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Jones v. Colvin

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

January 17, 2017

MELISSA JONES, o/b/o K.H., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff, Melissa Jones, on behalf of her minor son, K.H., has filed a motion for summary judgment seeking reversal or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying K.H.'s ("KH") application for Supplemental Security Income Disability Benefits ("SSI") (doc. # 14). The Commissioner filed her own motion seeking affirmance of the decision denying benefits (doc. # 15). For the following reasons, we grant Ms. Jones' motion and deny the Commissioner's motion.


         We begin with the procedural history of this case. Ms. Jones applied for SSI on her son's behalf on January 20, 2012, alleging KH became disabled on October 17, 2011 as a result of Attention Deficit Hyperactivity Disorder (ADHD) (R. 18, 75). The application was denied initially on June 5, 2012, and upon reconsideration on August 24, 2012 (R. 72, 79). Upon timely request, a hearing was held before an Administrative Law Judge ("ALJ") on March 20, 2014 (R. 57-68). The ALJ issued an unfavorable decision on June 3, 2014, finding that KH was not disabled (R. 18-35). The Appeals Council denied Ms. Jones' request for review, making the ALJ's ruling the final decision of the Commissioner (R. 1-3). See Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir. 2016).


         We proceed with a summary of the administrative record. Part A briefly sets forth KH's background, followed by his medical and school records. Part B discusses the testimony provided at the hearing before the ALJ, and Part C summarizes the ALJ's written opinion.


         KH was born on June 14, 2005 and lives with his mother, maternal grandmother, and his older brother. KH's father was never married to his mother and does not live with them, but he sees KH regularly.

         The earliest relevant medical or school record is a Report of Behavioral Checklist written by Donna Coleman Scotti, a Chicago Public School ("CPS") psychologist, on October 17, 2011, while KH was attending first grade (R. 206-207), The report was based on: a the results of a Behavior Assessment System for Children, Second Edition ("BASC-2") checklist completed by two of KH's classroom teachers and his mother; review of KH's school records; consultation with KH's classroom teacher; and classroom observation (R. 206). The school psychologist reported that a majority of raters assessed KH as "At-Risk and/or Clinically Significant" on the following Clinical and/or Adaptive Scales: hyperactivity; aggression; attention problems; learning problems; atypicality; withdrawal; social skills; leadership; and functional communication (Id.). The school psychologist opined that these results are "consistent with the characteristics of students who have been diagnosed with ADHD" (Id.).

         The first medical record is dated December 19, 2011, from Ila Shah, M.D. at Cottage Medical Center ("CMC") (R. 192). Dr. Shah noted KH brought in a school report reflecting the school diagnosed KH with ADHD, and stating his behavior was affecting his grades (R. 192-193).[2] Dr. Shah diagnosed KH with ADHD and prescribed him Ritalin 10 milligrams ("mg") in the morning (R. 192).

         On December 20, 2011, representatives from Langston Hughes Elementary School ("LHES") where KH was attending first grade met with Ms. Jones to discuss a Behavior Functioning Analysis ("BFA") and Behavior Intervention Plan ("BIP") (R. 197-203). The BFA began with general observations and baseline data describing with examples that KH did not listen to or follow instructions that were given and was often disruptive to himself and other students in the classroom (R. 199). It further described how KH had participated in bullying and fighting with other students (Id.). The BFA then detailed the triggers for those behaviors, intervention attempts and consequences, expected behavior changes, and planned non-restrictive and restrictive interventions (R. 199-201). The BIP described the plan to help change and intervene when such conduct arises (R. 202-203).

         The BFA also noted certain behavioral strengths, stating KH "is a very charming little boy when he wants to be" and knows the difference between right and wrong and is able to self-correct (R. 199). It further stated that KH is "very sociable" and that "for the most part gets along with everyone and is well liked by the other students" (Id.). KH "can be considered a leader" and his classmates look up to him and follow his lead at times (Id.). The behavior strengths section concluded by noting that with one on one attention, KH is "focused and attentive and is able to complete assignments" (Id.).

         Melissa Jones applied for SSI on KH's behalf on January 20, 2012. KH returned to see Dr. Shah on February 3, 2012. The progress notes list complaints of behavior problems (R. 189). Dr. Shah again diagnosed KH with ADHD, prescribed Ritalin 15 mg, and advised that he receive psychotherapy (Id.). On March 20, 2012, while a first grader at LHES, Ms. Duncan, KH's school case manager, filled out a request for administrative information for the Disability Determination Services ("DDS") (R. 195-196). Ms, Duncan noted that no recent evaluation on KH had been performed and wrote that "[a]t this time [KH] is not being referred for testing" (Id.). She stated that the school had put a behavior plan in place for KH, and attached the plan (R. 196-203). Ms. Duncan reported that KH had repeated first grade and was in regular education classes with no special instruction (R. 195). There is no information in the record explaining why KH repeated first grade.

