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Naulty v. Berryhill

United States District Court, M.D. Pennsylvania

April 30, 2018

STEVEN NAULTY, as p/n/g of K.N., Plaintiff,
v.
NANCY BERRYHILL, [1] Defendant.

          BRANN, J.

          REPORT AND RECOMMENDATION

          SAPORITO, M.J.

         The plaintiff, Steven Naulty, as parent and natural guardian of K.N., his minor son, brought this action under 42 U.S.C. § 1383(c)(3), and, as incorporated by reference, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying K.N.'s claim for supplemental security income benefits under Title XVI of the Social Security Act (the "Act").

         This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we recommend that the final decision of the Commissioner be AFFIRMED.

         I. Procedural Background

         On July 31, 2013, Steven Naulty protectively filed an application for supplemental security income ("SSI") benefits on behalf of his minor son, K.N., alleging an onset of disability as of December 21, 2012, due to Charcot-Marie-Tooth Disease ("CMT"). (Tr. 119). K.N.'s claim was initially denied on September 23, 2013.

         On November 19, 2013, Naulty filed a written request for a hearing on behalf of K.N. (Tr. 83). On March 11, 2015, Naulty and K.N. both appeared and testified at a hearing before Administrative Law Judge ("ALJ") Richard Zack in Wilkes-Barre, Pennsylvania. K.N. was represented by attorney George Mehalchick, who is his counsel of record in this action as well. (Tr. 49).

         On March 30, 2015, the ALJ issued an unfavorable decision in which he found that K.N. was not entitled to SSI benefits because he was not under a disability as defined by the Act. Specifically, the ALJ found that K.N. did not have an impairment or combination of impairments that meets, medically equals, or functionally equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. On April 15, 2015, Naulty requested review of the ALJ's decision by the Appeals Council of the Office of Hearings and Administration (the "Appeals Council"). (Tr. 10-12). The Appeals Council denied the request for review on September 20, 2015. (Tr. 4-6). This makes the ALJ's decision the "final decision" of the Commissioner subject to judicial review here, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 20 C.F.R. § 416.1481.

         II. Factual Background

         K.N. was an eight-year old minor at the time of the ALJ's decision in this matter. Under Social Security regulations, K.N. is considered a school-age child. See 20 C.F.R. § 4l6.9265a(g)(2)(iv). He was first diagnosed with CMT as a five-year old in October 2012. (Tr. 171-77). Genetic testing confirmed that diagnosis in December 2012. (Tr. 201-05). K.N. presented to neurologist Sabrina Yum, MD, as a five-year old on October 9, 2012, complaining of "frequent falls and family history of CMT." (Tr. 171). KN.'s parents reported that they first noted that he was falling frequently-about twice a day-when he was two years old. (Id.). They reported that K.N.'s ankles gave out for no reason, that he always seemed to be off-balance, and that he had a lot of leg pain. (Id.). They reported that K.N. tired easily and struggled with walking up and down. (Id.). They reported that K.N. could run, but he fell more when he did so. (Id.). With respect to his fine motor function, K.N.'s parents reported that he had a hard time holding a pen, and that he could not button his clothes or use a zipper. (Id.). They reported that he could open a bag of chips, but had to work hard to do so. (Id.). Dr. Yum also noted that K.N. did not wear orthotics at the time, and he was not receiving physical or occupational therapy. (Id.).

         On examination, Dr. Yum noted that K.N.'s muscle tone was "abnormal, with diffuse hypotonia, both ependicular and axial." (Tr. 173). K.N.'s strength was "abnormal[, ] . . . [with] mild distal leg weakness, " but "[m]uscle strength in proximal muscles in arms and legs were normally strong." (Id.). Dr. Yum noted reduced sensation to temperature and vibration in K.N.'s extremities, and an abnormal Romberg test-K.N. fell after about five seconds. (Id.). Dr. Yum noted that K.N. had abnormal gait as well, exhibiting foot drop (more on the right), and a tendency to walk on his toes with his right leg swinging out slightly. (Id.). K.N. was unable to walk on his heels or with his feet in tandem (heel to toe). (Id.). Dr. Yum also noted an absence of deep tendon reflexes in K.N.'s arms and legs. (Id.). She further noted that a nerve conduction study conducted in clinic showed evidence of "mild, sensory and motor neuropathy with intermediate slowing of the median nerve." (Id.).

         Based on her examination of K.N., Dr. Yum recorded a preliminary diagnosis of X-linked CMT.[2] (Id.). In summary, Dr. Yum stated:

Kyle[, ] ¶ 5 year old boy[, ] presented with frequent falls. He has symptoms and a positive family history consistent with X-linked Charcot-Marie-Tooth disease (CMTX), and his [nerve conduction study] and his mom's [nerve conduction study] performed today also are consistent with X-linked CMT. Therefore, genetic testing for the familial Connexin 32 mutation is indicated to confirm this diagnosis. His functional limitation/problem now is due to distal leg weakness leading to foot drop and poor position sensation leading to sensory ataxia.

(Id.).

         K.N. and his parents also met with a genetic counselor that same day. Samples were taken and sent for genetic testing. Following lab analysis, a report issued on December 6, 2012, confirmed the diagnosis of X-linked CMT. (Tr. 201-05).

