Jamie C. ex rel. J.F. v. Comm'r of Soc. Sec.

JAMIE C., on behalf of J.F., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 1:19-cv-01147-JES-JEH

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION

August 17, 2020

Report and Recommendation

Now before the Court is the Plaintiff's Motion for Summary Judgment (Doc. 17), the Defendant's Motion for Summary Affirmance (Doc. 17), and the Plaintiff's Reply (Doc. 19). This matter has been referred for a report and recommendation. The Motions are fully briefed, and for the reasons stated herein, the Court recommends the Plaintiff's Motion for Summary Judgment be denied and the Defendant's Motion for Summary Affirmance be granted.¹

I

Jamie C. filed an application for supplemental security income (SSI) on behalf of her minor son, J.F., in February 2011. Jamie alleged J.F.'s disability began on the day he was born, November 12, 1998. After the claim was denied initially and upon reconsideration, a hearing was held before an Administrative Law Judge in November 2012. Although she was informed of the right to representation, Jamie chose to proceed without the assistance of an attorney or other representative. Both Jamie and J.F. testified at that hearing. In December 2012, theAdministrative Law Judge issued an unfavorable decision which Jamie then appealed. The Appeals Council (AC) denied her request for review in April 2014. Jamie then filed a lawsuit in this Court in June 2014 which ultimately resulted in a remand to the Social Security Administration (SSA).

Another hearing was held before a different Administrative Law Judge, the Honorable Shreese M. Wilson (ALJ), in March 2016. Jamie was again informed of the right to representation and again chose to proceed on behalf of J.F. without it. Jamie, J.F., and J.F.'s father testified at the hearing. At the time of that hearing, Jamie declined to sign authorization forms so that updated medical and school records could be obtained. The ALJ issued an unfavorable decision in July 2016 based upon the reconsideration of evidence through December 4, 2012 (the date of the original unfavorable decision). In the July 2016 decision, the ALJ noted that due to lack of cooperation, a proper evaluation of disability after December 4, 2012 could not be conducted. Jamie appealed the unfavorable decision and the AC remanded finding that refusal to cooperate was not a basis for not making a finding on the severity of impairments since December 5, 2012. The AC explained in its remand order, however, that "the claimant and his representative have a duty to assist the ALJ in developing the record, including complying with requests for information or evidence[.]" AR 1394-95.

On May 4, 2018, ALJ Wilson held a third hearing pertaining to J.F.'s SSI claim. At that time, J.F. was an adult (he turned 18 on November 12, 2016) and so the ALJ informed him of his right to representation.² Upon the advice of hismother, J.F. chose to appear and testify without the assistance of an attorney or other representative. J.F., Jamie, and a vocational expert (VE) testified. Following that hearing, J.F.'s claim was denied on June 11, 2018. Jamie filed the instant civil action on behalf of J.F. seeking review of the ALJ's June 2018 Decision on April 30, 2019.

II

At the May 2018 hearing, J.F. testified he was 19 years old and lived in a house with his parents and grandparents. He did not have a driver's license as he believed he would not be able to learn how to drive, though he had never tried. He confirmed he was in special education classes all four years of high school. Jamie testified that J.F. was placed in a one-on-one emotional disability classroom and he dressed for physical education (PE) in the nurse's station because he could not go to the locker rooms. Jamie explained that J.F. only graduated at the eighth grade level, but confirmed J.F. received a high school diploma. He did not want to go to college because he had trouble in high school and thought it not worth the trouble. Jamie questioned how her son would take going through the hallways at college "with all those people, and all those sounds when he can't even go to a restaurant." AR 1179. He had not tried to look for work as "I know I won't be able to hold [a job]." AR 1162. He said his sensory issues and "messed up" sleep schedule kept him from holding a job. Id. Jamie did not take medicine and did not see a doctor. Jamie added that they tried medication with J.F. when he was younger but there were too many side effects.