         On April 9, 2012, Rosetta Oyeneyin, KH's first grade teacher, completed a teacher questionnaire for the DDS stating she had known KH since September 2011 and saw him for about five hours a day for math, science, social studies, and art (R, 210-217). Ms Oyeneyin noted KH's "actual" grade level was first grade and that he was not receiving any special services, but opined that his "current instructional level" was "below level" in reading and math (R. 210). The form asked for a comparison of KH's functioning to that of a same aged child who does not have impairments in the following domains: acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, and caring for himself (R. 211-216). Ms. Oyeneyin concluded KH had no problems moving about and manipulating objects, and the physical well-being domains (R. 214, 216).[3] Evaluating KH's proficiency in acquiring and using information, Ms. Oyeneyin checked that KH had a serious problem in three of ten categories -- reading and comprehending written material, expressing ideas in written form, and applying problem-solving skills in class discussions -- but she did not provide any written details (R. 211).[4]

         In evaluating proficiency in attending and completing tasks, Ms. Oyeneyin determined KH had serious problems in five out of thirteen categories.[5] He rarely finished class assignments due to his inability to read simple words, but he had no trouble with math because KH enjoyed computation and "he usually doesn't have to read it" (R. 212). Considering the interacting and relating with others domain, Ms. Oyeneyin marked that KH had serious problems in seven of thirteen categories (R. 213).[6] Ms. Oyeneyin advised that KH had been written up for behavioral problems several times since kindergarten (Id.). Assessing the "caring for himself domain, Ms. Oyeneyin rated KH with serious problems in four out often categories (R. 215).[7] Ms. Oyeneyin opined that KH's biggest problem was handling his emotional moods; noting that when upset, he sometimes called teachers names, cursed, and hit or pushed other students (Id.).

         On April 19, 2012, Kenneth Levitan, M.D., performed a psychiatric consultative examination of KH on behalf of the DDS (R. 225-227). KH was 6 years old and in the first grade - - general education classes - - at that time (R. 225). Dr. Levitan interviewed KH with his mother present, and asked Ms. Jones for background information, Ms. Jones reported that KH had never been seen by a psychiatrist or counselor for outpatient therapy, but had been seeing a counselor at school for his behavioral problems since November 2011 (Id.). Ms. Jones reported KH was taking Ritalin 10 mg in the morning for the past three months which she said was helpful, but he had not taken his dose the morning of the exam with Dr. Levitan (Id.)[8]She stated that KH gets along with adults, but not with other children (R. 226).

         Dr. Levitan noted that during the examination KH spoke softly and was "reserved, controlled, and matter-of-fact at first, but he became increasingly more animated in a restless and hyperactive way" (R. 225). KH "was constantly moving around as he sat, sometimes slapping himself in the face and sometimes bouncing his head against the [couch] cushions" (R. 226). KH touched the wall above Dr. Levitan's couch as he sat and also frequently sat on the floor rather than on the couch (Id.). KH responded, however, to Dr. Levitan setting verbal limitations on how to act. During the mental status examination, Dr. Levitan reported that he found no looseness of association or flight of ideas in KH's thought process, and that he had difficulty concentrating (R. 227). Dr. Levitan found KH was oriented to person, but not to place or time, and did not respond when asked what city he was in or know the date (Id.). Dr. Levitan opined KH's "judgment seemed questionable at times for his age, " and he "appeared to have an about average to somewhat below average intelligence for his age" (Id.). Dr. Levitan diagnosed KH with ADHD "with behavioral problems" (Id.). He opined KH could perform simple and routine tasks, but would often require adult supervision in order to do so (Id.). He further stated that KH was currently having difficulty handling school pressure and stress, but he could communicate with peers and teachers (Id.). Dr. Levitan found that KH could follow and understand instructions, but could not be relied upon to retain them (Id.).

         There are eleven pages of behavior incident forms from LHES documenting 13 school rule infraction incidents between March and May 2012 (R. 244-252). These incidents ranged from shouting and cursing at a teacher, to walking on top of a desk, to hitting and slapping another student in the face (Id.). On two of the ...

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