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Brewer v. Berryhill

United States District Court, D. Delaware

September 21, 2018

MARIOKA D. BREWER on behalf of Z.C., a minor, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Marioka D. Brewer, Pro Se Plaintiff.

          David C. Weiss, Esquire, United States Attorney, Heather Benderson, Esquire, Special Assistant United States Attorney, and Margaret W. Reed, Esquire, Special Assistant United States Attorney, of the Office of the United States Attorney, Wilmington, Delaware.

          Of Counsel: Nora Koch, Esquire, Regional Chief Counsel, Region III, and Shannon Petty, Esquire, Assistant Regional Counsel, of the Social Security Administration, Philadelphia, Pennsylvania.


          STARK U.S. District Judge


         Plaintiff Marioka D. Brewer (“Brewer" or "Plaintiff'), on behalf of Z.C. ("Z.C"), a minor, who appears pro se, appeals from a decision of Defendant Nancy Berryhill, Acting Commissioner of Social Security ("Commissioner" or "Defendant"), finding that Z.C. was not entitled to childhood supplemental security income ("SSI") under Tide XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 1381-1383f. The Court has jurisdiction pursuant to 42 U.S.C. §§ 405 and 1383(c)(3).[1] Pending before the Court are cross-motions for summary judgment filed by Brewer and the Commissioner. (D.I. 18, 22)[2] For the reasons set forth below, the Court will deny Plaintiffs motion and will grant Defendant's motion.


         A. Procedural History

         On May 21, 2015, Brewer protectively filed an application for SSI benefits on behalf Z.C, alleging disability beginning March 1, 2015, due to a mental impairment. (D.I. 15-5 at 12-20) The claim was denied on September 3, 2015 and, upon reconsideration, on March 9, 2016. (D.I. 15-3 at 2-25) Plaintiff filed a request for a hearing on April 25, 2016. (D.I. 15-4 at 14) On January 18, 2017, a hearing was held before an Administrative Law Judge ("ALJ") who later issued a decision finding that Z.C. was not disabled. (D.I. 15-2 at 12-27, 34-54) Plaintiff filed a request for review by the Appeals Council, which was denied on May 22, 2017, so die ALJ's decision became die final decision of die Commissioner. (D.I. 15-2 at 2-4)

         On June 7, 2017, Brewer commenced this action seeking judicial review of the ALJ's decision. (D.I. 2) Brewer moved for summary judgment on December 7, 2017 (D.I. 18) and the Commissioner filed a cross-motion for summary judgment on January 8, 2018 (D.I. 22).

         B. Medical and Mental Health Evidence

         When Z.C. was approximately two years old, she was formally adopted by Brewer. (D.I. 15-8 at 28) Z.C. had experienced neglect while in the care of her biological mother. (Id.) Z.C. underwent a psychiatric evaluation at Delaware Guidance Services for Children and Youth ("Delaware Guidance") on April 30, 2015. (Id. at 28-34) Z.C. was seen at Delaware Guidance after she had fabricated a story at school about her care that proved to be false. (Id.) Z.C. explained that she told the story because she thought she was in trouble at school. (Id.) At times, Z.C. was irritable, easily tearful, had poor frustration tolerance, and suffered from social withdrawal. (Id.) Examination revealed a well-developed, appropriately-dressed individual with poor eye contact. (Id. at 31) Z.C. was cooperative and anxious with a flat affect and intact memory. (Id.) She reported auditory hallucinations and paranoid delusions. (Id.) Z.C. was diagnosed with major depressive disorder with psychotic features and anxiety not otherwise specified, and she was prescribed Risperdal. (Id. at 32-33) She was next seen at Delaware Guidance on August 11, 2015. (Id. at 69-75)

