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Amanda Bielefeldt Ex Rel. Hailey D. Wheelock v. Mahoney Michael J. Astrue

August 4, 2011


The opinion of the court was delivered by: Magistrate Judge P. Michael


I. Introduction

Amanda Bielefeldt, on behalf of her minor child, Hailey D. Wheelock, seeks judicial review of the Social Security Administration ("SSA") Commissioner's decision to deny her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.*fn1 See 42 U.S.C. §§ 1383(c)(3), 1381a. This matter is before the Magistrate Judge pursuant to the consent of both parties, filed on March 23, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Hailey D. Wheelock ("Claimant") applied for SSI on June 17, 2008, alleging a disability onset date of May 1, 2008. (Tr. 96.) Claimant's initial application was denied on July 9, 2008. (Tr. 50.) Upon reconsideration, her claim was again denied on October 2, 2008. (Tr. 57.) Claimant filed a request for a hearing before an Administrative Law Judge ("ALJ") on October 8, 2008. (Tr. 63.) The hearing took place before ALJ Maren Dougherty on July 1, 2009. (Tr. 18-47.) Claimant and her mother appeared via videoconference, and her mother testified, with Claimant's attorney present. (Tr. 20, 18-47.)

On August 5, 2009, the ALJ held that Claimant was not disabled and denied her claim for SSI. (Tr. 6-17.) Claimant requested review of the ALJ decision, and the Appeals Council denied Claimant's request on October 27, 2009. (Tr. 1.) As a result of this denial, the decision of the ALJ is considered the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1455, 416.1481, Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). Claimant has filed a complaint in the United States District Court for the Northern District of Illinois, Western Division, seeking judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3).

III. Background and Medical History

Claimant was born on June 23, 2006. (Tr. 136.) She was approximately 23 months old when the application for SSI was filed, and approximately three years old at the time of the ALJ hearing. (Tr. 8, 30.) Thus, Claimant was an older infant/toddler at time of filing and a preschool child at the time of hearing under 20 C.F.R. § 416.926a(g)(2).

At the ALJ hearing, Claimant's mother stated that Claimant suffered from developmental delays and discussed at length the practical implications stemming from these delays, including communicative, motor, and cognitive issues (Tr. 32-47.) Claimant's mother also discussed Claimant's history of medical issues, focusing particularly on Claimant's ear infections and febrile seizures. Id.

Claimant has suffered from otitis media,*fn2 and has seen a doctor complaining of symptoms related to otitis media on no fewer than eight occasions. The treatments recommended and prescribed by doctors have generally included antibiotics and over-the-counter pain relievers. For example, Claimant visited the emergency room on August 1, 2007, where Dr. Thanh Andreakos diagnosed her with an ear infection and prescribed antibiotics for treatment, in addition to recommending Tylenol and Motrin to relieve related pain and reduce fever. (Tr. 190, 191.) On another occasion, Claimant visited the emergency room on June 10, 2008 due to fever and ear pain, and Dr. Abbas Al-Saraf prescribed her antibiotics and ibuprofen. (Tr. 290, 291.) Claimant has been treated surgically for her chronic otitis media, having a bilateral tympanostomy with vents*fn3 completed on February 8, 2008. (Tr. 174.) Claimaint has had fewer reported incidents of otitis media after the procedure. Claimant has also contracted and been treated for other viral and bacterial infections, such as the upper respiratory infection diagnosed by Kelly Lovejoy on July 9, 2006 (Tr. 202.)