         K.N. presented to Dr. Yum for a follow-up as a six-year old on July 9, 2013. (Tr. 167-70). Dr. Yum noted that K.N. was "making progress." (Tr. 167). His parents reported that:

He now walks up and down steps. He falls sometimes, usually when he is in [a] hurry or when he walks on uneven ground. One of the biggest concern[s] is leg pain. He wakes crying at night with legs hurting and needs to be carried down stairs [twice] per week due to the pain. He usually still has some pain when he is sent off to school. . . 4-5 times a week.

(Id.). K.N. continued to have a hard time holding a pen, he still could not button his clothes or use a zipper, and he still had to work hard to open a bag of chips. (Id.). Dr. Yum noted that K.N. still did not wear orthotics and did not receive physical or occupational therapy. (Id.).

         On examination, Dr. Yum noted that K.N.'s muscle tone was "abnormal, with diffuse hypotonia, both ependicular and axial." (Tr. 168). K, N.'s strength was "abnormal[, ] . . . [with] mild distal leg weakness, " but "[m]uscle strength in proximal muscles in arms and legs were normally strong." (Tr. 168-69). Dr. Yum noted reduced sensation to temperature and vibration in KN.'s extremities, and an abnormal Romberg test-K.N. fell after about five seconds. (Tr. 169). Dr. Yum noted that K.N. had abnormal gait as well, exhibiting foot drop (more on the right), and a tendency to walk on his toes with his right leg swinging out slightly. (Id.). K.N. was unable to walk on his heels or with his feet in tandem (heel to toe). (Id.). Dr. Yum also noted an absence of deep tendon reflexes in KN.'s arms and legs. (Id.). Unlike KN.'s previous exam, about nine months earlier, Dr. Yum noted that K.N. was now able to jump and to climb steps without holding the rail. (Id.). Dr. Yum further noted that a nerve conduction study conducted in clinic showed evidence of "mild, sensory and motor neuropathy with intermediate slowing of the median nerve." (Id.).

         Based on her examination of K.N. and the genetic analysis results received in December 2012, Dr. Yum recorded a diagnosis of X-linked CMT. (Id.). In summary, Dr. Yum stated:

Kyle [is] ¶ 6 year old boy with genetically confirmed X-linked Charcot-Marie-Tooth disease (CMTX) due to mutation of the Cx32 gene. He has been making progress since his initial visit, but he has had frequent leg pain interfering with his sleep. In addition to weakness, he seems to have sensory ataxia based on exam.

(Id.).

         On Dr. Yum's recommendation, K.N. was examined by a physical therapist that same day. (Tr. 170). The physical therapist recommended bilateral ankle-foot orthoses, plus range-of-motion exercises for the ankle and outpatient physical therapy to work on gastrocnemius (upper calf) range of motion and pain. (Id.). With a prescription from Dr. Yum, K.N. was furnished with a pair of fitted bilateral KiddeGAIT foot-drop ankle-foot orthoses in August 2013. (Tr. 189, 194).

         The record before the ALJ did not include any subsequent medical evaluation of K.N.'s CMT-related symptoms or functional limitations after he began using his orthoses.

         It is not clear precisely when from the record, but at some point on or before July 11, 2013, K.N. was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") as well. On July 11, 2013, six-year-old K.N. and his parents met with Mara McLaughlin, LSW, and Ron Gavlick, a licensed psychologist, for a comprehensive school-based behavioral health evaluation. (Tr. 179-87). The purpose of the evaluation was to determine the need for school-based behavioral health services. (Tr. 179). K, N.'s parents reported that he had difficulty following directives at home, that he had displayed physical aggression with his siblings, and that he would often leave adults when out in the community and run in front of them. (Id.). K.N. also displayed "great difficulty" in remaining seated when expected, such as at meal time or while watching a movie, and he refused to do chores or clean up after himself. (Id.). At school, however, K.N. generally appeared able to control his behavior. (Id.). In their written report, McLaughlin and Gavlick noted that Kyle had done well on his kindergarten report card and seemed to be on track academically. (Tr. 183). They noted that he reported enjoying "running around, playing video games, and playing outside, " but that his parents expressed concern that "he could fall and seriously hurt himself due to his neurological disorder."(M). Later in the same report, McLaughlin and Gavlick noted that "[K.N.] enjoys playing video games, tag, and hide and seek." (Tr. 184). They reported a psychological diagnosis of ADHD (rule-out social anxiety), with a current Global Assessment Function ("GAF") score of 60.[3] (Tr. 186). McLaughlin and Gavlick recommended that K.N. join the School Based Behavioral Health Program. (Id.).

         On July 23, 2014, K.N. and his parents met with McLaughlin for a second time. (Tr. 206-16). In her written report, McLaughlin noted that K.N. received "mostly 3's and 4's for his first grade, fourth quarter report card, " and that he "continue[d] to do very well academically." (Tr. 210, 213). She noted that K.N. still enjoyed running around, playing video games, and playing outside, but he had also joined a local Cub Scouts pack. (Tr. 210). His parents continued to express concern that "he could fall and seriously hurt himself due to his neurological disorder." (Id.). Later in the report, McLaughlin noted that "[K.N.] enjoys playing video games, tag, and hide and seek." (Tr. 212). McLaughlin reported a psychological diagnosis of ADHD (rule-out social anxiety, rule-out oppositional defiant disorder), with a current GAF score of 60. (Tr. 214). McLaughlin recommended that K.N. continue in the School Based Behavioral Health Program. (Tr. 214-16).

         On January 7, 2015, K.N. and his parents met with McLaughlin for a third time. (Tr. 217-27). In her written ...


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