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Horace v. Colvin

United States District Court, W.D. New York

April 28, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Justin M. Goldstein, Esq., Law Offices of Kenneth Hiller, PPLC, Amherst, New York. for the Plaintiff.

Michelle Lynn Christ, Esq., Social Security Administration Office of General Counsel, New York, New York. for the Defendant.

Mary C. Kane, A.U.S.A., Office of the United States Attorney for the Western District of New York, Buffalo, New York.


CHARLES J. SIRAGUSA, District Judge.


This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Jennifer Horace ("Plaintiff") for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") disability benefits on behalf of her minor son, J.J.J., who is diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"). Now before the Court is Plaintiff's motion (Docket No. [#10]) for judgment on the pleadings and Defendant's cross-motion [#15] for judgment on the pleadings. Plaintiff's application is granted, Defendant's application is denied, and the matter is remanded for a new hearing.


The evidence was summarized in the parties' submissions and need not be repeated here in its entirety. It is sufficient to note the following facts.

Medical/Psychological Evidence

On February 2, 2010, Plaintiff told J.J.J.'s primary care doctor, Elizabeth Brown, M.D. ("Brown"), that J.J.J., who was in third grade, was having behavioral problems at school, including "running out of the classroom" and "throw[ing] things at other kids." (437). Plaintiff further indicated that J.J.J. was on "out of school suspension, " because a previous period of in-school suspension "didn't help." (437). Brown noted that J.J.J. was an "active child" who, during the office visit, "tore paper off the [exam] table, talked, laid down behind the curtain [and] interrupted repeatedly." (438).

On April 6, 2010, Plaintiff told Dr. Brown that J.J.J. was doing somewhat better in school, in that he had "few days of doing better, " whereas he usually got into trouble "every day." (433). Brown seemed to express doubt as to J.J.J.'s diagnosis. (433) ("ADHD?"). In that regard, Brown indicated that she would try increasing Adderall, but that if that did not help improve J.J.J.'s behavior, she would try something else, such as Concerta, or perhaps refer J.J.J. for a psychological evaluation. (433).

On November 9, 2010, Dr. Brown indicated that J.J.J.'s ADHD "appear[ed] to be stable" on Adderall, though she was concerned that he was not gaining weight. (429). Plaintiff reported that J.J.J. had been involved in "one incident of fighting, " but had "mostly good days" that week. (429).

On January 7, 2011, non-treating consulting psychologist Lynn Lambert, Psy.D. ("Lambert") conducted a psychiatric evaluation. (306-310). Lambert reported that J.J.J. was eight years old and taking Adderall. Lambert reported that J.J.J. could be angry and defiant, but more so with his mother than with teachers. (307). Noticeably absent from Lambert's report, in light of the record below, is any reference to J.J.J. acting violently toward other students or adults. To the contrary, Lambert stated that, according to Plaintiff, J.J.J. "ha[d] adequate peer relations in school." (308). Plaintiff reportedly told Lambert that J.J.J. "mostly adequately" bathed himself, but that he needed coaching and direction to brush his teeth, and did not assist well with household chores due to distractibility. Upon examination, Lambert found the following: impaired attention and concentration; mildly impaired memory skills; average cognitive functioning; fair insight; and "fair to occasionally poor" judgment, "due to occasional hyperactivity and excessive talking." (308). Overall, Lambert found that J.J.J. was only "mildly to moderately challenged" with regard to attention and concentration, "mildly challenged" with regard to social behavior, and "mildly to moderately challenged" to interact adequately with adults. (309).

