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Lester v. Colvin

United States District Court, W.D. New York

August 6, 2014

JORDAN LAWRENCE LESTER, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

DECISION and ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Represented by counsel, Jordan Lawrence Lester ("Plaintiff"), brings this action 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")[1] denying his application for Supplemental Security Income ("SSI"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. ยงยง 405(g), 1383(c).

II. Procedural History

Plaintiff's mother, Camille Lester, filed an application for SSI child's benefits on Plaintiff's behalf on June 24, 2009, alleging that Plaintiff was disabled due to attention deficit hyperactivity disorder ("ADHD"). T. 153-55, 180.[2] The initial application was denied, and Ms. Lester requested a hearing before an Administrative Law Judge ("ALJ"). T. 73-75. Plaintiff had his 18th birthday on March 30, 2010, while he awaited his hearing. T. 43.

On March 29, 2011, a hearing was conducted by telephone with Plaintiff, his mother, and his attorney present. T. 19-42. On April 7, 2011, the ALJ issued a 16-page decision determining that Plaintiff was not eligible for SSI under either the standard applied for children or that for adults. T. 44-62. The ALJ's determination became the final decision of the Commissioner on December 15, 2011, when the Appeals Council denied Plaintiff's request for review. T. 1-3. This action followed. Dkt. #1.

Now pending before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. ##5, 6. For the reasons that follow, the Commissioner's motion is granted, and Plaintiff's motion is denied.

III. Factual Background

Plaintiff, born March 30, 1992, was 17 years old on the date of his filing for SSI benefits and 18 years old on the date of his hearing. T. 21, 51.

A. Medical Evidence

1. Plaintiff's Providers

Plaintiff was evaluated by Mark Zali, school psychologist, on December 5, 2007 when Plaintiff was in the 9th grade. Zali noted that Plaintiff was classified as "Emotionally Disturbed, " and took Ritalin for ADHD. Plaintiff's composite, verbal, and nonverbal IQ scores were within Average range. T. 310. At that time, Plaintiff was failing most of his courses, required assistance with organization, task completion, and had difficulty concentrating. T. 308-311. Zali recommended a change in classification to "Other Health Impairment" to reflect Plaintiff's ADHD diagnosis. T. 311-12.

Kimberly Jackson, M.D., treated Plaintiff for the management of his ADHD. T. 327-28. Treatment notes dated November 18, 2010 show that Plaintiff was prescribed Strattera with "excellent and fair" medication compliance. T. 327. Dr. Jackson noted that while Plaintiff showed no improvement in the areas of social relationships, disruptive behavior, academic performance, independence, self-esteem, and safety in the community, he did show improvement in a multitude of other areas relating to focus, organization, attention, distractibility, and listening. T. 327.

2. Consultative Examinations

Plaintiff underwent a consultative child psychiatric evaluation by Renee Baskin, Ph.D., on August 17, 2009, when he was 17 years old and entering the 9th grade. T. 284-87. He described difficulty falling asleep and insomnia. T. 284. General behavior was remarkable for losing his temper, being actively defiant, or noncompliant, as well as remarkable symptoms of hyperactivity. Id . Attention and concentration were intact. T. 285-86. Though intellectual functioning was estimated to be "below average range, " Dr. Baskin observed that Plaintiff appeared to be a "fairly bright young man" whose psychiatric problems may have a negative impact on his ability to function academically. T. 286. Dr. Baskin concluded that Plaintiff would have minimal to no limitations being able to attend to, follow, and understand age appropriate directions, complete age appropriate tasks, ask questions and request assistance, and interact adequately with peers and adults. Plaintiff would have moderate limitations being able to adequately maintain social behavior. T. 286. Finally, she noted that Plaintiff's prognosis was "fair, given that [he] seek therapy, " and recommended psychological treatment and educational services. T. 287.

A consultative pediatric examination was conducted by Samuel Balderman, M.D., on September 2, 2009, which indicates a 14-year history of migraine headaches and mental health issues. T. 288. Frequency of headaches were two per month, lasting approximately two hours. Id . Diagnoses were headaches and learning disability and the examiner opined no physical limitations. T. 291.

A Childhood Disability Evaluation Form dated November 9, 2009 by State Agency non-examining review physician J. Meyer indicates severe impairments that do not meet the Social Security Listings. T. 295-96. Limitations were "none" or "less than marked" in every category. T. 297-98. Attributes were attention-seeking, immature, poor organization, and poor focus. T. 297.

B. Non-medical Evidence

1. Hearing Testimony

At the hearing, Plaintiff, who was 18 years old at the time, testified that he could not work because he had ADHD, for which he took medication and saw a doctor every 2-3 months. T. 28. He stated that he had trouble paying attention, and had difficulty with math, such as algebra, but could perform basic arithmetic and could use a checking account. T. 29-30. Plaintiff had no difficulties writing, watching television, and could remember and follow multiple-step instructions. T. 30. Plaintiff could use a computer, shop, travel by bus or subway, and help with household chores. T. 26-27. Socially, Plaintiff went to the movies and visited with friends. T. 26.

In addition to ADHD, Plaintiff testified that he suffered from migraine headaches, for which he took Excedrin. T. 41. He reported his headaches to last 30 minutes and required him to rest for a few hours. T. 41-42.

Ms. Lester also testified at Plaintiff's hearing. She stated that Plaintiff had ADHD and Oppositional Defiant Disorder ("ODD") while growing up, had difficulty with authority, and that his condition had not really improved as he grew up, except that he had fewer tantrums. T. 34-35.

2. School Records

During the 2006-07 school year, Plaintiff was enrolled in Special Education ("SE") classes for English Language Arts, Math, Social Studies, and Science. T. 222. He repeated the 9th grade three times and the 7the grade twice. T. 31, 256. Plaintiff had a history of poor academic achievement and behavioral issues due to distractibility, sleeping, poor organization, and difficulty focusing. T. 256-57. Also noted in Plaintiff's school records were inconsistent social judgment and poor social skills. T. 257. Plaintiff was often suspended, absent, or tardy from school. T. 267-83.

An Individualized Education Program ("IEP") Annual Review for the 2009-10 school year indicates ongoing classification in SE as Emotionally Disturbed with additional diagnosis of ADHD. T. 303. The IEP notes the same difficulties and issues with Plaintiff's behavior, peer relationships, and academics as previously mentioned, and further notes that testing completed in December, 2007 yielded average results in decoding, calculation, and math fluency, and high-average fluency for reading. T. 301-07. The IEP states that Plaintiff needed to develop grade appropriate organization and study skills. T. 303.

3. Vocational Expert Testimony

The ALJ obtained the testimony of James Newton, Vocational Expert ("VE").

The ALJ posited a hypothetical question to the VE, asking whether work existed in significant numbers for an individual who was restricted to work at all exertional levels that was simple, routine, repetitive; was in an environment free of fast-paced production requirements; involved only simple work-related decisions and routine workplace changes; and required only occasional interaction with the public and co-workers. T. 39. In response, the VE identified three unskilled medium jobs: hospital cleaner (50, 000 positions nationally, 6, 600 ...


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