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MARSHALL v. BARNHART

March 28, 2003

EILEEN MARSHALL, ON BEHALF OF MCKINLEY PHILLIPS, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Blanche M. Manning, United States District Court Judge.

MEMORANDUM AND ORDER

Plaintiff Eileen Marshall, on behalf of her minor son, McKinley Phillips, brings this action pursuant to the Social Security Act, 42 U.S.C. § 1381 ("the Act"), seeking judicial review of a final agency decision of the Commissioner of Social Security ("the Commissioner") that denied Phillips' application for Supplemental Security Income ("SSI") under Title XVI of the Act. Presently before the Court are the following motions: (i) Phillips' motion to REVERSE the Administrative Law Judge's ("ALJ") decision and to remand to the agency for further proceedings, and (ii) the Commissioner's motion to affirm the ALJ's decision. For the following reasons, Phillips' motion to reverse and remand is granted, in part, and the commissioner's motion to affirm is denied.

I. Background*fn1

A. Procedural History

On September 27, 1995, Eileen Marshall, on behalf of her minor son, McKinley Phillips, applied for SSI alleging that Phillips suffered from multiple mental disabilities including depression, a learning disability, and impaired social functioning. On November 20, 1995, the Commissioner denied Phillips' initial claim, and on January 30, 1996, denied Phillips' request for reconsideration. Phillips requested, and received, a hearing before an ALJ on February 23, 1998. Phillips was represented by counsel at the hearing. On January 29, 1999, the ALJ denied Phillips' request for SSI benefits, finding that Phillips was not "disabled" under the Act. On February 12, 1999, Phillips filed a request for the Appeals Council to review the unfavorable decision. On July 11, 2001 the Appeals Council declined Phillips' request for review. Accordingly, the ALJ's decision is the Commissioner's final administrative decision. Having exhausted his administrative remedies, Phillips now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405 (g).

B. The Administrative Hearing

Phillips was born on August 14, 1986. He was seven years old on his alleged onset date of disability, nine years old on the date of Phillips' initial filing of his application for SSI benefits, and eleven years old on the date of the hearing. At the time of Phillips' initial filing, he was in the fourth grade at Hughes Elementary School in Chicago. Phillips has always resided with, and been in the care of, his mother, Eileen Marshall. Phillips has never been gainfully employed.

1. Marshall's and Phillips' Testimony

Both Marshall and Phillips testified at the hearing. Marshall testified that Phillips did not "get along" with his siblings. She testified that Phillips had been taking Motrin for headaches since 1994. She stated that Phillips often failed to do his homework and would do his chores approximately half of the time. She said that Phillips spent the majority of his free time at home watching television and aggravating his siblings. Phillips occasionally would play basketball outside, however his play was limited because of recurring pain in his head and leg. She said Phillips did have a few friends.

Marshall testified that Phillips was, at the time of the hearing, attending special education classes full-time. Marshall stated that she had been contacted several times by Phillips' teachers regarding academic and behavioral problems, including disregarding instructions, a short attention span, and failure to attend the school's after-school tutoring program. Marshall also testified that when Phillips watched television, he often had difficulty following the program.

Phillips testified that he received after-school tutoring in math and reading three days per week. He said that his favorite subject was math. He stated that he "sometimes got along" with his siblings. Phillips said that he often forgot to do both his homework and chores. Phillips testified that he occasionally heard voices calling his name, and that he thought the voices were real. He testified that he spent his free time either watching television or sleeping.

2. Academic Records

Phillips' third-grade report card from the 1994-1995 academic year showed that he received primarily D's and F's in his core subjects. Phillips' report card further indicated that he needed improvement in the following areas: self-control, listening, following directions, completing assignments, doing homework, and putting forth effort.

An Individualized Education Program ("IEP") report from June 1995, following Phillips' completion of the third grade, indicated that Phillips' reading skills were at the third grade level and his math skills were approaching the second grade level. The report recommended learning disabled classes for 400, out of a total of 1500, minutes per week. The report indicated that prior intelligence testing had demonstrated that Phillips was functioning in the low average intelligence range. The report noted that Phillips "got along" with his sibling, had a "fair relationship" with his classmates, and "played well with others,"

On October 19, 1995, Phillips' fourth grade teacher, Ms. Audrey Ware, completed a School Activities Questionnaire ("SAR") with respect to Phillips. Ware noted that Phillips did not have any significant problems relating to his classmates or with his concentration on academic tasks. Ware reported that Phillips received one-on-one attention in some areas and that he received special help in reading.

An IEP report from February 1996 indicated that Phillips' reading skills were at the first grade level, and his spelling and math skills were close to the second grade level. Phillips' reported deficiency areas included: cognitive skills, auditory processing, long-term memory, visual motor skills and fine motor skills. With the articulated goals of improving Phillips' reading and math skills, the report recommended that Phillips' placement in learning disabled classes increase from 400 to 600 hours per week, then to 900, then to 1300 minutes per week the following academic year, Therefore, per the IEP's recommendation, beginning in September 1996, when Phillips was to start the fifth grade, he would be placed in a self-contained special education classroom for 1300 minutes per week. The remaining 200 minutes per week were allocated for other non-core curriculum such as art, gym, music and library, as well as lunch and recess.

Phillips' fourth-grade report card again reported primarily D's and F's in the core subjects and indicated that improvement was needed in the following areas: completing assignments, participating in class activities, doing homework, and putting forth effort.

On January 7, 1998, Phillips' sixth-grade teacher, Joanne Abelman, completed another SAR for Phillips. She reported that Phillips was in a self-contained learning disability curriculum. Abelman reported that Phillips was functioning at the third grade level in reading and at the fourth grade level in math. She indicated that Phillips had a short attention span and rushed through his work. She graded Phillips' ability to work independently as "very poor." She noted that Phillips did not respond well to change or to constructive criticism. Finally, with respect to Phillips' behavior, Abelman reported that he had minor behavioral problems when interacting with peers, but generally was respectful of authority.

Phillips had another IEP assessment during the sixth grade, on January 27, 1997. The IEP report indicated that Phillips' deficient areas included: cognitive skills, auditory processing, long term memory, visual motor skills, fine motor skills and his relationship with his peers. Phillips' individualized program called for positive reinforcement, encouragement and praise, small groups, repeat directions and shorter tasks.

Phillips' report card for the sixth grade, or the 1997-1998 academic year, reported D's and F's in the core subjects of reading, writing, spelling and math. The report card indicated that improvement was needed in the following areas: listening, ...


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