GRETCHEN ANNE THIBEAULT, on behalf of J.T., a minor, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,  Defendant.
MYERS QUINN & SCHWARTZ LLP, LEWIS L. SCHWARTZ, of Counsel Buffalo, New York, Attorneys for Plaintiff.
WILLIAM J. HOCHUL, JR., UNITED STATES ATTORNEY, KEVIN D. ROBINSON, Assistant United States Attorney, of Counsel Buffalo, New York, and STEPHEN P. CONTE, Regional Chief Counsel, Region II, and AMANDA LOCKSHIN, Assistant Regional Counsel Office of the General Counsel Social Security Administration, Attorney for Defendant.
REPORT and RECOMMENDATION
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned on May 9, 2013 for pretrial matters, including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on motions for judgment on the pleadings filed on January 3, 2013, by Defendant (Doc. No. 10), and by Plaintiff (Doc. No. 12).
Plaintiff Gretchen Anne Thibeault ("Plaintiff"), on behalf of her son J.T., a minor, seeks review of Defendant's decision denying Supplemental Security Income based on childhood disability ("SSI") ("disability benefits") under Title XVI of the Social Security Act ("the Act"). In denying Plaintiff's application for disability benefits, Defendant determined that although J.T., a school-age child, has not engaged in substantial gainful activity since June 23, 2008, the disability benefits application date, and suffers from the severe impairments of a learning disability, speech and language delays, macrocephaly, and hydrocephalus, J.T. does not have an impairment or a combination of impairments within the Act's definition of impairment. (R. 11). As such, J.T. was found not disabled, as defined in the Act, at any time through the date of the Administrative Law Judge's decision. (R.20).
Plaintiff protectively filed an application for disability benefits on behalf of her minor son ("J.T." or "the minor child"), on June 23, 2008, claiming a disability onset date of December 25, 2002. (R. 72-74). The application initially was denied on February 18, 2009. (R. 46-50). Pursuant to Plaintiff's request, filed March 26, 2009 (R. 53), an administrative hearing was held by videoconference before Administrative Law Judge ("ALJ") Jennifer Whang ("ALJ Whang"), on September 7, 2010. (R. 25-45). Plaintiff, represented by Clifford J. Falk, Esq. ("Falk"), and the minor child, J.T., appeared and testified at the hearing. (R. 25-45). In her decision, dated September 20, 2010, the ALJ found J.T. was not disabled. (R. 20). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on March 21, 2012. (R. 1-4). This action followed on April 27, 2012.
Defendant's answer to the Complaint, filed on August 8, 2012, (Doc. No. 5), was accompanied by the manually filed record of administrative proceedings. On January 3, 2013, motions for judgment on the pleadings were filed by Defendant (Doc. No. 10) ("Defendant's motion"), accompanied by a Memorandum of Law (Doc. No. 11) ("Defendant's Memorandum"), and by Plaintiff (Doc. No. 12) ("Plaintiff's motion"), also accompanied by a Memorandum of Law (Doc. No. 13) ("Plaintiff's Memorandum"). On February 25, 2013, Plaintiff filed a response to Defendant's motion (Doc. No. 17) ("Plaintiff's Response"), and Defendant filed a response to Plaintiff's motion (Doc. No. 18) ("Defendant's Response"). On March 14, 2013, Plaintiff filed a reply in further support of Plaintiff's motion. (Doc. No. 19) ("Plaintiff's Reply"). Oral argument was deemed unnecessary.
Based on the following, Defendant's motion should be GRANTED, and Plaintiff's motion should be DENIED.
Since his premature birth on March 21, 2002, at 35 weeks gestation (R. 330), J.T., the minor child, has been treated for several medical concerns. In particular, shortly after birth, J.T. had some jaundice which was treated with four days of phototherapy, and suspected pneumonia, which was treated with antibiotics and resolved by March 26, 2002. (R. 330-34). When discharged on April 2, 2002, J.T. had clear and equal breath sounds, and good air exchange, normal muscle tone and reflexes, and normal hearing, but was to be monitored for apnea (period in which breathing stops), and bradycardia (slowed heart rate). (R. 330-32). J.T. was also born with an undescended testicle. (R. 315).
On April 23, 2002, pediatric cardiologist Daniel R. Pieroni, M.D. ("Dr. Pieroni"), examined J.T., noted a heart murmur was first detected at three weeks of age, and an April 19, 2002 echocardiogram showed a mild degree of pulmonary valve stenosis, unassociated with any apnea, which was not expected to cause any cardiac or pulmonary compromise. (R. 329). SBE prophylaxis was prescribed (course of antibiotics to protect against bacterial endocarditis), but no restrictions. Id.
