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Thomas v. U.S. Commissioner, Social Security Administration

United States District Court, W.D. Louisiana, Lafayette Division

September 16, 2019

KEISHA THOMAS, on behalf of her Minor Child, Q.J.F.
v.
U.S. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          SUMMERHAYS, JUDGE.

          REPORT AND RECOMMENDATION

          PATRICK J. HANNA, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is an appeal of the Commissioner's finding of non-disability. Considering the administrative record, the briefs of the parties, and the applicable law, it is recommended that the Commissioner's decision be reversed and remanded for further administrative action.

         Administrative Proceedings

         The claimant, Keisha Thomas, acting on behalf of her minor son, Q.J.F., fully exhausted her administrative remedies before filing this action in federal court. On April 10, 2007, [1] Q.J.F. was found to be disabled due to speech and language impairments. As of May 1, 2015, Q.J.F. was found no longer disabled due to improvement in those impairments.[2] Ms. Thomas requested a hearing, which was held on July 21, 2017 before Administrative Law Judge Kathleen S. Molinar.[3] The ALJ issued a decision on March 22, 2018, concluding that Q.J.F.'s disability ended as of May 1, 2015 and that he had not become disabled again since that date.[4] The claimant asked the Appeals Council to review the ALJ's decision, but the Appeals Council found no basis for review.[5] Therefore, the ALJ's decision became the final decision of the Commissioner for the purpose of the Court's review.[6] Ms. Thomas then initiated this action, seeking review of the Commissioner's decision.

         Summary of Pertinent Facts

         Q.J.F. was born on November 22, 2004.[7] He was awarded Supplemental Security Income (“SSI”) benefits in 2007, at approximately two-and-a-half years of age, due to speech and hearing problems. He was ten years old when it was determined that his disability had ended due to improvements in his speech and language impairments. At the time of the hearing, he was twelve years old. At the time of the ALJ's decision, he was thirteen years old. He is now a few months shy of his fifteenth birthday.

         The medical records from the Pediatric Group of Acadiana, Q.J.F.'s treating pediatricians, are primarily handwritten and difficult to read. However, among the earliest notes is one from April 2005, when Q.J.F. was 4 ½ months old, which indicated that he had seen a cardiologist.[8] On June 1, 2005, when Q.J.F. was six months old, the treatment note indicated that the doctor was “concerned about hearing.”[9] Nystagmus[10] was noted on March 30, 2005, when Q.J.F. was four months old, [11] on August 12, 2005 when he was 8 ½ month old, [12] and again on September 19, 2005, when he was nine months old.[13] Nystagmus and developmental delays were noted on March 29, 2006, when Q.J.F. was sixteen months old.[14] On December 31, 2008, when Q.J.F. was four years old, he was uncooperative with vision and hearing examinations, and it was noted that he was not wearing his glasses.[15] A year later, on December 9, 2009, when he was five years old, it was recommended that he see an eye specialist.[16] At a pediatric visit on November 23, 2010, when Q.J.F. was six years old, horizontal nystagmus and a systolic murmur were noted, he was wearing glasses, and his vision in both eyes was stated to be 20/100.[17]

         When Q.J.F. saw his pediatrician on January 13, 2014, [18] when he was nine years old, it was noted that he had been having headaches over the previous month. It was also noted that he had nystagmus and that his vision was 20/200 with his glasses, which were described as very thick. He was referred to a cardiologist for his heart murmur.

         On February 18, 2014, Q.J.F. saw Dr. Albert M. Gutierrez, a pediatric cardiologist.[19] Dr. Gutierrez noted that Q.J.F. had been referred for evaluation of a recently detected hear murmur. Following physical examination, an echocardiogram, and an electrocardiogram, Dr. Gutierrez diagnosed an innocent flow murmur, trivial tricuspid valve regurgitation, trivial pulmonary valve insufficiency, and sinus arrhythmia. He cleared Q.J.F. to participate in all activities without restrictions and recommended a follow up evaluation in one to two years.

