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Wheeler v. Colvin

United States District Court, M.D. Pennsylvania

September 18, 2014

THERESA WHEELER, FOR J.B., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

RICHARD P. CPMABOY, District Judge.

The above-captioned matter concerns the appeal of Plaintiff Theresa Wheeler on behalf of her niece J.B. from the Acting Commissioner's denial of Supplemental Security Income ("SSI"). (Doc. 1.) The Administrative Law Judge ("ALJ") who evaluated the claim found that J.B. did not have an impairment or combination of impairments that met or equaled the severity of a listed impairment and, therefore, was not disabled. (R. 15-24.) With this action, Plaintiff argues that the determination of the Social Security Administration is error: 1) the ALJ did not fulfill his duty to develop the record; 2) the ALJ erred when he failed to find J.B. has an "extreme" or "marked" limitation in the domain of Interacting and Relating with Others; 3) the ALJ erred when he failed to find J.B. has a "marked" limitation in the domain of Attending and Completing Tasks; and 4) the ALJ did not properly consider treating physicians' opinions and failed to find a "marked" limitation in the Caring for Yourself domain. (Doc. 11 at 18.) For the reasons discussed below, we conclude remand is warranted.

I. Background

A. Procedural Background

On May 18, 2011, Plaintiff filed an application for SSI on behalf of J.B., alleging disability beginning on May 5, 2011. (R. 95.) Plaintiff listed three disabling conditions: ADHD, learning disability, and ODD. (R. 122.) The claims were initially denied on July 13, 2011. (R. 77-80.) Plaintiff filed a request for a review before an ALJ. (R. 88-91.) On July 16, 2012, Plaintiff, J.B., and their attorney, Jonathan Foster, Esq., appeared at a hearing before ALJ Gerard W. Langan. (R. 28.) By decision of August 30, 2012, ALJ Langan determined that J.B. had not been disabled from the date of filing, May 18, 2011, through the date of the decision. (R. 24.) He made the following findings of fact and conclusions of law:

1. The claimant was born on June 4, 1996. Therefore, she was an adolescent on May 18, 2011, the date application was filed, and is currently an adolescent (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful activity since May 18, 2011, the application date (20 CFR 416.924(b) and 416.971 et seq.).
3. The claimant has the following severe impairments: ADHD (attention deficit hyperactivity disorder) and ODD (oppositional defiant disorder) (20 CFR 416.924(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. The claimant does not have an impairment or combination of impairments that functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).
6. The claimant has not been disabled, as defined in the Social Security Act, since May 18, 2011, the date the application was filed (20 CFR 416.924(a)).

(R. 81-92.)

On October 2, 2012, Plaintiff filed a Request for Review with the Appeal's Council. (R. 6-8.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision. (R. 1-5.) In doing so, the Appeals Council stated that it had looked at additional evidence provided and determined there was no basis to change the ALJ's decision. (R. 1-2.) Because the Appeals Council found no reason to review the ALJ's decision, the ALJ's decision became the final decision of the Commissioner. (R. 1.)

On March 19, 2014, Plaintiff filed the action in this Court appealing the Acting Commissioner's decision. (Doc. 1.) Defendant filed her answer and the Social Security Administration transcript on May 22, 2014. (Docs. 7, 8.) Plaintiff filed her supporting brief on August 5, 2014. (Doc. 11.) Defendant filed her opposition brief on August 25, 2014. (Doc. 12.) Plaintiff did not file a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.

B. Factual Background [1]

J.B. was born on June 4, 1996. (R. 15.) She was sixteen years old at the time of the hearing on July 16, 2012. ( Id. ) She was living with her aunt and guardian, Plaintiff Theresa Wheeler, in Canton, Pennsylvania. (R. 38.) As summarized by her attorney at the ALJ hearing (and shown in the extensive record), J.B. had "kind of a rough upbringing." (R. 37.) J.B. and her siblings had been placed in foster care due to her biological mother's neglect. (R. 327.) J.B. had three placements in foster homes, in two of them she was asked to be removed, and in the third she asked to be removed. (R. 329.)

