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Ramirez ex rel. G.R. v. Colvin

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

September 12, 2016

DORA RAMIREZ, ex rel. G.R., a minor, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          HON. MARIA VALDEZ United States Magistrate Judge.

         Dora Ramirez, [1] on behalf of her son, G.R., filed this action seeking reversal of the final decision of the Commissioner of Social Security denying her son's application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1381 et seq. 42 U.S.C. § 1382c(a)(3)(A). The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, Plaintiff's request to reverse the Commissioner's decision is granted, and the case is remanded for further proceedings consistent with this opinion.



         On April 26, 2012, Dora Ramirez filed an application for SSI on behalf of her minor child, G.R., who was born on June 27, 2003, alleging disability as of March 1, 2009. (R. 213-18.) The application was denied initially and on reconsideration, after which Ramirez filed a timely request for a hearing. (R. 99-101.) On September 25, 2013, G.R., represented by counsel, testified at a hearing before an Administrative Law Judge (“ALJ”). (R. 40-67.) The ALJ also heard testimony from G.R.'s mother, Mrs. Ramirez. (Id.)

         The ALJ denied G.R.'s request for benefits on January 29, 2014. (R. 16-34.) Applying the three-step sequential evaluation process, the ALJ found, at step one, that G.R. had not engaged in substantial gainful activity since April 12, 2012, [2] the application date. (R. 25.) At step two, the ALJ found that G.R.'s attention deficit hyperactivity disorder (“ADHD”) and anxiety disorder were severe impairments. (Id.) At step three, the ALJ determined that G.R. did not have an impairment or combination of impairments that met, medically equaled, or functionally equaled the severity of any of the listings. (R. 25-26.) Accordingly, the ALJ concluded that G.R. was not disabled, as defined by the Social Security Act, since April 12, 2012. (R. 33-34.)


         G.R. was born on June 27, 2003, and was eight years old at the time of his application. (R. 204.) G.R.'s extreme behavioral issues were first documented in 2009. (R. 404.) On March 27, 2009, a three-year re-evaluation of G.R.'s Individualized Education Program (“IEP”) was held with G.R.'s special education teacher, school psychologist, occupational therapists, speech and language pathologist, and educational consultant. (R. 515-38.) The IEP conference revealed that G.R. was extremely distractible during short testing with the educational consultant, and that he was impulsive and not focused. (R. 516.) Directions had to be repeated two to three times to G.R. in order to elicit a response. (Id.) Throughout testing, G.R. was off task ninety percent of the time. (Id.) G.R. talked and sang to himself, wiggled in his chair, pounded his test booklet, looked around the room, and did not make eye contact with the consultant. (R. 516.) According to Ms. Brennan, G.R.'s classroom teacher, G.R. was a bright and sweet student that was interested in schoolwork and performing well academically. (R. 518.) However, Ms. Brennan was concerned because G.R. seemed to have difficulty slowing himself down and paying attention in class. (Id.) Ms. Brennan also reported that G.R. often required having directions repeated, was easily distracted, began assignments before understanding the task, fidgeted often, made unnecessary comments/noises, and walked around the classroom at inappropriate times. (Id.)

         Because teacher reports and examiner observations suggested attention concerns, both G.R.'s teacher and mother were asked to rate his inattentiveness and hyperactivity/impulsivity using the Attention Deficit Disorders Evaluation Scale - Third Addition. (Id.) On this scale, to rule out ADHD in a school or home setting, scores must be above seven for both inattentiveness and hyperactivity/impulsivity. (Id.) G.R.'s teacher and mother rated his inattention at scores of three and two, respectively; and both rated his hyperactivity/impulsivity at a score of two, suggesting G.R.'s inattentiveness and hyperactivity in both settings was significant. (Id.) Specifically, G.R.'s teacher noted that G.R. blurted out answers, fidgeted during independent activities, did not wait his turn or stay on task during group activities, and left his seat often. (Id.) G.R.'s mother noted that he was very active at home, jumped from activity to activity, and often did not have the patience to wait for his turn or for instructions. (Id.)

