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Alisha Claiborne Ex Rel., L.D., A Minor v. Michael J. Astrue

January 24, 2012


The opinion of the court was delivered by: Magistrate Judge Finnegan


Plaintiff Alisha Claiborne is seeking to recover Supplemental Security Income ("SSI") on behalf of her minor daughter, L.D., under Title IX of the Social Security Act. 42 U.S.C. § 1382c(a)(3)(C). The Commissioner of Social Security ("Commissioner" or "Defendant") denied the application for benefits at all levels of administrative review, prompting this appeal. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have now filed cross-motions for summary judgment. After careful review of the record, the Court grants Plaintiff's motion, denies Defendant's motion, and remands the case for further proceedings.


Plaintiff applied for SSI on November 21, 2004, alleging that her then-20-month-old daughter L.D. had been disabled since birth due to asthma. (R. 47-48). The Social Security Administration ("SSA") denied the application initially on April 26, 2005, and again on reconsideration on July 11, 2005. (R. 55-59, 63-66). Following a November 9, 2006 hearing, Administrative Law Judge Cynthia M. Bretthauer (the "ALJ") found on December 26, 2006 that L.D. was not entitled to any benefits. (R. 13-26). Plaintiff sought judicial review of the ALJ's decision, and the parties agreed on December 15, 2008 to remand the case for further proceedings. Claiborne v. Astrue, No. 08 C 2775, Doc. 34. In conformance with the district court's remand Order, the Appeals Council vacated the earlier ruling and instructed the ALJ to: update the medical and school records; further evaluate L.D.'s speech/language disorder; expressly consider L.D.'s sleep apnea and obesity; and, if necessary, obtain testimony from a medical expert ("ME") to clarify the nature and severity of L.D.'s impairments. (R. 295-96).

The ALJ held a second hearing on September 21, 2010. Plaintiff and L.D. both testified in the presence of counsel, and Dr. Sai R. Nimmagadda appeared as an ME. (R. 487-543). Less than a month later, on October 5, 2010, the ALJ concluded that L.D. is not disabled within the meaning of the Act because she does not have an impairment or combination of impairments that functionally equals the relevant listings. (R. 272-88). Plaintiff once again seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.

In support of her request for a remand, Plaintiff argues that the ALJ erred in analyzing two domains of L.D.'s functioning: interacting and relating with others, and caring for yourself. With respect to the first domain, Plaintiff argues that the ALJ (1) failed to properly evaluate SSR 98-1p in finding that L.D. does not have a marked or extreme limitation in speech and language functioning; (2) failed to clarify whether the ME adequately considered SSR 98-1p in formulating his opinion; (3) erred in finding that L.D.'s oppositional defiant disorder is only a marked and not extreme limitation; and (4) failed to compare L.D. to children without impairments as required by SSR 09-1p. Plaintiff claims that the ALJ further erred in her analysis of the caring for yourself domain by (5) once again failing to compare L.D. to children without impairments; and (6) failing to consider all of L.D.'s impairments in combination. In addition to these arguments, Plaintiff also objects that the ALJ (7) violated the law of the case doctrine by finding that L.D. had a less than marked limitation in the domain of health and physical well-being; and (8) failed to make a credibility determination regarding Plaintiff's testimony.

As discussed below, the Court agrees that the ALJ failed to properly analyze whether L.D. had a marked limitation in speech prior to September 1, 2009, requiring a remand. The ALJ should also clarify whether the ME was familiar with and considered all relevant Rulings and regulations, and whether L.D.'s self-injurious behavior as noted in March 2010 had any impact on her ability to care for herself after March 2010.


L.D. was born on February 16, 2003. (R. 275). Her seven-month check-up on August 25, 2003 was normal and she was in the 90th percentile for weight. (R. 134, 135). At some point that year, however, L.D. started exhibiting asthma symptoms and began a regimen of Nasonex, Singulair, Pulmicort and an Albuterol nebulizer. (R. 102).

