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Batista v. Astrue

September 29, 2010

ROSANNA BATISTA, O/B/O, M.B. PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM AND ORDER

Plaintiff Rosanna Batista filed an application for supplemental security income ("SSI") under the Social Security Act (the "Act"), on behalf of her minor daughter, M.B., on August 11, 2004. (R. 62-64.)*fn1 The Social Security Administration denied plaintiff‟s application on October 18, 2004, and plaintiff requested a hearing before an administrative law judge ("ALJ"). (R. 26, 30.) After holding a hearing on June 26, 2006, at which plaintiff and M.B. were represented by counsel (R. 443-63), ALJ Leonard E. Ryan issued an opinion on January 26, 2007 concluding that M.B. was not disabled within the meaning of the Act. (R. 14-24.) On April 17, 2008, the ALJ‟s decision became the Commissioner‟s final decision when the Appeals Council denied plaintiff‟s request for review. (R. 4-6.) Plaintiff filed the instant action seeking judicial review of the denial of benefits. The Commissioner moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of the denial of benefits. Plaintiff cross-moves for judgment on the pleadings, seeking remand of M.B.‟s case to the Commissioner for further administrative proceedings. For the reasons set forth below, the Commissioner‟s motion is granted and plaintiff‟s cross-motion for judgment on the pleadings is denied.

BACKGROUND

A. Non-medical Evidence

1. Questionnaires and Written Reports

On August 11, 2004, plaintiff filed an application on behalf of her daughter, M.B., who was born on December 13, 1993 in the United States. (R. 62.) As part of her application, plaintiff completed a function report and indicated that M.B. walked with a limp, had only limited ability to engage in any activities involving the use of her legs, and had several inner ear operations. (R. 77, 73.) Plaintiff also completed a disability report on August 13, 2004, and noted that M.B. had a heart problem, rheumatic fever, leg pain, a left ear problem, and difficulty walking. (R. 98.) The report also indicated that M.B. had undergone speech and language testing on May 6, 2002, but she was not in special education classes or receiving speech therapy at that time. (R. 102.)

2. School Evidence

On May 6, 2002, M.B. underwent a review by the Committee on Special Education at her school. (R. 129-32.) The Committee issued a report which classified M.B. as non-handicapped, and surmised that M.B. was Spanish-dominant and had borderline cognitive functioning and low-average academic performance in all areas assessed. (R. 131.) Nevertheless, the report concluded that M.B.‟s behavior was age appropriate, and no behavior intervention plan was required. (R. 132.) M.B.‟s third grade report card states that M.B. "struggles academically," but "demonstrates a strong yearning to improve." (R. 109.) M.B.‟s third grade teacher reported in a questionnaire that M.B. had difficulty comprehending information and participating in class. (R. 86.)

B. Medical and Psychiatric Evidence

1. Plaintiff's Medical and Psychiatric Evidence

On April 2, 2001, M.B. underwent audiological testing at the New York Eye and Ear Infirmary, the results of which indicated that she had slight to mild conductive hearing loss and "very good speech recognition." (R. 135-36.) The audiologist recommended that M.B. receive preferential classroom seating. (R. 136.)

On March 27, 2004, M.B. went to the Brownsville Multiservice Family Health Center ("BMC") complaining of chest pain on her left side, although the results of this visit are unclear from the record. (R. 146, 223.) On May 14, 2004, M.B. went to BMC again, this time complaining of pain in her right leg, shoulder, and arm (R. 144, 200), and returned there three days later because of difficulties turning her head (R. 143). During her visit, M.B.‟s ESR (erythrocyte sediment rate)*fn2 level was twice the normal amount. (R. 155.) On May 17, 2004, Brookdale Hospital admitted M.B., and an echocardiograph (sonogram of the heart) revealed that she had rheumatic fever with moderate mitral regurgitation*fn3 and an ECG (electrocardiography) revealed that she had a heart arrhythmia. (R. 396, 422.) The hospital discharged M.B. on May 19, 2004 after a course of antibiotics and advised her to follow up with a cardiologist and receive monthly penicillin shots to prevent infection. (R. 372.)

