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Glenn v. Colvin

United States District Court, E.D. Wisconsin

November 29, 2016

TAMIKA GLENN o/b/o V.A.G., a minor Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN District Judge.

         Plaintiff Tamika Glenn, on behalf of her minor daughter V.A.G., seeks judicial review of the denial of V.A.G.'s application for supplemental security income (“SSI”) benefits. Plaintiff alleged her child's disability based on hearing loss and an adjustment disorder, but an Administrative Law Judge (“ALJ”) found that these impairments caused less than marked limitations in V.A.G.'s functioning. The Appeals Council denied review, making the ALJ's decision the final word from the Commissioner of Social Security for purposes of judicial review. See Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir. 2016). On review of the record and the briefs, I affirm the ALJ's decision.

         I. STANDARD OF REVIEW

         The court will reverse an ALJ's decision only when it is not supported by substantial evidence, meaning such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Pepper v. Colvin, 712 F.3d 351, 361-62 (7th Cir. 2013). Under this deferential standard, the court will not re-weigh the evidence or substitute its judgment for the ALJ's. Id. at 362. In rendering a decision, the ALJ must build a logical bridge from the evidence to his conclusion, but he need not provide a complete written evaluation of every piece of testimony and evidence. Id.

         Because social security proceedings are non-adversarial, the ALJ has a duty to fully develop the record. See Andrews v. Bowen, 848 F.2d 98, 101 (7th Cir. 1988). However, the court gives deference to an ALJ's decision about how much evidence is sufficient to develop the record fully and what measures, including arranging additional consultative examinations or summoning a medical expert to testify at the hearing, are needed in order to accomplish that goal. See Poyck v. Astrue, 414 Fed.Appx. 859, 861 (7th Cir. 2011) (citing Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009); Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir. 1993)); Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004). The ALJ may be required to obtain an additional medical opinion if the evidence is ambiguous, if specialized medical evidence is required but missing from the record, or if there is a change in a condition but the current severity of the impairment is not established. See Poyck, 414 Fed.Appx. at 861 (citing 20 C.F.R. § 416.919a(b)). Particularly in cases where the claimant is represented by counsel, however, the burden is on the claimant to introduce some objective evidence that such further development of the record is required. Id. (citing Skinner v. Astrue, 478 F.3d 836, 844 (7th Cir. 2007); Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997)).

         II. DISABILITY STANDARD FOR CHILDREN

         A child qualifies as disabled - and thus eligible for SSI - if she has a medically determinable physical or mental impairment, which results in marked and severe functional limitations and which has lasted or can be expected to last for a continuous period of not less than 12 months. Hopgood ex rel. v. Astrue, 578 F.3d 696, 699 (7th Cir. 2009) (citing 42 U.S.C. § 1382c(a)(3)(C)(i)). In determining whether a child qualifies as disabled, the ALJ applies a three-step test, asking: (1) whether the child is engaged in substantial gainful activity; (2) if not, whether the child has a severe medical impairment or combination of impairments; and (3) if so, whether the child's impairments meet, medically equal, or functionally equal the severity of any of the presumptively disabling impairments set forth in the agency's Listings. Id.

         In order to meet a Listing, the claimant must demonstrate that she satisfies all of the various criteria specified in the Listing. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006) (citing Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999)). “Medical equivalency exists if the child's impairment ‘is at least equal in severity and duration to the medical criteria of the listed impairment.'” Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 (8th Cir. 2005) (quoting Neal ex rel. Walker v. Barnhart, 405 F.3d 685, 689 (8th Cir. 2005)). To determine whether an impairment is functionally equivalent to a Listing, the ALJ evaluates the child-claimant's degree of limitation (i.e., extreme, marked, less than marked, or no limitation) in six “domains”: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) caring for oneself, and (6) health and physical well-being. See 20 C.F.R. § 416.926a(b)(1). To functionally equal the listings, the child must have an “extreme” limitation in one domain or a “marked” limitation in two domains. 20 C.F.R. § 416.926a(a). A “marked” limitation exists when the impairment seriously interferes with the child's ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(i). An “extreme” limitation exists when a child's impairment interferes very seriously with her ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3)(I).

