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Tasha Gatewood, Ex. Rel. D.P., A Minor v. E. Cox Michael J. Astrue

March 14, 2011

TASHA GATEWOOD, EX. REL. D.P., A MINOR, PLAINTIFF,
v.
E. COX MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER Plaintiff, Tasha Gatewood ("Gatewood"), brought this action on behalf of her son, "DP," to remand the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), who denied her claim for Supplemental Security Income ("SSI"). Gatewood 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, Gatewood's motion for summary judgment is granted [dkt. 25] and the Commissioner's motion for summary judgment is denied [dkt. 27].

PROCEDURAL HISTORY

On July 9, 2007 Gatewood filed an application for SSI payments on behalf of her minor son, DP.*fn1 She alleged that DP had been disabled due to asthma since January 6, 1997.*fn2 That claim was initially denied by notice dated August 29, 2007.*fn3 Gatewood then filed a Request for Reconsideration and the claim was again denied by notice dated October 10, 2007.*fn4 On November 15, 2007, Gatewood filed a request for a hearing before an Administrative Law Judge ("ALJ").*fn5
On July 9, 2009, a hearing was held before ALJ Joel G. Fina in Orland Park, Illinois.*fn6 By the time this hearing occurred, however, Gatewood had submitted additional evidence to establish that DP had a learning disability in addition to the asthma.*fn7 Following the hearing, the ALJ issued an unfavorable opinion dated August 21, 2009, finding that DP was not disabled under the Social Security Act.*fn8 On November 2, 2009, Gatewood then filed a request for review of the ALJ's determination with the Social Security Administration's Appeals Council.*fn9 On November 20, 2009, the Appeals Council denied the request for review, making the ALJ's August 21, 2009 decision the final administrative determination of the Commissioner.*fn10 On January 15, 2010, Gatewood filed a complaint, seeking judicial review.*fn11

STATEMENT OF FACTS

DP was fourteen years old at the time the ALJ issued his opinion. He lived with Gatewoodhis mother- and his two brothers. The record consists of school records to demonstrate his learning disability, medical records that document his asthma, an interrogatory by a medical expert who reviewed DP's school and medical records, and the administrative hearing transcript. We will discuss each of these categories of evidence in turn.

A. Medical Documents Related to Asthma

DP suffered from asthma since1997, when he was two years of age.*fn12 Medical documents, however, date back to only May 2006, when DP was brought to the emergency room reporting symptoms of wheezing and difficulty breathing.*fn13 He was transferred to the intensive care unit for further care and was discharged five days later.*fn14 Since then he has been treated for asthma on a regular basis by C.W. Chen, M.D. and given medication.*fn15

On August 23, 2007, Bala Kanagaraju, M.D. performed a Consultative Examination for the Bureau of Disability Determination Services.*fn16 He examined the medical records and performed a thirty minute examination of DP.*fn17 At the time of examination, DP was 12 years old and obese.*fn18 In his report, Dr. Kanagaraju stated that DP was diagnosed with asthma at two years of age, after an emergency room visit.*fn19 He stated that DP experienced asthma attacks initially six times per year, but that the attacks had increased to between eight and ten times per year.*fn20 He stated that DP is admitted to the hospital due to asthma approximately four to five times per year.*fn21 Dr. Kanagaraju noted that DP is seen once a month by a pediatrician to monitor his asthma.*fn22 Cold weather, weather changes, playing, pets, and smoke were listed as aggravating factors.*fn23 The following medications were listed: Albuterol Spray; Flovent Spray; Albuterol Nebuliser treatment; and Predisone.*fn24 No other medical issues were noted.*fn25

On August 27, 2007, Virgilio Pilapil, M.D. examined DP's medical records and completed a Childhood Disability Evaluation Form, which is a Social Security Administration form completed by medical consultants to help the Social Security Administration evaluate whether a claimant is disabled.*fn26 However, Dr. Pilapil did not personally examine DP.*fn27 Dr. Pilapil concluded that DP's asthma was a severe impairment but that it did not meet, medically equal, or functionally equal listings provided in the Social Security Administration Regulations ("Regulations").*fn28

The disability evaluation form includes six "Domain Evaluations," where the doctor must assess the claimant's limitations in six categories as either "no limitation," "less than marked," "marked," or "extreme."*fn29 In the first domain, "using and acquiring information," Dr. Pilapil marked "no limitation" and noted that, "[t]his 12 year old is in regular ed classes, no problems alleged."*fn30 In terms of "attending and completing tasks," Dr. Pilapil again marked "no limitation," noting that, "no problems noted or alleged."*fn31 In the domain of "interacting and relating with others," Dr. Pilapil did not indicate DP's limitation, but he noted that DP, "[t]alks with family and friends. Can communicate wants and needs; talks on the phone. Gets along with mother and teachers."*fn32 Dr. Pilapil marked "no limitation" for the domains of "moving about and manipulating objects" and "caring for yourself."*fn33 In the final category, "health and physical well-being," Dr. Pilapil marked, "less than marked."*fn34 In this category Dr. Pilapil noted that DP's asthma was controlled with medication.*fn35

On October 2, 2007, after Gatewood filed her request for reconsideration, Reynaldo Gotanco, M.D. also completed a Disability Evaluation Form.*fn36 Dr. Gotanco's opinion affirmed Dr. Pilapil's opinion, noting that DP's asthma was "well controlled on medication."*fn37 It is important to note that at the time Drs. Kanagaraju, Pilapil, and Gotanco provided their opinions, Gatewood had not indicated DP's learning disability as a potential reason for disability benefits. Therefore, they analyzed DP only in terms of his asthma.

