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Walker-Smith v. Colvin

United States District Court, D. Massachusetts

April 17, 2017

DENNICE WALKER-SMITH, on behalf of her minor child, A.D.W., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REVERSE OR REMAND AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         This is an appeal of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying the application of plaintiff Dennice Walker-Smith for supplemental security income (“SSI”) benefits on behalf of her minor daughter, A.D.W. Plaintiff appeals the denial of her application on the ground that the decision is not supported by substantial evidence as required by 42 U.S.C. § 405(g). Specifically, plaintiff contends that the administrative law judge (“ALJ”) failed to adequately develop the record, erroneously found A.D.W.'s learning and intellectual impairments to be non-severe, failed to make a full analysis of all material information, and inappropriately substituted his judgment for that of a medical professional. She further contends that remand is warranted in order to permit the ALJ to consider new and material evidence that supports a finding of disability.

         Pending before the Court are plaintiff's motion to reverse or remand the decision of the Commissioner and defendant's motion to affirm the decision of the Commissioner. For the reasons stated below, the decision will be affirmed, and plaintiff's motion to reverse or remand will be denied.

         I. Background

         A. Factual Background

         Dennice Walker-Smith brings this action on behalf of her minor child, A.D.W. A.D.W., the claimant, was born in August 2001. (A.R. 19). She lives with her mother and brother in Dorchester, Massachusetts. (A.R. 410).

         1. Asthma

         A.D.W. has persistent asthma. (A.R. 480). Walker-Smith estimates that she started experiencing symptoms in 2008. (A.R. 389). Over the years, she has been prescribed Flovent, Proair, Advair, Aerochamber, and Albuterol to control those symptoms. (A.R. 489).

         A.D.W.'s asthma symptoms began to worsen in 2011. (Id.). Between February 2011 and October 2011, she visited the emergency room five times, complaining of asthma-related issues. (Id.). From October 8 to 11, 2011, she was admitted to the Boston Medical Center Intensive Care Unit with severe respiratory distress, and was diagnosed with status asthmaticus. (A.R. 309). In October 2012, A.D.W. visited the Codman Square Health Center Urgent Care Clinic and was prescribed prednisone. (A.R. 430).

         In April 2013, Lucy Stone, A.D.W.'s fifth-grade teacher, completed a “Teacher Questionnaire” provided by the SSA in connection with this application. (A.R. 444, 446). The questionnaire instructed that the form should be completed by the person most familiar with A.D.W.'s overall functioning. (Id.). Stone reported that, although the medical information states that A.D.W. has asthma, she had “never observed any symptoms or effects.” (A.R. 450).

         On August 21, 2013, A.D.W. was examined by Hong-Phuong Vo, M.D., of the Pediatric Pulmonology/Allergy Clinic at Boston Medical Center for the purpose of completing a Childhood Disability Evaluation Form in connection with this application. (A.R. 481). Dr. Vo found that A.D.W. had a marked limitation in the “health and physical well-being” domain, and explained that she “had three asthma exacerbations in the past 2 months requiring urgent care and systemic steroid.” (A.R. 483). She found that A.D.W. had less than marked or no limitations in the other domains. (A.R. 482-83). Despite finding that A.D.W. had a marked limitation in only one domain, she checked a box indicating that A.D.W.'s impairment or combination of impairments functionally equals the listing due to “[m]arked limitation in two domains.” (A.R. 484).

         2. Obesity

         A.D.W. has obesity. In January 2010, A.D.W. weighed 141 pounds and had a body mass index (“BMI”) of 32.3. (A.R. 325). By May 2014, her weight had increased to 238 pounds and her BMI to 41. (A.R. 486). In July 2014, Walker-Smith testified that A.D.W. weighed 249 pounds. (A.R. 55).

         3. Learning Disability and Borderline Intellectual Functioning

         A.D.W. has a learning disability and borderline intellectual functioning. (A.R. 455). Tests indicate that A.D.W. has a full-scale IQ, ability to reason non-verbally, and ability to hold information and manipulate it in her head in the borderline range, as well as ability to reason with language in the low-average range. (A.R. 455). In many other areas, she tests below average. (Id.). When A.D.W. was six years old, her overall score on the Wechsler Intelligence Scale for Children was in the 9th percentile, placing her in the low average range of intellectual abilities. (A.R. 267).

         On January 25, 2012, A.D.W. underwent a Consultative Examination with Emrie Cohen, M.A., a licensed clinical psychologist, in connection with this application. Cohen assessed A.D.W.'S I.Q. at 75, in the 5th percentile, and her reading, spelling, and arithmetic skills at the second- or third-grade level. (A.R. 318). She found that A.D.W. has a mild reading disorder, mild impairment in written expression, definite mathematics disorder, and borderline intellectual functioning. (A.R. 320).

