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Saldana v. Berryhill

United States District Court, D. New Mexico

September 17, 2018

MICHELLE SALDANA on behalf of A.S.M., a minor, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER[1]

          KIRTAN KHALSA, United States Magistrate Judge.

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 18) filed October 17, 2017, in support of Plaintiff Michelle Saldana's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title XVI supplemental security income benefits on behalf of A.S.M. On January 25, 2018, Plaintiff filed her Motion to Reverse and Remand For Payment of Benefits, or in the Alternative, for Rehearing, With Supporting Memorandum (“Motion”). (Doc. 26.) The Commissioner filed a Response in opposition on March16, 2018 (Doc. 28), and Plaintiff filed a Reply on April 9, 2018. (Doc. 29.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is not well taken and is DENIED.

         I. Background and Procedural Record

         Plaintiff Michelle Saldana's daughter, A.S.M. (“A.S.M.”), was born on March 30, 2005, and was, therefore, at all relevant times a school-age child. (Tr. 14, 166.) On November 12, 2012, Plaintiff protectively filed an application on A.S.M.'s behalf for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. Section 1381 through 1381c, claiming that A.S.M. was disabled as of September 1, 2012, at the age of seven, because of a speech impairment. (Tr. 166, 169.) Plaintiff's application was denied at the initial level (Tr. 63, 64-71, 85-88), and at the reconsideration level (Tr. 72, 73-84, 91-94). On March 27, 2014, Plaintiff requested a hearing before an Administrative Law Judge. (Tr. 97-98.) On February 24, 2016, Administrative Law Judge Frederick Upshall, Jr., held a hearing. (Tr. 37-62.) Plaintiff and A.S.M. appeared in person at the hearing with attorney representative Michelle Baca.[2] (Id.) ALJ Upshall took testimony from A.S.M. (Tr. 39-41), and from Plaintiff (Tr. 45-62). In a written decision issued on June 8, 2016, ALJ Upshall found that A.S.M. was not “disabled” as that term is defined in the Social Security Act. (Tr. 8-30.) On May 23, 2017, the Appeals Council denied Plaintiff's request for review, rendering ALJ Upshall's decision the final decision of the Commissioner of the Social Security Administration (Defendant). (Tr. 1-5.) Plaintiff timely filed a complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Standard of Review

         The Court reviews the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). A decision is based on substantial evidence where it is supported by “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Further, the decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). In undertaking its review, the Court may not “reweigh the evidence” or substitute its judgment for that of the agency. Langley, 373 F.3d at 1118.

         B. Standards Governing Childhood Disability Determination

         A child under the age of eighteen is considered “disabled” if she “has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(C)(i). The Social Security Administration follows a three-step inquiry to determine whether a child is disabled. 20 C.F.R. § 416.924(a).

         At step one, the ALJ must determine whether the child is engaged in “substantial gainful activity.” 20 C.F.R. § 416.924(b). If the child is not engaged in substantial gainful activity, the ALJ proceeds to step two. Id. At step two, the ALJ must determine whether the child has one or more “severe” “medically determinable impairment(s).” 20 C.F.R. § 416.924(a), (c). If so, the ALJ proceeds to the next step. Id. At step three, the ALJ must determine whether the child's impairments meet, medically equal, or functionally equal the Listings of Impairments contained in 20 C.F.R pt. 404, subpt. P., App. 1. 20 C.F.R. § 416.924(d); Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014.).

         To “functionally equal” a listed impairment, the child must have an impairment that results in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a). The relevant domains of functioning are: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting and relating with others, (4) moving about and manipulating objects, (5) caring for yourself, and (6) health and physical well-being. 20 C.F.R. § 416.926a(b). In examining functional equivalence, the ALJ must “assess the interactive and cumulative effects of all of the [child's] impairments” including those that are not “severe” to determine how the impairments affect the child's activities-meaning everything she does at home, at school, and in the community. 20 C.F.R. § 416.926a(a), (b). The ALJ must consider how appropriately, effectively, and independently the child performs her activities as compared with children of the same age who do not have impairments. 20 C.F.R. § 416.926a(b).

