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Holliday v. Saul

United States District Court, S.D. Texas, Houston Division

July 9, 2019

KENYA HOLLIDAY, as Next Friend of D.H., a Minor, Plaintiff,



         Pending before the court[1] are Defendant's Cross-Motion for Summary Judgment (Doc. 10) and Plaintiff's Cross-Motion for Summary Judgment (Doc. 12). The court has considered the motions, the responses, the administrative record, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendant's motion be GRANTED and Plaintiff's motion be DENIED.

         I. Case Background

         Plaintiff Kenya J. Holliday, as next friend of D.H., filed this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) for judicial review of an unfavorable decision by the Social Security Administration (“SSA”) Commissioner (“Commissioner” or “Defendant”) regarding Plaintiff's claim for supplemental security income for D.H. under Title XVI of the Social Security Act (“the Act”).

         A. Medical History

         D.H. was born on May 17, 2006, the date that Plaintiff alleged to be D.H.'s disability onset date.[2] Prior to the relevant time period, [3] D.H. was diagnosed with asthma, bline intellectual functioning, [4] and mixed receptive-expressive language disorder.[5]In 2014, D.H. was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).[6]

         On August 26, 2014, Matthew P. Dickson, Ph.D., performed a psychological evaluation and found, based solely on his examination:[7]

[D.H.'s] abilities to attend to, acquire, and use information, as well as his ability to complete tasks are moderately impaired. [D.H.'s] abilities to interact and relate to others are moderately impaired. [D.H.'s] abilities to move about, manipulate objects, attend to self-care and physical well-being are moderately impaired.[8]

As diagnoses, Dr. Dickson listed ADHD and nocturnal enuresis noting also that borderline intellectual functioning and mild speech sound disorder needed to be ruled out.[9]

         A speech and language evaluation report from August 30, 2014, stated that D.H. was entering the third grade and “d[id] not receive speech therapy or special education support.”[10]

         On November 6, 2015, Nicole Entrekin (“Entrekin”), a licensed psychological associate, performed a diagnostic interview and psychological evaluation.[11] Entrekin identified the following issues as D.H.'s presenting problems: adjustment issues, hitting and kicking other children, difficulty making friends, bedwetting, hyperactivity, low academic performance/suspected reading disorder, lying and fabricating elaborate stories, self-injurious behaviors, and compulsive eating.[12]

         Entrekin administered multiple tests.[13] On a test measuring nonverbal intelligence, D.H. scored 75, placing him in the Borderline Impairment range.[14] Other tests indicated more than moderate severity in the categories of cognitive and impulsivity/distractibility impairments.[15] D.H. also exhibited a low self-concept and significant problems in the areas of attention, hyperactivity, and conduct.[16] Entrekin diagnosed D.H. with adjustment disorder with mixed disturbances of emotions and conduct, disruptive behavior disorder, ADHD, academic problem, and enuresis.[17]

         The evaluator opined, “The client appears to have minor difficulties grasping new concepts. It is also likely that inattentive tendencies and distractibility are negatively influencing his school performance.”[18] She recommended that ADHD “remain a focus in treatment” and that treatment “assist the client with these adjustment and social difficulties and to improve overall mood functioning.”[19] Entrekin found D.H.'s prognosis to be good.[20]

         B. School Records

         A June 2014 Individualized Education Program (“IEP”) developed in Michigan at the end of second grade indicated that D.H.'s overall intellectual functioning recently had been measured to be 73, which was within the Borderline range.[21] In contemporaneous testing, D.H. “demonstrate[d] reading, math and writing skills within the average expectations for his age” and demonstrated no significant weaknesses.[22]

         The IEP also included results from behavior, social, language, vocabulary, articulation, and other testing.[23] The results of teacher and parent ratings indicated that D.H. was exhibiting “serious difficulties related to his ADHD diagnosis, ” as well as conduct disorder, oppositional defiant disorder, learning problems, and difficulty with executive functioning related to learning.[24]

         In a section of the IEP related to D.H.'s present level of academic achievement and functional performance, one teacher recounted a litany of difficulties D.H. experienced in the classroom but concluded, “[D.H.] ha[d] made a lot of progress [during the] school year. He [was] working just below grade level in Social Studies, Reading, and Math.”[25] According to the IEP, D.H.'s test results “indicated that he ha[d] learned academic skills within the expectations for his chronological age, he [was] having significant difficulties with finishing independent work in the classroom and require[d] frequent reminders and accommodations by his classroom teacher to help him concentrate on his work and be more productive.”[26]

         The IEP indicated that D.H. would receive ongoing instruction and assessment in both general and special education settings.[27]Specifically identifying the educational setting, the IEP stated, “This student will fully participate with students who are nondisabled in the general education setting except for the time spent in separate special education programs/services provided outside of the general education classroom as specified in this IEP.”[28]

