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A.H., A Minor, By Tarissa Williams v. Michael J. Astrue

May 18, 2011

A.H., A MINOR, BY TARISSA WILLIAMS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff A.H., a minor, filed this action through her mother, Tarissa Williams ("Ms. Williams"), seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Social Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1382c. After consenting to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), the parties filed cross-motions for summary judgment. For the reasons stated below, Ms. Williams's motion is granted, and the case is remanded for further proceedings consistent with this opinion.

I. PROCEDURAL HISTORY

Ms. Williams applied for SSI on behalf of A.H. on February 9, 2006, when A.H. was ten years of age.*fn1 (R. at 101, 109). Ms. Williams alleged that her daughter had become disabled as of January 1, 2000 because of problems related to A.H.'s learning and physical abilities, her communication and interpersonal skills, her capacity to care for her personal needs, and her ability to pay attention to limited tasks. (R. at 101, 109, 112--18). Of particular concern to Ms. Williams was the fact that A.H. had marked difficulty in focusing on tasks like her school work and reading and on personal activities like dressing and hygiene. (R. at 113, 116).

The application for SSI benefits was denied initially and on reconsideration, after which Ms. Williams filed a timely request for a hearing. (R. at 55, 60, 65). On November 6, 2008, Administrative Law Judge ("ALJ") James Horn conducted a hearing at which both Ms. Williams and A.H., who was represented by counsel, testified. (R. at 29--52). On February 23, 2009, the ALJ determined that A.H. was not disabled within the meaning of the regulations governing childhood disability. (R. at 16--28). The Appeals Council denied Ms. Williams's request for a review on September 9, 2009 (R. at 1), and she filed this action on November 6, 2009 seeking judicial review of the ALJ's ruling, which stands as the Commissioner's final decision.

II. LEGAL STANDARD

Prior to 1996, a child was considered disabled if he or she had a physical or mental impairment that was of comparable severity to one that would disable an adult.

42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.924; Scott v. Barnhart, 297 F.3d 589, 593--94 (7th Cir. 2002). Congress altered this standard under the Personal Respon-sibility and Work Opportunity Reconciliation Act ("PRWORA") to require a more stringent showing by a juvenile claimant seeking SSI disability. Scott, 297 F.3d at 594 n.5. A child is considered disabled under the PRWORA standard if he "has a medically determinable physical or mental impairment, which results in marked and severe functional limitations" for a period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(C)(i); Harris v. Barnhart, 231 F. Supp. 2d 776, 779--80 (N.D. Ill. 2002).

A. The Three-Step Evaluation Process

To determine if such an impairment exists, the Social Security Administration ("SSA") has promulgated regulations that limit the familiar five-step process applicable to adult claimants to three steps. The ALJ's inquiry asks: (1) is the child engaged in substantial gainful activity? (2) does the child have a medically determinable impairment that is severe? and, (3) do these impairments meet, medically equal, or functionally meet one of a list of severe impairments set forth in the regulations? ("a listing requirement" or "the listings"). 20 C.F.R. § 416.924(b)--(d). An affirmative answer at step one ends the analysis, and a child must be found not to be disabled regardless of her age or medical condition. Id. § 416.924(b). A negative answer at step two also requires a finding that the child is not disabled. Id. § 416.924(c).

Unlike the step three requirements applicable to an adult claimant-which refer only to an impairment that "meets or equals" a listing requirement, 20 C.F.R. § 416.920(d)-the regulations state that a child also satisfies the third step when her condition functionally equals a listed impairment, id. § 416.924(d). This require- ment, on which A.H. relies, permits a finding of disability if a child's impairment or combination of impairments result in one of two possible findings. First, the impairments must give rise to "marked" limitations in two of six "domains of functioning," including (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 oneself, and (6) health and physical well-being. Id. § 416.926a(a), (b)(1)(i)--(vi). A limitation is marked if it "interferes seriously" with a child's ability to independently begin, sustain, or finish activities. 20 C.F.R. § 416.926a(e)(2)(i). Such a limitation is "more than moderate" and is equivalent to what one would expect for the functioning level of a child whose standardized test scores are at least two, but less than three, standard deviations below the mean. Id.

