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Vonetta Conner, O/B/O I.C., A Minor v. Michael Astrue

December 27, 2012

VONETTA CONNER, O/B/O I.C., A MINOR, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. The Record Evidence*fn1

I.C. was born on July 29, 1996 (T-82). She was 11 years old on September 27, 2007, the date the application was filed, and she was 13 years old at the time of the ALJ decision (T-19).

I.C. resides with her biological mother, Vonetta Conner (T-369). I.C. suffers from an Autoimmune Connective Disorder causing alopecia. Alopecia is a medical condition involving the partial or complete loss of hair from the head or body. Psychologically, I.C. also suffers from a learning disability, attention deficit hyperactivity disorder (ADHD), a major depressive disorder, and an anxiety disorder.

A. Medical and School History 1. 2009 Report of Treating Psychologist Dr. Betsey Hafner Nettleton On June 23, 2009 (and updated on October 21, 2009), Betsey Hafner Nettleton, Psy.D., completed a Questionnaire for Psychiatric Disorders regarding I.C. (T-449-453). Dr. Nettleton's initial intake was on April 22, 2009 with five individual therapy sessions as of July 2009 (T-49).

Dr. Nettleton diagnosed I.C. as suffering from a Major Depressive Disorder and a Generalized Anxiety Disorder (T-449), as designated by code numbers from the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") as 296.31 (code for Major Depressive Disorder, recurrent, mild) and 300.00 (code for Generalized Anxiety Disorder), American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed. rev. 2000).*fn2 I.C. was also noted to have alopecia, problems at school and problems making friends (T-449). Dr. Nettleton described I.C. as having symptoms of subjective anxiety, agitation, irritability, poor concentration, restlessness, insomnia, tension, headaches and neck pains, excessive guilt, poor self-esteem, and hopelessness (T-449). The doctor further indicated that I.C. had a dysphoric mood, depressed affect, and noted that I.C. was prescribed Prozac on June 10, 2009 (T-449). Dr. Nettleton indicated that if through therapy I.C. could come to terms with her alopecia (which worsens with anxiety and depression) and follows medication management, she might possibly return to a healthier level of functioning (T-450). Nevertheless, the doctor cautioned that "of course, arrival / commencement of Major Depression at a young age can be indicative of future depressive episodes" (T-450). Dr. Nettleton noted that I.C. had a moderate limitation in the realm of acquiring and using information, a marked limitation in the realm of attending and completing tasks (T-450-451), and a marked limitation in the realm of interacting and relating with others (T-451). Dr. Nettleton indicated that I.C. had mild limitations in caring for herself (T-452). The health and physical well-being domain was ultimately deemed not ratable on available information with I.C. needing this to be assessed by her primary care physician (T-452). In the 'additional comments' section, therapy thus far for I.C. was noted as having been psycho educational and that future sessions would focus on coping skills and other cognitive behavioral interventions (T-452). On October 21, 2009, Dr. Nettleton wrote that since completing the questionnaire in June, she had administered the Conners 3 test (a title unrelated to the plaintiff's surname) to obtain more information about I.C.'s limitations regarding attending and completing tasks (T-453). Dr. Nettleton explained that the Conners 3 was a testing instrument used to measure attention and concentration, especially as it may relate to ADHD symptoms (T-453). Test results suggested problems with attention and concentration (T-453). Dr. Nettleton indicated that these difficulties may stem from anxiety and/or depression and/or ADHD (T-453). Dr. Nettleton highlighted that it was these test results which led her to change the rating on the "Questionnaire for Psychiatric Disorders" regarding "attending and completing tasks" from "moderate" to "marked" (T-453). In addition, Dr. Nettleton indicated that she had also changed the answer to the health and well-being question to "not ratable on available information" from moderate, out of the belief that this particular question would be best answered by a physician (T-453).

