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Gomes v. Astrue

July 10, 2009

LYNNEL GOMES, AS NATURAL GUARDIAN ON BEHALF OF CHRISTOPHER G. REINER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Represented by counsel (the Partnership for Children's Rights), plaintiff Lynnel Gomes brings this action on behalf of her minor child, C.R. ("Christopher"), pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("the Commissioner") to deny Christopher Supplemental Security Income benefits. (Dkt. No. 2: Complaint.) The parties have cross-moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 11: Gomes Notice of Motion; Dkt. No. 13: Gov't Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.)

For the reasons set forth below, Gomes' motion for judgment on the pleadings is DENIED and the Commissioner's motion for judgment on the pleadings is GRANTED.

FACTS

Procedural Background

On September 28, 2006, plaintiff Lynnel Gomes, on behalf of her then ten year old son, Christopher, filed an application for Social Security Supplemental Security Income ("SSI") benefits based upon a claim of attention deficit hyperactivity disorder ("ADHD") and speech and language delays. (See Dkt. No. 6: Administrative Record filed by the Commissioner ["R."] 26.) The application was denied on January 29, 2007. (R. 30-33.) At plaintiff's request, an administrative law judge ("ALJ") held a hearing on April 1, 2008. (See R. 35-48, 57-77.) Gomes and Christopher appeared and testified at the hearing, represented by counsel. (R. 50-59.) On April 24, 2008, the ALJ issued his written decision finding that Christopher was not disabled. (R. 4-20.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied review on November 7, 2008. (R. 1-3.)

Hearing Before the ALJ

On April 8, 2008, ALJ Mark Hecht held a hearing on Lynnel Gomes' SSI application.

(R. 57-77.) Prior to the hearing, Gomes' counsel wrote a seven page single spaced letter to the ALJ and enclosed thirteen exhibits for the hearing. (R. 50-56.) Gomes and her son Christopher testified at the hearing, represented by counsel. (R. 50-59.) Christopher was born on November 22, 1996, and was eleven years old and in sixth grade at the time of the hearing. (R. 52, 61, 68, 73.)

Lynell Gomes' Testimony

Lynell Gomes testified that Christopher did not learn to feed himself or walk until he was eighteen months old. (R. 62.) At the time, Gomes did not seek medical help for those issues.

(R. 62.) Gomes testified that when Christopher started first grade, his teacher told her that Christopher had speech and writing problems. (R. 63.) Gomes testified that the Board of Education evaluated Christopher and recommended that he receive speech and language therapy, which was ongoing at the time of the hearing. (R. 63-64.) Gomes had not seen improvement in the five years that Christopher had been receiving speech therapy; Christopher still stuttered. (R. 64.) In a "Function Report" completed by Gomes on October 17, 2006, however, she reported that Christopher's ability communicate was not limited. (R. 80, 83.)

Gomes testified that Christopher is "agitated," "moody" and unable to "do things on his own." (R. 65.) Gomes described Christopher as "very loud," and said that "[h]e's all over the place." (R. 93.) She said that he cannot do his homework, help with housework or fold his clothes without assistance. (R. 65; see also R. 87.) Gomes said that she has to wake him up multiple times in the morning before he would get out of bed (R. 73), and she has to remind him several times to brush his teeth or shower (R. 74-75).

Gomes testified that the amount of time Christopher can spend focused on an activity is "[n]ot long," and that he focused best when playing video games, which he could do for up to thirty minutes. (R. 67-68.) Gomes stated that Christopher "doesn't like to stay still too long" and that the only time he sits still is when playing video games. (R. 71, 93.) Gomes said that Christopher does not focus and is "always somewhere else," and is "spaced out." (R. 74.) In the October 2006 Function Report, Gomes reported that Christopher's ability to pay attention and stick with a task was limited, and that he does not keep busy on his own or finish things he starts. (R. 80, 88.)

Gomes noted that Christopher has "lots of friends" in the neighborhood who he gets along with well, although they sometimes argue. (R. 68.) She said that Christopher argues with his fourteen year old sister "all the time," but that they get along. (R. 66-67.) In the October 2006 Function Report, Gomes reported that Christopher's impairments affect his behavior with other people, but then also reported that he has friends his own age, can make new friends, and generally gets along with teachers and other adults. (R. 80, 86.)

Gomes testified that Christopher was briefly on the medication Concerta and that his doctor raised his original eighteen milligram dosage to twenty-seven milligrams. (R. 64.) Gomes did not think the medication helped, but said the doctors were "going to boost it up higher" but she relapsed into drug use and stopped taking Christopher to the doctor. (R. 65.) Gomes "underst[ood]" that Christopher "needs to be on medication," and said that he had an appointment to see a psychiatrist and resume therapy. (R. 65-66.)

When asked about Christopher's physical health, Gomes said that he has a "bicuspid heart valve," for which he saw a doctor once a year. (R. 68.) Because of this condition, Christopher tires easily during physical activity. (R. 68.) Gomes said that Christopher's difficulties in physical activity are compounded by his asthma, which he has had since he was six years old. (R. 68.)

Gomes said that Christopher takes asthma medication as needed, and that he has gone to the emergency room for his asthma attacks. (R. 68-69.) Nevertheless, Christopher does not have any difficulty sitting, standing, walking or running. (R. 71.) Gomes also testified that Christopher has headaches "[q]uite often" and misses school because of them. (R. 68, 70.) She gives him Tylenol and Motrin for the headaches. (R. 70.) The doctors have not found any cause for the headaches.

(R. 70-71.) In the October 2006 Function Report, Gomes reported that Christopher's physical abilities were not limited. (R. 80, 85.)

Christopher's Testimony

In response to ALJ Hecht's questions about school, Christopher testified that he has friends there, naming several of them. (R. 72.) Christopher indicated that he often had difficulty understanding his teacher, and that he sometimes "just stare[s] in space" when his teacher is talking.

(R. 72.) Christopher stated that he "[k]ind of" pays attention in school, but sometimes daydreams.

(R. 76.) When asked by his attorney to add 100 and 57, Christopher's response was "52." (R. 76.) He spelled the word "extreme" correctly. (R. 77.)

Education and Non-Medical Evidence

On December 23, 2004, when he was in third grade, Christopher received a psychological evaluation on the recommendation of his speech therapist, who believed that speech therapy was not "adequately addressing his academic delays." (R. 140.) The evaluator asked Christopher to read aloud, but Christopher had difficulty decoding words and gave up easily, saying there were "[t]oo many hard words." (R. 141.) He also "gave up easily" in math. (R. 141.) When the evaluator urged him to try two problems, he answered "4 minus 2" correctly, but answered "2 plus 3 plus 1 plus 4" incorrectly. (R. 141-42.) Christopher correctly provided his name and birthday, but could not provide his address or the name of the current president. (R. 142.) As part of the psychological evaluation, Christopher took an abbreviated battery of the Stanford-Binet Intelligence Scales - 5th Edition, and received an abbreviated IQ score of 79. (R. 143.)

In January 2005, an Individualized Education Program ("IEP") issued by the Board of Education indicated that Christopher was receiving speech and language therapy. (R. 130.) The IEP ordered speech therapy to continue twice a week and for Christopher to receive Special Education Teacher Support Services five times a week. (R. 131, 137-38.) The IEP modified the standard criteria for Christopher's promotion, mandating that Christopher would have to meet sixty percent of the second grade standards for English ...


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