II.
DETERMINATION OF DISABILITY FOR CHILDREN
The Social Security Act provides that “[a]n individual under the age of 18 shall
be considered disabled . . . if that individual has a medically determinable physical or
mental impairment, which results in marked and severe functional limitations, and
which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(C)(I).
The Commissioner applies a three-step sequential inquiry to determine
whether an individual under the age of 18 is disabled. See 20 C.F.R. § 416.924(a). At
step one, the ALJ determines whether the child is engaged in substantial gainful
activity. Id. at § 416.924(b). If not, the inquiry continues to step two for
1
The Appeals Council did not consider records from Dr. Mark Mann dated July 28, 2014 and
records from the Clinton Public Schools dated April 23, 2015, because the information was
irrelevant to whether the child had been disabled prior to May 7, 2014, the date of the ALJ’s
decision. (TR. 2). See Chambers v. Barnhart, 389 F.3d 1139, 1142 (noting that the Appeals
Council must only consider evidence that is related to the period on or before the date of the
ALJ’s decision).
2
consideration
of
whether
the
child
has
a
severe
medically
determinable
impairment(s). Id. at § 416.924(c). If so, step three involves determining whether
such impairment meets, medically equals, or functionally equals a listed impairment.
Id. at § 416.924(d). A child’s impairment functionally equals an impairment if it is “of
listing-level severity . . . i.e., it must result in ‘marked’ limitations in two domains of
functioning or an ‘extreme’ limitation in one domain . . . .” Id. at § 416.926a(a), (d).
A child will be found “not disabled” if the impairment does not: (1) meet the twelvemonth duration requirement or (2) meet, medically equal, or functionally equal a
listed impairment. Id. at § 416.924(d)(2).
III.
THE ADMINISTRATIVE DECISION
The ALJ followed the three-step sequential evaluation process established for
minor children as set forth in 20 C.F.R. §416.924(a). At step one, the ALJ found that
S.N.A. had never engaged in substantial gainful activity. (TR. 17). At step two, the
ALJ concluded that S.N.A. suffered from severe attention deficit hyperactivity
disorder (ADHD). (TR. 17). At step three, the ALJ concluded that S.N.A. did not have
an impairment that met or medically equaled a listed impairment. (TR. 18). Also, at
step three the ALJ also evaluated the six domains to determine whether S.N.A.’s
impairments functionally equaled a listed impairment. (TR. 18-25).
In doing so, the ALJ concluded that S.N.A. had a “less than marked” limitation
in the domains of: (1) acquiring and using information, (2) attending and completing
tasks, and (3) interacting and relating with others. (TR. 20-23). The ALJ also
3
concluded that S.N.A. had no limitation in the domains involving: (1) moving about
and manipulating objects, (2) the ability to care for herself, and (3) health and
physical well-being (TR. 23-25). Accordingly, the ALJ concluded that since S.N.A. did
not have an impairment or combination of impairments resulting in either “marked”
limitations in two domains of functioning or “extreme” limitation in one domain of
functioning, she was not disabled. (TR. 25).
IV.
STANDARD OF REVIEW
This Court reviews the Commissioner’s final decision “to determin[e] whether
the factual findings are supported by substantial evidence in the record and whether
the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140
(10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted).
In determining whether substantial evidence supports the Commissioner’s
decision, this Court will examine all of the evidence in the administrative record as
well the evidence the Appeals Council considered in connection with the claimant’s
request for administrative review, regardless of whether review was ultimately
denied. See Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004). Substantial
evidence is “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007). A decision is not based on substantial evidence “if
it is overwhelmed by other evidence in the record.” Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009) (quotation omitted).
4
V.
ISSUE PRESENTED
Ms. Allen argues that a portion of the evidence submitted to the Appeals
Council directly rebuts the ALJ’s findings at step three regarding whether Plaintiff’s
ADHD had functionally equaled a listed impairment. As a result, Plaintiff contends
that the ALJ’s step three findings lack substantial evidence.
VI.