J.B. was in KidsPeace in Allentown for residential treatment from August 20, 2008, to April 16, 2010. (R. 323-452.) She was admitted for evaluation of mental health issues. (R. 373.) Residential placement was recommended based on J.B.'s "past failed placement, as well as intensive family issues and her significant distractability." (R. 328.) Her prognosis was determined to be "fair" at the time of the evaluation by Dr. Adnan Zawawi on September 24, 2008. (R. 328.) On March 11, 2010, Dr. Nimala Yarra provided the following summary:

She is young an[d] immature and has been rebellious since she came to treatment. Before she was placed in residential treatment she was in several foster homes where she was unable to adjust. She had difficulty dealing with family issues. Even though she took a long time to adjust in recent months she had improved much in her cooperation, communication skills and relationship with staff, as well as family.
In recent months, she has been able to accept the need for out-of-home placement and is willing to go for an interview to be placed in a therapeutic foster home. She has been getting along well with her grandmother and aunt. She has a better understanding about her family issues and why she cannot return to her family at this time. Her coping skills are better. She has good leisure skills.
Insight and judgment are improved. When she had vocal tics for a day or two after her home visit, about six weeks ago, I had to hold her Adderall and Seroquel for a few days. When she did not receive these two medicines, she was highly distractible, irritable and labile in mood. So, I had to reintroduce both medications without any adverse effect. At this time, she is back on all of the medications and is tolerating them well and also needs all of them, except maybe Strattera. Since she is on Strattera and Adderall, I suggested to taper off Strattera for a trial to see if she can be managed on Adderall. She is quite willing to do so.

(R. 357-58.) Dr. Yarra's recommendations were that J.B. would be requiring Therapeutic Foster Care as a medical necessity and monthly medication management by the psychiatrist as part of her aftercare. (R. 358.) She also recommended individual, group and family therapies to improve her mood management, anger control and interpersonal skills. ( Id. ) On April 15, 2010, the day before her discharge from KidsPeace, Clinician Dale Phillips noted that J.B. had a stable mood and affect, and she did not have suicidal ideations or thoughts of self injury. (R. 446.) Placement with her aunt was being worked out at the time. ( Id. )

From May 5, 2010, to July 29, 2010, (the first records for the relevant time period) J.B. was treated at the Tioga Counseling Center by David August, D.O., a board certified psychiatrist. (R. 493-500.) He evaluated J.B. on May 5, 2010, noting that she was being evaluated "as she is on many psychotropic medications." (R. 496.) Under "History of Chief Complaint, " Dr. August noted that J.B.'s "main problems have been primarily foul language that she uses in school. This often leads to getting suspended. She is also verbally aggressive toward other children at times and can be very obnoxious and argumentative. Jessica has a history of eloping from placements." ( Id. ) He further noted that her foster placement "appears to be going well, " and that she did well in school except for math. (R. 498.) Dr. August's "Objective Mental Status Examination" included the findings that J.B. demonstrated excellent abstract thinking, her thought processes were logical and goal directed without looseness of association or flight of ideas, she reported that she never has suicidal or homicidal thoughts, and never has hallucinations. ( Id. ) He added that she had a very outgoing personality and seems to like to argue. (R. 499.) Dr. August diagnosed J.B. with ADHD, ODD, and Mathematics Disorder, and reported a GAF of 55. ( Id. ) Dr. August eliminated one of J.B.'s medications because of its severe adverse consequences and ineffectiveness for the targeted insomnia. ( Id. ) He also opined that J.B. had been overmedicated and many of the medicines did not have a positive impact on the course of her illnesses. (R. 500.)

In a June 4, 2010, progress note, Dr. August reported that the medication elimination had gone well, J.B. reported that she was "sleeping reasaonbly, " and that her personality appeared to be unchanged-"She enjoys teasing and confrontation in a friendly way." (R. 495.) He also reported that J.B. had "no suicidal or homicidal thoughts, no psychotic thinking, and was not depressed." ( Id. ) Her GAF was 55. ( Id. )

In his July 2, 2010, progress note, Dr. August reported that J.B.'s behavior had been excellent, and she had not been having temper problems. (R. 494.) Her GAF was 55. ( Id. ) He added that he planned to further adjust her medications. ( Id. )