         Q.J.F. saw Dr. Steven J. Snatic, a neurologist, on March 20, 2014 for headaches.[20] The treatment note indicated that Q.J.F. experienced headaches approximately ten days per month. It was noted that Q.J.F. had visual problems caused by congenital nystagmus and wore glasses. He had previously had a CT scan and an MRI of the brain. His mother denied that he was having any difficulties in school. It was noted that he had a big head. An MRI of the brain obtained the next day, showed an essentially normal brain with minimal to mild right maxillary mucosal thickening.[21]

         Q.J.F. saw Dr. Snatic again on April 3, 2014.[22] His headaches were continuing, and Dr. Snatic recommended treating them with magnesium, Vitamin B2, and CoQ10.

         Q.J.F. returned to Dr. Snatic on May 14, 2014.[23] He was taking magnesium and CoQ10, but had been unable to locate Vitamin B2. He had experienced about thirteen headaches since the last visit. Amitryptiline 10 mg. and Ibuprofen were prescribed.

         When Q.J.F. returned to Dr. Snatic on June 17, 2014, he had had only four headaches the previous month. He was taken off the magnesium and CoQ10. He was advised to continue the Amitryptiline and to increase the dosage from 10 mg. to 20 mg. if the headaches worsened.

         Q.J.F. saw Dr. Snatic again on September 16, 2014, [24] having had only one or two headaches in the previous three months. An eventual withdrawal from the Amitryptiline was discussed, provided the headaches remained at a low level.

         On September 25, 2014, Q.J.F. was examined by Dr. Harold W. LeDoux, an ophthalmologist.[25] Dr. LeDoux noted that Q.J.F. was partially sighted with corrected visual acuity of 20/70 or less and also noted that this was a permanent condition. His primary diagnoses were nystagmus, myopia, [26] and astigmatism.[27]His secondary diagnosis was amblyopia.[28] He noted that the vision in Q.J.F.'s right eye with best correction was 20/80 while the vision in his left eye with best correction was 20/100. He noted that Q.J.F.'s vision problems were congenital, stable, and permanent. He indicated that he should wear his glasses constantly and that his physical activities were unrestricted.

         On February 9, 2015, Q.J.F. again saw Dr. Gutierrez, the cardiologist.[29]Physical examination, an echocardiogram, and an electrocardiogram led to diagnoses of innocent flow murmur, trivial to mild tricuspid valve regurgitation and pulmonary valve insufficiency, as well as borderline left ventricular hypertrophy. Q.J.F. remained clear to participate in all activities without any restrictions, and he was to follow up in one year.

         In a report signed on February 20, 2015, [30] prepared by the Pupil Appraisal Services of the Lafayette Parish School Board working in conjunction with Ms. Thomas, it was noted that Q.J.F. was referred for evaluation due to a significant visual impairment as well as regular and severe headaches. At the time, Q.J.F. was ten years old and a student at Ossun Elementary School. Ms. Thomas reported that he was delayed in development and did not start walking until he was approximately two years old. She also reported that he had started speech therapy at two years of age due to delayed speech. At the time of the report, he was seeing ophthalmologist Dr. Harold LeDoux regularly. Dr. LeDoux had diagnosed nystagmus, myopia, astigmatism, and amblyopia. According to Dr. LeDoux, and based on an eye examination on September 25, 2014, Q.J.F.'s distance vision with best correction was 20/80 in his right eye and 20/100 in his left eye, while his near vision with best correction was 20/80 in his right eye and 20/100 in his left eye. Dr. LeDoux described Q.J.F.'s visual impairment as stable and permanent and advised that he was to wear glasses constantly. It was noted that, because of his severe vision problems, Q.J.F. experienced regular and severe headaches. Despite having received speech therapy services when he was younger, Q.J.F. did not then exhibit difficulty with speech or language. Testing revealed that his broad reading skills, math skills, and written expression skills were in the low average range.

         On March 12, 2015, Q.J.F. saw Dr. Snatic again.[31] He was having only about two headaches per month, and they were less severe. He denied being depressed or suicidal. Dr. Snatic suggested weaning him off the Amitryptiline, which could be restarted if the headaches worsened.