A. Medical History

1. Age 1 to Age 3 (February 16, 2004 to February 16, 2006)

a. Age 1

On March 30, 2004, Plaintiff filled out a Child Medical Questionnaire on behalf of L.D. at the Children's Hospital of Wisconsin. (R. 225-28). Plaintiff indicated that L.D.'s family physician, Dr. Michael Mann, had referred her to the hospital due to asthma and related breathing problems. (R. 225). Plaintiff reported that L.D.'s overall health was "very good," but that she had problems with congestion, snoring, mouth breathing, coughing and waking up at night with difficulty breathing. (R. 227-28). Dr. Margaret M. Lowery examined

L.D. and found her nasal passages to be boggy and congested. L.D. exhibited some wheezing and rhonchi, and Dr. Lowery diagnosed her with mild persistent asthma and rhinitis. (R. 229-32). In a report of findings to Dr. Mann, Dr. Lowery indicated that L.D. suffered from mild persistent asthma with exacerbation, vasomotor rhinitis and possible allergic rhinitis. (R. 164-65). She recommended that L.D. take Prelone, Pulmicort, Albuterol and Zyrtec, and scheduled her for some x-rays. (R. 165).

L.D.'s April 6, 2004 lateral radiograph of the neck showed her adenoids to be "in the upper limits of normal in size." (R. 162). At a follow-up examination on June 8, 2004, Dr. Lowery confirmed L.D.'s diagnosis of mild persistent asthma and non-allergic rhinitis. She also noted that L.D. had adenoid hypertrophy, and recommended that she follow up with an ENT (ear, nose and throat) specialist. (R. 161).

Several months later on August 27, 2004, Plaintiff took L.D. to see Dr. Manfred Man of the Robert R. McCormick University Clinics. Dr. Man reported that L.D.'s physical examination was normal, though she was still on Zyrtec and Albuterol for her asthma. (R. 138, 141). On October 19, 2004, Plaintiff took L.D. to the emergency room at Lake Forest Hospital because she had a fever, nasal congestion and difficulty breathing. (R. 167). Dr. Irina Trosman diagnosed L.D. with influenza and kept her in the hospital overnight due to a concern about enlarged tonsils and airway obstruction. (R. 166, 168). L.D.'s asthma was "under good control" but Dr. Trosman observed that she suffered from apnea. (R. 170-71).

Dr. Trosman discharged L.D. on October 20, 2004 with instructions to follow up with an ENT and Dr. Man. (R. 177).

Less than a week later, on October 25, 2004, Dr. Stephen F. Conley evaluated L.D. at the request of Dr. Lowery. In addition to the asthma, Dr. Conley found that L.D. had "upper airway obstruction due to adenotonsillar hypertrophy," and recommended that she have a tonsillectomy and adenoidectomy. (R. 224). Plaintiff took L.D. back to Dr. Lowery the next day with continued complaints of nasal congestion. Dr. Lowery again diagnosed mild persistent asthma and rhinitis, along with acute sinusitis and adenoid hypertrophy. (R. 155-57). She adjusted L.D.'s medication and noted that she was scheduled for surgery in three weeks. (R. 155, 157).

In anticipation of filing an application for SSI, Plaintiff completed a "Function Report -Child Age 1 to 3rd Birthday" on behalf of L.D. on October 28, 2004. (R. 79-84). Plaintiff reported that L.D., who was 20 months old at the time, was unable to talk and was "hardly ever" understood even by people who knew her well. (R. 81). She was able to wave "byebye," follow one- and two-step directions, and listen to stories being read for at least 5 minutes, but she did not play "pat-a-cake," use one or more words, play "pretend," use her own name or refer to herself, or know the parts of the body and face. (R. 82). Plaintiff stated that with respect to physical activities, L.D. could "do most things as a 1 1/2 year old," but she tired easily due to shortness of breath. (R. 83). L.D. was able to drink from a cup without help and feed herself with a spoon, and she tried to be friendly with other children. She would not cooperate in getting dressed and brushing her teeth, however, and she was unable to get undressed by herself. (R. 84).

On December 1, 2004, Dr. Conley performed surgery to remove L.D.'s adenoids and tonsils. (R. 148-53). Approximately one week later on December 9, 2004, Plaintiff completed another "Childhood Function Report - 1 to 3 Years" for L.D., who was then nearly 22 months old. (R. 86-89). L.D. was able to ask for objects by pointing, but did not understand simple phrases, imitate housework, refer to herself by name, know her age or sex, or put 2 to 3 words together to form a thought. She showed interest in playing with simple games and toys, and paid attention while looking at picture books or listening to stories. She also cooperated with caregivers in dressing and other self-care, gave kisses and hugs upon request, smiled in response to praise, played simple games, and played alongside other children. (R. 86). Yet she could not watch a 30-minute children's show, complete an activity such as coloring, puzzles or games, respond to the feelings of others, or communicate her needs beyond gestures. (R. 86-87). In the areas of moving about and caring for herself, L.D. was able to walk with one hand held, climb on furniture, play with blocks and toys and feed herself with her hands. She could also drink from a cup without assistance, and she showed interest in toilet training and exhibited independence by saying "no" or hoarding toys. (R. 87-88).

