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Marshall v. Berryhill

United States District Court, E.D. Wisconsin

March 24, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          William C. Griesbach, Chief Judge.

         When is the aggressive, angry, indolent and disobedient behavior of a teenager, or an adult for that matter, willful and when is it the product of a severe mental impairment or developmental disability? Modern social sciences claim to have the expertise to provide the answer, though unlike the hard sciences, they offer no empirical proof for the answers they provide and those who work in the field, as this case demonstrates, show little agreement even among themselves. This is an action for judicial review of a decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). Following a hearing before an Administrative Law Judge (ALJ), Jacqulyn Waggoner's application for supplemental security income on behalf of her son, Plaintiff Nikoli Marshall, was denied. Marshall attained the age of 18 prior to the final determination and his claim was evaluated under both the child and adult disability standards. Marshall asserts that the Commissioner's decision should be remanded for further proceedings because the ALJ made multiple errors in his determination that Marshall was not disabled. For the reasons that follow, the Commissioner's decision will be reversed and remanded.


         On December 15, 2011, Jacqulyn Waggoner filed an application for supplemental social security income on behalf of her son, Nikoli Marshall. R. 95. Waggoner alleged that Marshall suffered from obsessive compulsive disorder (OCD), bipolar disorder, and attention-deficit/hyperactivity disorder (ADHD), with an alleged onset date of May 1, 2003. R. 268. Marshall was born on May 30, 1995, making him 7 years old at the time of his alleged onset date. He turned 18 on May 30, 2013, while his disability claim was pending.

         As part of Marshall's ongoing treatment, psychiatrist Dr. Carlos Castillo began providing treatment on August 12, 2009. R. 676. Waggoner requested an appointment in February 2010 to address Marshall's explosive behavior. R. 612. At the time, Marshall's diagnoses included mood disorder-not otherwise specified (NOS), generalized anxiety disorder, and ADHD, combined type. Id. Dr. Castillo increased Marshall's dosage of vyvanse and depakote and maintained the dosage of wellbutrin and risperdal. Id. Marshall returned on February 8, 2010, where Waggoner reported he appeared to be doing better in school, but remained irritable at home. R. 610.

         Dr. Castillo continued to treat Marshall throughout 2011. On July 29, 2011, Dr. Castillo added oppositional defiant disorder to the list of his diagnoses. R.445. He observed that Marshall was “highly symptomatic, irritable, snappy, and certainly physically aggressive.” R. 446. In August 2011, Dr. Castillo noted during that session that Marshall was pleasant and had good eye contact, but added a diagnosis of Rule out Asperger's disorder. R. 441. Waggoner reported in October 2011 that Marshall was doing well in school and felt he was acting like a typical teenager. R. 438. However by December, Marshall was getting mostly D's and C's in school and was struggling to turn in his homework, though his behavior at home was good. R. 436.

         The Ashwaubenon School District completed an evaluation report and individualized education plan (IEP) for Marshall in November 2011. R. 531-54. The IEP was designed to cover Marshall's special education schooling from October 2011 until October 2012. R. 531. The report indicated Marshall was first evaluated as having an emotional behavior disability in the third grade and was diagnosed with ADHD at the age of 7. R. 533. Although Marshall says he wants to do well in school, Waggoner reported he requires assistance to complete his work. Id. The IEP set out three target behaviors: (1) improve responsibility for assignment completion and turning in work in a timely manner; (2) improve ability to stay on task; and (3) improve organizational skills. R. 552-54.

         Marshall's anger issues appeared to return in 2012. Marshall and his parents indicated in March that he has been struggling with worsening temper outbursts. R. 434. Waggoner continued to observe Marshall's irritability and snappiness. R. 432. Marshall broke a car window in May during a temper tantrum. R. 425. Dr. Castillo referred Marshall to Dr. Eric Lund for evaluation of the rule out Asperger's diagnosis. R. 502-03.