B. Learning Disability

Gatewood did not raise the issue of DP's learning disability until after the reconsideration was denied. Nevertheless, evidence of DP's learning disability was presented to the medical expert that completed the medical interrogatories, the medical expert at the administrative hearing, and the ALJ. This evidence consists of three school records.

On September 17, 2007, DP's fifth grade teacher, Tolana Blackfeel, completed a "Teacher Questionnaire" at the request of the Social Security Administration.*fn38 The Teacher Questionnaire asked Ms. Blackfeel to indicate whether DP had problems functioning in the same six domains that were evaluated in the Childhood Disability Evaluation Form.*fn39 First, Ms. Blackfeel reported that DP had problems functioning in the domain of "acquiring and using information."*fn40 Within this domain, the form specified ten categories and required Ms. Blackfeel to rate DP's functioning in each of these categories ranging from no problem to a very serious problem.*fn41 Of these ten activities, Ms. Blackfeel indicated a slight problem for three of the activities, an obvious problem for six of the activities, and a serious problem for the activity of "expressing ideas in written form."*fn42

Second, she also noted that DP had problems functioning in the domain of "attending and completing tasks."*fn43 Again, the form required Ms. Blackfeel to rate DP's functional problems in specific activities within this domain.*fn44 Of the thirteen activities, Ms. Blackfeel marked no problem for two of the categories, a slight problem for four of the categories, and an obvious problem for six of the activities.*fn45 Third, Ms. Blackfeel observed that DP had problems functioning in the domain of "interacting and relating with others."*fn46 In the thirteen specific activities within this domain, she marked no problem for four of the activities, a slight problem for seven of the activities, and an obvious problem in "expressing anger appropriately."*fn47 Fourth, Ms. Blackfeel also indicated that there were problems functioning in the "caring for himself" domain.*fn48 This domain listed ten specific activities, and Ms. Blackfeel opined that DP had no problem in three of the activities, a slight problem in five activities, and an obvious problem in two activities.*fn49 Fifth, Ms. Blackfeel reported no functional problems in the "moving about and manipulating objects domain." *fn50 Finally, sixth, under the domain "medical conditions and medications/health and physical well-being," Ms. Blackfeel stated that DP, "had many difficult days related to his asthma."*fn51 She also noted that he frequently missed school due to illness.*fn52

DP's sixth grade performance was recorded on a "Teacher Intervention Strategies" form, which his teacher, Mr. E. Jackson completed in October 2007.*fn53 We note that this from is completed for school purposes, and was not completed for the Social Security Administration. The report noted that DP required intervention in all school subjects and behavior.*fn54 Specifically, it was observed that DP had difficulty following directions, processed information slowly, had difficulty with math reasoning, was distracted easily and lost focus often, spelled poorly, had trouble putting ideas on paper, had difficulty understanding concepts, had difficulty following multiple verbal requests, and was slow to switch from one task to another.*fn55 A number of academic interventions were instituted to address these issues.*fn56 In addition, social work observation was requested to remedy behavioral issues, including his aggressive behavior.*fn57

DP continued to struggle in seventh grade. In December 2008, a "Conference Report," another report completed for school purposes only, indicated that he was reading at a third grade level.*fn58 It also noted that he was below his grade level in math skills.*fn59 Further, DP's IQ score was in the "low average range."*fn60 The document noted that DP was eligible for special education services because of a "specific learning disability."*fn61 The document stated that DP, "displays significant weaknesses in the areas of concept formation in written form and math calculation skills."*fn62

C. Medical Interrogatory

A medical expert, Milford Schwartz, M.D., completed a set of interrogatory questions on December 24, 2008.*fn63 Dr. Schwartz did not examine DP, but he reviewed all the school and medical records. Dr. Schwartz concluded that DP's asthma did not meet or medically equal any of the requirements in the listings.*fn64 When evaluating DP's ability to function in the various domains, he indicated "less than marked" in the domains of "moving about and manipulating objects" and "health and physical well being."*fn65 He noted that DP had only one admission into the hospital for asthma within the relevant disability period.*fn66 Dr. Schwartz also observed that DP's lungs were clear in between wheezing episodes.*fn67

Dr. Schwartz, however, was unable reach a conclusion as to the severity of DP's learning disability, stating, "[t]he allegation of a mental impairment needs to be developed."*fn68 Further, Dr. Schwartz failed to reach a conclusion in the domains of "acquiring and using information," "attending and completing tasks," "interacting and relating with others," and "caring for yourself," noting that there was insufficient evidence.*fn69

D. Hearing Testimony

At the hearing before ALJ Fina, testimony was taken from Gatewood, DP, and a medical expert, Lawrence James Hagerman, MD.*fn70

A fact of particular importance is that Gatewood was not represented by counsel at the administrative hearing. At the beginning of the hearing, the ALJ discussed with Gatewood her right to have an attorney. The following discussion ensued:

ALJ: .... Now before we go any further, do you understand you have a right to have an ...


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