Opinion
No. C98-2113.
December 9, 1999.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to briefs on the merits of this application for Supplemental Security Income (SSI) benefits. By order dated November 30, 1999, the matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the court find in favor of the defendant and that this action be dismissed.
Procedural background
Plaintiff Jeffrey D. Cunningham is now a 13-year-old boy from Waterloo, Iowa. His mother, Jamie J. Puckett, applied for SSI on Cunningham's behalf July 28, 1995, and his claim was denied; upon reconsideration, the claim was again denied. His appeal was heard July 24, 1997, before Administrative Law Judge Thomas A. Donohue, and in an October 22, 1997, decision, the ALJ found the child was not disabled within the definition of Title XVI of the Social Security Act. To be found disabled as a minor child under 42 U.S.C. § 1382c(a)(3)(C) which became effective August 22, 1996, a child must have a "medically determinable physical or mental impairment, or a combination of impairments 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." The ALJ found that Cunningham did not meet the requirements for "Marked Limitation" 20 U.S.C. § 416.926a (c)(3)(C), or "Extreme Limitation" 20 U.S.C. § 416.926a(c)(3)(ii)(C). A request for review by the Appeals Council was denied October 27, 1998. Cunningham then filed this petition for judicial review.
Factual Background
Jeffrey D. Cunningham was born September 26, 1986, in Waterloo, Iowa. While he was born one month prematurely, the pregnancy was essentially normal (Tr. 82). Jeffrey has two half-siblings: Robert (3 years older) with whom Jeffrey fights often (Tr. 37); and KayCee (9 years older) who no longer lives in the home. Both siblings had been diagnosed with attention deficit hyperactivity disorder (ADHD) (Tr. 182-83). Jeffrey enjoys swimming, roller blading and riding his bicycle (Tr. 36).
While Jeffrey was in kindergarten, his mother described his behavior as restless, impulsive, distractable, and aggressive (Tr. 182). On March 24, 1993, Jeffery was diagnosed with ADHD by Robert E, Pucelik, M.D., and medical director at the Black Hawk Grundy Mental Health Center, Inc. (Tr. 183). Jeffrey was placed on 10 mg of Imipramine (Tr. 183). The plaintiff was seen twice more at the Black Hawk Medical Center in April 1993, with Larry G. Ryan, M.A., for counseling, and Marvin F. Piburn, M.D., to adjust the plaintiff's medication (Tr. 180-81). Dr. Piburn called Jeffrey "one of the more hyperactive children I have seen in my practice this year," and described him as ignoring all directives, playing around with everything in the office, sometimes whistling, sometimes quacking like a duck, bouncing up and down on the chairs, and getting in the way of conversation between the doctor and plaintiff's mother (Tr. 180). When 5 mg of Ritalin was added to the Imipramine Jeffrey was taking, his mother reported a "dramatic improvement" in his behavior, and Jeffrey reported the Ritalin to be helpful (Tr. 179). In September 1994, Jeffrey's teacher, Christy Takes, reported that Jeffrey had a good sense of humor and good attendance record (Tr. 68). Also she said he sought almost constant attention, acted silly and defiant, couldn't sit in his seat, and that it took a long time for his medicine to kick in (Tr. 68).
Jeffrey had problems regulating his medication. In October 1994, Dr. Pucelik recommended Jeffrey use 10 mg of Ritalin in the morning and 10 mg at noontime (Tr. 177). In August 1995, after a summer without Ritalin, Jeffrey's mother described him as "out of control," and Dr. Pucelik recommended Jeffrey increase his Ritalin to 15 mg in the morning, and at noon for the start of the 1995 school year (Tr. 176). While Jeffrey is reported to have a poor appetite on Ritalin (Tr. 92, 100, 107, 149, 177, 191, 196), there are reports that he has no side-effects from the medication (Tr. 177-78). If the dosage is too high, he complains of headaches (Tr. 176-79), becomes lethargic (Tr. 177) and drowsy (Tr. 178). In May 1996, Jeffrey was on 25 mg of Imipramine in the morning and at 4:30 p.m., with 15 mg of Ritalin at 8 a.m., and at noon (Tr. 190). His mother reported a decrease in Jeffrey's temper outbursts; he was reported to be generally calmer at home and at school. By July 24, 1997, Jeffrey's mother reported he was taking 25 mg of Imipramine in the morning and evening; and 10 mg of Ritalin in the morning and at noon (Tr. 36).