         The ALJ will determine that a child has a “marked” limitation in a domain when her “impairment(s) interferes seriously with [her] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.925a(e)(2)(i).

Marked limitation also means a limitation that is “more than moderate” but “less than extreme.” It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.

Id. The ALJ will find that a child has an “extreme” limitation in a domain when her “impairment(s) interferes very seriously with [her] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 417.926a(e)(3)(i).

“Extreme” limitation also means a limitation that is “more than marked.” “Extreme” limitation is the rating we give to the worst limitations. However, “extreme limitation” does not necessarily mean a total lack or loss of ability to function. It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean.

Id.

         Standardized test scores are a factor that an ALJ considers in determining a child's limitations in the relevant domains of functioning. However, “[n]o single piece of information taken in isolation can establish whether” the child's limitations in a particular domain are marked or extreme. 20 C.F.R. § 416.926a(e)(4)(i). The ALJ will consider test scores together with the other information about a child's functioning, including “reports of classroom performance and the observations of school personnel and others.” 20 C.F.R. § 416.926a(e)(4)(ii). As an example, a child may have IQ scores that are higher than two or three standard deviations below average, but if other evidence in the record shows that an impairment causes her to function in school, at home, and in the community far below her expected level of functioning, her impairment may be “marked” or “extreme” despite her IQ score. 20 C.F.R. § 416.926a(e)(4)(ii)(A). Further, as a general rule, the ALJ should not rely on a test score as a measurement of the child's functioning within a domain when the record contains other information about the child's functioning that is typically used by medical professionals to measure day-to-day functioning. 20 C.F.R. § 416.926a(e)(4)(iii)(B).

         III. Analysis

         The ALJ made his decision that A.S.M. was not disabled at step three of the sequential evaluation. (Tr. 16-29.) Specifically, the ALJ determined that A.S.M. had not engaged in substantial gainful activity since November 21, 2012, the application date. (Tr. 14.) He found that A.S.M. had severe impairments of speech and language delay, learning disorder, borderline intellectual functioning, unspecified neurodevelopmental disorder, and supraventricular tachycardia. (Id.) The ALJ determined, however, that A.S.M.'s impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 15.) As a result, the ALJ proceeded to step three and found that A.S.M. did not have an impairment or combination of impairments that functionally equals the severity of the listings. (Tr. 16-29.) Specifically, the ALJ determined that A.S.M. had a marked limitation in acquiring and using information, a less than marked limitation in attending and completing tasks, a less than marked limitation in interacting and relating with others, no significant limitation in moving about and manipulating objects, no significant limitation in caring for herself, and a less than marked limitation in health and physical well-being. (Id.)

         On appeal, Plaintiff argues that ALJ Upshall (1) erred in his determination that A.S.M. had only a marked limitation in Acquiring and Using Information; (2) erred in his determination that A.S.M. had a less than marked limitation in Attending and Completing Tasks; (3) erred in his determination that A.S.M. had a less than marked limitation in Health and Physical Well-Being; (4) erred in evaluating treating physician Joann Marie Ray, D.O.'s opinion in assessing the functional domains at issue; and (5) failed to compare A.S.M. to non-disabled children pursuant to SSR 09-2p. (Doc. 26 at 5-21.) For the reasons discussed below, the Court finds there is no reversible error.