THE STEP THREE FINDINGS LACK SUBSTANTIAL EVIDENCE
The overwhelming evidence establishes that S.N.A.’s ADHD was functionally
equal to a listed impairment. Accordingly, the Court concludes that the ALJ’s contrary
findings lack substantial evidence.
A.
Evaluating “Functional Equivalence”
A child’s impairment functionally equals a listed impairment if it is “of listinglevel severity . . . i.e., it must result in ‘marked’ limitations in two domains of
functioning or an ‘extreme’ limitation in one domain . . . .” Id. at § 416.926a(a), (d).
The six domains are: (1) acquiring and using information, (2) attending and
completing tasks, (3) interacting and relating with others, (4) moving about and
manipulating objects, (5) caring for yourself, and (6) health and physical well-being.
Id. at § 416.926a(b)(1).
A “marked” limitation will be found if an impairment “seriously” interferes with
the child’s “ability to independently initiate, sustain, or complete activities.” Id. at §
416.926a(e)(2). A marked limitation may also be found if the child has a valid score
that is more than two, but less than three, standard deviations below the mean, on a
5
comprehensive standardized test designed to measure a particular domain, although
the Commissioner will not rely solely on the test results. Id. at §§ 416.924a(a)(1)(ii),
416.926a(e)(2). If the interference is “very serious[]”, the limitation is considered
“extreme.” Id. at 416.926a(e)(3).
In assessing whether a child has “marked” or “extreme” limitations, the ALJ
considers the functional limitations from all medically determinable impairments,
including any impairments that are not severe. Id. at § 416.926a(a). The ALJ must
consider the interactive and cumulative effects of the child’s impairment or multiple
impairments in any affected domain. Id. at § 416.926a(c). The ALJ is required to
compare how appropriately, effectively, and independently the child performs
activities compared to the performance of children of the same age who do not have
impairments. Id. at § 416.924a(b).
B.
Evidence Submitted to the Appeals Council
In the instant case, the ALJ concluded that S.N.A. suffered from “less than
marked” limitations in the areas of: (1) acquiring and using information, (2)
attending and completing tasks, and (3) interacting and relating with others. (TR. 2023).2 Ms. Allen contends that the ALJ’s findings lack substantial evidence in light of
two pieces of evidence submitted to the Appeals Council: (1) a questionnaire
completed by S.N.A.’s second grade teacher, Marilou Schantz and (2) an
2
Ms. Allen is not challenging the domains involving: (1) moving about and manipulating
objects, (2) caring for yourself, and (3) health and physical well-being. See ECF No. 19:8,
n.2.
6
individualized education plan (IEP) for S.N.A. completed by school representatives.
(TR. 280-94).3 According to Plaintiff, this evidence establishes that S.N.A. suffered
from “marked” limitations in at least two of the domains, and an “extreme” limitation
in one domain—findings which would establish that S.N.A.’s ADHD had functionally
equaled a listed impairment. (ECF No. 19:2-11).
The Appeals Council considered the additional evidence but concluded that it
did “not provide a basis for changing the Administrative Law Judge’s decision.” (TR.
2). This language indicates that the Appeals Council had “adequately considered” the
teacher questionnaire and the IEP. Martinez v. Barnhart, 444 F.3d 1201, 1207 (10th
Cir. 2006). As a result, the Court will examine the additional evidence, along with the
entire administrative record, to evaluate whether the ALJ’s decision was supported by
substantial evidence. Id.
1. The Teacher Questionnaire Completed by Marilou Schantz
On April 11, 2014, Plaintiff’s second grade teacher, Marilou Schantz,
completed a questionnaire regarding S.N.A.’s limitations in each of the six functional
domains. (TR. 280-287). In the area of acquiring and using information, Ms. Schantz
3
In her opening brief, Plaintiff also references a piece of correspondence from her
representative to the Social Security Administration which was submitted to the Appeals
Council as “germane” to the federal appeal. (ECF No. 19:3). The evidence is a short letter
which states: “I am requesting an explanation. I was told by the ALJ assistant that I would
have a chance to submit the IEP before a decision was made. She gave me until 5/15/2014.
The decision was posted last week? If you have any questions please let me know.” (TR.