L.D. saw Dr. Conley on December 21, 2004 for a post-operative evaluation. She did not have any bleeding and her snoring was "resolved" at that time. (R. 147). The following month, on January 18, 2005, L.D. returned to Dr. Lowery with congestion, coughing and a mild exacerbation of her moderate persistent asthma. Dr. Lowery adjusted L.D.'s medications and instructed her mother to bring her back in three months. (R. 144-46).

b. Age 2

On March 3, 2005, Plaintiff took L.D. to see Dr. Man because she had a cough, cold and fever, but the doctor's notes are largely illegible. (R. 141-42). On April 12, 2005, Dr. Padma Talcherkar completed a Childhood Disability Evaluation Form for the SSA. She found L.D. to have a less than marked limitation in the domain of Health and Physical Well-Being, noting that L.D. had "shown only mild exacerbations" in her asthma, and did not require repeated hospitalizations, treatments or ER visits. Dr. Talcherkar determined that

L.D. had no limitations in any domain. (R. 179-84).

Plaintiff completed another "Childhood Function Report - 1 to 3 Years" on behalf of L.D. on June 3, 2005. The report was nearly identical to the one Plaintiff filled out on December 9, 2004, except that at 27 months old, L.D. could now understand simple phrases, refer to herself by name, communicate wishes and needs usually by gestures, walk down stairs alternating feet, and try to do simple dressing. (R. 90-93). She continued to cooperate with caregivers, feed herself with her hands, drink from a cup unassisted, and show independence. (Id.).

A little more than a month later, on July 9, 2005, Dr. Raymond Castaldo reconsidered Dr. Talcherkar's assessment of L.D.'s limitations for the SSA. In his Childhood Disability Evaluation Form, Dr. Castaldo agreed that L.D. had no limitations in the domains of Acquiring and Using Information, Attending and Completing Tasks, Interacting and Relating with Others, Moving About and Manipulating Objects, and Caring for Yourself. (R. 199-202). He found, however, that L.D. had a marked (as opposed to less than marked) limitation in the domain of Health and Physical Well-Being based on her history of asthma and certain other medical problems. (R. 202). This still resulted in a finding of no disability. (R. 204).

On July 12, 2005, L.D. saw Dr. James Lustig at the Children's Hospital of Wisconsin. (R. 221-23). L.D. was doing well during the day, but she had trouble breathing at night and would wake up snoring. (R. 221). Dr. Lustig stated that L.D.'s mild intermittent asthma was "controlled," and recommended that she have a sleep study to rule out apnea. (R. 223). Four days later on July 16, 2005, Dr. Milford Schwartz completed a Case Analysis on L.D. for the SSA. He noted that as of March 2005, L.D.'s physical growth and development were normal, and he agreed with Dr. Castaldo's assessment that she had "no more than marked limitations confined to a single domain, #6 [Health and Physical Well-Being]." (R. 205).

Plaintiff failed to take L.D. to a scheduled appointment on August 16, 2005, but in a September 29, 2005 request for a hearing before an ALJ, she claimed that L.D.'s asthma and development continued to be a "big issue," especially at night. (R. 49). When Plaintiff took L.D. for a follow-up visit with Dr. Lustig on December 20, 2005, L.D. was still doing fine during the day but struggling with snoring at night. Dr. Lustig assessed controlled moderate persistent asthma and scheduled L.D. for a sleep study in January 2006 to rule out apnea.

(R. 218, 220). Nine days later, on December 29, 2005, L.D. had to be taken to the Lake Forest Hospital ER for acute asthma exacerbation. (R. 209-11). Dr. Mark Mass observed that L.D.'s asthma symptoms had been managed and "easily treated at home" with Albuterol, and described this episode as "a typical asthma attack" that was subsequently cleared and resolved. (R. 210-11).