2. Age 12 to Age 13 (February 2009 to October 2009)

On February 11, 2009, school correspondence indicated I.C. was having difficulty with failing marks due to missing and incomplete homework (T-424). On March 17, 2009, Rachel Jennings, Counselor, wrote a letter indicating that I.C. failed two or more classes and that retention in the present grade level was strongly considered (T-433). In order for I.C. to advance to the next grade, a "SIGNIFICANT" improvement in her grades would be needed (T-433). On April 16, 2009, Ms. Jennings noted that I.C. would benefit from a Mental Health In-School Therapy Program (T-435-438). On May 11, 2009, Rachel Jennings and the "All Star Team" of teachers at Highland Middle School completed a Teacher Questionnaire (T-440-445). The questionnaire indicated I.C. was in seventh grade, but had a current reading level of a fifth-sixth grader and the math level of a fifth grader (T-440). The questionnaire indicated that I.C. attended special education services one hour a week in math, and also attended a remedial reading skills class (T-440). The questionnaire also indicated that I.C. was frequently absent from school and that I.C. had problems functioning in the domain of attending and completing tasks. I.C. had the following "obvious problems" that affected her daily: focusing long enough to complete an assigned task, refocusing to task when necessary, waiting to take turns, organizing her own things or school materials, completing assignments, and working without distractions (T-440-442). The questionnaire further indicated that I.C. had problems functioning in the domain of interacting and relating with others and that she had very serious problems that occurred daily of playing cooperatively with others, making and keeping friends, and relating experiences and telling stories (T-443). It further noted that she had obvious problems that occurred on a daily basis with seeking attention properly, properly expressing anger, waiting to take turns, taking turns in a conversation, and interpreting meaning of body language (T-443). The questionnaire indicated that I.C. experienced physical effects related to her alopecia on a daily basis and had poor peer relations as a result (T-444). The questionnaire noted that "I.C. refuses to tell the other students the truth about her medical condition," and that she "makes up stories and lies about not having hair." (T-444). The questionnaire further indicated that I.C. had very poor social skills, did not accept her disability and made up stories and that she felt as though she had no friends (T-445).

3. Age 10 to Age 12 (March 2007 to October 2008)

On April 28, 2008, a questionnaire completed by one of I.C.'s teachers noted that I.C. had alopecia and that I.C. was very sensitive about her hair and that she would cry when put in an uncomfortable situation (T-238-245). While in the 5th grade, a Special Education Cooperative Diagnostic Interview dated March 16, 2007, reflects the teacher's view that I.C. had not been doing her homework, talked at inappropriate times during class, was out of her seat at inappropriate times, was not an independent worker and possibly had an ability problem (T-296, 380). On April 23, 2007, an Individualized Education Program ("IEP") was performed. The report indicated that I.C. had average cognitive ability. The report reflects concern that I.C. had a "personality conflict with her teacher" (T-299, 383). The report reflects I.C.'s poor attention, poor independence and poor work completion. Excessive talking and out of seat behavior was also noted as negatively impacting learning and practice opportunities (T-299, 383). The report further indicates I.C was suffering from alopecia/stress related loss of body hair and that I.C. may be negatively reacting to stress. I.C. had twice lost all of her body hair due to stress pertaining to witnessing domestic abuse and her parents' volatile divorce (T-302, 386). This section also indicates that children at school had taken her wig off her head as a "joke" at least two times, and these instances have had a lasting effect on I.C. emotionally (T-302, 386). The report also emphasized that I.C. rarely turns in homework, does not work well independently and constantly disrupts the classroom by talking and getting out of her seat (T-302, 386). Other records indicated that on April 18, 2007, a teacher observed I.C. in a social studies classroom. noting that I.C. could not do her work on her own, and was disruptive (T-306, 360). As part of the IEP, the teachers were asked to assess I.C.'s social behavior and emotional skills. Teacher Casteel rated I.C. in the Clinically Significant Range for Cognitive Problems/Inattention and also to be at risk for ADHD (T-304, 359). Teacher Czazsty rated I.C. in the Clinically Significant Range for being Oppositional, for Cognitive Problems/Inattention, for Hyperactivity, and for ADHD (T-304, 359). The teachers stated that I.C. did not complete assignments, had difficulty following directions, did not work independently, daydreamed, forgot needed materials, disrupted the class, bothered other students, and rarely did homework (T-304, 359). Out of seat behaviors were noted as well as talking often and at inappropriate times (T-304, 359). Based on the evaluation and review of I.C.'s record, it was determined that I.C. had a learning disability and needed special education (T-307, 361). A report card dated June 2007 indicated that I.C. received an "F" in five of her classes and had not completed all of the work required for those grading periods (T-392-395). On October 18, 2007, I.C.'s sixth grade teacher completed a Teacher Questionnaire (T-172-183). The teacher noted that even though I.C. was in sixth grade, her reading and math levels were at a fourth -- fifth grade level and her written language level was at a fourth grade level (T-176).