295). Aside from the reference to the letter being “germane,” Plaintiff does not provide any
substantive argument regarding how this letter would have affected the ALJ’s findings at
step three.
7
stated that S.N.A. had a “very serious” daily problem with expressing ideas in written
form and “serious” daily problems in comprehending and doing math problems and
providing organized oral explanations and adequate descriptions. (TR. 281). In the
domain of attending and completing tasks, Ms. Schantz stated that S.N.A. had “very
serious” hourly problems in the areas of:
Focusing long enough to finish assigned activity or task,
Refocusing to task when necessary,
Changing from one activity to another without being disruptive,
Completing class/homework assignments,
Completing work accurately without careless mistakes,
Working without distracting self or others, and
Working at a reasonable pace/finishing on time.
(TR. 282). S.N.A. also had daily “very serious” problems with waiting to take turns
and hourly “serious” problems with paying attention when spoken to directly. (TR.
282). Finally, in the area of interacting and relating to others, Ms. Schantz reported
that S.N.A. suffered daily “serious” problems using adequate vocabulary and
grammar to express thoughts/ideas in general everyday conversation. (TR. 283).
2. The Individualized Education Plan
On May 6, 2014, school officials met to discuss the parameters of a continued
individualized special education plan for S.N.A. as she concluded her second year in
school and continued to third grade. (TR. 288-294). In the IEP, S.N.A.’s special
8
education teacher noted that S.N.A. suffered from ADHD and continued to struggle
in the regular classroom. (TR. 288). At that time, test scores showed that S.N.A.
ranked in the first percentile in Reading and could read at the grade equivalent of an
average student in the first grade, fifth month. (TR. 288). In Math, S.N.A.’s
achievement was equated to that of an average student in the first grade, fourth
month, with a ranking in the twenty-seventh percentile. (TR. 288). Due to her
difficulties in Reading and Math, the plan provided extra services where S.N.A would
be pulled outside the regular classroom for individualized help in these classes four
times per week. (TR. 290). Although S.N.A. qualified for “regular” state-wide
cumulative testing at the end of the year, she would be tested in a small group with
frequent breaks due to her ADHD. (TR. 291).
As discussed, the social security regulations state that “serious” impairments
equate to a finding of “marked” limitations in a particular domain and “very serious”
impairments equate to a finding of “extreme” limitations. 20 C.F.R. § 416.926a(e)(2)(3). Ms. Schantz had opined that S.N.A. had: (1) “marked” limitations in the areas of
acquiring and using information and interacting and relating to others and (2)
“extreme” limitations in the area of attending and completing tasks. And the test
results as set forth in the IEP which indicate S.N.A.’s cognitive aptitude as more than
one grade level below her peers indicate limitations in the area of acquiring and
using information. See Social Security Ruling 09-3p, Title XVI: Determining Childhood
Disability—The Functional Equivalence Domain of “Acquiring and Using Information,”
9
2009 WL 396025, at *6 (Feb. 17, 2009) (noting that an example of limitations in this
area is the child’s inability to read or do arithmetic at the appropriate grade level).
Under the regulations, the teacher questionnaire and IEP strongly indicate
that S.N.A. suffered from “marked” limitations in two domains and “extreme”
limitations in one domain—findings which would support a conclusion of functional
equivalence at step three. However, The ALJ was not privy to this evidence as it was
only submitted to the Appeals Council. Therefore, this Court must examine the
additional evidence in light of the entire record and the reasons proffered by the ALJ
in concluding otherwise, to determine if the ALJ’s decision was supported by
substantial evidence.
C.
The Domain of Acquiring and Using Information
The domain of acquiring and using information encompasses a child’s ability
to learn information and to think about and use that information. SSR 09-3p, at *2.
In assessing limitations in this domain, adjudicators may examine assessments of
cognitive ability measured by intelligence tests, academic achievement instruments,
grades in school, and special education or other services. Id. at *3. A “marked”
limitation is indicated if the child has a valid score that is more than two, but less
than three, standard deviations below the mean, on a comprehensive standardized
test designed to measure a particular domain. See 20 C.F.R. §§ 416.924a(a)(1)(ii),
416.926a(e)(2). Some examples of limitations in this domain include:
10
Not performing Reading or Math at the appropriate grade level,
Difficulty comprehending written or oral directions, and
A struggle with following simple instructions.
