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Smith v. Colvin

United States District Court, N.D. New York

March 29, 2013

LUCILLE J. SMITH, on behalf of J.H., Plaintiff,
CAROLYN W. COLVIN[1], Commissioner, Social Security Administration, Defendant

Page 497

[Copyrighted Material Omitted]

Page 498

For Lucille J. Smith, for J. H., Plaintiff: Jonathan P. Foster, LEAD ATTORNEY, Office of Jonathan P. Foster, Athens, PA.

For Michael J. Astrue, Commissioner of Social Security Administration, Defendant: Sheena V. Williams-Barr, LEAD ATTORNEY, Social Security Administration, Office of Regional General Counsel, Region II, New York, NY.


WILLIAM G. YOUNG, United States District Judge.[2]


Page 499


Lucille J. Smith (" Smith" ) brings this action on behalf of J.H.,[3] a minor of whom Smith has legal custody, pursuant to sections 205(g) and 1631(c) (3) of the Social Security Act (the " Act" ), 42 U.S.C. § § 405(g), 1383(c)(3). Smith is seeking judicial review of the final decision of the Commissioner of Social Security (the " Commissioner" ) that denied J.H.'s claims for Social Security Supplemental Security Income (" SSI" ). Compl. ¶ 1, ECF No. 1. Smith challenges the decision of the Administrative Law Judge (the " hearing officer" ) denying J.H.'s application for SSI on the basis that J.H. was not disabled within the meaning of section 1614(a) (3) (C) of the Social Security Act, 42 U.S.C. § 1382c(a) (3) (C).

Smith requests that this Court reverse the Commissioner's decision and award J.H. SSI, or alternatively to remand the case to the Commissioner for a new hearing on the question of whether J.H.'s medical condition rendered her disabled within the meaning of the Act. Compl.

The Commissioner requests that this Court affirm the hearing officer's decision. Answer, ECF No. 9.

A. Procedural Posture

Smith, on J.H.'s behalf, applied for SSI on October 3, 2006. Compl. ¶ 5. She alleges that J.H. has been continuously disabled from April 11, 2003 to the present. Id. ¶ 11. J.H.'s application for SSI was denied on March 8, 2007. Admin. R. at 67-70, ECF No. 11. On April 4, 2007, Smith filed a timely written request for a hearing. Id. at 71. On April 9, 2009, the hearing officer held a hearing in Binghamton, New York, over which he presided via video conference from Syracuse, New York. Id. at 24, 25-65, 91. Smith and J.H. testified at the hearing. Id. at 30. The hearing officer held the record open until April 30, 2009, and granted an extension to submit additional evidence by May 23, 2009. Id. at 8. The hearing officer issued an unfavorable decision on July 27, 2009, id. at 5, and Smith filed a timely request for review, which the Appeals Council denied on November 4, 2009, id. at 1. On December 21, 2009, Smith filed this action in federal court to review the Commissioner's decision. Compl.

B. Factual Background

The claimant, J.H., currently is a sixteen-year-old adolescent who first sought SSI when she was a school age child.

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Admin. R. at 11. During early childhood, J.H.'s emotionally ill mother subjected her to emotional and physical abuse. Id. at 370. The medical record also indicates that she was exposed to alcohol and drugs while in utero. Id. at 11. Now, J.H. is living with her aunt, Smith, who also is her legal guardian. Id. at 30. J.H. attends school and has not engaged in substantial gainful activity since the alleged onset of disability on October 3, 2006. Id. at 11.

The Tioga County Department of Mental Hygiene (" Tioga County" ) initially evaluated J.H. on August 26, 2003, where she presented with symptoms of aggressive and oppositional behavior, anxiety, and tantrum type behaviors. Id. at 366. Since then, the Tioga County staff has regularly treated J.H. from August 2003 through February 18, 2009. Id. at 428-37. J.H. has also received mental health counseling sessions, and Dr. Chong Taek Lee (" Dr. Lee" ) and Dr. Florante Tinio (" Dr. Tinio" ), Tioga County's staff psychiatrists, treated her on a regular basis. Id. at 369-78. After every consultation, Dr. Tinio rated J.H.'s condition on the Global Assessment of Functioning (" GAF" ) Scale, an instrument for reporting the psychiatrist's judgment of the patient's overall level of functioning and ability to carry out activities of daily living.[4] J.H.'s GAF scores ranged from 50 in February of 2006 to 45 in November 2006, and 40-45 in January 2008. Id. at 371, 373, 386.

Furthermore, Dr. Vanessa Gregory (" Dr. Gregory" ), and Dr. Ian Stuppel (" Dr. Stuppel" ), both at Lourdes Hospital, frequently treated J.H. for her mental health issues from September 13, 2005, through 2006. Id. at 348-57.

On March 22, 2004, Dr. Lee diagnosed J.H. with Attention Deficit Hyperactivity Disorder (" ADHD" ), and J.H. has since received medication (currently Focalin) to relieve some of her symptoms associated with this disease. Id. at 11. J.H. had psychological testing on October 24, 2006, to rule out a learning disorder; specifically, an EEG and MRI of the brain were performed and showed that J.H.'s brain worked within normal limits. Id. at 420-21. She also completed the Wechsler Intelligence Scale for Children -- Fourth Edition (" WISC-IV" ) IQ test, which indicated that overall she functioned at a low average range. Id. at 268-72. On October 16, 2007, Dr. Louis Pellegrino (" Dr. Pellegrino" ), conducted a one-time evaluation of J.H. and diagnosed her with alcohol-related neurodevelopmental disorder, learning disability, sensory integration dysfunction, mood instability with aggressiveness, adjustment disorder, and posttraumatic stress disorder (" PTSD" ). Id. at 385. Dr. Pellegrino also indicated that J.H. exhibited characteristics of Asperger disorder but did not have the " deep-seated communication difficulties and obsessive interests that are frequently associated with that condition." Id. at 384.

J.H.'s health issues were further evaluated by consultative examiner Dennis Noia, Ph.D. (" Dr. Noia" ) on December 7, 2006, who diagnosed J.H. with bipolar disorder not otherwise specified, oppositional defiant disorder (" ODD" ), and provisional PTSD. Id. at 303-06. State Agency review physician Dr. Karen Prowda (" Dr. Prowda" ) evaluated the medical record and opined that J.H.'s impairments are learning disability, bipolar disorder, behavioral problems, ODD and PTSD which she considered " severe." Id. at 313-18.

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J.H. receives accommodations in her regular classroom under section 504 of the Rehabilitation Act of 1973. Id. at 265-67. Her Individualized Education Program (" IEP" ) provides for additional support during class and test modifications. Id. At the time of the administrative hearing, J.H. was in a class of thirteen students with two aides to assist her teacher. Id. at 12.

J.H. shows aggressive, tantrum-like behavior. She does so especially at home with her aunt when asked to undertake certain tasks she does not want to do. Id. at 372. She has previously endangered herself and her aunt when she was enraged; for example, she ran in front of a moving truck, injured her aunt, and damaged objects. Id. at 346-47, 370, 379. To help her cope with her rage, J.H. takes Vistaril and Clonidine as needed. Id. at 38-39.

Both J.H. and Smith testified at length with respect to J.H.'s ability to control her rage and show remorse for her behavior. Id. at 33-34, 53-54, 56-58. Smith acknowledged that J.H.'s anger fits occurred less often in the year before the hearing. Id. at 35. The last tantrum that required police intervention happened eight months before the hearing. Id. at 33-35. According to Smith, J.H. mainly acts out at home but is able to compose herself at ...

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