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Arletha B. v. Saul

United States District Court, D. Minnesota

July 17, 2019

Arletha B. on behalf of L.R.C. a minor, Plaintiff,
v.
Andrew Saul, [1] Defendant.

          ORDER

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion for Summary Judgment (Dkt. No. 17) and Defendant's Motion for Summary Judgment (Dkt. No. 20). Plaintiff Arletha B. filed this case on behalf of her daughter, L.R.C. (“LRC”), seeking judicial review of a final decision by Defendant denying her application for supplemental security income insurance benefits. For the reasons stated below, Plaintiff's Motion is denied, and Defendant's Cross-Motion is granted.

         I. BACKGROUND

         Plaintiff filed a Title XVI application for supplemental security income benefits on May 30, 2014, on behalf of LRC, alleging disability beginning March 20, 2014. (R. 12.)[2]Plaintiff claimed LRC was disabled due to asthma, delayed milestones, attention- deficit/hyperactivity disorder (“ADHD”), receptive/expressive language impairment, anemia, and hearing problems. (R. 104.) The application was denied initially (R. 101) and on reconsideration (R. 79). Plaintiff requested a hearing, held on March 29, 2017, at which LRC appeared but did not testify, before administrative law judge (“ALJ”) Virginia Kuhn. (R. 12.) Plaintiff and Karen H. Butler, Ph.D., an impartial medical expert, testified at the hearing. (R. 12.) The ALJ issued an unfavorable decision on June 7, 2017, finding that LRC was not disabled. (R. 27-28.)

         The ALJ followed the three-step evaluation to determine if an individual under the age of eighteen is disabled pursuant to 20 C.F.R. § 416.924(a). The three-step evaluation process proceeds as follows:

The first step is to inquire whether the claimant is engaged in substantial gainful activity. The second step is to ascertain whether the impairment or combination of impairments is severe. The third step is to determine whether the claimant has an impairment or impairments that meet, medically equal, or functionally equal a listed impairment. A claimant will not be considered disabled unless he meets the requirements for each of these three steps.

England v. Astrue, 490 F.3d 1017, 1020 (8th Cir. 2007) (cleaned up).

         At step one, the ALJ determined that LRC had not engaged in substantial gainful activity. (R. 15.) At step two, the ALJ found that LRC had the following severe impairments: asthma; ADHD; oppositional defiant disorder (“ODD”); language disorder; and specific learning disorder in reading, writing, and math. (R. 15.) At step three, the ALJ concluded that LRC's impairments do not meet, medically equal, or functionally equal[3] the severity of a listed impairment. (R. 15-27.) In reaching that conclusion, the ALJ found that LRC had: (1) a less than marked limitation in acquiring and using information; (2) a less than marked limitation in attending and completing tasks; (3) a less than marked limitation in interacting and relating with others; (4) a less than marked limitation in moving about and manipulating objects; (5) a marked limitation[4] in the ability to care for herself; and (6) no limitation in health and physical well-being. (R. 19, 20, 22, 23, 24, 26.)

         Plaintiff requested a review of the decision. (R. 1.) The Appeals Council denied Plaintiff's request for review, which made the ALJ's decision the final decision of the Commissioner. (R. 1.) Plaintiff then commenced this action for judicial review.

         The Court has reviewed the entire administrative record, giving particular attention to the facts and records cited by the parties. The Court will recount the facts of record only to the extent they are helpful for context or necessary for resolution of the specific issues presented in the parties' motions.

         II. RECORD

         LRC is a female who was born in the second half of 2009, making her four years old when the application was filed on her behalf and seven years old at the time of the hearing before the ALJ. (R. 12, 161.)

         At a January 28, 2014 visit for insect bites-when LRC was four-it was reported that LRC's father was “not really taking any interest in her and so mom is watching her all the time (they are separated).” (R. 382.) LRC's mother's current partner was in jail for domestic abuse against the mother. (R. 382.) LRC and the mother moved to a new address with no furniture and were getting an order for protection against the partner. (R. 382.)

         On May 5, 2014, Mary E. Johnston, RN, CNP (“NP Johnston”) saw LRC for a routine health maintenance visit. (R. 422.) NP Johnston noted that LRC had been assessed for ADHD and needed to be redirected a lot and seemed to be very aggressive. (R. 422.) NP Johnston wrote a note on LRC's behalf to a child development program called HeadStart, requesting that it provide services to LRC. (R. 415.) NP Johnston said that LRC “has social issues due to her hyper behavior and she is in need of interaction with children her age. Without HeadStart, she will be at a considerable disadvantage in school when she starts kindergarten if she is not socializing with children now. She unfortunately has to attend an overnight day care due to her mother's work and so she will be sleeping there and will not be playing with other kids.” (R. 415.)

         On September 8, 2014, NP Johnston wrote a letter regarding LRC's social security claim on her behalf. (R. 474.) NP Johnston noted that LRC “has a history of physical aggression with peers and adults in the classroom. (R. 474.) She further stated:

[LRC] pushes people to be hugged constantly, pulls on any tool the provider is using and does not respond to direct requests to stop. She does not appear to have good personal boundaries and does not respond to the social cues that most 4 year olds recognize like disapproval or personal space issues. Because of her lack of ability to comprehend what others want and to express fully what she wants, she is frustrated. This frustration is very likely a large part of her noted aggressive behavior at home and at school; her social interactions are therefore not positive which reinforces her negative behavior.