1. The ALJ’s Findings
In the instant case, the ALJ found that S.N.A. had “less than marked”
limitations in this domain, providing the following rationale:
As previously stated, there is not objective evidence that the claimant
has low IQ scores or any other cognitive disorder. She is achieving
below
grade level in most academic areas due to her problems with
inattention in the classroom. She continues to make academic progress
despite this,
and she is on an IEP plan and receives help from teachers after school.
When her medications are working, she reportedly does fine.
(TR. 21).
In concluding that S.N.A. had “less than marked” limitations in the area of
acquiring and using information, the ALJ gave “great weight” to the opinions of nonexamining State Agency physicians, noting that the opinions “are generally consistent
with the medical records and other evidence in the file.” (TR. 20). The ALJ gives no
other details regarding the State Agency opinions, and indeed, the record reveals
that the opinions are sparse.
On March 8, 2012, State Agency psychologist, Dr. Ron Cummings, reviewed
S.N.A.’s records and found that she had “less than marked” limitations in the
domains involving acquiring and using information and attending and completing
11
tasks and that S.N.A had no limitations in the domain involving “interacting and
relating with others.” (TR. 381). In April 2012, two additional State Agency
psychologists affirmed Dr. Cummings’ findings. (TR. 406-411).4 Other than his
general reference to giving the State Agency psychologists’ opinions “great weight,”
the ALJ does not give specific examples in support of his reasoning or cite to
particular findings. And in fact the record provides contrary evidence.
2. Evidence Which Weighs Against the ALJ’s Findings
On April 16, 2012, School Psychometrist, Sandra Schimmer, performed a
variety of cognitive and developmental tests on S.N.A. to assess her overall
intellectual ability, specific cognitive abilities, and academic achievement. (TR. 395405). S.N.A.’s overall intellectual function ranked at the fifth percentile with a
standard score of 76, which fell in the “low range” of ability for her age. (TR. 395-96,
399). Additionally, compared to her peers, S.N.A. scored in the “low range” in the
areas of visual-auditory learning and comprehension knowledge. (TR. 399). S.N.A.
ranked in the “very low range” when compared to her peers, in the areas of verbal
comprehension, numbers reversed, and short term memory. (TR. 399).
4
The record contained two additional opinions from non-examining State Agency
physicians. On March 24, 2011, State Agency psychologist Cynthia Kampschaefer found “no
severe limitations” although according to a teacher questionnaire, S.N.A. had difficulty
knowing procedures, staying on task, and sitting in her chair. (TR. 310). On May 10, 2011, a
second State Agency psychologist affirmed Dr. Kampschaefer’s findings. (TR. 316). The ALJ
generally cited the “opinions of the State agency medical consultants” to which he accorded
“great weight,” but without further explanation, the undersigned assumes that the ALJ did
not adopt these findings as they conflict with the ALJ’s findings at step two that S.N.A.
suffered from a severe impairment involving ADHD. See TR. 17.
12
In areas of specific instruction, S.N.A. exhibited scores which were more than
two, but less than three, standard deviations below the mean in the areas of: (1)
verbal comprehension, (2) numbers reversed, and (3) brief Math. (TR. 404-405).
This evidence would be indicative of a “marked” limitation in these areas and in the
specific
domain
of
acquiring
and
using
information.
See
20
C.F.R.
§§
416.924a(a)(1)(ii), 416.926a(e)(2) (a marked limitation may also be found if the
child has a valid score that is more than two, but less than three standard deviations
below the mean, on a comprehensive standardized test designed to measure a
particular domain). In sum, Ms. Schimmer stated:
Overall, [S.N.A.’s] academic skills are very limited. . . . [and her] overall
intellectual ability is in the low range of standard scores. . . . [S.N.A.]
will probably gain the most from reading instruction presented with the
middle to late first grade range. . . . Math instruction presented within
the middle to late kindergarten range will likely produce the greatest
gains for [S.N.A.]. . . . Accommodations may be useful in compensating
for [S.N.A.’s] limitations in short-term memory. Some examples include
keeping oral directions short and simple, asking Savannah to
paraphrase directions to ensure understanding, and providing visual
cues for directions or steps to be followed.
