United States District Court, W.D. Arkansas, Fayetteville Division
ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE
April Roflow, brings this action pursuant to 42 U.S.C.
§405(g), on behalf of her minor son, J.T.P., seeking
judicial review of a decision of the Commissioner of the
Social Security Administration (Commissioner), denying
J.T.P.'s application for child's supplemental
security income (SSI) benefits under Title XVI of the Social
Security Act (Act). In this judicial review, the Court must
determine whether there is substantial evidence in the
administrative record to support the Commissioner's
decision. See 42 U.S.C. §405(g).
protectively filed the application for SSI on J.T.P.'s
behalf on April 13, 2012, alleging that J.T.P. was disabled
beginning on May 25, 2011, due to a learning disability and
Attention Deficit Hyperactivity Disorder
(ADHD). (Doc. 14, pp. 114-119, 143, 146). An
administrative hearing was held on October 16, 2013, at which
Plaintiff was represented by counsel, and she and J.T.P.
testified. (Doc. 14, pp. 35-52).
written decision dated January 14, 2014, the ALJ found that
J.T.P. was not disabled, as he did not have an impairment or
combination of impairments that met or was functionally equal
to a listed impairment. (Doc. 14, pp. 19-29).
requested a review of the hearing decision by the Appeals
Council, which denied that request on May 8, 2015. (Doc. 14,
pp. 5-8). Subsequently, Plaintiff filed this action. (Doc.
1). The case is before the undersigned pursuant to the
consent of the parties. (Doc. 7). Both parties have filed
appeal briefs, and the case is now ready for decision. (Docs.
case, the ALJ employed a three-step sequential test to
determine the validity of the alleged disability: 1) First, a
determination of whether the child is engaged in substantial
gainful activity; 2) Second, a determination of whether the
child's impairments are “severe;” and 3)
Third, whether the child's impairments are medically or
functionally equal in severity to the listed impairments set
forth in the Commissioner's disability regulations. (Doc.
14, p. 17).
respect to the third step, “a child's impairment is
medically equal to a listed impairment if it is at least
equal in severity and duration to the medical criteria of the
listed impairment.” Pepper ex rel. Gardner v.
Barnhart, 342 F.3d 853, 854 (8th Cir.
2003)(quoting 20 C.F.R. §416.926(a)). “A
child's impairment is functionally equal to a listed
impairment if there is an ‘extreme' limitation in
one of six specific functional domains, or a
‘marked' limitation in at least two domains.”
Pepper, 342 F.3d at 854 (quoting 20 C.F.R.
marked limitation in a domain is a limitation that seriously
interferes with a child's ability to ‘independently
initiate, sustain, or complete activities.'”
England v. Astrue, 490 F.3d 1017, 1020
(8th Cir. 2007)(quoting 20 C.F.R.
416.926a(g)(2)(I))). “A marked limitation is
‘more than moderate' but ‘less than
extreme.'” Id. “An extreme
limitation is one that ‘interferes very seriously with
[a child's] ability to independently initiate, sustain,
or complete activities.'” Scales v.
Barnhart, 363 F.3d 699, 703-704 (8th Cir.
2004)(quoting 20 C.F.R. §416.926a(g)(3)(i)).
“Domain analysis considers the child's
age-appropriate functioning in relation to: acquiring and
using information, attending and completing tasks,
interacting and relating with others, moving around and
manipulating objects, caring for oneself, and health and
physical well being.” Pepper, 342 F.3d at 854
(quoting 20 C.F.R. §416.926a(a)(1)(i)-(vi)). “The
evaluation of age-appropriate functioning within each domain
focuses on the child's abilities and limitations; where
the child has difficulty; the quality of any limitations; and
the kind, extent, and frequency of help that the child
needs.” Scott v. Astrue, No.