(R. 474.) NP Johnston concluded that, in her opinion, LRC qualifies for disability. (R. 474.)

         On December 4, 2014, when she was five years old, LRC underwent a psychological evaluation by Craig S. Barron, Psy.D., L.P. (R. 477-80.) Dr. Barron, reviewing LRC's records, noted that she had been assessed for ADHD, but instead was given a diagnosis of Behavioral Concerns. (R. 477-78.) Dr. Barron also noted that “[a]t school, [LRC] was seen as hyperactive, distractible, inattentive, disruptive, aggressive and socially inappropriate.” (R. 479.) Regarding LRC's activities of daily living, he noted that her sleep is adequate, but she never makes her bed, needs assistance bathing and changing her clothes and is unable to put on her shirt or pants or snap, zip, or button. (R. 479.) Dr. Barron observed that when LRC's mother reads to her, she will sit for approximately 15 minutes, and that “[o]n rare occasions, [LRC] will go to Chucky Cheese and attempts to socialize with other children, but is delayed in that area. She does not play any games.” (R. 479.)

         On March 19, 2015, when LRC was five, she was observed asking another child if she needed help with her coat, asking if she could help, and helping the child. (R. 304.)

         On September 2, 2015, NP Johnston saw LRC for a routine checkup. (R. 633-36.) NP Johnston noted that LRC's mother was thinking of taking her to counseling, which NP Johnston encouraged her to do. (R. 636.) She also noted that LRC “has had some behavioral problems in the past and although these are not of concern at the moment, she could use the help as these may emerge again.” (R. 636.)

         On October 26, 2015, LRC was seen by Nancy Kerian, M.A., L.M.F.T., for an assessment of hyperactivity and aggression. (R. 613.) Kerian assessed LRC as friendly in attitude, restless in motor activity, and having intact thought processes. (R. 615.) Kerian assessed a moderate educational impairment, a mild social or relational impairment, and mild impairments in mood, lack of pleasure, sleep, and labile mood, with moderate impairments in concentration, impulse control, and anger. (R. 615-16.) Kerian noted LRC “was very friendly with poor boundaries.” (R. 616.) She also noted that LRC said she had been hurt by people, but her mother brought her to the doctor to check for abuse and found nothing. (R. 616.) Kerian noted that LRC's mother stated that she caught LRC taking naked pictures of herself, was recently wetting herself, and was excessively masturbating. (R. 616.) At a January 8, 2016 appointment, Kerian noted that LRC had been to her father's house for winter break and returned with what she said were rug burns “from being dragged around the house.” (R. 618.) LRC reported that her father and his girlfriend have hit her with a belt and that the girlfriend “was the one who took pictures of [LRC's] private part.” (R. 618.) On March 16, 2016, Kerian-at another appointment-noted that LRC was currently suspended from her kindergarten school for “spitting, hitting, yelling, refusals to do her work.” (R. 620.)

         During her kindergarten school year, LRC was assessed between “sometimes” and “consistently” in the “social” categories of “interacts well with others, ” “respects rights and property of others, ” and “resolves conflict peacefully.” (R. 590.) Her teacher commented that she “enjoys playing with her friends and always greets them with a big smile.” (R. 590.) Her teacher also commented that LRC “enjoys Center Time learning activities and talking with her friends [but] needs guidance in being aware of her personal space and accepting responsibility for her actions. (R. 590.) LRC had several behavioral reports during kindergarten in February and March 2016, including: “Telling a student he looked like ass. Disrupting [bus] loading and route. Touching butts, trying to touch a pre-k ‘in the nuts'. Throwing her gloves, standing on seat, yelling. Holding hands to her crotch and pretending she had a penis.” (R. 831.)

         LRC's mother took her to see Christine Brady, Ph.D., L.P. on March 25, 2016, for a behavioral health progress note. (R. 663-64.) Dr. Brady noted that LRC's mother reported “escalating behavioral problems including biting kids, jumping around on the bus, hitting Aunt with Down Syndrome, etc.” (R. 664.) She further noted that LRC “has been suspended from school four times this year and [the school] is threatening to expel.” (R. 664.) Dr. Brady and LRC's mother discussed referral options. (R. 664.)

         Dr. Brady assessed LRC on April 5, 2016 and determined that “[b]ased on the patient's report of symptoms, she likely meets criteria for Oppositional Defiant Disorder [(“ODD”)] and symptoms of ADHD. However, further assessment is warranted from teacher perspective, therefore only ODD is being diagnosed today.” (R. 673.) Dr. Brady also concluded that LRC's “mental health concerns have been affecting her ability to function and have been causing clinically significant distress. The patient is experiencing Moderate psychosocial stress.” (R. 673.) Dr. Brady also noted that LRC, in her kindergarten year, did not have an Individualized Education Program (“IEP”) or receive special education classes. (R. 671.)