(TR. 398-402). The psychometrist referred S.N.A. for an evaluation of a suspected
learning disability. (TR. 399).
In addition to his statement that the record lacked cognitive testing, the ALJ
also noted that S.N.A. “continues to make academic progress” despite her struggles
in school. (TR. 20). But the record shows a steady decline in her academic gains as
she progressed through school. See TR. 177 (in kindergarten, S.N.A. was at
kindergarten level in Math and Reading); TR. 239, 253, 288 (in first grade, S.N.A.
13
was below grade level in Math and Reading); TR. 280 (in second grade, S.N.A. was
below grade level in Reading). The ALJ also stated that S.N.A. “is on an IEP plan and
receives help from teachers after school.” (TR. 21). But S.N.A.’s IEP shows that she
is pulled out of the regular classroom for small-group services in Reading and Math
four times a week, not that she stays after school for extra help. (TR. 290). Finally,
the ALJ noted that “when [S.N.A.’s] medications are working, she reportedly does
fine.” (TR. 21). This statement diminishes the reality of S.N.A.’s lengthy and
turbulent history taking ADHD medication.
Between January 2010 and January 2011, treating physician Dr. Chris Kolker
prescribed Ritalin, and then added Adderall, to treat S.N.A.’s ADHD. (TR. 360, 362,
364, 366, 367-368, 374-375). During this time, with increases in the medication in
July and November 2010, the record indicates that S.N.A. was doing well at school
with good behavior and no problems. (TR. 360, 362, 364, 366, 367-368). However,
in March of 2011, Dr. Kolker noted that S.N.A. threatened someone and was
aggressive. (TR. 357). As a result, Dr. Kolker increased the Adderall, noting that the
medicine would help, but “there [would] not be a cure.” (TR. 357). In July 2011, Dr.
Kolker again increased Plaintiff’s Adderall and noted that S.N.A. “was hyper, very
difficult to control very aggressive, not violent but more aggressive with speech.”
(TR. 354). Dr. Kolker noted that S.N.A. and her mother were “not trying to do any
homework to return to school.” (TR. 354). Two weeks later, Dr. Kolker noted that the
increased medication was “simply not effective” and was “without results.” (TR. 351).
14
As a result, Dr. Kolker changed S.N.A.’s medication to Strattera, 25 mg once daily.
(TR. 351-352).
On August 30, 2011, Dr. Kolker noted that the Strattera was not working, so
he switched S.N.A.’s medication back to Adderall. (Tr. 349-350). According to Dr.
Kolker’s notes, S.N.A. was “doing terrible in school and not sitting still.” (TR. 349).
On October 24, 2011, Dr. Kolker noted that the Adderall was not helping, so the
physician switched S.N.A.’s medication back to Strattera, 40 mg, once daily. (TR.
342-343). On November 7, 2011, Dr. Kolker increased the Strattera to 60 mg, once
daily, and added Guanfacine, one half pill, three times a day. (TR. 338-340).
On November 16, 2011, Dr. Kolker noted that the medication regime seemed
to be working and that S.N.A. had “settled down quite a lot.” (TR. 336). In December
2011, Dr. Kolker noted that S.N.A’s grades were good at school but that she still had
“difficulty concentrating [and] . . . . staying in focus at school.” (TR. 333). In January
2012, Dr. Kolker discontinued Strattera and added Adderall to address S.N.A.’s
continued hyperactivity. (TR. 322-323). From March to August 2012, Dr. Kolker
continued prescribing Adderall and Guanfacine which the physician noted had
“normalized behavior.” (TR. 415-426). However, in August of 2012, Dr. Kolker
increased the Adderall to 50 mg, twice daily. (TR. 414).
