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Jennifer Jeralds, O/B/O ) Colton Dane Jeralds, A Minor v. Michael J. Astrue

December 8, 2010

JENNIFER JERALDS, O/B/O ) COLTON DANE JERALDS, A MINOR, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM AND ORDER The plaintiff, Jennifer Jeralds, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her minor son Colton Jeralds' application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1383(c)(3). Ms. Jeralds asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.

PROCEDURAL HISTORY Ms. Jeralds applied for SSI on behalf of her son, Colton -- born on December 2, 1993 -- on August 22, 2005. (Administrative Record ("R.") 98-104). She claimed he had been disabled since the age of three (R. 98) due to attention-deficit hyperactivity disorder and attention deficit disorder. (R. 115). The application was denied initially and upon reconsideration. (R. 62-65, 67-71). Ms. Jusino continued pursuit of the claim by filing a timely request for hearing on March 30, 2006. (R. 76).

An administrative law judge ("ALJ") convened a hearing on May 15, 2007, at which Ms. Jeralds and her son, represented by counsel, appeared and testified. (R. 21-59). Dr. David Bascardi also testified, as a medical expert. (R. 21-59). On November 5, 2007, the ALJ issued a decision denying the application for SSI, because Colton did not have an impairment or combination of impairments that met or equaled the Listings. (R. 9-20). This became the final decision of the Commissioner when the Appeals Council denied Ms. Jeralds' request for review of the decision on May 21, 2008. (R. 1-4). See 20 C.F.R. §§ 404.955; 404.981. Ms. Jeralds has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II.

EVIDENCE OF RECORD

A.

Medical and School Evidence The medical record begins with the treatment notes of Dr. Sergio Mercado, covering November 2003 through July 2005. (R. 175-194). They are hand-written and generally illegible. Ms. Jeralds does not summarize the jottings, or cite to any of the notes to support her son's claim anywhere in her brief; she merely indicates that the compendium is a record of private medical treatment. (Plaintiff's Memorandum, at 5).*fn1

Most appear to simply be indications that Colton's prescription would be refilled or that medication levels would be adjusted. There are also pages of childhood vaccination records. (R. 184-186, 193-194). A few notes appear to state that he's "doing good at school" (R. 177) or having a "problem at school" (R. 180) or getting "good grades at school." (R. 189).

The records also include about one hundred and fifty pages of hand-written notes from a health center near the Jeralds' home. (R. 200-300, 356-380, 430-452). Much of this history is illegible, and again, Ms. Jeralds does not indicate that any of it actually supports her son's claim. (Plaintiff's Memorandum, at 5). A great deal of the treatment record deals with medication levels and prescriptions. Colton was said to do better on medication than off it (R. 209, 214), or that he was doing "much better" on medication

(R. 205, 364), doing very well (R. 221), doing "good!"(R. 359), "grades [were] better."

(R. 361). Other notes say that dosages "worked very well." (R. 357). Or doing poorly

(R. 323). Other notes indicate that his dosage needed to be adjusted (R. 209, 214, 218, 222, 223). There are pages of notes between the center and Colton's school to authorize the school to provide his proper dosages while he was there (R. 244-250, 254-60, 276-281). There are notes indicating that Ms. Jeralds was angry that her son was taken off medications when he experienced chest pains and that his prescription could not be restarted until the problem was resolved. (R. 229-231, 233, 274). Another note indicated that she was a poor source regarding her son's progress and that information from his school would be preferred. (R. 362).

At one point, someone from the health center appears to have observed Colton during school. (R. 286-290). They filled out a form indicating how often Colton exhibited a series of forty-three different problems. There is no legible date on the forms, but they appear to have been filled out on different days by the same person, whose name is also illegible. On one day, most of the responses indicate that Colton had problems "never" or "occasionally"; on the other, most responses indicate that he had problems often or very often.

Records from the school -- a military school where Colton resided Monday through Friday -- indicate that he was written up for behavioral incidents nine or ten times from December 11, 2003, through May 4, 2005. These ranged from not standing in line for medication at the proper time to disrupting class to altercations with other boys after school. (R. 328- 348).

Colton's fifth grade teacher filled out a questionnaire regarding his behavior for the school year. The teacher indicated that, in the "domain" of acquiring and using information, he had an obvious problem in expressing ideas in written form, but as for nine other areas such as comprehending instructions, reading and comprehending written material, learning new material, problem-solving, etc., he had no, or only slight, problems. (R. 386). In the "domain" of attending and completing tasks, he had an obvious problem focusing long enough to finish assigned tasks. (R. 387). Once again he had no, or only a slight, problem in a dozen other areas, including paying attention when spoken to, refocusing when necessary, carrying out multi-step instructions, waiting to take turns, working at a reasonable pace, etc. (R. 387). In terms of interacting with others, Colton had an obvious problem with respecting and obeying adults. (R. ...


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