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Burks v. Astrue

September 9, 2008

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



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION and ORDER

INTRODUCTION

Siragusa, J. Plaintiff Kim Burks ("Plaintiff"), brings this action pursuant to the Social Security Act, (codified in relevant parts at 42 U.S.C. § 401 et. seq. and 42 U.S.C. § 1381 et. seq.) claiming that the Commissioner of Social Security ("Commissioner") improperly denied her application for disability benefits. Specifically, Plaintiff alleges that the decision of an Administrative Law Judge ("ALJ"), which denied benefits to her minor son, J.K., under Title XVI of the Social Security Act, was erroneous and not supported by the substantial evidence contained in the record, or was contrary to law.

The Commissioner now moves for judgment on the pleadings and argues that the ALJ'S decision was correct, was supported by substantial evidence, and was made in accordance with applicable law. Plaintiff opposes the Commissioner's motion and has cross-moved for judgment on the pleadings. For the reasons stated below, the Commissioner's motion for judgment on the pleadings is denied, Plaintiff's motion is granted, and this matter is remanded to the Commissioner for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

PROCEDURAL BACKGROUND

By application dated December 20, 2001, Plaintiff applied for Supplemental Security Income ("SSI") benefits on behalf of her son, J.K. (Record at 53-54.) Plaintiff alleged that J.K.'s disability began on June 14, 2000. (Record at 53.) The Social Security Administration ("SSA")denied the application on April 1, 2002. (Record at 30-33.) Plaintiff filed a timely request for reconsideration on November 7, 2006, which was denied. On April 19, 2002, Plaintiff requested a hearing before an ALJ. (Record at 34-36.) The hearing was held in Rochester, New York, on May 4, 2004, before Administrative Law Judge Bruce R. Mazzarella. Plaintiff was represented at the hearing by Michael L. Bonsor, Esq., an attorney with the Public Interest Law Office of Rochester. (Record at 15.) Both Plaintiff and J.K. testified at the hearing. On June 4, 2004, the ALJ issued a decision finding that J.K. was not disabled. (Record at 15-26.) Plaintiff requested that the Appeals Council review the decision. (Record at 11.) However, on January 26, 2007,the Appeals Council denied the request. (Record at 5-8.)

On March 26, 2007, Plaintiff commenced the instant action. On February 15, 2008, Commissioner filed his application for judgment on the pleadings (Docket No. 7.) On May 2, 2008, Plaintiff filed her cross-motion for judgment on the pleadings (Docket No. 11.) On July 10, 2008,counsel for the parties appeared before the undersigned for oral argument.

FACTUAL BACKGROUND

Medical Evidence

On June 14, 2000, seven-year-old J.K. was struck by a speeding car while he was walking home from school. He reportedly was unconscious for 10-15 minutes following the accident and was taken to Rochester General Hospital by ambulance where a CT scan revealed a possible neck injury. J.K. was transferred to Strong Memorial Hospital Pediatric Unit and stayed overnight for two days. He was attended by his primary care pediatrician, Dr. Mary Coan. While hospitalized, J.K. was noted to be sensitive and teary, lethargic, and could not remember how to do simple tasks, such as turn on a computer. Subsequently, his mother reported changes in his behavior, such as taking naps in the afternoon, forgetfulness, irritable behavior and acting increasingly disrespectful. (Record at 270-76.)

Dr. Coan, who remained J.K.'s pediatrician until April 2002, at various times, prescribed Amantadine, Bromocriptine, Concerta and Ritalin. (Record at 253-56.) She noted J.K. looked well and acted appropriately, despite having cognitive/behavioral defects. (Record at 236.)

Michael A. Baer, Ph.D., examined J.K. in August 2000 for a neuropsychological evaluation. Dr. Baer administered a variety of tests including the Child Trail-Making Test, Aphasia Test, Hooper Visual Organizational Test, Bender Gestalt Visual Motor Test and Tactile Form Board, Digit Symbol, Smith Modality Digit Symbol Test, and the House-Tree-Person Technique. Dr. Baer observed that J.K. was frustrated, lashed out, and tended to be somewhat explosive and impulsive. Based on his testing, Dr. Baer concluded that J.K. had a mild impairment in general learning abilities, although his cognitive impairment would most likely subside in time. (Record at 270-76.)