         On April 11, 2016, LRC was seen by Nihit Gupta, M.D. (R. 685-90.) Dr. Gupta acknowledged that LRC:

[H]as been noted to be impulsive, aggressive with significant symptoms of hyperactivity, irritability as she is fidgety, cannot sit still, has [a] difficult time being quiet as she talks excessively, is impulsive, impatient and interrupts people as [they are] talking. She's been also found to be inappropriate as she makes sexual comments when upset with peers or staff, both at school/daycare and home. There is also irritability which is especially evident at home as she has been aggressive, breaking things and has required constant supervision.

(R. 685.)

         In his assessment, Dr. Gupta noted: “Psychologically, she appears to be appropriate for her age but may have some indication of attachment issues given the current living situation (mother works and she spends the majority of a day at school and daycare). This could be contributing to her inappropriate behaviors include some issues with boundaries.” (R. 689.) Dr. Gupta determined that LRC “appears to have fair social skills but needs social skills training as she may have issues maintaining boundaries.” (R. 689.) Dr. Gupta listed ADHD and ODD in the primary diagnoses and Depression, rule out Anxiety in the secondary diagnoses. (R. 689.) Dr. Gupta recommended starting guanfacine, a treatment to target hyperactivity and impulsivity. (R. 689.) He prescribed a 0.5 mg dose for LRC to be taken twice a day. (R. 697.)

         Dr. Gupta saw LRC again on May 9, 2016 and noted that LRC was “Overall, doing better since being started on Guanfacine but has not been able to get the medication at school.” (R. 701.) He also noted that LRC's “behavior has also been good at school, especially in [the] morning.” (R. 701.) Dr. Gupta provided a doctor's note to help with access to guanfacine at school. (R. 712.)

         On July 18, 2016, Claudia Campo, M.D., M.S. saw LRC and noted that LRC was not experiencing side effects from the medication and that it had continued to help with mood swings and aggression, but that LRC continued to have trouble focusing. (R. 730.) Dr. Campo further noted that LRC's hyperactivity varied by the circumstances, but her history of suspensions for biting other children and aggressive behavior had since reduced. (R. 730.)

         Dr. Campo filled out a medical source statement (“MSS”) form two days later on July 20, 2016. (R. 584-88.) Dr. Campo noted that she had first seen LRC on July 18, 2016, but LRC had been seen by other providers in her clinic since April 11, 2016. (R. 584.) Dr. Campo noted a principal diagnosis of ADHD, combined type and a secondary diagnosis of rule-out ODD. (R. 584.) On the MSS, Dr. Campo checked “psychomotor agitation” and “difficulty concentrating” as LRC's signs and symptoms. (R. 584.) Dr. Campo also reported other inattentiveness and distractibility as symptoms of her diagnoses. (R. 585-86.) Regarding treatment, Dr. Campo listed guanfacine and noted that LRC's mother reported “decreased agitation and irritability with it” and no side effects. (R. 585.) Dr. Campo selected marked limitations in “acquiring and using information and/or communicating with others”; “attending and completing tasks/maintaining concentration, persistence, and pace”; and “interacting and relating with others.” (R. 587.) Dr. Campo selected “no limitation” for “moving about and manipulating objects”; “caring for yourself”; and “health and physical well-being.” (R. 587.)

         Dr. Campo saw LRC again on August 15, 2016 for medication management. (R. 740.) At the visit, LRC's mother reported that “Things have been going okay.” (R. 741.) LRC's mother reported that LRC has still had trouble receiving medication at school or daycare and that LRC has undergone “mood swings over the course of days, where she appears, down and depressed and then hyperactive. [LRC's] Mother also notes that [LRC] engages in destructive behaviors when upset, such as recently pouring a gallon of water over her clothes in her room, peeling the paint off the walls, and taking the closet doors of their hinges in her room. [LRC's] Mother states that [LRC] will also throw and slam things.” (R. 741.) To address the medication disbursement problem, Dr. Campo modified LRC's prescription such that the medication be taken once daily, in the morning at home. (See R. 742.)

         In first grade, LRC had several disciplinary incidents. On October 26, 2016, she was reported grabbing the bus driver's arm, constantly moving around the bus, and physically assaulting peers on the bus. (R. 598.) On October 31, 2016, LRC was reported after she “[t]ouched another student's bottom after student asked her to stop [and] [l]eft time out area without permission.” (R. 597.) On November 22, 2016, LRC had a violation for “hands on other students.” (R. 597.) During the fall of her first-grade year, her teacher assessed her as “rarely” interacting with others, resolving conflict peacefully, and respecting rights and property of others. (R. 599.)

         LRC's next primary care appointment was on December 8, 2016 with Mark Lynn, Ph.D., L.P., when she was seen for problematic symptoms of behavioral problems and escalating aggression. (R. 752.) Dr. Lynn developed a plan for follow-ups to track LRC's progress. (R. 753.)

         On December 13, 2016, LRC's mother sent a fax to her representative and the Social Security Administration stating that LRC transferred schools on November 28, 2016 “and the school is ...


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