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Shawn Robinson, Ex. Rel., M.R., A Minor v. Michael J. Astrue

August 29, 2012


The opinion of the court was delivered by: Magistrate Judge Michael T. Mason


Michael T. Mason, United States Magistrate Judge:

Plaintiff, Shawn Robinson ("plaintiff" or "Ms. Robinson"), has filed a motion for summary judgment [26] seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), pursuant to 42 U.S.C. § 1383(c)(3). Ms. Robinson pursues disability benefits on behalf of her minor child, M.R. ("M.R."), under Title XVI of the Social Security Act. For the reasons set forth below, plaintiff's motion for summary judgment [26] is granted in part and denied in part, and the case is remanded for further proceedings consistent with this opinion.


Ms. Robinson filed an application for supplemental security income ("SSI") on behalf of M.R. on October 23, 2007, based on M.R. having Attention Deficit Hyperactivity Disorder ("ADHD"). (R. 95-97.) That application alleged a disability onset date of February 1, 2001, and was denied initially and upon reconsideration. (R. 95, 59-62, 64-68.) In response to those denials, Ms. Robinson sought a hearing, at which she and M.R. appeared without counsel and testified on June 3, 2009. (R. 78-80, 8-43.) On June 19, 2009, Administrate Law Judge ("ALJ") Steven Templin issued a decision denying benefits. (R. 49-58.) The Appeals Council denied Ms. Robinson's request for review of that decision (R. 3-5), and Ms. Robinson filed a timely appeal to this Court. The parties have consented to our jurisdiction pursuant to 28 U.S.C. § 636(c) [12].


M.R. was born on December 2, 2000. (R. 45.) While she has been treated for asthma and asthma-related symptoms in the past, M.R.'s ADHD is the "primary diagnosis" that forms the basis of her current SSI application.*fn1 (Id.)

A. Medical and Other History

According to records from Provena St. Joseph Hospital, on the morning of May 24, 2007, M.R. became very upset and agitated, held a fork to her throat, and told her grandmother Geraldine Robinson that she wanted to kill herself. (R. 195, 206.) Geraldine Robinson then took M.R. to Provena St. Joseph's emergency room. (Id.) While there, an emergency department physician and a social worker completed a Behavioral Health Intake Assessment questionnaire. (R. 206-10.) That assessment states that M.R. had expressed suicidal thoughts, and had a specific organized plan, but otherwise showed a "low" "level of dangerousness." (R. 206, 208.) According to that assessment, M.R. admitted that on two other occasions, she had "held a sharp knife and threatened to stab herself," and "took a belt and put it around her neck though she denies that she was trying to choke herself." (R. 206.) The assessment also noted that M.R. had unpredictable behavior and was disruptive. (Id.) M.R. was diagnosed with "depressive disorder nos" and was released from the hospital that same day. (R. 210.)

On July 11, 2007, Rena Goodfriend-Leve, M.D., of Streamwood Behavioral Health System, saw M.R. for the first time and completed an outpatient psychiatric evaluation of her. (R. 347-49.) Dr. Goodfriend-Leve diagnosed M.R. with ADHD, "Combined Type Oppositional Defiant Disorder, "Dysthymic Disorder," and "R/O Mood Disorder, NOS." (R. 348.) Dr. Goodfriend-Leve noted that M.R. "disrupts in the class room" and "doesn't get her work done," and that at home she is "oppositional." (R. 347.) Dr. Goodfriend-Leve also noted what appear to have been two instances in which M.R. reported she wanted to or was going to kill herself:

A few weeks ago she said she wanted to kill herself because she was fat.

She picked up a knife and ran out of the house. She said she did this because she was angry, and she feels that she can't control her anger.

