Taylor ex rel. Mckinnies v. Barnhart

• Decision Date: 13 August 2004
• Docket Number: No. 4:03 CV 1370 DDN.,4:03 CV 1370 DDN.
• Citation: 333 F.Supp.2d 846
• Parties: Arlena TAYLOR o/b/o Terrance McKINNIES Plaintiff, v. Jo Anne B. BARNHART Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

Page 846

333 F.Supp.2d 846

Arlena TAYLOR o/b/o Terrance McKINNIES Plaintiff, v. Jo Anne B. BARNHART Commissioner of Social Security, Defendant.

No. 4:03 CV 1370 DDN.

United States District Court, E.D. Missouri, Eastern Division.

August 13, 2004.

Franklin A. Williams, Brown and Crouppen, St. Louis, MO, for Plaintiff.

Joseph B. Moore, Raymond W. Gruender, III, Office of U.S. Attorney, St. Louis, MO, for Defendant.

MEMORANDUM

NOCE, United States Magistrate Judge.

This action is before the court for judicial review of the final decision of the defendant Commissioner of Social Security denying plaintiff's application for child's supplemental security income (SSI) benefits based on disability under Title XVI of the Social Security Act (Act), 42 U.S.C. §§ 1381, et seq. The parties have consented to the exercise of plenary jurisdiction by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

I. BACKGROUND

A. Plaintiff's Application and Terrance's School Records

In March 2002, Arlena Taylor applied for benefits on behalf of her son, Terrance McKinnies, who was born in January 1987. She asserted that he has been disabled since September 21, 2001 because he has the "mind of a 6 year old." (Tr. 40, 48.)

In early 2001, after individual intervention strategies implemented in the regular classroom failed, Terrance underwent testing and evaluation for an Individual Education Program (IEP). At the time of the evaluation, he was in the eighth grade. His mother noted these behavioral problems at home: temper outbursts, hitting and fighting, disobeying rules, lying, stealing, difficulty expressing himself, overactivity, and impulsiveness. (Tr. 69-117.)

The IEP evaluation revealed that Terrance's cognitive testing was below average. Based on an average standard age score (SAS) of 100, his verbal SAS was 83, his quantitative SAS was 72, and his nonverbal SAS was 79. His adaptive behavior placed him at an age equivalent to 7 years and 5 months (54 SAS), which was below his cognitive functioning. His teachers and counselors noted daily behavioral deficits which they considered moderate to severe. The behavioral problems considered severe were as follows: easily distracted, short attention span, reluctant to begin tasks, gives up easily, does not complete tasks, difficulty organizing or appropriately using time, performs work carelessly, needs directions repeated, works slowly, requires additional time, difficulty working independently and making transitions, exhibits attention seeking behavior, acts impulsively, appears apathetic and unmotivated, overly dependent, and lacks self-confidence. (Tr. 97-99, 105-06.)

Behaviors such as the abuse of school property, tardiness, making disturbing noises, physical or verbal aggression, use of obscene language, responding inappropriately to comments of others, or engaging in self-destructive behavior were not documented over an extended period of time. (Tr. 106.)

The examiner recommended a highly structured classroom where Terrance could receive immediate feedback and self-correcting materials to help develop appropriate work habits. The examiner added that Terrance required a small group instructional setting to acquire needed academic and behavioral skills. Multiple accommodations and modifications were required, such as simplifying directions, extending time, and providing supplementary materials. (Tr. 73-74, 111.)

Terrance's classroom teachers estimated that he functioned in specific subjects at the third grade level in reading, spelling, and written language, and at the fifth grade level in arithmetic. His formal achievement tests showed that he performed at the following levels: basic reading skills — ending fourth grade; reading comprehension — ending second grade; mathematical reasoning — ending third grade; written expression — beginning fifth grade. His overall level of functioning was within the low average range with no significant difference between his verbal and performance scales. His adaptive functioning was below his cognitive functioning. (Tr. 71, 110.)

From a social/emotional/behavioral standpoint, Terrance's teachers observed that he exhibited attention seeking behavior, socialized at inappropriate times, left his seat without permission, and was easily influenced by his peers. His gross and fine motor skills were adequate for school functioning. His overall speech and language skills were considered commensurate with his cognitive functioning. (Tr. 71-72.)

Terrance's teachers stated that he was punctual and maintained good relationships with peers and authority figures. He received unsatisfactory ratings in following school/class rules, working independently, being prepared, requesting help, remaining on task, completing work on time, producing quality work, and possessing self-confidence. His attendance was poor and he had received one in-school suspension at the time of the IEP evaluation. However, his disruptive behavior was considered "manageable." (Tr. 88.)