         A. Relevant Evidence

         1. Standardized Testing

         As a second grader, A.S.M. was referred for a Multidisciplinary Evaluation through the Las Cruces Public Schools to determine aspects of her intellectual, academic, and social/emotional functioning in order to identify an appropriate educational environment for her. (Tr. 354.) A.S.M.'s mother was concerned that A.S.M. may be dyslexic. (Id.) On October 15-16, 2012, Certified Educational Diagnostician Barbara Lewis administered several standardized tests, including the Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV); Test of Visual Perceptual Skills, 3rd Edition (TVPS-3); Comprehensive Test of Phonological Processing (CTOPP); Rapid Automatized Naming and Rapid Alternating Stimulus Tests (RAN/RAS); The Phonological Awareness Test 2 (PAT-2); and the Wechsler Individual Achievement Test - Third Edition (WIAT-III). (Tr. 358-73.) Ms. Lewis also reviewed Teacher Rating Forms prepared by A.S.M.'s first grade classroom teacher associated with the Behavioral & Emotional Screening Systems (BASC Screener), a test designed to determine behavioral and emotional strengths and weakness of school age children; and the Learning Disabilities Evaluation Scale, Revised Second Edition (LDES-R2), a test that measures a child's skills in the domains of listening, thinking, speaking, reading, writing, spelling, and math calculations within the classroom setting. (Tr. 355, 358, 363-64.) Speech-Language Pathologist Catherine S. Pitts administered other standardized tests specifically related to speech and language, including the Test of Language Development-Primary, Fourth Edition (TOLD-P-4); Clinical Evaluation of Language Fundamentals - Fourth Edition (CELF-4); and Comprehensive Assessment of Spoken Language (CASL). (Tr. 375-81.)

         On November 2, 2012, the Multidisciplinary Evaluation Team Report summarized A.S.M.'s test performance as follows:

Psycho-Educational Evaluation Report Summary:
The current evaluation indicated general cognitive ability to be in the average range with a standard score of 93; as measured by the WISC-IV VCI. [A.S.M.'s] index scores suggest that her verbal reasoning abilities are better developed than her nonverbal reasoning abilities.[3] The LDES and BASC Screeners were completed by Ms. Baca, [A.S.M.'s] first grade teacher. The results indicated that [A.S.M.] is not at-risk for a possible emotional disturbance, but is performing below her peers in all academic areas.[4] The TVPS-3 (Test of Visual Perceptual Skills, 3rd Edition) was administered to measure visual-perceptual abilities. The TVPS-3 indicated difficulty in [A.S.M.'s] visual-perceptual skills. It would be expected that she would have difficulty in reading.[5] The CTOPP (Comprehensive Test of Phonological Processing) and PAT-2 (Phonological Awareness Test 2) was administered to measure [A.S.M.'s] phonetic knowledge. She demonstrated difficulty in her vowels, digraphs, diphthongs, and in R-controlled vowels. The CTOPP results indicated Average to Below Average for [A.S.M.'s] awareness and memory of the phonemes respectively. The RAN/RAS (Rapid Automatized Naming and Rapid Alternating Stimulus Tests) was administered to measure [A.S.M.'s] rapid naming. The results indicated average performance. The WIAT-III was administered to measure [A.S.M.'s] academic achievement. The results indicated Below Average performance in reading, math, and written language. She demonstrated average abilities in her early reading skills and in solving equations. [A.S.M.] demonstrated difficulty in reading words in isolation, reading fluently, answering comprehension questions, solving word problems, writing complete sentences, and in spelling.[6]
Speech/Language Evaluation Report Summary:
[A.S.M.'s] Core Language Score of 72 on the CELF-4 places her in the “low” range of functioning; when the Standard Error of Measure of 3.0 is considered, the score range is 69-75, which is a qualifying score. The other index scores on the CELF-4 also place her greater than 2.0 standard deviations below the mean. Her index score of 64 on the Speaking Composite of the TOLD-P: 4 is 2.4 standard deviations below the mean; this provides a second qualifying score. Additionally, on the CASL, [A.S.M.] demonstrated significant difficulty on the following subtests: Antonyms: SS-72 (SEM=67-77), Syntax Construction SS-68 (2.13 standard deviations below the mean), and Pragmatic Judgment SS-73 (SEM=68.3-77.7). These scores further substantiate a pattern of difficulty with oral language skills. An informal language sample revealed that [A.S.M.'s] oral language difficulties have a mild negative impact [on] the area of conversational discourse.

