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December 9, 1997

KENNETH S. APFEL, Commissioner of Social Security, 1 Defendant.

The opinion of the court was delivered by: DENLOW

 Plaintiff Melody Celkis ("Plaintiff") brings this action on behalf of her son, Cory Mixan ("Cory"), pursuant to 42 U.S.C. ยง 405(g) to review the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's claim for Supplemental Security Income ("SSI") under the Social Security Act, 42 U.S.C. 423 et seq., and 1381 et seq. The Administrative Law Judge ("ALJ") found that Cory did not meet or equal the requirements of any section of the Listing of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings") and was not disabled. (Administrative Record ("A.R.") at 18.)

 This matter comes before the Court on cross motions for summary judgment. The issues the Court must decide are: (1) which standard to apply to Cory's disability determination; and (2) whether substantial evidence in the record supports the ALJ's finding that Cory did not meet or equal the requirements of any section of the Listing of Impairments. For the reasons set forth below, the Court grants Defendant's motion for summary judgment, denies Plaintiff's motion, and affirms the ALJ's decision.


 Cory was born on August 6, 1987, and was almost eight years old at the time of the ALJ's decision. (A.R. at 69, 19.) Plaintiff first applied for SSI disability benefits for Cory on March 18, 1994. (A.R. at 69.) Plaintiff alleges that Cory was disabled beginning February 23, 1994, due to attention deficit hyperactivity disorder ("ADHD"). (A.R. at 69, 101.) Cory has never worked. (A.R. at 14.) Plaintiff's application was denied initially, on request for reconsideration, at the hearing, and by the Appeals Council. (A.R. at 72, 78, 14, 4.)

 A. Testimony

 Cory and his mother testified at a hearing before ALJ Dennis Greene on July 20, 1995. (A.R. at 33 - 68.) Cory testified that other children's parents would not allow him to visit in their homes because he acted bad. (A.R. at 45.) He explained that he had been in trouble at school for misbehaving on the bus, arguing and talking back to the teacher, talking out loud in the classroom, and moving around when he was not supposed to. (A.R. at 48-49.) Cory stated that at home he sometimes became angry with his mother, often fought with his brother, that he threw and broke things, and put a hole in the wall. (A.R. at 49-50.) He stated that he took Ritalin, up to three times a day, saw a doctor about once a month or more, and saw a counselor periodically. (A.R. at 45-47.) Cory testified that he had gone to school at Riveredge for two months and described the "feelings room" there as a place where "you can pound on the walls or something like that when you're mad." (A.R. at 47-48.)

 Plaintiff, Cory's mother, testified that Cory is the middle child of her five children. (A.R. at 52.) She began having problems with Cory when he was about three years old and day care refused to keep him after a week. (A.R. at 53.) She had Cory's hearing tested and had him evaluated for ADHD. (A.R. at 53-54.) Eventually, school officials suggested that Cory be evaluated by doctors at Loyola University. (A.R. at 54.) Dr. Robertson at Loyola started Cory on Ritalin. (A.R. at 55.) The Ritalin helped but was not completely successful. Id. The doctors also tried prescribing another drug for Cory but he was allergic to that medication. Id. Plaintiff stated that Cory had to go to Riveredge because he was misbehaving at school: screaming out, jumping around, and pinching people. Id. Plaintiff discussed the problems she had with Cory at home: throwing objects, breaking windows and other objects, spray painting the house, putting holes in the wall, and fighting with his brother. (A.R. at 56-58.) Plaintiff testified that she will not allow Cory to participate on any athletic team activities because she is afraid he will not be able to control himself and will hurt someone. (A.R. at 58, 65.) She must watch Cory all the time because of such behavior as running out into the street without looking. (A.R. at 60-61.) Cory had been in special education classes and his school, Sunnyside, is a special school. (A.R. at 62.)

 B. Medical Evidence

 Cory was first evaluated by Raymond E. Robertson, M.D., ("Dr. Robertson"), Director, Child and Adolescent Program, Department of Psychiatry, Stritch School of Medicine, Loyola University, on February 23, 1994. (A.R. at 142-47.) Dr. Robertson diagnosed ADHD and started Cory on 5 milligrams of Ritalin twice a day. (A.R. at 147, 142.) After Plaintiff reported significant improvement and no side effects, Dr. Robertson increased Cory's dosage to 10 milligrams twice a day on March 9, 1994. (A.R. at 142, 140.) Dr. Robertson reported on May 26, 1994, that since March 30, 1994, Cory had been taking 15 milligrams of Ritalin three times a day with "no side effects and significant benefits as reported by Cory and his mother as well as school staff." (A.R. at 141.)

 On June 21, 1994, a reviewing psychologist, Helen Appleton, Ph.D., ("Dr. Appleton") filled out an Individualized Functional Assessment ("IFA") and Case Summary on Cory. (A.R. at 125-28.) Dr. Appleton based her review on the record as it existed at that date. (A.R. at 128.) Dr. Appleton indicated that Cory had less than moderate impairment in cognitive, social, and communicative development, and in concentration, persistence and pace; and moderate impairment in personal/behavioral development and function. (A.R. at 125-26.) Dr. Appleton concluded that Cory's impairment did not substantially reduce his ability to grow, develop, and attain age-appropriate milestones and to engage in age-appropriate daily activities and that Cory was not functionally disabled. (A.R. at 128.)

