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Gras v. Berryhill

United States District Court, E.D. Louisiana

May 9, 2018

KAELEN GRAS
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

         SECTION: “S” (1)

          MARY ANN VIAL LEMMON JUDGE

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Kaelen Gras, seeks judicial review, pursuant to Section 405(g) of the Social Security Act (the “Act”), of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her claim for supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381. The matter has been fully briefed on cross-motions for summary judgment. For the following reasons, IT IS RECOMMENDED that the Motion for Summary Judgment filed by the plaintiff (Rec. Doc. 10) be DENIED; and the Motion for Summary Judgment filed by the Commissioner (Rec. Doc. 11) be GRANTED.

         Procedural Background

         Plaintiff applied for SSI on March 19, 2014, asserting a disability onset date of January 8, 1995. She alleged the following illnesses, injuries, or conditions: Asperger's Syndrome, ADHD, OCD, Non-verbal Learning Disability, and Anxiety. On November 4, 2014, her claim was denied by the state agency. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on January 11, 2016. At that time, she formally waived her right to representation by an attorney or non-attorney advocate. On February 11, 2016, the ALJ issued an adverse decision. The Appeals Council denied review on April 13, 2017.

         On June 12, 2017, Plaintiff filed a Complaint in federal court to review the Commissioner's decision. (Rec. Doc. 1). The Commissioner answered and filed the administrative record. (Rec. Docs. 7, 8). The parties filed cross-motions for summary judgment. (Rec. Docs. 10, 11). Plaintiff is proceeding pro se.

         Evidence in the Record

         Medical Records

         From May 2004 through August 2005 (when Kaelen was 9 to 10 years old), Kaelen treated with Terry Johnson, PhD, and William Colomb, Jr., M.D., of the Mercy Family Center. R. at 322-353. She attended monthly individual therapy sessions of 60 minutes with Dr. Johnson, and Dr. Johnson would usually also meet with Kaelen's mother. Kaelen also attended group therapy sessions once or twice a month between June 2004 and March 2005, and then again in June 2005. She met with Dr. Colomb approximately every three months, and he prescribed Ritalin 30 mg and Zoloft 50 mg. Kaelen's records from sessions with Dr. Johnson reflect a global assessment of functioning (“GAF”) score of 65. The GAF scores in the records of her visits with Dr. Colomb varied, including 55-65, 60-40, 65 and 50.

         The next medical record in Kaelen's file is dated August 4, 2010, when she began treating with Teche Action Clinic (“TAC”). R. at 264. She was noted to have appropriate judgment, good insight, proper orientation to time, place, and person, intact recent and remote memory, euthymic mood, and appropriate affect. R. at 265. The report also noted “minimal eye contact, drawing.” R. at 265. She was prescribed Focalin 10 mg, Intuniv 1 mg, and Zoloft 100 mg. R. at 266.

         Kaelen followed up with TAC on August 24, 2010. R. at 262. Obsessive thoughts were noted. R. at 262. She was also noted to have appropriate judgment, good insight, proper orientation to time, place, and person, intact recent and remote memory, euthymic mood, and appropriate affect. R. a 262. Her prescription for Intuniv 1mg was discontinued and she was prescribed Daytrana 30 mg/9 hour patch, Focalin 10 mg, and Intuniv 3 mg. R at 263.

         Kaelen followed up for ADD/ADHD on November 22, 2010, at TAC. R. at 257. It was reported that she had attempted to discontinue Focalin, but had decompensated without it. R. at 257. It was reported that she was “obsessing about drawing, checking out books.” R. at 257. It was noted that Kaelen is easily frustrated and distracted at home and Kaelen's teachers report that she is distracted and impulsive while at school. R. at 257. “ADD/ADHD Symptoms that are reported are mild, ” and further, “Kaelen seems to be better when taking medications.” R. at 257. She was continued on Daytrana, Focalin, and Intuniv. R. at 259.

         Kaelen began treating with Dr. Barbara Hamm at Magnolia Family Services (“Magnolia”) on February 19, 2011. R. at 301. She was continued on Daytrana 30 mg, Focalin 10 mg, Intuniv 3 mg, and Zoloft 150 mg. R. at 301. Notes from the initial visit indicate that Kaelen made poor eye contact and made immature and socially inappropriate comments to the doctor, saying “whatever comes into her head.” R. at 302. Dr. Hamm noted that Kaelen could benefit from intense services and that she was high risk for ongoing intense maladaptive behaviors, but with therapy there was higher potential for adaptive behaviors. R. at 303.

