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San v. Colvin

United States District Court, D. Massachusetts

September 23, 2014

S. A. N., Plaintiff,
CAROLYN W. COLVIN, [1] Acting Commissioner, Social Security Administration, Defendant.


DAVID H. HENNESSY, Magistrate Judge.

The Plaintiff, S.A.N., seeks reversal of the decision by the Defendant, the Commissioner of the Social Security Administration ("the Commissioner"), denying her Supplemental Security Income ("SSI"), or, in the alternative, remand to the Administrative Law Judge ("ALJ"). (Docket #11). The Commissioner seeks an order affirming her decision. (Docket #16). These matters are now ripe for adjudication.

For the reasons that follow, Plaintiff's Motion for Judgment on the Pleadings (Docket #11) is DENIED and Defendant's Motion for Order Affirming the Decision of the Commissioner (Docket #16) is ALLOWED.


A. Procedural History

On April 9, 2010, an application for SSI was filed on behalf of S.A.N., a child under age eighteen, alleging a disability onset date of December 1, 2009. (Tr. 104). The application was initially denied on June 30, 2010. (Tr. 49). S.A.N. filed a request for reconsideration, which was denied on October 28, 2010. (Tr. 54). Pursuant to S.A.N.'s request, a hearing was held before an ALJ on October 25, 2011. (Tr. 27, 57). S.A.N., represented by counsel, and her mother appeared, with S.A.N.'s mother providing testimony. (Tr. 29). After the hearing, on October 28, 2011, a psychological evaluation was received into the record. (Tr. 11, 285-90). On December 8, 2011, the ALJ rendered a decision unfavorable to S.A.N, finding that S.A.N. had not been disabled since April 9, 2010. (Tr. 8, 23).

On February 1, 2012, S.A.N. filed a request for review of the ALJ'S decision. (Tr. 7). On November 9, 2012, the Appeals Council denied S.A.N.'s request for review. (Tr. 1). Having timely pursued and exhausted her administrative remedies before the Commissioner, S.A.N. filed a Complaint in this Court on January 9, 2013, pursuant to 42 U.S.C. ยง 405(g). (Docket #1). S.A.N. filed a Motion for Judgment on the Pleadings on May 23, 2013 (Docket #11), and the Commissioner filed a cross-motion on August 14, 2013 (Docket #16).

B. Medical and Personal History

On March 4, 2009, S.A.N. was referred to Valley Psychiatric Service for psychological testing to help assess her cognitive, emotional, and behavioral functioning. (Tr. 169, 176). The referral was made due to concerns about S.A.N.'s fights with her brother, talking back, inability to sit still, poor appetite, and poor sleep. (Tr. 173, 176). On April 8, 2009, S.A.N. was diagnosed by Thomas Rollend, Licensed Marriage and Family Therapist, with oppositional defiance disorder and parent-child relationship problems. (Tr. 164, 174-75). Rollend assigned S.A.N. a Global Assessment of Functioning ("GAF") score of 50.[2] (Tr. 175).

On April 27, 2009, S.A.N. was examined by Dr. Nancy M. Kloczko as part of a wellchild visit. (Tr. 160). Dr. Kloczko noted that S.A.N. was healthy, growing and developing normally, and her asthma was well-controlled. (Tr. 161). Dr. Kloczko observed that S.A.N. was seeing a therapist for hyperactive behavior and sleep problems. (Tr. 160). Dr. Kloczko noted that S.A.N. was able to play well with her peers and had no behavioral or academic issues in preschool. (Id.).

On December 2, 2009, Dr. Daniel Chapelle, licensed clinical psychologist at Valley Psychiatric Service, completed a psychological evaluation of S.A.N, diagnosing her with oppositional defiant disorder, dysthymic disorder, and rule out adjustment disorder with mixed disturbance of emotions and conduct. (Tr. 180). Dr. Chapelle also diagnosed S.A.N. with rule out attention deficit hyperactivity disorder ("ADHD"). (Tr. 181). However, Dr. Chapelle stated that, while S.A.N.'s "behavior presentation during testing suggested a vulnerability for motoric overactivity (restlessness and/or needing to be constantly in motion) her actual test performance seems to suggest average attentional and concentration skills." (Id.). Dr. Chapelle observed that S.A.N. was "virtually constantly in motion, with a great deal of wiggling and squirming in her chair, " but "her attention per se was generally good and sustained, and she remained in or near her seat for the entire duration of testing without any kind of walking away from the testing desk." (Tr. 177-78). Dr. Chapelle stated that "both test findings and test behavior seem to argue against a diagnosis of attentional deficit, " (Tr. 179), but suggested that it would be helpful to ask two or three of S.A.N.'s teachers to complete an ADHD questionnaire to further assess the possibility of ADHD (Tr. 181).