On January 14, 2011, non-treating non-examining agency review psychologist A. Hochberg ("Hochberg") completed a Childhood Disability Evaluation Form (311-316). Hochberg suggests that in preparing the report, he relied on some medical records and some school records, but had no information from J.J.J.'s teacher. (313). Hochberg stated that J.J.J. had "no limitation" in four of the six domains which will be discussed further below: acquiring and using information, moving about and manipulating objects, caring for oneself and health and physical well being. Hochberg stated that J.J.J. had "less than marked" impairments in two domains: attending and completing tasks, and interacting and relating with others. With regard to his opinion about the domain of "attending and completing tasks, " Hochberg purportedly relied on a medical office note indicating that J.J.J. had "no problems" at school with "leaving classroom or putting hands on others." (313) (presumably referring to office note dated October 10, 2010 (431)). With regard to the domain of "interacting and relating with others, " Hochberg suggested that J.J.J.'s behavior could be bad at home, but that J.J.J. "does better at school." (313).

On March 17, 2011, Plaintiff informed Dr. Brown that J.J.J.'s current medication (Concerta) wasn't helping as much, and that he "ha[d] gotten into trouble with the afterschool program." (359). Plaintiff also indicated that J.J.J. was wetting the bed again. (359).

On April 19, 2011, Plaintiff told Dr. Brown that J.J.J. was having "good days and bad days" at school. (356). Plaintiff indicated that J.J.J. seemed to be better on Adderall, and had not hit any other kids lately, but had been "mouthy" with a teacher's aide. (356). Brown opined that it was "reasonable" to refer J.J.J. to Genesee Mental Health. (356).

On May 24, 2011, Laurel Bonney, LCSW ("Bonney"), completed a form entitled "OMH Serious Emotional Disturb" [sic]. (390). On the form, Bonney indicated that J.J.J. had "moderate" functional problems with "social relationships, " "self-direction/self control" and "learning ability." (390).

On July 25, 2011, at Genesee Mental Health Center, Bonney completed a Psychosocial Assessment Admission Note. (317-322). Plaintiff reportedly told Bonney that J.J.J. was hyperactive, had difficulty following directions, frequently interrupted people, had poor impulse control, was aggressive with his peers, lied, stole objects, possessed matches and lighters, and wet the bed several times per month. (317). However, Plaintiff also reportedly told Bonney that J.J.J. was generally doing well at school, although he had gotten in trouble for hitting other children and being disruptive. Bonney reported that J.J.J. worked well with "one-to-one attention and close monitoring and redirection." (320).

On August 31, 2011, at Genesee Mental Health, Nurse Practitioner Catherine Kleckner, N.P. ("Kleckner"), reported that J.J.J. was "impulsive, " "touching all of the toys in the office, fleetingly going from one to the next and frequently interrupted conversation, " but "does well with redirection." (331). Kleckner opined that J.J.J. "seems to need some close monitoring and much redirection." Id. Kleckner noted that J.J.J. had problems at school with impulsivity and aggression toward others, but that his behavior improved with medication. (331). Plaintiff reported that J.J.J. needed a medication change, because his current medication (methylphenidate) was "no longer effective, " and Kleckner indicated that they would try a new medication, Concerta.[1] (331).

On July 11, 2011, Plaintiff told Dr. Brown that the Concerta was helping J.J.J.'s behavior, though she thought that Adderall was better. (353). Plaintiff stated, though, that she was still concerned about J.J.J.'s aggression and failure to take responsibility for his actions. (353).

On September 7, 2011, Plaintiff reportedly told Nurse Practitioner Laura Carpenter ("Carpenter") that J.J.J. was having fewer "interruptions during the day" on his new medication, and that his "ADHD/behavioral issues" were "improved." (367).

On September 26, 2011, Plaintiff told Bonney that J.J.J. was "doing well in school" in Fourth Grade, but "continue[d] to encounter daily difficulties in the areas of following directions, responding appropriately to limits and appropriate socialization with peers." (338). Plaintiff indicated that J.J.J. received "disciplinary interventions at school." (338). J.J.J. indicated that he enjoyed school. (338). Plaintiff stated that she noticed "some improvement" with J.J.J.'s new medication. (338). Part of Bonney's recommended treatment plan was that J.J.J. "refrain from hitting other kids when frustrated and/or disappointed/angry." (339).

