Brewer v. Kijakazi
| Decision Date | 24 August 2021 |
| Docket Number | 4:20-CV-00714-RDP |
| Parties | ANGELA BREWER, o.b.o. R.T.C., a minor child, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
Plaintiff Angela Brewer brings this action on behalf of her grandson R.T.C., pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the “Act”), seeking review of the decision by the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for disability and Children's Supplemental Security Income (“CSSI”). 42 U.S.C. §§ 405(g), 1383(c). Based upon the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed in part and remanded in part.
Plaintiff filed applications for disability and CSSI on behalf of R.T.C. on May 1, 2017, alleging that he became disabled beginning on April 5, 2017. (R. 194-99). Plaintiff's applications were denied initially and upon review. (R 115-27). On July 3, 2017, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (R 134-36). That request was granted, and a hearing was conducted on February 19, 2019 before ALJ Michael Mannes. (R. 74-114, 183-89, 377-97). Plaintiff, R.T.C.'s grandmother he has lived with since birth, her attorney, and R.T.C. were present at the hearing. (R. 74).
In his decision, the ALJ determined that from April 5, 2017 through April 10, 2019, R.T.C. had not been under a disability within the meaning of Section 1614(a)(3)(C) of the Act. (R. 24). After the Appeals Council denied Plaintiff's request for review of the ALJ's decision on May 8, 2020, the ALJ's decision became the final decision of the Commissioner, and therefore a proper subject of this court's appellate review. (R. 1-6).
At the time of the hearing, R.T.C. was eight years old. (R. 81). Plaintiff alleges R.T.C.'s disabilities -- attention deficit/hyperactivity disorder (“ADHD”), anxiety, obsessive compulsive disorder (“OCD”), and oppositional defiant disorder (“ODD”) -- started April 5, 2017. (R. 117). During his alleged period of disability, R.T.C. received medical care primarily from Carr Mental Wellness (“Carr Wellness”) and Glenwood Autism and Behavioral Health Care Center (“Glenwood”). (R. 412-18, 502-31).
On November 10, 2016, R.T.C. underwent a psychological evaluation at Glenwood. (R. 502-09). According to medical records, he (R. 504). Because R.T.C. “demonstrated a good amount of motivation and appeared to put forth his best effort [the results were] considered to provide an accurate representation of cognitive, social, emotional, and behavioral function at [that] time.” (Id.). In their diagnostic impression, Glenwood described R.T.C.'s symptomology as “consistent with [ADHD]” and his mood “demonstrates severe recurrent temper outbursts that are out of proportion in intensity and duration to the situation [and] appears to be more consistent with a diagnosis of Disruptive Mood Dysregulation Disorder [“DMDD”].” (R. 507). It was recommended that R.T.C. “continue to be followed on an outpatient basis by a psychiatrist for medication management, receive consistent medication management at home [and meet] with a therapist.” (R. 508).
On April 18, 2017, R.T.C. was seen at Carr Mental Wellness for an initial psychological evaluation. (R. 416-18). Plaintiff accompanied R.T.C. and reported a history of ADHD, as well as stating (Id.). After the initial assessment was completed, Carr Wellness diagnosed R.T.C. with ADHD and DMDD, changing his ADHD prescription from Adderall to Vyvanse, and prescribing Abilify for his DMDD. (R. 417). On May 9, 2017, R.T.C. was accompanied by his grandfather for a follow up appointment, where he reported (R. 414-15). Because R.T.C. was “not stable on current medications, ” his ADHD prescription was changed back to Adderall and he was prescribed Saphris (instead of Abilify) for his mood. (Id.).