         Two of D.H.'s teachers completed reports in February 2015.[29]One of the teachers stated that D.H. “appear[ed] to enjoy being in the school environment[] but [did not] want to do his best” and that he was not “motivated to do well.”[30] The other teacher stated that D.H. liked and wanted to learn, especially science.[31]

         As of an IEP meeting held on October 6, 2015, in Texas, D.H. was a fourth-grade student who was qualified to receive services based on his ADHD diagnosis.[32] He received writing resource services, in-class support for language arts, and “accommodations in both general education and special education setting[s] for academic success.”[33]

         The meeting notes indicated that D.H. was reading at the level of a second grader and demonstrated difficulty with forming complete sentences and editing his work.[34] In math, his difficulties were in problem solving, illustrating a word problem, and computing, according to the notes.[35] D.H.'s handwriting was reported as “neat and legible.”[36] D.H. was observed rushing through class work and having difficulty “keeping his hands and feet to himself and allowing personal space of others around him, ” “staying on task, ” and using appropriate means to get the teacher's attention.[37] Goals were set in these areas and a behavior intervention plan was implemented.[38]

         C. Application to SSA

         Two prior applications for supplemental security income were filed for D.H. and were denied on August 12, 2010, and February 11, 2011, both without appeals.[39] Plaintiff applied a third time under a protective filing date of March 17, 2014.[40] Plaintiff alleged a disability onset of May 17, 2006, due to ADHD, “[l]earning [d]isability, can[']t sit still, has difficulties speaking, trou[b]le communicating, site [sic] of food causes throwing up, toddler level.”[41]

         On September 21, 2014, the SSA found D.H. not disabled at the initial level of review.[42] At that time, a child and adolescent psychiatrist and a speech pathologist reviewed D.H.'s record for the SSA as medical experts (“Medical Experts”).[43] They opined that D.H. had no limitation in the domains of acquiring and using information and moving about and manipulating objects and that his limitation in each of the four other domains was less than marked.[44]In the notes supporting his finding that D.H. had no limitation in the domain of acquiring and using information, one Medical Expert noted that D.H. was not placed in special education classes for second grade and that D.H.'s full-scale IQ in May 2014 was 73, which was described as within the Borderline range.[45]

         On November 12, 2014, Plaintiff requested a hearing before an ALJ.[46] In an updated disability report submitted on November 20, 2014, Plaintiff stated that D.H. was not focused at all and could not stay on task and that his concentration and behavior had worsened.[47] The ALJ granted Plaintiff's request for a hearing and scheduled the hearing on April 20, 2016.[48]

         D. Hearing

         During the hearing, which was held via video conference, D.H. and his mother testified.[49] D.H. testified first, indicating in response to the ALJ's questions that he liked school, that his favorite subject was science, especially experiments, and that his least favorite subject was writing.[50] D.H. told the ALJ that he was in special education classes for part of the school day, which he clarified on further questioning to mean more than half of the school day, and that he “[s]ometimes” earned “S's” (Satisfactory) for grades.[51] D.H. said that his mother had to remind him to complete his homework.[52] He also provided testimony about his behavior at school and his activities with siblings and friends outside of school.[53]

         Plaintiff corrected a few inaccuracies that she perceived in D.H.'s testimony regarding his behavior at school and activities outside of school.[54] She described the amount of time D.H. was in special education as follows: “Well, they told me he was supposed to be going full-time. You know, they just would take him out for, like, gym so he would be able to interact with the other kids.”[55]Plaintiff answered the ALJ's question about the “kinds of grades” D.H. received by describing them as “not good” and “borderline.”[56]When asked if D.H. had ever been held back a year, Plaintiff answered no but explained, “They tried to last year in Michigan, but the when we transferred here, they just automatically put him into his regular grade.”[57] Plaintiff stated that she had to offer rewards to try to get D.H. to complete his homework.[58] Plaintiff also reported that D.H. “forg[ot] a lot” and needed more testing in that area.[59]

         E. Post-Hearing Consultative Examination

         The ALJ requested a consultative psychological evaluation, which was performed on September 12, 2016, by Gayle Pitcher, Ph.D., (“Dr. Pitcher”).[60] Dr. Pitcher indicated that neither medical records nor school records were available for her review.[61]

         Plaintiff informed Dr. Pitcher that the ADHD was manageable when D.H. took his medication.[62] Plaintiff reported that D.H.'s daily activities included going to school, playing outside, watching television, and playing on electronic tablets.[63] She also reported that D.H. was able to bathe and dress himself, to put away his belongings with verbal cues, and to use the telephone; however, he was not able to use the microwave or make a sandwich.[64]Plaintiff said that D.H. had not repeated any school grade level but received special education services for all of his academic classes and performed academically below expectations.[65]

