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Ciara H. v. Saul

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

September 20, 2019

Ciara H., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.

          ORDER

          SHEILA FINNEGAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Ciara H. filed this action seeking review of the final decision of the Defendant Commissioner of Social Security (the “Commissioner”) denying her claim for supplemental security income (“SSI”) under Title XVI of the Social Security Act. (Doc. 1). The parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the case was reassigned to this Court. (Docs. 7, 9). Plaintiff has now filed a Motion for Summary Judgment requesting that the Commissioner’s decision be reversed and the case be remanded for further proceedings (Doc. 11), and the Commissioner has responded with a Motion for Summary judgment requesting that the decision be affirmed. (Doc. 16). After reviewing the record and the parties’ respective arguments, the Court concludes that the case must be remanded for further proceedings consistent with this Order. The Court therefore grants Plaintiff’s Motion for Summary Judgment and denies the Commissioner’s Motion for Summary Judgment.

         BACKGROUND

         I. Procedural History

         Plaintiff protectively filed her SSI application on April 30, 2013, alleging disability beginning at the time of her birth in early 1994, due to brain stem stroke, speech impediments, and motor difficulties. (R. 68, 186, 189).[2] Although she claimed disability dating back to her birth, SSI benefits are not payable until the month after the application filing date (20 C.F.R. 416.335), and so Plaintiff’s application sought benefits beginning after April 30, 2013 (the application filing date) when she was 19 years old. (R. 15, 69).

         The application was denied initially on May 5, 2014 (R. 68-76), and on reconsideration on April 30, 2015. (R. 77-88). Plaintiff then requested a hearing (R. 101-02), which was later held before Administrative Law Judge (“ALJ”) Edward P. Studzinski on February 22, 2017, where Plaintiff was represented by counsel. (R. 33). Both Plaintiff and Vocational Expert (“VE”) Brian L. Harmon testified at the hearing. (R. 34). The ALJ denied Plaintiff’s claims in a decision dated June 9, 2017 (R. 15-24), finding Plaintiff has an RFC to perform light work with multiple limitations as described to the VE (R. 18-19, 62-64) and thus could perform the jobs of cleaner/housekeeping and sorter, which existed in significant numbers in the national economy. (R. 23-24).

         Plaintiff sought review with the Appeals Council (R. 161), but that request was denied on February 13, 2018 (R. 1-6), rendering the ALJ’s June 2017 decision final and reviewable by this Court. Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012). Plaintiff now makes four arguments for reversal: (1) the ALJ’s assessment of Plaintiff’s allegations of disabling symptoms was based on improper inferences, including an inference “that Plaintiff’s part time work and single on line class translate into an ability to sustain full time work”; (2) the ALJ improperly assessed Plaintiff’s medical opinions regarding her motor, linguistic, and cognitive impairments; (3) the ALJ’s RFC determination failed to accommodate all of Plaintiff’s limitations, particularly those in concentration, persistence, or pace; and (4) the ALJ erroneously accepted the VE’s testimony regarding available jobs Plaintiff could perform, particularly in view of her difficulties with motor speed and using her hands. (Doc. 12, at 7-15). For the reasons explained below, the Court agrees with the first two arguments, agrees in part with the third, and rejects the fourth.

         II. Plaintiff’s Medical, Educational, and Work Background

         A. Plaintiff’s Birth and Early Development

         Plaintiff was born in early 1994, six weeks premature and weighing four pounds, four ounces. (R. 259, 516, 522).[3] At the time of her birth, she had a normal APGAR score of 9 (indication of a baby’s functioning after birth on a scale of 1 to 10, with a higher score indicating better functioning), but two hours later she was noted to be unable to suck and swallow while feeding, and was believed to have developed a brainstem infarct. (Id.). Plaintiff then spent about eight weeks in the Neonatal Intensive Care Unit (“NICU”) at Lutheran General Hospital and required a nasogastric (“NG”) feeding tube for the first fourteen months of her life. (R. 522). While in the NICU, Plaintiff was noted to demonstrate poor tone and impaired suck reflex and gastro-esophageal reflux. (R. 516).