3. Summary
The ALJ’s statement regarding a lack of evidence concerning cognitive deficits
is contradicted by findings from School Psychometrist, Ms. Schimmer. Cognitive test
15
results indicate that S.N.A. suffers from a “marked” limitation in this domain, which is
further supported by findings from the teacher questionnaire from Ms. Schantz, as
well as S.N.A.’s IEP. Although ADHD medication helped control S.N.A.’s behavior for
approximately one year, findings from Dr. Kolker indicate that the child continued to
struggle throughout 2011 and most of 2012. The sum of this evidence outweighs the
contrary opinions of the non-examining State Agency physicians and the ALJ’s
findings regarding this domain. As a result, the undersigned concludes that
substantial evidence does not support the ALJ’s findings that S.N.A. had “less than
marked” limitations in the domain of acquiring and using information.
D.
The Domain of Attending and Completing Tasks
The domain of attending and completing tasks encompasses a child’s ability to
“initiate and maintain attention, including the child’s alertness and ability to focus on
an activity or task despite distraction, and to perform tasks at an appropriate pace.”
Social Security Ruling 09-4p, Title XVI: Determining Childhood Disability—The
Functional Equivalence Domain of “Attending and Completing Tasks,” at *2 (Feb. 18,
2009). In assessing limitations in this domain, adjudicators will consider the child’s
ability to change focus after completing a task, to avoid impulsive thinking and
acting, organize things, and manage time. Id. at * 2. One assessment of limitations
in this domain is whether school age children focus long enough to do classwork and
homework. Id. at *2. As noted by the Social Security Administration, children with
ADHD may be particularly susceptible to limitations in this domain. The SSA states:
16
Children with attention-deficit hyperactivity disorder (AD/HD) whose
primary difficulty is inattention may be easily distracted or have
difficulty focusing on what is important and staying on task. They may
fail to pay close attention to details and make careless mistakes in
schoolwork, avoid projects that require sustained attention, or lose
things needed for school or other activities beyond what is expected of
children their age who do not have impairments. Children with AD/HD
whose primary difficulty is hyperactivity and impulsivity may fidget with
objects instead of paying attention, talk instead of listening to
instructions, or get up from their desks and wander around the
classroom beyond what is expected of children their age who do not
have impairments.
Id. at *3. Some examples of limitations in this domain include:
Is slow to focus on or fails to complete activities that interest the child,
Gives up easily on tasks that are within the child’s capabilities,
Repeatedly becomes sidetracked from activities or frequently interrupts
others,
Needs extra supervision to stay on task, and
Cannot plan, manage time, or organize self in order to complete
assignments or chores.
Id. at *5-6.
1. The ALJ’s Findings
Here, the ALJ found that S.N.A. had “less than marked” limitations in this
domain, providing the following rationale:
As noted, the claimant has periodic difficulties with paying attention
and staying on task. She is described as “very active.” The treating and
medical notes report the claimant does well on medications, then
periodically reports increased difficulties in the area, at which time her
medications are adjusted. After each medication adjustment, she
returns to her overall stability and improved baseline. She does not
need instructions repeated to her. One of her teachers states,
17
“Savannah’s behavior is fine if she is on task. If she does not
understand, she will shut down and not listen to any directions.” This
implies that there are times that the claimant is able to focus on and
complete work.
(TR. 22). The ALJ does not provide supporting citations in his explanation, and the
record provides contrary evidence.
2. Evidence Which Weighs Against the ALJ’s Findings
First, the ALJ’s statement was only partially accurate regarding S.N.A.’s
attention and focus being stabilized following medication adjustments. During 2011,
S.N.A. seemed to do well in school following three medication adjustments. See TR.
360, 362, 364, 366. However in 2011, Dr. Kolker increased Plaintiff’s medication
twice due to increased aggression and hyperactivity. (TR. 354, 357). Two weeks
following the adjustment in July 2011, Dr. Kolker noted that the increased medication
was “simply not effective” and was “without results.” (TR. 351). As a result, Dr.
Kolker changed S.N.A.’s medication to Strattera but after a month with no results,
the physician switched S.N.A.’s medication back to Adderall. (TR. 349-350).