Dr. John G. Schmidt, a neurologist at the Unity Health System Comprehensive Rehabilitation Center, evaluated J.K. on November 9, 2000 for difficulties with concentration, attention, and a tendency toward teasing other children, sometimes hurtfully. J.K. had recently been prescribed Ritalin by Dr. Coan, and was not on any other medication. A Child's Orientation and Amnesia Test was performed and revealed subtle signs of cognitive defects. Dr. Schmidt diagnosed J.K. as having mild to moderate Traumatic Brain Injury (TBI) with cognitive/behavioral defects. (Record at 243.)

On February 26, 2001, Dr. Schmidt examined J.K. again and considering Dr. Baer's report, recommended a change in medication and cognitive rehabilitation. An MRI was scheduled for J.K. because of a newly discovered "bony protrusion" on the back part of his skull. (Record at 240.)

On March 18, 2001, Dr. Schmidt replaced the Amantadine with Ritalin again because of an allergic reaction. The bony protrusions had decreased, but had not disappeared completely. Dr. Schmidt strongly encouraged Plaintiff to get help from the school, including speech therapy and other services. (Record at 239.)

On December 21, 2001, Dr. Schmidt noted that J.K. appeared to be "struggling with academics and peers and had great difficulty focusing on instruction and completing independent work. His impulsivity [led] to difficulty and unsafe situations." (Record at 238.) Dr. Schmidt referred J.K. for another examination by Dr. Baer and to attend speech therapy.

Christine Ransom, Ph.D., performed a consultative psychiatric examination on J.K. on February 15, 2002. (Record at 225-29; 230-33.) Dr. Ransom administered the Wechsler Intelligence Scale for Children-Third Edition (WISC-III). J.K. scored in the average performance functioning range and his verbal functioning was at the high end of the borderline range. (Record at 226-27.) Dr. Ransom assessed that J.K. could follow and understand age-appropriate directions, complete age-appropriate tasks and maintain appropriate social behavior. (Record at 233.) He could also respond appropriately to changes in the environment, learn in accordance with his cognitive functioning, ask questions, request assistance in an age-appropriate manner, and interact adequately with adults and peers. Dr. Ransom concluded that J.K. had only verbal learning difficulties and his ADHD*fn1 was in remission with medication. (Record at 233.)

On February 4, 2002, Speech pathologist Thomas D. House evaluated J.K. in class and administered various language tests. Dr. House noted that claimant followed instructions, but needed more time to process responses to questions. He concluded that J.K. had mild to moderate deficits in receptive and expressive language skills and recommended continued language services. Dr. House recommended that J.K. undergo speech and language services twice a week. (Record at 200.)

On February 18, 2002, Plaintiff and J.K. visited Dr. Schmidt and reported that J.K.'s grades were improving, but still were poor. He was doing well in 1:1 speech therapy, and, while on his medication, his behavior was improved, although he was missing classes by hiding in the bathroom. J.K. was to begin the Medical Management and Assistive Technology for Education of Children (MATCH) program for his TBI and gradually cease speech therapy. (Record at 236.)

Also in February 2002, Sarah White, a certified school psychologist, examined J.K. at Plaintiff's request. (Record at 220 - 25.) Dr. White administered the Woodcock Johnson III tests of Cognitive Ability and of Cognitive Achievement and concluded that J.K. demonstrated average cognitive ability with academic ability in the low average to average range. (Record at 221.) And while she acknowledged that J.K.'s classroom performance differed significantly from the results of the evaluation, she attributed this disparity to weakness in auditory processing and slower left brain functioning as a result of his accident. (Record at 222.)

Dr. Paulette Harar, a State agency non-examining pediatric consultant, reviewed the record on March 20, 2002, and concluded that J.K. did not have an impairment which met or equaled a Listed impairment. (Record at 246; see Record at 277.) She also found that J.K. did not have an impairment or combination of impairments that functionally equaled the Listing. (Record at 246-47.)

J.K. was again examined by Dr. Baer on February 14, 2003. Dr. Baer noted that J.K. had a mild-to-moderate head injury and was unlikely to improve. (Record at 269.) Subsequently, on an April 3, 2003 visit, Dr. Baer indicated that, since an incident where J.K. was ...


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