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Rosalyn Strong, Ex. Rel., M.H., A Minor v. Michael J. Astrue

December 12, 2012

ROSALYN STRONG, EX. REL., M.H., A MINOR, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Plaintiff, Rosalyn Strong ("plaintiff" or "Ms. Strong"), has filed a motion for summary judgment [18] seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), pursuant to 42 U.S.C. § 1383(c)(3). Ms. Strong pursues disability benefits on behalf of her minor child, M.H., under Title XVI of the Social Security Act. For the reasons set forth below, plaintiff's motion for summary judgment [18] is granted in part and denied in part, and the case is remanded for further proceedings consistent with this opinion.

I. PROCEDURAL HISTORY

Ms. Strong filled an application for supplemental security income ("SSI") on behalf of M.H. based on M.H. having "behavior problems." (R. 115-20, 144.)*fn1 That application alleged a disability onset date of May 7, 2008, and was denied initially and upon reconsideration. (R. 112, 43-45, 50-53.) In response to those denials, Ms. Strong sought a hearing, at which she and M.H. appeared with counsel on September 15, 2010. (R. 30-40.) The Administrative Law Judge ("ALJ") Kenneth E. Stewart denied Ms. Strong's claim in an opinion dated October 8, 2010. (R. 13-29.) The Appeals Council denied Ms. Strong's request for review (R. 1, 11-12), and Ms. Strong filed a timely appeal to this Court. The parties have consented to our jurisdiction pursuant to 28 U.S.C. § 636(c) [9].

II. FACTUAL BACKGROUND

M.H. was born on November 24, 1999. (R. 112.) M.H.'s ADHD is the primary diagnosis that forms the basis of her current SSI application. (R. 41, 42.)

A. Medical and Other History

Between December 2007 and May 2008, while in the second grade, M.H. received ten disciplinary referrals from her school. (R. 151-61.) M.H.'s school reported several types of problems, including multiple instances of fighting or bullying (R. 152-55), an inability to sit still (R. 157, 159, 161), and other misconduct with an inability to explain her actions. (R. 156, 160.)

On May 7, 2008, M.H.'s teacher, Heather Hop, wrote that M.H. often makes comments regarding other students' race or other inappropriate topics. (R. 163.) Ms. Hop reported having to speak with M.H. or separate her from other children two or three times a week because of something she said. (Id.) Ms. Hop indicated that outside help would be beneficial for M.H. (Id.) On May 15, Ms. Hop wrote: "[M.H.]'s behavior is getting out of hand. She is constantly being disrespectful to other students in the classroom. She is saying mean things to them and then says she didn't say anything. She also rolls her eyes at me when I correct her or mutters something under her breath.

I've tried taking away privileges but it doesn't seem to matter to her. I've also tried removing her from the situation but when she returns the behavior continues and sometimes gets worse." (R. 151.)

On May 16, 2008, Ms. Strong completed disability and function reports regarding M.H. for the Social Security Administration's Bureau of Disability Determination Services ("DDS"). (R. 128-39, 143-49.) Ms. Strong reported that M.H.'s abilities to communicate and progress in learning were limited, and that M.H. "is constantly getting referrals for being rude and not sitting in her desk." (R. 133-34, 148.) She noted that M.H. cannot explain why she does things and that she is "very active. At time's when she has no reasons to be [sic]." (R. 134.) Ms. Strong also reported that, as a result of her impairments, M.H. does not get along well with adults or her teachers, has trouble taking care of her personal needs, and "tends to give up on things very fast." (R. 136-38.) Ms. Strong also reported that when M.H. "play's with her dolls she say very mean things that is out of hand [sic]." (R. 138.)

On May 27, 2008, Ms. Hop completed a "Teacher Questionnaire" for DDS. (R. 168-75.) At the time, Ms. Hop had known M.H. for nine months and had spent five hours a day with her. (R. 168.) Ms. Hop rated M.H.'s reading skills as above grade level, her math skills as below grade level, and her written language skills as at grade level. (Id.) Ms. Hop also rated M.H.'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. 169-73.) In the domain of Acquiring and Using Information, which consisted of ten performance categories, Ms.

Hop found that M.H. had "an obvious problem" in one category and "no problem" in nine categories. (R. 169.) In the domain of Attending and Completing Tasks, consisting of thirteen performance categories, Ms. Hop found that M.H. had "an obvious problem," on a daily basis, in two categories and "no problem" in eleven categories. (R. 170.) Ms. Hop noted that M.H.'s behavior in this category "often create[d] a disruption in the classroom," but she "would not classify these as severe disruptions." (Id.) Ms. Hop also noted Ms. Strong chose not to enroll M.H. in the school's behavioral program, which Ms. Hop felt would have benefitted M.H. (Id., 175.)