According to Dr. Kolker’s notes, S.N.A. was “doing terrible in school and not sitting
still.” (TR. 349).
On September 30, 2011, Dr. Kolker noted that S.N.A. was “doing well,” but
over the next three months the physician changed S.N.A.’s medication three times.
(TR. 336 338-340, 342-343, 346). In December 2011, Dr. Kolker noted that S.N.A’s
grades were good but that she still had “difficulty concentrating [and] . . . . staying
18
in focus at school. (TR. 333). In January 2012, Dr. Kolker discontinued Strattera and
added Adderall to address S.N.A.’s continued hyperactivity. (TR. 322-323).
School records during 2011 and 2012 support the physician’s findings of
continued hyperactivity and inattention during this time. For example, on a teacher
questionnaire in March 2011, school officials noted that S.N.A. had “very serious
problems” hourly with her ability to change from one activity to another without
being disruptive, and had “serious” hourly problems in her ability to: (1) focus long
enough to finish assigned activity or task, (2) wait to take turns, and (3) organize her
things or school materials. (TR. 179). A teacher noted that S.N.A. had trouble staying
on task, sitting in her chair and was in “constant movement.” (TR. 179). And in the
same record the ALJ cited as evidence of “times that the claimant is able to focus on
and complete work,” S.N.A.’s teacher noted that she was “having difficulty staying
focused [which] affect[ed] her learning in the classroom.” (TR. 192).
In 2012, S.N.A.’s teacher noted that she had: (1) “very serious” hourly
problems in the area of changing from one activity to another without being
disruptive, (2) “serious” hourly problems in her ability to work without distracting
others, and (3) daily “serious” problems in her ability to carry out multi-step
instructions, organize her things or school materials, and complete work accurately
without careless mistakes. (TR. 255).
Additional evidence exists regarding limitations in this domain. On December
22, 2011, Dr. Kolker completed a “Child’s Mental Impairment Medical Source
19
Statement” and opined that S.N.A. suffered from ADHD characterized by
psychomotor agitation which resulted in her ability to stay still for only a few
seconds. (TR. 318). Dr. Kolker also noted that S.N.A.’s problems existed despite the
fact that she was taking two ADHD medications, one of which caused agitation. (TR.
318). Dr. Kolker opined that S.N.A. had “marked” limitations in the area of attending
and completing tasks. (TR. 319).
In April of 2014, treating physician Dr. Mark Mann completed a similar
questionnaire, noting that S.N.A. suffered from emotional lability, difficulty thinking
and concentrating and irritability. (TR. 437-38). Dr. Mann also noted that S.N.A.’s
mother had reported that the ADHD medications were “of marginal benefit.” (TR.
438). Dr. Mann concluded that S.N.A. had “marked” limitations in the domain of
attending and completing tasks. (TR. 439).
3. Summary
In sum, the undersigned concludes that substantial evidence does not support
the ALJ’s findings that S.N.A. had “less than marked” limitations in the area of
acquiring and using information. The ALJ relied on findings that ADHD medication
stabilized
S.N.A.’s
hyperactivity
and
inattentiveness,
but
that
rationale
is
overwhelmed by contrary medical evidence and statements from school officials and
medical professionals which concluded otherwise. Evidence from Dr. Kolker and Dr.
Mann indicate that S.N.A. suffers from “marked” limitations in this domain. Evidence
from two of Plaintiff’s teachers states that she suffers from hourly “very serious
20
problems” in a variety of areas in this domain, which would indicate an “extreme”
limitation in this domain. The sum of this evidence clearly outweighs: (1) the
contrary opinions of the non-examining State Agency physicians and (2) the ALJ’s
ultimate conclusion with regards to this domain.
E.