         During her early development, Plaintiff reportedly experienced delays in motor functioning and speech, and thus did not walk until twenty-two months old and did not speak until thirty-six months old. (Id). She had ongoing difficulties with balance and coordination, drooling and swallowing, impaired speech, fine motor weakness, and slowed learning secondary to reduced motor speed. (R. 516). She was diagnosed with developmental delay, hypotonia (decreased muscle tone), micrognathia (undersized lower jaw), maxillary hyperplasia (protruding upper jaw), and oral-motor apraxia (difficulty coordinating jaw, lips, and tongue to speak). (Id.). She also suffered recurrent ear infections as a baby, possibly causing some hearing loss in her right ear. (R. 387, 516). Plaintiff also began having seizures at age two. (R. 516-17). EEGs taken in 1997, 1998, and 1999 (when Plaintiff was roughly three, four, and five years old) were “significantly abnormal” (R. 272), “very abnormal” (R. 266), and “so markedly abnormal that small changes in epileptogenic activity may no[t] be easily appreciated.” (R. 267). Each of these tests indicated some type of seizure activity, possibly epileptogenic, primarily in the left temporal region, but also affecting other regions of the brain. (R. 266-67, 272). After two additional EEGs demonstrated no epileptic activity during these seizure periods, Plaintiff was diagnosed with non-epileptic seizure disorder in 2002 (when she was about eight years old). (R. 517). Plaintiff took several anti-seizure medications over the years, but stopped all such medications in 2002, and reportedly experienced no further seizures after the age of eleven. (R. 387, 517).

         B. Plaintiff’s Education

         Plaintiff was educated through elementary school and high school, partly in local school district classes with support from individualized education programs (“IEPs”) and partly through home schooling. (R. 190).[4] She also attended special education classes from 1996 to 2012 (ages two to eighteen), and received physical, occupational, and speech therapy for many years, both inside and outside the home, sometimes up to three times a week. (R. 190, 386, 517, 522). Plaintiff completed her high school education in May 2013, when she was nineteen years old. (R. 190).

         Following high school, Plaintiff began attending courses at a community college in 2013. (R. 384, 517). She started with four classes and was allowed several accommodations, including a note taker and alternative text formats for instruction, and a scribe (due to her slow writing speed) and extended time for test taking. (R. 54, 384, 517). With this level of support, Plaintiff was able to obtain a grade of “A” in most of her classes. (R. 517). But she later suffered a bout of depression and became stressed by a difficulty with one of her professors, and then stopped attending classes at some point during the Fall 2014 semester. (R. 56, 506, 508, 517). Plaintiff returned in 2015 and again earned an A in one of her classes (R. 533), but then switched to online courses which she can complete on her own schedule to avoid the stress of attending campus. (R. 57, 523, 528, 533). By January 2017, Plaintiff reduced her course load to just one online financial accounting course with the same accommodations. (R. 54, 57, 525).

         C. Plaintiff’s Work Background and Living Situation

         Plaintiff began a part-time job working for an office supply company in May 2014 at age 20, and still held that position as of the February 2017 administrative hearing. (R. 38-39, 518). Plaintiff’s counsel explained in the proceedings below that she obtained the position through a family friend from church, and without applying, providing a resume, or interviewing. (Id.). According to her testimony, Plaintiff works three days a week from 1:00 to 5:00 p.m., and she works much slower than her peers, has no productivity requirements, and is allowed to miss work when she has a health issue or is suffering depressive symptoms. (R. 45-49, 61). Her job consists of crosschecking orders completed by others online to confirm the quantities and availability of the items ordered on the vendor’s website. (Id.). Although this was determined to fall short of substantial gainful activity (“SGA”), Plaintiff earned $5, 310 from May through December 2014, and $10, 608 throughout 2015 (she continued working in 2016 and 2017 (R. 38-39), but totals for these years are not included in the record). (R. 17, 44, 181).

         Plaintiff lives with her parents and younger brother, and has an older brother who no longer lives in the family home. (R. 517). As Plaintiff does not drive, she takes a prearranged bus to work with her mother’s help in making the arrangements, and a family member picks her up from work, since the bus does not operate after 4:00 p.m. (R. 53, 386, 517). Plaintiff reportedly has good relationships with her parents and two brothers, rides a three-wheeled bike (she is unable to ride a two-wheeler), swings on a swing set for extended periods (twenty to forty minutes) after work, uses a computer, and plays cards and games, such as monopoly. (R. 55, 60, 386-88, 517, 520, 522). She can also perform some weekly household chores (vacuuming, dusting, emptying the dishwasher), but only limited cooking tasks (such as microwaving) and pet care with assistance, due to her fine motor impairments. (R. 57-59, 202, 228, 366).