J.F. elaborated on his sensory issues, testifying that light made him "kind of" pushy and irritable, and sound made him "kind of" nervous and pushed him"away from the general area if the noise level is too high." Id. Jamie interjected that his sensory issues were triggered "[e]specially [with] change in environment." AR 1163. J.F. added that his sensitivity to sound made him "a little bit aggressive." Id. He said his nervous energy made him annoy others in that they would get up and walk away from him. He said he caused that annoyance to others over 100 times in one year. J.F. added that he had touch issues as well and if something came into contact with his skin, it "rile[d]" him up. AR 1165. Jamie explained J.F. was diagnosed in seventh grade and re-diagnosed in the most updated records with sensory integration disorder, or sensory modulation disorder. Per Jamie, J.F. did not take any medication for that disorder because there was not any except for controlling the environment. J.F. took supplements and he mostly stayed in one room where the lights and sound were controlled, and "stuff" was not moved around. AR 1166. J.F. stated that doing all those things was not enough to fully control his disorder. Jamie stated J.F.'s ability to do "stuff" was dependent upon his environment. AR 1171. Jamie also testified J.F. was a "ticking time bomb" when his sensory issues were set off. AR 1181. She described one incident when J.F. "just went off" about a toothbrush and Jamie called the police. After the police came to their house and told J.F. to calm down, he "shaped up, never did it again." AR 1184.

Jamie also testified that J.F. was "tactile defensive" as part of his sensory issues; "it's basically where you're constantly on guard, like you're in a high - it's kind of like a fight or flight response." AR 1173. Jamie stated J.F.'s sleep issues were triggered by his tactile defensiveness as he was constantly on guard. According to Jamie, the school psychologist told them there was no medication to treat J.F.'s tactile defensiveness. Though J.F. was not on ADHD medication when he was in school, he was able to get his school work done and graduate, "but barely." AR 1176. J.F. testified that he occupied his time playing video games on his PlayStation 4 or his computer. He played the games by himself as he did not have the PlayStation network. Friends "very, very rarely" came over to play the games with J.F. Jamie commented J.F.'s good friend last came over about seven months before the hearing. Because of his sensory issues, J.F. always turned the volume down on his games. J.F. said he got bored sometimes playing video games all day. He thought he could play video games all day but not work because "games and real life work are absolutely two different things." AR 1188. Jamie said he could play video games all day because he was in a controlled environment. J.F. said he hated to leave his house and was "basically dragged" out of the house to come to the hearing. AR 1189. Upon the ALJ pointing out that he seemed calm and okay during the hearing, J.F. said he way trying to be okay. According to J.F., he wanted to make YouTube videos but did not have the right recording software to do it. According to Jamie, J.F. did not understand it though others tried teaching it to him.

Jamie added that in order for J.F. to function in a one-on-one classroom, he still had to have several accommodations including a scribe for longer assignments, frequent breaks, small group administration, oral written directions, frequent redirection, and notification when there was a change in routine schedule. She again testified that there was nothing else to do except try to control J.F.'s environment to stop certain behaviors from occurring. She confirmed J.F. did not go to a psychiatrist or psychologist outside of the school setting because "all of his needs were being met at school." AR 1194.

The ALJ then questioned the VE. The VE was asked to consider the following hypothetical individual:

An individual that's the same age that the claimant is. So this individual is 19. This individual has no exertional, postural,manipulative or environmental limitations. However, this individual would be limited to tasks that can be learned within 30 days that are routine in nature.

This individual should be in an environment that's low stress in nature. I'm going to define low stress as no more than occasional decision making or changes in a work setting. So every day when they go to work they know what their work tasks are, and they're basically unchanging.

Additionally, this individual should be in an environment that the production expectations are shift or day-based. There should be no hourly production quotas for this individual. This individual should be in an environment that requires no more - no interaction with the general public, and no more than occasional interaction with coworkers or supervisors.

AR 1195-96. The VE identified a variety of jobs such a hypothetical individual could perform at the medium unskilled level, the light unskilled level, and the sedentary unskilled level. The ALJ added to the hypothetical that the individual needed to avoid concentrated exposure to excessive noise. The VE testified that jobs remained, though numbers of jobs were reduced. Next, the ALJ added that the individual needed to be in an environment where the tasks could be easily resumed after momentary distraction. The VE responded that all...