On October 11, 2011, Plaintiff informed Kleckner that switching J.J.J. from Adderall to Concerta was "not effective, " because J.J.J. had "been in trouble at school daily." (342). Plaintiff indicated that J.J.J. had been placed in an "in-school suspension" program, and that she wanted J.J.J. put back on Adderall, because he had behaved better in school when taking that drug. (342). Consequently, Kleckner switched J.J.J. from Concerta back to Adderall. (342).

On October 26, 2011, Plaintiff indicated that J.J.J.'s behavior had improved somewhat after being placed back on Adderall, and that he had not received any new school suspensions during the past two weeks. (344). Further, Plaintiff indicated that J.J.J. showed a significant improvement in his impulse control. (344). However, it appears that such improvement was short-lived.

On November 11, 2011, Plaintiff informed Bonney that J.J.J. had recently received a five-day suspension for threatening another student with a knife, though J.J.J. denied that he threatened the child. (345). Plaintiff also indicated that the school's Committee on Special Education ("CSE") was considering whether J.J.J. needed a plan for "impulsivity and difficulty regulating [his behavior] at school." (345).

On December 14, 2011, Plaintiff informed Bonney that J.J.J. had been moved to a different school, School No. 29, "due to long-term suspension, " after he was found in possession of a pocket knife for the second time. (348). Plaintiff also related an incident in which J.J.J. had shown "aggression towards [a] peer on [the school] bus." (348). Plaintiff further indicated that J.J.J. "continue[d] to use foul language at times in response to teachers and was kicked out of [a] tutoring program due to cursing." (348).

On January 3, 2012, Kleckner examined J.J.J., at which time J.J.J. had been without medication for about a week, while on a school vacation. (349). Kleckner reported that J.J.J. seemed immature, whiny, sad and withdrawn. (349). Kleckner opined that J.J.J. "ha[d] not benefited from Adderall XR nor from Concerta." (349). Kleckner reviewed alternative diagnoses, including anxiety and depression, noting that J.J.J. exhibited "symptoms of chronic irritability, anger outbursts, aggression toward peers [and] younger family members [and] poor sleep." (349). Kleckner recommended that J.J.J. be placed on an antidepressant, Celexa, and that the ADHD "psychostimulants" be discontinued. (349). Specifically, Kleckner discontinued Adderall, and placed J.J.J. on "Celexa to target symptoms of anxiety, irritability, anger, outbursts, aggression and initial insomnia." (524). Kleckner also added Clonadine to "target symptoms of hyperactivity and impulsivity." (524).

On April 24, 2012, Dr. Brown completed a medical statement for Plaintiff's attorney. (602-605). Brown opined that J.J.J. had "no limitation" with regard to "moving about and manipulating objects" and "health and physical well-being, " but that he had "moderate limitation" with regard to "acquiring and using information" and "caring for self, " and "marked limitation" with regard to "attending and completing tasks" and "interacting and relating with others." (604). Brown indicated, though, that she had last seen J.J.J. on October 24, 2011, and that since that time J.J.J. began treatment with Genesee Mental Health, which had recently changed his medications. (603). Brown recommended that the evaluator contact Genesee Mental Health for the most up-todate records. (605).

On May 2, 2012, LCSW Bonney completed a form report for Plaintiff's attorney. (610-612). Bonney indicated that J.J.J. often had problems with paying attention to details, sustaining attention at work and play, listening when spoken to, following through with instructions, organizing tasks, engaging in task that require sustained mental effort, losing things, and being distracted. (611). Bonney opined that J.J.J. had "severe" problems with inattention and hyperactivity, and "extreme" problems with impulsivity. (611). Bonney stated that J.J.J. had "mild" limitations in "cogntive/communicative function" and "age-appropriate personal functioning, " and "marked" limitations in ...

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