(Tr. 355.) Based on A.S.M.'s test scores, she was eligible for special education as a child with a disability in the categories of reading, written language, and language. (Tr. 382-87, 388.)

         On November 3, 2015, the Multidisciplinary Team reevaluated A.S.M. as a fifth grader. Their report indicated that A.S.M.'s Special Education teacher rated her current level of functioning and method of evaluation as:

Reading:

Fluency: at grade level and Comprehension: 4.0 grade level; Brigance, [7] STAR, [8] and daily performance

Math:

3.5 grade level; Brigance, STAR and daily performance

Written Language:

3.5 grade level; writing samples

(Tr. 680.) Ms. Lewis administered standardized tests, including the Differential Ability Scales-Second Edition;[9] and the Kaufman Test of Educational Achievement, Third Edition.[10] (Tr. 681-85.) Speech-Language Pathologist Giselle M. Gallegos administered the Clinical Evaluation of Language Fundamentals, 5th Edition. (Tr. 691-95.) The Multidisciplinary Team Report summarized A.S.M.'s test performance as follows:

Psycho-Educational Evaluation Report Summary:
Cognitive: [A.S.M.'s] cognitive ability was in the Low range with a standard score of 74; as measured by the DAS-II. Based on [A.S.M.'s] previous and current cognitive it appears that her cognitive ability is not likely to be in the average range of functioning, and, therefore, learning may be challenging, as ability weaknesses constrain learning and achievement.
Achievement: [A.S.M.'s] academic achievement fell in the below average range for reading (SS=81), math (SS=75), and written language (SS=81). She demonstrated difficulty in reading comprehension, solving equations that required regrouping, double-digit multiplication, division, fractions, solving word problems, and writing complex sentences and essay using correct capitalization and punctuation.
Speech/Language Evaluation Report Summary:
[A.S.M.'s] speech, intelligibility, fluency and voice were informally observed and deemed within the average range as compared to her chronological age. The CELF 4 Observational Rating Scale indicated that [A.S.M.] was demonstrating some degree of difficulty in areas of language including listening and speaking with increased difficulty in the areas of reading and writing. The CELF 5 yielded a Core Language Standard Score of 76 with an SEM of 5 yielding a range from 70-80, this placed her in the “Low Range/Moderate” range. The Language Analysis demonstrates [A.S.M.'s] occasional difficulties in the following areas of Turn Taking, use of Nonspecific Vocabulary and Revision behaviors. [A.S.M.'s] language deficits may continue to impact her ability to receive, process, and respond to information across curriculum areas. Test results and teacher ratings indicate she has difficulty with comprehension, reading, and writing. Language difficulties also significantly impact [A.S.M.'s] ability to express thoughts, ideas and specific knowledge, and to communicate with both peers and adults in the educational setting.[11]

(Tr. 685-86.) Based on A.S.M.'s test scores at her three-year reevaluation, she remained eligible for special education as a child with a disability in the categories of reading, written language, math, and language. (Tr. 696-710.)

         2. Individualized Education Programs

         Individualized Education Programs (“IEPs”) were prepared on A.S.M.'s behalf for second, third, fourth and fifth grades. (Tr. 280-305, 388-403, 535-42, 696-723.) The IEPs established annual goals in the areas of reading, written language, math and oral language, and documented A.S.M.'s progress from year to year. (Id., 260-67, 715-23.)

         On December 10, 2012, A.S.M.'s first IEP set annual goals and benchmarks. (Tr. 538-39.) Those goals included, inter alia, knowing and applying grade-level phonics and word analysis skills in decoding words; reading with sufficient accuracy and fluency to support comprehension; blending and unbending most CVC words and identifying IMF sounds; demonstrating command of the conventions of standard English grammar and usage when writing (and speaking); demonstrating command of the conventions of capitalization, punctuation and spelling when writing simple sentences; working in math with time and money identification and solving of word problems; verbally produce grammatically correct complete sentences; increase correct use of descriptive vocabulary (to describe people, things, and events with relevant detail). (Id.)