         Dr. Pitcher observed that D.H. “spoke in simple sentences that were grammatically correct, ” but “appeared to use below average vocabulary for a child of his age.”[66] Dr. Pitcher noted that D.H. “demonstrated very simple, but generally logical thought process that was goal directed.”[67] His abstract thinking was only “minimally adequate, ” according to Dr. Pitcher, but his “fund of information and intelligence appeared to be average, based on informal assessment.”[68]

         In testing, D.H.'s full-scale intelligence quotient (“IQ”) measured at 69, which was within the uppermost portion of the Extremely Low range.[69] Other results indicated that he was in the second-grade range in reading, the fourth-grade range in math, and the third-grade range in spelling.[70] Dr. Pitcher found no evidence of a specific learning disability.[71] She diagnosed D.H. with a mild intellectual disability in addition to ADHD and enuresis.[72]

         She opined that D.H.'s prognosis was guarded as he “continue[d] to have significant learning difficulties” but that the “prognosis could improve with consistent remedial education efforts.”[73] As far as functional capacity, Dr. Pitcher assessed D.H. to be “unlikely to have the ability to sustain concentration and persist in work/academic-related activity at a reasonable pace due to overall lower intellectual functioning.”[74] According to Dr. Pitcher, D.H. also “appear[ed] to be impaired” in his ability to problem solve and understand new information.[75]

         F. Commissioner's Decision

         On December 23, 2016, the ALJ issued an unfavorable decision.[76]The ALJ acknowledged that the alleged onset date for the current application was May 17, 2006, but determined that the prior decisions in August 2010 and February 2011 were binding and found no reason to reopen those applications.[77]

         The ALJ found that D.H. had not engaged in substantial gainful activity since the application filing date of March 17, 2014.[78] The ALJ recognized the following impairments as severe: “asthma, [ADHD], speech and language impairment, and borderline intellectual functioning.”[79] The ALJ found that D.H. did not meet the requirements of any of the medical listings for presumptive disability (“Listings”).[80] The decision specifically addressed Listings 102.10 and 102.11 for hearing loss, Listing 103.03 for asthma, Listing 111.09 for communication impairment associated with neurological disorder, Listing 112.02 for neurocognitive disorders, Listing 112.07 for somatic symptom and related disorders, and Listing 112.11 for neurodevelopmental disorders.[81]

         The ALJ began with D.H.'s prior medical and psychological treatment dating as far back as 2010.[82] The ALJ discussed D.H.'s diagnosis and treatment of ADHD, reports from his grandmother and teachers, and information in his educational records.[83] The ALJ also discussed the results of: (1) the January 2010, December 2010, May 2014, and September 2016 IQ testing; (2) the November 2015 nonverbal intelligence testing; (3) the psychological evaluations in January 2010, August 2014, November 2015, and September 2016; and (4) the results of a speech pathologist's evaluation in August 2014.[84]

         Regarding the August 2014 consultative psychological evaluation, the ALJ assigned partial weight to the Dr. Dickson's opinions on D.H.'s functional capabilities, stating that no evidence supported a finding that D.H. had any difficulties in moving about and manipulating objects and that more recent records supported a finding of marked difficulties in attending and completing tasks.[85]

         The ALJ also assigned partial weight to Dr. Pitcher's opinions included in the September 2016 consultative psychological evaluation, explaining that “[e]arlier testing, examinations, school records, and other opinions d[id] not support marked and extreme limitations in all areas as rated by Dr. Pitcher.”[86]Because Dr. Pitcher did not explain the “significant decrease in cognitive testing scores” from prior testing, the ALJ questioned those results, stating that Dr. Pitcher relied too much on subjective reporting and poor medication compliance.[87]

         The Medical Experts' opinions from September 2014 also garnered partial weight from the ALJ.[88] The ALJ specifically noted that they relied on information that D.H. was not in special education in second grade and that D.H. had scored in the Borderline range on his IQ test.[89] The ALJ concluded that “[m]ore recent testing, examinations, school records, and other medical opinions support[ed] greater limitations in the areas of acquiring and using information and attending and completing tasks.”[90]

         The ALJ then turned to his findings in terms of the six functional equivalence domains, [91] beginning with acquiring and using information.[92] Based on the evidence, the ALJ determined that D.H. had less than marked limitation in this category, citing: (1) D.H.'s enjoyment of science but not writing; (2) his mother's testimony that D.H.'s grades were borderline and that he needed reminders to complete homework; (3) D.H.'s placement in special education for a portion of the day; and (4) teacher reports that D.H. “appeared to enjoy school and wanted to learn” but that he struggled to achieve despite “special education, peer tutoring, intervention, and accommodations with assignments.”[93]

         In summary, the ALJ stated:

The medical evidence of record supports a finding of less than marked limitation in acquiring and using information. While the claimant struggled to achieve high grades, he had not been retained in any grades and he did not require special education for the full school day. According to the claimant's teachers, he showed a desire to learn. The claimant's [IQ] scores, while not stellar, were not significantly low and no examiner indicated whether his scores were considered valid reflections of his intellectual capacity.[94]

         The ALJ's conclusion stood in contrast to the Medical Experts who found no limitation at all in this domain.

