United States District Court, E.D. Louisiana
ANN VIAL LEMMON JUDGE
REPORT AND RECOMMENDATION
VAN MEERVELD UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
in the Record
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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
and Reports by the Claimant
to Kaelen's Disability Report, dated April 3, 2014, she
did not attend special education classes in school. R. at
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
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
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.
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.
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.
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.
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