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Woods v. Barnhart

November 4, 2005

GEORGE WOODS III, A MINOR, BY HIS MOTHER AND NEXT FRIEND, CATHERINE WOODS, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

George Woods, who is now eighteen years old, appeals from the Social Security Administration's (SSA) decision to terminate his Supplemental Security Income (SSI) benefits. Both George and the Commissioner have filed motions for summary judgment. Based on our review of the Administrative Law Judge's (ALJ) decision and the record generated below, the Court finds the ALJ fully and fairly developed the record, but his decision is not supported by substantial evidence. The Court therefore reverses and remands the case for further proceedings.

Facts

In July 1992, Catherine Woods, George's mother, applied for SSI on George's behalf. R. 58-70. SSA awarded George disability benefits because he suffered from mental retardation and infantile esotropia (crossed eyes). R. 57A. In July 1998, SSA conducted a continuing disability review; it found that George's IQ still fell in the mental retardation range and therefore continued his disability benefits. R. 71.

In the fall of 2001, SSA initiated a second continuing disability review in which it contacted Mrs. Woods, teachers, and consultative physicians. On April 1, 2002, SSA notified Mrs. Woods that George was no longer disabled and his disability benefits would therefore be terminated. R. 76. Mrs. Woods filed a timely request for reconsideration. R. 81. On August 23, 2002, SSA denied this request. R. 87. Mrs. Woods subsequently filed a timely request for a hearing before an ALJ. R. 97. On March 6, 2003, ALJ John Kraybill held a hearing during which George, Mrs. Woods, and consultative physician Kevin Kessler testified. On April 7, the ALJ issued a decision finding George was no longer disabled. R. 20-23. On May 29, Mrs. Woods requested review by the Appeals Council. R. 7. On October 22, the Appeals Council denied Mrs. Woods's request for review, making the ALJ's decision the final agency determination. R. 4-6. Mrs. Woods sought judicial review in this Court pursuant to 42 U.S.C. § 405(g).

In July 1992, when George initially applied for and was awarded SSI benefits, he was five years old. R. 58-70. SSA found, based on the evaluations of two consultative physicians, that George had two disabling impairments -- mental retardation and infantile esotropia. R. 57A. Dr. Erwin Baukus found that George's verbal IQ score was 61, his performance IQ score was 50, and his full- scale IQ score was 51. George therefore met the listing for mental retardation. R. 220-21. Dr. David Lubeck diagnosed George with infantile esotropia (crossed eyes) and nystagmus (floating eye). R. 217-18.

When SSA conducted its first continuing disability review in the summer of 1998, George was eleven years old, and he had completed fifth grade. R. 71. For this review, SSA collected medical records from three physicians, George's teachers, and Mrs. Woods. According to consultative psychologist William Higler, George had a verbal IQ score of 64, a performance IQ score of 50, and a full-scale IQ score of 53, which meant he was still in the mild mental retardation range. R. 251-53. Treating ophthalmologist Corazon Balbarin stated George still had crossed eyes even though he had undergone eye surgery, and consultative ophthalmologist Karl Fritz believed George still had one lazy eye. R. 242, 248. Therefore, SSA found that George remained disabled. R. 71.

As part of the 1998 review, SSA also collected statements and records from George's school, Fairmont Junior High in Joliet, Illinois. R. 165. By the time George was in fifth grade, he was enrolled in regular classes, but he received speech therapy services. R. 165. Prior to fifth grade, however, George had been in classes for learning-disabled children for most of his time in school. R. 38, 228. According to George's individualized education program for fourth grade, teachers recommended him for regular classes because learning disabled classes were "too restrictive for [his] educational and social development." R. 235. George's fifth grade teacher, however, stated that "George only receives speech services at this time, but teachers feel his removal from other Special Ed. services was premature." R. 167.

During this time, George's teachers also expressed varying opinions about his ability to stay on task and interact with others. George's third grade teachers noted that he had "some difficulty" following directions and withdrew emotionally when he became angry. R. 224. George's fourth grade teachers reported a number of behavioral problems, such as "off task behaviors, moving around the room, talking back to authority figures, fighting with peers, namecalling, and occasional resistance to staff requests that results in the need for physical management." In fact, a teacher who appears to have been George's fourth grade speech therapist stated that many of their sessions had been hindered by George's "poor anger control," "inability to concentrate," and "internal and external suspensions of 1 to 5 days duration." R. 233. George's fifth grade teacher expressed some of the same concerns, stating that he had problems keeping his attention, staying on-task, and completing assignments. She also stated that George had become "more beligerant [sic] and aggressive, " necessitating his removal from the classroom and the loss of privileges. R. 165-66.

