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Scott v. Commissioner of Social Security

United States District Court, E.D. California

March 21, 2017

MADLYN SCOTT, on behalf of D.S., a minor, Plaintiff,



         Plaintiff Madlyn Scott (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying the application for supplemental security income for her child, D.S. (“D.S.”) under the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.[1]

         D.S.'s impairments include attention deficit-hyperactivity disorder (ADHD), learning disorder, and depression. For the reasons set forth below, Plaintiff's appeal from the administrative decision of the Commissioner is granted in part.


         On May 24, 2012, an application for supplemental security income was protectively filed on behalf of D.S., with an alleged disability beginning on March 1, 2012. (AR 174-83.) The application was denied initially on January 14, 2013, and on reconsideration on June 12, 2013. (AR 121-27.) Plaintiff and D.S. requested and received a hearing before Administrative Law Judge Catherine R. Lazuran (“ALJ”). Plaintiff and D.S. appeared for a video hearing on August 11, 2014. (AR 38-98.) On November 21, 2014, the ALJ issued a decision finding D.S. was not disabled. (AR 19-32.) On March 4, 2016, the Appeals Council denied the request for review (AR 1-5.)

         A. Hearing Testimony

         Plaintiff and D.S. appeared with their counsel at a video hearing before the ALJ on August 11, 2014. (AR 38-71.) D.S. testified as follows:

         She was eleven years old at the time of the hearing. (AR 43.) She has two older sisters and one younger brother. (AR 44.) She just finished fifth grade and somewhat likes school. (AR 44.) Her favorite subject is writing and she somewhat likes to read. (AR 44.) Her grades were Cs and Ds in the 2013-2014 school year. (AR 45.) She received Ds in math. (AR 45.) The school is concerned about her grades. (AR 51.) She is in regular classes, except for English, which she is in an ELD class, which is a lower learning class that is supposed to help her increase her grades. (AR 45, 51.) She started it during the 2013-2014 school year and it is somewhat helping her. (AR 45.) She wants to be a writer when she grows up. (AR 50.)

         She is unable to pay attention in school because she gets easily distracted. (AR 45, 50-51.) She talks while the teacher is talking even though the teacher tells her not to. (AR 51.) She often does not do her homework because she does not pay attention in class and does not know the answers. (AR 45-46.) She does not always ask her mother to help her with her homework because she does not think it is important. (AR 46.) Her mother tries to oversee D.S. and help her finish or see that she finishes it. (AR 46.)

         She can watch television shows until her bedtime. (AR 46.) She can watch TV for 30 or 60 minutes at a time. (AR 46-47.) She says she does not go to movies all the time. (AR 47.) Her mother reads to her and she is not able to pay attention all the time because she does not think it is important. (AR 47.) She can run, roller-skate, and bicycle, but cannot swim. (AR 48-49.) She can write in cursive, get dressed on her own, take a shower or bath on her own, and make a sandwich or use a microwave. (AR 48.) Sometimes she chooses her own clothes in the morning and other times her mother or sister helps her. (AR 48.) Sometimes she sweeps the house and cleans her room, but she sometimes has to be reminded. (AR 48-49.)

         She has friends and she sees them outside of school. (AR 47.) She attends other children's birthday parties. (AR 47.) She does not always get along with her siblings, and specifically her older sister. (AR 47-48.) She sometimes gets along with her mother. (AR 48.)

         She takes medicine and she knows that it helps her. (AR 49.) She has one medication that she takes at bedtime that makes her drowsy so that she can sleep better. (AR 49.) She takes a medication in the morning that helps her focus. (AR 49.) She is taking more medication than she used to. (AR 52.) Sometimes the medication works when she lets her “pill kick in, ” but other times it does not work when she is not listening. (AR 52.) She sees a doctor for the medication and she sees a counselor outside of school. (AR 51.) Her counselor from the mental health clinic comes to her school once a week and talks to all the kids that are treated. (AR 51-52.) She thinks that it helps. (AR 52.)

         She missed much school in the 2013-2014 year because of her behavior. (AR 49.) She does not know how much she missed. (AR 49-50.) She has been suspended for her behavior, which included acting out and shouting, but she does not know how many times. (AR 50.) Sometimes she tries to stop her behavior, and sometimes she gives up. (AR 50.)