Although J.T. passed his newborn hearing screening in both ears, because J.T. received antibiotic medications while hospitalized following birth, J.T. was referred for an auditory brainstem response evaluation to rule out any hearing loss attributed to his history of respiratory illness and antibiotics. (R. 341). The evaluation was performed on May 17, 2002, by licensed audiologist Valerie J. Shields, M.A. CCC/A ("Shields"), who assessed J.T.'s results as "consistent with normal hearing in the low, mid and high pitches in both ears, " and no evidence of auditory brainstem dysfunction, yet delayed absolute latencies in the right ear suggested the presence of a conductive component (blockage). Id. On May 1, 2002, J.T. underwent an initial pediatric pulmonary - apnea consultation at The Children's Hospital of Buffalo, New York ("Children's Hospital"), at which time J.T. was noted to have "been well" with "great growth" and no "significant alarms." (R. 335-36).
On August 6, 2002, J.T. underwent a developmental evaluation by pediatric nurse practitioner Nancy Lyon, PNP ("PNP Lyon"), at Rainbow Pediatrics, Lewiston, New York. (R. 325-27). At that time J.T. had "normal cognitive, pre-language and motor ability for corrected age" and "normal neurological exam, " with reassessment of J.T.'s developmental progress in six months recommended. (R. 327).
An echocardiogram taken on October 4, 2002 showed mild peripheral pulmonary stenosis (heart murmur). (R. 323-24). Upon examination by Dr. Pieroni on November 4, 2002, external examination of heart by stethoscope "revealed a Grade I barely audible early systolic murmur of the second left interspace." (R. 323). Dr. Pieroni's impression was that J.T. "has only mild peripheral pulmonary stenosis" requiring neither restrictions nor SBE prophylaxis, and J.T. "may eventually turn out to have a normal heart, " and "anticipate[d] that the murmur may disappear." Id.
On December 25, 2002, J.T. was admitted to Children's Hospital in Buffalo, New York, with fever, vomiting, and a full fontanelle (swelling in infant's skull's "soft spot"). (R. 321, 317). A CT scan of J.T.'s head revealed hydrocephalus (fluid accumulation on the brain) and mild macrocrania (enlarged skull), (R. 317), but J.T. was discharged on December 26, 2002. (R. 321-22).
J.T. was referred to pediatric neurosurgeon Veetai Li, M.D. ("Dr. Li"), who, on January 9, 2003, found J.T.'s "neurologic exam and development remained on target." (R. 317). Although J.T.'s head circumference measured at the 95th percentile when corrected for his premature birth, it was "tracking along a normal curve" and Dr. Li did not feel any treatment was warranted at that time, but would continue to monitor the condition. (R. 317-18). At a follow-up appointment on February 6, 2003, Dr. Li examined J.T., reporting J.T. had "intermittent bouts of fullness of his fontanelle, " but was "doing well" with head growth "as expected." (R. 316). J.T. had one episode of intermittent vomit in the past month, but Dr. Li had no "overwhelming concerns" regarding J.T.'s hydrocephalus, and planned to examine J.T. in six weeks. Id. At a further follow-up appointment on March 12, 2003, Dr. Li reported J.T. was "combat crawling, but not yet pulling himself to a stand, cruising, or walking, " and "[t]here have been no periods of unexplained vomiting, irritability, lethargy or seizure activity." (R. 314). J.T. was "awake, alert and interactive with a soft and sunken anterior fontanelle." Id. Although J.T.'s head circumference remained above the 95th percentile, J.T. was "paralleling a normal growth curve" with "age appropriate and non focal" neurological examination. Id. Dr. Li did not find J.T.'s macrocrania to be "of major consequence at this point, " and did not attribute J.T.'s "developmental issues" to his "benign" hydrocephalus. Id.
On March 12, 2003, J.T. was examined by pediatric urologist Saul P. Greenfield, M.D. ("Dr. Greenfield"), regarding his undescended left testicle. (R. 315). Dr. Greenfield assessed J.T. as having a retractile testicle, recommended no intervention at that time, but suggested annual evaluation. Id.
On April 22, 2003, J.T. was examined by Dr. Pieroni who reported an April 3, 2003 echocardiogram was "normal." (R. 313). Although J.T. was "uncooperative throughout most of the study.... no abnormality of anatomy and function was noted." Id. Dr. Peironi opined that J.T. "probably does have a normal heart, " the peripheral pulmonary stenosis "has resolved" and no restrictions nor SBE prophylaxis was recommended. Id.
Dr. Li examined J.T. on June 4, 2003, in connection with Plaintiff's reports that on several occasions J.T. had grabbed his head and cried during the night, but quieted down and fell back to sleep after Plaintiff picked him up. (R. 312). Dr. Li found J.T. to be "paralleling a normal growth curve, " "stable, " and "exhibiting no new concerns with regard to his mild macrocrania." Id.
