United States District Court, D. South Carolina
Joshua T. Priest, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
appeal from a denial of social security benefits is before
the court for a Report and Recommendation
("Report") pursuant to Local Civ. Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action
pursuant to 42 U.S.C. Â§ 405(g) and Â§ 1383(c)(3) to obtain
judicial review of the final decision of the Commissioner of
Social Security ("Commissioner") denying his claims
for Supplemental Security Income ("SSI") and
Child's Insurance Benefits ("CIB"). The two
issues before the court are whether the Commissioner's
findings of fact are supported by substantial evidence and
whether she applied the proper legal standards. For the
reasons that follow, the undersigned recommends that the
Commissioner's decision be reversed and remanded for
further proceedings as set forth herein.
March 28, 2012, Plaintiff protectively filed an application
for SSI in which he alleged his disability began on March 24,
1994. Tr. at 61, 179-84. Plaintiff subsequently filed an
application for CIB on October 16, 2013. Tr. at 196-98. His
applications were denied initially and upon reconsideration.
Tr. at 64-67, 68-69. On December 3, 2013, Plaintiff had a
hearing before Administrative Law Judge ("ALJ")
Roseanne P. Gudzan. Tr. at 29-59 (Hr'g Tr.). The ALJ
issued an unfavorable decision on January 21, 2014, finding
that Plaintiff was not disabled within the meaning of the
Act. Tr. at 7-28. Subsequently, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner for purposes
of judicial review. Tr. at 1-4. Thereafter, Plaintiff brought
this action seeking judicial review of the Commissioner's
decision in a complaint filed on March 13, 2015. [ECF No. 1].
Plaintiff's Background and Medical History
was 19 years old at the time of the hearing. Tr. at 34. He
completed twelve years of public education and obtained a
district occupational credential. Tr. at 42, 322. He has no
past relevant work. Tr. at 57. He alleges he has never been
able to work. Tr. at 179.
Mason, Ed. S. ("Ms. Mason"), saw Plaintiff for a
psychological evaluation on February 7, 2006 (age 11 years,
10 months). Tr. at 335. She indicated Plaintiff had last been
evaluated on January 19, 2003 (age 8 years, 9 months), and
obtained the following scores on the third edition of the
Wechsler Intelligence Scale for Children
("WISC-III"): verbal intelligence quotient
("IQ") of 59; performance IQ of 62; and full-scale
IQ of 56. Tr. at 335. She stated Plaintiff's test scores
were in the mild mentally disabled range. Id. She
indicated Plaintiff was in a self-contained classroom and had
difficulty with socialization. Tr. at 336.
Mason observed Plaintiff in a classroom setting and noted the
following abnormalities: needed instructions repeated;
distracted by noise, color, movement, and activity; displayed
a short attention span; fidgeted, was restless, and did not
sit still; manipulated objects on desk, clothing, etc.;
failed to remain in seat; became overly excited and
overstimulated; had difficulty delaying gratification;
daydreamed and seemed preoccupied or withdrawn; failed to
follow directions; failed to complete work independently;
provided responses that were irrelevant to the task at hand;
had difficulty remembering lessons from one day to the next;
needed repeated or lengthy attempts to remember new
information; lost or failed to complete assignments; was
repeatedly late for class; had difficulty beginning tasks;
had difficulty applying phonetic rules to sound out words;
had difficulty applying subskills to a whole task; became
stubborn, uncooperative and resistant to completing assigned
work; engaged in silly, immature, and attention-getting
behavior; responded impulsively with no attention to accuracy
or details; made careless errors and omitted information from
work; repeatedly made identical errors; demonstrated poor
handwriting; had difficulty copying information; paused and
searched for appropriate words and had difficulty sequencing
words when speaking; and demonstrated difficulty responding
to non-verbal cues, gestures, and facial expressions. Tr. at
Mason administered the fourth edition of the Wechsler
Intelligence Scale for Children ("WISC-IV") and
assessed the following scores: 67 on verbal comprehension
index ("VCI"); 47 on perceptual reasoning index
("PRI"); 62 on working memory index
("WMI"); and 73 on processing speed index
("PSI"). Tr. at 338. Plaintiff had a full scale IQ
score of either 53 or 63. Tr. at 338. Ms. Mason noted
discrepancies between Plaintiff's VCI and PRI scores and
explained that Plaintiff may have more difficulty processing
and understanding materials presented visually than those
presented orally. Id. She stated Plaintiff had
difficulty understanding social situations and may react
impulsively. Id. Ms. Mason also administered the
Kaufman Test of Educational Achievement, Second Edition, and
Plaintiff scored in the moderate mentally disabled range in
math concepts and applications and in the mild mentally
disabled range in listening comprehension. Tr. at 338-39. Ms.