4. Age 8 To Age 9 (March 2005 to February 2006)

On March 18, 2005, I.C. visited her pediatrician due to hair loss (T-351). The pediatrician's notes document hair loss since September of 2003 (T-351). On April 19, 2005, she again visited her pediatrician because her hair loss was getting worse (T-351). At that time, I.C. was diagnosed with alopecia (T-351). The Pediatric Symptom Checklist, completed by I.C.'s mother, reported that I.C. often tired easily and had little energy, was fidgety and unable to sit still, daydreamed too much, was afraid of new situations, often felt unhappy, angry, and hopeless, often had trouble concentrating, was down on herself, had trouble sleeping and worried often (T-350). On January 16, 2006, Dr. Zuhair Alsakaji received a Clinical Pathology Consultation Report which indicated that I.C.'s ANA screen was positive with a titer of 1:1280 and a speckled staining pattern (T-341). The report further indicated that these results were suggestive of Systemic Lupus Erythematosus, Scleroderma, Connective Tissue disease, and other auto-immune diseases (T-341). In February of 2006, Dr. Tarek Kudaimi indicated that given I.C.'s highly positive ANA she needed to be watched for Lupus (T-338). The doctor recommended avenues for a local hair growth dermatology consultation (T-338).

5. Vonetta Conner's Testimony and I.C's Testimony On February 23, 2010, the ALJ received testimony from I.C. and her mother (T-35-70). Ms. Conner testified that her daughter, I.C., has no hair in her eyebrow area and head area (T-67). I.C. only testified briefly and she indicated that she stopped liking school in third grade when someone pulled off her wig and nobody wanted to talk to her (T-68). She further testified that she was failing classes because sometimes she loses focus and does not do her homework (T-69). She cries because she feels like nobody wants to hang out with her (T-70). Ms. Conner testified that I.C. sees counselors weekly both at school and also outside of school (T-40). I.C. has also seen her doctor, dermatologist and psychiatrist for hair loss and depression (T-41). The psychiatrist prescribed medications to calm I.C. down because "she wasn't staying focused, more or less, kind of hyper, jittery, couldn't sit still" and she was having trouble sleeping (T-41, 42). I.C. received injections for her hair loss from 2006 to 2008, but then stopped because they were very painful and not successful (T-42-43). Ms. Conner testified that at the time of hearing, I.C. was getting 4 Ds and 2 Cs and that the teacher stated I.C.'s poor performance was due to "social" and "attention" problems (T-46-47). I.C. was scared her wig would fall off and the kids would tease her (T-46-47). I.C. tries to talk to other kids, but they do not respond in a positive way (T-47). Ms. Conner related that some of the kids at school say they might catch what I.C. has or that she has cancer; when this occurred I.C. would come home crying (T-47, 48). Ms. Conner testified that at home I.C. gets upset and does not talk to her "because she had a bad day at school" and further indicated that I.C. is different from her siblings in that, "she will kind of stay off to herself, close the door, doesn't really want to come out" and that she does not understand why the other kids won't play with her (T-48, 50). Ms. Conner testified that I.C. has a problem with her nails, like her hair, and sometimes her nails fall off (T-52). I.C. will try and figure out ways to cover her nails, such as with a bandage (T-52). Ms. Conner testified that I.C. complains about joint and muscle pain and that the doctor wants to keep an eye on her because he was concerned about possible Lupus (T-53). Sometimes I.C. uses crutches when she is having pains and sometimes she misses school due to the pain (T-53, 54). At times, Ms. Conner helps

I.C. get dressed due to I.C.'s muscle aches. Other times, I.C. is not motivated to go to school because she is afraid of what is going to happen (T-55, 56). Ms. Conner further testified about an incident where I.C. tried to run out of the school (T-59, 60). At the time of the hearing, I.C. was getting 4 Ds because she had problems focusing (T-60). Ms. Conner also testified that I.C. had crying spells quite frequently about seeing other kids play outside or relative to fears about her father who had been abusive to Ms. Conner in the past (T-60-62). I.C. isolates herself in her room every day and has no friends (T-62-63, 67). She gives up ...


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