Upon evaluation, Terrance was diagnosed as learning disabled. It was determined that he should attend 400 minutes of resource/special education classes per week. (Tr. 69, 91.)

In a May 13, 2002 teacher questionnaire, Terrance's art teacher reported that Terrance was usually ahead of the other children in class work, finished work on time, followed directions, was alert, and was intelligent. She did not observe problems with concentration or following directions. She stated that he needed extra supervision around tools and supplies and that other students tended to shy away from him, although he was always respectful towards her. Further, she observed that he was easily "conned" by his peers to do something wrong and got into trouble about once per month. His attendance was good when he was not suspended. (Tr. 64-66.)

Terrance's ninth-grade report card included a first semester grade point average (GPA) of 0.86 (out of a possible 4.0). His third quarter grades were even worse, with a D in pre-algebra, and Fs in reading, physical education, contemporary issues, history, and earth science. B grades in art were his best grades that school year. (Tr. 67.)

B. Terrance's Medical Records

In November 2000, Terrance started psychiatric care at Hopewell Center, with an initial Global Assessment of Functioning (GAF) of 35. He was brought in because he had been stealing, acting up in school, fighting, and showing disrespect to authority. He admitted hearing voices when stealing. His mother stated that past therapy had helped, but that she did not follow up because the family moved often. He reportedly enjoyed drawing and playing football. On November 30, 2000, the psychiatrist diagnosed Terrance with attention deficit disorder (ADD) with behavioral problems and assigned a GAF of 41. (Tr. 169, 171, 173-74.)

In October 2001, plaintiff sought treatment for Terrance at the Edgewood Children's Center (Edgewood). The staff there worked with his mother and stepfather regarding parenting techniques and the psychiatrist prescribed medication for attention deficit hyperactivity disorder (ADHD). The therapist, Paul Padberg, worked with Terrance and recommended a neurological evaluation due to his low cognitive functioning and history of head injuries. (Tr. 179, 182, 184.)

In November 2001, Saber Girgis, M.D. at the Hopewell Center assigned a GAF of 40 and reported that Terrance was disruptive at school and showed increased motor behavior and impulsiveness. (Tr. 163-64, 166.)

In February 2002, Terrance was admitted to Depaul Health Center after his mother found him with a razor and Ritalin tablets. He stated that he was about to take the pills because "the principal and children at school lied about him painting the walls." He also stated that he wanted to die because he "didn't belong in this world." (Tr. 207.)

Upon admission, Terrance reported difficulty concentrating, paying attention, and staying on task. He admitted that he sometimes heard voices which told him to steal, but this was usually after the thought of stealing entered his mind. LaRhonda R. Jones, M.D., noted that Terrance's hygiene was fair, speech was monotone, and insight and judgment were poor. She diagnosed him with depressive disorder, ADHD, and a GAF was 30. She placed him on suicide precautions and prescribed Zoloft¹ and Concerta². (Tr. 207-09.)

In May 2002, Terrance's mother took him to St. John's Mercy Medical Center for outpatient psychiatric care. Joshua W. Calhoun, M.D. noted that Terrance was age appropriately dressed and cooperative, but that his mood was "sad" and his affect was depressed. Dr. Calhoun's diagnosis was depressive disorder-recurrent, but he ruled out conduct disorder. By June 2002, Terrance appeared less depressed and had a bright affect. Nonetheless, Dr. Calhoun doubled the Zoloft. (Tr. 157-58.)

In July 2002, Terrance underwent a neuropsychological evaluation. During this examination, it was revealed that, at age 6, Terrance was hit by a truck and briefly lost consciousness. The following year, he was hit in the head by a pellet gun. Plaintiff reported no serious changes in his behavior after those injuries. The psychiatrist at Hopewell Center placed Terrance on Concerta and Zoloft, but his mother took him off both medications because he acted like a "zombie and foam[ed] at the mouth ... it was awful." She reported that he had recently failed the ninth grade due to poor grades and unexplained absences, having missed 80 days of school. He was asked to leave on the last day of school due to allegations of his attempted rape of another student. He had attended several schools and performed well until the fifth grade. (Tr. 190-91.)

Plaintiff reported Terrance was withdrawn and depressed, having significant trouble academically and socially in school, got into fights with his siblings and school peers, and tried to set things on fire. She further reported that overall treatment through...