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Kline v. Colvin

United States District Court, Seventh Circuit

January 9, 2014

JULIA M. KLINE o/b/o J.H.-K., a minor, Plaintiff-Claimant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Respondent.

MEMORANDUM OPINION AND ORDER

IAIN D. JOHNSTONE, Sr., District Judge.

Julia Kline, on behalf of her minor son J.H.-K. (hereinafter, "Claimant"), brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Respondent Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), [1] denying Claimant's application for supplemental security income ("SSI") benefits. This matter is before the Court on cross-motions for summary judgment [Dkt. #14, 19].

Claimant argues that the Commissioner's decision denying his application for SSI should be reversed or remanded for further proceedings because the Administrative Law Judge ("ALJ") provided a deficient functional equivalence determination regarding his ability to attend and complete tasks, and erroneously determined that Claimant's combination of impairments did not meet or medically equal Listing 112.11A. For the reasons set forth more fully below, Claimant's motion for summary judgment [Dkt. #14] is granted in part and the Commissioner's motion for summary judgment [Dkt. #19] is denied. The Commissioner's decision is reversed, and this matter is remanded to the Social Security Administration ("SSA") for further proceedings consistent with this Memorandum Opinion and Order. On the present record, this Court declines to remand with an order to award benefits.

In reviewing denials of Social Security benefits, the Court understands that it cannot reweigh the evidence presented to the SSA or engage in de novo review. But the Court also recognizes that it cannot rubber-stamp the Commissioner's decision. Instead, the Court must engage in a critical review of the evidence. In doing so, the Court needs to assure itself that the ALJ's decision possesses a logical bridge to the conclusion. Part of the "logical bridge" analysis requires the ALJ to confront evidence that is contrary to the ALJ's ultimate conclusion and explain why that evidence was insufficient. The ALJ cannot merely turn a blind eye to that evidence, which is what occurred here. See Ribaudu v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006); Tyson v. Astrue, 08-CV-383-BBC, 2009 WL 772880, at *10 (W.D. Wis. Mar. 20, 2009).

I. BACKGROUND

A. Procedural History

Claimant filed an application for SSI benefits on July 9, 2008, alleging a disability onset date of July 1, 2008. R. 81. The Commissioner denied the application initially on November 10, 2008, and upon reconsideration on January 2, 2009. R. 81. Claimant filed a timely written request for a hearing on January 14, 2009. R. 81, 113. The ALJ conducted a video hearing on August 19, 2010. R. 81. Claimant and his mother attended the hearing and testified. R. 32. Counsel represented the Claimant at his hearing. R. 32.

On September 20, 2010, the ALJ issued a decision denying the claim for benefits. R. 78-93. Claimant filed a timely request to review the ALJ's decision on September 29, 2010. R. 7. The Appeals Council denied review on October 21, 2011, making the ALJ's decision the final decision of the Commissioner. R. 1-3. Claimant subsequently filed this appeal pursuant to 42 U.S.C. § 405(g). Claimant's objections to the ALJ's decision are limited to 1) her determination that Claimant does not meet the criteria set forth in Listing 112.11A; and 2) her findings in the domain of attending and completing tasks. Accordingly, the Court will focus on the facts in the record related to those findings.

B. Hearing Testimony

1. Julia Kline - Claimant's Mother

Ms. Kline testified that Claimant was six years old at the time of the hearing before the ALJ on August 19, 2010. R. 4. She testified that Claimant lives with her, an older sister, and a younger brother in a house in Rockford, Illinois. R. 35. Ms. Kline testified that Claimant's father is incarcerated. R. 36.

Ms. Kline testified that Claimant was scheduled to begin second grade the week after the hearing. R. 37. Claimant was in regular classes and did not have an individual education plan ("IEP"). R. 37. Claimant passed most of his subjects the year before. R. 38. Ms. Kline testified that she attempted to obtain an IEP four times and asked the Board of Education to provide Claimant help with his behavioral problems, but the Board denied her requests. R. 37, 41. Ms. Kline testified that Claimant did not attend counseling or special education classes at school, but that he sees the school social worker when he has one of his "episodes" or is "throwing a fit". R. 37. She estimated that Claimant met with the social worker one to two times per month. R. 37.