Mason indicated Plaintiff had difficulty with simple addition
and subtraction and was only able to read the words "on,
" "it, " and "apple" on the word
recognition portion of the test. Tr. at 339. Plaintiff's
scores on the Behavior Assessment for Children
("BASC") scale showed him to be at-risk for
hyperactivity, aggression, attention problems, and study
skills. Tr. at 339-40. Dr. Rabon, a special education
teacher, administered the Vineland Adaptive Behavior Scales
("VABS") interview to Plaintiff's grandmother
to assess his communication, daily living, and socialization
skills. Tr. at 340. Based on his grandmother's report,
Plaintiff's scores ranged from the mild mentally disabled
range in socialization skills to the borderline range in
communication and daily living skills. Id. Ms. Mason
concluded that Plaintiff had a mild mental disability and
would best be served in a classroom that would work on
functional living skills and academics. Tr. at 341.
presented to Edward C. Holscher, M.D. ("Dr.
Holscher"), on June 7, 2011, for mental health
treatment. Tr. at 346-47. He reported that his sleep and
focus were okay and that his peer conflicts had ended. Tr. at
346. He stated that he did not know if he would pass his
classes. Id. Plaintiff's symptoms targeted for
treatment included hyperactivity, inattentiveness,
hyperverbal response, oppositional behavior, and sleep and
appetite disturbance. Id. A mental status
examination was normal. Id. Dr. Holscher assessed
attention deficit hyperactivity disorder ("ADHD").
October 12, 2011, Plaintiff indicated to Dr. Holscher that he
was in eleventh grade and that his grades and mood were okay
on his medications. Tr. at 348. A mental status examination
was normal. Id. The treatment note indicated
Plaintiff had been prescribed Depakote for seizures in the
past, but that it had been discontinued because he had
experienced no seizures since 2002. Tr. at 349.
February 10, 2012, Plaintiff reported to Dr. Holscher that he
was taking his medications. Tr. at 350. He stated he was
having problems with irritability at home, but was
experiencing no conflicts at school, aside from being teased
by his peers. Tr. at 350-51. Id. A mental status
examination was normal. Tr. at 350.
presented to consultative psychologist Douglas R. Ritz, Ph.
D. ("Dr. Ritz"), for a psychological evaluation on
May 25, 2012. Tr. at 389-92. Plaintiff's mother
("Ms. Dollard") reported that he did not do chores
and that she had to make him take care of his personal
grooming. Tr. at 390. Plaintiff indicated he had no friends.
Id. Dr. Ritz observed that Plaintiff had a body
odor. Id. Plaintiff admitted that he had not taken
Vyvanse on the day of the evaluation or Risperdal on the
prior night. Id. Dr. Ritz indicated Plaintiff
demonstrated poor effort on testing and that the test results
were not an accurate estimate of his cognitive or academic
functioning. Id. Dr. Ritz indicated the evidence
suggested Plaintiff was "at least minimizing if not
malingering during this assessment." Tr. at 392. He
stated Plaintiff likely had significant learning deficits,
but that they could not adequately be assessed during the
agency consultant Lisa Clausen, Ph. D. ("Dr.
Clausen"), reviewed the record and completed a
psychiatric review technique form ("PRTF") on June
1, 2012. Tr. at 396-409. She considered Listings 12.04 for
affective disorders and 12.05 for mental retardation. Tr. at
396. She found that Plaintiff had ADHD and a learning
disability, not otherwise specified. Tr. at 399, 400. Dr.
Clausen indicated that the record contained insufficient
evidence for her to assess Plaintiff's degree of
functional limitation. Tr. at 406.
