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Tally v. Barnhart

April 26, 2007

CASSON TALLY, FOR NATASSIA BROUSSARD, PLAINTIFF,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Casson Talley, on behalf of her daughter Natassia Broussard ("Natassia"), filed this action for judicial review of the final decision of the Defendant Commissioner of Social Security (the "Commissioner"), denying Natassia's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 1382, 1382c. Plaintiff claims that Natassia suffers from attention deficit hyperactivity disorder and learning disorders, and that she is eligible to receive SSI benefits, under Section 1614(a)(3)(C) of the Act, as a disabled individual under the age of 18. See 42 U.S.C. §1382c(a)(3)(C). The parties have filed cross-motions for summary judgment. For the reasons set forth below, the Commissioner's motion is denied, Plaintiff's motion is granted in part and denied in part, and this matter is remanded to the Commissioner for further evaluation.

PROCEDURAL HISTORY

Plaintiff applied for SSI benefits on behalf of Natassia on January 23, 2003, claiming that Natassia qualified as a disabled child due to a short attention span, hyperactivity, and difficulties with memory and comprehension. (R. 26, 47-48, 53-62.) Plaintiff alleges that Natassia, who was born on July 20, 1989, became disabled on June 1, 1999. (R. 31, 47.) The Commissioner denied the application initially, (R. 28), and upon Plaintiff's request for reconsideration. (R. 32-36.)

Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), (R. 38), which was held before ALJ John Kraybill on April 29, 2004. (R. 14.) Plaintiff, Natassia, and Natassia's stepfather Charles Talley appeared and testified at the hearing. (Id.) Plaintiff elected to proceed without an attorney or other representative present. (Id.) On June 16, 2004, the ALJ rendered an unfavorable decision, concluding that Natassia has attention deficit hyperactivity disorder ("ADHD") and learning disabilities, but that her impairments were not so severe as to qualify Natassia as disabled within the meaning of the Act. (R. 18-19.)

The Appeals Council denied Plaintiff's request for review of the ALJ's decision on June 15, 2005, (R. 5), leaving the ALJ's decision as the final decision of the Commissioner. Plaintiff now seeks judicial review of that decision.

BACKGROUND

A. School and Family Background

Natassia attended Mahalia Jackson Elementary School in the Chicago Public Schools ("CPS") from the third to the sixth grade. (R. 171.) On May 7, 2002, when Natassia was a sixth grader, the school's assistant principal requested a conference with Plaintiff because Natassia was reportedly disrupting classroom procedure, not paying attention, and "sit[ting] and do[ing] nothing in class." (R. 119, 121.) On May 8, 2002, a CPS assessment team prepared an Individualized Education Plan ("IEP") for Natassia. (R. 122-28.) The CPS team determined that Natassia was eligible for special education services, and issued another IEP on July 8, 2002. (R. 129-51.) The May IEP noted that Natassia had difficulty following directions, processed information slowly, had difficulty following multiple verbal requests, was frequently distracted by extraneous noises, and was disorganized and frequently misplaced things. (R. 122.) The July IEP similarly noted that Natassia had difficulty following directions and processed information slowly, and further indicated that Natassia was distracted easily, often lost focus or concentration, and had trouble putting ideas on paper; but unlike the May IEP, the July IEP did not mention that Natassia had difficulty following multiple verbal requests, was frequently distracted by extraneous noises, or was disorganized and frequently misplaced things. (R. 144.) The July IEP directed that Natassia be removed from regular class to receive special education services 21%--60% of the time.*fn1 (Id.)

Natassia transferred to Scott Joplin School-another CPS school-in Fall 2002. (R. 154, 171.) On November 13, 2002, one of her seventh grade teachers reported in an IEP form that "Natassia seem[ed] to be motivated to learn," and was "making satisfactory progress in her classes with modified instructions according to her IEP." (R. 154.) A seventh grade report card completed by a different teacher indicated several areas in which Natassia needed improvement, however, including self-control, following rules and regulations, taking part in class activities, completing assignments, showing respect for self and others, and being courteous to others. (R. 158.) Her highest grade was a "C" in "Listening Standards"; she received a "D" in "Writing Standards" and a "D-/F" in "Mathematics Standards." (R. 157.)

On March 21, 2003, Tracy Hudson, another teacher at Scott Joplin, completed a "Teacher Questionnaire" in response to a state agency request arising from Plaintiff's application for SSI benefits. (R. 159-70.) The questionnaire rated Natassia's ability to function in five domains*fn2 Acquiring and Using Information, Attending and Completing Tasks, Interacting and Relating with Others, Moving About and Manipulating Objects, and Caring for Himself and Herself. (R. 163-170.) For the domain of Acquiring and Using Information, Hudson indicated a "slight problem" with respect to all ten criteria in the domain.*fn3 (R. 164.) For the domain of Attending and Completing Tasks, Hudson indicated a "slight problem" with respect to nine of the thirteen criteria.*fn4 (R. 165.) For the domain of Interacting and Relating with Others, Hudson indicated only that Natassia had a "slight problem" with respecting/obeying adults in authority, and "no problem" with the remaining criteria. (R. 166.) Hudson indicated "no problem" for all criteria in the remaining domains. (R. 167-68.) There are no remarks or comments on the questionnaire.

