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Finney ex rel. B.R. v. Colvin

United States District Court, W.D. New York

August 6, 2014

Lateisha Finney, on behalf of, B.R.[1], a minor, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

HUGH B. SCOTT, Magistrate Judge.

Before the Court are the parties' respective motions for judgment on the pleadings (Docket Nos. 9 and 12).

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security that Plaintiff is not disabled and, therefore, is not entitled to disability insurance benefits and/or Supplemental Security Income ("SSI") benefits.

PROCEDURAL BACKGROUND

Plaintiff Lateisha Finney ("Plaintiff") filed an application for SSI benefits on behalf of her son B.R. ("Claimant"), who was 10 years old, on June 14, 2010. That application was denied initially and on reconsideration. Plaintiff appeared before an Administrative Law Judge ("ALJ"), who considered the case de novo and concluded, in a written decision dated March 5, 2012, that Claimant was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner on May 2, 2013, when the Appeals Council denied Plaintiff's request for review.

Plaintiff subsequently commenced this action (Docket No. 1). The parties have moved for judgment on the pleadings. The motions were argued and submitted on papers (Docket No. 8).

FACTUAL BACKGROUND[2]

Medical

On June 2, 2010, B.R. was admitted to the emergency room ("ER") at the Kaleida Health Center after he had been in a fight at school. (R. 203). The examining physician, Saikat Pal, M.D., noted that B.R. had been tripped by another student and hit his head. (R. 203). Dr. Pal diagnosed behavioral problems and a head injury. (R. 205). B.R. was released on the same day and advised to see Dr. Wayan McCoy. (R. 207).

On June 14, 2010, B.R. saw Dr. McCoy, of Lifetime Health Medical Group ("Lifetime Health"). (R. 264). Plaintiff reported to Dr. McCoy that B.R. had behavioral problems which began one year prior, and eventually culminated in the altercation at school that sent B.R. to the ER. (R. 264). B.R.'s physical examination was unremarkable, and Dr. McCoy prescribed Adderall, 20 mg. (R. 265).

On July 8, 2010, B.R. saw Stephanie Fretz, M.D., also associated with Lifetime Health. (R. 262-63). Dr. Fretz noted that B.R. had been on medication for one month. (R. 262). Plaintiff reported to Dr. Fretz that the medication was working well, B.R. was much calmer, and there was a notable difference in behavior when he ran out of medication. (R. 262). Plaintiff stated that B.R.'s tutor noted an improvement in his behavior on medication, particularly that he was more focused. (R. 262). Plaintiff did report that B.R. initially had trouble sleeping when he began his medication, but did not have trouble sleeping at the time of the appointment. (R. 262). Dr. Fretz continued B.R. on medication and instructed Plaintiff to increase B.R.'s caloric intake. (R. 263).

On August 6, 2010, B.R. returned to Dr. McCoy for a follow-up examination. (R. 260-61). Dr. McCoy found that B.R. was doing well on his dosage of Adderall, and the physical examination was unremarkable. (R. 259-60). Dr. McCoy noted that B.R.'s ADHD had improved and he renewed B.R.'s medication. (R. 260).

On August 25, 2010, B.R. was examined by Sandra Jensen, Ph.D., at the request of the Commissioner. (R. 280). Plaintiff told Dr. Jensen that B.R. was defiant, lost his temper easily, and had difficulty paying attention. (R. 280). Plaintiff reported that B.R. was taking Adderall, 20 mg, and did not mention any side effects. (R. 281). Plaintiff also stated that counseling with a mental health specialist had been recommended, but she did not follow through. (R. 280).

Dr. Jensen noted that throughout the examination, B.R. was responsive and cooperative. (R. 281). His manner of relating and his social skills were age-appropriate. (R. 281). B.R. reported that he had friends. (R. 283). He stated that his relationship with his brother was strained, but his relationship with his sister was good. (R. 283). Plaintiff reported that B.R. was able to bathe, dress himself, and feed himself, and did chores, although he sometimes needed reminders. (R. 282).