         III. FACTS AND BACKGROUND

         A. Application, Supporting Materials and Administrative Determinations

         Plaintiff filed the instant application on behalf of V.A.G. in May 2012, alleging disability as of August 1, 2005, [1] to due to auditory neuropathy.[2] (Tr. at 177, 198, 207.) In a function report, plaintiff reported that V.A.G. had problems with hearing and balance (Tr. at 189), but she noted no issues with communication, learning, or physical abilities (Tr. at 191-93).[3]

         In a questionnaire dated August 30, 2012, V.A.G.'s fourth grade teacher listed V.A.G.'s current instructional level in reading at 5.2, written language 5, and math 5. (Tr. at 216, 233.) The teacher indicated that she observed no limitations in V.A.G.'s ability to acquire and use information, attend and complete tasks, interact and relate with others, move about and manipulate objects, and care for herself. (Tr. at 217-21.) Under the category of health and physical well-being, the teacher noted V.A.G.'s use of assistive technology - a microphone/hearing aid. (Tr. at 222.) The teacher concluded: “[V.A.G.] is academically a very high functioning student in all subjects. She is [a] cooperative, friendly, and very well mannered child. [V.A.G.] uses a specially devised hearing aid while in the classroom setting.” (Tr. at 223.)

         The agency also obtained a copy of a Milwaukee Public Schools (“MPS”) Section 504 Evaluation Report dated October 17, 2012. The report indicated that V.A.G. was currently in the 5th grade, with hearing concerns first noted at the age of three. V.A.G. was diagnosed with profound hearing loss in the right ear secondary to Auditory Neuropathy Spectrum Disorder (“ANSD”), which creates a problem with the connection of sound to the auditory nerve, when she was five. V.A.G. reported that speech and other noises sounded very distorted in the right ear. Her hearing in the left ear fluctuated due to chronic middle ear issues, which had been treated with multiple sets of ear tubes by Dr. Timothy Martin. V.A.G. was fit with a personal FM system[4] by an audiologist in 2009 and reported good subjective benefit. Her hearing loss limited her access to auditory information in the classroom, especially where there was background noise or the speaker was at a distance. She also had trouble localizing to the source sound, which made it difficult for her to follow group discussions and could have safety implications. MPS concluded that, due to her hearing loss, V.A.G.'s ability to learn and communicate could be compromised without appropriate accommodations.[5] (Tr. At 225.) V.A.G. was observed in the classroom and appeared to use the FM system independently and appeared at ease using it in front of her peers. (Tr. at 226.) School officials found V.A.G. eligible for accommodations based on her ANSD (Tr. at 227), which would include preferential seating close to the instructor, use of an assistive listening device, limitation of background noise where possible, more frequent checks for comprehension, increased use of visual cues, and work on building self-advocacy skills (Tr. at 229).

         The agency denied the application initially on December 5, 2012, relying on the assessment of consultant Mary Jo Freitag, M.D. (Tr. at 108, 128.) Dr. Freitag noted that V.A.G. had profound hearing loss in her right ear, but her left ear was almost normal. Speech recognition was 100% in the left ear. Dr. Freitag evaluated the claim under Listing 102.10 (hearing loss not treated with cochlear implantation), finding that V.A.G. did not satisfy that provision. (Tr. at 112.) Under the domains, Dr. Freitag found no limitation in acquiring and using information, no limitation in attending and completing tasks, no limitation in interacting and relating with others, no limitation in moving about and manipulating objects, no limitation in caring for oneself, and less than marked limitation in health and physical well-being. Dr. Freitag concluded that while V.A.G. had profound hearing loss in her right ear, her left ear had very mild hearing loss. With an FM device at school V.A.G. performed above grade level, she had no problem making and keeping friends, and she was able to pay attention in class. An audiologist indicated that V.A.G. complained of balance problems, but neither her mother nor her teacher reported any problems with physical activities. Dr. Freitag thus determined that V.A.G. did not functionally equal a Listing. (Tr. at 113.)

         Plaintiff requested reconsideration (Tr. at 132), and on March 26, 2013, submitted a child's daily activities questionnaire (Tr. at 240). In that report, plaintiff indicated that V.A.G.'s condition caused her to have more doctor visits than a typical child her age, including issues with ear infections, which affected her school attendance. Her condition also affected her behavior as she cried a lot because she could not hear like everyone else. Plaintiff indicated that she understood V.A.G.'s speech very well but sometimes other people did not understand her. (Tr. at 241.) V.A.G. needed people to repeat things; she tried to read lips. V.A.G. attended after-school activities at her school for reading and to play with friends. V.A.G. liked to read, wanted to learn, and enjoyed arts and crafts. (Tr. at 242.) She had good behavior for a child her age. (Tr. at 243.) V.A.G. could handle her personal care needs but had trouble identifying unsafe situations in the city due to the noise. V.A.G. was able to do arts and crafts, read, make a sandwich, clean her room, and bathe. She helped with inside chores but not outside tasks. (Tr. at 244.) V.A.G. did chores to her mother's satisfaction. (Tr. at 245.)

