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Laferrera v. Commissioner of Social Security

United States District Court, E.D. New York

March 31, 2017

SUSAN LAFERRERA O/B/O M.J.S., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM & ORDER

          PAMELA K. CHEN, United States District Judge

         Plaintiff Susan LaFerrera (“LaFerrera” or “Plaintiff”) brings this action on behalf of her minor son, M.J.S. (“M.J.S.” or “Claimant”), under 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the February 4, 2013 determination of the Commissioner of Social Security (the “Commissioner”) that M.J.S. is not entitled to Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security Act (“SSA”). The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Commissioner seeks to have the Court affirm the Commissioner's disability determination. Plaintiff seeks reversal of the Commissioner's decision and requests a remand solely for the purpose of approval and calculation of SSI benefits.

         For the reasons set forth below, Defendant's motion is DENIED, and Plaintiff's motion is GRANTED in part and DENIED in part. The Court reverses the Commissioner's decision and remands M.J.S.'s claim to the Commissioner for further proceedings consistent with this Order.

         BACKGROUND

         I. Procedural History

         On July 27, 2011, Plaintiff, M.J.S.'s mother, applied for SSI benefits on behalf of M.J.S., alleging that her son had been disabled since birth[1] due to asthma, Crohn's disease (chronic inflammation of the colon), [2] colitis, [3] Gastroesophageal Reflux Disease (“GERD”), severe food allergies, and irritable bowel disease. (Tr. 142, 178-87, 204, 259.)[4] On October 5, 2011, the claim was denied. (Tr. 143-48.) On November 29, 2011, Plaintiff requested a hearing before an ALJ, and on December 3, 2012, ALJ James Kearns presided over a hearing, in which Plaintiff testified. (Tr. 160, 76-88.) The ALJ issued a written decision on February 4, 2013, concluding that M.J.S. was not disabled and therefore not entitled to SSI benefits. (Tr. 54-75.) The ALJ's decision became the final decision of the Commissioner on January 28, 2015, when the Appeals Council of the Office of Disability Adjudication and Review denied Plaintiff's request for review of the ALJ's decision. (Tr. 1-6.) Plaintiff timely commenced this action on April 1, 2015, and cross-motions for judgment on the pleading were fully briefed on January 29, 2016.

         II. Nonmedical Evidence

         Claimant M.J.S. is a male child, born on June 27, 2005. (Tr. 80.) At the time Plaintiff filed for SSI benefits, M.J.S lived with his mother and his sibling (Tr. 80) and was in first grade at ¶ 29, a public school in Staten Island, New York. (Tr. 207.)

         As part of M.J.S.'s SSI benefits application, Plaintiff completed a Function Report (Tr. 193-202), a Disability Report (Tr. 207), and an asthma questionnaire (Tr. 220-22) on behalf of M.J.S. Plaintiff also submitted documentation from a school accommodation request for M.J.S. for the 2011-2013 school years. (Tr. 210-11, 218, 323, 636, 638-39.)

         A. Disability and Function Reports and Plaintiff's Testimony

         In an August 12, 2011 Disability Report, Plaintiff reported that M.J.S. was taking medications for asthma, colitis, allergies, and GERD. (Tr. 206.) Specifically, M.J.S. was taking Albuterol, Flonase, Flovent, and Singulair for his asthma; Colazol for colitis; an Epi-Pen for allergies; and Nexium for acid reflux. (Id.) Plaintiff also reported that M.J.S. primarily relies on Pediatric EO 28, a special formula, for his nutrition. (Id.)

         In an August 12, 2011 Function Report, Plaintiff reported that M.J.S.'s medical conditions affect his ability to take care of personal needs and that he is unable to tie his shoelaces, take a bath or shower without help, wash his hair by himself, hang up clothing, or obey safety rules. (Tr. 200.) The report noted, however, that M.J.S. was able to use zippers, button clothes, brush his teeth, comb his hair, choose clothes, use utensils, put away toys, help around the house, generally follow instructions, get to school on time, and accept criticism. (Tr. 200.) Plaintiff also indicated that M.J.S.'s physical abilities were not limited. (Tr. 198.)

         In a November 29, 2011 Disability Report, Plaintiff reported that M.J.S.'s condition had worsened since she had previously submitted the initial Disability Report on August 12, 2011; specifically, Plaintiff noted that M.J.S. was experiencing blood in his stool after eating solid foods. (Tr. 229.) The new Disability Report noted that M.J.S. had difficulty caring for his personal needs and that someone had to be with him at all times at school “because he needs to be rushed to the bathroom.” (Tr. 233.)