         At her March 19, 2011, appointment with Dr. Hamm, Kaelen presented as calm and avoidant. R. at 300. Her situation at school was unchanged, and it was noted that she had problematic interactions at home due to Asperger's. R. at 300. Medications were continued. R. at 300. On April 23, 2011, Kaelen presented as calm and euthymic. R. at 299. It was reported that her grades had improved, there were no new problems, and she was doing well at home. R. at 299. Her medications were continued. R. at 299. At her June 21, 2011, and July 16, 2011, appointments, a medication holiday was discussed. R. at 297-98. She was continued on Intuniv and Zoloft, but Daytrana and Focalin were discontinued. R. at 297-98.

         On August 20, 2011, it was noted that there were “no problems thus far” at school. R. at 296. She was doing “ok” at home, but “requires quite a bit of daily interventions” with regard to social skills. R. at 296. Kaelen presented as calm but with a provocative attitude. R. at 296. Daytrana 30 mg, Focalin 10 mg, Intuniv 3 mg, and Zoloft 150 mg were continued. R. at 296. At her September 17, 2011, appointment with Dr. Hamm, it was reported that at school, Kaelen was distracted, not focused, and not doing homework. R. at 295. At home, she had been doing well, but with poor social interaction skills. R. at 295. She presented with poor eye contact and was disengaged. R. at 295. On October 15, 2011, it was noted she was doing “fair” at school but “struggling in math and Spanish.” R. at 294. On November 12, 2011, she was reported to be doing “ok” at school and at home. R. at 293. At her January 1, 2012, appointment, it was reported Kaelen was doing fair at school and “ok” at home. R. at 245. A “vocal tic” was noted as a new problem. R. at 245. Dr. Hamm noted a euthymic mood, poor eye contact, and no thought disorder. R. at 245. At her February 11, 2012, appointment it was reported that Kaelen was doing well at school and her tics had decreased at home. R. at 244. At her April 14, 2012, medication management appointment, Kaelen was doing well behaviorally but not motivated at school. R. at 242. At her June 6, 2012, appointment for medication management, it was noted that Kaelen was doing well and had passed all her classes. R. at 240.

         At her August 4, 2012, follow up, it was noted that Kaelen was doing well, that she had not been on Daytrana and Intuniv over the summer but would resume the medications. R. at 237. At her September 29, 2012, appointment it was noted that she had not been taking her Daytrana patch, but that she had been doing well in school. R. at 235. The Daytrana patch was discontinued, and Kaelen was continued on Zoloft and Intuniv. R. at 236. On November 17, 2012, Kaelen followed up for Asperger's and ADD. It was noted that Kaelen was “doing well in school with good grades and no behavioral problems.” R. at 232.

         The record contains three psychological evaluations of Kaelen. The first was performed on January 9, 2012, by Megan Hattier, M.A., supervised by Johnny L. Matson, Ph.D. R. at 226. During testing and observation, Hattier noted that Kaelen displayed non-repetitive movements/behaviors, no abnormal preoccupation with objects, no insistence on sameness, no repetitive use of words, no abnormal use of phrasing. R. at 226. She noted Kaelen showed “some interest in the examiner's side of the conversation.” R. at 226. During testing, Hattier reported that Kaelen followed instructions, was compliant and did not request breaks, and persisted when presented with difficult items. R. at 226. Hattier reported that Kaelen's scores placed her in the non-autistic range on the Childhood Autism Rating Scale. R. at 226. She noted that Kaelen has abnormalities in the following areas: moderate abnormality in relating to people, mild to moderate abnormality in emotional response, mild to moderate abnormality in activity level, and mild abnormality in general impressions. R. at 226.

         The 2012 evaluation included several standardized assessments. An intellectual assessment was performed using the Stanford Binet Intelligence Scales - 5th Edition. R. at 227. For nonverbal IQ, she attained a standard score of 101 and for verbal IQ she attained a standard score of 90. R. at 227. It was concluded that Kaelen is functioning in the average range of intellectual functioning. R. at 227.

         Kaelen's mother completed an Autism Spectrum Disorder-Diagnostic for Child Version for Kaelen, and based on her responses Kaelen scored a 51, which is in the pervasive development disorder- not otherwise specified range. R. at 227. The Vineland Adaptive Behavior Scale-2nd Edition; Parent/Caregiver Rating Form was also administered. R. at 367. Kaelen's score was in the low deficit range. R. at 367. She was unable to follow three-part instructions, describe a short-term goal and what she needs to do to reach it, or write business letters. R. at 367. Her daily living skills were in the low range. R. at 367. Although she can care for minor cuts, use a microwave oven, and carryout complex tasks on a computer, she is not able to keep track of medications, sweep, mop, or vacuum. R. at 367. Socialization was also in the low-deficit range. R. at 367. Based upon her mother's ratings, Kaelen scored 117 on the Gilliam Asperger's Disorder Scale. R. at 367. This placed her in the high/probable range for Asperger's Disorder. R. at 367. The Krug Asperger's Disorder Index was administered and Kaelen's mother's ratings yielded a standard score of 68, which placed Kaelen in the “very low” range for Asperger's Disorder. R. at 367.