         In light of her learning difficulties, in the first grade A.D.W. was placed into a small, substantially separate classroom for children with special needs. (A.R. 263). She also repeated the fifth grade. (A.R. 455). Since her application date, A.D.W. has received special education services and Individualized Education Programs (IEPs) in school. (A.R. 455).

         School records indicate that A.D.W. is a diligent student despite learning difficulties. On the April 2013 Teacher Questionnaire, Stone stated that A.D.W. “appears to function at a slightly slower processing pace than her peers, ” “acts very young for her age, ” and “has a great deal of difficulty remembering to go to the office to use her inhaler before gym class.” (A.R. 445). She also found that A.D.W. “works very methodically and deliberately on tests, using all the time allowed and showing amazing focus and stamina until the last minute.” (A.R. 446). She assessed that “on the whole, in Gen[eral] Ed[ucation] classrooms [A.D.W.] is able to apply herself to tasks with appropriate attention.” (Id.). Her IEP for the 2013-14 school year states that she is a “happy student who is eager to learn.” (A.R. 455).

         A.D.W.'s school records also reflect persistent problems with attendance. When she was in first grade, a school psychologist reported that A.D.W.'s teacher was “concerned about her poor attendance” which impeded her ability to “make effective academic pro[g]ress.” (A.R. 264). Her 2013-14 IEP states that she “has had many absences this year, [which have] hurt her progress. When she is present in school, she is capable of learning and retaining new information.” (Id.). Stone reported that “[A.D.W.]'s attendance is abysmal with almost 50 days of absences and 50 days of tardies . . . it is very unclear why she misses school because sometimes it is simply because her mom doesn't make her attend when menstruating and [A.D.W.] has told me no one makes her attend if she doesn't feel like it.” (A.R. 449-450).

         4. State-Agency Clinical Assessments

         In early 2012, Rosario Palmeri, M.D., a state-agency pediatrician, and Ronald Nappi, Ed.D., a state-agency psychologist, conducted a review of A.D.W.'s medical records in connection with her initial application. (A.R. 92-100). They found that A.D.W.'s asthma, borderline intellectual functioning, and learning disorder constituted severe impairments. (A.R. 96). They further found that A.D.W. had a marked limitation in the domain of “health and physical well-being” due to her severe asthma, but that she had less than marked or no limitations in the other domains. (A.R. 97-98). Under the domain of “acquiring and using information, ” the clinicians explained that A.D.W. scored in the borderline range of intelligence, but that the results of her testing “may have been impacted by her asthmatic condition and by days of missed school due to physical [sic].” (A.R. 97).

         In September 2012, Sheela Gurbani, M.D., a state-agency pediatrician, and Menachem Kasdan, Ed.D, a state-agency psychologist, conducted a similar review in connection with Walker-Smith's request for reconsideration. (A.R. 102-11). Those clinicians found the same severe impairments as Palmeri and Nappi, and found that A.D.W.'s obesity also constituted a severe impairment. (A.R. 107). Like Palmeri and Nappi, as well as Dr. Vo, Gurbani and Kasdan found that A.D.W. had a marked limitation in the domain of “health and physical well-being” due to her asthma, but less than marked or no limitations in all other domains. (A.R. 107-08).

         Upon reviewing the evidence, the four state-agency clinicians opined that A.D.W.'s impairments did not meet, medically equal, or functionally equal either listing 112.05 concerning intellectual impairment, or listing 103.03 concerning asthma. (A.R. 97, 98, 107, 109). All four ultimately determined that A.D.W. was not disabled. (A.R. 99, 109).

         5. Function Reports

         Walker-Smith submitted two Function Reports in connection with the application. (A.R. 200, 212). On the first report, she indicated that A.D.W.'s physical abilities as well as ability to communicate, to take care of her personal needs, and pay attention and stick with a task were not limited. (A.R. 201-08). She indicated that A.D.W.'s ability to progress in learning was limited. In the box provided to explain those limitations, Walker-Smith wrote only that “[A.D.W.] need[s] help with everything.” (A.R. 204).

         On the second report, when asked to explain anything the agency should know about A.D.W.'s ability to communicate, Walker-Smith wrote that “[A.D.W.] has severe asthma which is what I signed her up for.” (A.R. 215). Walker-Smith indicated that A.D.W. does not complete her homework or finish things she starts, explaining ...


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