On June 6, 2017, Plaintiff reported R.T.C. was “a little better, ” but stated he had “minimal improvement in behavior . . . . continues to have ‘major outbursts and rages,' . . . continues to be defiant, argumentative, and ‘mean' [but] is less hyper and impulsive.” (R. 510). Since he was “stable on current medications, ” Carr Wellness did not change his current prescriptions but did add Kapvay at bedtime for his ADHD to help “implement a more stable sleep pattern.” (R. 510-11). On August 1, 2017, R.T.C.'s medical records described him as “pleasant, cooperative, friendly, [] happy, irritable, [and] elevated” but had poor insight and judgment. (R. 512). While Plaintiff did report that R.T.C. was “less hyper and impulsive, . . . [h]e still poops on himself, [has] ‘major outbursts and rages,' [and] continues to be defiant, argumentative, and ‘mean.'” (Id.). R.T.C. was described as “stable on current medications, ” but apparently was taken off Kapvay, which was meant to address his sleep issues, despite medical records showing his sleep was still “poor.” (R. 512-13). On October 24, 2017, R.T.C.'s grandfather reported “attending a parenting program at Glenwood . . . that has been helpful [and] notes improvements in tantrums - these are less frequent and do not last long [and] [h]e is also sleeping better [and] earned the AB honor roll the first 9 weeks of school.” (R. 514). No. changes were made to R.T.C.'s medications. (R. 515).
In January 2018, R.T.C.'s Adderall dosage was increased. (R. 517). Plaintiff reported that R.T.C. was “doing alright, . . . [h]is behavior at school is ‘better than at home,' . . . [but he] can be defiant and disrespectful, [and] . . . often calls [Plaintiff] ‘bad names.'” (R. 516). On April 12, 2018, no changes were made to R.T.C.'s prescription, he was still “doing well in school, . . . has ‘great grades,' [and] his behavior slightly improved at home, [but] does still get ‘a little defiant' at times.” (R. 518). Plaintiff reported on July 31, 2018, that R.T.C. continued to be “defiant and argumentative at times” but was “managing his anger and frustration better [and] sleeping well.” (R. 520). However, in October 2018, R.T.C. was reported to be “not paying attention, cannot be still, . . . [is] more disruptive, [and] his grades have declined.” (R. 523-24). R.T.C.'s Adderall dosage was increased. (Id.). A week later, R.T.C. had still not improved so his ADHD prescription was changed from Adderall to Adzenys, because the Adderall had failed even with multiple doses and he had “gradually worsened over time [and] eventually started having chest pains.” (R. 526, 28). In addition, R.T.C. was diagnosed with Autistic Disorder. (R. 528). On November 28, 2018, which was R.T.C.'s last appointment in 2018, he was still having problems focusing but his medications were not changed. (R. 529-30). Throughout 2017 and 2018, R.T.C.'s diagnoses remained the same: ADHD and DMDD. (R. 415, 417, 511, 513, 517, 519, 521, 524, 528, 530).
On June 7, 2019, Plaintiff's counsel submitted an electronic request to the Appeals Council for review of the ALJ's decision. (R. 190-93). Plaintiff also requested more time to submit additional evidence. (R. 192). Plaintiff's request for more time was granted on June 16, 2019. (R. 33-35). This additional evidence submitted included the following: (1) one progress note from Carr Wellness dated November 28, 2018, (2) four progress notes from Carr Wellness dated January 10, 2019 to April 24, 2019, (3) a psychological evaluation from Glenwood dated July 2-3, 2019, (4) a Functional Impairment Questionnaire filled out by Carr Wellness dated July 29, 2019, and (5) a Child's Mental Health Questionnaire from Cross Roads to Pathways Counseling dated September 4, 2019. (R. 38-73).
The Appeals Council denied Plaintiff's request for review finding the following: the November 28, 2018 progress note from Carr Wellness was duplicative; and the four progress notes from Carr Wellness dated January 10, 2019 to April 24, 2019, as well as the psychological evaluation from Glenwood dated July 2-3, 2019, did not show a reasonable probability of changing the outcome of the ALJ's decision. (R. 1-4). The Appeals Council did not take the Functional Impairment Questionnaire filled out by Carr Wellness dated July 29, 2019, or the Child's Mental Health Questionnaire from Cross Roads to Pathways Counseling dated September 4, 2019 into account, because it determined that neither of these related to the period at issue. (R. 2).
The four progress notes from Carr Wellness did not necessarily indicate deterioration but did show additional changes in R.T.C.'s medications due to “some worsening.” (R. 45, 48, 51, 54). On January 10, 2019, in response to subjective complaints from R.T.C. that “he gets bored easily . . . doesn't get math . . . still can not focus [and] is getting in trouble at home, ” Carr Wellness continued his Adzenys prescription but...
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