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D.H. v. Astrue

September 28, 2010


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff, "DH," by his mother and next friend Janel Jones, brought this action to reverse or remand the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), who denied DH's claim for Child's Supplemental Security Income ("SSI"). DH now seeks summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Commissioner has filed a cross motion for summary judgment, requesting that this Court affirm his final decision. For the following reasons, DH's motion for summary judgment is granted [dkt. 21], and the Commissioner's motion for summary judgment is denied [dkt. 24].


On July 19, 2005, Janel Jones protectively filed an application for Child's SSI payments on behalf of her son, DH.*fn1 Ms. Jones sought SSI on the basis of DH's learning disability.*fn2 That claim was denied on January 27, 2006.*fn3 Ms. Jones then filed a Request for Reconsideration and the claim was again denied by notice dated July 11, 2006.*fn4 On August 17, 2006, Ms. Jones requested a hearing before an Administrative Law Judge ("ALJ").*fn5

On March 17, 2008, a hearing was held before ALJ E. James Gildea in Orland Park, Illinois.*fn6

Following the hearing, the ALJ issued an unfavorable opinion on November 20, 2008, finding that DH was not disabled under the Social Security Act.*fn7 Ms. Jones then filed a request for review of the ALJ's determination with the Social Security Administration's Appeals Council on December 19, 2008.*fn8 On December 15, 2009, the Appeals Council denied the request for review, making the ALJ's November 20, 2008 decision the final administrative determination of the Commissioner.*fn9

On February 10, 2010, Ms. Jones, on behalf DH, filed this action.*fn10


The evidence contained in the administrative record can be organized into three general categories: DH's school records, psychiatric and psychological reports, and testimony taken at the administrative hearing.

A. DH's School Records

Some records documenting DH's school performance predate the application for disability benefits. Acknowledging that benefits for disability cannot be paid for periods prior to the application date,*fn11 DH provided this information for purposes of establishing his academic background.

1. Pre-Application School Records

School records date back to 2001, when DH was in grade school and it was determined that he had a learning disability.*fn12 DH was observed to be "struggling in all academic areas."*fn13 Specifically, attention and memory problems were noted.*fn14 To remedy the problems, DH was enrolled in special education classes and received speech and language therapy.*fn15 Despite DH's academic problems, it was observed that DH exhibited normal social skills.*fn16

In the 2003-2004 school year, when DH was in the fifth grade, DH was observed to be improving in some areas.*fn17 He was on the wrestling team and ranked fifth in the state.*fn18 However, he still struggled in many academic areas, particularly in mathematics, and was two grade levels behind in most subjects.*fn19 It was observed that he had difficulty staying on task and would often distract other students.*fn20 Despite this, it was determined that DH was not at risk for Attention Deficit Hyperactivity Disorder ("ADHD").*fn21 While it was noted that he was generally a "friendly and polite boy", behavior and conduct problems were noted and it was observed that he became angry quickly.*fn22 He continued to receive special education and speech therapy and also received social work services for thirty minutes per week.

2. Post-Application School Records

During the 2005-2006 school year, when DH was in the seventh grade, he continued to struggle academically. In an Individualized Education Plan ("IEP"), which sets goals and monitors progress, it was noted that DH was progressing either poorly or fairly towards his objectives.*fn23 He also continued to perform well below his grade level in all subjects.*fn24 It was noted that he failed to consistently complete homework assignments and required frequent reminders to stay on task.*fn25

He was often tardy or absent.*fn26 DH continued to receive social work services and attend special education classes.*fn27 DH also had several disciplinary problems.*fn28 These problems culminated in an incident that occurred on October 14, 2005, when he physically and verbally assaulted a teacher.*fn29

These actions resulted in a ten-day suspension and 28 days incarceration in River Valley Juvenile Detention Center.*fn30

By eighth grade, DH was reading at an "end 3rd/early 4th grade level."*fn31 His math skills were equivalent to the mid/end third grade level.*fn32 Writing skills were noted to be at an early fourth grade to fifth grade level.*fn33 His oral reading skills were representative of the fifth to sixth grade level.*fn34 It was again noted that DH demonstrated poor task completion skills.*fn35 He also had poor attending skills and struggled with peer interaction.*fn36 It was stated that he would "change from happy to angry in a split second" and demonstrated impulsivity.*fn37 He was further observed to have destroyed school property, have trouble answering truthfully about possible infractions, and generally not take responsibility for his actions.*fn38 While he would respond to redirection, he would usually quickly regress to become "uncooperative ...

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