If the dosage was not high enough, Jeffrey had behavior problems. For example, on November 30 and December 1, 1995, Jeffrey received a two-day suspension from school for threatening to beat up students and a teacher; on January 23, 1996, Jeffrey served a one-day in-school suspension for fighting; he was disciplined on February 9, 1996, for shooting a rubberband at a parent in the lunchroom; and he received a three-day suspension from riding the school bus in April 1996 for arguing with students on the bus and calling the driver names. In fact, in October 1996, Jeffrey began to wear a harness on the school bus (Tr. 145, 197) in an effort to keep him in his seat and curtail potentially dangerous conduct, such as opening the emergency door (Tr. 33).
At home, Jeffrey's bicycle needed to be locked up because his mother reported that Jeffrey ignored safety rules (Tr. 38). Jeffrey often ran off without permission (Tr. 41), and he was aggressive with the family cat, cutting off its whiskers and swinging it around by its tail (Tr. 38). Jeffrey only completed a chore at home if his mother stood over him and watched him complete it (Tr. 37-38). She couldn't take Jeffrey to the store with her because she said he steals (Tr. 41). For behavioral control, Jeffrey's mother took away privileges, such as dessert (Tr. 39).
Jeffrey's elementary school counselor, Jill Hay, wrote on June 5, 1996, that even with medication, Jeffrey can still have very difficult times especially during the unstructured times at school [hallways, recess, lunchroom, etc] (Tr. 144). However, in a school activities questionnaire filled out September 14, 1995, by Jeffrey's teacher, Rusti Sparks, described Jeffrey's in-class behavior, attention span and concentration: "When Jeffrey receives his medication, his on-task behavior is 80-90%" (Tr. 117). Jeffrey's mother said on July 24, 1997, that medication helps Jeffrey stay on-task "somewhat," (Tr. 36) and with the medication "he's not climbing the walls at least. He's able to concentrate a little longer than he would if he didn't have the medication" (Tr. 36). Despite the fact that school officials requested that Jeffrey not be sent to school without his medication (Tr. 127), often Jeffrey reported to school without having taken his medication or before his medication took effect, which took 20-30 minutes (Tr. 127). Often, Jeffrey was required to wait in the hall, or work with the school janitor until his medication became effective (Tr. 93).
The plaintiff's mother reported that during the 1996 Easter weekend, the plaintiff's father smashed the car windows, broke into the house, tied up the plaintiff and his half-brother, Robert, struck them both and assaulted their mother, and the plaintiff's sister and her boyfriend (Tr. 190). Jeffrey's teacher reported that since this episode, the boy had more difficulty concentrating on schoolwork (Tr. 190). Catherine L. Uymatiao, M.D., diagnosed Jeffrey with post-traumatic stress disorder because of the flashbacks and nightmares the boy was experiencing (Tr. 190-194). In April 1996, Jeffrey's mother received a letter requiring her to attend a parent forum because Jeffrey repeatedly disrupted the educational environment at the school (Tr. 137). On May 7, 1996, Jeffrey's teacher, Ms. Sparks, reported the boy arrived at school so out of control that he had to be sent home (Tr. 136). Jeffrey pounded on his desk, and stood on his head. When he was removed from the classroom, he made animal noises, threw his pencil and paper on the floor and tipped over his desk (Tr. 136). On June 5, 1996, Jeffrey arrived at school in an agitated state and had a difficult time beginning his work (Tr. 135). As he sat in the hallway, he displayed self-destructive behavior, banging his head on the wall, tying a string tightly around his neck, and repeating, "I'm going to kill myself" (Tr. 135).
Jeffrey attended kindergarten at Roosevelt Elementary School in Waterloo; first grade at Grant Elementary School in Waterloo; and returned to Roosevelt Elementary for second, third and fourth grades. At the end of second grade, Jeffrey was placed in a class for learning disabled children (Tr. 190). He made strides from being a non-reader to being able to read. He is better in math, according to a May 31, 1996, psychiatric evaluation by Dr. Uymatiao (Tr. 190-91). He is especially good with money, accurately counting his mother's tips and earning money by raking leaves and doing other jobs around the neighborhood (Tr. 93).
On February 9, 1995, school psychologist Adrienne M. Lewis, EdS., administered the Wechsler Intelligence Scale for Children-III and Jeffrey was very cooperative during the test and demonstrated effort during the session (Tr. 73). He scored within the average range for cognitive functioning (Tr. 73). Jeffrey's teacher completed a Burk's Behavior Rating Scale which showed he had high scores in excessive anxiety, excessive withdrawal, poor ego strength, poor coordination, poor intellectuality, poor reality contact, poor sense of identity, excessive resistance, and poor social conformity (Tr. 72). Also, he showed poor academics, poor attention and poor impulse control (Tr. 72). Jeffrey showed no significant difficulties with the social and emotional functioning (Tr. 72). Another evaluation on February 13, 1995, by Paula Goetz, an educational strategist, showed the plaintiff needed help in reading and written language (Tr. 75-79). When Jeffrey was in the fourth grade, for example, his reading skills were that of a second grader (Tr. 155). On March 30, 1995, psychologist Joan Ogden evaluated the plaintiff, identified him as learning disabled, and suggested he be placed in a self-contained classroom (Tr. 90-93).
