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LAWRENCE v. BARNHART

April 25, 2003

TINA LAWRENCE, FOR AUSTIN D. WILSON, PLAINTIFF,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: P. Michael Mahoney, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Austin Wilson ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.S.C. § 405 (g), 1383(c)(3). The Commissioner's final decision denied Plaintiff's application for child's Social Security Income ("SSI"), filed pursuant to Section 1614(a)(3)(A) of the Social Security Act (the "Act"). 42 U.S.C. § 405 (g). Claimant's mother, Tina Lawrence, filed the application. This matter is before the Magistrate Judge pursuant to consents filed by both parties on June 26, 2002. See 28 U.S.C. § 636 (c); Fed.R.Civ.P. 73.

I. BACKGROUND

Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA") in part to set forth a new standard for determining whether a child under the age of eighteen is disabled. Pub. L. 104-193, 110 Stat. 2105; 65 Fed. Reg. 54747. The Social Security Administration ("SSA") published interim final rules on February 11, 1997, to effectuate the requirements of PRWORA. 65 Fed. Reg. 54747. Plaintiff protectively filed an application for SSI on January 8, 1999. (Tr. 49-53). Plaintiff's application was denied on June 16, 1999. (Tr. 23-25). Plaintiff then filed a request for reconsideration on July 9, 1999. (Tr. 26). Plaintiff was denied SSI benefits upon reconsideration on November 24, 1999. (Tr. 27-30). On December 16, 1999, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 31-32). Plaintiff (with his mother) appeared, with counsel, before the ALJ for a hearing on April 4, 2000. (Tr. 195-204). The ALJ denied Plaintiff's request for benefits in a hearing decision issued August 15, 2000. (Tr. 11-20). Plaintiff requested a review of the hearing decision by the Appeals Council on August 18, 2000. (Tr. 8). The SSA published the final rules to implement PRWORA on September 11, 2000. On January 2, 2001, these final rules became effective. (Tr. 6). The Appeals Council denied Plaintiff's request for review on March 8, 2002. (Tr. 6-7). The Appeals Council's denial of review left the ALJ's decision the final decision of the Commissioner. 20 C.F.R. § 416.1481. Plaintiff has requested that this court review the Commissioner's final decision.

II. MEDICAL HISTORY

Plaintiff was born on September 6, 1994. (Tr. 188). Plaintiff's treating physician, Burton Moore, M.D., first diagnosed plaintiff with an ear infection on December 15, 1994. (Tr. 138). Plaintiff regularly suffered ear infections until James M. Severson, III, M.D., placed tubes into Plaintiff's ears on September 9, 1999. (Tr. 168). During this time period, Plaintiff suffered a total of twenty-eight ear infections. (Tr. 190). Based on this history, Drs. Moore and Severson diagnosed Plaintiff with chronic otitis media. (Tr. 129, 164).

Plaintiff began attending pre-school at the Fairview Early Education Center in September 1998. (Tr. 125, 128). Plaintiff's teacher, Catherine Ciaccio, described Plaintiff in a School Activities Questionnaire for the Illinois Disability Determination Services ("DDS"), completed in February 1999, to be impulsive, quick to hit, apt to shout, and in need of reminders to stay on task. (Tr. 125-28). Ms. Ciarrio noted in her school activities questionnaire on Plaintiff that Dr. Moore had prescribed Ritalin for Plaintiff to address these behavior problems. (Tr. 127).

Harold Best, Ph.D., performed a psychological evaluation of Plaintiff on May 25, 1999. (Tr. 141-42). Dr. Best observed Plaintiff to be loud, intrusive, insistent and unable to remain seated. (Tr. 141). In addition to being hyperactive, Dr. Best noted that Plaintiff exhibited good cooperation, an average attitude, a slight speech disorder, normal thought processes, and a poor memory. (Tr. 141-42). Dr. Best diagnosed Plaintiff with Attention Deficit Hyperactivity Disorder ("ADHD"), Predominantly Hyperactive-Impulsive Type, moderate. (Tr. 142).

