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Roflow v. Colvin

United States District Court, W.D. Arkansas, Fayetteville Division

November 8, 2016

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, DEFENDANT



         Plaintiff, 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).

         I. Procedural Background:

         Plaintiff 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).[1] (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).

         In a 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).

         Plaintiff 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. 12, 13).

         II. Applicable Law:

         In this 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).

         With 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. §416.926(a)).

         “A 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, 2010).

         III. Discussion:

         Plaintiff 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).

         J.T.P. 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).

         On May 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).

         On 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).

         On 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, p. 247).

         On May 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, p. 485).

         On June 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).

         On July 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).

         On 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).

         On 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 ...

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