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Grady v. Astrue

June 10, 2008


The opinion of the court was delivered by: Frazier, Magistrate Judge


Plaintiff, Sheila Grady, seeks judicial review of a final decision of the Commissioner of Social Security denying her March, 2004, application for supplemental security income on behalf of her son, Robert Lee Darby, III. An Administrative Law Judge (ALJ) denied the application after finding that Robert was not disabled. That decision became final when the Appeals Council declined to review the ALJ's decision. Judicial review of the Commissioner's final decision is authorized by 42 U.S.C. § 405(g) and 42 U.S.C. §1383(c)(3).

To receive supplemental security income, a child must be "disabled." A disabled child is a person under the age of 18 who has physical or mental impairments resulting from anatomical, physiological, or psychological abnormalities which can be demonstrated by medically acceptable clinical and laboratory diagnostic techniques. The impairments must have resulted in marked or severe functional limitations which have lasted or are expected to last not less than 12 continuous months. 42 U.S.C. § 1382c(a)(3)(C)(i).

The Social Security regulations provide for a three step sequential inquiry that must be followed in determining whether a child is disabled. 20 C.F.R. § 416.924(a). The Commissioner must determine in sequence: (1) whether the claimant is engaged in substantial gainful activity, (2) whether the claimant has a medically severe impairment or combination of impairments, and (3) whether the impairment or combination of impairments meet or equal the criteria of a listing or the functional equivalent of a listing. Id.

Plaintiff does not argue that Robert's impairments met the criteria for a listed impairment. Hence, the Court will focus on the finding that Robert's impairments were not functionally equivalent to the listings for diabetes and/or attention deficit hyperactivity disorder (ADHD). To determine whether impairments are functionally equivalent to a listed impairment, ALJs evaluate six categories or "domains" of functioning. Robert was disabled if he had "marked" limitations in two domains or an "extreme" limitation in one domain. 20 C.F.R. § 416.926a(d). A marked limitation is one which seriously interferes with the child's ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(I).

I. Background

Robert was born on December 31, 1991. His mother reported that he was very argumentative and aggressive and easily grew angry and upset and lost control over his temper. He did not listen to or show respect for others, did not respect or follow rules, and felt that others were "out to get" him. He could not keep still and talked a great deal, often interrupting others. He became angry and screamed in an effort to persuade others to listen to him. He believed his way was always "right" and any other way was always "wrong." When he received reminders and explicit instruction, he could care for his own personal hygiene. He was able to study and finish homework but required extra time to complete his lessons. He was able to take medication when it was measured for him and offered at the appropriate time. He could not wash clothing and put it away, cook a meal, use public transportation by himself, accept criticism, avoid trouble, obey rules, avoid accidents, or ask for help when needed. He resisted assigned household chores. He did not keep busy on his own, grew impatient, and failed to finish what he started. He became bored or angry and ruined projects when the work did not suit him. He could write but grew angry when he made an error. He could not explain simple or complex ideas or understand or explain his own behavior. He could not prepare written forms, answer a telephone, or take and deliver written messages. He had a limited ability to count money but could not shop independently. He could read and tell stories but had a limited ability to report what he had read. He could express his own ideas and opinions and speak in a manner that was easily understood. Robert had friends in his own age group but did not make friends easily. He started fights, failed to see any point of view other than his own, and blamed his friends when things did not go his way.

Robert attended school when he was quite young, but he could not focus on his work and became aggressive with himself and others. Because of his behavior problems, Robert has been home-schooled since the third grade.

In December, 1998, Robert was diagnosed with ADHD. The doctors who prepared the intake form wrote that Robert had difficulty in school and with peer relations. He was treated with medication, with good results, and was also referred for therapy. The doctors assessed a GAF score of 65 (R. 147-149).*fn1 Robert and his mother participated in behavior therapy in 1998 and 1999. Robert's ADHD was also treated with a variety of medications.

In February, 2004, Robert was hospitalized for four days at St. Louis Children's Hospital. He was diagnosed with type I diabetes with ketoacidosis and placed on a treatment plan including a diabetic diet with carbohydrate counting, regular monitoring of blood glucose levels, and four daily insulin injections.

