United States District Court, W.D. New York
DECISION and ORDER
MICHAEL A. TELESCA, District Judge.
Plaintiff Maisha Carson ("Plaintiff"), represented by counsel, brings this action on behalf of her daughter, J.D. ("Claimant") pursuant to Title XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying Claimant's application for Social Security Insurance ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
II. Procedural History
On November 20, 2009, Plaintiff protectively filed an application for SSI, alleging that Claimant has been under a disability beginning May 18, 2005, due to attention deficit hyperactivity disorder ("ADHD") and a learning disability. T.97-116. On February 15, 2011, Administrative Law Judge Michael W. Devlin ("the ALJ") denied the application. T.12-29. On August 13, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. T.1-4. This action followed.
II. Summary of the Administrative Record
With a date of birth of May 18, 2000, Claimant was 5-years-old on the alleged onset date, 9-years-old on the date of the application, and 10-years-old on the date of the ALJ's decision. T.26, 97.
A. Medical Records
On March 12, 2007, Claimant was referred to Licensed Clinical Social Worker Christy Paradise ("Counselor Paradise") at Crestwood Children's Center for her behavioral issues at school and at home. T.194. Claimant repeatedly got into trouble for hitting other children, not listening, and leaving class without permission. T.194. Claimant had been suspended in pre-kindergarten for pulling a boy's pants down and looking under a stall in the bathroom. T.194. At home, Claimant reportedly "accidentally" set the kitchen on fire, and physically fought with her sibling. T.194. Claimant "seemingly struggle[d] most notably with transitions; school change"; "[her] father returning following incarceration, " and with her relationship with her half-sister. T.195. Counselor Paradise concluded, after her examination of Claimant, that she possessed "limited insight into [her] problems." T.196. Counselor Paradise diagnosed Claimant with adjustment disorder with mixed disturbance of emotion and conduct, disruptive behavior disorder, and a sibling relational problem. T.196. Counselor Paradise recommended individual and family counseling sessions, and also recommended a psychiatric evaluation for additional insight into Claimant's diagnosis and for assistance managing a possible medication regime. T.196.
On April 23, 2007, Counselor Paradise noted Claimant's previous "fire-setting behaviors" (although it was not known if such behaviors were intentional or accidental), and the presence of sexualized behaviors in Claimant. T.198. Plaintiff reported that Claimant had been caught with her pants down with a boy on top of her and had been suspended from pre-kindergarten for pulling a boy's pants down and looking under a bathroom stall. T.199. Counselor Paradise noted that Claimant struggled with her behaviors at school while in the 1st grade, and recommended that the Committee of Special Education suggest a possible behavioral plan to better support Claimant while at school. T.199. Counselor Paradise opined that Claimant understood some of her behaviors were inappropriate and even manipulative, but she nevertheless was slow to change them. T.199-200. Counselor Paradise reiterated her diagnosis of adjustment disorder with a mix of disturbing emotional conduct and disruptive behavior disorder. T.200.
On March 4, 2008, pediatric progress notes signed by Social Worker J. Thomas at Genesee Health Service noted that Claimant's teacher had reported continued impulsiveness in Claimant despite being prescribed Concerta for her ADHD. Claimant's behavior was described as "atrocious" when she was off her medication. T.242.
On March 5, 2008, pediatrician Dr. Webber suggested that Claimant take 10 mg of Concerta in the morning and 5 mg at noon. T.242. Claimant was referred for mental health purposes to Christine Steerman, Ph.D. T.242.
On April 24, 2008, Claimant underwent counseling with Dr. Steerman. T.204. Plaintiff reported Claimant does not listen to what she is told to do, fights with her siblings, and has difficulty following rules. T.205. Dr. Steerman diagnosed Claimant with ADHD by history. T.206.
At their May 1, 2008, counseling session, Dr. Steerman asked Claimant about a previous fire she had started in the kitchen of her home. T.207. Dr. Steerman noted that Claimant "put her head down a bit as if embarrassed" and talked about the fire as if it had been purposefully set because "[Claimant] wanted to see the fire trucks come." T.207.
On June 16, 2008, Dr. Steerman met with Plaintiff who reported she saw Claimant hitting her younger brother with a belt. T.209. Plaintiff admitted that she had used a belt on Claimant's brother twice and realized that "this was probably not right." T.209. Plaintiff also stated that Claimant got her brother to eat paint and thinks Claimant convinced him to drink urine. T.209.
On January 8, 2010, consultative examiner Kavitha Finnity, Ph.D., examined Claimant. T 260. Dr. Finnity's medical source statement indicated that Claimant has "difficulty attending to and following age-appropriate directions and completing age-appropriate tasks." T.262. However, she found, Claimant "can adequately maintain appropriate behavior"; "can learn in accordance to [sic] cognitive functioning"; and "interacts adequately with peers and adults." T.262. Dr. Finnity diagnosed Claimant with ADHD and disruptive behavior disorder. T.262. Dr. Finnity recommended individual psychological and psychiatric treatment for Claimant, and parent-effectiveness training for Plaintiff. T.263.
On January 28, 2010, State agency review medical consultant K. Prowda completed a childhood disability form. T.265-66. Dr. Prowda found Claimant had "less than marked" limitations with respect to acquiring and using information and attending and completing tasks. T.267. Dr. Prowda found Claimant had "no limitations" with respect to the following: interacting and relating with others, moving about and manipulating objects, caring for herself, and health and physical well-being. T.268.
B. School Records
On September 27, 2010, Claimant's 5th grade teacher at Henry Hudson School (Rochester City School District #28), Lindsay Robach ("Ms. Robach"), noted that Claimant "was disruptive throughout the lesson and asked to stop several times." T.163. After being moved to another spot in the classroom, Claimant began to shout "inappropriate things", and when asked to go to another room, Claimant refused. T.163.
On September 28, 2010, when Claimant was asked to be quiet in the hallway, she retorted, "[T]est me, you won't do nothing [sic]." T.164.
On September 28, 2010, Claimant's teacher reported that she was "rude [and] disruptive all day." T.165. After serving a lunch detention, Claimant slapped another student across the ...