30, 2012, Plaintiff reported to Dr. Holscher that he would be
entering the twelfth grade and was on the football team. Tr.
at 413. A mental status examination was normal. Id.
agency consultant Judith Von, Ph. D. ("Dr. Von"),
reviewed the record and completed a PRTF on October 24, 2012.
Tr. at 417-30. She considered Listing 12.02 for organic
mental disorders. Tr. at 417. She found that Plaintiff had
ADHD and a learning disorder. Tr. at 418. She indicated
Plaintiff had no restriction of activities of daily living
and moderate difficulties in maintaining social functioning
and concentration, persistence, or pace. Tr. at 427. Dr. Von
also completed a mental residual functional capacity
("RFC") assessment and found that Plaintiff had
moderate limitations in the following abilities: to
understand and remember detailed instructions; to carry out
detailed instructions; to work in coordination with or
proximity to others without being distracted by them; to
interact appropriately with the general public; to accept
instructions and respond appropriately to criticism from
supervisors; and to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. Tr. at
February 14, 2013, Plaintiff presented to Philip Sinato, Jr.,
M.D. ("Dr. Sinato"), for mental health treatment.
Tr. at 436-37. After some discussion, Plaintiff revealed to
Dr. Sinato that he had not been taking his medications. Tr.
at 436. He complained that Vyvanse caused stomach upset.
Id. He indicated that he was not doing well in
school and had been suspended 15 to 20 times during the
current school year. Id. Plaintiff reported anger
issues, and Dr. Sinato noted that Plaintiff was distracted by
his cell phone during the interview. Id. Dr. Sinato
indicated Plaintiff made poor eye contact and seemed to lack
motivation. Id. He assessed Plaintiff to have poor
judgment and insight. Tr. at 437. He prescribed Risperdal and
and Ms. Dollard followed up with Dr. Sinato on May 22, 2013.
Tr. at 439-41. Ms. Dollard reported that Concerta was working
better than Vyvanse, but that Plaintiff had a grand mal
seizure after starting the new medication. Tr. at 439. She
stated Plaintiff had not seen a neurologist in several years.
Id. She indicated Plaintiff continued to experience
"very bad mood swings" and to be quickly angered.
Id. Dr. Sinato observed that Plaintiff appeared
disinterested and had limited judgment and insight. Tr. at
440. He discontinued Concerta because it could precipitate
seizures and prescribed Strattera. Tr. at 439. He prescribed
Valproate for seizures and advised Ms. Dollard to schedule
Plaintiff for an appointment with a neurologist. Tr. at 441.
August 28, 2013, Ms. Dollard reported to Marc Weinbaum, M.D.
("Dr. Weinbaum"), that Plaintiff was doing well and
was less distracted than he had been without medication. Tr.
at 442. Plaintiff indicated that he was sleeping well and had
an adequate appetite. Id. Dr. Weinbaum described
Plaintiff as "minimally participating" and
"fidgety." He stated Plaintiff's cognition was
fair, but that he was "still distractible" and did
not want to be there. Id. He stated Plaintiff's
judgment was improving, but that his insight was limited. Tr.
at 443. He indicated Plaintiff had sleep-related
hallucinations and that his thought process was distractible.
Id. 3. Education Records
record contains multiple disciplinary reports for the period
from October 14, 2009, to November 10, 2011 (ages 15 to 17).
Tr. at 215-16. Plaintiff engaged in improper conduct that
included threatening to fight other students; using profane
language; possessing a weapon; being tardy on an excessive
basis; using his cell phone in class; standing and walking
while his school bus was in motion; throwing objects; cutting
class; disrupting class; and being disrespectful to his
teachers, peers, and bus driver. Id.
12, 2011 (age 17), individualized education program
("IEP") plan indicates that Plaintiff received a
below basic score in reading. Tr. at 325. His teachers
indicated he had difficulty blending sounds to make words and
recalling details. Id. Plaintiff could write in
complete simple sentences, but spelled words incorrectly.
Id. He struggled with an introduction and basic
details when writing a simple paragraph and was unable to
write complex or compound sentences. Id. He obtained
a below basic score in math. Id. He could add
without regrouping, but was unable to multiply. Id.
