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Richardson v. Berryhill

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

July 27, 2018

PATRICIA RICHARDSON o/b/o T.H., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations for the Social Security Administration, Defendant.


          Susan E. Cox U.S. Magistrate Judge

         Plaintiff Patricia Richardson (“Plaintiff”) on behalf of her minor ward, T.H., appeals the decision of the Commissioner of Social Security (“Commissioner”) to deny T.H.'s application for disability benefits. For the following reasons, Plaintiff's motion for summary judgment is granted [dkt. 18], and the case is remanded for further proceedings consistent with this Opinion.


         A. Medical/Academic History

         T.H. was born on May 22, 2004. (R. 29.) Unfortunately, much of T.H.'s early childhood was marked by instability until Plaintiff became her guardian.[1] (R. 415-416, 515). Perhaps due to the volatility of T.H.'s first few years, she has struggled to keep stride with some of her classmates academically, and the record reflects that she has had trouble developing appropriate coping mechanisms. In 2013, T.H. was referred for evaluation for an Individual Education Program (“IEP”) due to “poor academic performance.” (R. 414.) The IEP states that T.H. was hospitalized at Hartgrove Hospital in 2010 for two weeks for depression, and diagnosed with Impulse Control Disorder. (R. 414, 419.) As part of the IEP, T.H. was given a battery of tests. On the Weschler Individual Achievement Test (“WIAT-III”), the majority of T.H.'s scores were far below average (e.g., bottom 10th percentile in eight of 16 categories, with only five categories above the 27thpercentile); her overall score on the WIAT-III was in the “below average” range. (R. 419-422.) The IEP also assigned T.H. a score on the Reynolds Intellectual Assessment Scales (“RIAS”), which showed that she was below average in the verbal index (19th percentile) and memory index (21stpercentile), and average in the non-verbal index (63rd percentile) and composite index (32ndpercentile). (R. 420.) T.H.'s teacher completed the Behavior Assessment System for Children (“BASC-2”), and found that T.H. was “at-risk” in the areas of hyperactivity, atypicality, and attention problems, and had “clinically significant” issues in aggression, conduct problems, anxiety, depression, and withdrawal. (R. 423.) Finally, T.H. was evaluated pursuant to the Vineland II Adaptive Rating Scales (“VABS-II”), which revealed that T.H. performed low in the domain of communication (2nd percentile), moderately low in socialization (16th percentile) and adaptive behavior composite (7th percentile) domains, and adequate in daily living skills (18th percentile). (Id.) It was recommended, inter alia, that T.H. “receive special education services under the category of a Learning Disability.” (R. 424.)

         Prior to fourth grade, T.H. was re-evaluated for her IEP. The evaluation starts out by noting that T.H.'s strengths included being eager to please her peers and adults, and that she had improved significantly in her behavior. (R. 437.) However, it further stated that she struggled “drastically with organizational skills, ” was easily distracted, and needed “constant encouragement and praise to help her achieve academic and behavioral success.” (Id.) The evaluation also mentioned that when T.H. “is frustrated or angry, she has difficulty expressing herself and may shut down or not respond.” (R. 438.) This evaluation relied on the previous scores for T.H. on the WIAT-III and BASC-2 tests. (R. 437.) The IEP provided that T.H. be given 50% extended time for classwork, homework, and assessments (R. 442), and that she receive 360 minutes per week of special education in the general classroom and 150 minutes per week in a separate break-out classroom. (R. 454.)

         T.H.'s fifth grade IEP was completed in September 2014. (R. 301.) The evaluator wrote that T.H. “struggles with meeting her grade level academic goals and it effects (sic) her efficiency and effectiveness in the classroom on a social and emotional level.” (R. 303.) However, the IEP indicated that T.H. had showed some improvement over the previous year, as her special education minutes were reduced to 285 weekly in-class minutes, and 30 weekly minutes in a separate classroom. (R. 311.)

         The final IEP presented to the Administrative Law Judge (“ALJ”) was for T.H.'s sixth grade year. It maintained the same amount of time for special education services as the previous IEP (i.e., 285 minutes weekly in the general classroom, and 30 minutes weekly in a separate classroom). (R. 329.) The IEP also reported T.H.'s scores in the Northwest Evaluation Association (“NWEA”) test, which demonstrated that she was in the low range for literature, informational text, vocabulary acquisition and use, operational and algebraic thinking, measurement and data, number operations, and geometry; T.H. was two standard deviations below the mean in her reading score. (R. 318, 341.) The narrative information on T.H.'s sixth grade IEP was more of a mixed bag. It noted that she would often attempt to avoid classes by going into classes that were not on her schedule, and noted that “this would be considered a part of her ADHD because of her limited level to concentrate in terms of long term and short term concentration.” (R. 318.) It further stated that her “learning disability greatly impedes her ability to access the general education curriculum and she requires specialized instruction to be successful, ” and “sometimes has difficulty expressing herself when upset or frustrated and may shut down or not respond.” (R. 325.) However, there was progress evident in the IEP, including “basic improvement with her reading skills” and being “able to step outside herself and take a risk for wanting knowledge, ” instead of “completely shut[ting] down or isolate[ing] herself from the teach or whoever is there to instruct her.” (R. 323.)