On August 13, 2004, M.B. visited her cardiologist, who diagnosed her with a 2/6 systolic murmur*fn4 and above-normal sediment rates. (R. 366.) On August 23, 2004, she again visited her cardiologist, who diagnosed M.B. with thickened redundant mitral valve leaflets*fn5 with mitral regurgitation. (R. 364.) On September 10, 2004, M.B.‟s cardiologist found that her symptoms had resolved. (R. 365.) On November 12, 2004, however, her cardiologist found that M.B. had a 2/6 systolic murmur and mild mitral regurgitation. (R. 360.) M.B. did not receive additional treatment for these irregularities. Instead, M.B.‟s cardiologist instructed her to continue monthly penicillin shots. (R. 360.)

An outer ear clinical exam on March 7, 2005 showed that M.B.‟s hearing was within normal limits bilaterally, (R. 237), but on April 30, 2005, at the Kings County Hospital Center, M.B. reported decreased hearing and bleeding in her right ear, (R. 242). An audiological exam on September 20, 2005 revealed that she had mild to moderate loss in both ears. (R. 272.) On March 15, 2006, an audiologist diagnosed M.B. with mild to moderate hearing loss. (R. 282.)

As early as November 11, 1999, when M.B. was nine years old, she visited psychiatrist Dr. Fermi Gonzalez, because she had separation anxiety when dropped off at school and in other situations. Dr. Gonzalez prescribed Benadryl to alleviate her symptoms. (R. 338.) On June 23, 2005, M.B. again visited Dr. Gonzalez regarding anxiety. Dr. Gonzalez diagnosed M.B. with Generalized Anxiety Disorder and Major Depression, (R. 340, 342), and prescribed Prozac and Benadryl for her insomnia, (R. 340). In July, August, September, and December of 2005, Dr. Gonzalez reported that M.B.‟s condition was stable with medication. (R. 339-44.)

2. Consulting Physician Reports

On September 22, 2004, psychiatrist Dr. Herbert Meadow evaluated M.B. (R. 161-62.) Dr. Meadow noted that M.B. had a mild to moderate speech impediment and was "beneath age appropriate to do age appropriate tasks and learn age appropriate materials in school." (R. 161-62.) He therefore diagnosed her with learning disabilities. (R. 162)

On September 22, 2004, M.B. visited consultative pediatrician Dr. Tomasito Virey. (R. 163.) Dr. Virey heard a mild hum on the left sternal border and a 1/6 systolic murmur on the left sternal border. (R. 164.) In addition, Dr. Virey noted that M.B. had normal musculoskeletal development, adequate muscle strength, and full range of motion in her extremities, as well as a normal pulse and spine. (R. 164.) He concluded that her ability to engage in age-related activities was only mildly to moderately affected. (R. 165.)

On October 5, 2004, Dr. V.B. Gupta reviewed the medical evidence submitted by plaintiff, and noted that M.B. had rheumatic fever and a learning disability, which were severe impairments, but opined that her impairments or combination of impairments did not meet, medically equal, or functionally equal the Listings of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 ("the Listings"). (R. 166.) On October 7, 2004, Dr. J. Kessel also reviewed the medical record, and concurred with Dr. Gupta‟s opinion. (R. 167.)

C. Hearing Testimony

On June 26, 2006, ALJ Leonard E. Ryan conducted a hearing. (R. 445-63.) Plaintiff testified that M.B. could not endure long periods of play, and tired very easily due to the infection in her heart, for which she receives monthly penicillin shots. (R. 449.) However, plaintiff also testified that M.B.‟s heart was "back to regular." (R. 449.) Plaintiff further explained that M.B. has a history of recurrent ear infections, and has had three operations. (R. 450.) Plaintiff stated that M.B. has to sit at the front of the classroom in school because she has difficulty hearing, (R. 450), but M.B.‟s hearing had improved since her most recent operation (R. 453).

Plaintiff reported that M.B. had been seeing a psychiatrist for a year because she was suffering from "bad nerves," depression and insomnia. (R. 451.) Plaintiff stated that the psychiatrist had prescribed Prozac and Benadryl for M.B., and she had improved slightly with treatment. (R. 455.) Plaintiff also testified that M.B. did not pay attention or complete chores because she became easily distracted. (R. 453.)

M.B. testified that her hearing was doing well, and she had another operation scheduled for her ear, although she did ...


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