         Plaintiff also testified at the hearing. She testified as follows:

         She has lived with D.S. for D.S.'s whole life. (AR 53.) She works thirty hours a week as an instructional aide at a different grade school from the one D.S. attends. (AR 53-54.) D.S.'s siblings are 18, 14, and 6. (AR 54.) D.S. started the ELD class around 2010 and Plaintiff thinks that D.S. is in it 3 or more days for 1 hour each day. (AR 54.) D.S. is in regular classes, except for the ELD class. (AR 56.) An after-school program helps D.S. with her homework. (AR 56.) Plaintiff checks to see if D.S. gets her homework done, but D.S. only gets it done sometimes. (AR 56.) Plaintiff asked D.S. if she needed help and she would say no, but then Plaintiff received phone calls from the teacher saying that D.S. had not done her homework. (AR 56.) After receiving the phone calls, Plaintiff is not always more careful because she is tired. (AR 57.)

         When asked about what D.S.'s school says about her grades, Plaintiff testified that they do not really tell her much. (AR 63-64.) The school “really tr[ies] with her” by taking her out of class and giving her extra help. (AR 64.) She says that D.S.'s behavior and social skills are the focus instead of academics at this time. (AR 64.) Plaintiff testified that D.S.'s conduct grade improved because she has a very lenient teacher who really wanted D.S. to succeed. (AR 66.)

         D.S. does not have an I.E.P. (AR 55.) Plaintiff attempted to put in a request to the school district the year before, but they told her to put the request in when school starts. (AR 55.) However, she did not have the time to put the request in. (AR 55.) The vice principal suggested to Plaintiff that she put a request in for an IEP for D.S., but she has not had the time. (AR 55.) As far as Plaintiff understands it, she has to put the request in for an IEP. (AR 55.)

         Plaintiff said D.S. had approximately five to six suspensions in the 2013-2014 school year, and then later in the hearing, said four or five out-of-school suspensions. (AR 57, 74.) D.S. had approximately ten suspensions in the 2012-2013 school year. (AR 57.) D.S. was medicated at the time of the suspensions. (AR 64.) Plaintiff testified that she did not request D.S.'s suspension records, bring those, or send them to her counsel. (AR 57.) The vice principal has called Plaintiff on several occasions to pick D.S. up, but because Plaintiff was working, she could not. (AR 57.) It was bad enough that two times in the 2013-2014 year and four times in the 2012-2013 year, the vice principal was willing to bring D.S. home herself, but because Plaintiff was at work, that did not happen. (AR 57-58.)

         Plaintiff testified that the school really tries to be lenient with D.S. and they try their best not to suspend D.S. unless it is really serious. (AR 63.) D.S.'s last incident at school was the May 21, 2014 incident, which was the last day D.S. went to school. (AR 64-65.) D.S. was not allowed to attend the last two days of school when they were having a party because of her behavior. (AR 65.) Some of D.S.'s incidents have involved violence, which D.S. also exhibits at home. (AR 66.)

         When asked why the attendance records do not reflect that number of out-of-school suspensions because there are only three absences all year, Plaintiff stated that she believed that the school considered out-of-school suspensions as absences and that D.S. was only absent because of her behavior. (AR 74.) The only times that D.S. missed school during the 2013-2014 school year were when she was suspended. (AR 62.) Plaintiff testified that D.S. would go back to school the next day. (AR 74.)

         D.S. receives counseling at Clinica Sierra Vista Behavioral Center, also known as Kern County Mental Health. (AR 58.) She last attended counseling about two weeks before the hearing. (AR 59.) Plaintiff started D.S. at Clinica Sierra Vista because D.S. was verbally suicidal, which has declined. (AR 65.)

         D.S. is on Clonidine, Strattera, Risperidone, and another medication. (AR 59.) A couple of the medications are to help D.S. focus and to settle down. (AR 59.) She has been on the medications for at least four months. (AR 59.) The medications are prescribed by Dr. Bright at Clinica Sierra Vista. (AR 60.) The only side effect to the medications is drowsiness, which is at morning and night, but more so at night. (AR 60.) D.S. takes her medication in the morning and at night. (AR 61.) D.S. takes something for sleep. (AR 60.) The doctor has increased the medication several times, which has helped ...

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