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Dyer v. Astrue

August 5, 2008

YVONNE DYER O/B/O K.O. PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Yvonne Dyer, on behalf of her minor child, Khalid Owens ("K.O." or "claimant"), brings this action pursuant to Title XVI of the Social Security Act ("Act"), codified at 42 U.S.C. § 405(g) claiming that the Commissioner of Social Security ("Commissioner") improperly denied her application for child Social Security Income ("SSI") benefits. Plaintiff, Yvonne Dyer ("plaintiff") has appeared pro se throughout these proceedings. Essentially, the plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") who heard her case and denied her application on behalf of her son was erroneous because it was not supported by the substantial evidence contained in the record.

The Commissioner moves for judgment on the pleadings on grounds that the ALJ's decision was correct, was supported by substantial evidence, and was made in accordance with applicable law.

PROCEDURAL HISTORY

In a decision dated September 23, 2005, the ALJ determined that the plaintiff, on behalf of her son K.O., is not eligible to receive Child Supplemental Security Income payments pursuant to § 1614(a)(3)(C) of the Social Security Act because the child is not under a disability as defined in the Act.

On April 26, 2005, ALJ Randall W. Moon sent plaintiff information about obtaining legal counsel for her upcoming hearing. (Tr. 33-34.) Plaintiff appeared pro se at a hearing on June 10, 2005, and ALJ Moon advised her of her right to representation. (Tr. 188-99.) The hearing was closed to afford the plaintiff the opportunity to obtain counsel. (Tr. 188-99.) On September 15, 2005, ALJ Slahta held a hearing at which plaintiff and Khalid Owens (K.O.) appeared and testified without the assistance of counsel or other representative. (Tr. 200-15.)

On February 16, 2006, the Appeals Council denied plaintiff's request for review. (Tr. 9-11.) On April 12, 2006, plaintiff submitted new evidence to the Appeals Council and on July 7, 2006, the Appeals Council again denied plaintiff's request for review and this action followed.

BACKGROUND

The claimant was born on July 24, 1997 and as of the date of the hearing on September 15, 2005, he was enrolled in the 3rd grade. The claimant's mother alleges that her son became disabled on July 24, 1997 due to speech and language delays and attention deficit/hyperactivity disorder. At the hearing, plaintiff testified that K.O. had undergone speech and language testing in May 2004 and had also received speech therapy. She also testified that she was not sure if K.O. was still receiving speech therapy. (Tr. 212.)

The ALJ, in determining whether or not the child was disabled, followed the three step sequential evaluation pursuant to 20 C.F.R. § 416.924. First, he determined the child was not engaged in any substantial gainful activity. Second, he determined that the claimant has speech and language delays and attention deficit/hyperactivity disorder which are "severe" within the meaning of 20 C.F.R. § 416.924(c) and SSR 96-3p and 85-28 because the claimant has more than slight abnormalities and more than minimal functional limitations. Following the opinion of the State agency medical examiner (Tr. 128-135), the ALJ found that the claimant's impairments do not meet or medically equal the criteria of any of the listed impairments of Appendix 1, Subpart P, Regulation No. 4. He also found that the claimant's developmental and language delays do not meet the requirements of § 112.12 of Appendix 1 and that the claimant's attention deficit/hyperactivity disorder does not satisfy the requirements of § 112.11 of Appendix 1. He found that the reports from the treating mental health center (Tr. 93-113) failed to establish that claimant's condition results in marked inattention, marked impulsiveness, and marked hyperactivity.

The process then required the ALJ to determine whether the claimant's impairments result in limitations that functionally equal the listings (20 C.F.R. § 416.926(a)). In doing so, the ALJ considered all the relevant factors in §§ 416.924(a), 416.924(b), and 416.929.

Section 416.926A(b) provides that in considering the claimant's functioning, the ALJ is to consider how the claimant functions in his ...


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