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Rogette Dent On Behalf of v. Carolyn Colvin

April 9, 2013

ROGETTE DENT ON BEHALF OF K.V. A MINOR, PLAINTIFF,
v.
CAROLYN COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore United States Magistrate Judge

E-FILED Wednesday, 10 April, 2013 11:30:15 AM Clerk, U.S. District Court, ILCD

OPINION

BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:

Plaintiff Rogette Dent brings this action on behalf of her minor daughter K.V. to appeal the denial of Supplemental Security Income benefits (Disability Benefits) to K.V. under title XVI of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c. Dent has filed Brief in Support of Motion for Summary Judgment (d/e 8) (Dent Motion), and Defendant Acting Commissioner of Social Security (Commissioner) has filed a Motion for Summary Affirmance (d/e12).*fn1 The parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before this Court. Consent to Proceed Before a United States Magistrate and Order of Reference, entered November 14, 2012 (d/e 10). For the reasons set forth below, the Decision of the Commissioner is affirmed.

STATEMENT OF FACTS

K.V. was born January 9, 2003. Her application for Disability Benefits was filed on June 15, 2009. Her alleged onset date was May 1, 2008. K.V. suffers from speech and language delays, a learning disorder, attention deficit hyperactivity disorder, rare syncopal episodes, and episodic enuresis. Answer to Complaint (d/e 6), attached, Certified Transcript of Proceedings before the Social Security Administration (R.), at 41, 44.

K.V. attended the Quincy, Illinois, Public School District's Early Childhood Education Program from August 2006 until November 2006, and again in the 2007-2008 school year. In March 2008, K.V. was identified as eligible for special education services for speech/language impairment.

R. 498.

On November 25, 2008, K.V. saw her primary care pediatrician, Dr. Laura Baustain, D.O., because of a rash and wetting the bed at night. Dent, her mother, also reported K.V. had begun to wet the bed and have accidents at school. R. 301. Dr. Baustain recommended limiting fluids after 6:00 p.m. and waking K.V. before Dent went to bed to allow K.V. to use the bathroom. Dr. Baustain noted that she would prescribe desmopressin acetate nasal spray (DDAVP) if the problems persisted.

R. 301. *fn2

On December 12, 2008, K.V. saw Dr. Baustain because of concerns about K.V.'s performance in school. Dent reported that K.V. was having difficulty in school. R. 299-300. She reported that K.V. was being moved to learning disabled classes next semester. She reported that K.V. was mean and aggressive. She reported that K.V. would be playing with her sister and "just bite her really hard." R. 299. On examination, Dr. Baustain found K.V. to be "Outgoing, although not really interactive with any one person in the room. . . . Not easily brought to attention for interactions with myself." R. 299. Dr. Baustain assessed a learning defect and possible learning disability, developmental delay or mental retardation. She recommended an assessment by the school and a developmental pediatrician. R. 299.

On April 22 and 29, 2009, K.V. underwent a psychological evaluation by the Special Education Association of Adams County, Illinois. R. 498-502. Test results conducted during the evaluation put K.V.'s overall ability in the low average range, with verbal comprehension and visual processing speed in the average range, and perceptual reasoning in the low average range. R. 499. Academic achievement testing showed K.V. to be in the low average range for spoken language, writing, and general information; and in the significantly below average range for reading and math. R. 500. Based on this evaluation, K.V. continued to receive special education services at school.

On June 3, 2009, K.V. saw Dr. Charles Morton, M.D., for evaluation.

R. 270-74. Dent reported to Dr. Morton that K.V.'s preschool speech teacher did a wonderful job with her, but she still had speech problems. Dent reported that K.V. had good gross motor skills and fairly good fine motor skills. She reported that K.V. can feed herself, but needs help dressing herself. Dent reported to Dr. Morton that,

Socially she tends to be a loner. She will cry behind a tree saying the children do not play with her. Sometimes she will seek out the children. . . . The teacher reported that she plays with children but her mother has not seen this. She tends to play better with younger children.

R. 270. Dent also reported that K.V. may miss facial expressions of others, has problems with changes in routine, overacts at least once a week, and does not play with toys at all much. R. 270.

Dr. Morton examined K.V. and diagnosed ADHD and learning disabilities. He found K.V., at age 6 years, had the social age of 17 months; the self help age of 2 years 8 months; the gross motor age of 3 years 9 months; the fine motor age of 4 years 2 months; the expressive language age of 2 years 7 months; the language comprehension age of 2 years 11 months; the letters age of 2 years 7 months; the number age of 2 years 11 months; and the general development age of 2 years 9 months. R. 273.

On August 27, 2009, the speech and language therapist at K.V.'s school opined that K.V.'s speech was 80% intelligible to the familiar listener, 70% intelligible to an unfamiliar listener; and 80% intelligible after repetition of the statement. R. 372. The therapist opined that K.V. had the most problems with receptive language and expressive language, but fewer problems with pragmatic language. R. 372-73. K.V. was receiving speech and language therapy 75 minutes per week in three 25-minutes sessions per week. The therapist evaluated K.V.'s progress as fair and K.V.'s development as atypical. R. 374.