         On January 10, 2014, an IEP Progress Report[12] indicated that A.S.M., as a third grader, “was able to blend and unblend most CVC words and identify IMF sounds 9/10 Fry words, ” read most high-frequency and irregularly spelled words (180/200), and placed 3.3 on the grade placement Brigance test. (Tr. 259.) A.S.M. could write about one full paragraph with 60% proper grammar, punctuation, and capitalization. (Tr. 261.) A.S.M. scored 35% on one- and two-step word problems; 70% on adding and subtracting with regrouping; and scored 95% on multiplying and dividing with 1s, 2s, 5s and 10s, and 60% on multiplying and dividing with 3s, 4s, 6s, 7s, 8s, and 9s. (Tr. 263.) A.S.M. scored 71% on answering questions related to the main ideas and supporting details of a text read aloud; and produced grammatically correct sentences when given a picture cue with 100% accuracy. (Tr. 265.)

         On January 13, 2015, an IEP Progress Report[13] indicated that A.S.M.'s reading fluency, as a fourth grader, had increased with oral reading practice, but that her comprehension was behind.[14] (Tr. 299.) A.S.M.'s writing samples included sufficient detail, and she was nearing proficiency; however, it was noted she needed to use pre-writing organization and editing to write final drafts with fewer grammatical and spelling errors. (Tr. 301.) A.S.M.'s STAR Math score was at ¶ 2.3 grade equivalence, and it was noted she had made progress with adding and subtracting with regrouping, but needed further practice with multiplication facts and with learning the correct operation to use with multi-step problems. (Tr. 303.) A.S.M.'s progress in language was not documented on January 13, 2015, but a March 30, 2015, report indicated that A.S.M. scored 80% in verbal reasoning skills including sequencing, making predictions, problem solving, and inferencing. (Tr. 304.) She scored 100% on understanding and producing grammatically correct sentences using regular past tense verbs and irregular plural nouns, and 86% using irregular past tense verbs. (Id.) A.S.M. scored 60% in her understanding and use of synonyms or antonyms; 50% in stating synonyms of target words; 75% using context clues; 80% matching words to the appropriate definitions; and 60% using idioms. (Tr. 305.)

         On November 3, 2015, as a fifth grader, A.S.M.'s IEP[15] described her present levels of academic achievement and functional performance as follows:

Reading
[A.S.M.] can read an average of 135 words per minute on grade level text. [A.S.M.] has taken 14 AR tests over books that she had read this school year and averages just 35% proficiency on them. She averages 80% proficiency over literal comprehension questions on 4th grade level passages, and 60% on 5th grade level passages. She averages around 33% on inferential questions. [A.S.M.'s] vocabulary skills are just above a 3.0 grade level.
Written Language
[A.S.M.'s] writing can be easily understood, even though it contains several errors in spelling, punctuation. She spells 4th grade words with 80% accuracy, and 5th grade words with 25% accuracy. When [A.S.M.] starts writing, she writes in complete thoughts with punctuation. However, as she continues to write and put her thoughts on paper, she stops writing in complete thoughts and creates run-on sentences containing little to no punctuation. She does a pretty good job of adding details when she wants to, but she doesn't usually like to write much and develop her thoughts. When [A.S.M.] writes narratives, she does [] not use dialogue at all to enhance and develop the story.
Math
[A.S.M.] knows around 33% of multiplication facts. She can add and subtract numbers containing decimals with a high proficiency, but she occasionally makes regrouping mistakes. She has a difficult time reading, comparing, multiplying, and dividing decimals. [A.S.M.] multiplies two multi-digit numbers containing decimals with 66% accuracy, and divides by a double-digit divisor with and without a decimal with less than 25% accuracy. [A.S.M.] can recognize a basic fraction and add and subtract two fractions with common denominators. She simplifies fractions with less than 50% accuracy and adds and subtracts two fractions with uncommon denominators with less than 33% accuracy.
Oral Language
Updated: 11/2/2015 as per current reevaluation results on CELF-5. [A.S.M.] was administered 8 subtests, which yielded 8 subtest scaled scores. Subtest scaled scores are considered average when they fall in the range of 7-13. [A.S.M.] scored within the average range on 5 out of 8 subtest scaled scores. . . . Subtest results indicate weakness in the areas of word classes, sentence assembly, and semantic relationships. Her strengths appear to be with following word definitions and formulating sentences.