         On April 15, 2015, [32] an evaluation by Q.J.F.'s fourth grade teacher, Aimee Guidroz, indicated that he had problems in the domain of acquiring and using information because he was unable to read small font sizes. She stated that if the font size was enlarged, he was able to read “just fine.” She further indicated that he had no problems in the other domains evaluated, i.e., attending and completing tasks, interacting and relating with others, moving about and manipulating objects, and caring for himself. Ms. Guidroz also noted that, because of his poor vision, Q.J.F. wore glasses and used a magnifying glass, electronic magnifying devises, and large print materials in school.

         Q.J.F. saw his pediatrician on November 25, 2015.[33] It was noted that his headaches were much better. His cardiac murmur was noted. It was noted that his vision in both eyes was 20/70 and that he was wearing thick glasses.

         Q.J.F. again saw cardiologist Dr. Gutierrez on February 10, 2016.[34] Dr. Gutierrez again performed a physical examination, an electrocardiogram, and an echocardiogram. He diagnosed innocent flow murmur, mild tricuspid valve regurgitation with normal pulmonary artery pressures, and mild left ventricular hypertrophy. He cleared Q.J.F. to participate in all activities without any restrictions and advised a follow-up evaluation in one year.

         Q.J.F. returned to see Dr. Snatic on March 17, 2016.[35] His headaches were rare, he was off the Amitryptiline, and prescription Ibuprofen worked well when he did have headaches.

         On September 3, 2016, Q.J.F.'s pediatrician tested his vision and noted that it was 20/100 in both eyes.[36]

         On January 18, 2017, Q.J.F. was seen by Dr. Laurie Sicard, an ophthalmologist at the Azar Eye Clinic.[37] Her diagnoses were congenital nystagmus, myopia in both eyes, and regular astigmatism in both eyes. Q.J.F. reported that he had headaches off and on, had seen a neurologist for the headaches, and was no longer taking medication for headaches. He also reported that his vision was stable with his current glasses and that he was on a vision plan at school that was working well. Dr. Sicard noted that his distance vision in his right eye with best correction was 20/200, that his near vision in his right eye with best correction was 20/100, that his distance vision in his left eye with best correction was 20/200, and that his near vision in his left eye with best correction was 20/70.

         On May 31, 2017, Q.J.F. again saw Dr. Gutierrez, the cardiologist.[38] Physical examination, echocardiogram testing, and electrocardiogram testing were performed. Dr. Gutierrez's diagnoses were innocent flow murmur, mild left ventricular hypertrophy, mild tricuspid valve regurgitation, and sinus bradycardia. Q.J.F. remained able to participate in all activities without any restriction. He was to follow up in one year.

         On July 21, 2017, Q.J.F. and his mother testified at a hearing before the ALJ. Q.J.F. stated that he was twelve years old, in the seventh grade, and wore glasses. He explained that, despite wearing glasses, he still needed help with certain things. He said that he needed to be moved up close to things in class that he could not otherwise see. Similarly, he must sit close to a television set to be able to see it. He explained that he has a magnifying glass to use when reading small print. He stated that he enjoys reading adventure books and uses his magnifying glass when reading them. He also stated that he had an iPad for use in class. He stated that his headaches had gotten a lot better. Ms. Thomas testified that Q.J.F. had been wearing glasses since he was four or five months old. She also confirmed that her primary concern was his eyesight.

         On July 31, 2017, Q.J.F. had his twelve-year-old wellness exam with his pediatrician.[39] His vision was noted to be 20/100 in both eyes with glasses.

         The record contains a letter from Dr. Sicard, which is dated October 12, 2018 and provides information based on her evaluation of Q.J.F.'s vision on January 18, 2018. The examination took place about six months after the hearing, and Dr. Sicard's letter was written more than a year after the hearing. Although Dr. Sicard's examination occurred before the ALJ's decision was issued on March 22, 2018, it does not appear that the ALJ had this evidence available to her when making her determination. The letter indicated that Q.J.F. reported to Dr. Sicard that he still experienced occasional headaches but also reported that his visual acuity with his glasses was good. However, the letter also indicated that his visual acuity in his right eye was 20/100 when corrected and was 20/200 in his left eye when corrected but Dr. Sicard did not provide separate numbers for near vision and distance vision. Dr. Sicard's assessments were congenital nystagmus, alternative exotropia, [40] myopic degeneration in both eyes, regular astigmatism in both eyes, and legal blindness.

