Loudy v. Comm'r of Soc. Sec.

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DARLENE LOUDY, on behalf of C.L.L., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 5:21-cv-00524

United States District Court, N.D. Ohio, Eastern Division

June 29, 2022

DAVID A. RUIZ DISTRICT JUDGE

REPORT AND RECOMMENDATION

AMANDA M. KNAPP United States Magistrate Judge

Plaintiff Darlene Loudy (“Plaintiff” or “Ms Loudy”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) on behalf of her minor grandchild, C.L.L. (ECF Doc. 1, ECF Doc. 15 p. 1.) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2.

For the reasons set forth below, the undersigned recommends that the final decision of the Commissioner be AFFIRMED.

I. Procedural History

On May 21, 2018, Ms. Loudy protectively filed an application for children's SSI on behalf of her grandchild C.L.L., with an alleged disability onset date of March 1, 2015. (Tr. 9 63, 144-49, 156.) She alleged C.L.L. was disabled due to speech and learning issues. (Tr. 64, 78, 85, 157.) The application was denied at the initial level (Tr. 75-79) and upon reconsideration (Tr. 83-86), and she requested a hearing (Tr. 87-89). On January 9, 2020, a hearing was held before an Administrative Law Judge (“ALJ”). (Tr. 22-55.)

On June 16, 2020, the ALJ issued a decision finding C.L.L. was not under a disability within the meaning of the Social Security Act since May 21, 2018, the date the application was filed. (Tr. 6-21.) On January 6, 2021, the Appeals Council denied Ms. Loudy's request for review, making the ALJ decision the final decision of the Commissioner. (Tr. 507-13.)

II. Evidence

A. Personal Evidence

C.L.L. was born in 2010. (Tr. 10, 144.) Under Social Security regulations, he was a school-age child at the time the application and at the time of the ALJ's decision. (Tr. 10.)

B. Medical and Educational Evidence

1.Educational and Treatment Records^[1]

C.L.L.'s primary care physician was Paul Schuh, M.D., at Akron Children's Hospital (“Akron Children's”). (Tr. 398.) C.L.L. saw other medical providers at Akron Children's, including speech-language pathologists and occupational therapists.

Beginning at least in early April 2017, and continuing through at least November 2018, C.L.L. generally attended weekly speech-language therapy sessions. (Tr. 288-291, 295-97, 298-300, 302-303, 306-13, 315-22, 327-34, 335-338, 365-98, 401-07.) He initially received therapy services through speech-pathologist Kristen Lautenbach, M.S. CCC-SLP, but in August 2017 he started seeing speech-pathologist Cameron Tezanos, CCC-SLP. (Tr. 288-91, 295-97, 298.) During a January 8, 2018, therapy session, SLP Tezanos observed “[g]ood participation . . . throughout [the] session” but noted that C.L.L.'s “conversational intelligibility [was] still below age expectation.” (Tr. 312.)

On April 12, 2018, C.L.L. attended an occupational therapy evaluation conducted by occupational therapist Beth Heindel, OTR/L, with concerns in the following areas noted: delays in fine motor and visual motor skills, handwriting, decreased postural control for age, and decreased strength and tone in the bilateral upper extremities. (Tr. 322-26.) OT Heindel administered standardized testing. (Tr. 324.) She found that C.L.L.'s Developmental Test of Visual Motor Integration's (VMI) testing revealed “average visual motor coordination and motor coordination for [his] age range, 8 yr 1 mth.” (Tr. 325.) She also indicated that C.L.L. had “above average visual perceptual skills according to the VMI.” (Id.) On examination, C.L.L.'s bilateral upper extremity range of motion was slightly decreased against resistance and he used “compensatory movements of his trunk.” (Tr. 324.) C.L.L.'s sensation was within normal limits. (Tr. 325.) His tone was decreased throughout his body and his elbows were hyperextended. (Tr. 324.) C.L.L. exhibited right-hand dominance, and “use[d] a modified dynamic to static tripod grasp alternating between a neutral wrist and a hooked/flexed wrist [and] [h]e use[d] excessive pressure for control when writing and frequently need[ed] rest breaks.” (Tr. 324-25.) C.L.L.'s handwriting was “often completed from the bottom up and clockwise rather than counterclockwise” and he had “overflow movements with his tongue and mouth” when writing. (Tr. 325.) His endurance was fair but he “frequently slump[ed] over the table resting his head on his hands.” (Id.) He was independent with mobility but exhibited “[d]ifficulty with bilateral coordination skills,” had “difficulty with understanding motor planning verbally,” and “need[ed] demonstration for motor patterns.” (Id.) He “show[ed] good attention to people and activities.” (Id.) OT Heindel recommended occupational therapy two to four times per month for six months. (Id.)