         Z.C. underwent a consultative psychological evaluation by Joseph Keyes, Ph.D. ("Dr. Keyes"), on September 2, 2015. (Id. at 49-53) Examination revealed that Z.C. had good overall health and did not take any routine medication for health problems. (Id. at 50) Brewer provided a history that Z.C. began treatment at Delaware Guidance in April 2015, and that "medication has been effective in improving [Z.C.'s] behavior and with her delusions and hallucinations." (Id.) Z.C. had a normal appetite and sleep patterns, and enjoyed drawing, riding her bicycle, watching television, and taking walks. (Id.) Z.C. performed self-care tasks and activities of daily living at an age-appropriate level, performed chores with reminders, and had normal overall adaptive behavior functioning for her age. (Id.) Z.C. dressed appropriately, had excellent hygiene and grooming, appropriate behavior, normal motor activity, normal tine and gross motor coordination, clear speech, and clear thinking relevant to the situation. (Id.)

         Dr. Keyes observed that Z.C.'s abstract thinking skills were in the low-average range for her age, but she could deal with abstract/conceptual problems and had no overt delusional thought processes or hallucinations. (Id.) Her intermediate and remote memory were appropriate. (Id.) She had average/normal mental alertness, was able to count backwards from 20, could recite the days of the week in backwards order, and could recite the alphabet without error. (Id. at 50-51) Z.C. displayed appropriate and adequate social and interpersonal skills as she answered questions posed to her, initiated age-appropriate conversations, has friends, and was noted to play appropriately. (Id. at 51) Dr. Keyes also observed that Z.C. had appropriate mood and no noted irritability, in contrast to the symptoms reported earlier in 2015. (Id.) Z.C. relayed to Dr. Keyes that with medication her auditory hallucinations had "gone away." (Id.) She was more interactive with others, not as depressed, and did not exhibit paranoid delusions. (Id.) Dr. Keyes found Z.C. pleasant with appropriate mood and affect, normal alertness and memory, and adaptive behavior. (Id.) He opined that Z.C.'s current treatment appeared to have been effective in stabili2ing her depression and psychotic features. (Id. at 52)

         On September 2, 2015, Christopher King, Psy.D. ("Dr. King"), reviewed the medical records and opined that Z.C. is limited but did not meet, equal, or functionally equal, a listed impairment. (D.I. 15-3 at 5-7) With regard to the relevant domains of functioning, Dr. King opined that Z.C. had no limitation in acquiring and using information, attending and completing tasks, moving about and manipulating objects, or caring for oneself, and had a less than marked limitation in the domain of interacting and relating with others. (Id. at 67)

         A November 6, 2015 psychoeducation school evaluation states that Z.C. "participated appropriately" in class, raised her hand to answer questions, confidently answered when called on, displayed appropriate affect, engaged in the lesson, watched the teacher carefully when problems were modeled, had good eye contact with teachers and peers, remained focused during small group reading lessons, actively participated in the discussion, and worked cooperatively with her partner. (D.I. 15-8 at 54-57) Z.C. followed instructions, accepted suggestions without resistance or negativity, and had no unusual affect or behaviors. (Id. at 57) She demonstrated average adaptive skills for her age. (Id. at 65)

         Z.C.'s December 3, 2015 Section 504 accommodation plan ("December 2015 Plan") states that Z.C. had difficulty focusing when not seated near the teacher, and anxiety impacted her confidence in her ability to work. (Id. at 84) The December 2015 Plan accommodated and addressed Z.C.'s needs in the physical arrangement of the room by seating Z.C. close to where instruction was being presented, next to a positive role model, and away from distracting stimuli. (Id.) For lesson presentation it addressed Z.C.'s needs by: (1) refocusing attention as needed; (2) pre-teaching content vocabulary; (3) using visuals as a learning tool; (4) repeating directions as needed; and (5) reading items and questions. (Id.) It addressed assignment/worksheets through the "chunking of larger assignments." (Id.) The December 2015 Plan did not provide any behavior accommodations. (Id. at 84-85)

