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Dean v. Berryhill

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

March 31, 2017

INEKE DEAN, on behalf of A.L.D. a minor, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant

          MEMORANDUM OPINION AND ORDER

          MICHAEL T. MASON United States Magistrate Judge

         Ineke Dean (“Dean”) has filed a motion for summary judgment seeking judicial review of the final decision of the Commissioner for Social Security (“Commissioner”). Dean seeks Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act on behalf of her minor child (“claimant” or “A.L.D.”). The parties consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c), and have filed cross-motions for summary judgment. For the reasons set forth below, Dean's motion for summary judgment is granted in part [18], the Commissioner's motion for summary judgment [26] is denied, and the case is remanded to the Administrative Law Judge (the “ALJ”) for further proceedings consistent with this opinion.

         I. PROCEDURAL HISTORY

         Dean filed this action for SSI on behalf of A.L.D. on January 30, 2012. (R. 61.) She bases her claim on A.L.D.'s Attention Deficit Hyperactivity Disorder (“ADHD”), learning disabilities and speech problems. (R. 69.) She alleges a disability onset date of April 18, 2007. (R. 116.) The claim was initially denied on April 20, 2012. (R. 66.) A request for reconsideration was filed on May 25, 2012, which was denied on October 1, 2012. (R. 70.) Dean filed a request for a hearing on November 8, 2012, and the hearing was held on September 12, 2013. (R. 82, 100.) The ALJ denied her claim on September 24, 2013, and Dean subsequently filed this action. (R. 14-28.)

         II. FACTUAL BACKGROUND

         Claimant was born on April 8, 2007. (R. 61, 116.) He was five years old when he applied for SSI (R. 61-62), but was six years old on the date of the ALJ's decision. (R. 14-23.) Claimant has no work experience or earnings due to his age. (R. 124-28) Claimant lives with his motion. (R. 61-62.)

         A. Medical and Education Evidence

         The administrative records begin with claimant's initial Chicago Public Schools (“CPS”) evaluation from his pre-kindergarten class at George Rogers Clark Elementary School. (R. 152-213.) On September 14, 2010, A.L.D. was three and a half years old. (R. 153.) At Dean's request, Dara Sanders did a social work evaluation addressing A.L.D.'s speech and behavioral issues. (Id.) Ms. Sanders found that claimant had some academic delays and unclear speech, but would benefit from more individual instruction and consistent attendance at school. (R. 154.)

         On November 22, 2010, a meeting with Dean and claimant's teachers resulted in a determination that claimant was eligible for an Individualized Education Plan (“IEP”), which would include special education classes and related services. (R. 155-159.) The report noted that claimant was diagnosed with developmental delays and a speech/language impairment. (R. 160.) He also had articulation problems that adversely impacted his ability to communicate in the classroom. (R. 158.) A cognitive assessment was performed, and claimant earned a Full Scale IQ score of 80. (Id.)

         On November 8, 2010, Diana Hayes, a CPS nurse, conducted an assessment of claimant that included an interview and class observation. (R. 161-62.) Ms. Hayes noted that A.L.D. was healthy, friendly, pleasant, and cooperative, but he had a difficult time focusing and listening to questions long enough to give appropriate answers. (R. 162-63.) She also found that he had reached developmental milestones within normal limits except for his speech delay. (R. 164.) In her classroom observations, she noted that he sat quietly during story time and actively participated in class activities. (Id.)

         In November of 2010, Jada Bell, a speech pathologist, conducted a Speech and Language Assessment. (R. 165-67.) The assessment revealed that there were no health concerns that would impact academic performance. (Id.) Ms. Bell noted that claimant had received early intervention services in speech and developmental therapy, and that his teachers reported concerns in the areas of communication, socialization, and self-help skills. (R. 165.) She observed that claimant's speech was difficult to understand more than 50 percent of the time. (R. 166.) Ms. Bell also administered the Goldman Fristoe Test of Articulation, which revealed that claimant was equivalent to a two or three year old and that he exhibited multiple speech issues affecting his ability to be understood. (Id.) Ms. Bell opined that claimant's communication impairment adversely affects his educational performance and social interactions. (R. 166-67.)

         On October 25, 2010, Jianxiang Yang, a psychologist, conducted a psychological evaluation because A.L.D. was not acting at an appropriate age level. (Id.) An interview with his teachers revealed that claimant was very energetic and active and had delayed development in communication, socialization, and self-help skills. (Id.) Ms. Yang noted that claimant was impulsive and unable to follow simple directions. (R. 177.) Dean reported to Ms. Yang her concerns about claimant's inability to express himself, his speech delays and his behavior. (Id.)

         Ms. Yang administered the Stanford-Binet Intelligence Test and A.L.D. earned an 86 in nonverbal IQ (which is low average range of cognitive functioning), a 76 in verbal IQ (borderline range), and an 80 in full scale IQ (low average range). (R. 178.) These results revealed a significant discrepancy between his verbal and nonverbal reasoning skills. (Id.) Ms. Yang also administered the Vineland Adaptive Behavior Scales - II. (R. 177.) A.L.D.'s scores on this test were all in the low range and showed that his adaptive skills were generally delayed in communication, socialization and self-help skills. (R.178-79.)

