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Burton Ex Rel. E.V. v. Astrue

United States District Court, Seventh Circuit

July 1, 2013

DORTHEA BURTON, ex. rel., E. V. A Minor Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

P. MICHAEL MAHONEY, Magistrate Judge.

I. Introduction

Dorthea Burton, on behalf of her minor child, E.V. ("Claimant"), seeks judicial review of the Social Security Administration ("SSA") Commissioner's decision to deny her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. See 42 U.S.C. §§ 1383(c)(3), 1381a. This matter is before the Magistrate Judge pursuant to the consent of both parties, filed on July 8, 2011. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

II. Administrative Proceedings

Claimant first applied for SSI benefits on March 30, 2006 and alleged a disability onset date of Jan 1, 2006. (Tr. 26-27.) Claimant's initial SSI application was denied on September 20, later that year. (Tr. 18.) Upon reconsideration, her claim was again denied on May 1, 2007. (Tr. 18.) Claimant then filed an untimely request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 18.) Despite the flawed request, the case file was sent to the Office of Disability Adjudication and Review. (Tr. 18.) The ALJ, Hon. Steven H. Templin, eventually reviewed the file and requested that a hearing take place. (Tr. 18.)

The first hearing was scheduled on November 7, 2008. (Tr. 18.) Claimant and her mother appeared in court on that date without an attorney to represent them. (Tr. 507-514.) The ALJ advised Burton of her child's right to have an attorney present; after considering the advice, Burton informed that she would like an opportunity to secure representation before the hearing commenced. (Tr. 509-511.) The ALJ granted her request and rescheduled the hearing for April 30, 2009. (Tr. 479, 511.)

Attorney Roger Hutchison appeared in person with Claimant and her mother for the second hearing date in Oak Brook, Illinois. (Tr. 479.) Dr. Kathleen O'Brien testified at the hearing as a medical expert ("ME"). (Tr. 479-490.) Burton and Claimant also testified that day.

After the hearing, the ALJ issued a written decision finding Claimant "not disabled" and denying benefits on May 27, 2008. (Tr. 15-25.) Claimant requested review of the ALJ's decision, and the Appeals Council denied Claimant's request. (Tr. 4-6.) As a result of this denial, the decision of the ALJ is considered the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1455, 416.1481, Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). Claimant has now filed a complaint in the United States District Court for the Northern District of Illinois, Western Division, seeking judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3).

III. Background and Hearing Testimony

Claimant was born on April 26, 1995, making her approximately fourteen years old at the time of the second hearing. (Tr. 272.) She lived with her mother and siblings in DeKalb, Illinois. (Tr. 217.) Her parents were separated, but although she did not live with her father, he remained active in her life. (Tr. 226.) She claims that she qualifies for SSI benefits due to her diagnoses of attention deficit hyperactive disorder ("ADHD"), major depressive disorder, and anxiety disorder. (Tr. 271, 285, 316.) The latter two for these diagnoses appear to stem from past sexual abuse by a family member. (Tr. 482.)

At the April hearing, the ME was the first to testify and ALJ initially posed questions concerning the first few benchmark steps of SSI analysis (detailed infra, at...). (Tr. 480-481.) The ME testified that she was familiar with the appropriate medical aspects of the Social Security evaluation process for childhood disability and that there was sufficient information in the record for her to form an opinion as to Claimant's conditions. (Tr. 480-481.) The ME opined that Claimant had the medically determinable mental impairments of ADHD and major depressive disorder. (Tr. 481.) She also noted a previously withdrawn diagnosis of oppositional defiant disorder. (Tr. 481.) She found that the impairments had "more than a minimal or slight effect upon [Claimant's] ability to function in an age-appropriate manner, " but that they did not meet the severity criteria within the Listings and none of these impairments would have "marked limitations" on Claimant's ability to function. (Tr. 481-484, 490.)

Specifically, she testified that Claimant's major depressive disorder "occurred following a very serious, traumatic event... in February of 2006.... [and that] the depression is being attributed to the traumatic event." (Tr. 482.) Claimant was depressed and experienced some level of fatigue. (Tr. 482.) Generally, the ME stated, children that experience traumatic events often have trouble articulating their feelings and may become angry, display social difficulties, and "act out." (Tr. 482.) However, the ME observed that Claimant has been working "pretty hard" in therapy to find ways to control her behavior. (Tr. 482.) The ME indicated some surprise that Claimant was not diagnosed with some form of post-traumatic stress disorder, but overall, she observed that Claimant's depressive disorder "is improving, and that [Claimant] demonstrates the ability to improve when she has a goal that she finds... worth working for." (Tr. 483.) The goal of making her school's basketball team seemed to be a powerful motivator. (Tr. 482.)

Claimant's ADHD was not related to the trauma, but could affect her cognitive and communicative functioning. (Tr. 483.) Even so, Claimant had a history of doing well in school and had been on the honor roll "a number of times." (Tr. 483.) The ME recalled that Claimant told her therapist that she did not trust adults, and it may have contributed to her behavior in school. (Tr. 483.) Yet, "at no point did the school see fit to move her into [a] special education or behavior disorder classroom." (Tr. 484.)