         Out of concern, G.R.'s mother sought help from G.R.'s primary care pediatrician, Dr. Joaquin Lopez, M.D. (R. 514.) On April 3, 2009, Dr. Lopez diagnosed G.R. with ADHD. (Id.) G.R. was referred to a psychiatrist and was to begin treatment with Dr. Mohammed Hamsi, M.D. in June of 2009. (R. 400.) In August of 2010, G.R. began therapy. (R. 404-11.) He was diagnosed with ADHD, sibling relational problems, and academic difficulties. (R. 410.) Subsequently, G.R. was referred for a follow-up psychiatric evaluation and in September of 2010, psychiatrist Dr. Marta Banegas, M.D., prescribed Concerta.[3] (R. 402-03.) On February 4, 2011, therapist Miriam Rosales completed a Mental Health Assessment Review (“MHAR”). (R. 436-39.) Ms. Rosales noted that G.R.'s mother reported that G.R. had made some improvement and was less aggressive; however, G.R. still engaged in fantasy play and had difficulty relating to others. (R. 436.) G.R. isolated himself, kept things bottled inside because he feared getting in trouble, and was hyperactive and impulsive. (Id.) G.R also had difficulty getting along with his baby brother. (Id.) Further, he would voluntarily soil himself because he would often wait until the last minute to use the restroom. (Id.) G.R. was assigned a Global Assessment of Functioning[4] (“GAF”) score of 56, and was further diagnosed with a learning disorder. (R. 438.) On August 5, 2011, Ms. Rosales completed a subsequent MHAR. (R. 432-35.) Ms. Rosales noted that G.R.'s mother reported that G.R. had made improvements and was less impulsive and hyperactive; however, G.R. continued to have difficulties getting along with his siblings. (R. 432.) G.R. occasionally would hit his baby brother and had difficulty controlling his anger. (Id.) G.R. was also highly anxious and had difficulty sleeping at night. (Id.) He was worried about starting school and whether or not he was going to be able to see his friends. (Id.) He was assigned a GAF score of 58. (R. 434.)

         A February 23, 2010 IEP revealed that G.R. had transitioned well from developmental kindergarten to a general first grade classroom and his educational achievement showed general improvement. (R. 756-57.) However, G.R. still had difficulty maintaining necessary levels of attention across settings. (R. 766.) He required assistance and one-on-one support to help him understand directions, organize materials and space in the classroom, and progress in his learning. (Id.) A subsequent April 8, 2011 IEP revealed that G.R. was being treated effectively with Adderall XI[5] once per day. (R. 615.) However, G.R. had difficulty managing anxiety about out-of-the ordinary situations, such as classroom holidays or birthday celebrations. (R. 618.) During those times, he would shut down, not participate, and was not able to talk about being upset. (Id.) He also had recently experienced an anxiety attack at school. (Id.) A December 16, 2011 IEP revealed that G.R. continued to have behavioral issues. (R. 378-89.) G.R. was observed in his general education classroom to be on task ninety-two percent of the interval samples, compared to ninety-seven percent of his male peers. (R. 381.) He appeared to be prepared, attentive, eager to participate in classroom discussions, and raised his hand to offer answers. (Id.) However at times, he was a bit restless and displayed frequent motor activity by squirming in his seat, tapping his feet, and being disruptive to other students by asking them to pull his finger and making noises with his mouth. (Id.) On January 26, 2012, Ms. Rosales completed another MHAR. (R. 452-53.) Ms. Rosales indicated that G.R. continued to exhibit irritability and continued to have difficulties in managing his anger. (R. 453.) He was assigned a GAF score of sixty. (Id.)