Plaintiff's daily living skills were indicated to be
commensurate with those of his peers. Id.
behavioral intervention plan dated March 28, 2012 (age 18),
indicated Plaintiff was fighting on the bus between the
vocational center and the high school. Tr. at 373. To address
the problem, Plaintiff was to be separated from the other
students and monitored while on the bus. Id.
plan dated April 26, 2012, indicated Plaintiff was enrolled
in the eleventh grade and performed more efficiently in
Junior Reserve Officers' Training Corps
("JROTC") and vocational classes. Tr. at 361. It
indicated Plaintiff's math and reading scores had
improved slightly. Id. Plaintiff scored on a first
grade level in language arts on Measure of Academic Progress
("MAP") testing. Id. He was able to read
two-syllable words fluently with 60 percent understanding.
Id. He continued to struggle with spelling, complex
sentences, and basic paragraph construction. Id.
Plaintiff also scored on a first grade level on the math
portion of the MAP test. Id. He demonstrated an
extremely aggressive temper and attitude. Id. He
showed little respect for adults and authority. Id.
He was very susceptible to peer pressure and easily
distracted. Id. He often forgot manners and values
toward others. Id. However, Plaintiff's daily
living skills were described as commensurate with those of
his peers. Id.
4, 2012, Plaintiff's teacher Daniel McNair ("Mr.
McNair") completed a questionnaire regarding
Plaintiff's functioning. Tr. at 260-67. He indicated that
he spent three hours per day with Plaintiff and taught him
math and English. Tr. at 260. Mr. McNair indicated Plaintiff
functioned on a first grade level in reading, writing, and
math. Id. He considered Plaintiff's abilities to
acquire and use information and indicated he had serious
problems comprehending and doing math problems and expressing
ideas in written form and obvious problems understanding
school and content vocabulary, reading and comprehending
written material, understanding and participating in class
discussions, providing organized oral explanations and
adequate descriptions, learning new material, recalling and
applying previously learned material, and applying
problem-solving skills in class discussions. Tr. at 261. Mr.
McNair specified that Plaintiff could not spell words
correctly, write a complete sentence, or perform simple
addition and subtraction. Id. He considered
Plaintiff's abilities to attend and complete tasks and
indicated he had serious problems focusing for long enough to
finish assigned activities or tasks, completing classwork and
homework assignments, completing work accurately without
careless mistakes, and working without distracting himself or
others. Tr. at 262. He described Plaintiff as having obvious
problems carrying out simple and multi-step instructions,
waiting to take turns, changing from one activity to another
without being disruptive, and working at a reasonable
pace/finishing on time. Id. He indicated these
problems occurred on an hourly basis. Id. Mr. McNair
considered Plaintiff's abilities to interact and relate
with others and indicated he had an obvious problem
expressing anger appropriately, following rules, respecting
and obeying adults in authority, and taking turns in a
conversation. Tr. at 263. He indicated Plaintiff could become
very aggressive and liked to please his peers with negative
behavior. Id. He considered Plaintiff's
abilities to move about and manipulate objects and found that
Plaintiff had obvious problems with respect to his ability to
move his body from one place to another and his ability to
move and manipulate things. Tr. at 264. However, he noted
that Plaintiff was playing football and stated that "may
give you a since [sic] of his motor skills."
Id. Mr. McNair considered Plaintiff's ability to
engage in self-care and indicated Plaintiff had a serious
problem using appropriate coping skills to meet daily demands
of the school environment and obvious problems handling
frustration appropriately, being patient when necessary, and
cooperating in or being responsible for taking his needed
medications. Tr. at 265. He noted that Plaintiff had very
good or excellent personal hygiene and dressed very well.
Id. He indicated Plaintiff took his medication
regularly, but noted that he could "become a major
problem" without medication. Tr. at 266.
plan from May 2012 indicated Plaintiff expressed an interest
in carpentry and that his post-secondary goal was to obtain a
job with a construction crew and receive on-the-job training.
Tr. at 320. The IEP plan reflected that Plaintiff was to
receive a district occupational credential instead of a high
school diploma. Tr. at 322.