         D. Medical Opinions Following Plaintiff’s Application

         1. Medical Consultative Examination with Dr. Kalyani Perumal

         About a year after her application was filed, Plaintiff underwent a medical consultative examination with Dr. Kalyani Perumal on April 12, 2014, accompanied by her mother. (R. 357-63). After recounting Plaintiff’s premature birth, reported motor skill impairment, and physical, occupational, and speech therapy, Dr. Perumal noted that Plaintiff could walk greater than 50 feet without support and had normal range of motion and strength in all extremities. (R. 359-63). He also noted that Plaintiff’s grip strength was normal in both hands, and she was able to extend her hands fully, make fists, and oppose fingers to thumb. (R. 359).

         During a mental status examination, Dr. Perumal observed that Plaintiff was alert and oriented to person, time, and place; her behavior and ability to relate during the examination were normal; and she was appropriate, polite, pleasant, and cooperative. (R. 363). He opined that Plaintiff’s affect was normal, she had no signs of depression, agitation, irritability, or anxiety; and her overall effort and cooperation were satisfactory. (Id.). And while her speech was impaired and she had difficulty getting words out, Dr. Perumal concluded that her comprehension was “entirely normal” and she was able to understand the questions asked and answer appropriately. (Id.). Dr. Perumal diagnosed Plaintiff with a brain stem stroke with speech and motor impairments since birth. (Id.).

         2. Psychological Consultative Examination with Dr. Glen Wurglitz

         Plaintiff next underwent a psychological consultative examination with Dr. Glen Wurglitz on April 25, 2014, again accompanied by her mother. (R. 365-68). Dr. Wurglitz similarly noted that Plaintiff had no problems with ambulation, balance, or posture, and did not use an assistive device, and that her mood was pleasant and stable, her affect was appropriate and consistent with the content of the conversation, and she was oriented to person, time, place, and purpose of the visit. (R. 366-67). Dr. Wurglitz also observed that Plaintiff’s speech quality was slow and sometimes difficult to understand, her pronunciation was over-articulated, and she showed difficulties finding words. (Id.).

         Dr. Wurglitz further opined that Plaintiff’s short-term memory was good, and her fund of general information and awareness of current events were both fair, but her immediate memory was below average and she was repeatedly unable to remember his name. (R. 367). Her vocabulary indicated an understanding of simple and more complex words, and her abstract reasoning was found to be good, but she held her pencil with a whole hand grasp and had difficulty drawing more complex and abstract shapes (such as a stop sign) and was unable to draw the face of a clock with the correct time. (R. 368). Dr. Wurglitz diagnosed Plaintiff with a Depressive Disorder, Expressive Language Disorder, cerebral infarction, conductive hearing loss, and occupational and economic problems. (Id). He further opined that Plaintiff “may benefit from referral to Vocational Rehabilitation for additional career assessment, assistance in developing vocational skills, and support with job placement.” (Id.).

         3. Pediatric Neurology Evaluation by Dr. Peter Heydemann

         Again accompanied by her mother, Plaintiff next visited her own pediatric neurologist, Dr. Peter Heydemann of Rush Children’s Hospital “for neurologic re-evaluation after many years to find out if she is disabled.” (R. 386, 388, 516). In a report dated August 19, 2014, Dr. Heydemann opined that Plaintiff “has multiple handicaps as well as strengths, ” and listed the following: lack of coordination, both fine and gross motor (evidenced by holding a pen with her fist and being able to hop only once on each foot and unable to ride a two-wheel bicycle); speech and language disorder, with prosody and pronunciation difficulties (evidenced by slow prosody and abnormal breath pattern between words and speech that is hard to understand); possible hearing loss due to repeated ear infections early in life; a learning disorder, but some abilities in math (particularly trigonometry); developmental delay; and inadequate social skills with peers. (R. 387-88). Regarding her learning abilities, Dr. Heydemann added that Plaintiff “learns slowly, but is capable when the work load is light.” (R. 388). He also noted that Plaintiff has good arm strength proximally and distally, and a normal gait with heel strike, but her balance is marginal in that she gets off balance easily when standing in Romberg position. (R. 387). Finally, Dr. Heydemann also noted that Plaintiff exhibits some repetitive movements, such as swinging on a swing for long periods of time, which “could make her fall within the autistic spectrum, but this is not an obvious diagnosis.” ().

         Based on the foregoing, Dr. Heydemann concluded that Plaintiff “would have difficulty functioning as an independent adult but she need[ed] to be properly assessed.” (R. 387). He therefore recommended that Plaintiff see a neuropsychologist for additional testing, including an occupational therapy evaluation to assess visuomotor and fine motor skills, and neuropsychological testing to assess her IQ, learning skills, adaptive functioning, and possible autistic spectrum. (R. 388).