         On May 11, 2012, G.R.'s teacher, Ms. Amy Chyzy, completed a Teacher Questionnaire. (R. 261-68.) Ms. Chyzy indicated she had taught G.R. in all subjects for about six hours per day for eight months. (R. 261.) In regards to Attending and Completing Tasks, Ms. Chyzy indicated that G.R. had slight problems changing from one activity to another without being disruptive, completing class/homework assignments, completing work accurately without careless mistakes, working at reasonable pace/finishing on time; and obvious problems organizing things or school materials and working without distracting himself or others. (R. 263.) Ms. Chyzy noted that when G.R. was upset, he would shut down, stayed too angry to work, and needed time to calm down. (Id.) In regards to Interacting and Relating Well With Others, Ms. Chyzy indicated that G.R. had slight problems taking turns in a conversation, interpreting meaningful facial expression, body language, hints or sarcasm; an obvious problem expressing anger appropriately; and a very serious problem using adequate vocabulary and grammar to express thoughts/ideas in general everyday conversation. (R. 264.) Ms. Chyzy noted that G.R. often needed to sit away from other students and calm down, and sometimes needed to leave the classroom with the social worker. (R. 264). Ms. Chyzy also noted that G.R. yelled out when he was angry, stayed angry for long periods, and refused to explain what was wrong until given a lot of time. (Id.)

         In the area of Moving About and Manipulating Objects, Ms. Chyzy observed no problems in that domain. (R. 265.) With regard to Caring for Himself, Ms. Chyzy indicated that G.R. had a slight problem responding appropriately to changes in own mood; and obvious problems in handling frustration appropriately, and identifying and appropriately asserting emotional needs. (R. 266.) Ms. Chyzy noted that G.R. knew when he needed to calm down but did not express himself, and that she did not know how to help him when she did not know what was wrong. (Id.) In regard to Health and Physical Well-Being, Ms. Chyzy noted that G.R. did better if he was holding or pushing something and it seemed to help calm him down. (R. 267.)

         At a consultative psychiatric examination on June 21, 2012, psychiatrist Dr. Ana A. Gil, M.D., S.C., diagnosed G.R. with ADHD and Separation Anxiety Disorder. (R. 460.) Dr. Gil noted that G.R. had a poor attention span, was hyper-talkative and hyperactive, had a history of anxiety symptoms, completing tasks, and clumsiness, had difficulty waiting for his turn in lines and games, sleeping at night, frequently interrupted others, and a history of crying spells. (R. 457, 459.) G.R. also had been suspended on one occasion for fighting with another child at school. (R. 457.) He felt extremely anxious in unfamiliar situations and frequently clung to his mother, which was evident during the exam. (Id.) G.R. also had severe anxiety when separated from his mother. (R. 459.) During the mental status examination, G.R. had moderate psychomotor agitation, was restless, and would frequently interrupt Dr. Gil. (R. 460.) He had poor attention span and Dr. Gil had to repeat questions to him. (Id.)

         On July 5, 2012, state agency psychiatrist, Dr. Terry A. Travis, M.D., completed a consultative evaluation. (R. 70-74.) Dr. Travis opined that G.R. had a less than marked limitation in Interacting and Relating with Others, a marked limitation in Attending and Completing Tasks, no limitation in Acquiring and Using Information, Moving and Manipulating Objects, Caring for Oneself, and no limitation in Health and Physical Well-Being. (R. 81-82.)

         On July 24, 2012, Ms. Rosales completed another MHAR. (R. 464-65.) G.R. presented with anxiety and irritability, and was more hyperactive than usual. (R. 464.) He also expressed more anxiety the past few sessions and worried about his well-being and family. (R. 464-65.) G.R. was assigned a had a GAF score of fifty-five. (R. 465.) On August 9, 2012, Dr. Banegas completed a follow-up psychiatric evaluation. (R. 489-91.) Dr. Banegas noted that G.R.'s social emotional problems had increased, and that G.R. had one episode where he spoke about wishes of death. (R. 488.) G.R. also told his peer he was going to die and ask “God” to cut him into pieces because he hated him. (Id.) G.R. appeared anxious, self-conscious, was unable to socialize at his age level with peers, and did not understand social cues. (Id.) During his mental status examination, he was alert and oriented times three. (Id.) He was cooperative, though restless anxious and when the topic of conversation raised his anxiety, he would become frustrated and get up from his chair and pace around the office or at times, stand by the door quietly. (Id.) Dr. Banegas also noted that G.R. was ...

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