         On May 3, 2013, the agency denied the request for reconsideration, this time relying on the assessment of Mary Harkness, M.D. (Tr. at 117, 135.) Dr. Harkness noted the history of profound hearing loss in the right ear and fluctuating hearing in the left ear with chronic middle ear issues treated with multiple sets of tubes, most recently in May 2011. V.A.G. was provided a personal FM system in 2009 and reported good subjective benefit. In 2009, she did not qualify for special education services as it was found that her hearing loss did not significantly impact her learning development. With the FM device, she was performing above grade level at school, had no problems making/keeping friends, and was able to pay attention in class. The latest testing reported stable hearing loss on the right, normal to mild loss on the left. (Tr. at 123.) Dr. Harkness also found that V.A.G. did not meet Listing 102.10 (Tr. at 123) and agreed with Dr. Freitag regarding the domains (Tr. at 123-24).

         On May 29, 2013, plaintiff requested a hearing before an ALJ (Tr. at 139), submitting another disability report, indicating that V.A.G. experienced severe depression and that her hearing and ear infections were worse. (Tr. at 249.) She also experienced mood swings. (Tr. at 251.)

         On September 22, 2014, the agency issued a notice of hearing, scheduling V.A.G.'s hearing before the ALJ for October 29, 2014. (Tr. at 152.) On October 23, 2014, plaintiff submitted additional records from MPS, specifically, V.A.G.'s September 2013 and September 2014 Section 504 Evaluation Reports. (Tr. at 341-42.)

         The 2013 report indicated that V.A.G. had been using a district-provided FM device to assist her in the classroom during lectures and large group discussions. During observation she appeared to be comfortable using this assistive device in the classroom and around her peers. Since the beginning of school year 2013-14, V.A.G. had identified an instructor's classroom in which to keep and charge her FM monitor. V.A.G. reported difficulty localizing sounds, listening, and understanding speech in noisy environments. Distant or soft spoken speech as well as hearing/understanding speech directed towards her ear with hearing loss was also a challenge. V.A.G.'s current doctor was concerned about her safety during travel; when V.A.G. traveled alone crossing intersections she struggled with the localization of traffic sounds. This had caused threats to her safety while in her neighborhood. (Tr. at 343.) The MPS accommodation plan again included preferential seating, use of an assistive listening device, limited background noise whenever possible, more frequent checks for comprehension, increased use of visual cues, and work on building self-advocacy skills. This time, the plan also included transportation services to and from school; the bus would stop at the closest available corner. (Tr. at 345).

         The 2014 Section 504 Report indicated that in September 2013 the hearing in V.A.G.'s left (better) ear dropped to a mild sensorineural hearing loss, and she was subsequently fit with a hearing aid for that ear. According to the MPS audiologist, V.A.G.'s ability to learn and communicate would be compromised without appropriate accommodations. While V.A.G. reported that she benefitted from use of the FM device, she expressed concern regarding how her peers would perceive her when she used it. Her mother also reported that V.A.G. felt ashamed of her diagnosis and had been seeing a therapist. Her mother further reported difficulties with balance at times. During the 2013-14 school year, V.A.G. mostly earned As and Bs, with one D. On the “MAP” test she scored in the 74th percentile in math and the 79thpercentile in reading. She also had good attendance, 97%. (Tr. at 351.) This report again listed accommodations of preferential/strategic seating, use of an assistive listening device, limited background noise whenever possible, more frequent checks for comprehension, increased use of visual cues, work on building self-advocacy skills, and transportation services to and from school; the report added the accommodation of a check for hearing before assessments. (Tr. at 354).

         Plaintiff also submitted prior to the hearing an October 22, 2014, letter from V.A.G.'s therapist, Robert Jarvis, LCSW. Jarvis indicated that he saw V.A.G. for psychotherapy related to a diagnosis of adjustment disorder with mixed anxiety and depression. (Tr. at 358.)