Natassia began attending eighth grade*fn5 at Eisenhower Junior High School in Hoffman Estates in Fall 2003.*fn6 (R. 197.) In January 2004, an assessment team from Schaumburg School District 54 determined that Natassia met the criteria for a learning disability and an emotional/behavior disability,(R. 204-05), and prepared an IEP. (R. 200-02, 207-18.) Another IEP was prepared on March 18, 2004 to prepare Natassia for her freshman year at Township High School in Hoffman Estates. (R. 221-33.) The March 2004 IEP noted "evidence of a measured severe discrepancy between ability and achievement in written expression, mathematical calculation, mathematical reasoning, basic reading skills and reading comprehension." (R. 223.) The IEP further observed that "Natassia has difficulties . . . understanding what she reads, understanding concepts, and understanding/learning new vocabulary." (Id.) Due to the "severity of [Natassia's] disability," she was to be removed from the "regular education environment" and placed exclusively in special education classrooms for the duration of the 2004-05 academic year.

(R. 230-31.)

Natassia lives with her mother, her stepfather Charles Talley, and their other children from previous relationships. (R. 173, 244.) Natassia's parents separated in 1990, and her mother married Charles Talley in 2001. (R. 173.) Natassia's younger sister, by a different father, has Down's Syndrome.*fn7 (Id.) Two of Charles Talley's children, both younger than Natassia, have also received special education services for ADHD. (Id.) Natassia talks to her father, who lives in California, on a monthly basis. (Id.)

B. Medical Evidence

1. CPS Psychological Evaluations

On July 19, 1999, Natassia underwent a psychological evaluation through CPS Pupil Support Services because she was failing to achieve at the expected education level. (R. 111.) In her report, psychologist Rose Mary Finnegan noted that Natassia "has difficulty with all forms of language-mediated learning . . . [and] may require extra cues in responding to oral or written questions." (R. 113.) On July 8, 2002, pursuant to the July 2002 IEP from CPS, (R. 129), Natassia was again evaluated through CPS Pupil Support Services. (R. 109.) CPS psychologist Donna Coleman Scotti reviewed school records, interviewed Natassia, and administered tests including the Wechsler Abbreviated Scale of Intelligence ("WASI"). (R. 110.) Natassia's WASI results included a Verbal IQ of 85, a Performance IQ of 110, and a Full Scale IQ of 97. (Id.) Scotti observed that the tests indicated a "slow-average rate of mental growth" and recommended that Natassia continue with a "resource program designed to address her learning deficits." (Id.)

2. Clinical Psychologist: Dr. Taubert

In March and April of 2003, Natassia was examined by clinical psychologist Dr. Alexis Taubert. (R. 171.) Dr. Taubert's report, dated May 6, 2003, notes the administration of several psychological tests, and that Natassia, her mother, and her stepfather had been interviewed.*fn8

(R. 171, 173-74.) Dr. Taubert also reviewed CPS records, including the psychological evaluations, the IEPs, and Natassia's report cards. (R. 172.) She noted that Natassia "can be rather explosive in terms of verbal outbursts" at home and at school, but "appears remorseful" after losing her temper. (Id.) Interpreting Natassia's teacher's report on the Conners' Teacher Rating Scale-Revised (S),*fn9 Dr. Taubert remarked that "Natassia displays a significant level of problem behaviors in all areas including oppositional, cognitive problems/inattention, hyperactivity, and ADHD index." (R. 175.) In addition, Natassia's mother's report on the Conners' Parent Rating Scale-Revised*fn10 revealed that "Natassia displays significant inattentive symptoms and additional symptoms in terms of hyperactivity, restless/impulsive." (Id.) Based on Natassia's mother's report on the Vineland Adaptive Behavior Scales*fn11 ("Vineland"), however, Dr. Taubert found only "mild deficits" in the domains of Communication, Daily Living Skills, and Socialization. (R. 174.) Dr. Taubert further noted that Natassia's verbal skills were significantly lower than her visual-motor abilities. (R. 176.)

Based on her "overall impression" and the Conners' scores, Dr. Taubert diagnosed Natassia with ADHD, Learning Disorder NOS,*fn12 Parent-Child Relational Problem, and Problems with Primary Support Group: Remarriage of Parent. (R. 177.) Dr. Taubert provided a Global Assessment of Functioning ("GAF") score of 60,*fn13 and recommended psychiatric evaluation to consider the use of medication for ADHD, and both individual and family therapy. (Id.)