In the alternative, impairments functionally equal a listing requirement when they constitute an "extreme" limitation in one of the six domains of activity. 20 C.F.R. § 416.926a(a). A limitation is extreme if it "very seriously" interferes with a child's ability to initiate, sustain, or complete activities. Id. § 416.926a(e)(3)(i). An extreme limitation indicates the "worst limitations," though it does not require a complete loss of functioning. It indicates a functioning level expected for a child whose standardized test scores are at least three standard deviations below the mean. Id.

B. Standard of Review

As with an ALJ's decision concerning an adult, judicial review of a decision denying SSI benefits to a child claimant is limited to determining whether the ALJ ap- plied the correct legal standards in reaching his or her decision and whether there is substantial evidence to support the relevant findings. Schoenfeld v. Apfel, 237 F.3d 788, 792 (7th Cir. 2001); Harris, 231 F. Supp.2d at 779. Substantial evidence means such evidence that a reasonable person could accept as sufficient to support a conclusion. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). A reviewing court may not engage in its own analysis of whether a plaintiff is severely impaired, nor may it "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner." Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004).

The evidence relevant to whether a child's limitations are marked or extreme involves both medical and non-medical sources. Medical evidence includes formal testing that provides information about a child's development "in terms of percentiles, percentages of delay, or age or grade equivalents," as well as opinions from treating and consulting medical sources. 20 C.F.R. § 416.926a(b)(3), (e)(1)(ii). When available, such scores are considered in combination with other information about the child's functioning that is available in order to determine if a limitation is marked or extreme. Id. § 416.926a(e)(1)(ii). This additional information can be derived from descriptions of a child's functioning that are obtained from parents, teachers, or other people who know the child and can describe relevant activities in school, at home, or in the community. Id. § 416.926a(b)(3), (e)(1)(i).

Although a court accords great deference to an ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott, 297 F.3d at 595 (internal citation and brackets omitted). A court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. Where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

III. FACTUAL BACKGROUND

A.H. was born on May 27, 1995 and was thirteen years of age at the time of the hearing. She lives with her mother and three siblings in Aurora, Illinois and was a special education student attending the seventh grade at Granger Middle School when the hearing was held.

A. School History

A.H. first exhibited learning and developmental delays as a kindergarten student at McCarty Elementary School. Based on classroom observations and concerns expressed by reading and speech instructors, school officials determined that A.H. had not met the kindergarten level of achievement. (R. at 165). Accordingly, Ms. Williams agreed to have A.H. repeat kindergarten in order to provide her daughter with the skills she needed to progress to, and succeed in, the first grade. (R. at 166). This strategy worked, and A.H. began first grade in the 2002-03 school year at Indian Prairie Community School. Her teacher there noted that A.H. enjoyed school and developed friendships with other students. (R. at 191). Her academic skills, however, continued to present problems. A.H. required additional support and attention to complete tasks, and she experienced particular difficulty with math and language skills. (R. at 189--91). In reading, for example, she could identify only five of forty pre-primer sight words, and she scored a 14 out of a possible 90 on the Darrell Morris Developmental Spelling Test. (R. at 190).

Concerned about the slow pace of A.H.'s development, Indian Prairie school officials recommended in October 2002 that she undergo an evaluation for special education services and that she be checked for any medical conditions that might be affecting her school performance. (R. at 179). Ms. Williams, who was also worried about her daughter's progress, consented to this request. (R. at 183, 185). A Teacher Report Form dated March 11, 2002 confirms the school's and Ms. Williams's concerns. A.H. ranked in the top quarter of her class in behavior and social skills but was in the bottom quarter for study skills; in core subjects such as reading, writing, math, and science, she was placed in the bottom ten percent. (R. at 187). Based on the evaluations that followed, A.H. was placed in special education and given modifications in sixty percent of her school curriculum. (R. at 406).