         In a pre-hearing memorandum dated October 24, 2014, plaintiff's counsel indicated that V.A.G.'s date of birth was March 14, 2002, making her a school-aged child in May 2012, when the application was filed. Counsel further indicated that V.A.G. had not engaged in substantial gainful activity since May 2012, and that she suffered from the severe impairments of right total hearing loss secondary to ANSD, left ear sensorineural hearing loss, and adjustment disorder with mixed anxiety and depression. At step three, counsel argued: “She has a hearing impairment that meets or medically equals the severity and/or functionally equals the severity of one of the listed impairments . . ., to wit § 2.07.” Counsel did not elaborate on how V.A.G. met or equaled the criteria of § 2.07 or any other Listing.[6] (Tr. at 257.) Counsel further argued that V.A.G. had marked if not extreme limitations in two or more of the six domains. (Tr. at 257-58.)

         B. Hearing Testimony

         On October 29, 2014, plaintiff and V.A.G. appeared with counsel for their hearing before the ALJ. (Tr. at 78.) Counsel indicated he was waiting to receive the treatment notes from therapist Jarvis, and the ALJ indicted he would hold the record open for one week to obtain those records. (Tr. at 80-81, 106.)

         1. V.A.G.

         The ALJ used an amplifier in questioning V.A.G. (Tr. at 82), then age 12 and in the 7thgrade (Tr. at 84). V.A.G. indicated she was doing well in school, aside from difficulties with hearing. (Tr. at 84-85.) She used her FM unit at school, which allowed her to hear what the teachers were saying, so long as it was a quiet environment. (Tr. at 85-86.) At home, her mother had to repeat herself sometimes. She was able to communicate with friends if they stood close by. She indicated that her left ear hearing aid was working well. (Tr. at 86.)

         V.A.G. testified that in her free time she liked to read. She also indicated she was involved in an after-school program. (Tr. at 87.) She did chores at home such as cleaning her room, washing dishes, and cleaning the bathroom. (Tr. at 88.) She testified the most difficult thing for her was accepting her condition and what other people thought of her. (Tr. at 89-90.) V.A.G. testified that she would like to try gymnastics but balance problems related to her hearing loss would make that hard. Asked if she had problems walking or running, V.A.G. said she was very clumsy. (Tr. at 90.) She indicated that she could ride a bike (Tr. at 90) and could roller skate but did fall (Tr. at 91).

         Counsel asked V.A.G. if she could go out of the house by herself, and V.A.G. responded no, because of traffic. (Tr. at 91.) She had someone walk with her. (Tr. at 91-92.) She indicated that she could not tell where noises, like horns or traffic sounds, were coming from on the right side but could on the left side. (Tr. at 92.) She stated that if she would not be crossing the street she could go outside, into the yard or sidewalk, but she still had someone with her sometimes. (Tr. at 92.) She indicated that she was afraid of being outside by herself and so did not take the chance. (Tr. at 93.)

         V.A.G. testified that she rode a special bus, which picked her up right in front of her house so she would not have to cross the street. (Tr. at 93.) She indicated that in situations where she did not have the FM unit, such as gym class, she had a difficult time hearing the instructor. (Tr. at 94.) She had to be up close to communicate with classmates; they would have to talk louder, or she would lip read.[7] (Tr. at 95.) V.A.G. testified that she felt self-conscious about her hearing problem, which interfered with her interaction with classmates. (Tr. at 95.)

         2. Plaintiff

         Plaintiff testified that V.A.G. was afraid of meeting new people because of how they would perceive her and might tease her because of her hearing aid. At home, she was clumsy; it was hard for her to walk up and down stairs without falling or skipping a step. Plaintiff did not allow V.A.G. outside by herself because V.A.G. could not tell which direction sound was coming from, creating danger from traffic. (Tr. at 99.) Plaintiff testified that she used the FM unit with V.A.G. at home a majority of the time. (Tr. at 99-100.) The unit worked well when functioning properly. (Tr. at 100.)

         Plaintiff testified that V.A.G. had been seeing a social worker for about three years addressing issues with anxiety and depression. She had a hard time being singled out for a special spot in class, sitting right up front. She was doing very well in school, aside from a D in gym due to her balance problems. (Tr. at 100-01.) Plaintiff helped her in the shower due to balance issues. (Tr. at 101-02.) Plaintiff did not allow V.A.G. to help cook because she once fell with a knife. (Tr. at 103.) Plaintiff testified that if V.A.G. was outside she would have her mother, brother, or grandmother with her; asked if V.A.G. insisted on that or plaintiff did, plaintiff testified, “I do.” (Tr. at 104.) Asked if V.A.G. would be able to go outside by herself if allowed, plaintiff responded, “I really couldn't say right now, because we haven't tried it.” (Tr. at 105.)

         C. ...


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