Dr. Jensen also observed that B.R.'s speech was normal, his intelligibility was good, his thought process was goal-directed, his mood was neutral, and his sensorium was clear. (R. 282). B.R. was fully oriented to person, place, and time. (R. 282). His attention and concentration were intact, and he was able to do simple calculations and count back from 10. (R. 282). His recent and remote memory was also intact, as he was able to recite three objects immediately and three objects after one minute. (R. 282).

Additionally, Dr. Jensen administered the Wechsler Intelligence Scale for Children, Fourth Edition, ("WISC-IV") intelligence test. (R. 287). B.R. scored 63 in verbal comprehension, 96 in perceptual reasoning, 86 in working memory, and 70 in processing speed, with a full scale IQ of 67. (R. 287). Dr. Jensen opined that the results should be treated with some caution because there was such a large span between the verbal and perceptual reasoning scores. (R. 287-88). Based on that span, she believed that the verbal score was likely not an accurate reflection of B.R.'s ability, and that the full scale score probably underestimated his current intelligence. (R. 288).

Dr. Jensen concluded that B.R. had a mild limitation in attending to, following, and understanding age-appropriate directions; completing appropriate tasks; maintaining appropriate social behavior; responding appropriately to changes in environment; learning in accordance with cognitive functioning; asking questions/requesting assistance in an age-appropriate manner; being aware of dangers and taking precautions; and interacting adequately with adults and peers. (R. 283, 288-89).

On September 10, 2010, T. Andrews, Ph.D., a State agency psychologist, reviewed the medical evidence in the record, and assessed that B.R.'s impairments did not meet a Listing contained in the Commissioner's regulations. (R. 291). Dr. Andrews assessed that B.R. had a marked limitation in the domain of interacting and relating with others; a less than marked limitation in the domains of acquiring and using information, attending and completing tasks, and caring for himself and others; and no limitation in the domains of moving about and manipulating objects, and health and physical well-being. (R. 296-97).

On October 14, 2010, B.R. returned to Dr. Fretz for a follow-up examination. (R. 318-19). Plaintiff admitted that B.R. had been out of medications since late September. (R. 318). Dr. Fretz noted that Plaintiff never picked up the medication that was prescribed for B.R. on September 30. (R. 318). Plaintiff reported that B.R.'s school wanted him to be on medication, and he was attending school in a regular classroom but might need extra help. (R. 318). B.R. was able to get his homework done, but the school complained about his fighting. (R. 318).

On October 15, 2010, B.R. returned to Dr. McCoy, where Plaintiff reported that B.R.'s behavior had worsened since the last visit. (R. 313, 318). Dr. McCoy's notes did not state whether he knew that B.R. had not been taking Adderall for a few weeks at the time of his appointment. Dr. McCoy increased B.R.'s Adderall dosage to 30 mg. (R. 314).

On January 26, 2011, B.R. returned to Dr. McCoy for a follow-up examination. (R. 309-10). Plaintiff reported that B.R. had been doing well, until the day before when he fought at school. (R. 309). Plaintiff did admit, however, that she had again allowed B.R.'s medications to run out. (R. 309). B.R. was suspended from school and would only be allowed back if he brought in his medication. (R. 309). Dr. McCoy renewed B.R.'s prescription for Adderall. (R. 307).

On August 4, 2011, B.R. returned to Dr. Fretz. (R. 307-8). Plaintiff confessed that B.R. had not taken medication since January 2011. (R. 307). She stated that he missed appointments and medications because she lost her car. (R. 307). She also claimed that the school had reported a change in his behavior since he was off his medications, and wanted him to resume them before he returned to school in September. (R. 307). She stated that when he was on medication he focused better and was not fighting with others. (R. 307). Plaintiff also mentioned that B.R. had finished the fourth grade but was not sure if he would be going into fifth grade, or repeating fourth grade in September. (R. 307). His teacher thought B.R. could advance academically, but it was up to Plaintiff to decide if he should be held back. (R. 307). Dr. Fretz renewed B.R.'s prescription for Adderall. (R. 307).

Vocational & School

School records reveal that B.R. was suspended from school on multiple occasions from 2008 to June 2010 for his behavior, including ...


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