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Brewer v. Astrue

June 2, 2010

TAMAICA BREWER O/B/O S.B., A MINOR, PLAINTIFF,
v.
MICHAEL 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, Tamaica Brewer ("Brewer"), on behalf of S.B., a minor, filed this action pursuant to the Social Security Act, codified at 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Supplemental Security Insurance ("SSI"). On December 4, 20008, the Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and on March 6, 2009, plaintiff cross-moved for judgment on the pleadings.

For the reasons that follow, I find that substantial evidence supports the decision of the ALJ. Accordingly, plaintiff's motion for judgment on the pleadings is denied and defendant's motion for judgment on the pleadings is granted.

BACKGROUND

On March 21, 2005, plaintiff filed an application for SSI on behalf of her 14 year old daughter, S.B., alleging that S.B. had been disabled since July 31, 2003. Tr. 57-59) The application was denied initially on May 31, 2005. (Tr. 53) Plaintiff requested a hearing which was held on August 23, 2007 at which plaintiff and her daughter appeared before an Administrative Law Judge ("ALJ") and was represented by counsel. (Tr. 188-213) By decision dated September 10, 2007, the ALJ found S.B. was not disabled. (Tr. 14-25) Plaintiff requested review by the Appeals Council. The decision of the ALJ became final when the Appeals Council denied review on May 9, 2008. (Tr. 5-7) Plaintiff commenced this action on July 14, 2008 claiming that she was disabled by Attention Deficit Hyperactivity Disorder ("ADHD") and mental retardation.

A. Medical Background

The record indicates that S.B. was first diagnosed with ADHD in 2001 by Dr. Adegbite at the Beeman Clinic who prescribed Adderall. (Tr. 135) S.B. was evaluated on May 30, 2002 by her school in compliance with the New York state requirement to reevaluate students in Special Education every three years. At that time, S.B. was classified as "Speech Impaired" and was repeating Kindergarten. (Tr. 95) Testing showed S.B.'s cognitive abilities to be within the average range of intelligence but she showed "severe receptive/expressive vocabulary delays, severe receptive language delays, moderate expressive language delays and mild to moderate speech unintelligibility." (Tr. 95) S.B.'s educational goals were to focus on her receptive and expressive language skills. (Tr. 95)

S.B. began treatment at the Monsignor Carr Institute Children's Clinic in Niagra Falls, New York in July, 2003 for counseling and treatment of ADHD. (Tr. 114) Dr. Paul Fazekas examined S.B. in September, 2004 and described her as "cooperative" with appropriate eye contact. He noted that S.B. did exhibit some fidgeting and mild hyperactivity but found no abnormal neurological movements. (Tr. 146) He found her thought processes to be "logical, coherent and relevant" and described her attention and concentration as "fair." (Tr. 136) He concluded that S.B. had "low average to average intelligence" and confirmed the diagnosis of ADHD and discussed the possibility of changing the medication in September, 2004 to try something other than Adderall. (Tr. 136) In 2005, he changed the prescription to treat ADHD to Metadate. (Tr. 176)

On April 5, 2005, a special education teacher for S.B. completed a New York State Officer of Temporary and Disability Assistance Teacher Questionnaire regarding S.B. (Tr. 60-67) At the time, S.B. was in the third grade and the teacher considered her reading, writing and math skills to be at the first to second grade level. (Tr. 60) S. B. received support services in school including a consultant teacher, speech/language therapy and a teaching assistant. The evaluating teacher noted that S.B. needed a "great deal of support to complete tasks" and that she was "reading and writing below grade level." (Tr. 61) Although S.B. had no problems with classroom and social functions such as taking turns, playing cooperatively or changing activities, she had the most difficulty carrying out multi-step instructions, paying attention and completing her work. (Tr. 62) S.B. spoke well and interacted with others and had no troubles with gross or fine motor skills. (Tr. 64) S.B.'s speech teacher confirmed that while her speech is intelligible and responds appropriately to questions, she was severely delayed in her vocabulary and oral expression. (Tr. 68)

The Individualized Education Program for the 2004-2005 school year indicated that S.B. would continue to receive extra support from consultant teacher, speech and language therapy and from a teaching assistant. (Tr. 78) S.B. was described as having a "significant delay in reading decoding, reading comprehension and development in subject and skill areas." (Tr. 79) Her rate of progress was described as "slow" and she was described as having a "multi-sensory learning style." (Tr. 79) This plan indicated that S.B.'s social and emotional as well as physical levels and abilities were within age expectations. (Tr. 80)

Dr. Thomas Ryan, Licensed Psychologist, conducted an independent intelligence evaluation of S.B. on May 16, 2005. (Tr. 142-145) Although S.B. was prescribed Adderall, her mother had not given it to her for a week prior to the evaluation. (Tr. 142) Dr. Ryan found that S.B. had speech and language skills "slightly below age expectations" but that she recalled and understood instructions, worked with some reflection and deliberation, and was cooperative. (Tr. 143) S.B. scored a 70 on a full scale I.Q. test placing her intellectual functioning at a "borderline range." (Tr. 143) Her reading and direct admission skills were in the middle of the second grade level and her math skills were limited to simple addition and subtraction. (Tr. 144) S.B. could bathe, dress and groom herself and was responsible to wash dishes and clean up. She was allowed to navigate her neighborhood independently and she could follow and understand most age appropriate directions, complete most age appropriate tasks and had the ability to maintain social behavior. (Tr. 144) She was diagnosed with "borderline intellectual functioning" and recommended to continue with the psychological and psychiatric treatment and with her current educational placement. (Tr. 144)

Dr. Tav Jiva also conducted an independent medical examination of S.B. on May 15, 2005. Dr. Jiva reported that S.B. had a good to fair prognosis for her diagnoses of ADHD and learning disability but that there were no physical limitations and S.B. could participate in all age related social, educational and recreational activities. (Tr. 146-149)

Dr. P. Harar, a State Agency physician, reviewed the record on May 31, 2005, and opined that S.B. was not disabled. (Tr. 150, 151-156) Dr. Harar stated that S.B.'s impairments did not meet or equal any Listing (Tr. 151) Dr. Harar noted that she had borderline intelligence and language skills proportionate to her I.Q. and was in special education. (Tr. 153) S.G. was in third grade functioning at the "1.6 to 2.0 grade level." (Tr. 153) Dr. Harar concluded that S.B. had a less than marked limitations in acquiring and using information and in attending and completing tasks. (Tr. 153) He further found no ...


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