By January 9, 1997, Jeffrey was described in a teacher questionnaire completed by his special education teacher, Amy Ramker, as having "an average attention span for this classroom, as long as he has had his medicine (Ritalin)." Ms. Ramker reported that with his medication, Jeffrey is able to work independently, complete assignments and display appropriate behavior (Tr. 155). At school, Jeffrey remains segregated from the student population except for lunch, recess, PE, and art (Tr. 155). Although Ms. Ramker describes Jeffrey as preferring routine, he accepts change; she says he gets along with peers and teachers; and his communication skills are OK (Tr. 155-56).
Finally, Jeffrey's mother believes the boy is disabled (Tr. 54, 58) because she says he can not function in a "normal" environment. "He's in a learning disability classroom and I don't feel that that's a normal environment," she said. "There's eight students, two teachers" (Tr. 40). "If his disability isn't severe enough, why is he on medication in the first place?" (Tr. 123).
Scope of Review
In order for the court to affirm the Administrative Law Judge's (ALJ) findings of fact, those findings must be supported by substantial evidence appearing on the record as a whole. See Lochner v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Cruse, 867 F.2d at 1184; Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir. 1986). The court must take into account evidence which fairly detracts from the ALJ's findings. Cruse, 867 F.2d at 1184; Hall v. Bowen, 830 F.2d 906, 911 (8th Cir. 1987). Substantial evidence requires "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Cruse, 867 F.2d at 1184 (quoting Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). The court must consider the weight of the evidence appearing in the record and apply a balancing test to contradictory evidence. Gunnels v. Bowen, 867 F.2d 1121, 1124 (8th Cir. 1989); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).
The New Law Concerning Disabled Children
On August 22, 1996, the President signed into law the Personal Responsibility and Work Opportunity Reconciliation Act, Pub.L. No. 104-193, 110 State 2105, which changed the standard by which SSI benefits for disabled children are awarded by eliminating "comparable severity" and following this new definition:
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter is that individual has 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. 42 U.S.C. § 1382c(a)(3)(C).
A physical or mental impairment is:
An impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. Chapter 1382c(a)(3)(D).
The statute does not define "marked and severe functional limitations," but 20 C.F.R. § 416.926a(c)(3)(i)(1999) defines "marked limitations" for the purposes of this case as:
(A) When standardized tests are used as the measure of functional abilities, a valid score that is two standard deviations or more below the norm for the test(but less than three standard deviations); or
(C) For children from age 3 to attainment of age 18, more than moderate and less than extreme. Marked limitation may arise when several activities or functions are limited or even when only one is limited as long as the degree of limitation is such as to interfere seriously with the child's functioning.
"Extreme limitation" 20 C.F.R. § 416.926a(c)(3)(ii)(1999) (for these purposes) means:
(A)When standardized tests are used as the measure of functional abilities, a valid score that is three standard deviations below the norm for the test; or
(C) for children from birth to attainment of age 18, no meaningful functioning in a given area. There may be extreme limitation when several activities or functions are limited or even when only one is limited.
If a child's impairment or combination of impairments does not meet or equal any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, then four methods are used to determine whether the child's impairment or combination of impairments is functionally equivalent to a listed impairment. 20 C.F.R. § 416.926a(a),(b) (1999). The four methods that require consideration are: (1) limitation of specific functions; (2) broad areas of development functioning; (3) episodic impairments; and (4) limitations related to treatment or medication effects. 20 C.F.R. § 416.926a(b)(1)-(4) (1999). Methods 1,3 and 4 require function equivalence to a specific Listed Impairment, although one that is not necessarily related medically to the child's impairment. 20 C.F.R. § 416.926a(b)(1)(3)(4). The second method requires evaluation of the child's impairment in broad areas of development or functioning, to determine if the child's limitations are equivalent in severity to the disabling functional limitations in the Listing of Impairments for children between ages 3 and 18. 20 C.F.R. § 416.926a(b)(2)(1999).
Analysis
The plaintiff claims that the ALJ improperly found that his ADHD and reading deficit were non-severe impairments. This court believes the ALJ's decision is supported by the record.