         The administrative record also included several Social Security Administration Questionnaires filled out by T.H.'s teachers and school counselors. The first was completed in October 2013 by T.H.'s teacher, who reported that T.H. “often displays age inappropriate behaviors, ” such as crying, frowning, pouting, and refusing to speak when she did not get her way. (R. 433.) The teacher found that T.H. had an obvious problem in handling frustration appropriately, and slight or no problems in the remainder of the categories. (Id.)

         The same teacher filled out a second questionnaire on June 2, 2014, stating that T.H.'s reading grade level was at 1.4, math grade level was at 2.2, and written language grade level was 5.2 (T.H. was in fourth grade at the time). (R. 248.) She noted that T.H. appeared “immature emotionally, ” but had improved over the course of the year. (R. 253.) She found that T.H. had obvious problems in the following areas: expressing ideas in written form, learning new material, recalling and applying previously learned material, sustaining attention during play, focusing long enough to finish an assigned activity or task, refocusing to a task when necessary, waiting to take turns, working without distracting others, following rules, introducing and maintaining relevant and appropriate topics of conversation, handling frustration appropriately, and responding appropriately to changes in her own mood. (R. 249-253.) T.H. also exhibited serious problems with organizing her own things or school materials, completing class/homework assignments, and completing work accurately without careless mistakes. (R. 250.) The remainder of the categories were graded as showing slight or no problems. (R. 249-253.)

         The final questionnaire, signed and dated February 2, 2015, was apparently completed by multiple teachers or counselors, judging by the variety of handwriting on the questionnaire. It shows that T.H.'s problems were becoming more pronounced. She had serious problems in the following areas: comprehending oral instructions, understanding school and content vocabulary, reading and comprehending written material and doing math problems, providing organized oral explanations and adequate descriptions, expressing ideas in written form, applying problem-solving skills in class discussion, and using good judgment regarding personal safety and dangerous circumstances. (R. 275-279.) She also exhibited very serious problems in identifying and appropriately asserting emotional needs, responding appropriately to changes in her own mood, using appropriate coping skills to meet daily demands of the school environment, and knowing when to ask for help. (R. 279.) There was also a slew of obvious problems identified. (R. 275-79.) One teacher noted that T.H.'s problems in her interpersonal life and dealing with her academic problems were impeding her academic growth. (R. 275.) Another stated that T.H. struggled to complete her homework, despite accommodations and modifications. (R. 276.) A third opined that T.H. struggled academically and emotionally, and did not know how to re-direct herself when she became frustrated. (R. 279.)

         The record also shows that T.H. spent several weeks treating at the pediatric day program at Garfield Park Hospital, after her “[s]chool requested partial hospitalization due to inability to focus, hyper in the classroom, day dreaming, poor attention, and focus.” (R. 519.) Upon admission, T.H. demonstrated grossly intact concentration, attention, and memory, but she was described as “distracted and fidgety” the day after her admission. (R. 520.) T.H. reported that it was difficult for her to understand reading and math, even when she got help. (R. 522.)

         T.H.'s administrative file also includes opinion evidence from several State agency consultants. In November 2013, Donna Hudspeth, Psy. D., and Victoria Dow, M.D., both found that T.H. did not meet, medically equal, or functional equal any listing, and had less than marked impairments in all functional domains. (R. 79-80.) In July 2014, Howard Tin, Psy. D., and Deborah Allbright, M.D., reviewed T.H.'s claim and made the same findings as the aforementioned consulting doctors, except they found that T.H. had marked limitations in the domain of Acquiring and Using Information. (R. 88-90.) Finally, in April 2015, Glen Pittman, M.D., and Bharati Jhaveri, M.D., reached conclusions that matched the November 2013 findings of the first Stage agency doctors. (R. 98-100.) Although the ALJ indicated that Drs. Pittman and Jhaveri reviewed “updated records, ”[2] there is no indication that they received the latest IEP and their opinions pre-date Plaintiff's hospitalization. (R. 33.)

         B. Procedural ...

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