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Passion Foreman, On Behalf of D.F v. Michael J. Astrue

April 23, 2013

PASSION FOREMAN, ON BEHALF OF D.F., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Arlander Keys United States District Court

Magistrate Judge Keys

MEMORANDUM OPINION AND ORDER

This case is before the Court on a motion for summary judgment by Passion Foreman, on behalf of her son D.F., a minor. Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks a reversal of the Commissioner's decision denying Supplemental Security Income ("SSI") to D.F., or alternatively, a remand to the Administrative Law Judge ("ALJ") below.*fn1 The parties have consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the motion is granted and the case is remanded to the ALJ for further proceedings.

I. Procedural History

On March 11, 2010*fn2 , Plaintiff submitted a claim for SSI benefits to the Social Security Administration ("SSA"), on behalf of her minor child, alleging a disability onset date of January 27, 2010. Record at 135. In the claim, Plaintiff alleged that D.F., who was born February 3, 2004, has borderline intellectual functioning. R. 135. The SSA denied Plaintiff's claim on May 12, 2010. R. 54. Plaintiff petitioned for reconsideration on May 18, 2010. R. 58. In a decision letter dated July 7, 2010, the SSA upheld the determination that D.F. did not qualify for benefits. Id.

On August 6, 2010, Plaintiff filed a written request for a hearing before an ALJ. R. 63. Plaintiff subsequently sought the assistance of counsel. R. 93. The hearing took place before ALJ Allyn Brooks on July 21, 2011. R. 28. The ALJ issued a decision on August 16, 2011, denying benefits. R. 14-24. Plaintiff then sought review from the Appeals Council. R. 1. The Appeals Council "found no reason" to review the ALJ's decision, and consequently denied the requested review. R. 3. This appeal followed.

II. Factual Background

A. Kindergarten

In 2009, while attending Alessandro Volta Elementary School in Chicago, D.F.'s kindergarten teacher referred D.F. for a psychological evaluation. R. 199. Cesar Adrianzen, an evaluator working for the Chicago Public Schools, conducted that evaluation on January 25, 2010. Mr. Adrianzen found that D.F.'s cognitive growth was "within the borderline range." R. 200. D.F. could use crayons to color shapes, point to parts of his body, and identify basic shapes and primary colors. R. 199-200. However, D.F. had "significantly low" socialization, below average receptive vocabulary, and "significantly below" average expressive vocabulary. R. 200. D.F. had an "inability to relate to others." R. 200. He only scored a 73 for Full Scale and Permanent IQ, and 77 for Verbal IQ. R. 200. Mr. Adrianzen ultimately concluded that D.F. did "not have the skills necessary to participate in kindergarten." R. 199.

Shortly after the evaluation, on January 27, 2010, D.F. received an Individualized Education Program ("IEP"). R. 226. Each week, the IEP specifically prescribed 350 minutes of special education time to work on language arts, 150 minutes for mathematics, 85 minutes for social/emotional, 85 minutes for independent functioning, 45 minutes for speech/language, and 14 minutes of social work, for a total of 729 minutes per week. R. 248. The special education time ultimately meant that D.F. was outside of his general classroom for special education services for 42% of the school week. Id.

The IEP set out various accommodations and modifications to D.F.'s education in the areas of language arts, math, physical science, social science, independent functioning, speech/language, health, social/emotional, and non-academics. R. 231. As examples of these modified goals, "[D.F.] will respond with one word when spoken to 4/5 days" by April 2010. R. 236. "[D.F.] will identify, point, and write numbers 1-15, he will succeed 3 out of 4 attempts" by November 2010. R. 244. Despite these modified goals, he was still to "be graded using standard classroom criteria in all subject areas." R. 250.

To implement the IEP, D.F. transferred to Kilmer Elementary. R. 225. He began school at Kilmer on February 9, 2010. Id. The school assigned Nicole Straube as his special education teacher. See R. 217.

In applying for benefits for D.F., Plaintiff filled out a Function Report on March 11, 2010. R. 145. She indicated that D.F. had no problems with vision and hearing. R. 146. He could be understood "some of the time" both by family and strangers.

R. 147. He could participate in conversation with other children and ask for things that he wanted. R. 148. He could not tell a made-up story or deliver simple messages. Id. He could count to three, but not to ten. R. 149. He knew his age and most colors and shapes, but did not know his birthday or telephone number. Id.