3. Pediatric Neurologist: Dr. Tonsgard

Dr. James Tonsgard, a pediatric neurologist at University of Chicago Children's Hospital, first examined Natassia on October 11, 2002 "for evaluation of school problems." (R. 152-53.) Dr. Tonsgard noted "problems in school for the last three years," including daydreaming, failure to respond to directions, and trouble focusing, and that her family reported that Natassia had "significant mood swings with behavioral outbursts and can even become violent." (R. 152.) A physical examination and an EEG revealed no abnormalities. (R. 152-53.) Dr. Tonsgard reviewed Natassia's July 2002 IEP from CPS, including the WASI results. (R. 153.) He noted the large discrepancy between the verbal and performance scores in the WASI, and further observed that Natassia's achievement levels placed her between the fourth and fifth grades; she was in the seventh grade at the time of the examination. (Id.) He also noted "staring episodes." (Id.) Dr. Tonsgard concluded that "this is a girl with a learning disability," but remarked that in light of behavioral difficulties, there was also "a question of oppositional defiant disorder, as opposed to the attention deficit disorder." (Id.) He recommended counseling. (Id.)

On April 8, 2003, Dr. Tonsgard submitted a "Neurological Report for Children," in response to a state agency request for medical records to evaluate Natassia's eligibility for SSI benefits, indicating that he had last seen Natassia on November 15, 2002. (R. 180.) He nevertheless diagnosed a "severe learning disability," as well as a "significant emotional disorder" characterized by sometimes violent mood swings. (R. 180-81.) He again noted the 25-point discrepancy between her verbal and performance test scores. (R. 181.)

On July 8, 2003, Dr. Tonsgard completed a form titled "Diagnosis of Mental Impairments" that pertained specifically to ADHD. (R. 99.) This form corresponds with Listing 112.11 of the Social Security Regulations; as discussed infra, that listing contains criteria which, if sufficiently met, would result in a finding that a claimant is disabled due to ADHD. Dr. Tonsgard indicated on this form that there were medically documented findings of "Marked inattention" and "Marked impulsiveness," but no findings of "Marked hyperactivity."*fn14 (Id.) He further indicated "marked impairment" in age-appropriate cognitive and communicative function, social functioning, and personal function. (R. 101.) Finally, he indicated that Natassia had deficiencies in concentration, persistence, or pace, resulting in frequent failure to complete tasks in a timely manner. (Id.)

On October 18, 2003, Dr. Tonsgard completed a "Medical Certification" form for Schaumburg School District 54, indicating that Natassia was eligible for "medical busing" for the 2003-04 school year on the basis of Natassia's "severe learning disability."*fn15 (R. 197.) In March 2004, he prescribed the ADHD medication Metadate for Natassia, (R. 199), but on April 22, 2004 prescribed Strattera instead.*fn16 (R. 198.) At the hearing on April 29, 2004, Natassia's stepfather testified that the Metadate had been ineffective in relieving Natassia's attention and focus issues.

(R. 242-43.)

4. State Agency Psychologists

On May 7, 2003, state agency psychologist Bronwyn Rains completed a "Childhood Disability Evaluation Form" that concluded that Natassia's impairments, which Rains identified as ADHD and Learning Disorder, did not meet, medically equal, or functionally equal a listed impairment. (R. 183.) Evaluating six domains of functioning, Rains indicated "less than marked" limitations in Acquiring and Using Information and Attending and Completing Tasks, and no limitations in Interacting and Relating with Others, Moving and Manipulating Objects, Caring for Yourself, and Health and Physical Well-being. (R. 185-86.) Rains based that determination on a review of reports from Dr. Zaheer,*fn17 Dr. Tonsgard, Joplin School, and Dr. Taubert, (R. 188); there is no indication that Rains ever personally examined Natassia. A second state agency reviewing psychologist, John Tomassetti, signed the report as an additional consultant. (R. 184.)

On July 31, 2003, Tomassetti completed his own assessment, apparently in response to Plaintiff's June 19, 2003 request for reconsideration of the Commissioner's initial denial of benefits.

(R. 190.) Tomassetti reached the same conclusion as in Rains' earlier report, except that Tomassetti now indicated a "less than marked" limitation in the domain of Interacting and Relating with Others as well. (R. 191.) Remarking on this finding, Tomassetti noted a "parent child problem" but observed that Natassia's mood swings were not "demonstrated during the school environment." (Id.)

C. Allegations in Application Forms

In a Function Report completed by Plaintiff on February 19, 2003 as part of the initial application for benefits, Plaintiff reported that Natassia, then 13 years old, was unable to tell time, could not understand money or make change, and could not understand, carry out, and remember simple instructions. (R. 70-71.) In another Function Report dated March 3, 2003, Plaintiff answered "no" to questions asking whether Natassia could explain simple and complex ideas, explain why she did something, answer a telephone and take messages, shop independently, and report what she had read in a news article; Plaintiff also indicated that Natassia was incapable of understanding and carrying out verbal instructions. (R. 88.) Plaintiff wrote that Natassia "[does] not understand what you are saying," and that Plaintiff had "to constantly repeat [herself]." (R. 88-89.) In a Reconsideration Disability Report completed on September 11, 2003, Plaintiff wrote that she had to "repeat [herself] more and more" with Natassia, and ...


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