         For the remaining five domains, the ALJ made the following determinations: (1) “marked limitation in attending and completing tasks;” (2) “less than marked limitation in interacting and relating with others;” (3) “no limitation in moving about and manipulating objects;” (4) “less than marked limitation in the ability to care for himself;” and (5) “less than marked limitation in health and physical well-being.”[95] As the ALJ found that D.H. did not have an impairment or a combination of impairments that met, medically equaled, or functionally equaled the severity of any Listing, the ALJ concluded that D.H. was not disabled at any time from March 17, 2014, through the date of the ALJ's decision.[96]

         On February 17, 2017, Plaintiff appealed the ALJ's decision.[97]On March 14, 2018, the Appeals Council denied Plaintiff's request for review, thereby transforming the ALJ's decision into the final decision of the Commissioner.[98] After receiving the Appeals Council's denial, Plaintiff timely sought judicial review of the decision by this court.[99]

         II. Standard of Review and Applicable Law

         The court's review of a final decision by the Commissioner denying disability benefits is limited to the determination of whether: 1) the ALJ applied proper legal standards in evaluating the record; and 2) substantial evidence in the record supports the decision. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).

         A. Legal Standard

         In order to obtain disability benefits, a claimant bears the ultimate burden of proving he is disabled within the meaning of the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). The regulations provide that a child's disability claim should be evaluated according to the following sequential three-step process: (1) whether the child is engaged in substantial gainful activity; (2) if not, whether the child has a medically determinable impairment or combination of impairments that is severe; and (3) if so, whether the child's impairment or combination of impairments meets, medically equals, or functionally equals the severity of a Listing. See 20 C.F.R. § 416.924(b)-(d). If the child's impairment or combination of impairments meets or medically or functionally equals a Listing and meets the duration requirement, the child is considered disabled. See 20 C.F.R. § 416.924(d)(1).

         To determine whether the child's severe impairment or combination of impairments functionally equals a Listing, the Commissioner evaluates the child's ability to function in the following six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). If a child's impairment results in “marked” limitations in two domains or an “extreme” limitation in one domain, that impairment is deemed functionally equal to a Listing. See 20 C.F.R. § 416.926a(a). In the process of evaluating the child's functional ability, the Commissioner must review all of the evidence of record and “compare [the child's] functioning to the typical functioning of [same-aged children] who do not have impairments.” 20 C.F.R. § 416.926a(f)(1); see also 20 C.F.R. § 416.926a(b).

         B. Substantial Evidence

         Substantial evidence “means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, U.S., 139 S.Ct. 1148, 1154 (2019)(internal quotations marks omitted)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “[W]hatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Id. It only requires “more than a mere scintilla.” Id. (quoting Consolidated Edison Co., 305 U.S. at 229).

         The Commissioner has the responsibility of deciding any conflict in the evidence. Carey v. Apfel, 230 F.3d 131, 135 (5thCir. 2000). If the findings of fact contained in the Commissioner's decision are supported by substantial record evidence, they are conclusive, and this court must affirm. 42 U.S.C. § 405(g).

         Only if no credible evidentiary choices of medical findings exist to support the Commissioner's decision should the court overturn it. See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). In applying this standard, the court is to review the entire record, but the court may not reweigh the evidence, decide the issues de novo, or substitute the court's judgment for the Commissioner's judgment. Brown v. Apfel, 192 F.3d 492, 496 (5thCir. 1999). In other words, the court is to defer to the decision of the Commissioner as much as is possible without making its review meaningless. Id.

         III. Analysis

         Plaintiff requests judicial review of the ALJ's decision to deny disability benefits. Plaintiff asserts that the ALJ should have found that D.H.'s functional limitation in the domain of acquiring and using information was “marked.” Plaintiff contends that the ALJ's conclusion that D.H.'s limitation in that domain was “less than marked” is not supported by substantial evidence. Defendant argues that the ALJ's decision is legally sound and is supported by substantial evidence.

         A “marked” limitation is one that seriously interferes with the child's ability “to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i). It is “more than moderate” but “less than extreme.” Id. As applied to test scores:

[A child has] a “marked” limitation when [he has] a valid score that is two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and [his] day-to-day ...

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