One time when mother was at work and grandmother was alone with her trying to get her ready for school, she ran out of the house and said she was going to run away. The grandmother called the police, and she said she was going to kill herself. SASS was involved. (Id.) Dr. Leve-Goodfriend wrote that "[c]urrently, there is no suicidal or homicidal ideation." (Id.) She directed M.R. to begin a trial of Trileptal and to "continue her ongoing therapy with Jeanette."*fn2 (R. 348-49.) Dr. Goodfriend-Leve continued to meet with M.R. roughly every one to three months between July 2007 and April 20, 2009, monitoring M.R.'s medication and overall progress. (E.g., R. 421-23, 431-39.)

Throughout the relevant time period, Ms. Robinson and M.R.'s grandmother completed various reports for submission to the Social Security Administration's Bureau of Disability Determination Services ("DDS"). In a report dated November 16, 2007, Ms. Robinson noted, among other things, that M.R. had a "real bad problem" with concentrating, "can't sit still longer than 5 minutes," and "when she gets angry she smacks, bite, scream at herself [sic]." (R. 120, 122.) In response to the question "Control his/her own behavior and avoid unsafe behaviors?," Ms. Robinson answered "no." (R. 122.)

On November 25, 2007, M.R.'s Principal, Cheryl DeRoo, completed a report to DDS in which she wrote, among other things, that "M.R.'s inability to stay focused and on task has caused her to fall behind her peers in both academic and social skills." (R. 125.) Ms. DeRoo also indicated that M.R. was receiving regular education with no special instruction, that she was reading at a kindergarten level, and that her math and written language levels were "early 1st grade." (R. 124.)

On November 26, 2007, Janet Heim, M.R.'s first grade teacher, completed a Teacher Questionnaire for DDS. (R. 360-67.) At the time she completed it, Ms. Heim had known M.R. for 62 school days and spent six hours a day with her. (R. 360.) Ms. Heim rated M.R.'s performance in the six domains of functioning relevant to childhood disability determinations, on a scale of one to five, one being "no problem," two being "a slight problem," three being "an obvious problem," four "a serious problem," and five "a very serious problem." (R. 361-66.) In the domain of Acquiring and Using Information, which consisted of ten performance categories, Ms. Heim found that M.R. had a "serious problem" in three categories; an "obvious problem" in five categories; and a "slight problem" in two categories. (R. 361.) In the domain of Attending and Completing Tasks, consisting of thirteen performance categories, Ms. Heim found that M.R. had a "serious problem," on an hourly or daily basis, in four categories; an "obvious problem," on an hourly or daily basis, in five categories; and a "slight problem," on a daily or weekly basis, in four categories. (R. 362.) In the Interacting and Relating with Others domain, consisting of thirteen categories, Ms. Heim found that M.R. had "an obvious problem," on a weekly basis, in the category of "making and keeping friends"; a "slight problem," on a daily or weekly basis, in seven categories; and "no problem," on a daily or weekly basis, in four categories.*fn3 (R. 363.)

Ms. Heim reported that she did not observe any problems with M.R.'s functioning in the Moving and Manipulating Objects domain. (R. 364.) In the domain of Caring for Himself or Herself, consisting of ten categories, Ms. Heim found that M.R. had a "slight problem," occurring on a weekly basis, in four categories," and no problem" in six categories. (R. 365.) In the Health and Physical Well-Being domain, Ms. Heim wrote that M.R. had a "significant problem with inattention especially when not on [her ADHD] medication," and that "her ability to focus and attend does improve with medication [sic]." (R. 366.) According to Ms. Heim, when M.R. was without her ADHD medication at one point in the school year for eleven school days, this had "a significant impact on her day and ability to learn." (Id.)

