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April 21, 2005.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Laura Taylor Swain, United States District Judge:

Pro se plaintiff Darcel Morgan brings this action on behalf of her minor child, Zanique Morgan, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Zanique Morgan SSI benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 9: Motion; see also Dkt. No. 10: Gov't Br.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED. PROCEDURAL BACKGROUND

  On April 24, 2001, Darcel Morgan, on behalf of her then six year old daughter Zanique,*fn1 filed an application for Social Security Supplemental Security Income ("SSI") benefits based upon a claim of attention deficit hyperactivity disorder ("ADHD"). (See Dkt. No. 8: Administrative Record filed by the Commissioner ["R."] 52-74.) The application was denied on December 4, 2001. (R. 26-30.) At Darcel's request (see R. 31), a hearing was held before an administrative law judge ("ALJ") on March 13, 2003. (R. 235-53.) On April 23, 2003, the ALJ issued his decision finding that Zanique was not disabled. (R. 17-25.) Darcel sought Appeals Council review on October 28, 2003.*fn2 (R. 13-16.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied the request for review on April 16, 2004. (R. 5-7.) This action, brought by Darcel pro se, followed. (Dkt. No. 2: Compl.)

  The issue before the Court is whether the Commissioner's decision that Zanique was not disabled is supported by substantial evidence. FACTS

  The Hearing Before the ALJ

  On March 13, 2003, the ALJ held a hearing on the Morgans' SSI application. (R. 235-53.) Present at the hearing were Darcel and her daughter Zanique. (R. 235.) Although notified of their right to representation, the Morgans proceeded without counsel at the ALJ hearing. (R. 237.) At the time of the hearing, Zanique was eight years old and in the second grade. (R. 239.) She was never left back. (R. 239.)

  Darcel Morgan's Testimony

  Darcel Morgan testified that Zanique had been placed in special education "[b]ecause of her emotional, disruptive, bad behavior, hitting on the children, [and] disrespecting the teachers." (R. 239.) Just prior to the hearing, Zanique began attending weekly psychiatric counseling sessions. (R. 239-40, 242-43.) Zanique also was receiving treatment with a counselor at her school, since she started at the school in September 2002. (R. 243.)

  Darcel stated that her daughter has trouble with reading comprehension, and that Zanique sometimes has to read something two or three times before she understands it. (R. 244.) With regard to Zanique's in-school performance, Darcel testified that "she has her good days, she has her bad [days]." (R. 245.) When it comes to doing homework, "[y]ou have to stay on her because she [is] easily distracted." (Id.) Darcel said that Zanique is able to focus on tasks if she wants to, but if she is not willing, "she'll just shut down." (Id.)

  Darcel testified that Zanique has trouble with social interaction with children and adults. (R. 245.) From her observations of Zanique interacting with children, Darcel described Zanique as "very controlling" and "bossy." (R. 246.) Darcel also reported that Zanique hit other children. (Id.) Darcel and Zanique mostly "get along" but Zanique "has her moments." (Id.) Zanique is an only child and her father is not part of the household. (Id.)

  The ALJ inquired about Zanique's physical condition, and her mother noted that there was no condition requiring present attention. (R. 246-47.) Darcel testified that Zanique had complained of double vision, so they went to a pediatric ophthalmologist, who observed that Zanique had an enlarged pupil, "but it [is] okay now." (R. 247.) Zanique is able to do all the things that eight year olds can normally do. (R. 247.)

  Zanique Morgan's Testimony

  The ALJ next questioned Zanique. (R. 248-52.) Zanique testified to her problems at school. (R. 248.) She explained that "the kids be hitting me," and that "they like to get me in trouble." (Id.) When she told her teacher, sometimes her teacher would not believe her. (Id.) When her mother told the ALJ that she was concerned by Zanique's violent behavior, Zanique admitted to the ALJ that she sometimes hit kids because they "bother" her, and then she gets in trouble when she hits them. (R. 251-52.)

  Zanique tesitifed that she has friends at school, and she named three children that she particularly liked. (R. 249.) The ALJ and Zanique also had effective discourse when discussing her recent ice skating trip. (R. 250-251.)

  Zanique answered correctly to simple academic assessment questions presented by the ALJ. (R. 249.) She knew how to add two plus two and three plus four. (Id.) Zanique spelled her name. (Id.) Zanique submitted a letter to the ALJ, in which she said that she wished she could be at home and not be around other children at school. (R. 233.) Besides wishing that she could have no more homework, play her Game Boy and her CD-player, she wished that she had her own "government." (Id.)