On July 29, 2010, Dr. August noted that the medication adjustment had gone well, and J.B. reported she was not having sleeping or temper control problems. (R. 493.) Dr. August observed her to be calm and friendly, with no irritability, she did not seem to be having hyperactivity or attention problems, was free from psychotic thinking, and had no depressive symptoms. (R. 493.) Her GAF was 58. ( Id. )

In a July 30, 2010, Mental Health Intake Evaluation at Northern Tier Counseling performed by a clinician and signed by Lucille E. Venturanza, M.D., it was noted that J.B. had been placed with her aunt a week before the evaluation, that she had been in and out of foster homes, and "has behavioral outbursts - yelling, temper, disobedient, swearing." (R. 504-10.) She was being seen for medication management. (R. 504.) The "Clinician's Impressions (Overall Clinical Summary)" included the following: J.B. came in needing medication management only; she reported losing her temper and being disobedient; and she was respectful at the intake. (R. 509.) J.B.'s GAF was 55. ( Id. )

On August 26, 2010, J.B. was evaluated by Dr. Venturanza at Northern Tier. (R. 526.) Her chief complaint was her behavior. ( Id. ) J.B. denied current depression but noted having been depressed when she was in KidsPeace. (R. 528.) Her GAF was recorded to be 55. ( Id. ) She was to be seen again in four weeks. (R. 529.)

Improvement was noted at J.B.'s September 23, 2010, psychiatric clinic visit with Dr. Venturanza. (R. 530.) It was noted that J.B. was compliant with medications and her next appointment was to be in two months. ( Id. )

In September 2010, J.B. was in the Alternative Education Program in the Northeast Bradford School District. (R. 228.) At the time she was receiving Mobile Therapy Services through Northwestern Human Services ("NHS") up to four hours per week and her aunt reported she had a good relationship with her therapist. ( Id. ) In September 2010, Ms. Wheeler stated on a parental input form that J.B. helps with chores at home, likes to read, gets up in the morning without being told, does what is asked of her, and enjoys making things. (R. 212.) Ms. Wheeler expressed concern that some of J.B.'s comments may be rude and hurtful to others and that she makes comments that should not be said. ( Id. )

At a January 5, 2011, clinic visit, Dr. Venturanza noted that J.B.'s medication compliance was questionable. (R. 531.) She also noted that J.B. was struggling in school.[2] ( Id. ) Dr. Venturanza changed J.B.'s medications and wanted to see her back in one month. ( Id. )

As reported in a January 19, 2011, Reevaluation Report from Northeast Bradford High School, J.B. was participating in the general education setting in all classes but math, which she was taking in a learning support setting. (R. 275.) In the "Emotional/Social Adjustment" portion of the report, it was stated that J.B.

enjoys reading, cooking, working on crafts and helping out at church. She is reported to get along with most people, though she has a difficult relationship with her biological mother. She does not get along with all her teachers. [J.B.] typically gets along with her peers and wants to make friends. In the community, she can be disrespectful at times, and may talk out or swear. [J.B.] seems to have low self esteem and often makes negative statements about herself. She has been involved with various counselors on and off since approximately her kindergarten year.

(R. 276.)

On January 25, 2011, a Mental Health Intake Evaluation for the partial hospitalization program indicates J.B.'s problems to be lack of adjustment to school, and lack of compliance with rules and expectations at home and school. (R. 546.) She was referred to the program due to lack of motivation and lack of respect for rules and expectations. ( Id. ) She was failing ninth grade at the time. (R. 548.) J.B.'s attitude toward authority and peers was noted to be poor; she had "a few" friends. (R. 553.) J.B.'s GAF was reported to be 46. (R. 554.) Jenny Young, LSW, is identified as the clinician. ( Id. )

On January 25, 2011, an Initial Treatment Plan was completed for Northern Tier Counseling's Children/Adolescent Partial Hospitalization Program and signed by Ms. Young and Dr. Venturanza. (R. 513.) The Master Treatment Plan document dated February 2, 2011, noted J.B.'s diagnosis of Oppositional Defiant Disorder; her strengths were noted to be that she enjoys reading and is family oriented; her criteria for care indicated that she "has had poor adjustment to regular education due to not following rules and directions, lack of work completion and disrespect for authority." (R. 514.) Three treatment goals were identified: show respect for authority; decrease anger and aggression; and complete assigned tasks. (R. 513.)

