Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Scott v. Berryhill

United States District Court, W.D. Wisconsin

March 7, 2018

TINA SCOTT for S.T., Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          STEPHEN L. CROCKER Magistrate Judge.

         Pro se plaintiff Tina Scott, on behalf of her seven-year old son S.T., seeks review of a final decision by defendant Carolyn W. Colvin, Acting Commissioner of Social Security, denying her son's claim for supplemental security income (SSI) under the Social Security Act. 42 U.S.C. § 405(g). Following an administrative hearing on September 21, 2016, Administrative Law Judge (ALJ) Joseph Jacobson issued a decision on October 14, 2016, finding that although S.T. is severely impaired by attention deficit hyperactivity disorder (ADHD) and speech and language delays, these conditions do not meet, and are not medically or functionally equal to any impairment listed in the regulations. Scott has submitted two statements in which she briefly describes S.T.'s lifelong learning difficulties, autism and ADHD diagnoses, and some of the accommodations and treatment that he has received. Dkts. 17 and 19.

         Having carefully reviewed the record and the parties' submissions, the court is persuaded that substantial evidence supports the commissioner's determination that S.T. is not disabled under the standard applicable to children in the Social Security Act, 42 U.S.C. § 1382c(3)(C)(i), and corresponding regulations, 20 C.F.R. § 416.924. The ALJ followed the commissioner's regulations, carefully considered and weighed the evidence of record, and explained the bases for his conclusions. Accordingly, I am affirming the commissioner's decision and dismissing this case.


         A child is disabled and eligible for SSI benefits if he has a “medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The commissioner employs a three-step process for determining disability, considering whether: 1) the child is presently engaging insubstantial gainful activity; 2) the child has an impairment or combination of impairments that is severe; and 3) the child has a medically determinable impairment or combination of impairments that meets or equals in severity an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, or is functionally equal in severity to a listed impairment. 20 C.F.R. § 416.924(a)-(d).

         A child whose impairment neither meets nor is medically equal to a listed impairment may still be found disabled if his impairments are “functionally equal” to a listed impairment. 20 C.F.R. § 416.926a. Considering all medical and non-medical evidence in the record, the commissioner must assess the child's functioning in six “domains:” (1) acquiring and using information; (2) attending to and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being. § 416.926a(b). To establish functional equivalence, the child must have “marked” limitations in at least two domains of functioning or an “extreme” limitation in one domain. § 416.926a(a). A “marked” limitation exists when the impairment seriously interferes with the child's “ability to independently initiate, sustain, or complete activities, ” and “[i]t is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.” § 416.926a(e)(2)(i). An “extreme” limitation exists when a child's impairment interferes very seriously with his activities and is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean. § 416.926a(e)(3)(i).


         I. Background

         S.T. was born on August 8, 2010, making him four years old when his mother, Tina Scott, filed an SSI application on his behalf, claiming that he had been disabled since birth because of developmental delays. AR 148. On September 19, 2014, Scott completed a function report stating that S.T. did not understand how to respect other children's space, sharing, or taking turns, and that he gets in a lot of trouble because of this behavior. She also wrote that although S.T. could count to 10, count up to three objects in front of him, identify shapes and colors, and report his age, he had trouble communicating his thoughts, using complete sentences, reporting his birthday and telephone number, understanding a joke, and defining words. Id. at 177-84.

         II. School Records

         S.T. has had an individualized educational plan (IEP) since he entered preschool in 2013. AR 155, 187. His most recent IEP, which covered the period December 4, 2014 to December 3, 2015, was prepared on November 18, 2014, when S.T. was 4 years old and in the 4K program at his local elementary school. Id. at 230. The IEP noted that S.T. had significant developmental delay and a speech or language impairment and although he had met all of his speech and language goals, he needed help understanding pragmatic and social rules and language. The IEP reported that S.T. had made “wonderful gains” in the past year but he still takes apart or runs off with other children's items, blurts out answers (sometimes unrelated to the topic at hand), does not play with toys as they are intended to be played with, often walks into people or objects and gets into “other's space, ” and has trouble focusing when in groups of 3 or more children. Id. at 233-34. The IEP noted that S.T.'s behavior did not impede his learning or the learning of others but stated that his communication needs could impede his learning. Id. at 236. The IEP estimated that S.T. had the receptive and expressive language skills of a 3.4 year old. The following services were recommended for S.T.: 30 minutes of speech and language therapy per week, 60 minutes of social and adaptive life skills throughout the day, and 30 minutes speech and language consultation with staff per month. Id. at 239.

         On December 15, 2014, Valeri Scheps, S.T.'s school speech and language pathologist, completed a questionnaire reporting that she had been seeing S.T. for 30 minutes twice a week since March 19, 2014, but that pursuant to his November 18, 2014 IEP, he was receiving speech and language services for 30 minutes once a week. She wrote that the biggest area of concern for S.T. was understanding social rules and his use of social language but that his communication skills were “quite functional.” Although she noted that S.T. often knew the answer to a question, he blurted out information and interrupted people and had a limited attention span of 2 to 5 minutes. Scheps estimated that the “intelligibility” of S.T.'s expressive language was 80-90%. She noted that S.T.'s assessment scores in language placed him at the level of a 3.4 year old. AR 480-81.

         On January 9, 2015, Wendy Levy, S.T.'s early childhood and 4K teacher, completed a questionnaire, rating S.T.'s performance in each of the six functional domains from 1 (no problem) to 5 (very serious problem). Although she ranked S.T. as having a serious problem (4) in one activity related to “acquiring and using information, ” she ranked him as having an obvious problem (3) in all other areas. In the 13 activities related to “attending and completing tasks, ” Levy wrote that S.T. had a serious problem in three areas and a very serious problem in one area and no more than an obvious problem in all other areas. She found that S.T. had a serious problem in 7 of the 13 activities related to “interacting and relating to others” but in only 1 of the 10 activities relating to “caring for himself.” Levy noted that S.T. had no serious problem in “moving about and manipulating objects” or “health and well-being.” AR 273-80.

         On October 12 and 14, 2015, when S.T. was 5.2 years old, he underwent an occupational therapy evaluation at his school because his 4K teacher reported that he exhibited fine motor delays (scoring only in the 5th percentile), clumsiness, and poor body awareness, acting “like a bull in a china cabinet.” AR 492. The therapist, Donna Pond, also noted that S.T. was easily distracted and did not have good proprioceptive processing (getting input from his body about where his body is in space). Id. at 493.

         III. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.