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Moore v. Colvin

United States District Court, N.D. Illinois, Eastern Division

October 14, 2014

TWRONDA MOORE for her minor child, T.P., Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

JEFFERY COLE, Magistrate Judge.

Twronda Moore seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her daughter T.P.'s application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). 42 U.S.C. § 1382c(a)(3)(A). Ms. Moore asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.

PROCEDURAL HISTORY

Ms. Moore applied for SSI on behalf of T.P. on July 1, 2009, alleging that she had become disabled on August 1, 2007. (Administrative Record ("R.") 198). Her application was denied initially and upon reconsideration. (R. 130-138, 143-147). Ms. Moore continued pursuit of her claim by filing a timely request for a hearing.

An administrative law judge ("ALJ") convened a hearing on January 4, 2011, at which Ms. Moore and her daughter, represented by counsel, appeared and testified. In addition, Milton Schwartz appeared and testified as a vocational expert. (R. 48-129). On July 29, 2012, the ALJ issued a decision finding that T.J. was not disabled because she had no limitation in acquiring and using information, less than a marked limitation in attending and completing tasks, less than a marked limitation in interacting with others, no limitation in moving about and manipulating objects, a marked limitation in caring for herself, and less than a marked limitation in health and physical well-being. (R. 19-43). The ALJ's decision then became the final decision of the Commissioner when the Appeals Council denied Ms. Moore's request for review of on October 19, 2012. (R. 1-6). See 20 C.F.R. §§ 404.955; 404.981. Ms. Moore has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II.

THE EVIDENCE OF RECORD

A.

Medical and School Reports

T.P. was six years old at the time of the ALJ's decision, but she had already exhibited a record of behavior that ranged from disruptive to violent and dangerous. In 2008, when she was three, she attended the Catholic Charities Diocese of Joliet preschool. In just eight months, school records reflect that T.P. was disruptive in class ( see, e.g., R. 259, 266, 270, 271-4, 281, 313), oppositional with her teachers ( see, e.g., R. 262-3, 270, 281, 310, 435, 440), and physically and verbally aggressive with her peers and teachers ( see, e.g., R259, 262-3, 264-5, 266, 271-4, 277-80, 281, 301-7, 308, 311-2). During this time, T.P. also would put small items in her mouth, climb on furniture and jump off, play in the toilet, eat soap and playdough, and run out of the classroom. (R. 262-3, 266, 275-6, 277, 277-80, 440). Her teachers reported that she required one-on-one attention throughout the day for her safety and the safety of others, and that she was "hyper" and compulsive throughout the day, refusing to participate in group activities and requiring removal from the class for safety reasons as well as her various forms of disruptive behavior. (R. 258, 256-7).

On March 5, 2008, Brigance testing indicated that T.P. could only play or watch television for one to five minutes before losing interest, did not play with other children for very long or very well, did not have a best friend, did not seem to know what is good behavior and what is not in regard to herself, did not seem concerned when a playmate is hurt or try to avoid hurting a playmate, did not deal with losing games well and, overall, caused concern in both her behavior and getting along with others. (R. 433). On April 3, 2008, a classroom observer attended T.P.'s classroom, and noted her to have psychomotor agitation, inattention, hyperactivity, and impulsivity that met the diagnostic criteria for both attention-deficit/hyperactivity disorder ("ADHD") and oppositional defiant disorder ("ODD")1 (R435-6). On July 8, 2008, another observer reported that T.P. displayed extreme difficulty with class participation requiring one-on-one supervision and ongoing restraint to ensure everyone's safety, as she was spitting, kicking, and screaming (R440-41).

On April 21, 2009, T.P. underwent an initial mental health assessment with Will County Health Department. (R. 340-54). She was described as angry, hostile, and irritable (R. 342), and was noted to have frequent oppositional behaviors, impulsivity, hyperactivity, some depression and anxiety and anger issues, and it was very difficult for her to pay attention. (R. 346, 351-54). She was cruel to the family's pet dog, hitting it or pulling its tail. (R. 352). She acted aggressively toward teachers. (R. 353). T.P. was initially diagnosed with an adjustment disorder and individual therapy was started in May 2009. (R. 353, 354, 363).

Dr. Troupe performed a mental status examination at that time and diagnosed ADHD and a conduct disorder. He started T.P. on 5mg of Adderall. (R. 363-64). T.P. continued to see Dr. Troupe about twice a month. On June 23, 2009, it was noted that the beneficial effects of her medication only lasted about three hours (R. 355-62, 401-12), and so the Adderall was increased. (R. 405-06). T.P. was stable for a month or two. (R. 359-60). But, in September 2009, she was "still overactive" and the school recommended that her medication be adjusted because once again, it was not working. (R. 358, 405). T.P. appeared to stabilize with her new medication regimen through January 2010. (R. 401-03).

In September 2009, T.P. underwent a psychological consultative examination ("CE") that the Social Security Administration arranged. Glen Wurglitz, Psy.D., diagnosed ADHD and ODD. (R. 383-86). Dr. Wurglitz noted that T.P. was unable to sustain focused concentration throughout the mental status examination, getting up from her seat and trying to touch his head, rocking in her chair, and talking incessantly. (R. 385). She required constant redirection, was unable to repeat more than three digits forward, and was completely unable to do them backwards, getting off task asking Dr. Wurglitz all sorts of questions about his office. (R. 385-86).

On September 22, 2009, a non-examining State agency reviewing psychologist, Thomas Low, Ph.D., completed a Childhood Disability Evaluation Form ("CDEF"). He felt that T.P. had less than marked limitations in attending and completing tasks and interacting and relating with others; she had no limitations at all in acquiring and using information, moving about and manipulating objects, or caring for herself. (R. 387-92). On January 22, 2010, another non-examining reviewer, Terry Travis, M.D., completed another CDEF, and found that T.P.'s only area of difficulty was a less than marked limitation in attending and completing tasks. (R. 393-98).

From March 26, 2010, through June 16, 2010, T.P. saw Dr. Troupe for her psychiatric therapy sessions two times and a therapist six times (R423-31). On April 17, 2010, Dr. Troupe increased the Adderall dosage again. (R. 430). From June 12, 2010, through January 18, 2011, Dr. Troupe, nurses, and therapists, noted a sad mood, bed-wetting, impulsivity, inattention, and oppositional behaviors (R479-502). Despite the Adderall, T.P. continued to have behavioral problems at school. On September 28, 2009, she tried to bite two of her teachers when she did not want to sit for story time. (R. 321). On December 8, 2009, one of T.P.'s teachers detailed T.P.'s oppositional behavior in a letter to her mother, explaining that T.P. would tell her teachers "no" or do the exact opposite when given instructions (R. 326). An October 28, 2009, Developmental Progress Report from her ...


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