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Hall v. Berryhill

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

November 28, 2017

MARY L. HALL, on behalf of K. HALL, a minor child PLAINTIFF
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Mary L. Hall, brings this action on behalf of her minor child, K.H., seeking judicial review, pursuant to 42 U.S.C. § 405(g), of a decision of the Commissioner of the Social Security Administration (Commissioner) denying K.H.'s application for child's supplemental security income (SSI) benefits under Title XVI of the Social Security Act (Act).

         I. Procedural Background:

         Plaintiff protectively filed the application for SSI on her minor child K.H.'s behalf on March 13, 2014, alleging that K.H., who was twelve years of age when the application was filed, was disabled due to a learning disability, sleep apnea, and restless leg syndrome. (Tr. 91, 102). An administrative hearing was held on October 21, 2015, at which Plaintiff and K.H. appeared with counsel and testified. (Tr. 59-89).

         In a written opinion dated November 30, 2015, the ALJ found that K.H. had thefollowing severe impairments: asthma, attention deficit/hyperactivity disorder (ADHD), a learning disorder, and obesity. (Tr. 29-30). However, the ALJ further found that as K.H. did not have an impairment or combination of impairments that was medically or functionally equal to a listed impairment, K.H. was not disabled. (Tr. 43).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on January 17, 2017. (Tr. 1-6, 14-19). Plaintiff filed a Petition for Judicial Review of the matter on February 21, 2017. (Doc. 1). Both parties have submitted briefs, and this case is before the undersigned for report and recommendation. (Docs. 13, 14).

         The Court has reviewed the transcript in its entirety. The complete set of facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         II. Evidence Submitted:

         At the hearing before the ALJ on October 21, 2015, Plaintiff's mother testified that K.H. was born approximately three weeks premature on January 17, 2002. (Tr. 65-66). She further testified that at the time of the hearing, he was thirteen years old and was in the 8th grade. (Tr. 65-66).

         Prior to the relevant time period, the medical records reveal that K.H. was treated for allergic rhinitis, extrinsic asthma, obstructive sleep apnea, ADHD, ear infections, bronchitis, cough symptoms, flu vaccine reaction, head contusion, leg cramps, and dermatitis. (Tr. 344, 350, 356, 374, 380, 397, 398, 409, 416, 422, 428, 433, 441-444, 450, 455, 613-615, 617-618, 623-625, 629, 630-633, 667, 671-673, 675, 677). Also prior to the relevant time period, K.H. was evaluated for problems with his vision, for which Optometric Vision Therapy was recommended to assist with development of the necessary visual abilities for academic achievement. (Tr. 661). Plaintiff also underwent a Psychological Evaluation by Corrinne Anton, at the University of Arkansas Psychology Clinic, where he was diagnosed with ADHD, math disorder, written expression disorder, and learning disorder. (Tr. 246-255). In 2012, a speech and language screening report from K.H.'s school in Pea Ridge, Arkansas, demonstrated that he achieved average scores and that further testing of K.H.'s language and auditory perception ability was not needed. (Tr. 763). Also in 2012, K.H. underwent Wechsler Intelligence Scale for Children, where it was determined that his full scale IQ was 75. (Tr. 238). K.H. also underwent an evaluation in the Pea Ridge School District, which demonstrated his need for special education services in the areas of reading, written expression and math. (Tr. 739). An Individual Education Plan (I.E.P.) conducted in March of 2012 showed that K.H.'s scores and performance were below grade level in the areas of reading, writing and math. (Tr. 727). K.H.'s 2013 I.E.P revealed that he had not met his learning goals for the year. (Tr. 711). However, K.H.'s 2014 I.E.P revealed that while K.H. had completed some of his annual goals and continued to make progress, it was anticipated that he would continue to receive special education services. (Tr. 690).

         During the relevant time period, in April of 2014, K.H. completed Benchmark testing where he scored at the basic level for math and below the basic level in literacy. (Tr. 663). K.H.'s literacy and written expression teacher, Ms. Ballard, completed a Teacher Questionnaire. In that statement, Ms. Ballard indicated that K.H. had slight problems with response to most tasks involving acquiring and using information, attending and completing tasks, and interacting and relating to others; a slight problem with moving about and manipulating objects; and a few obvious problems with respect to tasks involving caring for himself. (Tr. 283-289). Ms. Ballard also indicated that K.H. had not had excessive absences from school. (Tr. 289).

         On April 9, 2014, K.H. was seen by Pam Chrisco, APRN, for cold symptoms and was treated with prescription medication. (Tr. 611-612). On April 17, 2014, Dr. Curtis Hedberg, at Hedberg Allergy and Asthma Center, documented the following in his clinic notes: that K.H.'s allergic rhinitis was controlled with medication; that his recent asthma flare-up was treated with medication; and that his sleep apnea was well controlled with nightly use of a CPAP machine. (Tr. 576). Pulmonary testing from that date showed mild obstructive pulmonary impairment. (Tr. 587).

         On April 29, 2014, K.H. was seen by Dr. Wade Fox at Northwest Arkansas Primary Care Physicians for a sports physical and a refill of his Adderall. (Tr. 609-610). Plaintiff visited Northwest Arkansas Primary Care Physicians again on June 6, 2014, and after a chest x-ray was performed, he was prescribed antibiotics for bronchitis. (Tr. 607-608).

         On July 31, 2014, K.H. underwent a Mental Diagnostic Evaluation and Intellectual Assessment by Dr. Deborah A. Smithyman, PsyD. Dr. Smithyman made the following determinations: that K.H. had not undergone any mental health therapy or counseling; that his speech was clear; that his thoughts were logical; that he was calm and cooperative; that his ADHD was well controlled on medication; and that he had an IQ score of 80. (Tr. 588-591). Dr. Smithyman also opined that K.H. was behind academically because of his cognitive limitations; however, he communicated and interacted in a socially adequate manner; he communicated in an intelligible and effective manner; he was able to cope with the demands of the testing; he would likely to be able to accomplish usual tasks in school setting in an acceptable time frame with receipt of special education services; he could attend and concentrate adequately; and his task persistence was good. (Tr. 591-592).

         On August 6, 2014, Dr. Patricia McCarron, a non-examining medical consultant, completed a Child Disability Evaluation in which she determined that K.H. had no limits in any area except for a less then marked limitation in acquiring and using information. (Tr. 97). She further determined that K.H.'s impairment or combination of impairments was severe; however, they did not “meet, medically equal, or functionally equal the listings.” (Tr. 97-98).

         On August 9, 2014, K.H. saw family practitioner, Dr. Zach Guynn, for symptoms of swimmers ear, for which he was prescribed ear drops. (Tr. 605). Plaintiff was seen by Dr. Fox on August 11, 2014, for a refill on his ADHD medications. (Tr. 603). On August 31, 2014, Plaintiff was seen at Northwest Arkansas Primary Care Physicians by Ambry Prater, PA, for sinus drainage, sore throat and cough. Plaintiff was assessed with seasonal allergic rhinitis and an upper respiratory infection and treated with allergy medications as well as other over-the-counter medications. (Tr. 601-602). K.H. was seen at Arkansas Medical and Wellness on September 7, 2014, for continued cough and congestion, for which he was prescribed antibiotics and ...


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