The Domain of Interacting and Relating With Others
The domain of interacting and relating with others encompasses a child’s
ability to “initiate and respond to exchanges with other people, and to form and
sustain relationships with family members, friends, and others.” Social Security
Ruling
09-5p,
Title
XVI:
Determining
Childhood
Disability—The
Functional
Equivalence Domain of “Interacting and Relating With Others,” 74 FR 7515-01 at
*7516. (Feb. 17, 2009). Some examples of limitations in this area for school age
children ages 6-12 include:
Having no close friends or having friends that are older or younger,
Avoiding or withdrawing from people he or she knows,
Is overly anxious or fearful of meeting new people,
Has difficulty cooperating and communicating with others.
Id. at *7518.
1. The ALJ’s Findings
The ALJ found that S.N.A. had “less than marked” limitations in this domain,
providing the following rationale:
There have been some problems with aggression reported in the past,
but none recently. No examiner or physician has noted any difficulties
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in getting along with the claimant, and teachers indicate that it is the
claimant’s hyperactivity that results [in] any social interaction problems
she may have; no isolation or inability to play with others has been
reported. The Administrative Law Judge notes that having some
difficulties in getting along with siblings and peers is age appropriate.
The treating records state that the claimant’s problem is hyperactivity
without accompanying violent behavior, aggression, or destructiveness.
Dr. Kolker described the claimant as very well liked and very fun to be
around.
(TR. 23). Ms. Allen relies on evidence from a teacher questionnaire submitted to the
Appeals Council to support her claim that S.N.A. suffers from “marked” limitations in
this area. A review of that questionnaire shows that S.N.A.’s teacher reported that
the child suffered from daily “serious” problems in one area under this domain—the
ability to use adequate vocabulary and grammar to express her thoughts and ideas
in general everyday conversation. (TR. 283). But weighing the balance of the
evidence, the Court concludes that the ALJ’s findings are supported by substantial
evidence.
2. Evidence Regarding Ability to Interact and Relate with
Others
In November 2010, Dr. Kolker noted that S.N.A. was “still not violent [or] . . .
getting into fights.” (TR. 364). And in January and February 2011, Dr. Kolker
continued the Adderall and noted that S.N.A.’s “behavior was excellent” and that
“school was going well.” (TR. 360, 362). In December 2011, Dr. Kolker opined that
that S.N.A. had “less than marked” limitations in the area of interacting and relating
with others. (TR. 319).
22
In January 2012, Ms. Allen reported that her daughter had friends her own
age, generally got along with adults and teachers, but did not make friends easily.
(TR. 201). At that same time, S.N.A.’s teacher reported that the child had “slight”
and “obvious” problems in this domain, but that she did not have any “serious” or
“very serious” problems. (TR. 242). Two months later, however, the same teacher
noted that S.N.A. had hourly serious problems in her ability to use adequate
vocabulary to express herself, and that she had daily “serious” problems in seeking
attention appropriately, expressing anger appropriately, introducing and maintaining
relevant and appropriate topics of conversation. (TR. 256). In April of 2014, treating
physician Dr. Mark Mann concluded that S.N.A. had “less than marked” limitations in
this domain. (TR. 439).
3. Summary
In sum, two teacher questionnaires would indicate that S.N.A. suffered from
“marked” limitations in the domain of interacting and relating with others. However,
two medical professionals rendered contrary findings and the child’s mother provided
information which indicated a lack of impairment in this domain. On the whole, the
undersigned concludes that substantial evidence supports the ALJ’s findings
regarding “less than marked” limitations in this domain.
F.
Conclusion
As discussed, a lack of substantial evidence exists to support the ALJ’s findings
that S.N.A. suffered from “less than marked” limitations in the functional domains of
23
acquiring and using information and attending and completing tasks. In those areas,
the majority of the evidence indicates that S.N.A. suffers from at least “marked”
limitations in both domains and perhaps even an “extreme” limitation in the domain
involving attending and completing tasks. The Court understands that the ALJ did not
have the benefit of very pertinent information which could have resulted in a
different outcome. With the remand, the ALJ will have the opportunity to assess the
entire record, including the evidence submitted to the Appeals Council, and make
new findings at step three.
VII.
ORDER
Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the
parties, the undersigned magistrate judge REVERSES the Commissioner’s decision
and REMANDS the matter for further administrative proceedings.
ENTERED on September 16, 2016.
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