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Stiles v. Berryhill

United States District Court, S.D. Mississippi, Northern Division

July 31, 2017

ANGELA STILES o/b/o B.B. PLAINTIFF
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          ORDER

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Angela Stiles filed for supplemental security benefits on behalf of her son, B.B., on August 14, 2012. After the application was denied both initially and upon reconsideration, she requested and was granted a hearing before an ALJ. The hearing was held on May 8, 2014, and on September 10, 2014, the ALJ issued a decision finding that B.B. is not disabled. The appeals council denied review. Plaintiff now brings her appeal pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). She alleges that B.B. is disabled based upon asthma, intellectual disability, and a learning disability.

         II. Facts and Evidence before the ALJ

         B.B. was born on August 17, 2001, and was 13 years of age at the time of the decision of the ALJ. He has a history of asthma. In June of 2012, his school district evaluated him for placement in special education. As a part of this assessment, B.B. was administered the Woodcock-Johnson III achievement test (WJ-III) and the Reynolds Intellectual Assessment Scales (RIAS). At the time of testing, B.B. was 10 years of age and had completed the fourth grade. The WJ-III indicated that he was functioning at a grade level between 2.0 and 2.7 in all areas. R. 136, [10] at 139. On the RIAS, he achieved a verbal intelligence score of 78, a nonverbal intelligence score of 102, and a composite score of 88. R. 138, [10] at 141. It was determined that B.B. met the eligibility guidelines for a Specific Learning Disability (SDL) in basic reading skills. R. 133, [10] at 136.

         In September of 2012, Stephanie Thornton, B.B.'s special education teacher, completed a questionnaire. Ms. Thornton stated that B.B. was in the fifth grade and received special education services five hours a week. R. 164-65, [10] at 167-68. She indicated that in the area of acquiring and using information, B.B. had serious to very serious problems, explaining that he needed much extra help and support to function in the inclusion classroom and that his tests were read to him. R. 166, [10] at 169. She stated that B.B. struggled in all subjects and that anything involving reading caused him stress. Id. Ms. Thornton indicated that in the area of attending and completing tasks, B.B needed extra encouragement to complete tasks and extra help to organize, and prepare. R. 167, [10] at 170. It was her observation that he did not work well in independent activities. Id. As to the domain of interacting and relating to others, she indicated that B.B. had some problems and that he needed a very structured environment. R. 168, [10] at 171. Ms. Thornton stated that B.B. had no problems in the domains of moving about/manipulating objects, caring for himself, and health and physical well-being. R. 169-71, [10] at 172-74.

         A second special education assessment was completed in May of 2013. The report stated that B.B.'s learning disability in basic reading skills had a significant impact on his progress in the general education classroom. R. 186, [10] at 189. It indicated that he struggled with anything involving reading, including language and particularly math, and that he needed the assistance of an inclusion teacher in the general education classroom. Id. Finally, the report noted that B.B. had been involved in a couple of fights at school and had been suspended because of them. Id.

         The school records indicate more discipline problems in the following school year, the most serious of which was an incident of fighting. R. 208-212, [10] at 211-15.

         In June of 2014, B.B. underwent a psychological evaluation by Dr. Criss Lott. B.B. was accompanied by his mother at the evaluation. Ms. Stiles reported to Dr. Lott that B.B. maintained appropriate hygiene and grooming, and she described his daily living skills as age-appropriate. R. 295, [10] at 298. She stated that B.B. helped to clean his room, fed his dog, and took out the trash. Id. As to his social skills, she reported that B.B. enjoyed spending time with friends and relatives and would occasionally stay overnight with his friends. Id. He enjoyed playing outside and playing basketball and football. Id. She said that he had been suspended several times from school, but she indicated that there were no management problems at home or in the community. R. 295, 297, [10] at 298, 300. During the examination, B.B. was polite and cooperative. R. 295, [10] at 298. He was alert and attentive and responded appropriately to questions. Id. It was Dr. Lott's opinion that B.B. put forth a genuine effort during testing. R. 296, [10] at 299. On the Wechsler Intelligence Scale for Children (WISC-IV), B.B. achieved a full scale IQ of 65. Id. On the Wide Range Achievement Test (WRAT-4), he achieved scores of grade level 2.4 to 3.0 in all subject matter areas. Id. Dr. Lott's provisional diagnoses were borderline intellectual functioning and an SDL in reading and math. Id. In connection with the examination, Dr. Lott completed a questionnaire in which he assessed B.B.'s functional capabilities. He described as “impaired” B.B.'s cognitive development, personal/behavioral patterns, and concentration, persistence and pace in task completion. R. 300-301, [10] at 303-304. With reference to this latter domain, Dr. Lott explained that B.B.'s working memory score was in the extremely low range. R. 301, [10] at 304.

         The administrative record contains the opinions of several agency consultants who examined the records. Dr. Eva Henderson opined that B.B.'s asthma is non-severe. R. 276-77, [10] at 279-80. Dr. James Herzog opined that B.B.'s learning disability constitutes a severe impairment but that it is not of listing severity. R. 270-71, [10] at 273-74. Dr. Herzog rated B.B.'s functional limitations as follows: No limitation in interacting and relating with others and caring for himself, a less than marked limitation in acquiring and using information, and a marked limitation in attending and completing tasks. R. 272-74, [10] at 275-76. Dr. Lisa Yazdani stated that B.B.'s learning disability and asthma constitute a severe impairment or combination of impairments but that they are not of listing severity. R. 282-83, [10] ¶ 285-86]. She assigned ratings to B.B.'s limitations in several of the domains as follows: No limitation in interacting and relating with others, in caring for himself, or in health and physical well-being; a less than marked limitation in acquiring and using information, and a marked limitation in attending and completing tasks. R. 204-205, [10] at 287-88.

         At the hearing, B.B. testified that he likes to play sports in the neighborhood, watch television, and play video games. R. 57, 60, [10] at 60, 63. He can ride a bike. R. 59-60, [10] at 62-63. Concerning chores, he stated that he has a dog that he takes care of and that he also takes out the garbage. R. 57, 60, [10] at 60, 63. B.B. said that he does his homework. R. 58, [10] at 61.

         Also testifying was Ms. Stiles. She reported that B.B. takes care of his dog but that she has to remind him to do so. R. 62, [10] at 65. He is able to play in a group with other children, but he becomes angry when things do not go his way. R. 68-69, [10] at 71-72. According to Ms. Stiles, B.B. can stay on task with his homework only about three minutes before he wants to get up and do something else. R. 67, [10] at 70.

         III. The Decision of the ALJ

         Disability claims by children are determined using a three-step sequential analysis. See 20 C.F.R. § 416.924. At step one, the ALJ determines whether or not the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If not, the ALJ moves on to step two, which is a determination of whether the child suffers from a severe impairment or a combination of impairments that is severe. 20 C.F.R. § 416.924(c). If the ALJ finds that the child suffers from a severe impairment, or a combination of impairments that is severe, the analysis continues to step three, which involves a determination as to whether the child's impairment ...


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