         A Behavioral Assessment System for Children, 2nd edition (BASC-2) Parent Rating Scale was administered. Based on the ratings by Kaelen's mother, there were clinically significant elevations in the hyperactivity, externalizing problems, attention problems, behavioral symptoms index, social skills, activities of daily living, functional communication, and the adaptive skills composite. R. at 228. The Questions About Behavior Function was administered. R. at 228. The results indicated that Kaelen's verbal aggression serves both an escape and non-social function. R. at 228.

         In summary, the Hattier/Matson evaluation concluded that Kaelen functions within the average range of intelligence. R. at 228. But socially, Kaelen has difficulty interacting with children of the same age and using nonverbal behavior. R. at 228. Kaelen has difficulty providing spontaneous speech and maintaining reciprocal conversation. R. at 368. Kaelen was diagnosed with Asperger's Disorder. R. at 368. A GAF of 65 was assigned. R. at 368.

         A consultative psychological examination was performed on August 13, 2014, by William E. Fowler, Ph. D. R. at 277. Dr. Fowler noted that Kaelen was wearing a head set to protect against sound sensitivity and she was socially awkward. R. at 277. She was not taking any medication. R. at 278. Dr. Fowler administered the WAIS-IV, an individual test of intelligence. R. at 278. He noted that Kaelen did not appear to have trouble understanding or following instructions and that she worked at a steady pace and showed good attention and concentration, and sustained persistence. R. at 278. Her full scale score was 104. R. at 279. Dr. Fowler noted that while Kaelen could understand and carry out simple test instructions, her test results showed weakness in working memory. R. at 279. He noted a history of Asperger's and a nonverbal learning disorder. R. at 279. Dr. Fowler reported no overt evidence of impairment from ADHD, that OCD was not overtly evident, and she was not overtly anxious. R. at 279. However, he found Kaelen “does present as having an autism spectrum disorder and is socially awkward and has sensory problems and would likely have difficulty interacting with the public and with coworkers.” R. at 279.

         On November 3, 2014, state agency psychologist Laura Lochner, considered Kaelen's records and determined that Kaelen did not meet the requirements of Listing 12.10. R. at 71. In assessing the requirements of subparagraph B of Listing 12.10, Dr. Lochner concluded that Kaelen had mild restriction of activities of daily living; moderate difficulty in maintaining social functioning; mild difficulty in maintaining concentration, persistence, or pace; and no episodes of decompensation with extended duration. R. at 71. Dr. Lochner also assessed Kaelen's Residual Functional Capacity for the state agency on November 3, 2014. R. at 74. Dr. Lochner found Kaelen's ability to carry out detailed instructions was moderately limited, but her ability to carry out very short and simple instructions and to maintain attention and concentration for significant periods was not significantly limited. R. at 74. Dr. Lochner found Kaelen's ability to interact appropriately with the general public was moderately limited. R. at 74. However, Dr. Lochner found her ability to accept instructions and respond appropriately to criticism from supervisors and her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes was not significantly limited. R. at 74-75. Dr. Lochner concluded that Kaelen can perform simple and some complex tasks, can relate to others and work on a superficial basis, and can adapt to a work situation. R. at 75.

         A third psychological examination was performed by Lynn Guidry, Ph.D. on February 4, 2016. This examination occurred after the hearing before the ALJ and shortly before the ALJ's decision was issued. It does not appear the 2016 evaluation was in the record before the ALJ, however, Kaelen's mother submitted the evaluation report with Kaelen's appeal and it was considered by the Appeals Council. R. at 5. According to Dr. Guidry's report, the purpose of the evaluation was to determine if Kaelen continued to be eligible for educational modifications. R. at 357. Dr. Guidry cited the 2012 psychological evaluation by Dr. Matson, noting that Kaelen has been assigned a full scale IQ of 95 Matson and an Asperger's Disorder Quotient of 87 = 117 (Standard Score). R. at 358. Dr. Guidry noted that “Kaelen was evaluated by interviewing her mother on the Gilliam Asperger's Disorder Scale (GADS).” R. at 357. Later, the report notes that Kaelen and her mother served as co-informants. R. at 359. This time the Asperger's Disorder Quotient was assessed as 63 = 105 (Standard Score). R. at 358. It was noted that a Standard Score of greater than 80 is “highly probable” and that both Kaelen's 2012 and 2016 test results were “highly probable.” R. at 358. Dr. Guidry provided the following diagnosis:

Autism Spectrum Disorder: For Social Communication, client is classified as Level 1: Has noticeable impairment in social communication; difficulty initiating social interactions; atypical responses to social overtures; decreased interest in social interactions. For Restricted Repetitive Behaviors client is classified as Level 1: Inflexibility in behaviors causes significant interference with functioning in one or more areas; Problems of organizing and planning hampers independence. Without Intellectual or Language Impairment.

