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Kelly Obryan On Behalf of J.O. v. Commissioner of Social Security

March 29, 2012

KELLY OBRYAN ON BEHALF OF J.O. PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER*fn1

Plaintiff Kelly Obryan, on behalf of her son, J.O., brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI"). Obryan seeks judicial review of the Commissioner's denial of benefits. Dkt. Nos. 1, 11. The Commissioner cross-moves for a judgment on the pleadings. Dkt. No. 12. For the reasons which follow, it is ordered that the Commissioner's decision be affirmed.

I. Procedural History

On July 25, 2008, Obryan, on behalf of J.O., filed an application for SSI alleging an onset date of July 11, 2008. Dkt. No. 9-5 at 1-8. On December 17, 2008, the application was denied. Dkt. No. 9-4 at 2-6. On January 13, 2009, Obryan requested a hearing before an Administrative Law Judge ("ALJ"). Dkt. No. 9-4 at 11. The hearing took place before ALJ Robert Ringler on January 22, 2010. Dkt. No. 9-4 at 12-15 (acknowledgment of request for hearing); 21-25, 27-33 (notice of hearing); Dkt. No. 9-2 at 29-70 (testimony from the hearing). In a decision dated February 10, 2010, the ALJ held that J.O. was not entitled to disability benefits. Dkt. No. 9-2 at 9-25. On February 26, 2010, Obryan filed a request for review with the Appeals Council. Id. at 7-8. The Appeals Council denied Obryan's request for review on November 20, 2010, thus making the ALJ's findings the final decision of the Commissioner. Id. at 2-6. This action followed.

II. Contentions

Obryan contends that the Commissioner was incorrect when he (1) selectively relied upon portions of the opinions of J.O.'s teachers and therapists to support his decision on the severity of J.O.'s impairment and (2) found that J.O. was not markedly impaired in the category of "caring for [him]self." The Commissioner contends that there was substantial evidence to support the determination that J.O. was not entitled to SSI.

III. Facts

As both parties relied upon the ALJ's procedural determinationsand the only dispute about the factual determinations is in regard to the statements by J.O.'s teachers and therapist, the undersigned will adopt the factual summaries in the ALJ's opinion regarding the other medical evidence and will discuss only those portions of the medical record identified as proving a marked disability for J.O.

A. Teacher Evaluation

In September 2008, J.O.'s homeroom and science teacher provided an evaluation of J.O.'s behavior and ability to meet the six domains based upon his three year relationship having J.O. as his student. Dkt. No. 9-6 at 28-35. J.O.'s grade level was noted to be sixth, though his reading, math, and writing skills were all below the sixth grade level yet higher than the fifth grade level. Id. at 28. Additionally, J.O. was not receiving any special education services. Id.

The teacher noted J.O. had an obvious problem acquiring and using information because he required extra help with writing, understanding details and probing questions, and organization. Dkt. No. 9-6 at 29. J.O. had a generally slight problem with attending and completing tasks and interacting and relating with others. Id. at 30, 31, 35. J.O. could work at an appropriate pace so long as he was not frustrated or angry. Id. at 30. Additionally, J.O. could shut down when he was frustrated, though he "responds well to calm quiet intervention and positive statements." Id. at 31, 35. J.O. also had a generally slight problem with moving about and manipulating since his handwriting was not of a grade level appearance. Id. at 32.

The teacher also noted that J.O. had a generally obvious problem (indicating an obvious problem persisted in six out of the ten categories on a weekly basis) with caring for himself. Dkt. No. 9-6 at 33. The teacher indicated that J.O.'s ability to maintain his self-control was "difficult" and that he "will strike out (kicking, cursing) toward others when angry or frustrated." Id. However, J.O. was also noted to have been "receiving counseling [and] ha[d] learned some strategies." Id. Lastly, the teacher noted that J.O. was on medication that he took at home. Id. at 34.

Moreover, progress reports from the Resource Room for the first quarter of the 2009/2010 school year indicated that J.O. was generally well behaved, worked independently once he understood the task, was helpful to others, and his outbursts were "occur[ring] infrequently," due to the continued use of his principle's pass. Dkt. No. 9-7 at 112. The pass allowed J.O. to report to a different room to calm down instead of lashing out at the situation which was frustrating and angering him. Id. at 109, 111. His quarterly report cards for the ...


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