09-0196-CV-W-GAF-SSA, 2010 WL 750062 at *2 (W.D. Mo. Mar. 2,
raises the following issues in this matter: 1) Whether the
ALJ erred in finding J.T.P. only had marked, not extreme,
limitations in acquiring and using information; 2) Whether
the ALJ erred in finding J.T.P. had less than marked
limitations in attending and completing tasks; and 3) Whether
the ALJ erred in finding J.T.P.'s ADHD did not
functionally or medically equal listing 112.11. (Doc. 12).
was born on January 28, 2004. (Doc. 14, p. 143). Plaintiff
testified that J.T.P.'s problems started when he was 15
days old, and that one time he ended up with bronchitis to
the point that he could not breathe, and had to be
hospitalized. (Doc. 14, p. 42). The medical records reflect
that in March of 2011, J.T.P. had a right inguinal hernia
repair, performed by Dr. Guy Rosenschein. (Doc. 14, p. 480).
A left inguinal hernia repair was performed on J.T.P. on July
27, 2012. (Doc. 14, p. 292).
25, 2011, a Psychoeducation Evaluation Report was performed
by Jennifer Shreve, M.S., a Certified School Psychology
specialist, Licensed Psychological Examiner, for Fayetteville
Public Schools. (Doc. 14, p. 182). She reported that
J.T.P.'s grade report from kindergarten the previous year
indicated grades of mostly As and Bs, with one C in writing
during the first semester. J.T.P.'s first grade teacher
indicated that he had good social skills and loved outside
activities, but was performing significantly below grade
level in reading, spelling, writing, and math. (Doc. 14, p.
183). Ms. Shreve also reported that his teacher indicated
J.T.P. tended to play, socialize and talk excessively instead
of doing work in the classroom, and that this was despite
modifications to the regular program, such as preferential
seating, repeating/simplifying directions, one-on-one
instruction and guidance, reduced assignments and
conferencing with the parent. (Doc. 14, p. 183). Ms. Shreve
reported that J.T.P. presented as an enthusiastic, active
student with a good vocabulary, and that his attention and
concentration were limited. (Doc. 14, p. 183). She also
reported that J.T.P. had a full scale IQ of 89, and that test
results indicated his significant strengths were in verbal
reasoning ability and verbal comprehension, and his
significant weaknesses were in nonverbal reasoning ability
and visual-perceptual skills. (Doc. 14, p. 184). She found
J.T.P.'s overall cognitive functioning to be at the high
end of the low average range and his nonverbal reasoning
ability to be at the high end of the borderline range. (Doc.
14, p. 188). She recommended placing J.T.P. in special
education services in the areas of reading and math. (Doc.
14, p. 188).
August 16, 2011, J.T.P. was seen by his treating physician,
Dr. Ezinne C. Nwude, of UAMS Family Medical Center. (Doc. 14,
p. 248). Dr. Nwude reported that J.T.P.'s teachers
complained that he could not stay still in class, was always
turning around in the classroom, doing what he wanted to do,
and did not obey instructions. (Doc. 14, p. 248). Dr. Nwude
assessed J.T.P. with attention or concentration deficit.
(Doc. 14, p. 250).
September 23, 2011, Dr. Nwude again saw J.T.P., and the
previous assessment of attention or concentration deficit was
unchanged. Dr. Nwude noted that J.T.P.'s mother's
assessment of J.T.P. qualified for a diagnosis of ADHD
Combined Inattention/Hyperactivity, but the teacher's
assessment did not. (Doc. 14, pp. 246-247). Dr. Nwude
encouraged J.T.P.'s mother to be more tolerant of his
inattention at home and to help him with reading every night;
to find out from the teacher if with the mother's help
and other help, he was keeping up with his classmates in
reading; and to hold off on medications and on giving him the
diagnosis of ADHD considering his age, the seriousness of the
diagnosis, and the side effects of the medications. (Doc. 14,
8, 2012, J.T.P. and his mother saw Dr. Nwude, who reported
that J.P.T.'s mother and teachers showed that he was
getting worse in all symptoms and performance. (Doc. 14, p.