The first of numerous Individualized Education Program ("IEP") meetings was held on February 4, 2003.*fn2 (R. at 242). The IEP team determined that A.H. had a learning disability in seven areas, including written and oral comprehension, reading, math calculation, and math reasoning. (Id.). Numerous reports made on or around the same date supported the IEP team's finding. (R. at 216--19). The school's speech pathologist, for example, determined that A.H.'s receptive and expressive language skills were below average, although speech production and fluency were normal. (R. at 224). Tests administered by school psychologist Phyllis LaRiviere confirmed that A.H.'s cognitive abilities were below the average range. Ms. LaRiviere administered the Wechsler Intelligence Scale for Children, which tests intellectual abilities. The test showed that A.H.'s verbal and nonverbal abilities were below normal and that she had extreme difficulty in defining words, assembling puzzles, and computing numbers. (R. at 226). Most difficult, however, were tasks that required attention, concentration, and listening skills. (Id.). The Woodcock-Johnson Tests of Achievement III, which measures academic achievement and knowledge, also showed that A.H.'s abilities were considerably below the average range. (R. at 228).

A subsequent IEP review was held the following year in January 2004 when A.H. was in the second grade. The IEP team again agreed that A.H. should remain in a supported placement setting, with special services given in speech and language therapy, as well as social services. (R. at 282--83). By April, 2005, however, A.H.'s teachers were concerned enough about her progress to push her three-year comprehensive evaluation forward by a year. (R. at 314). Classroom teacher Corinne Bluhm had already concluded on February 8, 2005 that A.H.'s math and reading skills were at the first grade level, and her written skills were at the second grade level. (R. at 389, 396). The IEP team also noted that the concerns that had initially led to A.H.'s supported placement had not been alleviated. Her reading level was between the kindergarten and first-grade level, and her full-scale IQ was 69, a drop of eight points from the earlier 77 that she earned in 2003. (R. at 317, 322). The team concluded that A.H.'s academic skills were two years behind what would ordinarily be expected, with verbal comprehension falling within the low average range and "all other areas severely delayed." (R. at 311, 325--26).

As noted below, A.H. was placed on medication to treat attention deficit disorder ("ADD") in September, 2005. Some indications in the IEP meeting held in March 2006 indicate that A.H.'s functioning improved after she was placed on medication. Social worker Lisa Schlesigner, for example, stated that A.H.'s overall demeanor was happier and more alert. (R. at 408). Nevertheless, special education teacher, Lisa Ebel, reported that A.H.-now in the fourth grade-could do math only at a second-grade level, read at the first-grade level, and write as one would expect a kindergarten student to do. (R. at 300--07). Overall, the IEP team reported that A.H. was following a modified form of the fourth-grade curriculum in social studies, a second-grade math book with modifications, and that she was reading independently only at the first-grade level. (R. at 404). As before, school officials noted that A.H. was both social and very polite, though she continued to "shut down" and fail to complete her tasks. (R. at 404--05).

In the 2006-07 school year, A.H. was a fifth grade student at Gwendolyn Brooks Elementary School. An IEP team that convened on March 21, 2007 noted that A.H. was now receiving support for eighty percent of the school day, but that she was showing steady academic growth. (R. at 430). Reading comprehension was still at the end of a first grade level, but she had made slow gains in word recognition. Her listening comprehension, moreover, was much higher. (Id.). Math, a relative strength for her, was done on a modified fifth grade level, and spelling had shown some improvement. (R. at 431). The IEP noted in particular that A.H. had developed friendships at school and that she had shown "slow growth and mastery of most of her [IEP] goals and objectives in the area of reading, written language and math." (R. at 432). The 2007 results under the Illinois Alternate Assessment showed that A.H. was "progressing" in writing and that she had successfully completed all the tasks on the test. (R. at 475--76).

