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Keene ex rel. J.T. v. Astrue

United States District Court, N.D. New York

October 24, 2012

Helena KEENE f/b/o J.T., Plaintiff,
Michael J. ASTRUE, Commissioner, Social Security Administration, Defendant.

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Louise Marie Tarantino, Albany, NY, for Plaintiff.

Susan J. Reiss, Social Security Administration, New York, NY, for Defendant.


WILLIAM G. YOUNG, District Judge.[1]


Helena Keene brings this action on behalf

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of her son, J.T. [2] under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (" the Commissioner" ) that denied her claims for Supplemental Security Income (" SSI" ) benefits. Compl., ECF No. 1.

A. Procedural Posture

Helena Keene (" Keene" ) applied for SSI benefits on behalf of J.T. on February 9, 2007. Admin. R. at 89-92, ECF No. 9. On May 30, 2007, the Regional Commissioner denied Keene's application. Id. at 60-63. Keene filed a request for a hearing by an Administrative Law Judge (the " hearing officer" ) the following day. Id. at 43. On April 24, 2009, the hearing officer issued a decision finding that J.T. was not disabled. Id. at 43-56. After the Appeals Council denied Keene's request for further review on January 27, 2010, the hearing officer's decision became final. Id. at 1-4.

On March 26, 2010, Keene filed the present action with this Court to review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). See Compl. 1-4. The government filed an answer, Def.'s Answer, ECF No. 8, and both sides filed briefs in support of their respective positions. Issues Presented Review (" Pl.'s Mem." ), ECF No. 17; Mem. Law Supp. Def.'s Mot. J. Pleadings (" Def.'s Mem." ), ECF No. 19.

B. Facts of Record

1. Background

J.T. was born on February 28, 1999. Admin. R. at 46. J.T., while physically healthy, is a child with an attention deficit hyperactivity disorder (" ADHD" ). Id. at 47. In November 2002, the Albany County Health Department, prompted by Keene's concerns regarding delays in J.T.'s overall development, conducted a Multidisciplinary Evaluation of the three-year-old child. Id. at 222. Testing revealed deficiencies in intelligence and achievement, see id. at 223, 226, 230, in social and emotional functioning, see id. at 223, 226-27, 230, in fine motor skills, see id. at 223, 227, 230, and in all communication skills, see id. at 224, 228-29, 231. After meeting the criteria to receive services through the Committee on Preschool Special Education, J.T. was recommended to receive speech and language therapy, occupational therapy, and other special education services in a structured setting. Id. at 231-32.

2. Mental Impairments

a. Treating Physician

J.T. has received primary health care from the Whitney M. Young, Jr. Health Center since birth. Id. at 116. On May 25, 2005, at age six, J.T. was diagnosed with ADHD, and his pediatrician, Dr. Estrella Esguerra (" Dr. Esguerra" ), prescribed him medications (including Ritalin). Id. at 182.

At a doctor's visit on March 20, 2007, after Keene informed the doctor that J.T.'s medication had not been working, Dr. Esguerra prescribed J.T. 27 mg of Concerta, continued a preexisting dosage of 5 mg of Ritalin to be taken at noon, and added Clonidine to help with sleep issues. Id. at 203-04. On April 12, 2007, the doctor noted that J.T. had a decreased appetite and had lost weight. Id. at 161-62. Because J.T. often became quiet and stared after taking his medication, Dr. Esguerra

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recommended discontinuing the noon dose of Ritalin. Id. At a doctor's visit on May 15, 2007, Keene and J.T.'s teacher informed Dr. Esguerra that Concerta " does not work for [J.T.]." Id. at 163. Dr. Esguerra herself observed that J.T. was very active during the appointment and noted his short attention span. Id. at 164. The doctor then prescribed 20 mg of Ritalin per day, with 10 mg of Ritalin to be taken in the afternoon. Id.

Doctor's notes from October 22, 2007, indicated that J.T.'s daily dosage of Concerta had risen to 36 mg.[3] Id. at 394. J.T.'s school nurse, however, noted that Concerta did not work well and that the school was out of that medication. Id. The doctor's notes also indicated that J.T. was still hyperactive, had problems focusing, is easily distracted, took too long to complete his homework, and experienced difficulty interacting with peers. Id. Even though J.T.'s teachers were concerned about his continued symptoms and were unable to control him, the teachers noted that J.T.'s " [g]rades [were] doing well." Id. In assessing J.T.'s general appearance, Dr. Esguerra observed that J.T. was " alert, active, pleasant, well nourished and hydrated." Id. Dr. Esguerra questioned J.T.'s compliance with regard to taking his medication but nevertheless proceeded to prescribe him 36 mg and 0.1 mg of Concerta and Clonidine, respectively. Id.