Ms. Kline testified that during first grade, Claimant had a few incidents of acting out and hitting his teachers, and was suspended twice. R. 40. Because of Claimant's behavior, his doctors adjusted his medication multiple times and his teacher and the principal allowed him to "set his own agenda" when he began acting out. R. 40. Ms. Kline also testified that she "bribed" Claimant to behave by allowing him more time to play video games. R. 40. Despite these accommodations, Ms. Kline testified that the school sent home multiple notes related to his bad behavior, and that he fought with another student but was not suspended. R. 41. She testified that Claimant was unable to pay attention and focus at school. R. 42. Claimant originally rode the bus to school, but was suspended from the bus. R. 62.

Ms. Kline testified that a therapist and psychiatrist treated Claimant at the Janet Wattles Center. R. 41. She testified that despite the doctor's recommendation, Claimant did not participate in organized activities because she did not have transportation and worried that he would act out. R. 43-44. Ms. Kline also testified that Claimant missed therapy sessions because of the lack of transportation. R. 44. Ms. Kline reported that the therapy sessions had not helped Claimant, but that Claimant's focus and attitude had significantly improved with the new medication, Abilify[2]. R. 54.

Ms. Kline told the ALJ that Claimant generally got along with her, but that he occasionally slammed his door, ran from her, hid, and hit his hands and head on the wall. R. 46, 57-58. Ms. Kline testified that Claimant had a serious rage problem, and she believed Claimant showed signs of bipolar disorder, which ran in the family. R. 46, 60. Ms. Kline testified that Claimant usually calmed down on his own after screaming his fits away, but she had to take him to the emergency room once for being out of control. R. 47.

Generally, Claimant got along with his siblings, but he had few friends at school because he was controlling. R. 28. Claimant played video games on a regular basis. R. 49. He focused on his video games for no more than 10 to 15 minutes at a time. R. 49. Claimant played with neighborhood children at a park near his house and attended vacation bible school over the summer, but was removed from a park district day camp for arguing. R. 43-44, 59-60. Ms. Kline testified that Claimant stole video games from his friends' houses and candy from a convenience store. R. 59-60.

Ms. Kline testified that she and Claimant's sister tried reading with Claimant, but he got frustrated and gave up. R. 50. Claimant also failed to bring half of his first grade homework assignments home, and Ms. Kline had to supervise Claimant to make sure he completed his assignments. R. 51. Ms. Kline told the ALJ that Claimant performed chores at home, including cleaning his room and the living room, and that he was good at taking showers and baths. R. 52. However, she reported that he occasionally soiled himself and refused to change his clothes. R. 53.

2. Claimant

Claimant testified that he was looking forward to starting second grade. R. 63. He testified that his favorite subject was reading and his favorite book was Mickey Mouse. R. 63-64. He testified that he did not like recess because other children bullied him on the playground. R. 64. Claimant told the ALJ that he could not pay attention sometimes because he was tired. R. 65. He testified that when he got in trouble for not paying attention, he sat in his seat for 10 to 20 minutes but was not taken to the principal's office. R. 65. Claimant testified that he had friends at school. R. 65. He named two of his friends from school, and testified that he played with them on the slides and flew paper airplanes with them. R. 65. Claimant testified that he played hide and seek with two neighborhood friends. R. 66.

Claimant told the ALJ that sometimes he got mad and did not know why. R. 66. He testified that his counselor, Jim Brown, taught him how to deal with his anger. R. 67. He testified that when he became angry, he would sit down, relax, and apologize for his behavior. R. 67. Claimant denied hitting anything, running away, or slamming doors during his fits of anger. R. 67, 71. Claimant testified that he just pushed the door closed "softly like boom" when he is angry at home. R. 71. Claimant testified that his mother sent him to his room for 10 to 20 minutes when he got in trouble for leaving the yard and getting distracted. R. 72-73. He testified that he took his medication every day, but that his mother forgot to give him his medication the day of the hearing. R. 69.

Claimant testified that his school suspended him twice because of his behavior. R. 68. He testified that during the first incident, he acted out because some of his classmates were not being nice to him. R. 68-69. During the second incident, he hit his teacher because he was tired and cranky. R. 69. Claimant testified that he knew that his behavior was not "the right thing to do". R. 69.

Claimant testified that he helped with chores around the house, including cleaning his bedroom and the bathroom, doing the dishes, and washing the windows. R. 67-68. Claimant testified that he liked riding his bike. R. 73. Claimant testified that he did not act out of control at home. R. 69. Claimant testified that he did his homework every night with his sister, and that he accidently left some of his homework on the bus. R. 70. He testified that he completed extra assignments to make up for the missing homework. R. 71. Claimant told the ALJ that he got along well with his sister and did not fight with her. R. 73-74.