         Dr. Lund conducted a psychological evaluation on May 31, 2012 to help differentiate Marshall's several diagnoses. R. 466-68. He concluded that Marshall would most accurately be diagnosed with schizophrenia-undifferentiated type. R. 468. Dr. Lund based this conclusion upon Marshall's childhood problems with hearing auditory hallucinations and experiencing significant paranoia unrelated to his mood state. He noted that Marshall has been treated with anti-psychotic medications since that time, which would explain why his psychotic symptoms have been absent. Dr. Lund also indicated the negative symptoms of schizophrenia often look similar to Asperger's Disorder: affect flattening, alogia, and avolition. He observed Marshall's facial expressions were somewhat unresponsive, he showed poor eye contact and reduced body language, and his emotional expressiveness was diminished. Dr. Lund concluded that schizophrenia was a better diagnosis than Asperger's due to the childhood manifestation of psychotic symptoms. Dr. Castillo reviewed Dr. Lund's assessment on June 25, 2012 and expressed his disagreement with the schizophrenia diagnosis due to Marshall's life-long poor social functioning. R. 504. On July 6, 2012, Dr. Castillo replaced his diagnosis of rule out Asperger's with pervasive developmental disorder (PDD). R. 506.

         On June 30, 2012, Marshall underwent a consultative psychological evaluation by Dr. Robert Schedgick on referral by the Wisconsin Disability Determination Bureau. R. 471-85. At the time, he was a senior in high school. R. 475. Dr. Schedgick did not observe any emotional displays of inappropriate behavior. R. 472. He noted that Marshall's affect appeared “bright and appropriate. He is very socially engaging and pleasant. He is cooperative and polite. He is a nice young man. He laughs and smiles quite easily.” R. 478. Dr. Schedgick also concluded that Marshall did not appear to have significant difficulties in focusing and concentrating. R. 476. Although Marshall has some difficulty recalling the exact date, Dr. Schedgick concluded he appeared oriented. R. 477. Marshall could wash, dress, cloth, bathe, shower himself, do his own laundry, cook, and clean. R. 481. He also reported watching the television show “Sponge Bob, ” playing video games and working on a computer and said he would do them 10 hours a day if he could. R. 474. Dr. Schedgick thought Marshall would need some assistance in being able to rent an apartment and that making the transition to adulthood would be problematic for him, which “would not be unusual.” R. 483. He diagnosed Marshall with Oppositional Defiant Disorder, a history of diagnosis of mood disorder NOS, and a history of learning disorder NOS. R. 482-83. He also noted that he would need more evidence in order to conclude that Marshall has Asperger's syndrome. R. 482. Finally, Dr. Schedgick concluded that Marshall continues to need some kind of assistance, monitoring, and supervision. R. 484.

         State agency psychologist Michael Mandli, Ph.D., concluded on July 9, 2012 that Marshall's alleged autistic/other pervasive developmental disorders were nonsevere. R. 91. Dr. Mandli evaluated the six childhood domains and found: (1) Acquiring and Using Information-Less than marked; (2) Attending and Completing Tasks-Less than marked; (3) Interacting and Relating With Others-Less than marked; (4) Moving About and Manipulation of Objections-No Limitation; (5) Caring For Yourself-No Limitation; and (6) Health and Physical Well-Being-No Limitation. R. 91-92. Based upon the six domains, Dr. Mandli concluded that Marshall's impairments do not functionally equal a listing. R. 92. State agency psychologist Kyla King, Psy. D. reviewed Marshall's record and agreed with Dr. Mandli's conclusion-Marshall's impairments do not functionally equal a childhood listing. R. 104. Dr. King slightly differed from Dr. Mandli's evaluation of the six domains and concluded that Marshall demonstrated a marked limitation in the domain of attending and completing tasks. R. 103.

         Marshall was seen by Dr. Kim Lasecki, a licensed psychologist, on August 29, 2012, at the request of Dr. Castillo for a psychological evaluation. R. 511. Dr. Lasecki noted that “[s]ince the patient was quite young he has experienced significant psychiatric symptoms of anxiety, possible thought disorder, and symptoms out of raise concern [sic] regarding the possibility of pervasive developmental disorder features.” Id. His diagnostic impressions were mood disorder NOS with predominantly depressed mood and dysthymic features, generalized anxiety disorder, history of panic disorder with agoraphobic features, history of ADHD inattentive type, and history of Asperger's disorder/PDD NOS. R. 514. On September 26, 2015, Dr. Lasecki conducted a five hour psychological evaluation. R. 519-23. Marshall's scores revealed overall intellectual functioning within the low average range. R. 523. His intellectual profile also raised a concern for the possibility of a non-verbal learning disability. Id. After the evaluation, Dr. Lasecki diagnosed Marshall with mood disorder with predominately depressive features, ADHD, pervasive developmental disorder-NOS, generalized anxiety disorder, and a possible non-verbal learning disorder. Id.