On May 2, 2018, a hearing screening was conducted by Carin Delzoppo CNP at Akron Children's due to C.L.L.'s speech delays. (Tr. 326-27.) CNP Delzoppo explained that no further hearing evaluation was required since C.L.L. passed the hearing screening, but recommended that he continue with his speech therapy. (Tr. 326.)

During an October 8, 2018 speech-language therapy session, SLP Tezanos discussed a “comprehensive developmental evaluation” because Ms. Loudy raised “several concerns for [C.L.L.'s] development that [had] not been explored.” (Tr. 388.) During a speech-language therapy session on November 5, 2018, Ms. Loudy asked about a “developmental evaluation” and SLP Tezanos encouraged her to discuss her concerns with C.L.L.'s primary care physician. (Tr. 397-98.) Ms. Loudy also expressed frustrations with what the school was reporting C.L.L. could do and what he could do at home. (Tr. 398.)

During a November 6, 2018 appointment with Dr. Schuh, Ms. Loudy reported that C.L.L. had services in place, including an IEP at school for speech delays, speech services at school, individual speech therapy at Akron Children's, and occupational therapy at Akron Children's, but she did not feel he was doing as well as she would expect. (Tr. 400.) Dr. Schuh placed a referral to developmental pediatrics. (Tr. 398, 400.)

On December 19, 2018, the Akron Public Schools conducted a reevaluation to determine the continued need for special education services and completed an Evaluation Team Report (“ETR”). (Tr. 461-98.) The prior ETR was dated April 19, 2016. (Tr. 461.) School psychologist Kathleen Klamut chaired the evaluation. (Tr. 464-65.) Other team members were Ms. Loudy, speech and language pathologist Anne Maholm, occupational therapist Saundra Gordon, general education teacher Carrie Musci, intervention specialist Elena Gibbons, and district representative Jeff Lysiak. (Tr. 465, 496.) During the evaluation, C.L.L. completed all required tasks and his conversational proficiency was typical for his age level. (Tr. 467.)

As part of the ETR reevaluation, the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V) test was administered, producing a Full-Scale IQ (FSIQ) score of 87, noted to be in the low average range compared to other children his age. (Id.) Other test scores were: Verbal Comprehension Index - 89 (low average range); Visual Spatial Index - 100 (average range); Fluid Reasoning Index - 91 (average range); Working Memory Index - 79 (very low range); and Processing Speed Index - 98 (average range). (Tr. 467-68.) School psychologist Klamut noted that C.L.L.'s low Working Memory score suggested that he might “experience difficulty with retaining, recalling and repeat[ing] information, attention/concentration, sequencing skills, rote learning, organization, visual and auditory short-term memory, [and] conceptualization.” (Tr. 469.) The Woodcock-Johnson Standardized Tests of Achievement - IV was also administered, providing RPI (Relative Proficiency Index) scores. (Tr. 472-74.) School psychologist Klamut indicated that C.L.L.'s RPI scores “suggest[ed] he [would] need special assistance to complete reading and written expression tasks within his instructional zone.” (Tr. 474.) She explained that C.L.L.'s “reading miscues and poor decoding skills [had] an adverse effect on his reading comprehension,” his fluency and comprehension were limited because he “read[] in a choppy and laborious fashion,” and “[h]is difficulty with spelling [might] impede his ability to express himself in a written format.” (Id.) Further, she explained that C.L.L.'s “[d]eficient reading and spelling/writing skills [would] make it difficult for [him] to access the general education curriculum without assistance” and therefore he might need “[s]pecially designed instruction focused on specific skills in reading and language arts,” “tests and materials read to him” and other “testing accommodations,” including “frequent breaks,” “a small group setting,” or “[e]xtra time to complete academic tasks and quizzes/tests.” (Id.)

School psychologist Klamut also evaluated C.L.L. based on observations, interviews, and school records, which included his teacher's observations that “most social/emotional skills [were] appropriate” and C.L.L was able to “work independently, follow[] classroom rules, respond[] appropriately to redirection or correction and transition[] or adapt[] to new situations,” but “[a]t times, he handle[d] frustration in an inappropriate manner by ‘melting down.'” (Tr. 478; see also Tr. 487, 490 (reflecting that C.L.L.'s regular teacher commented that C.L.L. showed resistance about once each week in response to directions from teacher's other than her, but the occurrences were decreasing).) Thus, it was noted that C.L.L. “would benefit from...