         At the December 3, 2012 hearing before the ALJ, Plaintiff was the only one who testified. (Tr. 76-88.) M.J.S. was present at the hearing. (Tr. 76.) Plaintiff testified that when M.J.S. was born, he had lung problems which required CPAP[5] and was in the NICU[6]. (Tr. 86.) She testified that by the time M.J.S. was 13 months old, he was diagnosed with Crohn's disease, irritable bowel, and asthma. (Tr. 80.) She identified Dr. Eberhardt as M.J.S.'s primary doctor, Dr. Spergel as his allergist, and Dr. Ritu Verma as his gastroenterologist. (Tr. 83-84). Noting M.J.S.'s other conditions such as acid reflux, multiple food allergies, nonspecific colitis, enterocolitis, [7] and eosinophilic esophagitis, [8] Plaintiff explained that, because all of M.J.S.'s conditions are closely related, it has been difficult to figure out whether M.J.S.'s symptoms were caused by allergens or by his intestinal disease. (Tr. 81.) She testified that diagnoses had been “going up and down, and all over the place.” (Id.) She explained that M.J.S. has an endoscopy, colonoscopy, and scoping every six months at the Children's Hospital of Philadelphia (“CHOP”) and that he once experienced complications during a procedure. (Tr. 82.) When the ALJ asked if M.J.S.'s colitis was currently active or in remission, Plaintiff testified that M.J.S. can “stay stabilized for a good period of time”-that is five to seven days-depending on what M.J.S. eats. (Tr. 85.) She testified that M.J.S. suffered an “attack” at least once a week due to his gastro-intestinal conditions. (Tr. 85.) She said that on some days, M.J.S. would have severe bloody stools and then be “just fine” on other days. (Tr. 86.) Still, M.J.S. complains of stomach pain on a daily basis. (Id.)

         When the ALJ further asked about how M.J.S.'s conditions affect him, Plaintiff testified that he cannot go out and play like other children (Tr. 86), and that he is constantly under supervision by a paraprofessional at school due to his severe allergies. (Tr. 86, 87.) She recalled an incident where M.J.S. went into an asthmatic attack at school after someone had sprayed Febreze on a carpet. (Tr. 86.) When asked by the ALJ if M.J.S. had any developmental problems, Plaintiff responded: “He's been pretty much on track with school, and growth patterns.” (Tr. 81.) No one else testified at the hearing. (Tr. 78-88.)

         B. Asthma Questionnaire

         Plaintiff also completed an asthma questionnaire as part of the SSI benefits application. (Tr. 220-22.) She stated that M.J.S. was taking Flovent, Flonase, Singulair, Albuterol, and Xopanek for asthma until August 26, 2011, but that the doctor had prescribed a new set of medication (Advair, Flonase, Patanol, and an Epi-Pen) due to non-improvement. (Tr. 220.) Plaintiff noted that M.J.S. had multiple breathing issues and asthma attacks “per week and per month, ” and that M.J.S.'s ability to breathe is affected daily by movement, running, air temperature and quality, and food allergies. (Tr. 220.)

         C. School Records

         Plaintiff had requested school accommodations for M.J.S. for the 2011-2013 school terms. (Tr. 210-11, 218, 323, 636-39.) Plaintiff requested, inter alia, that an aide or paraprofessional be present at school for all of M.J.S.'s food, cafeteria, and snack time to help him avoid food allergies. (Tr. 210, 323, 636, 638.) Plaintiff also requested that the school provide a paraprofessional who can recognize symptoms of allergy, and asthma and help M.J.S. with colitis flares. (Tr. 210-11, 323, 636.)

         In two School Asthma Questionnaires, dated August 1, 2011 and June 26, 2012, Plaintiff noted that M.J.S. was diagnosed with asthma in 2008. (Tr. 217, 258.) She listed the following triggers in the questionnaire: change in temperature, animals, colds, smoke, exercise, and dust. (Tr. 217, 258.)