L.D. had a sleep study on February 8, 2006, shortly before her third birthday. The results were abnormal, showing moderate to severe obstructive sleep apnea. (R. 206-08). Dr. Lynn A. D'Andrea recommended consideration of a repeat adenoidectomy and "additional management of [L.D.'s] nasal congestion or allergic rhinitis." (R. 207-08).

2. Age 3 to Age 6 (February 16, 2006 to February 16, 2009)

a. Age 3

On February 24, 2006, L.D. had a district preschool screening that raised concerns in the areas of behavior, fine and gross motor skills, visual perception, learning styles, language comprehension and expression, articulation and attention span. (R. 104, 123).

L.D. passed her vision and hearing screening, but she was referred to the offices of the Special Education District of Lake County for "psychoeducational, speech/language, and physical therapy evaluations." (R. 123, 125). The resulting April 24, 2006 Individualized Education Plan ("IEP") was based on testing performed by a six-member Multidisciplinary Evaluation Team (the "IEP Team") on April 10, 11 and 17, 2006, and information provided by Plaintiff in a February 27, 2006 Case History and a telephone interview. (R. 123, 125).

The IEP Team found that L.D. was able to attend to a variety of activities in both a structured and unstructured setting, and that she was socially and verbally engaging. Her auditory and visual attending and visual scanning were appropriate, she demonstrated age appropriate receptive language skills, and she communicated using multi-word utterances.

L.D. also showed age appropriate cognitive and pre-academic skills and gross and fine motor performance, and her play and social interaction skills were "developing nicely." (R. 129). L.D. did have some special needs, however.

In the area of Speech and Language Evaluation/Interpretation, L.D.'s receptive language was age appropriate, but her expressive language was "predominantly unintelligible beyond the 2-3 word level." (R. 126-27). Plaintiff reported that she could understand L.D. 30%-40% of the time, but intelligibility decreased to less than 30% for unfamiliar listeners. During the IEP evaluation, L.D. "could be understood less than 30% of the time, especially out of context and as length of response increased." (R. 127). The IEP Team indicated that L.D. needed to: (1) improve articulation skills; (2) improve oral motor awareness and function for speech sound production, sound sequencing, and words; and (3) continue medical follow-up of the conductive pathology. (R. 129). L.D.'s school presented Plaintiff with the IEP results during a conference on April 27, 2006. (R. 103-13). The Conference Summary Report noted that L.D. was "speech and language impaired" with moderate to severe variability in pre-academics. She needed role models for speech, intensive speech therapy, and a "multi-sensory approach to learning." (R. 106).

On June 20, 2006, Dr. Man completed a State of Illinois Department of Human Services Certificate of Child Health Examination for L.D. (R. 432-33). He noted that L.D. had asthma, awoke during the night from coughing, and was overweight and developmentally delayed in the area of speech and language. He approved L.D.'s participation in physical education and one year of interscholastic sports. (R. 433).

L.D.'s next significant medical record is from October 30, 2006, when Dr. Joseph E. Kerschner performed a uvulopalatopharyngoplasty ("UPPP")*fn1 and "KTP laser reduction of [L.D.'s] inferior [nasal] turbinates." (R. 233). Dr. Kerschner explained that despite L.D.'s previous tonsillectomy and adenoidectomy, she still had ongoing obstructive sleep apnea which necessitated the additional procedure. (Id.).

On November 21, 2006, L.D.'s Speech/Language Pathologist, Christine Mitchell, M.A. CCC-Sp/L, reported that L.D. was receiving 90 minutes of speech/language therapy per week. L.D. exhibited a "moderately-severe speech delay," and her intelligibility was "significantly reduced especially when the context [was] not known." She was making progress, however, and Ms. Mitchell recommended that the therapy continue. (R. 241).

On December 4, 2006, L.D. saw Dr. Michael B. Levy of the Wisconsin Children's Hospital and Health System. Dr. Levy sent a report to Dr. Man stating that L.D.'s chest was essentially clear at that time, but that she was "obese." He put her on Pulmicort in place of Flovent and instructed Plaintiff to bring her back in about three months. (R. 460).

b. Age 4

On March 28, 2007, L.D. had another sleep study. The results were once again abnormal, showing evidence of severe obstructive sleep apnea. Dr. D'Andrea recommended that Plaintiff consider having L.D. use a nasal CPAP (continuous positive airway pressure) machine. (R. 238-40, 462-63). Dr. D'Andrea repeated that suggestion when L.D. returned for a follow-up visit on April 24, 2007. In a report to Dr. Man, Dr. D'Andrea stated that L.D.'s surgical options for treatment of her apnea had been exhausted, and she recommended another sleep study while L.D. was wearing a CPAP.