On June 6, 1999, D. G. Hudspeth, Psy.D., reviewed the reports prepared by Dr. Moore, Dr. Best, and the Fairview Early Education Center on behalf of DDS. (Tr. 143-46). Dr. Hudspeth noted Plaintiff's diagnosis of ADHD, his problems with attention span and impulsivity, and his need for teacher reminders to slow down and remain on task. (Tr. 146). From these materials, Dr. Hudspeth determined that Plaintiff's ADHD constituted a severe impairment but that this severe impairment only caused a "less than marked" limitation in the area of functioning designated as "concentration, persistence, or pace." (Tr. 143, 145). Thus, Dr. Hudspeth decided that Plaintiff did not meet, medically equal, or functionally equal any disability listed in the Social Security regulations. (Tr. 146).

After Dr. Hudspeth made this finding, Dr. Moore completed an Attention Deficit Disorder ("ADD") report for DDS on August 29, 1999. (Tr. 154-56). In this report, Dr. Moore described Plaintiff as aggressive, hyper, impulsive, and wild. (Tr. 154). Dr. Moore indicated that Plaintiff exhibited thirteen of the seventeen symptoms DDS listed on its report form for ADD/ADHD and three of the four areas for behavior disorders. (Tr. 154-56). However, Dr. Moore reported that out of eleven listed impacts on daily functioning, the Plaintiff's thirteen ADD/ADHD symptoms only impacted his daily functioning as to his sleeping patterns. (Tr. 155-56). Also, Dr. Moore found no symptoms of conduct disorder. (Tr. 156). Based on his observations as Plaintiff's treating physician, Dr. Moore diagnosed Plaintiff as having aggressive ADD. (Id.).

Ms. Ciassio completed a Student Functional Report for DDS on October 25, 1999. (Tr. 157-60). In this report, Ms. Ciassio described Plaintiff as an average student who understood and completed assignments, followed directions with reminders, obeyed rules with reminders, and exhibited limited difficulty in working without teacher supervision. (Tr. 157-58). Plaintiff's enduring problems with attention span were ameliorated with medication and he could be easily re-directed after being impulsive. (Id.). Ms. Ciasso described Plaintiff as a very pleasant child whose ability to stay on task had been enhanced with medication. (Tr. 160).

On October 25, 1999, Pediatric Neurologist Ammur Katerji, M.D., examined Plaintiff. (Tr. 175-76). Dr. Katerji noted Plaintiff to be very hyperactive and aggressive. (Tr. 176). Plaintiff repeatedly used profanity during the examination, although Plaintiff eventually settled down. (Id.). Dr. Katerji made a minor adjustment to Plaintiff's Ritalin dosage and recommended that Plaintiff see a child psychiatrist should his symptoms become worse. (Id.).

On November 12, 1999, Donald MacLean, Ph.D. completed a Childhood Disability Evaluation Form for DDS based on the following materials: Dr. Moore's August 1999 report; a childhood functioning report submitted by Plaintiff's mother dated July 31, 1999; a report completed by Dr. Severson on October 19, 1999; Dr. Katerji's report dated October 25, 1999; and Ms. Ciassio's report dated October 25, 1999. (Tr. 177-80). Dr. MacLean determined that Plaintiff suffered from ADHD and chronic otitis media, and that these impairments were severe. (Tr. 177). Dr. MacLean, finding that Plaintiff exhibited only a "less than marked" limitation in motor function, concluded that Plaintiff did not meet, medically equal, or functionally equal the severity of any listing. (Tr. 179-80). Victoria J. Dow, M.D., reviewed and endorsed this report. (Tr. 177).

Anne Holm and Mitchell Davenport, Mental Health Clinicians with the Janet Wattles Center, examined Plaintiff on March 16, 2000. (Tr. 188-92). These clinicians found Plaintiff to have a moderately impaired memory, a neutral mood, and a normal affect and intensity. (Tr. 189). Holm and Davenport also noted that Plaintiff could bathe and dress himself, enjoyed playing with video games, puzzles, and action figures, and was signed up to play T-Ball in the summer of 2000. (Tr. 190). They concluded that Plaintiff exhibited aggressive behavior at home and ...


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