         Marshall also underwent weekly, two-hour home-based therapy sessions with psychotherapist Linda Carmody, MS, LPC from late August 2012 until March 2013. R. 673-75. Ms. Carmody started with a diagnosis of Mood Disorder-NOS so that she could eventually determine if Marshall's symptoms arose from anxiety, bipolar, depression, or a developmental disorder. R. 675. On February 15, 2013, after more than 30 hours of treatment, Ms. Carmody ruled out Oppositional Defiant Disorder. R. 557. She concluded that the “underlying cause of behavior problems and functional impairments likely stem from a developmental disorder, such as Autism Spectrum Disorder, Asperger Disorder or Pervasive Developmental Disorder, NOS.” Id. Marshall's final home-based outpatient session was on March 14, 2013. R. 649. Ms. Carmody again noted the in-home sessions ended because the underlying cause of the behavior problems arose from a developmental disorder and gave a provisional diagnosis of Pervasive Developmental Disorder-NOS. R. 648. Marshall turned 18 on May 30, 2013.

         In early June, Dr. Irma Casey Smet conducted a two day comprehensive neuropsychological evaluation in response to a referral by Dr. Castillo so as to aid in diagnostic clarification and treatment planning. R. 634-46. Dr. Smet administered two different IQ tests: Wechsler Abbreviated Scale of Intelligence and Stanford-Binet Intelligence Scales-Fifth Edition. R. 635. The latter test was given because Dr. Smet noted it would offer a better estimate due to Marshall's history of special education and lifelong difficulties. R. 637. The Stanford-Binet test resulted in a full score IQ of 64. R. 642. Dr. Smet also concluded that Marshall “presents with cardinal symptoms of Asperger's disorder, as well as certainly a history of some depression with manic episodes.” R. 640. She opined that the evaluation results are most consistent with Asperger's disorder. Id. Dr. Castillo added Asperger's disorder to his list of diagnoses on June 25, 2013. R. 712. Dr. Castillo opined that Marshall's concrete thinking and lack of planning towards the future indicated that he would require ongoing adult supervision in both a vocational and residential setting. R. 676.

         Marshall began a temporary work experience at St. Vincent de Paul on June 17, 2013 through the Wisconsin Department of Vocational Rehabilitation. R. 368. The purpose of the experience was to provide Marshall an opportunity to assess and practice work skills and behaviors. R. 342. Marshall worked 20 hours a week. R. 368. His supervisor indicated that he was very happy with Marshall's work. Id. However, Marshall left work early a few days during the program because he was unable to read the analog clock. R. 367. Marshall's temporary work experience ended on August 9. Marshall overall did well but “there were a few situations where it was noticed that he struggles and needs assistance with asking questions and knowing when to ask those questions and how to do that.” Id.

         Marshall began seeing Ms. Carmody again on an outpatient basis in the latter half of 2013. She added Asperger's Disorder as Marshall's primary diagnosis following Dr. Smet's evaluation and noted that subsequent treatment will focus on “reducing effects pertaining to Asperger Disorder.” R. 711. Marshall reported in September that he was searching for a full time job, attending Asperger's adult support groups, and has made friends. R. 710. Ms. Carmody observed that Marshall's “inability to see the ‘big picture' (certainly a hallmark of autism) continues to prove to be pervasive.” R. 709.

         Marshall's symptoms seemed to improve in late 2013. Marshall began seeing Brian Cagle, Psy.D. in September 2013. R. 719. Dr. Cagle's diagnoses only listed bipolar disorder-NOS and generalized anxiety disorder. R. 720. Throughout Dr. Cagle's treatment, he did not make any reference to Marshall's previous diagnosis of Asperger's disorder. R. 720, 730-33. Marshall began seeing a new psychiatrist, Dr. Naciye Kalafat, in October. R. 721-22. Although she included Asperger's disorder in the list of diagnoses, Dr. Kalafat agreed to reduce his medication dosage. R. 725. ...

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