In the domain of Interacting and Relating to Others, which consisted of thirteen performance categories, Ms. Hop found that M.H. had "a slight problem" in five categories and "no problem" in eight categories. (R. 171-72.) Ms. Hop noted that due to behavior problems in this category, M.H. often "had to be moved to another seat away from the other children" and "has a hard time making and keeping friends." (R 171.) Finally, Ms. Hop reported that she did not observe any problems with M.H.'s functioning in the domains of Moving and Manipulating Objects, Caring for Oneself, or Health and Physical Well-Being. (R. 172-74.)

On May 28, 2008, Sarah Lamie, a social worker at the Helen Wheeler Center, assessed M.H. and concluded she had ADHD. (R. 178-83.) Ms. Lamie noted that M.H.'s reported behavior problems began upon entering second grade, roughly eight months before their meeting. (R. 179.). Ms. Lamie noted that M.H. was "very respectful during their meeting and agreed that her behavior needs to change so that she can have friends." (R. 182.) Ms. Lamie recommended a psychiatric evaluation and individual therapy to help M.H. process her feelings and emotions and improve her behavior. (R. 183.)

On June 24 and 25, 2008, Erwin Baukus, Ph.D., a clinical psychologist, conducted a psychological examination of M.H. and completed a report regarding its results. (R. 262-65.) After spending an hour with M.H. and evaluating her in various categories, Dr. Baukus concluded that M.H. had "no psychiatric diagnosis." (R. 264.)

On July 3, 2008, A. Avva, M.D., of the Helen Wheeler Center, diagnosed M.H. with ADHD and assigned her a Global Assessment of Functioning score of 55. (R. 276-78.) Dr. Avva's Child and Adolescent Psychiatric Evaluation report notes that M.H. was referred by her school's social worker, and had a history of aggression, physical violence at school, difficulty listening and staying on task, defiance, and hyperactivity at home. (R. 276.) Dr. Avva also noted a report that M.H. wrote a letter to her mother saying she wanted to kill herself after her cell phone was taken away. (Id.) Dr. Avva found that M.H. had no suicidal ideation, but marked "abnormal" under the categories of "concentration," "energy level," and "high-risk behavior," and noted "impulsive" next to the last category. (Id.) Dr. Avva prescribed a trial of Focalin and recommended that M.H. continue therapy. (Id.)

On July 28, 2008, Sean Strong, M.H.'s aunt,*fn2 filed an adult third party function report regarding M.H. with DDS. (R. 185-92.) She reported baby-sitting M.H. five times a week. (R. 185.) She noted that M.H. is unable to pay attention or sit for long periods of time, is easily distracted, does not follow instructions, and has trouble playing with other children because she is usually violent and kicks, bites, and hits them. (R. 186, 188-89.) Based on that "violent" behavior, Sean Strong noted M.H. cannot go outside alone and "need to be monitor [sic]." (R. 187.) She also wrote that sometimes, when M.H. "don't get her way she say's she gonna kill her self [sic]." (R. 190.) Sean Strong noted she was "very glad" M.H. was taking her medication, and that it "is a very good thing" that M.H. was going to therapy, because by doing so, M.H. became much calmer and easier for Sean Strong to baby-sit. (R. 191.)

In an August 7, 2008 progress report, Dr. Avva noted that M.H. had improved since her last visit. (R. 317.) Dr. Avva also wrote that M.H. claims her Barbies talk to her inside her head. (Id.) Dr. Avva found M.H. to be stable and responding well to treatment, and that M.H. herself reported she was doing "excellent." (Id.)

On August 12, 2008, Phyllis Brister, Ph.D., reviewed some of M.H.'s medical and other records at DDS' request, and completed a Childhood Disability Evaluation Form regarding M.H. (R. 300-05.) Dr. Brister found that M.H. had a marked limitation in the domain of Interacting and Relating to Others; less than marked limitations in the domains of Acquiring and Using Information and Attending and Completing Tasks; and no limitation in the remaining domains. (R. 302-05.) In her comments on the Interacting and Relating to Others domain, Dr. Brister noted that "[M.H.] is shown to have problems at school with disruptive behavior and has lost privileges because of this." (R. 305.) In her comments on M.H.'s less than marked limitation in the domain of Acquiring and Using Information, Dr. Brister wrote that M.H. has "some problems with math and working independently." (Id.) In her comments on M.H.'s less than marked limitation in the domain of Attending and Completing Tasks, Dr. Brister found that M.H. "has a hard time keeping quiet while working independently" and "often creates a disruption in the classroom." (R. 302.) Dr. Brister ultimately concluded ...


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