On March 2, 2010, S.A.N. was examined by Lynda LaFountain, an advanced practice registered nurse, at Valley Psychiatric Service. (Tr. 166). LaFountain observed that S.A.N.'s mood and affect were bright and engaging and that she was mildly to moderately restless and fidgety. (Tr. 167). LaFountain stated that S.A.N. "[r]equired redirection in regards to poor boundaries and being interruptive but was able to respond to the redirection." (Id.). LaFountain also observed that S.A.N. exhibited some aggression towards others. (Id.). LaFountain identified diagnoses of oppositional defiant disorder and rule out ADHD. (Id.). S.A.N. was assigned a GAF score of 55.[3], [4] (Id.). LaFountain placed S.A.N. on Clonidine for irregular sleep. (Tr. 168). On April 5, 2010, LaFountain switched S.A.N.'s medication to Remeron. (Tr. 165).

On May 6, 2010, at an appointment with LaFountain, S.A.N.'s mother reported that S.A.N. was sleeping well on the Remeron although she continued to get up once a night. (Tr. 201). S.A.N.'s mother also reported concerns over S.A.N.'s behavioral issues. (Id.). S.A.N.'s mother reported that S.A.N. had "meltdowns, " threw fits, broke a window at one point, had shown some fire-setting behaviors, and continued to be aggressive towards others. (Id.). LaFountain opined that S.A.N.'s affinity for rough play and loud noises could be due to sensory issues and/or behavioral issues as "[h]er checklist came back almost nonexistent for symptoms of ADHD." (Id.). LaFountain referred S.A.N. for sensory evaluation at Weldon Rehabilitation ("Weldon") and placed S.A.N. on the Clonidine patch to help calm some of her behaviors. (Tr. 201, 228). That same day, S.A.N. was evaluated by Weldon for outpatient occupational therapy. (Tr. 228).

On June 30, 2010, Dr. Aaron Leavitt, a Valley Psychiatric Service psychiatrist, completed a Social Security disability evaluation of S.A.N. (Tr. 189-91). Dr. Leavitt had last examined S.A.N. on June 2, 2010, and also referred to Dr. Chapelle's testing on December 2, 2009 as support for his conclusions. (Tr. 189). Dr. Leavitt stated S.A.N.'s diagnosis as oppositional defiant disorder and dysthymic disorder. (Tr. 190). He noted no problems with S.A.N.'s communication or motor skills, "although she refuses to do what she was instructed to do and needed to be redirected." (Tr. 189-90). He stated that S.A.N. was emotional, sensitive, clingy, and had no friends. (Tr. 191). He also noted that S.AN. yells at and is aggressive with her peers. (Id.). Dr. Leavitt stated that S.A.N. needed constant supervision with tasks such as homework, dressing, and eating, and that she had difficulty focusing on one thing. (Id.).

S.A.N. began treatment with Weldon on July 13, 2010. (Tr. 228-32). S.A.N.'s mother told the staff that S.A.N. was in constant motion and was always getting in trouble at home and in school because she cannot sit still. (Tr. 231). S.A.N.'s mother further reported that S.A.N. has a few friends at school, but often has difficulty keeping friends because she can be bossy and will fight with her friends. (Id.). Progress notes made during the treatment with Weldon reported that S.A.N. behaved and interacted well and she worked attentively on all assigned projects despite some occasional signs of impulsivity. (Tr. 216, 218, 220, 222, 224, 226, 229).

At her August 10, 2010 appointment, LaFontain noted that S.A.N. "appears to do better in school for the most part, it's home that are the major issues." (Tr. 199). LaFontain recommended Tenex as a medication to help with S.A.N.'s behavioral issues. (Id.). LaFontain observed that S.A.N. was well-rested. (Id.). At an appointment on September 3, 2010, LaFontain observed that S.A.N was "somewhat energetic and very active during the visit, but she responds very well to redirection." (Tr. 212). S.A.N.'s mother stated that S.A.N.'s behavior is "very hyperactive and that she seems scattered and distractible." (Id.). LaFontain observed that S.A.N. was well-rested. (Id.). LaFontain discontinued treatment with Remeron and decided to just continue S.A.N. on Tenex. (Id.).