In terms of physical abilities, Plaintiff indicated that D.F. could catch a large ball and copy his first name, but that he could not ride a tricycle, could not print at least some letters, and could not use scissors. R. 150. He could eat with utensils and put his toys away. R. 151. He required help to dress himself and brush his teeth. Id. He also had problems with bowel and bladder control. Id.

Finally, Plaintiff stated that D.F. only had minimal behavioral impairments. He could share toys and take turns. R. 150. He showed affection towards his parents. Id. He could also play pretend and physical games like tag and hide-and-seek. Id. However, he could not play board games like checkers or Candyland. Id. His attention span was about 30 minutes. R. 151.

D.F. received an IEP report card on April 20, 2010. R. 255. Rachel Temkin, the school social worker, stated that D.F. seemed "much more engaged and happy" in class. R. 255. He had "made nice progress." Id. Lauren Agruss, D.F.'s speech pathologist, stated that D.F. was becoming more comfortable in class and was "more willing to use his words to communicate." Id. He had likewise made "nice progress." Id.

As for academics, Ms. Straube, a special education teacher, indicated that D.F. was "Making Expected Progress" in goals such as writing letters, reading aloud, counting to 10, and expressing his likes and dislikes. R. 255-256. He did "a great job" answering questions, and was growing loud enough so that others could hear his answers. R. 256. However, D.F. was "Not Making Expected Progress" toward identifying and managing emotions. R. 256-257.

On May 2, 2010, Ms. Straube completed a teacher questionnaire regarding D.F. R. 210-217. In the domain of Acquiring and Using Information, Ms. Straube indicated that D.F. has one slight problem, five obvious problems, and three serious problems. R. 211. She noted that "limited language skills make academic functioning difficult for [D.F.]." Id. In the domain of Attending and Completing Tasks, she noted only one slight problem, and stated that D.F. "enjoys school and usually has appropriate attention to tasks." R. 212.

In the domain of Interacting and Relating to Others, Ms. Straube indicated that D.F. had four slight problems, two serious problems, and two very serious problems. R. 213. The very serious problems were "[r]elating experiences and telling stories" and "[u]sing adequate vocabulary and grammar to express thoughts/ideas in general, everyday conversation"; these problems both occurred on an hourly basis (the shortest time-frame option listed on the form). Id. She further stated that D.F. had no problems in the domains of Moving About and Manipulating Objects and Caring for Himself. R. 214-215. She did not know of any health problems that D.F. had or any medications that he was taking. R. 216. Additionally, she commented that D.F. had "recently begun to speak more and seem[ed] to have grown comfortable" in class, but that he was "not functioning academically at an age appropriate level." R. 217.

The SSA had Dr. Terry Travis review D.F.'s condition on May 11, 2010.*fn3 R. 202. Dr. Travis opined that D.F.'s "[c]ognitive growth was within the borderline range." R. 201. Dr. Travis noted that D.F.'s impairment was "severe, but does not meet, medically equal, or functionally equal the listings." R. 201. In Dr. Travis's opinion, D.F. had a "Less Than Marked" limitation in the domains of Acquiring and Using Information, Interacting and Relating with Others, and Caring for Yourself. R. 203-204. Dr. Travis found that D.F. had "No Limitation" in Attending and Completing Tasks, Moving About and Manipulating Objects, and Health and Physical Well-Being. Id. Dr. Travis noted D.F.'s IQ scores and Ms. Straube's findings in her teacher questionnaire.

R. 203.

After the SSA initially denied Plaintiff's claim, Plaintiff filled out a disability report for the SSA on May 18, 2010 for the appeal. R. 172. Plaintiff indicated that D.F.'s condition had not changed and that no new conditions had arisen. Id. She stated that D.F. could not dress or bathe himself without help, still soiled himself, and did not play with others. R. 174.

On May 18, 2010, Dr. David Gilliland, a psychologist with the SSA, completed a disability evaluation form. R. 220. Dr. Gilliland noted D.F.'s IQ and Ms. Straube's questionnaire. R. 221-222. Dr. Gilliland agreed with Dr. Travis' domain assessments. R. 203-204, 221-222. Dr. Gilliland likewise determined that D.F.'s borderline intellectual functioning was a severe impairment that nevertheless did not meet or equal the SSA listings. R. 219.

B. First Grade

The Chicago Public Schools issued to D.F. a new IEP on January 12, 2011. R. 258-278. Under this IEP, D.F. no longer needed accommodations, modifications, or special education goals in independent functioning, health, social/emotional, and non-academic. R. 231, 262. He no longer impeded his own or others' learning. R. 232, 263. D.F.'s special education minutes for language arts dropped ...


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