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Karen Shaffer, On Behalf of Benton Shaffer v. Michael Astrue

February 29, 2012

KAREN SHAFFER, ON BEHALF OF BENTON SHAFFER, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

I. Introduction

Karen Shaffer ("Plaintiff") brought this action pursuant to 42 U.S.C. § 1383(c)(3) on behalf of her minor son, Benton Shaffer, for judicial review of the final determination of the Commissioner of Social Security ("Commissioner"), which denied her application for child's supplemental security income ("SSI").

II. Background

Benton Shaffer ("Benton") was born on June 7, 2000, making him a school-age child pursuant to 20 C.F.R. 416.926a(g)(2) at the time the Administrative Law Judge ("ALJ") issued his decision. Karen Shaffer, Benton's mother filed for child's SSI on behalf of Benton on February 21, 2008, in which she alleged that her son was disabled due to pervasive development disorder, anxiety disorder, behavior disorder, phonological disorder, and allergies as of his date of birth. (R. 105, 118).

A. Facts

Benton Shaffer was eight (8) years old when the ALJ issued his decision. (R. 16). At the time, he lived at home with his mother and his twin brother, Randy. (R. 392). He began school in 2006, and his school records indicate that he had difficulty adjusting to kindergarten. (R. 392-404). For example, his kindergarten teacher, Mrs. Benke, reported that although he had good attendance and completed his homework, he lacked motivation and was "developmentally young." (R. 394). According to Mrs. Benke, Benton was prone to "tattling, bossing, [and] ignoring" when he interacted with peers. (R. 394). Near the end of Benton's first school year, an Individualized Education Program ("IEP") reevaluation report noted that he was irresponsible and unable to take care of his school supplies. It also noted that he could not work independently, was constantly in need of redirection, and was unable to complete tasks. (R. 394). Nonetheless, IQ testing showed Benton to be functioning within average range of intelligence. (R. 398).

On August 29, 2007, Benton underwent a diagnostic neurobehavioral evaluation performed by Amanda L. Pelphrey, Psy.D., a licensed psychologist at the Child Development Unit of Children's Hospital of Pittsburgh. She determined that Benton had a global assessment of functioning ("GAF") score of 60. (R. 267). Based on Benton's difficulty communicating and socializing and his defiant behaviors, Dr. Pelphrey diagnosed Pervasive Developmental Disorder ("PDD") Not Otherwise Specified, and anxiety disorder, not otherwise specified. (R. 267). As a result of the diagnosis, Benton's mother was given information about how to obtain comprehensive wraparound services. (R. 268).

On January 10, 2008, Benton was evaluated by Scott B. Roberts, M.A., a licensed psychologist, to determine his ongoing eligibility for wraparound services. (R. 271). Mr. Roberts recorded in his notes that Benton, then in the first grade, had shown "considerable progress" in his school performance and social skills after his mother placed him a separate classroom from his twin brother, with whom Benton had been playing almost exclusively. (R. 273-75). Mr. Roberts also noted that Benton's reading had improved as a result of a reading recovery program, and he was not demonstrating any significant behavioral problems. (R. 273). Benton also seemed to be enjoying playing with a new friend, and his mother told Mr. Roberts that her son was speaking more about his feelings instead of acting them out. (R. 273). On the other hand, tests revealed that Benton still had low frustration tolerance, organizational difficulties, mild issues with fine motor coordination, tactile defensiveness, and sensitivity to smells. (R. 273-74). Mr. Roberts diagnosed PDD, not otherwise specified (tentative diagnosis); anxiety, not otherwise specified; and phonological disorder. (R. 275). Further, he rated Benton's GAF at 55 and recommended that he continue to receive wraparound services, albeit with a reduction in the amount of time needed with a behavioral specialist. (R. 275).

One month later, Shwetha Kamath, M.A., OTR/L, performed a comprehensive occupational therapy evaluation. (R. 305). She noted that Benton was able to follow test directions well and sustain attention to tasks until completion. (R. 305). She also indicated, however, that Plaintiff was distracted by sounds. (R. 305). Tests showed that Benton's coping skills, motor planning, spatial awareness, gross and fine motor coordination, postural control, and social skills were all impacted by deficits in processing and integrating sensory information. (R. 310). In view of that, Ms. Kamath recommended that Benton undergo weekly occupational therapy at a clinic with specialized sensory integration equipment. (R. 310).

