United States District Court, D. Nebraska
ERIC A. GRIFFIN, A Minor Child; Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
CHERYL R. ZWART, Magistrate Judge.
Plaintiff Eric A. Griffin ("Griffin"), a child under the age of 18, seeks review of the decision by the defendant, Carolyn W. Colvin, Commissioner of the Social Security Administration (the "Commissioner"), denying his application for disability benefits under Title XVI of the Social Security Act. Social Security Transcript ("TR") at 12-25. After carefully reviewing the record, the Commissioner's decision will be reversed and remanded for proceedings consistent with this Order.
I. PROCEDURAL BACKGROUND
Griffin, by and through his legal guardian, protectively filed for SSI disability benefits on December 3, 2010. (TR. 60). The application was denied on March 3, 2011. (TR. 63). Plaintiff requested reconsideration and that request was denied on July 21, 2011. (TR. 67 & 71). Plaintiff requested a hearing. A hearing was held before an Administrative Law Judge ("ALJ") on September 13, 2012. (TR. 31). The ALJ issued a written decision determining Griffin was not disabled. (TR. 12-25). Plaintiff timely filed a Request for Review of the ALJ's decision. The Appeals Council denied the request on October 22, 2013. (T.1). Plaintiff now appeals from that decision.
II. THE ALJ's DECISION
The ALJ evaluated Griffin's claim through the three-step sequential evaluation process to determine whether Griffin - an individual under the age of 18 - was disabled. See 20 CFR 416.924(a). As reflected in his decision, the ALJ made the following findings:
1. The claimant was born on October 23, 2004. Therefore, he was a schoolage child on December 3, 2010, the date the application was protectively filed, and is currently a school-age child (20 CFR 416.926a(g)(2)).
2. The claimant has not engaged in substantial gainful activity since December 3, 2010, the protective filing date of the application (20 CFR 416.924(h) and 416.971 et seq.).
3. The claimant has the following severe impairments: Hearing loss on the right; and attention-deficit hyperactivity disorder ("ADHD") (20 CFR 416.924(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5. The claimant does not have an impairment or combination of impairments that functionally equals the severity of a listing (20 CFR 416.924(d) and 416.926a).
6. The claimant has not been disabled, as defined in the Social Security Act, since December 3, 2010, the date the application was protectively filed (20 CFR 416.924(a)).
III. ISSUES RAISED FOR JUDICIAL REVIEW
Griffin's complaint requests judicial review of the ALJ's decision. He raises the following arguments in support of his claim for reversal.
1) The ALJ erred by failing to have a qualified medical expert testify regarding the claimant's ADHD to determine whether Griffin had an impairment that met or equaled the severity of one of the impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
2) The ALJ abused his discretion and erred in failing to give sufficient weight to claimant's treating medical provider.
3) The ALJ erred by ignoring substantial evidence that supports the treating physician's opinion.
IV. THE RECORD AND PROCEEDINGS BEFORE THE ALJ
The Claimant was six years old and in kindergarten when his grandmother and legal guardian, Terri Hoskins, applied for SSI benefits based on childhood disability. Hoskins protectively filed the application on Griffin's behalf on December 3, 2010. (TR. 153, 110, and 106). Plaintiff alleges an onset date of October 25, 2010. (TR. 107). The alleged disability is due to Griffin's ADHD, complete hearing loss in his right ear, and partial hearing loss in his left ear. (TR. 136). Griffin was a school-age child during the relevant time period. See, e.g., 20 C.F.R. § 416.926a(g)(2)(iv).
Plaintiff's treating physician is Dr. Robert Drvol. On September 16, 2010, Griffin saw Dr. Drvol because Griffin was having difficulty at school and staying on task. (TR. 424). Dr. Drvol's notes also reflect that Hoskins was concerned because Griffin was "wild, " "inattentive, " and "never sits still." (TR. 424). Dr. Drvol diagnosed Griffin with ADHD and prescribed Concerta. (TR. 424). On October 19, 2010, Griffin visited Dr. Drvol again. (TR. 423). Dr. Drvol's notes indicate Griffin was "doing better" with his ADHD and that his teachers reported he was "much improved." (TR. 423). However, when Griffin ran out of medication, he experienced an increase in "bad behavior." (TR. 423). Dr. Drvol opined that Griffin would benefit from an increase in dosage of his ADHD medication and wrote a prescription accordingly. (TR. 423).