 On September 9, 1994, Dr. Robertson reported that Cory was being seen once a month to monitor his response to medication and that up to that time, Cory had suffered no side effects from the medication and had received positive benefits. (A.R. at 137.) Dr. Robertson added that Cory was "asymptomatic with medication, and his performance academically in school has improved one to two levels." Id. Despite being on medication, Cory was admitted to Riveredge Hospital on February 20, 1995, due to behavioral problems at school and on the school bus. (A.R. at 162.) Dr. Robertson was the attending psychiatrist, and Dr. Manjari Kumar was the psychiatry resident. (A.R. at 166.) In the Intake Assessment/Psychiatric Evaluation and Treatment Plan, the DSM-III-R Symptom inventory was filled out as follows: Restlessness Severe Distractibility Moderate to severe Inattentiveness Moderate to severe Hypertalkativeness Moderate Hyperactivity Severe Hypertalkativeness Moderate to severe Psychomotor agitation Moderate. (A.R. at 163.) The provisional diagnoses were: Axis I Attention Deficit Hyperactivity Disorder Axis II Deferred Axis III None at present Axis IV Severe Axis V GAF *fn2" 51 to 60 current GAF 70 to 80 in the last year

 (A.R. at 166.) Indications for admission to the CHPPS *fn3" program were as follows:

Marked regression, intensification of significant symptoms, and/or continued failure to respond to appropriate treatment in an outpatient or other alternative setting that presents a significant impediment of this person's ability to perform the requirements of daily living.
Treatment cannot occur unless in an acute hospital with continuous skilled observation and monitoring.

 (A.R. at 163.)

 Ritalin was discontinued due to decreased effectiveness, and Cory was started on Cylert. (A.R. at 163.) The initial treatment modalities were: to continue with the Cylert medication and adjust the dosage; individual therapy; group psychotherapy; milieu therapy; school at Riveredge; and regular family therapy with the mother. (A.R. at 166.)

 Cory was discharged from Riveredge on April 20, 1995, (A.R. at 214), before the ALJ issued his decision on July 28. However, the records involving Cory's discharge were not part of the record upon which the ALJ based his decision. The discharge records were part of the record at the time the Appeals Council considered Cory's request for review. (A.R. at 5, 214.) Upon discharge, Dr. Robertson's final diagnoses were: Axis I Attention Deficit Hyperactivity Disorder Axis II No diagnosis Axis III No diagnosis Axis IV Moderate Axis V GAF: 50 on admission; 80 on discharge. (A.R. at 215.) Cory was again being treated with Ritalin when he was discharged. (A.R. at 215.) Dr. Robertson stated that Cory showed marked improvement in his hyperactivity, and his problems had improved as follows: fighting and negative behavior 90% not listening 85% demanding 70% "hyper" with siblings 60% conflict with brother, Eric, 55% not taking no for an answer 65% hyperactivity 75% testing limits 80% short attention span 85% impulsivity 80%

 (A.R. at 214.) Dr. Robertson stated that Cory was "not suicidal or homicidal and was able to perform the activities of daily living." (A.R. at 215.) Cory was to return to local school after discharge.

 C. School Records

 An undated school activities questionnaire, filled out at Riley School, when Cory's grade level was "1st Grade - Cross Categorical Performing at Grade Level, K-1 Grade Special Education Class," indicated problems with: attention span, concentration, and on-task behavior in class; and inappropriate behavior, including Cory's problems with authority, engaging in power struggles, and touching a teacher's aid inappropriately. (A.R. at 107.)

 A summary of behavior problems filled out on November 4, 1993, indicated that for most of the school day Cory was disruptive and had a poor attention span. (A.R. at 90.) He also demonstrated physically aggressive, manipulative, and negative-attention-getting behavior most of the school day and was confrontational with authority figures. Id. Cory was referred for a case study evaluation on November 16, 1993. (A.R. at 84.)

 A letter dated September 22, 1994, informed Cory's mother that he would be placed in the Social Emotional Class at Sunnyside School. (A.R. at 153-54.) Cory's home school was Riley. (A.R. at 154.)

 In October 1994, Cory's teacher filled out five Disciplinary Office Referral reports for Cory's failure to do his homework. (A.R. at 190-91.) The driver of Cory's school bus filled out two disciplinary incident reports for Cory's misbehavior on November 21, 1994, and January 20, 1995. (A.R. at 186, 189.)

 On April 28, 1995, Cory's mother was informed that he continued to be eligible for special education and related services, that he would complete the 1994-95 school year at Sunnyside, and that he would be placed in Social Emotional Development at Riley beginning August 1995. (A.R. at 182.)

 An undated school report in Exhibit 22 indicates that Cory had been mainstreamed full time. (A.R. at 176.) Another undated report in Exhibit 22 indicates that Cory's daily living skills were age-appropriate and his social/emotional performance had been maintained well enough to continue with full time mainstreaming; although this record is undated, it indicates an implementation period of May 10, 1995, through April 1996. (A.R. at 177.)


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