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Priest v. Colvin

United States District Court, D. South Carolina

March 2, 2016

Joshua T. Priest, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, Magistrate Judge.

         This 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. § 405(g) and § 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.

         I. Relevant Background

         A. Procedural History

         On 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History

         Barbara 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.

         Ms. 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 336-37.

         Ms. 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.[1] 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.

         Plaintiff 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"). Id.

         On 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.

         On 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.

         Plaintiff 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 evaluation. Id.

         State 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.

         On July 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.

         State 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 431-33.

         On 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 Concerta. Id.

         Plaintiff 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.

         On 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

         The 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.

         A May 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.

         A 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.

         An IEP 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.

         On May 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.

         An IEP 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.

         Mr. 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. at 300.

         4. Function Reports

         An 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[2] 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.

         Ms. 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.

         Ms. 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 ...


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