(Tr. 701-702.)

         3. Teacher Questionnaires

         Teacher Questionnaires were completed in 2013 and 2016 regarding A.S.M.'s functioning in the six domain areas.[16]

         a. Ray Banegas, Third Grade Teacher, Six Months, 6.5 Hours/Day Monday through Friday

         On February 5, 2013, Ray Banegas completed a Teacher Questionnaire on behalf of A.S.M. (Tr. 174-81.)

         (1) Acquiring and Using Information

         In the area of acquiring and using information, Mr. Banegas rated A.S.M. as having a slight problem in the area of understanding and participating in class discussions. (Tr. 175.) He rated A.S.M. as having an obvious problem in the area of providing organized oral explanations and adequate descriptions. (Id.) He rated A.S.M. as having serious problems in the areas of (1) understanding school and content vocabulary; (2) reading and comprehending written material; (3) learning new material; (4) recalling and applying previously learned material; and (5) applying problem-solving skills in class discussions. (Id.) He rated A.S.M. as having very serious problems in the areas of (1) comprehending and doing math problems; and (2) expressing ideas in written form. (Id.) Mr. Banegas commented that A.S.M. needs lots of 1-1 help in the areas of reading and math. (Id.)

         (2) Attending and Completing Tasks

         In the area of attending and completing tasks, Mr. Banegas rated A.S.M. as having no problems in the areas of (1) sustaining attention during play/sports activities; (2) carrying out single-step instructions; (3) waiting to take turns; (4) organizing own things or school materials; and (5) completing class/homework assignments. (Tr. 176.) He rated A.S.M. as having a slight problem in the area of working at a reasonable pace and finishing on time. (Id.) He rated A.S.M. as having obvious problems with (1) paying attention when spoken to directly; (2) focusing long enough to finish assigned activity or tasks; (3) refocusing to task when necessary; and (4) carrying out multi-step instructions. (Id.) He rated A.S.M. as having serious problems with (1) changing from one activity to another without being disruptive; and (2) completing work accurately without careless mistakes. (Id.) Finally, he rated A.S.M. as having a very serious problem with working without distracting self or others. (Id.) Mr. Banegas noted that A.S.M. needed to focus on her own tasks and not the tasks of others. (Id.)

         (3) Health and Physical Well-Being

         In the area of health and physical well-being, Mr. Banegas noted that A.S.M. wears glasses, takes no prescribed medications on a regular basis, and that A.S.M. does not frequently miss school due to illness. (Tr. 180.)

         b. Heather Hodges, Fourth Grade Teacher, Four Months, Daily

         On December 20, 2013, Heather Hodges completed a Teacher Questionnaire on behalf of A.S.M. (Tr. 227-34.)

         (1) Acquiring and Using Information

         In the area of acquiring and using information, Ms. Hodges rated A.S.M. as having slight problems in the areas of (1) understanding and participating in class discussions; and (2) recalling and applying previously learned material. (Tr. 228.) She rated A.S.M. as having obvious problems in the areas of (1) comprehending oral instructions; (2) understanding school and content vocabulary; (3) reading and comprehending written material; (4) comprehending and doing math problems; and (5) learning new material. (Id.) She rated A.S.M. as having serious problems in the areas of (1) providing organized oral explanations and adequate descriptions; (2) expressing ideas in written form; and (3) applying problem-solving skills in class discussions. (Id.) Ms. Hodges commented that A.S.M. receives support in reading, math and written language in a pull-out, small group setting, and that in class she needs additional support. (Id.) Ms. Hodges further commented that A.S.M. participates well and uses her time wisely. (Id.)

         (2) Attending and ...


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