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HARDEN v. BARNHART

January 7, 2005.

JOYCE HARDEN, for SHARKIE HARDEN Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Joyce Harden ("Claimant"), on behalf of her child Sharkie Harden ("Sharkie"), challenges the decision of Defendant Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner"), claiming that her denial of Supplemental Security Income ("SSI") should be reversed or remanded because the decision contains errors of law and is not supported by substantial evidence. This case comes before this Court on the parties' cross-motions for summary judgment. For the reasons that follow, this Court affirms the Commissioner's decision, grants the Commissioner's motion for summary judgment and denies the Claimant's motion for summary judgment. I. BACKGROUND FACTS

A. PROCEDURAL HISTORY

  Claimant filed an application for SSI on November 16, 1993. R. 17, 72. The Claimant was found to be disabled and eligible for benefits as of November 19, 1993. Id. Pursuant to P.L. 104-193, effective August 22, 1999, Claimant's disability was found to have ceased. R. 17, 76. In March 2000, the state agency affirmed the cessation of the Claimant's benefits, and the Claimant requested a hearing before an administrative law judge ("ALJ"). R. 76. On July 20, 2001, a hearing was held before ALJ Edward R. Gustafson, at which Claimant was represented by counsel. R. 25-71. Claimant and medical expert, Dr. Howard Lee, M.D., testified at the hearing. Id. On February 14, 2002, the ALJ issued a final decision finding Sharkie not disabled. R. 14-21. Claimant's request for review was denied by the Appeals Council. R. 5-8. Claimant filed a timely complaint with this Court for review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). The parties have consented to this Court's jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c)(1).

  B. HEARING TESTIMONY — JULY 20, 2001

  1. Claimant's Testimony

  Sharkie was 15 years old and in ninth grade at the time of the hearing. R. 28-29. Sharkie lives at home with Claimant and three other siblings. R. 34. Sharkie has few friends and spends most of her time at home. R. 46.

  Sharkie has struggled with her grades and her ability to learn throughout grammar school and into middle school. R. 31. She has problems with teachers and receives extra tutoring. R. 30. Sharkie is a special education student who receives extra academic help in reading and in mathematics. R. 31. At the time of the hearing, Sharkie was operating three years behind grade level. R. 31-32. Despite her troubles, including both academic as well as emotional problems, Sharkie straightened out a bit in eighth grade. R. 36. Sharkie graduated eighth grade and entered high school in the fall of 2000. R. 39.

  Sharkie failed her first year of high school and she was enrolled in summer school at the time of the hearing. R. 39. In her first year of high school, the school created a new Individualized Education Plan ("IEP") increasing her minutes in special education with the hopes of improving her performance. R. 40.

  Due to her problems in her first year of high school, Sharkie received additional help at both the Chicago Department of Public Health and at Mercy Hospital. R. 44. At the Chicago Department of Mental Health, Sharkie underwent counseling from June 2000 through January 2001. R. 134-150. In June 2001, Sharkie underwent a mental health assessment at Mercy Hospital. R. 193. In August 2001, Sharkie underwent a psychiatric evaluation at Mercy Hospital. R. 199.

  2. Howard Lee, M.D. — Medical Expert

  At the February 14, 2001 hearing, Dr. Howard Lee examined the Claimant regarding Sharkie's learning disabilities. Dr. Lee questioned Claimant in several areas, and according to the ALJ, the Claimant seemed to take Dr. Lee's questioning as "accusatory of her conduct as a mother." R. 19. Therefore, the ALJ stopped the hearing prior to completion because the Claimant became too emotional. R. 69-70. Because the examination by Dr. Lee was incomplete, the ALJ sent Sharkie out for a psychological exam. R. 69-70.

  C. SCHOOL AND MEDICAL EVIDENCE

  1. Cynthia Turner — School Psychologist

  On April 6, 1994, when Sharkie was in second grade and enrolled in regular education classes, school psychologist Cynthia Turner performed a psychological evaluation. R. 226. Turner noted that Sharkie had "slow average cognitive development" with adequate math skills, but reading skills below grade placement. R. 227. Turner also noted emotional immaturity and insecurity. Id.

  On June 14, 1994, Claimant and Sharkie attended a multidisciplinary conference for the Chicago Public School's Department of Special Education. R. 108. It was determined that regular classroom placement was not meeting Sharkie's needs due to moderate learning disabilities. R. 116. Sharkie's deficits were in receptive language, language concept formation and spatial memory. R. 108. However, a speech/language evaluation revealed no significant inarticulation pattern and receptive/expressive language skills were within normal limits, with the exception of expressive vocabulary, which was below average. R. 109. Sharkie's school behavior was reported to be acceptable. Id. Sharkie's poor attendance could have impacted her performance. Id. Turner determined that Sharkie would remain in regular education classes and receive special education and related services in another setting for less than 50% of each day. R. 115. Sharkie received these special education services due to her learning disabilities from the beginning of the next school year, 1995, through 1999. R. 264-307.

  2. Janice A. Nicholson, M.A. — School Psychologist.

  In May 2000, in a triennial evaluation for the Chicago Public Schools, Sharkie was evaluated by Janice A. Nicholson, M.A., School Psychologist. R. 325-328. Sharkie was in eighth grade at the time. Nicholson noted that current testing put Sharkie's cognitive functioning and intellectual capabilities to be in the "Borderline" or "Slow-learner range." R. 327. Nicholson noted that while Sharkie's non-verbal skills were in the average range, her verbal ability was below average. R. 328. Nicholson also noted that the cumulative records indicated Sharkie had a high rate of tardiness and transience, being enrolled in five different schools. R. 325.

  During the testing, Nicholson noted that Sharkie presented as a very friendly and compliant child who appeared comfortable with testing procedures. R. 327. Nicholson also noted that teachers indicated Sharkie put forth adequate effort in class. R. 325. No significant behavior concerns were indicated, as Sharkie was described as a cheerful student who maintains good peer relations. Id. She recommended continued ...


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