         On November 11, 2011, CPS held another IEP meeting with Dean and A.L.D.'s teachers to discuss claimant's developmental delays and speech/language impairment. (R. 180.) At this time, claimant was four years, seven months old and was in pre-kindergarten. (Id.) At the meeting, the teachers discussed that A.L.D had difficulty focusing, he was impulsive and he had difficulty with expressive language and comprehension. (R. 182.) They also discussed recent improvement with his articulation skills, and there were no significant behavioral issues. (R. 182-85.) As part of the IEP report, claimant was evaluated in terms of whether he was functioning at an age appropriate level - he scored a 6 out of 7 on this test. (R. 354.)

         On March 15, 2012, Debra Williams, claimant's special education teacher, completed a Teacher Questionnaire. (R. 168-75.) She noted that claimant had difficulties in the following domains: Acquiring and Using Information, Attending and Completing Tasks, Interacting and Relating with Others, and Caring for Himself. (Id.) In several subcategories for these domains, Ms. Williams noted “obvious” and “serious” problems, especially in Attending and Completing Tasks and Acquiring and Using Information. (Id.) She opined that claimant had a “serious problem” with reading and comprehending written material, expressing ideas in written form and recalling and applying previously learned material. (R. 169.) She also noted an “obvious problem” with comprehending oral instructions, comprehending and doing math problems, providing organized oral explanations or descriptions and learning new material. (Id.) With respect to Attending and Completing Tasks, she indicated that claimant “usually rushes to complete less favored activities, in order to move on to activities he enjoys.” (R. 170.) In the Interacting and Relating with Others domain, Ms. Williams only found that he had a “slight problem” with some of the activities referenced in this domain, such as playing cooperatively with other children, seeking attention appropriately and following rules. (R. 171.)

         On September 9, 2011, Dr. Emily Lovaasen saw claimant for a wellness checkup at the Austin Family Health Center (“AFHC”). (R. 256.) Dr. Lovaasen reported that claimant was healthy and that his mother had concerns about his behavior. (R. 257.) Claimant's next visit to AFHC was on December 1, 2011 and no behavioral issues were reported at that time. (R. 252-55.) He had several follow up visits at AFHC where no health issues were reported but Dean continued to express her concerns about claimant's ADHD, behavioral problems, learning disabilities, and speech issues. (R. 313.) On July 16, 2012, a social worker at AFHC, Gwendolyn Haywood, diagnosed claimant with ADHD. (R. 322-24.) On August 3, 2012, Jill Degan performed a psychiatric evaluation and recommended a prescription of Adderall for claimant's ADHD symptoms. (R. 321.) On March 12, 2013, social worker Marsha Robinet performed a psychological assessment and noted claimant's hyperactivity and impulsive behavior, such as being fidgety and having difficulty waiting his turn. (Id.)

         On November 9, 2012, A.L.D.'s teachers met with his mother again to discuss his progress, his disabilities and his IEP. (R. 332-366.) The IEP stated that A.L.D. should spend half of his time at school in the general education classroom and the other half in special education. (R. 345.) A.L.D.'s teachers also noted that claimant was able to recognize most of the letters, he was able to count up to ten, his math skills were emerging but he has difficulty focusing, he has difficulty sounding out the letters of the alphabet, and he has an overall difficulty with expressive language and comprehension. (R. 334-35.) They also noted that A.L.D. is impulsive, easily distracted, and is often unable to answer comprehension questions correctly. (R. 335.) With respect to communication, the teachers noted that his overall articulation skills had improved and that he demonstrated age-appropriate, intelligible speech but still has some developmental issues. (Id.) They also noted his attention span was very short and he often moves from one activity to another before completing a task. On September 13, 2013, Nora Sund, claimant's special education teacher, completed a Teacher Questionnaire. (R. 406-10.) The questionnaire was divided into sections for the relevant domains. For Acquiring and Using Information, Ms. Sund related that claimant has a difficult time concentrating and listening and requires constant redirection. (R. 406.) In the Attending and Completing Tasks section, Ms. Sund noted that he was easily distracted. (R. 407.) In Interacting and Relating with Others, Ms. Sund reported that claimant had difficulty interacting with students in his regular classes but that there were no issues with classmates in his special education classes. (R. 408.) Ms. Sund also reported that she understands claimant only 50% of the time the first time he says something. (Id.) She also noted that he has no issues or problems in the Moving and Manipulating Objects domain. (R. 409.) Lastly, in the Caring for Himself section, Ms. Sund reported that claimant has serious problems with handling frustration and being patient, and with using good judgment regarding personal safety or knowing when to ask for help. (Id.) He had no problem caring for physical needs such as dressing, eating or personal hygiene. (Id.)

         B. State Agency Examiners

         After Ms. Dean applied for SSI, the Bureau of Disability Determination Services recommended a Psychological and Formal Mental Status evaluation, and a Speech and Language evaluation. (R. 268-80.) Dr. Harvey Friedson conducted an evaluation on March 17, 2012. (R. 268-73.) Dr. Friedson administered the Wechsler Preschool and Primary Scale of Intelligence test, which revealed that claimant was testing within the borderline range with the following scores: a Verbal IQ of 85, Performance IQ of 67, and Full Scale IQ at 73. (R. 270-71.) Dr. Friedson also found that claimant did have articulation issues but he could understand him 90% of the time. ...


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