Later in the hearing, Claimant's attorney asked ME why she did not initially mention Claimant's anxiety disorder. (Tr. 494.) The ME explained that it was not "carried through the record" and that "[i]t's very, very common with depression... to have an anxious manifestation. So whether [one] make[s] it two separate disorders or whether [it's one disorder], it would amount to the same thing." (Tr. 494.) The attorney left it at that.

When the ME was questioned regarding Claimant's medications, Claimant's mother stepped in to answer. (Tr. 485.) She reported that Claimant was taking Focalin and Zoloft for depression. (Tr. 485.) Claimant had apparently stopped taking her medication, but recently wanted to go back on them because "they were helping." (Tr. 485.)

Next, Claimant's mother, Burton testified before the court. (Tr. 490.) She stated that Claimant's teachers have called her a bully and that she has a history of fighting in school. (Tr. 491.) She claimed that she receives calls from school every other day concerning her daughter's behavior. (Tr. 492.) To address this issue, Claimant participates in her school's "Steps" program, where students attempt to find ways to resolve conflicts peacefully. (Tr. 493.) Burton testified she has noticed that Claimant is anxious in crowds and has a tendency to get frustrated and argues at home too. (Tr. 493.) Yet, Burton has noticed an improvement in Claimant's behavior and work ethic since she has been keeping up with her medications. (Tr. 495, 497.) "I see a totally big difference, " she said. (Tr. 496.) "I see her [acting] more calm[ly] and everything. But - she easily gets upset... when things [are] going wrong." (Tr. 496.)

The ALJ saved Claimant's testimony for last and questioned Claimant in regards to her mood and poor behavior at school. (Tr. 490.) Claimant agreed that she has "felt really bad at times, " but that counseling has helped her feel better recently. (Tr. 490-500.) She further testified that she really did not "regret" misbehaving at school while still conceding to the ALJ that her behavior was "not appropriate." (Tr. 501.) Things had apparently changed though, in that she no longer acts out, as she has learned how to better "deal" with her attitude - "probably" due to counseling. (Tr. 501.)

The testimony then turned to schoolwork, specifically. (Tr. 502.) Earlier in the year, her normally good grades began a sharp decline. (Tr. 502.) When asked about the dramatic change to her performance in school, she responded that it was attributable only to "T.V." and a lack of concentration. (Tr. 501, 503.) She added that since she recently has become more attentive in taking her medications, her grades have improved along with her mood. (Tr. 501.) Claimant also expressed a strong desire to play basketball for her school team, and identified the activity as an incentive to improve her grades and behavior: "[Y]ou can have [A's], [B's], [C's, ] and [D's, ] but no [F's]. And it was kind of easy because I was getting like [B's], but like at the beginning of the year[, ] I was getting [F's]." (Tr. 502.)

At the hearing's closing, the ALJ asked Claimant if she gets along with her younger brother. (Tr. 503.) Claimant testified that she is "kind of" close to her younger brother, but that they do not always get along. (Tr. 503.) Sometimes he would act as if he is going to hurt her, but all-in-all, it would not be serious and he would just be playing. (Tr. 504.) Afterward, assuring Burton that she had raised "some really, really nice kids, " the ALJ adjourned the hearing. (Tr. 504.)

IV. Record Evidence

A. Medical Records

On February 14, 2006, Claimant was assessed at the Family Service Agency of DeKalb following recent allegations that she was a victim of sexual abuse. (Tr. 194.) Claimant had also just been medically evaluated in regards to her trauma at LaRibida Children's Advocacy Center and Edward Hospital. (Tr. 183-191.) Claimant was ten years old at the time and her mood was described as "anxious" during the consultation, but her affect and mental status were reported "normal." (Tr. 194.)

Before the evaluation, her mother indicated that Claimant had good grades; slept well; had a good appetite; and just recently reported the abuse, although it had been going on since she was eight years old. (Tr. 206.)

Claimant conveyed that she had thoughts about harming herself during the two weeks prior to the assessment. (Tr. 195.) Counselor Carrie Williams set up counseling goals with Claimant that included stabilizing her emotions, decreasing thoughts of harming herself, and recommended that Claimant attend weekly counseling sessions. (Tr. 197.) Claimant reported that she did not want to attend the sessions because she felt better and did not want "to deal with it anymore." (Tr. 199.) Nonetheless, she returned to counseling in March and still claimed that the abuse had not affected her, even though she reported nightmares about where the abuse took place and admitted that she was angry about what had happened. (Tr. 202.)

The Ben Gordon Center ("BGC") in DeKalb, Illinois completed a comprehensive assessment on June 26 and 27, 2006, at her father's request. (Tr. 217.) He began to notice "a lot of oppositional behavior" and complained that her "mother does not give [Claimant] rules." (Tr. 217.) He also mentioned some behavior problems at school and that he scheduled the assessment because Claimant refuses to talk about her abuse and that he "want[ed] to make sure she's doing ok." (Tr. 217.) As for Claimant, she reported having "no recurrent thoughts of abuse, no flashbacks, or avoidance of situations that [remind] her of the abuse." (Tr. 217.) "She often feels uptight, keeps her eyes open for danger, [and] is shaky...." (Tr. 217.)

