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Schartz v. Berryhill

United States District Court, C.D. Illinois, Springfield Division

November 1, 2017

TERA LYNN SCHARTZ, Petitioner,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          Richard Mills, United States District Judge.

         This is action for review - - pursuant to 42 U.S.C. § 405(g) - - of the denial of the Plaintiff's claims for supplemental security income and disability insurance benefits.

         Pending are the Plaintiff's Motion for Summary Judgment and the Defendant's Motion for Summary Affirmance.

         For the reasons that follow, the Court concludes that the Commissioner's decision is not supported by substantial evidence.

         I. INTRODUCTION

         Plaintiff Tera Lynn Schartz was born in 1993. In late 2011, at the age of 18 years old, the Plaintiff made informal applications for supplemental security income and disability insurance benefits, alleging she became disabled on January 1, 2011, when she was 17, due to a learning disability and ADHD. Her only past relevant work was for two days at “Paulette's Food Service.”

         The Plaintiff's applications were denied initially and on reconsideration. She requested a hearing, which was held before Administrative Law Judge Barbara J. Welsch on January 28, 2014. The Plaintiff was represented by counsel and testified at the hearing. In a Decision dated February 27, 2014, the ALJ denied the claim. The Appeals Council declined review of the ALJ's Decision. The Plaintiff timely filed this action.

         II. BACKGROUND

         Documentary Evidence

         The Plaintiff alleges she has intellectual deficits which have been measured throughout her formative years on a number of occasions. On February 22, 2002, the Plaintiff's treating psychologist, Michael Trieger, Psy. D., administered a Weschler Intelligence Scale for Children-III (WISC-III), an IQ test. She scored a verbal IQ of 75, a performance IQ of 69, and a full scale IQ of 70.

         On February 12, 2014, Dr. Trieger again evaluated the Plaintiff for mental status and levels of intellectual functioning. He noted she had received special education for much of her schooling. She finished cosmetology school, but received a number of accommodations. Dr. Trieger administered a Weschler Adult Intelligence Scale, Fourth Edition (WAIS-IV). The Plaintiff's verbal comprehension scale was 70 (second percentile), her perceptual reasoning was 81 (low average, tenth percentile), her working memory was 74 (borderline range, fourth percentile), her processing speed was 71 (borderline range, third percentile), and her full scale IQ was 70 (borderline, second percentile). Dr. Trieger found these scores to be “consistent with prior examinations and indicate global skills in the borderline to mildly impaired range, ” though he noted “[s]he displays a relative strength in her perceptual reasoning.” He also stated the Plaintiff “has a documented history [of] attention deficits, depressive disorder, learning disabilities and cognitive deficits.” R. 424. Dr. Trieger cited the Plaintiff's mother's account in finding that Plaintiff has “noteworthy delays/deficits of adaptive functioning. If Tera were found eligible for SSI benefits, she would most likely need a third party payee.” R. 424. He diagnosed her with ADHD, residual type, a depressive disorder, not otherwise specified, and borderline intellectual functioning with consequential learning disabilities. Her Global Assessment of Functioning score was 45.

         Dr. Trieger observed a number of problems when he saw the Plaintiff as a young child in 1997, 1998 and 1999. He thought her problems were more significant than ADHD or Oppositional Defiant Disorder and that educating the Plaintiff would be a challenge. He also thought there was a possibility that learning disabilities would emerge over time.

         The Plaintiff qualified for special education services. In 2011, special education personnel noted that Plaintiff's biggest problems were difficulty organizing tasks or projects, difficulty sustaining attention to task, failure to finish or turn in schoolwork, she was easily distracted by external stimuli and needs close supervision to complete assigned tasks. She was unorganized and unprepared and had difficulty “settling in and getting started.” R. 273. She benefitted from one-on-one situations and “having everything read to her.” R. 273. The Woodcock Johnson III test administered in February of 2010 indicated a broad reading score of 64, math 74, written language 66, and oral language 69. The Plaintiff was receiving special education class management from her school to meet a vocational goal of attending and completing cosmetology school.

         The Plaintiff's primary care physician also documented continuing deficits in attention. She was prescribed ADHD medication and there were documented difficulties in school performance. The Plaintiff's mother noted some problems as well.

         In March 2012 Dolores Trello, Psy. D., diagnosed the Plaintiff with attention deficit disorder with hyperactivity and, based on a clinical examination, stated the Plaintiff “may have a limited IQ.” Like Dr. Trieger, Dr. Trello stated she would need assistance in handling funds.