  The Educational Evidence, Medical and Professional Evaluations and Other Evidence Prior to the Claimed Disability (April 24, 2001)

  On March 22, 2000, Zanique was temporarily suspended from her childcare program at Graham-Windham Services to Families and Children ("Graham-Windham") due to "disciplinary problems." (R. 85.) The next day, Zanique was seen by Nancy Glimm, a social worker at Bronx Mental Health Service. (R. 136-40.) Glimm reported Zanique's developmental history to be within normal limits. (R. 137.) Glimm's mental status exam of Zanique described her as cooperative with increased and hyperactive motor activity. (R. 138.) Her speech was normal, she was soft in volume, but her rate was average and her articulation was clear. (Id.) Glimm reported that Zanique's mood was "anxious," and her affect was "constricted." (Id.) Zanique's thought processes were "goal-directed" and "logical." (Id.) Her thought content demonstrated no hallucinations, delusions, suicidal or homicidal ideation. (Id.) Glimm reported that Zanique had a loss of impulse control. (Id.) Regarding Zanique's cognitive function, her memory was intact, and she was oriented to person, place, and time. (Id.) Glimm found Zanique's insight to be limited and her judgment to be poor. (Id.) Her diagnosis was to rule out ADHD and ODD. (R. 139.)

  On March 28, 2000, Glimm wrote a letter noting that Zanique has "poor socialization skills and needs help with peer relationships." (R. 140.) This letter also explained that Zanique had been seen for an initial evaluation, and that other counseling and psychiatric evaluation sessions were scheduled. (Id.) Only after Zanique's mother retained these "special needs services" for Zanique, was she allowed to return to the center on March 29, 2000. (R. 85.)

  On July 26, 2000, a physical examination at Graham-Windham found Zanique to be "physically healthy." (R. 84.)

  Maikel S. Belfor, a clinical social worker at Graham-Windham, noted that on November 17, 2000, Zanique started receiving weekly individual therapy and monthly collateral therapy with her mother and psychiatrist present. (R. 86.)

  Ten days later, in a November 27, 2000 letter, her psychiatrist, Dr. John L. Bolling, noted that after psychiatric evaluation and starting psychotherapy, Zanique "was diagnosed as having ADHD and Disruptive Behavior Disorder." (R. 87.) Noting that Zanique had been expelled from school, Dr. Bolling suggested that she be placed in a "specialized learning environment," which would "provide the milieu that will help her to advance her cognitive and emotional growth." (Id.)

  On December 5, 2000, in a "discharge summary" report, Glimm noted that Zanique had greatly improved her socialization skills since her initial evaluation at Bronx Mental Health Service. (R. 135.) Glimm reported that efforts to use medication were unsuccessful. (Id.) Glimm's final diagnosis was adjustment disorder. (Id.) She noted that Zanique's mother had "transferred her care to another service." (Id.)

  On January 3, 2001, Alice Falkenstein, Zanique's kindergarten teacher, wrote a letter reporting that Zanique had continuing difficulty in "adjusting to classroom rules and regulations." (R. 134.) She described Zanique's attention and active listening skills as poor. (Id.) Falkenstein observed that Zanique had very little self-control, had trouble following directions from adults and difficulty working with other children, and had cried and thrown things. (Id.)

  Starting December 20, 2000 through March, 2001, Zanique was evaluated by the Kennedy Child Study Center. (R. 88.) A January 18, 2001 physical examination by Dr. Mary Z. Gasparik, a medical director at the Kennedy Child Study Center, revealed no abnormalities besides enlarged tonsils and moderate nasal congestion. (R. 91.) Dr. Gasparik's neurological examination sought follow up to "rule out" ADHD and learning disorder. (R. 93.)

  On February 21, 2001, Dr. Yusuf Salim, a child and adolescent psychiatrist at the Kennedy Child Study Center, performed a psychiatric evaluation of Zanique. (R. 94-96.) Dr. Salim reported that Zanique was "a charming and attractive girl," who was "shy but pleasant . . . and was cooperative." (R. 94.) She made satisfactory eye contact. (Id.) Zanique was very fidgety and restless, but otherwise, her motor activity was within normal limits. (R. 96.) Dr. Salim found Zanique's concentration and attention span were poor, but her impulse control was adequate for her age. (Id.) Dr. Salim noted that her speech was soft, clear, and well modulated, and overall he found Zanique's language development was "within normal range." (Id.) Despite her shyness, Dr. Salim reported that Zanique's "affect was full and appropriate." (Id.) He found that her self-esteem was low and that her "[m]ood was tense, generally dysphoric and somewhat angry and irritable." (Id.) Dr. Salim noted that Zanique was quite guarded at first, but he observed that her thought processes were "relevant and logical, with no evidence of a thought disorder." (Id.) Dr. Salim noted that when discussing her behavioral problems, Zanique was somewhat manipulative and minimized her problems by blaming her teacher and fellow students. (Id.) Dr. Salim observed that Zanique "displayed right-left confusion and reversed several letters." (Id.) He also reported that she was unable to read simple words and was unable to write her name neatly and with the appropriate upper and lower case letters. (Id.) Her "[f]igure drawings were immature for [her] age." (Id.) Zanique was "approximately oriented ...

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