On February 17, 2011, J.B. had a psychiatric evaluation at Northern Tier Counseling. (R. 522.) The evaluator was Marine Khojabekyan, M.D., and the supervising physician was Lucille E. Venturanza, M.D. ( Id. ) The report notes that J.B. was admitted to the Partial Hospitalization Program at her own request. ( Id. ) Her chief complaint was feeling frequently angry and outbursts. ( Id. ) Her diagnosis was ADHD "not optimally controlled" and ODD and OCD "well controlled." (R. 524.) J.B. had a GAF of 60 and Phsychosocial stressors were noted to be moderate: her primary problem at school was with self esteem and peer interaction; and she had a good support system with her aunt and felt comfortable at home. ( Id. )

The March 2, 2011, Northern Tier Partial Program Master Treatment Plan indicates J.B.'s anticipated discharge from the program was during the week of March 14, 2011, when she would return to Northeast Bradford. (R. 518.) Ms. Wheeler was to schedule an appointment through NHS for mobile therapy while J.B. was at school. ( Id. ) The Plan also indicates J.B. made progress on all identified goals during the review period. (R. 519-20.) She generally participated well in groups and was respectful to peers and staff. ( Id. ) She could be obstinate and rude when she did not want to do something but would usually complete it with prompting. ( Id. ) J.B. generally completed work and assignments with few problems, although there was one incident where she refused to complete her work and was rude to staff and her teacher. ( Id. ) J.B. generally was able to control her anger during the review period but had two days where she became angry over not being able to do what she wanted. ( Id. ) It was noted in one instance she was able to calm down and refocus after a silent lunch, and that she enjoys attention when angry or upset. ( Id. ) This Master Treatment Plan was signed by Jody McCarty, primary therapist, Jenny Young, LSW, clinical supervisor, George Sowerby, M.D., psychiatrist, Ms. Wheeler, and J.B. (R. 521.)

At a March 26, 2011, Psychiatric Clinic visit at Northern Tier Counseling, Teresa Hennessey, R.N., noted that J.B. was not compliant with medications but both J.B. and her aunt reported that things were going well.[3] (R. 532.) J.B. was back at Northeast Bradford school and reported to be getting along with students and teachers, her grades were "ok, " and her sleep pattern was stable. ( Id. )

On March 29, 2011, Teresa Hennessey, R.N., noted that J.B. continued to do well and was stable. (R. 535.)

On May 24, 2011, Ms. Hennessey noted a GAF of 46 and some academic decline. (R. 537.) J.B. reported she was getting along with others, and had a stable sleep pattern. ( Id. ) She also noted that J.B. seemed to be making progress with her coping skills. ( Id. )

On June 7, 2011, Sue Middaugh, a learning support teacher at Northeast Bradford, completed a Teacher Questionnaire. (R. 132-39.) Ms. Middaugh had known J.B. for three months and saw her daily during school for science and study hall. (R. 132.) Plaintiff was a ninth grade student who was at an eighth grade instructional level in reading, math and written language. ( Id. ) J.B. was in regular classes except for math. ( Id. ) In the domain of "Acquiring and Using Information, " Ms. Middaugh rated J.B. as having an obvious problem in comprehending and doing math problems.[4] (R. 133.) She additionally noted that J.B. was nervous in big groups, had low self-esteem for ability and was easily distracted and off task. ( Id. ) She added that J.B. had aide support in regular education classes, study halls in the Learning Support Room, and math and science in the Learning Support Room. ( Id. ) In the domain of "Attending and Completing Tasks, " Ms. Middaugh noted that J.B. had obvious problems in the following areas: "Focusing long enough to finish assigned activity or task"; "Completing class/homework assignments"; "Working without distracting self or others"; and "Working at reasonable pace/finishing on time." (R. 134.) She added that J.B. waits until the last minute to do things, and, even with support in place, she procrastinates. ( Id. ) In the domain of "Interacting and Relating with Others, " Ms. Middaugh noted obvious problems in the areas of "Expressing anger appropriately" and "Relating experiences and telling stories." (R. 135.) She noted it was necessary to implement behavior modification strategies, i.e., J.B. was sent to Alternative Education Program during the school year. ( Id. ) Ms. Middaugh added that J.B. did well at the program and returned to her home school where she was put in small size classes with supports and accommodations. ( Id. ) J.B. had no problems in the domain of "Moving About and Manipulating Objects." (R. 136.) In the domain of "Caring for Himself or Herself, " Ms. Middaugh found obvious problems in the following areas: Handling frustration appropriately; Being patient when necessary; Identifying and appropriately asserting emotional needs; Responding appropriately to changes in own mood (e.g., calming self); and "Using appropriate coping skills to meet daily demands of school environment." (R. 137.) Ms. Middaugh added that J.B. had mood swings daily, when she was feeling anxious or irritated she would ask to go to guidance or sent to time out or to the nurse and she would do these behaviors when trying to avoid work or tests. ( Id. )