         4. Neuropsychological Evaluation by Dr. Susan Walsh

         On Dr. Heydemann’s referral, Plaintiff and her mother next visited Dr. Susan Walsh, a psychologist at Loyola University Hospital, for a neuropsychological evaluation “to determine appropriateness for social security disability.” (R. 516). After recounting Plaintiff’s medical and developmental history, Dr. Walsh summarized the academic testing that Plaintiff had undergone since childhood. Plaintiff’s intellectual development at ages 7 and 9 fell within the low average range, although her academic skills were within the average range. (R. 517-18). Her most recent Cognitive Abilities Test administered in April 2013 when Plaintiff was 19 years old indicated that Plaintiff has average quantitative skills, slightly below average verbal skills, and borderline nonverbal skills, with an overall low average composite score. (R. 418). Dr. Walsh also noted the results of an Adaptive Behavior Rating Scales test and a Childhood Autism Spectrum Test administered by Plaintiff’s Mother. The former indicated low scores in communication and daily living and moderately low scores in socialization and motor skills, and the latter indicated probable Autism Spectrum Disorder. (R. 522).

         Dr. Walsh also reported her own observations of Plaintiff’s behavior. She noted that Plaintiff’s gait and mobility appeared normal, and her hearing appeared normal and was functional for testing purposes. (R. 518-19). Plaintiff displayed an intermittent tremor in her jaw, and her speech was severely dysarthric but generally intelligible. (Id). Her comprehension was intact; she understood instructions well and did not need clarification; her thought processes were logical and relevant; and her cognitive tempo was steady. (Id.). Plaintiff was quiet but friendly; her mood was euthymic and her affect broad in range; she displayed good eye contact throughout the evaluation; and her health questionnaire responses indicated no depressive symptomology. (R. 518, 521).

         Based on testing she conducted during the evaluation, Dr. Walsh further reported that Plaintiff’s grip strength was “extremely low” in both hands, and she displayed “significant motor slowness” and an awkward pencil grip by holding the pencil in her left fist. (R. 519). She also noted that Plaintiff learned to write left-handed at her school’s insistence, but may be right-hand dominant based on other activities. (Id.). Testing of Plaintiff’s intellectual abilities revealed that her Full Scale IQ fell within the borderline range, with the four indexes factoring into that assessment in the low average (verbal comprehension and working memory), borderline (perceptual reasoning), and severely impaired (processing speed) ranges. (R. 519, 522). Other testing revealed that some of Plaintiff's cognitive abilities (visuospatial problem solving and immediate and delayed memory) were in the low average to average ranges, but her language functioning was impaired, her verbal attention abilities were low average, her visual attention abilities were extremely low, and her overall attention score was also impaired. (R. 519-20). A predominant issue in Plaintiff’s performance in these tests was how slowly she worked on the assigned tasks due to her “fine motor delay” and “significant lack of motor control, ” as evidenced by holding her pencil in a “fist-like manner, ” “resulting in very slow printing speed” and inconsistent legibility. (R. 518-19: “The patient worked slowly on these timed tasks in part due to fine motor delay”; R. 522: “The predominant issue that limited [Plaintiff’s] test performance involved significant lack of motor control.”). But there was also evidence of limitations even when motor components were eliminated. (R. 522).

         Based on the foregoing, Dr. Walsh diagnosed Plaintiff with a Borderline Intellectual Disability, an Autistic Disorder, School Difficulties, and a Seizure Disorder. (R. 522). She further opined that Plaintiff “would be significantly limited in obtaining full-time, competitive employment for several reasons that include physical, cognitive and social limitations.” (R. 523). Dr. Walsh explained as follows:

She presents with significant dysarthric speech . . . that limits her ability to communicate effectively. As a result, [Plaintiff] would be unsuited for jobs that involve customer service. Though her academic development falls within the low average to average range her severely impaired fine and gross motor speed significantly limit her ability to write and/or type and particularly even more so when under time constraints. Given [her] motor limitations, she would not be able to do certain jobs, such as assembly-line work. Finally, her intellectual attainment falls with the Borderline range (IQ range 71-84) and she demonstrates a constellation of symptoms reflective of autism spectrum disorder. Such individuals require close supervision and/or an extended training period, have impaired judgment (socially ...

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