The final IEP in the record took place on May 14, 2008 when A.H. was in the sixth grade. A.H. was receiving an adaptation (involving only a change in the method of presenting information) or a modification (a change in the content itself) in four of her five core academic subjects. (R. at 462). The IEP team noted that A.H. continued to make progress in her studies, although she began the school year with disciplinary problems and a feeling that she was "retarded." (R. 468). She began to engage more fully with her reading after a new reading program was introduced, and her reading ability improved from the first grade level noted the year earlier to a grade 2.7 level. (R. at 464, 468). The team noted in particular that A.H.'s math skills "took off" during the school year, and she earned an "A" in that subject. (R. at 468). Written expression, however, remained a topic she could perform only at a 1.2 grade level. A.H. earned a "B" in English as well as in Reading, Study Skills and PE, and she was given a "C-" in Science. (Id.). Overall, the IEP team concluded that her Monitoring Score should be marked at the highest level of "improving," that her behavior had shown significant improvement, and that A.H. "began to see she could participate in the grade level class activity if she put her mind to it." (Id).

B. Medical History

1. General Health

As part of A.H.'s evaluation for special education services in 2002, she underwent medical testing to determine what effect, if any, her health was having on her academic performance. An initial health and vision screening did not reveal any problems, but subsequent testing showed that A.H. failed a test for close vision in February 2003. (R. at 187, 196). She was also required to take Albuterol to control her asthma. (R. at 196). It was also at this time that the first of several references in the record indicated that A.H. had been wetting her pants at school early in the 2002--03 school year. (R. at 197).

The IEP team that met in April 2005 noted that Ms. Williams was concerned that A.H. had been having "staring" episodes. (R. at 353). School officials had also become aware that A.H., although well-behaved and somewhat social, often appeared to be "shutting down" and suffering from anxiety. (R. at 314--15). Accordingly, Ms. Williams took her daughter to see a number of doctors at Loyola University Medical Center ("Loyola"), including Dr. Michael Gill. Dr. Gill was concerned that A.H.'s tendency to stare and to be inattentive could suggest epilepsy, and he also noted that A.H. was suffering from stool and urine incontinence during the day.

(R. at 494). A subsequent electrencephalographic exam conducted by Dr. Michael Macken on July 18, 2005 showed no signs of epilepsy. (R. at 288). As a result, Dr. Gill diagnosed A.H. in September, 2005 as potentially having ADD and prescribed a trial period on Ritalin. (R. at 494). Fortunately, A.H. responded positively to her new medication. Dr. Gill noted on November 8, 2005 that Ritalin had made "a dramatic difference" and that A.H. was considerably more interactive with the people around her, though he did change her medication to Adderall because it could be sprinkled on food. (R. at 493--94).

A.H.'s dosage of Adderall was increased from fifteen milligrams to twenty on September 7, 2006, and then to twenty-five on November 2, 2006. (R. at 492--93). The last increase was intended to help control A.H.'s continuing problems with bedwetting and urine control. (R. at 492). Urine and fecal incontinence had remained pressing issues for A.H., and Dr. Gill had noted in July 2005 that she was having trouble controlling these functions during the day. (R. at 494). A.H. was apparently referred to a Dr. Lindgren for treatment, after which her ability to control stool movements improved; only "rare" incidents were noted in January and February 2007 . (R. at 490--93).

Urine problems, however, continued, and A.H. saw a series of physicians in an effort to treat the problem. The records on this issue are not entirely clear, but on January 31, 2007, Ms. Williams told Dr. Michael Cahill that A.H. wet herself during the day and at night. (R. at 491). Consequently, Dr. Cahill referred A.H. to Dr. Kamini Kalola. Dr. Kalola noted on February 1, 2007 that A.H. was wetting herself daily and still had some bowel incontinence. (R. at 490--91). Dr. Kalola recom- mended that A.H. keep a voiding diary and diagnosed her with enuresis and encopresis.*fn3 (Id.). On the same day, A.H. also saw Dr. David Hatch, who recommended the same diary. Dr. Hatch noted that A.H. wetted herself with small, and occasionally large, flows seven days out of the week but appeared to be otherwise normal.

(R. at 490). On March 14, 2007, the diary revealed that A.H. continued to wet herself six days a week, and Dr. Hatch administered a trial dose of Enablex to help control her incontinence. (R. at 489). The record does not directly reflect what success A.H. had on this drug, but records from other physicians ...


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