At a November 3, 2010 well-child appointment, S.A.N.'s pediatrician, Dr. Peter Blier, observed that S.A.N. slept through the night and had no problems with sleep onset after starting medications. (Tr. 252). Dr. Blier also observed that S.A.N. liked to read, attended school regularly, had no academic or behavioral problems at school, and was able to make and keep friendships although she was very anxious and sad most of the time. (Id.).

On January 27, 2011, Rina Irizarry, a social worker at Valley Psychiatric Service, completed the "Identifying Children/Adolescents with Serious Emotional Disturbances" form with respect to S.A.N. (Tr. 265-81). Irizarry reported that S.A.N. did not have an inability to build or maintain satisfactory interpersonal relationships with peers and teachers, nor did she exhibit inappropriate types of behavior or feelings under normal circumstances. (Tr. 266). Irizarry did report that S.A.N. experienced a general pervasive mood of unhappiness or depression; however, she found no tendency to develop physical symptoms or fears associated with personal or school problems. (Id.). Irizarry assigned S.A.N. a GAF of 55.[5] (Tr. 280).

Dr. Chapelle evaluated S.A.N. for a second time on August 11, 2011. (Tr. 286-90). Dr. Chapelle noted a discrepancy between S.A.N.'s behavior at home, where she was reported as disruptive, hyperactive, argumentative, and disrespectful, versus that at school, where she was seen as sweet, shy, quiet, and respectful. (Tr. 286). Dr. Chapelle found S.A.N. to be alert, oriented, cooperative, motivated to perform up to potential, and earnest, but somewhat subdued. (Tr. 287). Dr. Chapelle noted that SA.N. was appropriate behaviorally, there was zero overactivity, and her attention was good and sustained. (Id.). Testing suggested that S.A.N.'s overall level of intellectual functioning was in the low average to average range, with weaker performance on verbal skills. (Tr. 288). Emotionally, S.A.N. had indications of pronounced depression, which appeared to be chronic and pervasive. (Tr. 288-89). However, Dr. Chapelle stated that, compared to the last evaluation, S.A.N. seemed to have developed "a little bit more tolerance for affect, and perhaps also a little bit more ability to recognize and identify some of her internal emotional experiences." (Tr. 289). Dr. Chapelle assigned S.A.N. a GAF score of 55. (Tr. 290).

On May 10, 2012, Maura Cummings, S.A.N.'s kindergarten teacher completed a teacher questionnaire. (Tr. 141-49). Ms. Cummings reported no problems in the various functional areas relevant to S.A.N.'s disability application. (Id.). Ms. Cummings noted that the problem behaviors that S.A.N.'s mother reported at home were not observed at school. (Tr. 148).

C. State Agency Opinions

On June 29, 2010, Dr. Celeste Derecho, a state agency psychologist, completed a childhood disability evaluation form with respect to S.A.N. (Tr. 182-87). Dr. Derecho concluded that S.A.N.'s records showed less than marked limitations in attending and completing tasks, interacting and relating with others, and caring for yourself. (Tr. 184-85). Dr. Derecho did not find limitations in any of the other domains. (Id.).

On October 22, 2010, Dr. Bruce Lipetz, a state agency psychologist, also completed a childhood disability evaluation form with respect to S.A.N. (Tr. 204-10). Dr. Lipetz reached similar conclusions to those of Dr. Derecho based on his review of updated records. He found that S.A.N.'s records showed less than marked limitations in attending and completing tasks, interacting and relating with others, and caring for oneself; he found no limitations in the other domains. (Tr. 206-07). Dr. Lipetz remarked that "[i]t makes no sense that the child cannot sit still at home, yells, fights with other (other than her brother which does not appear unusual for siblings) and has no problems at school." (Tr. 209). "The child appears anxious while at home but not at school." (Tr. 210). Dr. Lipetz noted "significant inconsistencies in this record with regard to the family situation and level of family conflict, the child's varied reported symptoms by the ...

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