         III. Medical Evidence

         A. Treatment for GERD and Crohn's Disease

         M.J.S. has been a patient at CHOP since 2006 (i.e., since he was 14-months old) for his multiple medical conditions. (Tr. 650, 314.) Dr. Ritu Verma, a gastroenterologist at CHOP treated M.J.S. on June 2, 2010 (Tr. 314-15), November 13, 2010 (Tr. 310-12), and February 2, 2012 (Tr. 306-07). On June 2, 2010, Dr. Verma noted that M.J.S.'s rectal bleeding was not improving and that a colonoscopy was needed. (Tr. 314.) She listed M.J.S.'s medications as Nexium, an Epi-Pen, Flonase, Floven, Colazal, an albuterol inhaler, Singulaire, and Benadryl. (Tr. 306-07, 310, 314.) M.J.S. underwent an esophagogastroduodenoscopy (“EGD”)[9] and a colonoscopy yearly from 2007 to 2011. (Tr. 355-574.) M.J.S. complained of blood in his stools and vomiting. (Tr. 364, 422.) The 2007 endoscopy showed “marked focal erythema, ”[10] in the stomach which the physician suspected may have been caused by vomiting. (Tr. 374.) The duodenum and esophagus appeared normal. (Id.) The 2007 colonoscopy revealed an anal fissure[11] and presence of nodular tissue (known as lymphonodular hyperplasia)[12] of the ascending colon, [13] but there were no masses or polyps.[14] (Tr. 376.) Biopsies from 2007 revealed some evidence of ileitis[15]. (Tr. 381.) The 2008 EGD was normal (Tr. 415), but the 2008 colonoscopy revealed mild friability[16] of the colon (Tr. 414). The 2008 biopsies indicated inflammatory reaction in the esophagus and superficial candida[17] fungal strains in the esophagus. (Tr. 417-18.) The 2009 EGD indicated friable mucosa and erythematous mucosa in the duodenum[18] but normal esophagus and stomach. (Tr. 454.) The 2009 biopsies indicated esophagitis.[19] (Tr. 457.) The 2010 colonoscopy, EGD, and biopsies were normal. (Tr. 493-94, 500.) According to the administrative record, the 2011 colonoscopy and EGD were also normal. (Tr. 526.) However, immediately after the apparently “normal” 2011 colonoscopy and EGD, M.J.S. experienced post-operative vomiting and diarrhea with “brownish green with ‘fleshy pieces' and bright red blood.” (Tr. 518-21.) The 2011 biopsies indicated small bowel mucosa with no active inflammation.[20] (Tr. 550-51.) Medical records related to the 2011 colonoscopy and EGD indicate that M.J.S. had been diagnosed with Crohn's disease.[21] (Tr. 519, 523, 528.)

         B. Treatment for Allergies and Asthma

         M.J.S. has been treated by Jonathan Spergel, M.D., Ph.D, an allergist at CHOP. (Tr. 650.) On August 15, 2006, M.J.S. was examined by Dr. Spergel because he was suffering from allergic reactions. (Tr. 650.) Dr. Spergel found that M.J.S. was allergic to milk, soy, chicken, rice, corn, apples, and peaches. Additionally, M.J.S. was suffering from atopic dermatitis and gastrointestinal symptoms consistent with enterocolitis. (Tr. 650-51.) Dr. Spergel recommended that M.J.S. avoid milk, soy, chicken, and rice. (Tr. 651.) He recommended that apples, peaches, eggs, and corn be worked back into M.J.S.'s diet. (Id.) For M.J.S.'s atopic dermatitis, Dr. Spergel prescribed a regimen of over-the-counter hydrocortisone “as needed.” (Id.)

         On September 14, 2006, M.J.S. had a second evaluation with Dr. Terri Brown-Whitehorn, an allergist. (Tr. 652.) Noting M.J.S.'s history of food protein-induced enterocolitis, vomiting, and bloody stools, Dr. Brown-Whitehorn recommended that M.J.S. avoid milk, soy, rice, chicken. and also corn, peas, and green beans. (Tr. 652-53.)

         On May 16, 2008, Dr. Spergel found that M.J.S. was allergic to bee stings, and that M.J.S. was susceptible to anaphylactic shock, if stung. (Tr. 343.) Dr. Spergel reviewed with Plaintiff certain items and situations that M.J.S. should avoid: gardens, blooming plants, brightly colored clothing, and soaps with strong odors. (Tr. 343.) As for M.J.S.'s food allergy, Dr. Spergel noted that it was unclear whether M.J.S.'s reactions were to food or just part of his Crohn's disease. (Tr. 344.) In addition, Dr. Spergel found that M.J.S. suffered from “poorly controlled” and “moderate-persistent” asthma. (Tr. 345.) Dr. Spergel prescribed a regimen of Flonase, Flovent, Singulair, Ventolin HFA, Colazal, and an Epi-Pen. (Tr. 345.)

         On May 29, 2008, Dr. Erin McGintee examined M.J.S. and found that his asthma was “well controlled.” (Tr. 331-33.) Plaintiff reported to Dr. McGintee that M.J.S.'s cough and congestion had “improved considerably” since he started taking Flovent, Flonase, and Singulair. (Tr. 331.) But, on July 30, 2010, Dr. Spergel once again found that M.J.S.'s asthma was “poorly controlled.” (Tr. 334-36.) Although Dr. Spergel noted that M.J.S. had not been to the hospital or emergency room for asthma-related ailments since his last visit in 2008, he also noted that M.J.S. had suffered multiple “flares” during that time. (Tr. 334.) Moreover, Dr. Spergel noted that M.J.S. coughed and wheezed seven nights per week and had “difficulty with activity” and did not “pre-treat before exercise.” (Tr. 334.) Notably, Dr. Spergel found that M.J.S. was not using an appropriate “spacer”[22] with his inhaler. (Tr. 335.) As a result, he was getting “less than 1%” of his prescribed dosage. (Tr. 335.) Dr. Spergel reviewed the proper technique for using the inhaler with Plaintiff. (Tr. 335.) M.J.S. was also suffering from “chronic nasal congestion.” (Tr. 335.) Dr. Spergel noted that M.J.S.'s rectal bleeding might be more likely caused by Crohn's than food allergy. (Tr. 335.)