On or about September 1, 2009, K.V.'s special education teacher Susie O'Quinn and her school social worker Lora Frisbie completed Teacher Questionnaire. O'Quinn stated that she had taught K.V. every school day for six hours a day for one year. O'Quinn and Frisbie opined that K.V. was at an early kindergarten reading level. O'Quinn and Frisbie used an evaluation form that used a scale from 1 to 5: 1 was no problem, 2 was a slight problem, 3 was an obvious problem, 4 was a serious problem, and 5 was a very serious problem. Using this scale, O'Quinn and Frisbie opined that K.V. had obvious or serious problems in seven of ten categories of acquiring and using information. They opined that K.V. had a slight problem in twelve of thirteen categories of attending and completing tasks. They opined that K.V. had an obvious problem in the thirteenth category of carrying out multi-step instructions. They opined that K.V. had no problem in seven of thirteen categories of interacting and relating with others, and a slight problem in the remaining six categories. They opined that K.V. had no problem moving about and manipulating objects or caring for herself. R. 181-85.

On or about October 1, 2009, agency physician Dr. Sandra Bilinsky, M.D., psychologist, Dr. Leslie Fyans, Ph.D., and Nikki Arends, SLP, prepared a Childhood Disability Evaluation Form.*fn3 R. 376-81. They opined that K.V.'s impairments or combination of impairments did not meet, medically equal, or functionally equal any Listing of Impairments set forth in the Social Security regulations, 20 C.F.R. Part 404 Subpart P, Appendix 1 (Listings). R. 376. They opined that K.V. had marked limitations in acquiring and using information; less than marked limitations in attending and completing tasks, interacting and relating with others, and health and physical well-being; and no limitations in moving about and manipulating objects, and caring for herself. R. 378-79.

On October 7, 2009, K.V. saw Dr. Richard O'Halloran, M.D., for continued problems enuresis, wetting the bed. He noted that an ultrasound showed normal upper tracts and that the images of the bladder were unremarkable. Dr. O'Halloran scheduled a cystourethrogram. R. 387.

On November 9, 2009, Dr. Ronald G. St. Hill, M.D., conducted a psychiatric evaluation of K.V. Dent reported to Dr. St. Hill that when K.V. was 2 or 3 years old, K.V. did not use language appropriately. Dent reported that her speech improved remarkably when she received speech therapy in preschool. In preschool, K.V. had significant difficulty grasping and retaining information and concepts. Dent also reported that K.V. had short term memory problems. A developmental pediatrician diagnosed K.V. with ADHD and oppositional defiant disorder (ODD). The developmental pediatrician prescribed Focalin XR for these conditions. R. 393. The Focalin did not improve symptoms and caused problems with K.V.'s sleep. R. 394.

Dent reported that K.V. was generally in a good mood and pleasant. She reported that K.V. was easygoing and easy to get along with. She reported that K.V. had tantrums no more than once or twice a week and that they lasted for 10 minutes or less. R. 393. Dent reported that K.V. did not engage her peers often, and when she did, she complained that they are mean to her and say mean things to her. R. 394.

On examination, Dr. St. Hill found that K.V. was alert, calm, cooperative, pleasant, and friendly. She sometimes could not respond to questions, but sometimes could maintain and engage in rapport. She maintained appropriate eye contact. She was able to sit and engage in a task for an appropriate period of time despite distractions. She was able to maintain appropriate focus. Her speech was normal in rate and volume, but had some dysarthria. She could not recall facts or data. Dr. St. Hill found no evidence of thought disorder. He found impaired recall and very limited insight and judgment. He diagnosed a learning disorder and cognitive disorder. He also noted "Rule out attention deficit hyperactivity disorder, predominantly inattentive type." R. 396. He found no evidence of ODD. He assigned a Global Assessment of Functioning (GAF) score of 50.

R. 395-96. After this evaluation, K.V. stopped taking the Focalin. R. 404.

On November 25, 2009, K.V. saw Dr. O'Halloran again for enuresis. Dent reported to Dr. O'Halloran that it was determined that K.V. did not have ADHD. She reported that K.V. wet the bed most nights and was not on any medication. She said the K.V. was wearing pull-ups.

Dr. O'Halloran told K.V.'s mother to stop the use of pull-ups and to stop fluids at 7:00 p.m. and to wake K.V. twice during the night to use the bathroom. He also wrote a note to school to state that K.V. was not allowed to have chocolate milk. R. 388.

On January 4, 2010, K.V. saw Dr. Kimberly, Twyman, M.D., at the Cardinal Glennon Children's Medical Center in St. Louis, Missouri. R. 404-07.*fn4 Dr. Twyman noted, "Mom has no concerns about her behavior at this time but continues to have concerns about her learning difficulties at school." R. 404. Dent also had concerns about K.V.'s social interaction with other children. K.V. preferred to play with younger children or by herself. R. 404. K.V. reported that she enjoyed playing with other children but sometimes the children can be mean to her. She also reported that K.V. enjoyed participating in the Big Brothers/Big Sisters program. R. 405.

On examination, K.V. demonstrated good eye contact and attention. Dr. Twyman found no evidence of inattention or hyperactivity during intelligence testing; however, K.V. became more impulsive and seemed to give up easily as the testing got harder. R. 406.

Dr. Twyman's testing results showed K.V.'s "scores for inattention, hyperactivity, executive functioning and aggression were all below the clinically significant range." R. 406. Dr. Twyman further found that, "Clinically significant scores were noted for learning problems and peer relations." R. 406. Dr. Twyman diagnosed delayed I.Q., learning disabilities, and language disorder with articulation disorder. Dr. Twyman noted that K.V. was making progress in speech therapy. R. 406.

Dr. Twyman concurred with the decision to stop the ...


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