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Stevenson v. Colvin

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

May 19, 2015

MICHELE STEVENSON o/b/o D.S., Plaintiff,
CAROLYN COLVIN, Acting Commissioner Judge Thomas M. Durkin of Social Security, Defendant.


THOMAS M. DURKIN, District Judge.

Michele Stevenson brings this action pursuant to 42 U.S.C. § 405(g), for judicial review of the final decision of the Commissioner of Social Security denying Stevenson's claim for Supplemental Security Income benefits ("SSI") on behalf of her son, D.S., who is a minor. See R. 9. The parties have filed cross-motions for summary judgment. R. 12; R. 20. For the following reasons, Stevenson's motion is denied and the Defendant's motion is granted.


I. Determining Childhood Disability

In order for a child to qualify as disabled and thus be eligible for SSI the child must have "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i). The regulations require an Administrative Law Judge ("ALJ") to address three factors when determining whether a child is disabled. See 20 C.F.R. § 416.924(a). First, the ALJ must consider whether the child is engaged in "substantial gainful activity." Id. If the child is not engaged in substantial gainful activity the ALJ must consider the child's mental and physical impairments to see if he has an impairment or combination of impairments that is severe. Id. If the ALJ finds that the impairment is severe, she must review the claim further to determine whether the impairment "meets, medically equals, or functionally equals the listings" at 20 C.F.R. pt. 404, subpt. P, App. 1., which is a list of disabilities that qualify for SSI. Id.

In order to functionally equal a "listing, " the impairment must be of a "listing-level" severity, meaning it "must result in marked' limitations in two domains of functioning or an extreme' limitation in one domain." 20 C.F.R. § 416.926a(a). The six domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A marked limitation is found when the child's impairment "interferes seriously with [the child's] ability to independently initiate, sustain, or complete activities" or when an impairment is "more than moderate" but "less than extreme." 20 C.F.R. § 416.926a(e)(2)(i). An extreme limitation is found when the impairment "interferes very seriously with [the child's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(3)(i). In this phase the ALJ must "consider the combined effect" of all medically determinable impairments, even those that are not severe. 20 C.F.R. §§ 416.923; 416.924a(b)(4); 416.926a(a).

II. D.S.'s History

D.S. was born on December 6, 1997. R. 11-1 at 49 (AR 45), 78 (AR 75). He has been diagnosed with a number of developmental, psychological, and learning impairments including attention deficit hyperactivity disorder ("ADHD"), anxiety disorder, major depressive disorder, pervasive developmental disorder, Asperger's Syndrome, autism spectrum disorder, and auditory processing disorder. R. 11-1 at 27 (AR 23). D.S. has received treatment for these disorders such as medication and psychotherapy beginning in at least 2006. R. 11-1 at 27 (AR 23); see R. 13 at 3.

D.S. has lived in several different places due to his father being in the military. R. 11-1 at 27 (AR 23). D.S.'s family moved from Germany to Grand Forks air base in North Dakota in the middle of 2007 when D.S. was in third grade. Id. at 283 (AR 279). His parents separated in 2010 and his father was re-stationed to Maryland in November 2010 with the rest of the family moving to Chicago on December 1, 2010. Id. at 313 (AR 309), 315 (AR 311). In addition to his mother, D.S. lives with his younger sister and his grandmother. Id. at 284 (AR 280).

A. Medical History

D.S. has a long history of medical treatment for mental, developmental, and physical issues. He was first diagnosed with ADHD at the age of five and at the age of ten he underwent a psychiatric evaluation for reassessment of ADHD or autism with psychiatrist, Dr. Ellen Feldman. M.D. Id. at 283 (AR 279), 469 (AR 465). The evaluation was prompted by D.S.'s difficulty at school and because he was inattentive and distractible. Id. at 283 (AR 279). At the time he was also having significant social problems, such as trouble with temper control and easily becoming frustrated. Id. Dr. Feldman tried several medications with D.S. but had difficulty identifying a medication that did not cause effects. Id. at 286-91 (AR 282-87).

At an October 2008 visit, however, Dr. Feldman noted that D.S. was no longer having trouble in school. Id. at 287 (AR 283). In 2009, D.S. began taking Prozac and showed improvement. Id. at 289 (AR 285). Between April and November 2010, D.S. was also treated by Certified Family Nurse Practitioner Jean Gullicks, Ph.D., who noted that D.S. "is doing better when he is on [medication]." Id. at 313 (AR 309); see also id. at 313-30 (AR 309-26).

While living in North Dakota from 2008 to 2010, D.S. was also treated by psychologist, Dr. Allison Tait, Ph.D. Id. at 460-61 (AR 456-57). Dr. Tait treated D.S. for ADHD, anxiety, and depression but she did not diagnose him with Asperger's Syndrome. Id. In a letter dated January 10, 2012, she noted that D.S. had significant learning difficulties, had been on an Individualized Education Plan for special education services ("IEP"), had poor math and reading skills, required adult supervision to complete most tasks in school, and had failed many classes in school despite having significant help. Id. She also discussed the fact that he was vulnerable to peer influences and had "extreme difficulty with maintaining concentration and focus." Id. She emphasized that he required a lot of adult supervision to complete school tasks and likely required it at home as well, and that D.S. had "failed many classes in school." Id. Dr. Tait's letter did not offer an opinion regarding the extent of D.S.'s limitations with respect to the Social Security regulation's definition of disability, and she noted that she had "not seen [D.S.] for a year." Id.