234). Dr. Nwude therefore referred J.T.P. to Dr. Donna Van
Kirk, Ed. D., Psychologist, for evaluation. (Doc. 14, p.
235). J.T.P. saw Dr. Van Kirk on May 9, 2012, upon Dr.
Nwude's referral. (Doc. 14, p. 256). Dr. Van Kirk
reported that J.T.P.'s two second grade teachers
described him as constantly out of his seat, not
concentrating, and very distractible. She also reported that
J.T.P. would not work independently for more than five to ten
minutes and only when he was rewarded with equal time to do
an art activity. J.T.P. was reported as arguing excessively,
especially with his father, Mr. Brandon Hicksom, was having
temper tantrums several times daily when he was disciplined,
and during outbursts, he was throwing objects, and had swung
at his dad. (Doc. 14, p. 256). Dr. Van Kirk reported that
J.T.P. made good eye contact, understood test demands,
cooperated well, was physically active, was observed crossing
and uncrossing his feet, swinging them around, and stretching
his arms above his head. (Doc. 14, p. 256). He had difficulty
with directionality, rate of speed on paper-pencil tasks, and
poor fine motor dexterity was observed. (Doc. 14, p. 256).
Dr. Van Kirk concluded that J.T.P. was significantly more
inattentive and distractible than same-age boys, and had more
problems with learning, decision-making, judgment, and
organization than his peers. (Doc. 14, p. 257). She diagnosed
J.T.P. with ADHD, Combined type, recommended that he try
medication, and recommended an occupational therapy
evaluation. (Doc. 14, p. 485). She also recommended that
J.T.P.'s parents present him with a united front
regarding reasonable expectations and consequences. (Doc. 14,
26, 2012, Dr. Karen Schnute completed a Childhood Disability
Evaluation Form. (Doc. 14, p. 263). She concluded that
J.T.P.'s impairment or combination of impairments were
severe, but did not meet, medically equal, or functionally
equal the listings. (Doc. 14, p. 263). She found J.T.P. was
less than marked in acquiring and using information;
attending and completing tasks, and moving about and
manipulating objects. (Doc. 14, p. 265). She further found
that J.T.P. had no limitations in interacting and relating
with others, caring for himself, or health and physical
well-being. (Doc. 14, p. 265).
16, 2012, J.T.P. saw Dr. Nwude, and based upon Dr. Van
Kirk's recommendation, Dr. Nwude started J.T.P. on
Focalin. (Doc. 14, pp. 273, 275). On July 30, 2012,
J.T.P.'s mother reported to Dr. Nwude that he seemed to
be doing better since the medication was started. (Doc. 14,
p. 269). Dr. Nwude therefore diagnosed J.T.P.'s ADHD as
“Improved.” (Doc. 14, p. 271).
October 12, 2012, after J.T.P. had his second inguinal hernia
surgery, he saw Dr. Nwude, who noted that J.T.P.'s
teachers reported that he was doing much better in school
since starting his medication. (Doc. 14, p. 335). His mother
reported that he still had episodes of temper tantrums and
disobedience at home. Dr. Nwude's impression was
“ADHD - encouraged behavioral modification at home.
Will consider parenting class or referral to OGC if behavior
at home worsens.” (Doc. 14, p. 337).
November 7, 2012, a Teacher Questionnaire was completed by
Melanie Kyle, a Special Education Instructor. (Doc. 14, p.
166). She indicated she had known J.T.P. for one year and saw
him daily, five days a week, for math and reading. (Doc. 14,
p. 166). She reported that Plaintiff had a serious problem in
reading and/or comprehending written material; comprehending
and doing math problems; learning new material; and recalling
and applying previously learned material. (Doc. 14, p. 169).
She reported that he had a very serious problem expressing
ideas in written form, and that he required a lot of support
in order to complete tasks. (Doc. 14, p. 169). Ms. Kyle found
J.T.P. had a serious problem focusing long enough to finish
assigned activity or tasks and refocusing to task when
necessary; needed reminders and redirection at times; would
not work independently for more than a couple of minutes at a