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Maria Fontenelle, Ex Rel., M.S., A Minor v. Michael J. Astrue

February 24, 2012

MARIA FONTENELLE, EX REL., M.S., A MINOR, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Maria Valdez

MEMORANDUM, OPINION AND ORDER

This is an action brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying Plaintiff Maria Fontenelle's claim for Supplemental Security Income Benefits under title XVI of the Social Security Act. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons contained herein, Plaintiff's Motion for Summary Judgment [Doc. No. 48] is granted in part and denied in part. The Court finds that this matter should be remanded for further proceedings consistent with this order.

BACKGROUND

I. Procedural History

Fontenelle originally applied for Supplemental Security Income ("SSI") disability benefits on behalf of her minor child M.S. on June 13, 2006. (R. 12.) The claim was denied on September 16, 2006, and upon reconsideration on November 20, 2006. (Id.) Fontenelle filed a timely request for a hearing by an Administrative Law Judge ("ALJ"), which was held on July 16, 2008. (Id.) Fontenelle and M.S. personally appeared, and M.S. testified at the hearing. (Id.) M.S. was represented by counsel. (Id.)

On August 28, 2008, the ALJ denied Fontenelle's claim for benefits and found the minor child not disabled under the Social Security Act. (R. 21-22.) The Social Security Administration Appeals Council denied Fontenelle's request for review on December 23, 2008, (R. 1), leaving the ALJ's decision as the final decision of the Commissioner. The final decision of the Commissioner is reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

II. Factual Background*fn1

A. M.S.'s History

M.S. was born on November 3, 1995. (R. 14.) At the time of the ALJ hearing he was twelve years old. (Id.) He attends school, and at the time of the hearing, he was about to enter seventh grade. (Id.) When he was two years old, he was diagnosed with asthma. (R. 276.) At the age of three, M.S. was diagnosed with attention deficit hyperactivity disorder ("ADHD") and was prescribed Ritalin. (R. 283.) Due to some side effects, he was taken off the drug. (Id.) He attended Melrose Park Elementary School from the time he was in Kindergarten until he finished his fourth grade year. (Id.) In second grade, he was put back on Ritalin. (Id.) M.S. attended Stevens School during the time he was in fifth grade and sixth grade. (R. 283, 296.) At the time of the hearing, he was preparing to start seventh grade. (R. 28.) In addition to Ritalin, M.S. has been prescribed Prozac (R. 131), Advair Diskus (R. 313), Methlyn (R. 144), Albuterol (Id.), singulair (Id.), and a nebulizer. (R. 131.) Fontenelle claimed disability on behalf of M.S. beginning on June 13, 2006, because of asthma and attention deficit hyperactivity disorder ("ADHD"). (R. 106, 129.)

B. Testimony, medical evidence and school records

1. M.S.'s testimony

At the hearing, M.S. testified that he was in special education math and reading classes, and stated that he attended them every day. (R. 28-29.) He reported that he was doing "good" in school, but did not remember what kind of grades he received his last school year. (R. 29.) He said that he was "pretty good" at finishing things that he is given to do, but that somebody has to help him and sit with him to keep his mind on his work. (R. 30.) M.S. said that his mom and sisters help him study. (R. 34.)

In terms of his asthma, M.S. claimed that he uses his inhaler and his "machine" when he needs it. (R. 29.) He reported that he was able to play games, participate in recess and gym at school, and keep up with the rest of the class. (R. 31.) He said that he could shoot baskets and play ball. (Id.) He also said that he picked out his own clothes, brushed his teeth and washed his face, but that he had to be reminded to do those things. (R. 32.) M.S. reported that his asthma kept him from doing very much, and that it bothered him a lot. (Id.) He explained that he had been to the hospital or emergency room recently for his asthma, but could not remember when. (Id.) He said that he has to take medicine every day. (R. 34.) He also said that he sometimes has trouble with breathing on "regular old day[s]" or "when [he] is kind of around the house." (Id.) When that happens, M.S. said that he uses his pump. (Id.)

2. Medical Evidence

The record contains two Social Security Administration childhood disability evaluations: (1) a September 1, 2006 evaluation by David Brister, Ph.D., (R. 238-43); and (2) a November 16, 2006 evaluation by Erika Altman, Ph.D., (R.248-253). Dr. Brister concluded that M.S. had less than marked limitation in attending and completing tasks, and no limitations in acquiring and using information, interacting and relating with others, moving about and manipulating objects, caring for yourself, and health and physical well-being. (R. 240-41.) Explaining his findings, Dr. Brister said that M.S. had a "history of DCFS involvement, but apparently lives with the mother. The child is a physically healthy young man with a history of ADHD and appears to responding (sic) to current treatment. The claimant does not appear to meet/equal/or functionally equal a listing." (R. 243.) Dr. Brister indicated that his sources were reports from Dr. Alexander, Dr. Yunez and Dr. Langgut. (Id.)