C. School Records

Claimant attended Whitehead Elementary School in Rockford, Illinois. R. 186. Claimant did not receive special education services. The school did not complete an IEP for Claimant.

The record includes one teacher questionnaire completed in 2008 by Claimant's kindergarten teacher, Kim Williams. R. 186-195. The questionnaire contained 10 categories in the domain of acquiring and using information, 13 categories in attending and completing tasks, and 15 categories in interacting and relating with others. The questionnaire asked the teacher to rank Claimant's functioning in each category on a scale of 1 through 5: 1 indicated no problem; 2 indicated a slight problem; 3 indicated an obvious problem; 4 indicated a serious problem; and 5 indicated a very serious problem. R. 133-136.

The questionnaire showed some problems, primarily in the attending and completing tasks domain. In this domain, Ms. Williams indicated that Claimant had obvious problems in 1 category, slight problems in 4 categories, and no problems in 8 categories. In the interacting and relating to others domain, Ms. Williams noted slight problems in playing cooperatively with others, but no problems in the remaining categories of this domain. Ms. Williams marked "no problems" in all of the other domains. Ms. Williams noted that she knew when Claimant did not take his medication because on those occasions, he had more behavioral problems and issues with focusing. R. 186-195.

Claimant's first grade teacher, Mrs. Coulahan, submitted a third-party correspondence letter dated April 22, 2010. In the letter, Mrs. Coulahan explained that Claimant had severe problems with focusing and that he "shut down", refusing to go to his assigned center or join his reading group. She explained that he was oppositional, would not follow her directions, and started doing whatever activities he wanted to do without asking permission. She estimated that Claimant focused less than 20 percent of the time. She indicated that Claimant's ADHD symptoms were not under control with his daily regime of Risperdal[3] and Metadate CD[4]. However, she indicated that Claimant worked at centers fairly well. R. 238-240.

Claimant's progress reports for the 2009 to 2010 school year showed that during the second trimester, he was meeting expectations in all subjects, he "progressed nicely" from a level "A" to "D" in reading, he showed good effort in his work, he was very verbal and articulate, and he had "really improved". However, in the third trimester, Claimant regressed in reading, language arts, science, and social habits, and was not meeting standards in these areas. The reports noted significant behavioral problems, and advised that Claimant needed improvement in the areas of working and playing well with others, being courteous and cooperative with authority, assuming responsibility for his own actions, and following class rules and procedures. His teacher advised that although Claimant is a "bright and articulate" student, his behavioral problems hampered his academic progress. R. 226-234; 242-252.

The school records also contained discipline and/or suspension forms for seven incidents from August, 2009 through October, 2010 and a Special Education Request for Assistance form dated 10/17/2010.[5] The incident reports describe a pattern of aggressive behavior, including grabbing classmates, kicking and punching his teachers and the principal, threatening to bite, throwing and tearing up papers, rolling chairs, refusing to comply with teachers' orders, leaving the classroom without permission and running through the halls, pounding on his desk, and screaming. Claimant's teachers reported that he would often shut down, not respond to them, and eventually "blow up" and get out of control if he could not have his way. The school suspended Claimant three times during this period for his behavior. R. 227, 231-234, 248-252, 438-442, 443-450.

D. Medical Evidence

Ms. Kline first brought Claimant to a medical professional for his uncontrollable behavior on July 24, 2007 when Claimant was 4 years old. Dr. Joy Deleoz, M.D. examined Claimant at the Crusader Clinic and diagnosed him with hyperactivity and poor concentration. She provided Ms. Kline with a questionnaire and directed her to follow up with another doctor for an attention deficient hyperactivity disorder ("ADHD") evaluation. R. 266.

On June 24, 2008, Claimant underwent a mental health assessment at the Janet Wattles Center in Rockford, Illinois. Tammy McCammant, LCSW/LPHA, Erin Gasim, MAAT/QMPH, and Jim Brown, BS, QMPH, examined Claimant. During the assessment, Ms. Kline reported that Claimant had a history of self-harm, not following directions, hitting others, misbehaving, head banging, hyperactivity, and out-of-control aggression. She also reported that Claimant's father abused her and Claimant emotionally and physically in the past, but he was incarcerated at the time of the examination. Claimant received a global assessment of functioning ("GAF") of 43, indicating serious symptoms in school and social functioning. The examining medical professionals ...


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