At a November 18, 2010 appointment, Dr. Drvol again indicated Griffin's behavior was improved at school. (TR. 421). But Dr. Drvol noted that Griffin's weight had decreased and Griffin was not eating well. (TR. 421). He further noted that the eating problem was chronic and predated the time Griffin began taking medicine, but that if the weight loss continued, Griffin may need to stop taking Concerta. (TR. 421).
Griffin apparently stopped taking his medication due to concerns with his lack of appetite and weight loss. During a visit with Dr. Drvol on January 18, 2011, Dr. Drvol noted that since Griffin was off Concerta, Griffin had gained weight, but his behavior was "much worse." (TR. 469). He was "not staying on task" and doing "poorly in school." (TR. 469). Dr. Drvol apparently prescribed Strattera at that time, but Griffin's insurance would not cover the cost of the new medication. (TR. 469-70). Dr. Drvol then prescribed Adderal. (TR. 465).
In December of 2011, Dr. Drvol reported that Griffin was having "trouble at school, " was "very hyper, " and was "behind and doesn't complete assignments." (TR. 596). Dr. Drvol recommended that he begin taking Concerta again. (TR. 596). In January of 2012, Dr. Drvol noted the Concerta was "working tremendously, " but Griffin was still losing weight and was still struggling with activities of daily living ("ADLs") such as tying his own shoes and properly writing letters and numbers. (TR. 595). He further noted that Griffin reported trouble getting to sleep at night. (TR. 595).
Griffin visited Dr. Drvol yet again on March 8, 2012. (TR. 591). At that time Griffin had stopped taking the Concerta due to headaches and weight loss. Dr. Drvol noted that his behavior was only "ok" since discontinuing use of Concerta, but that Griffin had gained weight and stopped having headaches. (TR. 591). Dr. Drvol ordered Griffin to stay off medication until directed otherwise. (TR. 593).
In January of 2011, Griffin's kindergarten teacher, Adele Klima, completed a questionnaire about Griffin's functional abilities. (TR. 153-60). The assessment was divided into five categories assessing Griffin's behavior: (I) Acquiring and Using Information; (II) Attending and Completing Tasks; (III) Interacting and Relating with Others; (IV) Moving About and Manipulating Objects; (V) Caring for Himself or Herself. Klima was asked to rate Griffin's behaviors within these categories on a scale of 1 to 5, with "1" representing "no problem;" "2" representing a "slight problem;" "3" representing "an obvious problem;" "4" representing a "serious problem, " and "5" representing a "very serious problem." (TR. 153-60).
With respect to "Acquiring and Using Information, " Klima noted Griffin had a "serious problem" with comprehending and doing math problems and expressing ideas in written form. (TR. 154). She identified at least two other areas that she considered "obvious problems" and one area that fluctuated between a "slight problem" and a "very serious problem." Klima also commented:
When Eric is not medicated (for ADHD) he has difficulty completing independent work. My para and I work with him in close proximity as much as possible (daily). I notice he cannot stay focused on tasks at all, when not in direct proximity to an adult.... He is, at this time, my second oldest student, and one of my least mature.
(TR.154)(emphasis in original).
With respect to the second category, "Attending and Completing Tasks, " Klima identified four areas as "very serious problems" including: carrying out multi-step instructions, changing from one activity to another without being disruptive, working without distracting himself or others, and working at a reasonable pace/finishing on time. (TR. 155). In addition, she identified five other categories as "serious problems" including: focusing long enough to finish an assigned activity or task, refocusing to task when necessary, carrying out single-step instructions, organizing his own things or school materials, and completing work accurately without careless mistakes. She qualified that her answers were based on his actions when he was not on medication for his ADHD. (TR. 155).
With respect to the third category, Interacting and Relating with Others, Klima indicated that Griffin had a "very serious problem" with taking turns in conversation, and behavior modification strategies did not work. (TR. 156). She further noted that Griffin "is not independent with assigned tasks except work on the computer (he has particular problems with writing activities)." (TR. 156). She again indicated that this was a problem when Griffin was not taking ADHD medicine. (TR. 156).
In the fourth category, "Moving About and Manipulating Objects, " Klima reported that Griffin had a "very serious problem" with integrating sensory input with motor output. (TR. 157). And she stated Griffin had a "serious problem" with moving from one place to another, managing pace of physical activities or tasks, and showing a sense of his body's location and movement in space. (TR. 157). She noted "Eric exaggerates all we do. He swings his arms, hops too hard, get in another's ...