Dr. Altman affirmed Dr. Brister's determination and concluded that M.S. had less than marked limitation in attending and completing tasks, and no limitations in acquiring and using information, interacting and relating with others, moving about and manipulating objects, caring for yourself, and health and physical well-being. (R. 250-51.) Dr. Altman reported that "claimant is a 10 year old male attending regular classes at Melrose Park Elementary school. Dx and treatment for ADHD and asthma. . . . Impairment severe but does not meet, medically equal or functionally equal any listing." (R. 253.) Dr. Altman indicated that his sources were a reports from Family Medical Center, Dr. Yunez, Dr. Alexander, and Dr. Langgut. (Id.)

The record also contains a number of reports and progress notes from M.S.'s examining physicians. On September 2, 2005, Dr. Karim Yunez completed a Physician's Report for M.S.'s school. (R. 201.) Dr. Yunez noted that M.S. was diagnosed with ADHD and had been prescribed Ritalin. (Id.) The doctor explained that the medication is needed during the school day to increase concentration and decrease hyperactivity. (Id.) Dr. Yunez completed an identical form on August 29, 2006. (R. 235.) On July 23, 2007, Dr. Yunex wrote M.S. a prescription that explained that M.S. has exercise-induced asthma; the note stated that M.S. "should avoid running in gym at all costs." (R. 260.) Dr. Yunez also prescribed Advair Diskus for M.S.'s asthma. (R. 313.)

On December 19, 2005, a CT scan of M.S.'s abdomen and pelvis revealed no sings of acute appendicitis, liver lesions or splenic lesions, and no pancreatic or adrenal abnormalities. (R. 213.) The scan also showed that both kidneys "enhance normally and are without hydronephrosis." (Id.) The scan did reveal that there were "infiltrates or atelectasis in the left lung base and possibly in the right middle lobe medially." (Id.)

On August 15, 2006, just before M.S. started fifth grade, Dr. Mark Langgut completed a Report of Psychological Assessment. (R. 326.) Dr. Langgut noted that when M.S. started preschool at age three, he had behavioral problems. (R. 327.) The doctor found that M.S. has persistent difficulties in science, and that he does not receive special education services. (Id.) Dr. Langgut also reported that M.S. fights with his peers, does not share, and is overactive and impulsive. (Id.) In terms of M.S.'s asthma, Dr. Langgut said that he was hospitalized at age four for his condition, and that he uses albuterol and Singulair. (Id.) The doctor also noted M.S.'s use of Ritalin and noted that M.S. saw a social worker at his school for counseling. (Id.) During the examination, M.S. reported depression of mild intensity. And anxiety of mild intensity regarding his schoolwork. (Id.) Dr. Langgut also reported that M.S. gave evidence of variable memory skills: "[h]e was able to remember five digits forward and three digits but did so in a slow, plodding manner, indicating somewhat impaired immediate recall ability." (Id.)

In a September 21, 2006 progress note, Dr. Michelle Alexandre prescribed a nebulizer for M.S., in addition to his albuterol inhaler and methylin. (R. 237.) In a September 25, 2006 progress note, Dr. Alexandre limited M.S.'s gym class activity and instructed him to continue to use his albuterol inhaler. (Id.)

On September 19, 2007, Dr. Vahideh Nilforoshan sent a letter to M.S.'s school and requested that M.S. be allowed to "carry and administer his Albuterol inhaler every 4 hours for the next 2 days, to pre-medicate for sports/gym, and as needed for symptoms thereafter." (R. 308.) On the same date, after M.S. had been in the hospital for three days due to wheezing, abdominal pain, nausea and vomiting, Dr. Nilforoshan completed a pediatric discharge summary and noted that "[M.S.] has a history of hospitalizations for his asthma, mom states up to 4 times per year (at least 3 admits/year since dx at age 4). He has never been in the PICU and never been intubated. Most revent hospitalization prior to this one is Nov '06." (R. 309.) Dr. Nilforoshan also reported that M.S. required one hour of continuous albuterol/atrovent, "and was then on Q2 albuterol through his first 24 hrs of admission. He also required oxygen for the first day, with desats to the high 80s on room air on admission." (R. 310.) During his stay at the hospital, a chest x-ray was done which showed "LLL atelectasis vs pneumonia." (Id.) M.S.'s discharge diagnosis was "acute asthma exacerbation." (Id.) Dr. Nilforoshan notes no activity restrictions, and said that there is no reason for M.S. to avoid gym unless he is having respiratory distress. (Id.) The doctor also said that M.S. should pre-medicate with albuterol prior to exercise. (Id.)

3. School Records

On August 7, 2006, a facsimile sent in response to a request for M.S.'s educational records, states the following: "Not ...


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