On July 21, 2003, J.T. underwent a developmental follow-up evaluation from the neo-natal intensive care unit, performed by physical therapist Amy France, PT ("PT France"), at the Robert Warner Rehabilitation Center. (R. 309-10). At that time, Plaintiff had no particular concerns regarding J.T.'s development other than believing J.T. to be "a little behind in terms of his motor development." (R. 309). PT France reported J.T.'s mental examination was "within normal limits, " motor examination was "mildly delayed, " and adaptive behavior was "good" and "typical" for his age. Id. Physical examination showed J.T. "presents with age appropriate range of motion, " muscle tone was within normal limits, " and good muscle strength. (R. 310). Motor function and movement were good, with gross motor skills characterized as "beginning to ambulate." Id. Specifically, J.T. could pull to standing through a half knee, and creeping was his primary means of mobility which was assessed at the 25th percentile on the Alberta Infant Motor Scale. Id. Dr. France's impression was that J.T. had "good language skills, a mild delay in his fine and gross motor abilities." Id.
Upon examination by Dr. Li on November 19, 2003, J.T. continued "paralleling a normal growth curve, " was "doing well" and "exhibiting no new issues." (R. 308). Although Plaintiff complained of "spells of irritability, " Dr. Li was unable to "correlate it with his benign macrocrania." Id.
In December 2003, J.T. was examined by ear, nose and throat specialist Parmanand K. Parihk, M.D. ("Dr. Parihk"), for persistent effusion (fluid) in the ears, and recurring otitis media (inflammation of the middle ear). (R. 353). Upon follow-up examination on March 29, 2004, Dr. Parihk reported J.T. had middle ear effusion with inflamed tympanic membrane, and remarked that if J.T.'s middle ear inflammation did not resolved after a 10-day course of omnicef (antibiotic used to treat middle ear infections), tubes would be considered. (R. 303). On May 26, 2004, J.T. underwent bilateral myringotomy (surgical procedure involving tiny incision of eardrum to relieve pressure cause by excessive fluid) and insertion of ear tubes performed by Dr. Parihk, which J.T. tolerated well. (R. 298, 353).
On June 28, 2004, J.T. commenced Early Intervention Program ("EIP") individual therapy sessions for "[s]evere receptive and expressive language delays commensurate with a severe delay in the area of speech production, " attending 94 treatments between June 28, 2004 and August 31, 2005. (R. 270). The therapy was provided by speech and language pathologist Dana L. Benjamin, M.S.Ed. CCC/LSLP ("SLP Benjamin"), through Children and Adults with Special Needs.
In July and August 2004, J.T. was evaluated by Dr. Greenfield in connection with Plaintiff's concerns of frequent urination. (R. 284, 292, 293, and 352). A renal/aorta ultrasound performed on July 23, 2004 at Mount St. Mary's Hospital and Health Center in Lewiston, New York, showed a "negative study" which was "limited" based on J.T.'s inability to hold still. (R. 293). J.T's kidneys were "grossly normal in size and appearance, " without gross hydronephrosis (swelling causes by obstruction of urinary tract). An August 5, 2004 voiding cystourethrogram performed at Children's Hospital showed significant postvoid residual, but no other significant findings. (R. 292). Upon examination on September 14, 2004, Dr. Greenfield, questioned Plaintiff's concerns that J.T. was frequently urinating given that J.T. was not toilet-trained and still in diapers, and opined J.T. was "normal." (R. 284).
On September 23, 2004, J.T., then 30 months old, was seen by PNP Lyon for developmental follow-up, at which time J.T.'s assessments included mental evaluation of "mildly delayed" with cognitive/visual age of 21.5 months, language age of 22.2 months, gross motor age of 20 months, fine motor age of 18-20 months, and adaptive/behavior assessment included fair quality of response and variable attention span and interest level. (R. 280-81). J.T.'s physical examination showed normal passive tone and range in both upper and lower extremities, and J.T. used both hands, walked, ran, climbed up stairs with railing and downstairs with hand held. (R. 281). PNP Lyon's impressions and summary included delayed cognitive, communication and motor ability, active with a short attention span and impulsivity during assessment, head circumference greater than 97th percentile, which was being followed by neurosurgeon, and Plaintiff was to request an audiology evaluation through Dr. Parihk. Id. PNP Lyon recommended continuing EIP services and requesting an occupational therapy supplemental evaluation. Id.
Dr. Li examined J.T. in follow-up for his benign macrocrania on November 3, 2004, at which time Plaintiff reported J.T. was "doing well" but was somewhat concerned about J.T.'s speech pattern, explaining J.T. sometimes "slurs" his words, but was receiving speech therapy. (R. 279). Dr. Li reported J.T. had no periods of unexplained vomiting, irritability, lethargy or seizure activity, and "[i]n terms of development, he is essentially age appropriate in all spheres of development except for perhaps his speech skills as his vocabulary is somewhere between 20-50 words and is just stringing two words together." Id. Although J.T.'s head circumference remained above the 95th percentile, J.T. was "essentially paralleling a normal growth curve." Id. Dr. Li considered J.T. "stable" and "not exhibiting new concerns with regard ...