The assessor, Amy Brausch, MA, Psychological Extern[1] found that:

• Claimant's family life has been "chaotic, " "estranged, " "sexually abusive, " and "loud." (Tr. 218.)
• Her attendance at school was good, she was enrolled in regular classes, and maintained an "A-B" grade average. (Tr. 220.)
• She sometimes displayed defiant or oppositional tendencies. (Tr. 220.)
• She reported multiple detentions for talking in class and physical fighting. (Tr. 220.)
• Her social interactions with peers and school staff were "variable, [s]atisfactory-fair." (Tr. 220.)
• Claimant appeared clean and casually dressed (Tr. 220.)
• She was overall cooperative with the evaluation, but was at times guarded, evasive, and timid. (Tr. 220.)
• She had appropriate and fluid thoughts and her attention was satisfactory. (Tr. 221.)
• Her emotional status was also appropriate and "labile." (Tr. 221.)
• She had "no" barriers to her learning ability. (Tr. 221.)

Claimant was ultimately diagnosed with adjustment disorder and "[u]nspecified and oppositional defiant disorder." (Tr. 222.)

Socially[, ] it appears that [Claimant] has friends at school but had some issues with one girl... and would get into physical fights with [her]. Academically[, ] it seems [Claimant] is an above[-]average student but is sometimes disruptive in class. The relationship between [Claimant] and her father appears strained due to his anger and her oppositional behavior. (Tr. 222.)

It was recommended that Claimant undergo both individual and family therapy for treatment. (Tr. 222.)

Claimant remained in counseling services with Ms. Brausch throughout the rest of 2006. (Tr. 240-255.) During this time period, Claimant was more receptive to the idea of counseling and was more open to talk about her problems at school and at home. (Tr. 240-255) She often made "limited" or "variable" progress towards her therapy goals. (Tr. 240-255.) Yet, signs of her anxiety and frustration were still present. (Tr. 240-255.) Her progress and attitude seemed to improve with time. (Tr. 240-255.)

On September 14, 2006, Claimant's history was evaluated by DDS physician, Dr. Russell Taylor. (Tr. 209.) Dr. Taylor found "no limitation" in Claimant's ability to acquire and use information, move about and manipulate objects, and that her health and physical well-being was also not limited. (Tr. 210-211.) He found "less than marked" impairments in Claimant's ability to attend to and complete tasks, interact with others, and care for herself (on the basis of her receiving counseling). (Tr. 211.) "[S]he still gets along well with others, makes friends easily, maintains friendships and gets along with adults. [Although] [s]ome records mention some oppositional defiant tendencies, " he wrote. (Tr. 210.) Ultimately, Dr. Taylor concluded that Claimant was "not disabled" because "[n]o domains [were] markedly or extremely impaired." (Tr. 213.)

Upon a request for reconsideration, Claimant underwent another evaluation by DDS physician Dr. Erika Altman on April 30, 2007. (Tr. 257.) Dr. Altman found that Claimant displayed "no limitation" in moving and manipulating objects, "less than marked" limitations in acquiring and using information, caring for herself, and attending and completing tasks. (Tr. 257-259.) However, she did not mark a limitation level in the categories of "Interacting and Relating with Others" and "Health and Physical Well-Being" (Tr. 258-259.) She did note that Claimant has a "serious problem in [expressing] anger and emotions" and "is extremely limited in [her] ability to communicate effectively and obey rules and authoritative figures." (Tr. 258.) Further, that her affect is "flat, mood indifferent and guarded." (Tr. 259.) Dr. Altman also checked a box indicating that Claimant had marked limitations in two domains that functionally equal the listings. (Tr. 260.) Regardless, she ultimately concluded that Claimant was not disabled. (Tr. 26, 256.)

During the spring of 2007, Claimant returned to counseling with Ms. Brausch at BGC regularly. (Tr. 262-269.) The discussion at these sessions mainly focused on Claimant's behavior problems at school and how best to resolve them. (Tr. 262-269.) As the school-year wound down to a close, Claimant had trouble with her teacher again, and did not see a need to change her behavior. (Tr. 266.) Again, during these sessions, Claimant made "limited" to "variable" progress towards her goals. (Tr. 262-269.)

Psychiatrist, Dr. Fatima Hadi, M.D., examined Claimant at the BGC on July 3, 2007. (Tr. 271.) The doctor's report states that

[Claimant] is wary, inattentive, distracted, minimally communicative, [is] well-groomed, and appears anxious. Her speech is normal in rate, volume, and articulation[, ] and is coherent and spontaneous.... She appears downcast. Her affect is constricted. Wishes to be dead... but suicidal intentions are not present.... There are no signs of... psychotic process. Associations are intact, thinking is logical, and thought ...

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