On April 14, 2004, Dr. Hollander wrote that Robert had been well with no sick days. She formed the opinion that laboratory reports showed that Robert had fair control of his diabetes. The family was commended for doing a good job with Robert's care and received a brochure about summer camp. Robert was encouraged to find a form of regular physical exercise (R. 150-151).

Robert's diabetes care was followed by Mr. Curtis Morris, a physician's assistant. On April 15, 2004, he noted that Robert's diary showed blood glucose levels that were in good to excellent control and noted that he had no episodes of extreme hypoglycemia. Mr. Morris formed the impression that Robert's diabetes was in fair to good control. He observed that Robert was very talkative but not as disruptive (R. 233).

On May 5, 2004, Mr. Morris prepared a diabetic report. He wrote that Robert's compliance with diabetic therapy was good, with no acidosis or obvious complications. He described Robert's appearance as "very healthy" (R. 166-167). Mr. Morris also prepared a hyperactivity disorder report. He wrote that Robert interrupted conversation frequently and fidgeted. He seemed very intelligent and was able to focus on tasks. Mr. Morris reported six symptoms and assessed fidgeting as being moderately severe. Blurting out answers to questions and excessive talking were described as severe. Mr. Morris concluded that Robert was home-schooled due to his hyperactivity, which was deemed moderate (R. 168-70).

On May 27, 2004, Dr. Coe performed a consultative examination. Dr. Coe formed the impression that Robert was home-schooled because he did not get along very well in school. He further reported that Robert had some social activity but not too much. Robert was clean, cooperative, oriented, and seemed to have memory. His speech was normal, and he was able to answer questions. He was a bit rude. Dr. Coe diagnosed diabetes, a history of ADHD, and a history of behavior problems, difficulty in school, and problems getting along with other people (R. 171-172).

On June 12, 2004, Robert fell and broke a bone in his right leg. The fracture was surgically repaired, and Robert was medically restricted from strenuous activity. He was weaned from crutches and participated in physical therapy for four weeks (R. 187-198).

On June 29, 2004, Robert was evaluated for a complaint of blurred vision. An optometrist assessed Robert's visual acuity as 20/60 in the left eye and 20/20 in the right eye. No specific prescription was advised, although Robert was invited to return for a contact lens fitting in the future (R. 177-180).

On July 14, 2004, Mr. Morris performed a follow-up evaluation of Robert's diabetes, indicating that Robert had some trouble with his blood glucose levels due to his inability to exercise and that he had some very rare blood glucose levels as high as 400. He encouraged Robert's mother to continue what she was doing and formed the impression that Robert's diabetes was in fairly good control (R. 181, 233).

On August 2, 2004, Dr. Harry Deppe performed a psychological consultation. Dr. Deppe collected information regarding Robert's history and observed that Robert's speech was extremely loud at times, that he interrupted others on several occasions, and that he displayed some difficulty staying on task. He assessed Robert's ability to relate to others as fair to poor, his ability to understand and follow simple instructions as fair, his ability to maintain attention to perform simple tasks as fair to poor, and his ability to withstand the stress associated with work as fair. At Axis V, he assessed Robert's overall functioning level at 50-6 (R. 184-86).

On August 28, 2004, a consultant reviewed Robert's file and formed the opinion that he had a severe combination of impairments (ADHD and diabetes) that did not meet or functionally equal the listings. Judging Robert's restrictions in the domains of functioning, the consultant found no limitation in three areas: acquiring and using information, caring for self, and health and physical well-being. In the other three domains, Robert had limitations that were less than marked: attending and completing tasks, interacting and relating with others, and moving about and manipulating objects. (R. 121-124).

In September, 2004, Dr. Young evaluated Robert's broken leg, indicating that the fracture was well-healed and that Robert was doing well (R. 192).

On December 7, 2004, Mr. Morris expressed concerns about Robert's ability to care for himself and make proper medication adjustments without considerable supervision. He wrote that Robert was extremely immature and affected by his lack of communication with other children. At that time, Robert's hemoglobin A level had made a significant jump.*fn2

Mr. Morris wrote that Robert's diabetes was poorly controlled (R. 232).

On December 16, 2004, two health professionals reviewed Robert's file and decided that his medically determinable impairments were or had been at listing level severity but did not remain at that level of severity for 12 continuous months. They judged Robert's domain restrictions in the same manner as the consultant, with no ...

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