McNair completed a second questionnaire on September 18,
2012. Tr. at 295-302. He indicated Plaintiff was reading and
performing math on a first grade level and writing on a
second grade level. Tr. at 295. He assessed Plaintiff as
having obvious problems acquiring and using information and
attending and completing tasks. Tr. at 296, 297. He indicated
Plaintiff had obvious problems interacting and relating with
others in most activities and required a behavioral
intervention plan. Tr. at 298. He noted Plaintiff had some
difficulty communicating orally when the topic of
conversation was unknown. Tr. at 299. He stated Plaintiff had
obvious problems moving about and manipulating objects. Tr.
at 299. He indicated Plaintiff had obvious problems handling
frustration appropriately and being patient when necessary,
but had only slight problems in most areas of self-care. Tr.
unsigned function report dated April 2, 2012, indicated
Plaintiff had some vision problems, but had not yet been
prescribed glasses. Tr. at 228. The individual who completed
the report stated Plaintiff had problems talking clearly, but
could be understood by those who knew him most of the time
and by those who did not know him some of the time. Tr. at
229. She indicated Plaintiff was unable to perform the
following communication-related abilities: answer the
telephone and make telephone calls; deliver phone messages;
tell jokes or riddles accurately; explain why he did
something; use sentences with "because, "
"what if, " or "should have been"; ask
for what he needs; talk with family; and talk with friends.
Tr. at 230. She stated Plaintiff was unable to read and
understand comics and cartoons; read and understand stories
in books, magazines, or newspapers; tell time; multiply and
divide numbers over 10; and understand money or make correct
change. Tr. at 231. She indicated Plaintiff was limited in
his abilities to ride a bike, run, dance, jump rope, play
sports, and drive a car. Id. She stated Plaintiff
did not have friends his own age; had difficulty making new
friends; and did not play team sports. Tr. at 232. She
indicated Plaintiff was limited in his abilities to take care
of his personal needs and safety: to take care of personal
hygiene (keeping clean, brushing teeth, combing hair); to
wash and put away his clothes; to help with chores around the
house; to prepare his own meals; to study and do homework; to
take needed medication; to use public transportation; to
accept criticism or correction; to avoid accidents; and to
ask for help when needed. Tr. at 233. She indicated Plaintiff
had difficulty paying attention and remaining on task to
complete homework and chores on time. Tr. at 234.
Dollard completed an adult function report on April 14, 2012.
Tr. at 247-57. She indicated Plaintiff's ability to work
was limited by his short attention span, seizure activity,
and drowsiness caused by his medications. Tr. at 247. She
stated she woke Plaintiff each morning, administered his
medications, and stayed with him while he waited for his bus
to arrive. Tr. at 250. She indicated she had to prompt
Plaintiff to bathe, brush his teeth, and fix his hair. Tr. at
250-51. She stated Plaintiff was not allowed to use the
stove, but could heat a sandwich in the microwave. Tr. at
251. She indicated Plaintiff sometimes made his bed after
being reminded to do so many times, but did not do yard work
because of an inability to use equipment and follow
directions. Tr. at 251-52. She stated Plaintiff watched
television, played basketball, and attended school and
church. Tr. at 253. Ms. Dollard indicated Plaintiff had
difficulty walking, lifting, bending, completing tasks,
concentrating, understanding, following instructions, and
getting along with others. Tr. at 254. She stated Plaintiff
preferred to be by himself. Tr. at 255. She indicated
Plaintiff had difficulty handling stress and responding to
changes in routine. Tr. at 256.
Dollard completed another function report on July 3, 2012.
Tr. at 280-91. She indicated Plaintiff had unpredictable
seizures. Tr. at 280. She stated Plaintiff experienced
nightmares and engaged in sleepwalking. Tr. at 265. She
indicated Plaintiff resisted changing clothes and bathing on
a daily basis and made a mess when eating and using the
toilet. Id. She stated Plaintiff was unable to
administer his own medications or to prepare his own meals.
Tr. at 266. She indicated Plaintiff sometimes assisted her in
raking leaves, but only if she stayed in the yard with him.
Id. She stated she ...