At J.B.'s June 27, 2011, psychiatric clinic visit to Northern Tier Counseling, Ms. Hennessy noted that J.B. was "getting along with everyone, " her mood was stable, her sleep pattern stable, and she denied anger outbursts. (R. 577.) She reported a GAF of 50. ( Id. )

In a Disability Determination Explanation dated July 13, 2011, Ira Gensemer, Ed.D., determined that J.B. was not disabled. (R. 73.) He reviewed evidence from KidsPeace, Northeast Bradford Junior/Senior High School, Northern Tier Counseling, and David August, D.O. (R. 70-71.) Based on the evidence, including the Teacher Questionnaire, Dr. Gensemer determined that J.B.'s limitations were less than marked in the domains of Acquiring and Using Information, Attending and Completing Tasks, Interacting and Relating with Others, Caring for Yourself, and Health and Physical Well-Being. (R. 72.) He determined that J.B. had no limitation in the domain of Moving About and Manipulating of Objects. ( Id. )

On July 28, 2011, J.B. was seen by Dr. Sowerby for her Northern Tier clinic visit. (R. 576.) J.B.'s aunt, Ms. Wheeler, reported that J.B.'s behavior was worsening, and J.B. wanted to drop out of school. ( Id. ) Dr. Sowerby reported a GAF of 60 and noted that J.B. was diffusely angry and had very low frustration tolerance. ( Id. ) He changed her medications and wanted to see her in one month. ( Id. )

On September 16, 2011, J.B. was seen by Ms. Hennessey who assessed a GAF of 60 and noted that J.B. had run out of Adderall one week before. (R. 573.) J.B.'s mood was reported to be "ok." ( Id. ) Although her anger issues had improved somewhat, Ms. Hennessey reported that J.B. still showed poor insight into why her anger increased or effective coping skills. ( Id. ) J.B. was verbally aggressive at home, but school staff had not reported any behavioral concerns. ( Id. ) J.B. reported she had friends at school and her grades were low. ( Id. ) Overall, Ms. Hennessey found improved progress. ( Id. ) She suggested that J.B. ask for more academic support at school. ( Id. )

On October 28, 2011, Ms. Hennessey assessed a GAF of 45. (R. 571.) Plaintiff had not been compliant with medications: Ms. Wheeler reported finding them in her room after J.B. hid the medications instead of taking them. ( Id. ) J.B. was skipping classes and/or going to the nurse's office, her academics were declining, and she found school boring. ( Id. ) Ms. Hennessey found J.B. to be more sarcastic and inappropriate, especially when discussing serious topics. ( Id. ) J.B. was not completing her school work, remained defiant toward her guardians, and reported poor sleep approximately seven nights per month. ( Id. ) Ms. Hennessey noted that Ms. Wheeler would supervise J.B. taking all medications, and J.B. would see Dr. Sowerby at his next available appointment. ( Id. )

On December 7, 2011, J.B. saw Dr. Sowerby who assessed a GAF of 45. (R. 570.) J.B. was not compliant with her medications. ( Id. ) She was failing in school, angry all the time, and not sleeping well. ( Id. ) Dr. Sowerby indicated a ...


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