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Cook v. Astrue

August 20, 2009

BETTY COOK, O/B/O CC, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



THOMAS J. McAVOY Senior United States District Judge

DECISION and ORDER

Betty Cook ("Cook") brought this action on behalf of her great niece, CC ("Plaintiff"), under §205(g) and §1631(c)(3) of the Social Security Act, codified as 42 U.S.C. §405(g) and §1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner") that denied Plaintiff's application for disability insurance benefits. Before the Court are the Plaintiff's motion for remand for the calculation of benefits and the Commissioner's motion for judgment on the pleadingspursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

I. FACTS

A. Procedural History

Plaintiff applied for Supplemental Security Income ("SSI") on February 20, 2004. She was denied benefits on April 7, 2004 and filed a request for a hearing before an Administrative Law Judge ("ALJ"). Plaintiff was represented by counsel at the hearing held on May 11, 2005. Plaintiff was approximately 31 months old at the time of the ALJ hearing. On May 27, 2005, ALJ Carl E. Stephan denied Plaintiff's request for Social Security benefits.

A request for review by the Appeals Council was submitted on behalf of Plaintiff on July 27, 2005 and was subsequently denied on April 26, 2007. The decision of the ALJ became the Commissioner's final decision in the case. Plaintiff commenced this civil action on June 25, 2007 requesting review of the Commissioner's decision.

B. Medical History

The Court presumes familiarity with the background facts of this case and will set forth only those facts that are material to the Court's determination (see Discussion, Part III, infra).

Plaintiff was born October 2, 2002. Tr. at 8, 219.*fn1 She lives with her great aunt and uncle, who have legal custody. Tr. at 286. Cook, Plaintiff's great aunt, submitted a claim stating that Plaintiff was disabled by developmental delays and possible hearing impairments and did not behave in an age appropriate manner. Tr. at 68.

On March 3, 2003, Cook completed a Social Security Administration ("SSA") Function Report. Tr. at 60A. On the form, Cook wrote that Plaintiff had failed hearing evaluations and would be fitted for hearing aids. Id. Cook also wrote that Plaintiff could be understood by people most of the time and had a limited vocabulary. Tr. at 61. On the Function Report, Cook also wrote that Plaintiff had limited physical abilities with respect to standing, walking and running and was limited in her ability to help take care of her personal needs such as feeding and undressing herself. Tr. at 64.

On September 4, 2003, Plaintiff visited Dr. Bradley Paddock to receive her bilateral ventilation tubes which were being inserted due to otitis media with effusion. Tr. at 279-80.*fn2

On January 9, 2004, Dr. Paddock performed hearing tests with Plaintiff. Tr. at 113, 142. These tests indicated a mild/moderate high frequency hearing loss and problems with middle ear fluid. Id. It was noted that Plaintiff had ventilation tubes in her ears. Id. Test results showed that Plaintiff was aware of speech at a threshold of 30 dBHL and could hear warbled pure tones and narrow bands of noise at 35-60 dBHL. Id. Normal ranges for these tests are 0-15 dBHL and 20-40 dBHL, respectively. Id.

On February 3, 2004, audiologist Kimberly Strait performed an audiogram on Plaintiff. Tr. at 149-50. Ms. Strait noted that Plaintiff had moderate to severe hearing loss and responded to speech at 25-30 dBHL. Id. The audiogram also showed that Plaintiff's hearing loss was downsloping from 40 dBHL in the low frequencies to 70 dBHL in the high frequencies. Id.

On August 25, 2004, Plaintiff saw Dr. Elizabeth Redd. Tr. at 224-25. Dr. Redd noted that Plaintiff had a right ear tube removed in July and that there was pain and drainage in the left ear. Tr. at 224. The right ear was noted to be "okay". Id. An audiogram was performed and the results showed moderate hearing loss with downsloping from 40 dB in low frequencies to 70 dB in high frequencies. Id. Dr. Redd noted that Plaintiff had multiple delays and ...


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