R. at 359. There are three severity levels that are assigned in an autism spectrum disorder diagnosis. Level 3 is “requiring very substantial support, ” Level 2 is “requiring substantial support, ” and Level 1 is “requiring support.”

         Testimony and Reports by the Claimant

         According to Kaelen's Disability Report, dated April 3, 2014, she did not attend special education classes in school. R. at 167.

         Kaelen's mother, Kathleen Gras, filled out a Function Report for Kaelen on May 31, 2014. She reported that Kaelen has “[d]ifficulty following multi-step instructions, needs constant reminders and supervision, great difficulty with general social interaction.” R. at 174. Kathleen reported that Kaelen has stopped all medication because she could never remember to take her medication. R. at 176. She reported that Kaelen has no problem with personal care (bathing, dressing, using the toilet, feeding herself). R. at 175. She reported Kaelen can prepare chicken nuggets in the microwave, pizza, ramen noodles, and cereal. R. at 176. She can perform chores like emptying the dishwasher and picking up after herself, but she needs constant reminders. R. at 176.

         Kaelen also filled out a Function Report for herself. She reported going out for social activities at least once a month. R. at 186. She also reported no problems with personal care and that she is able to prepare frozen meals and cereal. R.at 183-184.

         At the hearing before the ALJ on January 11, 2016, Kaelen, her mother Kathleen, and the vocational expert Danielle Rhodes testified. R. at 30. Kaelen was not represented by counsel or a non-attorney advocate. The ALJ explained to Kaelen that she has a right to be represented. R. at 33-34. Kaelen stated that she wished to proceed without representation, and she signed a waiver of her right to representation. R. at 35.

         Kaelen testified that she was in college and was in the process of transferring from Fletcher to Nichols. R. at 42. For her course schedule the previous semester, Kaelen went to school from 10:00 to 1:00 on Monday, Wednesday, and Friday. R. at 50-51. On Tuesday and Thursday she went from 4:20 or 5:00 p.m. to 8:00 p.m. R. at 51. She only received homework for her math class, and it would take her a little less than an hour to complete. R. at 51. She testified that she is in an “on-level” math class. R. at 52. Although she failed Algebra the first time she took it and got a C or D the second time and a C or D in financial math, she said that she passed her math class the previous semester with an A. R. at 52.

         The ALJ asked Kaelen to explain why she could not work. R. at 43. Kaelen testified that she has trouble concentrating and comprehending directions. R. at 43. She said she had trouble organizing herself and would need to be told multiple times to do chores like taking dishes out of the dishwasher and picking up around the house. R. at 44. As an example of difficulty concentrating of focusing, Kaelen explained that when she was learning to drive she had “trouble with staying in front of the road” because she was used to looking out of the sides of the windows. R. at 45.

         The ALJ asked Kaelen if she thought she could perform a simple job that required her to do the same thing over and over on a full time basis. R. at 51. She said she could probably do so. R. at 51. When Kaelen's mother testified, she contemplated a job that Kaelen would be able to perform: “something like inventory, where she could be independent, she could wear her headphones, and she wouldn't really have to interact especially overnight because she likes to stay up at night. . . . I know inventory they use a scanner or just to count, I think she could manage that, not to have to do any math in there, I'm not sure if that would affect it. As long as they gave her detailed instructions and closely supervised her to train her . . . .” R. at 60.

         The ALJ asked Kaelen if she had problems getting along with others. R. at 46. Kaelen explained that she is an introvert, that she only likes to go places with her friends, and that “sometimes I tend to intimidate people because I get really loud sometimes, but I don't have any control over the volume of my voice and that tends to turn people away, but overall I do have a bit of - I'm pretty good at making friends and I am well liked.” R. at 46. She said she has acquaintances at school, and she has two friends that she spends most of her time with. R. at 47. She also said she tends “to make friends with a lot of my teachers because that can help a lot during semesters.” R. at 47. She testified that she has not had any physical fights in the last two years, and when asked if she ever had verbal ...


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