         State agency reviewing psychologist, Russell Taylor, Ph.D, did not assess the Plaintiff's claim under Listing 12.05, which addresses intellectual disorders which manifest before the age of 22. Instead, he assessed her under Listing 12.02 for organic mental disorders, which he described as ADHD/LD. Dr. Taylor found that she had moderate restriction of activities of daily living, mild difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace. He based his opinion on her full scale IQ in 1999 and noted that the Plaintiff's treating source stated she was cooperative at an examination. Dr. Taylor noted she reported many friends, played sports, did self care, cleaning, laundry when she feels like it, and had a normal affect. He referenced the fact that Dr. Trieger said she was relevant, oriented, and without psychosis, with an intact memory and “able to do serials.” Dr. Taylor also stated, “CE report indicates claimant does not drive. She handles personal care and does chores at home, cleaning and laundry. She does not grocery shop. She lives with adoptive mother and step father.” R. 378. Despite noting the Plaintiff was moderately impaired in a number of areas, Dr. Taylor opined that she “retains the mental capacity to understand, remember and concentrate sufficiently in order to carry out simple instructions for a normal work period.” He found that Plaintiff “could make simple work related decisions” and “interact with others sufficiently in a work setting.” Dr. Taylor also opined that she could “adapt to simple, routine changes and pressures in the work environment.” R. 382. State agency consultant Donna Hudspeth, Psy. D., affirmed the findings of Dr. Taylor.

         In a narrative report dated May 29, 2012, Dr. Trieger noted he had been professionally acquainted with the Plaintiff since the mid 1990's. He saw her twice in 2012 for outpatient psychotherapy. Dr. Trieger stated she has “a history of learning challenges and emotional difficulties” and “[w]hile she has certainly made progress, she still has a long way to go to reach a level of functioning that would support independent living.” R. 385.

         Dr. Trello examined the Plaintiff again for the Department of Vocational Rehabilitation. Such an evaluation was required for the Plaintiff to continue with her career choice. The Plaintiff reported she has a learning disability and struggles with reading, spelling and math. She stated she has many friends and enjoys playing sports and “hanging out.” Although the Plaintiff thought herself capable of handling money, Dr. Trello noted her concentration was poor. Dr. Trello did not utilize the Weschler Adult Intelligence Scale but used a number of other tests. While some scores were low average, the Plaintiff's long term retrieval was borderline (fifth percentile) and many scores were in the low or borderline range. For example, the Plaintiff's fluid reasoning skills were equivalent to an average individual the age of 10 years, 10 months; visual spatial thinking is comparable to that of a 13-year old. The Plaintiff's auditory processing skills were above average and comparable to an individual the age of 28. Her worst score was in processing speed, which measures the ability to rapidly perform “automatic cognitive tasks, particularly when under pressure to maintain focused attention.” R. 408. The Plaintiff scored at the level comparable to an individual who is 8 years and 4 months old, within the mildly mentally retarded range of scores obtained by others at her age level as shown by her percentile rank (0.1 percentile). She had intra-test cognitive discrepancies.

         Dr. Trello diagnosed learning deficits in broad reading and broad mathematics and a learning disorder in written expression. She also diagnosed ADHD and borderline intellectual functioning. She assigned a GAF score of 50 and noted “serious impairment in academic functioning.” Upon considering her scores, Dr. Trello noted the following regarding certain accommodations the Plaintiff would need for testing:

She will do best if she is given a quiet room with few distractions given she suffers attention deficit disorder. She will need extra time on testing because she processes information very slowly. She will need supervised breaks and should require five minutes every thirty minutes of testing. She learns best in the auditory modality and an audiocassette with extended time might be helpful to her. She will need to dictate her essay questions to a scribe. She will need a calculator for mathematics.

R. 411.

         In October of 2013, the Plaintiff saw a psychiatrist, Dr. Jennifer Hardwick. Dr. Hardwick noted the Plaintiff's motor activity was “fidgety, ” her affect was “blunted” and insight and judgment were “limited.” Her mood was “okay” and thought processes were “linear.” R. 416. Dr. Hardwick completed a medical source statement concerning the nature and severity of the Plaintiff's mental impairments. She found the Plaintiff was markedly limited as to the following: (1) the ability to remember locations and work-like procedures; (2) the ability to understand and remember detailed instructions of three or more steps; (3) the ability to perform activities according to a schedule, maintain regular attendance and be punctual; and (4) the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Dr. Hardwick also assessed the Plaintiff with moderate limitations in a number of areas of functioning. Dr. Hardwick stated that work-related stressors such as production ...


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