On January 28, 2008, William N. Hilger, Ph.D., conducted a psychological examination of M.R. at the request of DDS. (R. 368-71.) Dr. Hilger noted that M.R. applied for "Social Security disability benefits due allegedly to a history of asthma, ADHD, anger problems and attempted suicide." (R. 368.) Dr. Hilger apparently reviewed M.R.'s May 2007 hospital records, along with Ms. Heim's November 2007 report. (Id.) Dr. Hilger observed that M.R. appeared "mildly restless," but "was adequately attentive and cooperative in the evaluation" and spoke in a "fluent articulate manner." (Id.) He also noted that Ms. Robinson had not given M.R. her "anti-hyperactive" medication that morning, so he had her give M.R. the medication in his presence. (Id.) Under "Psychiatric Treatment," Dr. Hilger noted that M.R. had been seeing Dr. Goodfriend-Leve "since August 21, 2007 and is taking medications," and is seeing a therapist once a week at Streamwood Behavioral Health Center. (R. 369.) He wrote that M.R. has never had a psychiatric hospitalization, "except she was taken to the emergency room in September 2007 when she did not want to go to school or get dressed and was threatening to runaway and put a knife to her neck and threatened to kill herself [sic]."*fn4 (Id.)

In the "Mental Status" section of his report, Dr. Hilger characterized M.R. as "generally a happy girl," and wrote that "[s]he has not made any definite suicide attempts." (R. 369.) In the "Conclusion" section, Dr. Hilger noted again that M.R. "had an episode in September 2007 when being cared for by her grandmother when she did not want to go to school" and "threatened suicide at the time, but did not actually carry it out." (R. 370.) He again referenced her treatment with Dr. Goodfriend-Leve, as well as the teacher reports indicating the prescribed Adderall "does seem to be helping her," but also that "her performance in school was much worse" when she did not take that medication for eleven days. (R. 370-71.) Dr. Hilger diagnosed M.R. with "ADHD inattentive type, fairly controlled with medication; adjustment reaction of childhood with depression, fairly controlled with medication and counseling [sic]." (R. 371.) In his final remarks, he wrote M.R. "shows average mental potential, if she continues taking her medication and counseling, to perform age appropriate activities," and that "she also need appropriate discipline, structure, encouragement and setting of limits [sic]." (Id.)

In February 2008, Julio Pardo, M.D., and John Tomassetti, Ph.D., reviewed some of M.R.'s medical and other records at the request of DDS, and completed a Childhood Disability Evaluation Form of M.R.'s level of functioning in the six applicable domains. (R. 374-79.) They noted "impairments" of "asthma, ADHD, anger problems and attempted suicide." (R. 374.) Those doctors found that M.R. had a marked limitation in the domain of Health and Physical Well-Being; less than marked limitations in the domains of Acquiring and Using Information, Attending and Completing Tasks, Interacting and Relating With Others, and Caring for Yourself; and no limitation in the domain of Moving About and Manipulating Objects. (R. 376-77.)

In their comments on M.R.'s marked limitation in the Health and Physical Well-Being domain, Drs. Pardo and Tomassetti noted Dr. Hilger's diagnosis of ADHD inattentive type "fairly controlled with medications," that a teacher's questionnaire indicates M.R. "has significant difficulty with inattention especially when not on medication but that her ability to focus does improve with medication," and that Ms. Robinson indicates M.R. attends counseling once a week for ADHD and anger problems. (Id.) In their comments on M.R.'s less than marked limitation in the Caring for Yourself domain, they wrote "Child threatened to kill herself because she was fat, she picked up a knife and ran out of house .. But she is aware of dangers that might present themselves and knows to avoid dangerous situations." (R. 377.) They ultimately concluded that M.R.'s impairments did not functionally equal a Listing and thus she "must be considered not disabled." (R. 379.)

On March 27, 2008, Dr. Goodfriend-Leve wrote that M.R. is "doing better" and is "concentrating better" since her Adderall dosage was modified. (R. 434.)

In a May 26, 2008 Childhood Function Report completed by Ms. Robinson, she reported that M.R. "bites and hits herself. She has a horrible time paying attention .. She gets angry and uses socks to choke herself or any other object. She threatens to run away. When I correct her she tries to hit me during the time I correct her." (R. 143.)

On June 11, 2008, Dr. Goodfriend-Leve reported M.R. "has many mood swings, but mother says they seem to be getting better and are more controlled [sic]." (R. 433.)

In an undated report completed by M.R.'s grandmother, she wrote that on June 16, 2008, M.R. "try to kill herself and tie a sock ...

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