         On February 10, 2016, Z.C.'s fifth-grade teacher, Pamela Vandewende ("Vandewende"), completed a teacher questionnaire that indicated that Z.C. had no problem to slight problems in the domain of acquiring and using information as she was an independent worker, wanted to do well in class, and was most attentive when seated close to the front near a positive role model. (D.I. 15-6 at 74-81) Vandewende's questionnaire indicated there was one obvious problem and no problem to slight problems in the remaining 12 of 13 areas associated with attending and completing tasks; no problem to slight problems in interacting and relating with others; no problem in moving about and manipulating objects; and a slight problem knowing when to ask for help, but no problem in the remaining nine areas of caring for herself. (Id. at 76-79) Vandewende stated that the medicine Z.C. was taking helped her to be successful in the classroom and that Z.C. did not show any signs of her condition while in school. (Id. at 80)

         The record contains two other teacher questionnaires, both unsigned and undated. (D.I. 15-7 at 32-37; D.I. 15-9 at 37-44) One indicates that Z.C. had no to slight problems in the domain of acquiring and using information; an obvious problem in five areas related to attending and completing tasks, but no to slight problem in the remaining eight areas; a slight to obvious problem interacting and relating with others that was now "much improved;'* no problems moving about and manipulating objects; and no to slight problems in caring for herself. (D.I. 15-9 at 37-44) The other questionnaire completed by an unidentified social studies teacher indicates that Z.C. had slight problems in the domain of acquiring and using information; no problem to slight problems in the domain of attending and completing tasks; and no problem interacting and relating with others. (D.I. 15-7 at 32-27)

         On February 11, 2016, Z.C. was seen at Delaware Guidance. (D.I. 15-9 at 2-4) A week later, on February 18, 2016, Dr. Keyes conducted a second consultative examination. (D.I. 15-8 at 86-90) Dr. Keyes' report notes that Z.C. was an average student who did not have significant behavior problems at school, but occasionally became "upset" according to her mother. (Id. at 86) He noted Z.C.'s overall good health and that she did not take other routine medication for health problems aside from Risperdal, which had been increased a day earlier after Z.C. reported the auditory hallucinations that had previously stopped had returned. (Id. at 87) Many of the findings in the second consultative examination are similar to those in the initial exam. (Id. at 87-89) Dr. Keyes found Z.C.'s mood was sad and flat, she exhibited moderate clinical symptoms of depression, and she had multiple auditory hallucinations and delusions related to her depression. (Id. at 88) Dr. Keyes diagnosed major depressive disorder, recurrent, moderate, with mood congruent psychotic features and attention deficit hyperactivity disorder predominantly inattentive presentation. (Id. at 89)

         On March 2, 2016, state agency psychologist Jane Curran, Ph.D. ("Dr. Curran"), opined that Z.C's medically determinable impairment or combination of impairments is severe, but does not meet, medically equal, or functionally equal the listings. (D.I. 15-3 at 20-24) Dr. Curran also opined that Z.C. either had no limitation or less than marked limitations in all areas of domain of functioning. (Id. at 20-21)

         Z.C. continued treatment at Delaware Guidance on May 11, 2016, August 11, 2016, and November 11, 2016. (D.I. 15-9 at 5-14) Psychiatric mental health nurse practitioner Theresa Parkhurst ("Parkhurst") completed a children's physical mental functional capacity questionnaire related to behavioral problems, dated December 16, 2016. (D.I. 15-9 at 46-48) Parkhurst indicated that Z.C. demonstrated no evidence of limitation in moving about and manipulating objects; less than marked limitations in acquiring and using information, attending and completing tasks, and interacting and relating with others; and marked limitations in her ability to care for herself and her health and physical well-being. (Id. at 47-48) Parkhurst explained that Z.C. needs direction to shower, maintain cleanliness and care for herself, and she has a history of refusing medication leading to acute psychosis. (Id. at 48)

         In Z.C's report card for the 2016 academic year, marking periods 1 and 2 show that Z.C. earned A's, B's, and C's, progressed satisfactorily in other areas, and was noted to be an "excellent student who is always engaged and works extremely hard on her assignments and tests in all classes." (D.I. 15-8 at 83) The report card stated that, at times, Z.C. struggled when working independently, and recommended that she read more and work on vocabulary and reading comprehension. (Id.) Z.C's 2016 ...

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