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SOLANO v. BARNHART

July 15, 2004.

JOANNA SOLANO o/b/o, EBONY V. JERNIGAN Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE BARBARA S. JONES, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Joanna Solano ("Solano") brings this action on behalf of her infant daughter, Ebony V. Jernigan ("Jernigan" or "plaintiff"), pursuant to 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's application for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.*fn1 The Commissioner has moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

  For the reasons set forth below, I recommend that the defendant's motion be granted.

  II. BACKGROUND

  Procedural History

  On May 23, 2000, Solano filed an application for SSI benefits, in which she alleged that Jernigan was born disabled by right Erb's Palsy.*fn2 (Tr. 12).*fn3 The application was denied initially on July 12, 2000, and upon reconsideration on August 23, 2000. (Tr. 33-34). Solano then requested a de novo hearing before an Administrative Law Judge ("ALJ"), and appeared, without counsel, before ALJ Kenneth Scheer on March 28, 2001. (Tr. 10). On June 20, 2001, ALJ Scheer (hereafter "the ALJ") issued a decision finding that the plaintiff was not entitled to SSI benefits because she was not disabled within the meaning of the Social Security Act. (Tr. 16). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the plaintiff's request for review on November 16, 2001. (Tr. 3-4). See 42 U.S.C. § 405(h). Thereafter, Solano filed the instant complaint seeking review of the Commissioner's decision. Although Solano received notice of the defendant's motion for judgment on the pleadings, she has not filed any response to that motion.

  Factual Background

  1. Non-Medical Evidence The plaintiff was born on March 22, 2000, and was approximately one year old at the time of the March 28, 2001 hearing. (Tr. 33-34). At the hearing, Solano testified that the plaintiff was born with a brachial plexus*fn4 injury that impaired the plaintiff's ability to use her right hand and shoulder and caused her to limp. (Tr. 23-24, 26). Solano reported that the plaintiff had worn a splint and cast on her right arm for six months, although she no longer wore it at the time of the hearing. (Tr. 30). Solano stated that the plaintiff was left handed. Although the plaintiff does attempt to use her right hand, it has little strength, according to Solano. (Tr. 27). Solano stated that she enrolled the plaintiff in an early intervention program at Saint Mary's Hospital ("St. Mary's") in June or July of 2000. (Tr. 24). Occupational therapists from the early intervention program visited the plaintiff at her home twice per week and worked to improve the plaintiff's range of motion on her right side. (Tr. 25). St. Mary's also provided the services of a special educator, who worked with Jernigan twice per week to improve her motor skills. (Tr. 25). Solano stated that the plaintiff's condition had improved since she began therapy and that the plaintiff was using her right hand more often. (Tr. 29-30). Solano testified that the plaintiff was bright and alert, did not take medication on a regular basis, recognized people and noises, liked music, and was a happy baby. (Tr. 26).

  b. Medical Evidence

  Jernigan's medical records indicate that she was examined at New York Medical College by Dr. Deborah L. Benzil in April, May, August and October of 2000. (Tr. 57, 111-13). On May 23, 2000, Dr. Benzil examined Jernigan and reported that the plaintiff, then two months old, had been receiving therapy at home for a right brachial plexus injury and had been using her right arm more than she had earlier. (Tr. 111). The report noted that the plaintiff's parents had no new complaints about her medical condition and that there had been no substantial changes in her condition since her previous visit. (Id.). Dr. Benzil reported that the plaintiff was active, awake, and alert, and had: 1) a symmetrical face; 2) good suck, root, and gag reflexes; 3) a deltoid strength of four out of five, a bicep strength of three or four out of five, and a tricep strength of three out of five; 4) strong finger extension, finger flexion, and thumb movement; 5) no obvious scapular*fn5 winging; 6) sensation throughout her right hand; 7) a splint on her right extremity; 8) no joint deformities; 9) toes that remained up going bilaterally; 10) an excellent range of motion; 11) strength in nearly all muscle groups; and 12) a below average wrist extensor strength of two out of five. According to Dr. Benzil, Jernigan's recovery from her brachial plexus injury had progressed significantly, and she might, in time, make a complete or nearly complete recovery. Dr. Benzil considered it unlikely that the plaintiff would require surgery. (Id.).

  On August 22, 2000, Dr. Benzil again examined the plaintiff. (Tr. 112). Dr. Benzil noted that Jernigan's right arm was somewhat shorter than her left arm. (Id.). It was reported that the plaintiff was receiving physical and occupational therapy and was exercising at home. Dr. Benzil stated that the plaintiff was a very playful and active child. (Id.). The plaintiff reportedly smiled, fixed and followed very well. Dr. Benzil indicated that Jernigan had excellent head control and appeared to be meeting her developmental milestones. (Id.). Except for her right upper extremity, the plaintiff was reported to be neurologically intact. Dr. Benzil stated that there was evidence of scapular winging, although the plaintiff had no infra or supra spinates wasting. (Id.). On the right side, the plaintiff had a deltoid strength of three to four-minus out of five, a tricep strength of three to four-minus out of five, and a bicep strength of three out of five. Dr. Benzil reported that Jernigan had excellent wrist and finger activity and that her sensation appeared to be grossly intact throughout. (Id.). It was reported that the plaintiff had made some progress since her visit in May of 2000. Dr. Benzil noted that Jernigan still had a lag, evidenced by scapular winging. (Id.). Dr. Benzil scheduled another examination of the plaintiff two months hence, to determine whether the infant had root avulsion.*fn6 (Id.).

  On October 24, 2000, Dr. Benzil conducted another examination of the plaintiff, who was then seven months old. (Tr. 113). She reported that the plaintiff continued to be a playful and active child who smiled, fixed and followed well. Dr. Benzil stated that the plaintiff rolled over from front to back, pushed up on her forearm and continued to meet her developmental milestones. (Id.). It was reported that Jernigan was intact, except for her right upper extremity. Dr. Benzil reported mild scapular winging, but no infra or supra spinates wasting. (Id.). The plaintiff reportedly had a deltoid strength of at least four out of five, a tricep strength of at least four-minus to four out of five, and a bicep strength of four to four-plus out of five. Dr. Benzil stated that the plaintiff's wrist and finger activity was virtually normal and that she had good sensation throughout. It was noted that the developmental delay that the plaintiff exhibited in her previous visit was "resolved." (Id.) Dr. Benzil reported that the plaintiff had ...


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