United States District Court, W.D. Arkansas, Fayetteville Division
MARY L. HALL, on behalf of K. HALL, a minor child PLAINTIFF
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.
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
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).
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).
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,
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
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).
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).
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).
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).
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).
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).
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).
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 ...