In April 2011, after moving to Chicago, D.S. began seeing Dr. Therese (Terry) Finn, a registered clinical psychologist, every three weeks for behavioral counseling. R. 11-1 at 191 (AR 187), 395-97 (AR 391-93). Dr. Finn submitted a letter to the SSI Committee on December 28, 2011 stating that D.S. had been diagnosed with ADHD, anxiety disorder, and Asperger Syndrome. Id. at 394 (AR 391). She also noted that he had been in special education since preschool and had an IEP at school to accommodate his disabilities. Id. Dr. Finn wrote that "[D.S.] needs significant support both socially and emotionally at school, as well as the community." Id.

In June 2011, D.S. also began seeing Dr. Harcharan Sandhu, a psychiatrist. R. 11-1 at 147 (AR 143), 383 (AR 379). Dr. Sandhu saw D.S. once every two months and diagnosed him with pervasive developmental disorder, a learning disorder, and major depressive disorder. Id. at 383 (AR 379), 387 (AR 383). At the time of D.S.'s application for SSI he was taking Prozac for depression and Vyvanse for ADHD and anxiety as prescribed by Dr. Sandhu. Id. at 148 (AR 144). Dr. Sandhu submitted a report on October 4, 2011 to the Illinois Department of Human Resources in connection with Stevenson's application for SSI indicating he had observed a number of behaviors in D.S. supporting a diagnosis of ADHD, and potentially a diagnosis of oppositional defiant disorder and childhood depression. Id. at 383-89 (AR 379-85). On January 5, 2012, Dr. Sandhu submitted another letter in connection with Stevenson's application stating that D.S. had been diagnosed with pervasive developmental disorder and then stating "[h]e is totally disabled. He is a special needs child[.] He has severe impairment in his social and academic functioning." Id. at 449 (AR 445).

B. Educational History

In addition to his medical treatment, D.S. has received special education services in school for many years. These services have included special education instruction in a classroom setting with more than one teacher, special testing accommodations, and behavioral counseling. Id. at 219-23 (AR 215-19). In January and February of 2011, when D.S. was in seventh grade, he underwent a speech and language re-evaluation performed by his school speech and language pathologist, Elizabeth Cichocki. Id. at 168-71 (AR 164-67). Cichocki noted that D.S. was friendly and cooperative during the evaluation periods and asked several reasonable questions as to why he was receiving speech therapy. Id. at 168 (AR 164). With one exception his scores fell within the average range indicating D.S. had average expressive language skills and below average receptive language skills. Id. at 169 (AR 165), 171 (AR 167). Speech therapy was recommended on this basis. Id.

In 2010, D.S. was placed in regular education classes but received 60 minutes of speech therapy and 30 minutes of counseling with a social worker a week. Id. at 154 (AR 150). In April 2011, when he was thirteen years old, D.S. underwent a psychological assessment for the school district. Id. at 402 (AR 398). D.S. received average scores for his IQ, verbal comprehension, perceptual reasoning, and processing speed. Id. at 403-04 (AR 399-400). These scores indicated that D.S.'s levels of scholastic aptitude had matured to overall levels "typical" for his age group. Id. at 403 (AR 399), 406 (AR 402). D.S. also scored in the average range with regard to working memory and social and emotional functioning. R. 11-1 at 404 (AR 400), 409 (AR 405). Based on the results of the assessment it was recommended that D.S. continue his IEP and continue his outpatient consultation and treatment. Id. at 412 (AR 408).

In a report submitted on September 29, 2011 to the Social Security Administration, staff at D.S.'s school reported that D.S. had a speech and language impairment, emotion disturbance/behavior disorder, and Asperger Syndrome. Id. at 154 (AR 150). One teacher noted that D.S. had some problems in the fields of acquiring and using information and attending and completing tasks. Id. at 156-58 (AR 152-54). This report indicated that while D.S. could work independently, he needed assistance at times to stay focused and could be distractible in class. Id. No depressive symptoms or behaviors were noted. Id. at 161 (AR 157). His speech therapist noted no severe speech issues, id. at 164-67 (AR 160-63), and stated that he was making "fair" progress at a "typical" rate. Id. at 167 (AR 163).

An additional report from D.S.'s school on January 13, 2012, discussed his IEP and noted that he had "progressed with his goals of using strategies to help remember assignments, tasks, and instructions." R. 11-1 at 213 (AR 209). The report noted, however, that D.S. had a "difficult time following and understanding multistep directions and correctly recalling information." Id. at 216 (AR 212). He received special accommodations by having additional time to complete assignments and tests, taking his tests in a classroom with fewer students, and being seated at the front of the class. Id. at 219 (AR 215), 228-30 (AR 223-26). In 2012, while in eighth grade, D.S. was receiving 30 minutes of speech therapy and 45 minutes of social work services a week. Id. at 221 (AR 217). He was in general education environments for 89.33% of the total school day, and in special education instruction for 12% of his classroom time. Id.