The medical evidence clearly shows the plaintiff suffers from Attention Deficit Hyperactivity Disorder. Although in 1993, Dr. Marvin Piburn called plaintiff "one of the more hyperactive children I've seen in my practice this year," the statement was made before the plaintiff's medications were properly adjusted. After the plaintiff was placed on proper doses of Imipramine and Ritalin, his behavior was more controlled. This improved behavior was noted by his mother, his teachers, and his school counselors. By 1995 and 1996, when the child was properly medicated, plaintiff was able to work on-task in his classroom 80 to 90 percent of the time, his attention span was average but he was able to work independently to complete assignments, his teacher said.
While his behavior was far from perfect, the plaintiff had the most difficulty during unstructured times, such as lunch, recess, in the hallways and on the school bus. Often, school officials were concerned that the child was not properly medicated when he arrived at school in the morning (which might explain why the boy had so much difficulty on the school bus); teachers had to wait for the child's medication to take effect before the boy could be effective in the classroom.
Nevertheless, it is clear that when the child was given the proper doses of medication at the proper times, he was able to function with no reported side affects except a decreased appetite. When his medication was properly administered, his school work improved. One therapist, for example, described plaintiff's reading progress as moving from a non-reader to a reader. While this scholastic improvement took place in the confines of a special education class, and when the plaintiff's behavior was controlled by medication, he had the ability to read and perform well in math, showing that he faced only minimal functional limitations. If an impairment can be controlled by medication or treatment, it cannot be considered disabling. See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993) (if an impairment can be controlled by treatment of medication, it cannot be considered disabling); Campbell o/b/o Campbell v. Chater, 923 F. Supp. 1184, 1197 (E.D. Mo. 1996) (finding behavior of child with attention deficit disorder was controlled by Ritalin to such a degree that the condition was not disabling).
The ALJ determined that the plaintiff showed no limitations while he was properly medicated in the broad areas of (1) social development; (2) personal development; (3) cognitive or communicative development; (4) concentration, persistence or pace; or (5) motor development.
(1) Social development: The ALJ determined that the plaintiff has no limitation in social development, and the court agrees with that analysis. Despite the plaintiff's mother's statement that the child and his brother were fighting often, plaintiff's teachers said while he was on medication, the plaintiff got along well with his teachers and his peers.
(2) Personal development: The ALJ found no limitations in personal development when the plaintiff was on his medication. The court agrees. The plaintiff did perform at-home chores while his mother supervised; plaintiff often helped the school janitor while waiting for his medication to take effect. The plaintiff refused to obey bicycle safety rules and his mother took the appropriate action by locking up his bike. Also, to control his behavior on the school bus, the plaintiff was required to wear a harness. There were moments of self-destructive behavior at school, mostly attributed to a one-time serious family problem that took place over the 1996 Easter weekend, and for which the plaintiff received counseling. Despite this one episode of self-destructive behavior, the court finds no evidence of extreme or marked limitation of personal development.
(3) Cognitive or communicative development: The evidence supports no finding of extreme or marked limitation in cognitive or communicative development. The plaintiff has a low/average IQ. However, in a special education classroom, the child has learned to read, exhibits strong math skills, and can communicate and express himself in a manner his teacher describes as "okay." The court finds no extreme or marked limitation.
(4) Concentration, persistence, pace: There is no evidence that the plaintiff's concentration, persistence or pace was markedly or extremely limited when he was on medication. Plaintiff was able to complete independent school assignments, and a school psychologist described the plaintiff as "very cooperative" and persistent during testing. The court finds no extreme or marked limitation.
(5) Motor development: There is no evidence to establish that the plaintiff has an extreme or marked limitation of motor development. Plaintiff rides a bicycle, roller blades, swims and his teachers have observed no problems with fine or gross motor skills. The court finds no extreme or marked limitations.
Thus, the ALJ found the plaintiff did not have extreme limitations in one of the broad areas of functioning or marked limitations in two areas. Therefore, the plaintiff has not met the requirements for a finding of impairment. 20 C.F.R. § 416.026a(b)(2)(1999).
Conclusion
The legislative history indicates that the 1996 statutory definition of childhood disability is more stringent than earlier standards for evaluating these claims. Briggs v. Callahan, 139 F.3d 606, 608 (8th Cir. 1998) (finding Brigg's hyperactivity has improved with medication and that she is not disabled under the old or new statutory definition.) Like Briggs, the plaintiff here appears to have problems, both physical and emotional, but plaintiff's problems seem to improve with medication to the point that the plaintiff is controlled, on-task and able to function within his school and home environments. Because Jeffrey Cunningham's attention deficit hyperactivity disorder is able to be controlled with proper medication, the court finds that the child is not disabled under the rules. Therefore, the ALJ's ruling is affirmed.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the complaint be dismissed.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).