(R. 465-66). Plaintiff took L.D. back to Dr. Levy on May 7, 2007. L.D. presented with some congested nasal mucosa but her chest was clear. Dr. Levy stated that overall L.D. had been doing "fairly well," and he confirmed for Plaintiff the value of a sleep study with CPAP titration. (R. 459).

Approximately one month later, on June 5, 2007, Ms. Mitchell prepared an addendum to her November 21, 2006 speech/language therapy report indicating that L.D.'s "speech/language delays significantly decrease[d] her intelligibility." (R. 242). Specifically,

L.D.'s intelligibility was 60% when the context was known, but only 45% when the context was unknown. At that time, intelligibility did not increase with repetition. (Id.). L.D. demonstrated limited ability to imitate words, and her "stimulability for the production of sounds" was also limited, though she showed slight improvement with "auditory, visual and tactile-kinesthetic cues from the speech/language pathologist." (Id.).

L.D. had a sleep study with CPAP titration on July 5, 2007. (R. 468-69). The CPAP resolved the obstructive sleep apnea and Dr. D'Andrea indicated that L.D. would receive a CPAP unit to use at home. (R. 469). Dr. D'Andrea reported these findings to Dr. Man in a letter dated August 14, 2007, and informed him that L.D. would return for a follow-up evaluation in six months. (R. 470-71). She also observed that L.D. was starting preschool that fall. (R. 470).

c. Age 5

Just after L.D. turned five, on February 18, 2008, she returned to Dr. Levy for a follow-up examination. Her asthma was under "partial control" at that time, but there had been no ER visits or nighttime awakening. (R. 458). On April 22, 2008, L.D. had a follow-up visit with Dr. D'Andrea. (R. 472-73). Plaintiff told Dr. D'Andrea that L.D. was "doing quite well with the CPAP," was able to use it every night and wore it "throughout the entire night." While wearing the CPAP, L.D. did not snore and her breathing was "quite comfortable." (R. 472). Dr. D'Andrea recommended continued use of the CPAP and planned to see L.D. again in six months. (R. 473). When Plaintiff took L.D. back to Dr. Levy on August 18, 2008, her asthma symptoms remained "quite well controlled," she had not used any inhalers for more than a month, and her chest was clear. Dr. Levy diagnosed intermittent asthma, sleep apnea on CPAP, and parental concerns about weight and diabetes. (R. 457).

On September 3, 2008, when L.D. was entering kindergarten, she had a progression test showing that she was performing moderately below level in expressive language, visual memory and fine motor, and considerably below level in visual discrimination. (R. 424).

3. Age 6 to Age 8 (February 16, 2009 to February 16, 2011)

a. Age 6 (Kindergarten to Middle of First Grade)

By April 15, 2009, L.D. was performing as expected in receptive language and fine motor skills, and moderately above level in all other areas. (Id.). L.D.'s kindergarten teacher completed a Pupil Growth Report stating that L.D. was developing appropriately and should be promoted to first grade. The teacher described L.D. as a "very capable student" who made "super progress in reading and math" throughout the school year. (R. 425--26). However, L.D. needed more time to develop socially in the areas of accepting rules and routines, working/playing well with others, respecting authority, demanding a normal share of attention, and practicing self-control. (R. 425). The teacher wrote that "[i]f we could just stop the crying every day would be great." (R. 426).

On August 31, 2009, L.D. saw Dr. Levy for a one-year follow-up exam. Plaintiff reported that L.D. was "doing fine," and Dr. Levy diagnosed stable asthma, history of sleep apnea and obesity. (R. 453-56, 477-81). L.D. also had a follow-up visit with Dr. D'Andrea on September 22, 2009. Plaintiff told Dr. D'Andrea that L.D. did well with the CPAP, put it on every night and wore it through most of the night. According to Plaintiff, L.D. exhibited a "rare soft snoring," but "overall appear[ed] quite comfortable." (R. 474). A Pulmonary Function Report showed only mild obstruction of the small airways that responded well to a ...

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