         M.J.S. underwent a pulmonary function test at CHOP on July 30, 2010. (Tr. 340.) The report indicated “the absence of any significant degree of obstructive pulmonary impairment and/or restrictive ventilator defect.” (Tr. 340.)

         On August 26, 2011, during M.J.S.'s first appointment after the filing of the SSI application, Dr. Spergel noted that his allergy symptoms had increased, but were under control due to M.J.S.'s use of Flonase. (Tr. 338.) The asthma, however, was still “not well controlled.” (Tr. 339). M.J.S. was coughing during “activity and playing.” (Tr. 338.) Dr. Spergel noted that he was “concerned about the possibility of compliance”, but did not specify what aspect of compliance he was concerned about. (Tr. 339.) He also noted that M.J.S.'s “GERD [w]as [a] co-morbid condition” and thus suspected that it may be contributing to poor control of M.J.S.'s asthma. (Tr. 339.) As for M.J.S.'s gastro-intestinal disease, Dr. Spergel noted that M.J.S. experienced bloody stool and rectal bleeding after consuming chicken, egg, soy, and milk; again, Dr. Spergel suspected that Crohn's disease, rather than food allergies, was more likely to be causing the rectal bleeding. (Tr. 339.)

         The same day, M.J.S. also had a pulmonary function testing. (Tr. 658.) His FVC level[23]was 1.77 and FEV1[24] was first measured at 0.85 but then measured at 0.9 on second try. (Tr. 658.)

         C. Staten Island Physician Practice (“SIPP”) Records

         M.J.S. has been a patient at SIPP since 2010. (Tr. 30.) Dr. Kelly Eberhardt, a pediatrician, has been his doctor since 2011. (Tr. 592.) Over a series of visits from January 16, 2011 to November 13, 2012, Dr. Eberhardt noted M.J.S.'s asthma, ulcerative colitis, and allergies. (Tr. 622.) In March 31, 2011 visit notes, Dr. Eberhardt noted M.J.S.'s history of asthma and stated that “bronchodilators” have been known to be “relieving factors.” (Tr. 588.) Dr. Eberhardt described M.J.S.'s coughs as “hacking.” (Tr. 589.) On August 31, 2011, based on a “well child” examination of M.J.S., Dr. Eberhardt noted that M.J.S. had been “doing well.” On December 22, 2011, Dr. Eberhardt noted based on what is most likely Plaintiff's report, that M.J.S. had been coughing for two weeks. (Tr. 599.) Dr. Eberhardt again described the coughs as “hacking.” (Tr. 600.) On February 3, 2012, M.J.S. complained of abdominal pain, vomiting, and diarrhea. (Tr. 603.)

         On January 16, 2012, and October 12, 2012, Dr. Eberhardt signed forms stating that M.J.S. required assistance with ambulating inside and outside the house, getting up from bed, getting up from a seated position, going to the toilet, dressing, washing, bathing, preparing meals, and feeding himself. (Tr. 320, 325.) In both reports, Dr. Eberhardt noted that full-time home care is needed for M.J.S. (Tr. 320, 325.) In the January 16, 2012 form, Dr. Eberhardt wrote what appears to be the word “child” next to all of the foregoing activities. (Tr. 325.)

         D. Teacher Questionnaire

         The record contains an undated Teacher Questionnaire completed by an unnamed teacher. (Tr. 223-26.) In the questionnaire, the teacher noted that M.J.S. had “[n]o problems” in the domains of attending and completing tasks, interacting and relating to others, or moving about and manipulating objects. (Tr. 224-25.) The teacher had known M.J.S. for thirteen days at the time the questionnaire was produced. (Tr. 223.)

         IV. Consultative Evaluations

         A. Dr. Kevin McDonough

         On September 16, 2011, Dr. Kevin McDonough conducted a consultative examination of M.J.S. (Tr. 277-84.) In his September 17, 2011 report, Dr. McDonough detailed M.J.S.'s medical conditions-including asthma, food allergies, Crohn's disease, and GERD-and the medications that M.J.S. was taking for each condition, and noted M.J.S.'s symptoms as reported by Plaintiff. (Tr. 277-84.) At the time of the exam, M.J.S. was ...


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