United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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. ...