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Kim Brownlee, On Behalf of Her Minor Child, D.Y v. Michael J. Astrue

September 9, 2011

KIM BROWNLEE, ON BEHALF OF HER MINOR CHILD, D.Y.,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Young B. Kim

MEMORANDUM OPINION and ORDER

Kim Brownlee seeks child's supplemental security income ("SSI") benefits under the Social Security Act, 42 U.S.C. § 1382c(a)(3)(C), on behalf of D.Y., her minor daughter. Brownlee claims that D.Y. is disabled by a combination of psychosis, depression, and borderline intellectual functioning. The Commissioner of Social Security issued a final decision denying her claims, and Brownlee appeals. See 42 U.S.C. §§ 405(g), 1383(c). Currently before the court are the parties' cross-motions for summary judgment. For the following reasons, Brownlee's motion for summary judgment is granted and the Commissioner's motion is denied.

Procedural History

Brownlee filed an application for SSI on D.Y.'s behalf in April 2007, claiming that D.Y. had become disabled on August 1, 2006. (A.R. 98.) After the Social Security Administration ("SSA") denied her claim initially and on reconsideration, (id. at 50-51), Brownlee was granted a hearing before an administrative law judge ("ALJ"), (id. at 20-49). On September 24, 2009, the ALJ denied Brownlee's claims. (Id. at 10-19.) The Appeals Council denied Brownlee's request for review, (id. at 1-3), making the ALJ's decision the final decision of the Commissioner, see Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). Brownlee then filed the current suit seeking judicial review of the ALJ's decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c); (R. 12).

Facts

On the date of her hearing before the ALJ, D.Y. was a ten year-old in-coming fifth grader with a years-long history of academic, social, and behavioral struggles. (A.R. 23.) D.Y.'s IQ falls within the second percentile-a cognitive disadvantage which is compounded by her depression and well-documented history of psychological issues. (Id. at 261.) She talks to herself and to imaginary friends, she often speaks in an inappropriate "baby" voice, and she reacts inappropriately to even small challenges at school. (Id. at 145, 262, 341, 559.) All of these issues came to a head in April 2008, when D.Y. was hospitalized for 10 days after experiencing auditory hallucinations including the voices of "bad animals" telling her to kill herself. (Id. at 304-07.) Brownlee claims that the evidence demonstrates that D.Y.'s combination of borderline intellectual functioning, depression, and psychosis render her disabled and entitle her to SSI benefits.

A. School Records

D.Y.'s academic problems were evident from as early as her first-grade year, when she received D's and C's in all of the core academic curricula. (A.R. 286-88.) D.Y.'s first-grade teacher reported that D.Y. needed to show progress in making appropriate decisions independently, following rules, and accepting teacher guidance. (Id. at 289.) Two years later D.Y.'s academic situation had not improved. On her third-grade report card D.Y. received C's, D's, and F's in reading, writing, and math. (A.R. 297-98.) Her teacher, Cashiene Askew, rated her poorly in conduct and attendance. (Id. at 300.) Askew also commented that D.Y. exerted little effort in class, played when she should be listening, and had been put behind by her "frequent absences and emotional difficulties." (Id. at 301.)

In response to D.Y.'s academic struggles, in the spring of 2007 (at the end of the D.Y.'s third-grade year), Brownlee, Askew, and Chicago Public School ("CPS") administrators met to develop an Individualized Education Program ("IEP") for D.Y. (A.R. 277.) In the IEP the school acknowledged that D.Y. had been diagnosed with depression and anxiety and was being treated with counseling and Prozac. (Id. at 279-81.) Ultimately, the parties to the IEP agreed that D.Y. would attend summer school and repeat the third grade. (Id. at 274.)

In the fall of 2007 D.Y.'s new third-grade teacher, Jessica Shable, completed a teacher questionnaire rating D.Y.'s level of functioning in the categories relevant to Brownlee's SSI application. (A.R. 142-49.) There are six categories, referred to as "functional domains":

(1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and

(6) health and physical well-being. (Id.) Shable explained that D.Y.'s history of absenteeism made it difficult for her to discern whether D.Y.'s academic deficits should be attributed to her inability to learn or to her absences. (Id. at 143.) Shable did not rate D.Y. as having any serious problems in the area of interacting and relating with others, but commented that she "sometimes talks in an immature 'baby' voice." (Id. at 145.) Shable thought D.Y. was exhibiting serious problems in caring for herself, and in particular in handling frustration appropriately, asserting her emotional needs, responding to mood changes appropriately, and using coping skills. (Id. at 147.) Shable noted that D.Y. would periodically "shut down," start crying, and refuse to answer questions, and that this isolating behavior "usually lasts until the end of the day." (Id.)

In December 2008 D.Y.'s fourth-grade special-education teacher, Lisa Pajek, filled out a similar questionnaire documenting significant deterioration in D.Y.'s functioning in the various categories. (A.R. 532-39.) Pajek rated D.Y. as having "very serious" problems with seeking attention, expressing anger, and asking permission appropriately, as well as following classroom rules and using appropriate language. (Id. at 535.) Pajek rated D.Y. as having a "serious problem" in respecting and obeying adults and in interpreting non-verbal or indirect communication. (Id.) Pajek commented that she had implemented some rewards systems to try to help D.Y. improve in these areas, but did not say whether those systems were working. (Id.) In the area of caring for herself, Pajek again rated D.Y. as having "very serious" problems handling frustration, showing patience, appropriately asserting her emotional needs or responding to her mood changes, using appropriate coping skills, and asking for help. (Id. at 537.) Although she noted that D.Y.'s "outbursts of frustration have lessened somewhat," Pajek commented that D.Y.'s psychological and emotional problems "affect her daily and make it difficult for her to complete assignments, ask for help and interact with peers and adults appropriately on a daily/hourly (sometimes) basis." (Id. at 538.)

In February 2009 Brownlee and CPS representatives completed a second IEP for D.Y. (Id. at 543-60.) The IEP reflects that D.Y. needs specialized instruction in dealing with social and emotional issues and in the core academic subjects. (Id. at 546.) D.Y.'s teacher wrote that her inability "to cope with change . . . often results in [D.Y.] leaving the class, which causes safety issues." (Id. at 555, 559-60.) She noted that this happens one to two times each week and that this behavior persisted despite attempts to redirect her. (Id. at 559.) The teacher attributed this ...


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