Mrs. Woods also submitted childhood functioning reports during the course of the 1998 continuing disability review. According to Mrs. Woods, George often fell when running or riding his bike; he was teased by other children and often got into fights; and he had difficulty maintaining his concentration and completing activities. R. 157-164.

In 2001, SSA began its second continuing disability review. It again collected information from physicians, teachers, and George's mother. After examining and testing George at the SSA's request, consultative psychologist Erwin Baukus submitted a report on March 11, 2002. He determined that George's verbal IQ score was 75, his perfomance IQ score was 71, and his full-scale IQ score was 71. He also determined that George read at a third grade level. Dr. Baukus diagnosed George with borderline intellect and a learning disorder in reading. Dr. Baukus opined that George's IQ score had increased from earlier levels either because he had not put forth his "best performance" during his initial examination in 1992 or because he had "excelled in progress" due to nine years of education. Dr. Baukus also summarized George's educational records, which, at the time of Dr. Baukus's examination, included school records gathered for the 1998 continuing disability review plus a January 2002 school activities questionnaire from Joliet Central High School. According to Dr. Baukus's review, "[George] never had problems with deportment or discipline in school and was never suspended or expelled." He also observed that when George visited his office, he was "cooperative and docile." R.258-61.

Consultative ophthalmologist Mark Fritz also examined George in June 2002. He found that George's uncorrected vision was 20/30 in his right eye and 20/40 in his left eye, but that glasses could correct this to 20/20 in his right eye and 20/30 in his left eye. Dr. Fritz did not clearly state whether George still suffered from esophoria and nystagmus at this time. R. 274-76.

Joliet Central High School also provided information for the continuing disability review. On January 7, 2002, a school counselor submitted a school activities questionnaire which stated that George was enrolled in regular classes; she did not fill out the rest of the questionnaire. R. 190-93. The counselor also submitted George's first semester transcript, which showed he had received five Fs and two Ds while enrolled in regular courses. R. 207. These were the current school records that were available to Dr. Baukus during his 2002 evaluation of George. On May 9, 2002, special education teacher Michelle Steffe submitted another school activities questionnaire. She reported that George was now in a class for educable mentally handicapped, learning disabled, and behaviorally disabled students. Ms. Steffe stated that George did not have any problems with concentration or behavior. R. 203-06.

Mrs. Woods also submitted childhood functioning reports concerning her son. On November 11, 2001, Mrs. Woods reported that George had difficulty acquiring and using information, could not concentrate on and complete tasks, had difficulty resolving conflicts with others, and did not understand the difference between how to treat peers and how to treat adults. She did, however, state that he avoided fights, respected adults, and followed rules. R. 186-87. On May 12, 2002, Mrs. Woods submitted another childhood functioning report. She again reported that George had trouble acquiring and using information, could not work independently, and could not resolve conflicts. At this time, she added that George also could not avoid fights with peers. R. 210-13.

On March 6, 2003, George, his mother, and consultative psychologistKenneth Kessler attended a hearing conducted by ALJ John Kraybill. It is unclear how long the hearing lasted, but the transcript was only twenty pages long. R. 23-53.

At the outset of the hearing, the ALJ told George and his mother that they had the right to representation: the ALJ said that he had a "duty to develop the record" whether or not they had an attorney, but "[an attorney] may have some questions I failed to ask, maybe even to better assist you presenting your case." He said it was his policy to allow one postponement to seek representation, but he told Mrs. Woods and George they could proceed with the hearing if they wished. Mrs. Woods decided to proceed that day. R. 34-35.

The ALJ then asked whether Mrs. Woods would be serving as George's representative or as a witness. Mrs. Woods stated, "I don't really understand like -- because by him being under age so I was just coming with him." The ALJ told Mrs. Woods that if she wanted to testify, she would have to be a witness, but otherwise, she could act as a representative. Mrs Woods responded, "Represent--because I think he can talk. I'll be a witness." The ALJ then confirmed that Mrs. Woods would be a witness, explained the function of the hearing, and asked Mrs. Woods to wait outside while he questioned George. R. 35-36.

At the time of the hearing, George had just turned sixteen, and he attended tenth grade at Joliet Central High School. He testified that his mother gave him a ride to school each day. He took "special classes" for math, English, health, science, and computers, and he said his grades were "good." He said English was his most difficult subject, and he had trouble reading and remembering what he read. He said he was not enrolled in a gym class, but he said he had been in gym the year before, and he played sports with his friends. George also testified that he had not had any detentions or suspensions in ninth or tenth grade. R. 37-41.

George stated that he did chores around the house, such as cleaning his room. He went to bed around 9:00 p.m. and got up in the morning for school. He said he did not give his mother a difficult time when he went to bed and that his mother woke him up in the morning. He said he did not have trouble sleeping. R. 41-42. George testified that he liked to play basketball, ride his bike, play video games, and listen to music ...


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