Early in the 2011-12 school year, D.S. "was not passing the majority of his classes." R. 11-1 at 276 (AR 272). But later that school year, by April 2012, D.S. was "doing well in school." Id. That month, D.S. had an auditory processing exam. The audiologist who examined D.S. recommended the following: (1) D.S. should receive preferential seating in the classroom; (2) D.S. should be spoken to "clearly, slowly, and distinctly in short simple sentences"; (3) instructions given to D.S. should be "relatively short"; (4) "[u]se of an ear level or soundfield FM system" to allow D.S. "to more easily concentrate on the teacher's voice"; and (5) "[t]raining focus[ed] on auditory processing and reading." Id. at 470 (AR 466). By December 2012, D.S. was in mostly mainstream classes in high school, received no grades below a C, and was noted to be "personable" and "polite" at school. Id. at 27 (AR 23), 50 (AR 46), 254 (AR 250).

III. Application for Social Security Income Benefits

On August 12, 2011, Stevenson applied for SSI for D.S. R. 11-1 at 78 (AR 74), 144 (AR 140). The application for SSI alleged that D.S. had been disabled due to Asperger's Syndrome, anxiety disorder, depression and asthma since October 1, 2004. Id. at 83 (AR 79). The claim was denied initially on January 27, 2012, and again upon administrative reconsideration on June 26, 2012. Id. at 80 (AR 76), 84 (AR 80).

Prior to the June 26, 2012 decision upon administrative reconsideration, D.S.'s records were evaluated by consultants for the Social Security Administration. An evaluation signed by Dr. Victoria Dow on June 22, 2012; speech and language pathologist Carol Varney on May 25, 2012; and Dr. Elizabeth Kuester on June 12, 2012, found that D.S.'s "impairment or combination of impairments is severe, but does not meet, medically equal, or functionally equal the listings." R. 11-1 at 474-75 (AR 470-71). In assessing the "domains" relevant to a disability determination under the Social Security regulations, the evaluators found that D.S. had "less than marked" limitation in the domains of "acquiring and using information, " "attending and completing tasks, " and "interacting and relating with others." Id. at 476 (AR 472). In finding that D.S.'s limitations are "less than marked" in these domains, the evaluators noted that D.S. "can work independently but does need assistance to stay on task at times, " and that he has "borderline to low average intellectual functioning and significant learning difficulties as a result." Id. The evaluators also noted that "medication does improve his condition, " his "speech is without error, " and his "[v]ocal quality and fluency were intact." Id. The evaluators also found that D.S. had "no limitation" in the domains of "moving about and manipulating objects, " "caring for yourself, " and "health and physical well-being." Id. at 477 (AR 473).

A. The Administrative Hearing

Stevenson filed a timely request for a hearing on July 2, 2012. R. 13 at 2. On December 17, 2012, an oral hearing was held before ALJ Karen Sayon (the "ALJ"). R. 11-1 at 41 (AR 37). Stevenson was not represented by counsel at the hearing. Id. at 43-45 (AR 39-41). The ALJ informed Stevenson of her right to an attorney, what the attorney would do for her, the option of free legal services, and the option to request a continuance so she might obtain counsel. Id. at 44-45 (AR 40-41). Stevenson, however chose to proceed with the hearing pro se. Id. at 45 (AR 41). Stevenson, D.S., and Dr. Finn testified at the hearing. R. 11-1 at 22 (AR 18), 49-77 (AR 45-73).

1. D.S.'s Testimony

D.S. testified that he was 15 years old and in ninth grade. Id. at 49 (AR 45). He stated that he had "been struggling" with his school work but that his grades were "good" and "come out really okay." Id. at 49 (AR 45). When the ALJ inquired as to the cause of his struggles, D.S. testified that it was because his classes were "real hard, " and again stated that his grades were pretty good, mostly Bs and Cs. Id. at 50 (AR 46). While he testified that he was not receiving the special help he was supposed to, he stated that he sat in the front of his classes and took tests with a smaller group of students. Id. at 50 (AR 46), 55 (AR 51).

D.S. also testified that he received homework, he "sometimes" had problems doing his algebra work, and when he had trouble he would get help from his mom but otherwise did his homework himself. Id. at 54 (AR 50). When asked whether he had any problems focusing or concentrating on his homework D.S. stated "[s]ometimes, because it sometimes can be too hard." Id. He informed the ALJ that he has never been held back and that he had one friend in the neighborhood who he played video games with. Id. at 54-55 (AR 50-51).

D.S. testified that he did not talk to many kids at his school "because all they are is trouble, " but he liked to play basketball and did not have a problem getting along with the other kids on the court. Id. at 51 (AR 47), 52 (AR 48). While he did chores at home his mother often had to remind him to complete the chores, which at times would make him mad. Id. D.S. also ...

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