On April 28, 2008, Benton's teacher completed an evaluation form with questions pertaining to the six domains of functioning. (R. 202). In it, she reported that in the domain of acquiring and using information, Benton had no problem comprehending oral instructions, understanding school and content vocabulary, reading and comprehending written material, comprehending and doing math problems, learning new material, and recalling and applying previously learned material. (R. 202). Benton's handwriting problems associated with his issues with fine motor skills, however, resulted in a "serious" problem with expressing ideas in writing. (R. 202). Under the domain attending and completing tasks, the teacher noted that Benton had no problem paying attention when spoken to directly, carrying out single-step instructions, or working at a reasonable pace/finishing on time. (R. 203). However, she noted that Benton had an "obvious" problem waiting to take turns, organizing his things, and changing activities.

(R. 203). With respect to the domain of interacting and relating to others, Benton had no reported problems. He had a slight problem in all areas of functioning within the domain of "moving about and manipulating objects." (R. 205). Finally, Benton exhibited only "slight" problems under the domain caring for yourself.

Dr. Pelphrey reevaluated Benton on May 12, 2008 and reported that he had been doing well in the classroom. (R. 452). According to Dr. Pelphrey's notes, Benton's teacher had described him as energetic, task-oriented, and compassionate. (R. 453). That same teacher reported to Dr. Pelphrey that Benton listened very well, communicated well, and had a good sense of humor. (R. 453). Dr. Pelphrey noted that Benton demonstrated improved participation as compared to his first evaluation. In addition to appearing less anxious and withdrawn, Benton had improved eye contact, reciprocal communication, and overall quality of rapport. (R. 454). Tests indicated mild deficiencies in developmental and behavioral skills, and as a result, Dr. Pelphrey rated Benton's GAF at 60, indicative of moderate limitations. (R. 456). While improving, Benton still had elevations in anxiety symptoms that continued to interfere with his behavioral functioning. (R. 456). Because Benton had shown progress in response to his current level of care, Dr. Pelphrey recommended ongoing services, with emphasis on structured social play experiences. (R. 456).

In May 2008, Benton participated in year-end standardized testing in school. (R. 583). He was at or above grade level in all areas except for vocabulary and language, in which he registered at a grade level of 1.6. (R. 583). Later that month, on May 21, 2008, Arlene Rattan, Ph.D., a state agency psychologist, reviewed Benton's records and opined that he had "less than marked" limitations in five of the six domains of functioning. (R. 368-69). According to Dr. Rattan, Benton had a "marked" limitation with respect to the domain of caring for yourself. (R. 369).

Three months later, Benton underwent a psychological evaluation to determine whether his behavioral health rehabilitation services were still necessary. (R. 477). Carole G. Stern, M.A., a licensed psychologist who performed the evaluation, noted that although Benton's social skills were improving, he continued to display a deficit; he was very impulsive and displayed boundary issues. (R. 479-80). In addition, he required prompting to stay on task. (R. 480). After the evaluation, Ms. Stern concluded that despite Benton's progress, he still exhibited high energy, impulsivity, and difficulty staying focused. (R. 483). She further concluded that these problems, taken together, continued to interfere with his ability to interact with fellow students and with school functioning. (R. 483). Accordingly, she recommended that he continue services with a behavioral specialist, mobile therapy services, and therapeutic support staff. (R. 484).

Benton began second grade in August 2008, and throughout the school year, he received occupational therapy once or twice a week. (R. 617). Rose Hildebrand, Benton's occupational therapist, reported that during his therapy session, Benton responded well to core strengthening exercises. (R. 617). On August 28, 2008, Ms. Hildebrand made recommendations for the upcoming school year, which included a highly structured classroom environment, color-coding of class materials, the use of checklists and verbal and visual clues for changes in tasks, and daily exercises for posture control. (R. 617).

Benton's report card from the first quarter of second grade revealed that he was generally approaching or at grade level in all areas except for handwriting and applying spelling skills. (R. 582). Lauri Luba, his second grade teacher, also noted that he needed improvement in managing his time effectively and putting forth effort. (R. 582).

In a teacher questionnaire completed by Ms. Luba, it was noted that Benton had no "serious" problems in any of the six domains of functioning. (R. 241-45). Within the domain of acquiring and using information, Ms. Luba noted that Benton had no problems with reading comprehension, comprehending math problems, and learning new material.

(R. 241). He had an "obvious" problem with expressing ideas in writing. (R. 241). With regard to attending and completing tasks, the teacher indicated that Benton had no problem changing from one activity to another without being disruptive, but "obvious" problems focusing long enough to finish assigned tasks, refocusing on tasks when necessary, carrying out multi-step instructions, and organizing his own things or school materials. (R. 242). She also noted "slight" problems interacting with others. (R. 243). According to Ms. Luba, under the domain moving about and manipulating objects, Benton had no problems with regard to managing the pace of physical activities or tasks.

(R. 244). He had "obvious" problems moving and manipulating things, showing a sense of his body's location and movement in space, and integrating sensory input with motor output. (R. 244). Within the domain caring for yourself, Benton had an ...


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