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Francine Dayton A/K/A/ Francine Bolt O/B/O R.D v. Michael J. Astrue

October 3, 2012


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Plaintiff Francine Dayton commenced the instant action on behalf of her minor child appealing the determination of the Commissioner of Social Security that the minor child was not disabled within the meaning of the Social Security Act.


Plaintiff was born on May 12, 1995. Plaintiff never engaged in any substantial gainful employment activities. She alleges disability due to attention deficit hyperactivity disorder and a bipolar condition.

Plaintiff was hospitalized for psychiatric conditions at Binghamton General Hospital on January 16, 2001 at the age of five and a half (5 1/2 ) years old. In the history of present illness, it was noted that the 5 1/2 year old girl was initially referred for tantrums, fearfulness, problems sleeping, and school refusal. It was noted that the stressor was a dog bite to the face requiring multiple surgical procedures to repair. It was also noted that the Plaintiff was undergoing private counseling and working with a counselor at school. She was also getting speech evaluations at school. The Plaintiff was already taking Paxil. It was noted that she continued to exhibit impulsivity, defiance and irritability. She was diagnosed with posttraumatic stress disorder, anxiety, and attention deficit hyperactivity disorder (hereinafter "ADHD").

Plaintiff has been treated on an out-patient basis by Andrea Reale. Reale performed a core evaluation on February 12, 2001. She related the Plaintiff's history of post-traumatic stress disorder (hereinafter "PTSD") following a dog bite to the face by a pit bull in 1999 and Plaintiff's taking Paxil. Reale continued to see Plaintiff and the progress notes are contained in the administrative record. By February 10, 2004, Plaintiff's diagnoses included anxiety and ADHD. The medication Ritalin and Zoloft were added to her regiment. It was noted on April 23, 2004 that Plaintiff was still having tantrums and that she got quite irritable throughout the afternoon. Plaintiff's mother related during that time frame that Plaintiff was insubordinate and was hard to deal with in the evening. Additionally, the night prior, the Plaintiff had been banging her head against the wall in response to being told she could not have a snack at that time.

On May 20, 2004, Plaintiff was again brought in by her mother and stepfather. It was related that the Plaintiff was exhibiting escalating behaviors and that her temper tantrums were escalating in length and severity. These temper tantrums would lead to kicking, screaming and breaking things. Plaintiff has also been followed by her family physician, Dr. Michelle Boyle. On October 10, 2003, Dr. Boyle notes the history of behavioral problems and recommended the prescriptions for Zoloft and Buspar.

Plaintiff was also evaluated by her school psychologist, Robyn L. Wood, M.A., C.A.S., in the Susquehanna Valley School District. Wood issued a confidential psychological evaluation report in February of 2004. The dates of evaluation were February 4, 2004, February 5, 2004, February 6, 2004, February 17, 2004 and February 19, 2004. The evaluation procedures included teacher input, review of records, a behavioral assessment system for children report, a Wechsler Intelligence Scale for Children, the Wechsler Individual Achievement Test, and the Beery-Buktenica Developmental Test of Visual Motor Integration. Wood noted Plaintiff's history involving problems in pre-school with separating from parents and excessive crying when she is upset. Wood also noted the history of ongoing treatment at the Binghamton Psychiatric Center at an Adolescent Unit in Binghamton with the overseeing care of Dr. Diana Weiner. Additionally, Plaintiff had been diagnosed with anxiety and depression and been working with a therapist, Reale, since 1999. Also, the significant physical history was noted of Plaintiff being bitten by a bit pull on her face and receiving 70 sutures in 1999 with subsequent surgeries. Plaintiff was noted to frequently break down crying in class when she feels someone is upset with her and did not get her own way in class.

Wood recommended that the Committee on Special Education meet to develop a plan to meet Plaintiff's educational and emotional needs, develop a 504 Accommodation Plan to support her needs, and receive academic support from a consultant teacher within her classroom. Further recommendations were made that a behavioral plan should be developed to be carried out over multiple settings. Recommendations also included receiving program modifications such as preferential seating near where the instruction is taking place, non-verbal cue by the teacher to bring Plaintiff back on task, and smaller group settings to minimize distractions and extended time frame to complete tasks. It was also noted that Plaintiff may benefit from a written daily schedule on her desk to eliminate any increased anxiety due to the unknown order of events.

Plaintiff was examined by John Cusick, a consulting pediatric physcian on July 7, 2004. Cusick noted Plaintiff's prior dog bite, diagnoses of anxiety, depression, post-traumatic stress disorder as well as multiple medications. He also noted Plaintiff's behavioral problems and 504 accommodations plan in school.

Mary Ann Moore, a psychologist, evaluated Plaintiff July 8, 2004. Moore diagnosed Plaintiff with attention deficit hyper activity disorder, an anxiety disorder, a dysthymic disorder, a learning disorder, and a possible auditory processing disorder. On July 20, 2004, Plaintiff's records were reviewed by Karen Prowda. She prepared a childhood disability evaluation form and diagnosed Plaintiff with attention deficit hyper activity disorder, a learning disorder, asthma and a severe mood disorder.

Plaintiff's psychiatrist completed an assessment on August 18, 2005. She diagnosed Plaintiff with anxiety and ADHD. Plaintiff moved to South Carolina with her mother and step-father in 2006. Plaintiff received treatment through the Waccamaw Center for Mental Health between June 29, 2006 and March 29, 2008. Records from the Waccamaw Center for Mental Health noted Plaintiff's difficulties of distractibility, emotional outbursts, screaming, pulling hair, pounding her head against the wall, having mood swings, being sad, agitated, and arguing with peers, bickering with friends and arguing with her parents. Plaintiff was noted to be angry and irritable and her effect was stress, exaggerated and explosive.

Plaintiff underwent a psychological evaluation with the Horry County School Systems on March 20, 2007. Among other things, suicidal idealation was noted. Records from the school, the testimony from the mother, and the evaluations reflect that Plaintiff's behavior continued to remain severe. The South Carolina school took multiple disciplinary actions against Plaintiff between 2006 and 2008, with the last being on October 14, 2008.

With a protective filing date of May 11, 2004, the child's mother filed an application for Supplemental Security Income payments alleging disability beginning on January 1, 2004. The claim was initially denied on July 21, 2004. The mother requested a hearing that was held in September 2005. After the hearing, the ALJ issued an unfavorable decision. A subsequent request for review was denied by the Appeals Council. Plaintiff commenced an action in this Court. The parties ...

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