         Ms. Thomas now seeks reversal of the Commissioner's adverse ruling. Ms. Thomas filed this action and briefed the relevant issues without the assistance of legal counsel. Therefore, this Court must liberally construe her arguments and apply less stringent standards in interpreting them than this Court would in the case of a party with legal counsel.[41]

         Analysis

         A. Standard of Review

         Judicial review of the Commissioner's denial of disability benefits is limited to determining whether substantial evidence supports the decision and whether the proper legal standards were used in evaluating the evidence.[42] “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[43] Substantial evidence “must do more than create a suspicion of the existence of the fact to be established, but ‘no substantial evidence' will only be found when there is a ‘conspicuous absence of credible choices' or ‘no contrary medical evidence.'”[44]

         If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed.[45] In reviewing the Commissioner's findings, a court must carefully examine the entire record, but refrain from re-weighing the evidence or substituting its judgment for that of the Commissioner.[46] Conflicts in the evidence[47] and credibility assessments[48] are for the Commissioner to resolve, not the courts. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.[49]

         B. Entitlement to Benefits

         Supplemental Security Income (“SSI”) is a benefit program for indigent disabled individuals who have not paid into the Social Security system and also for disabled individuals who are receiving Social Security disability benefits, but whose monthly benefit amounts are below a certain amount.[50] In order for an individual under the age of eighteen to be found disabled and entitled to SSI benefits, he or she must have a “medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”[51]

         C. Evaluation Process and Burden of Proof

         A three-step process is utilized to determine whether a person under the age of eighteen is disabled.[52] At step one, it must be determined whether the claimant is engaging in substantial gainful activity. A child claimant who is engaging in substantial gainful activity will be found not disabled regardless of his or her medical condition, age, education, or work experience.[53]

         At step two, it must be determined whether the claimant has a medically determinable impairment or a combination of medically determinable impairments that is severe. A child found to have a slight abnormality or a combination of slight abnormalities that cause no more than minimal functional limitations will be found not disabled.[54]

         At step three, it must be determined whether the claimant has an impairment or combination of impairments that meets or medically equals the criteria of a listing or that functionally equals a listing.[55] When the impairments do not meet or equal a listed impairment, the Commissioner will evaluate the functional limitations caused by the child's impairments to determine whether they are disabling.[56]

         To evaluate functional equivalence at step three, the Commissioner considers how a child functions in her activities in terms of six domains of functioning.[57] The six domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being.[58] Functional equivalence means that the impairment is of listing-level severity and results in “marked” limitations in two of the six domains of functioning or an “extreme” limitation in one domain.[59] A “marked” limitation in a domain is when an impairment interferes seriously with the child's ability to independently initiate, sustain, or complete activities.[60] An “extreme” limitation interferes very seriously with the child's ability to independently initiate, sustain, or complete activities.[61]

         A child who has been found disabled must periodically undergo a continuing disability review to determine if he or she is still eligible for disability benefits.[62]The Commissioner first evaluates whether there has been medical improvement in the impairments the claimant had at the time of the most recent favorable determination, i.e., the comparison point date (“CPD”).[63] If there has been medical improvement, the Commissioner next considers whether the impairments the claimant had at the time of the CPD still meet, or medically or functionally equal, the severity of the listing applicable at that time.[64] If they do not, the Commissioner proceeds to consider whether the claimant's current impairments are disabling under the same rules used to make the initial determination of disability.[65] Thus, if the claimant's previously disabling impairment no longer meets or equals a listed impairment, the finder of fact determines whether all of the claimant's impairments are currently disabling, including any impairments that were not present at the time of the prior disability determination.[66] The determination of current disability applies the same sequential steps used for initial child's disability determinations, as described above.[67]

         D. The ALJ's Findings and Conclusions

         In this case, the ALJ found that, at the CPD of April 10, 2007, Q.J.F. had speech and language delays that were disabling. There is no contrary evidence in the record.

         The ALJ further found that medical improvement occurred as of May 1, 2015. This finding is supported by substantial evidence in the record. In particular, Ms. Thomas filled out a questionnaire on February 9, 2015 in which she noted that Q.J.F. was ...


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