Claimant has a history of fevers and suffering from febrile seizures.*fn4 Claimant has visited the doctor and recorded a fever on more than fifteen documented occasions, but has never stayed overnight in the hospital for treatment of these symptoms. (Tr. 323.) For example, Claimant went to the emergency room on April 15, 2008 and was seen by Dr. Brian Jokhy, who noted a fever of 101.3 degrees Fahrenheit. (Tr. 209, 210.) According to the medical records, Claimant's febrile seizures have never been witnessed by a treating source, but records indicate approximately ten such seizures between 11 months and 2 years of age. (Tr. 357.) Treatment has routinely included and been limited to over-the-counter pain relievers, such as Motrin and Tylenol, and antihistamines, such as Benadryl, except where onset of otitis media required antibiotics. Exemplifying this pattern is Claimant's January 9, 2008 emergency room visit, where Dr. George Beranek diagnosed her with febrile seizure, fever, and otitis media, and recommended Tylenol and ibuprofen to address the fever while prescribing amoxicillin to treat the otitis media. (Tr. 226.) Since March 2008, the frequency of reported incidents of febrile seizure has decreased and Claimant is experiencing them less often as she grows older. (Tr. 312.) No evidence of any residual physiological deficits have been found to result from the seizures. (Tr. 312.) Chest x-rays have returned normal. (Tr. 184, 186, 205, 247.) Medical imaging of the brain -- including MRIs, CT scans, and EEGs -- have likewise been found unremarkable. (Tr. 185, 227, 229, 250, 316.) Hearing tests have come back normal. (Tr. 346.)

Most significant to the ALJ's decision, numerous doctors and other treating sources have tested Claimant for developmental delays. On September 6, 2007, Dr. Phillip Miner, M.D., conducted a neurological assessment of Claimant (Tr. 250-254.) Dr. Miner performed a thorough battery of tests, including an MRI and EEG of Claimant's brain, blood tests, and urinalysis, and came to a conclusion of "mild motor delay." (Tr. 253.) Kendra Meyers, MPT, of Rockford Health System observed Claimant on June 16, 2008 and likewise noted "mild delays in overall gross motor development" based on test scores indicating motor delay of 22%. (Tr. 298.) On July 15, 2008, the Illinois Early Intervention program evaluated Claimant using the Battelle Developmental Inventory and Bayley Scales of Infant Development III, and reported motor, communicative, and adaptive developmental delays of approximately 22%, as well as a cognitive delay of 37%. (Tr. 263, 319.) Regarding the cognitive delay, the Early Intervention evaluator noted that "[e]xperience is a possible factor related to non-completion of many test items." (Tr. 321.) Mark Langgut, Ph.D. and licensed clinical psychologist, tested Claimant on September 12, 2008 using the Bayley Scales of Infant Development III and concluded her cognitive development was in the 16th percentile, language development was in the 8th percentile, and motor development was in the 1st percentile. (Tr. 323, 324.) The test administrator notes that Claimant "was only fairly cooperative during the examination as she was somewhat tired and irritable." (Tr. 323.) On May 19, 2009, Rockford Public Schools Individualized Education Program ("IEP") assessed Claimant's development progress. (Tr. 354-379.) Testers used the Peabody Developmental Motor Scales Assessment and concluded she had average grasping skills and below average visual-motor integration. (Tr. 358.) The IEP concluded that Claimant had impairments in articulation and expressive, receptive, and pragmatic language, as well as noting delays of 25% but less than 30% for physical, cognitive, and communication development. (Tr. 359, 360.)

Dr. Cosme Cagas, M.D., a state agency reviewing physician, reviewed the Claimant's medical records on July 1, 2008 and opined that she was severely impaired due to her history of febrile seizures, but that the impairment did not meet, medically equal, or functionally equal the listings. (Tr. 309.) Specifically, Dr. Cagas found that there were no limitations in the first five domains and a "marked" limitation in the sixth domain, health and physical well-being. (Tr. 311, 312.) In support of the finding on domain six, Dr. Cagas noted that Claimant is having fewer febrile seizures as she gets older and has had no lasting effects from the seizures. (Tr. 312.)

On September 30, 2008 and October 1, 2008, Dr. Victoria Dow, M.D., and Donna Hudspeth, Psy.D., reevaluated Claimant on behalf of the SSA. (Tr. 325-330.) This assessment specifically noted the developmental delays as a recognized impairment, but came to the same conclusion as Dr. Cagas: that the impairment did not meet, medically equal, or functionally equal the listings. (Tr. 325.) The evaluators found that Claimant had "less than marked" limitation in five of six domains and no limitation in domain three, interacting and relating with others. (Tr. 327, 328.) In particular, the evaluators considered the scores from Claimant's testing on Bayley Scales of Infant Development III as completed by Mark Langgut, Ph.D., and noted that Claimant can follow most simple one- and two-step directions in determining a "less than marked" limitation in domain one, acquiring and using information. (Tr. 327.) ...

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