On December 12, 2007, Dr. Esguerra again noted that J.T.'s school reported being out of required medication and was requesting a three-month supply of said medication. Id. at 392. J.T.'s teachers reported that they were happy with his progress, remarking that J.T. had problems when he was not on medication. Id. Nonetheless, J.T. still had trouble focusing, and even though he had many friends, he continued to experience difficulty interacting with peers and had mood swings. Id. J.T.'s mother reported that J.T. sometimes complained of feeling dizzy after taking Clonidine. Id.

Dr. Esguerra's treatment notes, dated April 15, 2008, revealed that Keene expressed concern over J.T.'s inability to gain weight and picky eating habits. Id. at 401. J.T. was still described as hyperactive and lacked meaningful friendships, but his teachers were happy with his progress and had no complaints. Id. As a result, the dosage of Concerta was continued at 36 mg, but Clonidine was discontinued because J.T. was sleeping better. Id.

During a doctor's visit on September 18, 2008, Keene again expressed concern about J.T.'s weight. Id. at 399. Consequently, Dr. Esguerra proposed decreasing the dosage of Concerta to 27 mg daily. Id. at 400. During this visit, the doctor observed that J.T. was able to tell time, read for pleasure, and had a sense of humor. Id. at 399.

J.T. next visited Dr. Esguerra on December 12, 2008. Id. at 397-98. The doctor was again told that J.T.'s medication was not working and that his hyperactivity had increased. Id. at 397. Further, J.T. was having difficulty focusing in school and exhibited behavioral problems such as " acting out," being " disrespectful to adults," and being " impulsive." Id. J.T. was increasingly disruptive in class, did not listen well, and had hit other students " because they bother[ed] him." Id. (internal quotation marks omitted). Dr. Esguerra diagnosed ADHD and behavioral problems (specifically, aggression and possible oppositional defiant disorder), as well as insufficient weight gain. Id. at 397-98. The doctor recommended starting

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Risperdal to diminish aggression and continuing Concerta for ADHD. Id. at 398.

J.T.'s continuing trouble with focusing and hyperactivity was noted at a January 22, 2009 visit. Id. at 395. The doctor reported that J.T. had been suspended from school for bringing in syringes with needles and that his grades were worsening. Id. J.T. was described as having several friends and was getting along with his parents. Id. Keene reported that Risperdal was not working, so Dr. Esguerra, after raising a question about J.T.'s compliance with his prescription, discontinued that medication. Id.

b. Consulting Physician

On May 29, 2007, non-examining state agency psychiatrist, Dr. J. Alpert (" Dr. Alpert" ) completed a Childhood Disability Evaluation Form. Id. 154-59. Dr. Alpert found that J.T. had a severe impairment (borderline intellect), but he concluded that the impairment did not meet, medically equal, or functionally equal the listings concerning domain limitations. Id. at 154. Specifically, J.T. had less than marked limitations with respect to acquiring and using information, attending to and completing tasks, and interacting and relating to others, but had no limitations with respect to moving about and manipulating objects, caring for himself, or his health and physical well-being. Id. at 156-57.

Dr. Alpert explained that J.T.'s March 2006 IQ scores featured a full-scale score of 79, a performance score of 81, and a verbal score of 77. Id. at 159. On speech and language testing, J.T. had an expressive-language score of 84, a receptive-concepts score of 71, and a total-language score of 76. Id. In terms of social development, J.T. was reportedly able to make friends but required " frequent verbal prompts to leave peers alone as he frequently over step[ped] boundaries." Id.

c. Teacher Questionnaires and Progress Reports

J.T.'s first-grade teacher at Eagle Point Elementary School, Melissa Shelmerdine (" Shelmerdine" ), filled out a Teacher Questionnaire on March 22, 2007. Id. at 165-74. Shelmerdine stated that J.T. was in the first grade and that his instructional level at that time, with regard to reading, mathematics, and written language, was at the first-grade level. Id. at 165. She reported that J.T. received speech services three times per week and counseling services one half hour per week. Id. Shelmerdine observed that J.T. had no problems relating to the acquisition and use of information. Id. at 166. Shelmerdine further reported that when J.T. was off of his medications, he had difficulty in most of the areas touching upon attending and completing tasks (with very serious problems in focusing long enough to finish an assigned task, waiting to take turns, and working without distracting himself and others), and that " [t]he frequency of problems when he has his meds is much less." Id. at 167. With respect to interacting with and relating to others, Shelmerdine reported only slight problems, with the exception of J.T.'s ability to " seek [ ] attention appropriately." Id. at 168. Shelmerdine commented that J.T. had the capacity to finish work " correctly on an independent level as long as he's focused," which occurred only when he was on his medication. Id. Further, Shelmerdine reported that J.T. had no difficulty in moving about and manipulating objects. Id. ...

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