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Jennifer Gibson, For Her Minor Child C.E v. Michael J. Astrue

March 12, 2012

JENNIFER GIBSON, FOR HER MINOR CHILD C.E., PLAINTIFF-CLAIMANT
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Jeffrey T. Gilbert Magistrate Judge

MEMORANDUM OPINION AND ORDER

Jennifer Gibson, on behalf of her minor child C.E. ("Claimant"), brings this action under 42 U.S.C. §405(g), seeking reversal or remand of the decision by Respondent Michael J. Astrue, Commissioner of Social Security ("Commissioner"), in which the Commissioner denied Claimant's application for supplemental security income benefits. This matter is before the Court on the parties' cross-motions for summary judgment [Dkt.#17, 25]. Claimant argues that the Administrative Law Judge's ("ALJ") decision denying his application for benefits should be reversed and/or that the case should be remanded for further proceedings. Claimant raises the following issues in support of his motion: (1) whether the ALJ gave insufficient weight to Claimant's treating source; (2) whether the ALJ failed to weigh the evidence concerning the severity of Claimant's limitations; (3) whether the ALJ properly analyzed the credibility of Claimant and his mother; and (4) whether the ALJ erred in failing to call a medical expert. For the reasons set forth below, Claimant's motion for summary judgment is granted [Dkt.#17], and the Commissioner's cross-motion is denied [Dkt.#25]. This case is remanded to the Social Security Administration for further proceedings consistent with this Memorandum Opinion and Opinion.

I. BACKGROUND

A. Procedural History

Claimant filed an application for supplemental security income ("SSI") on January 22, 2008, alleging a disability onset date of October 9, 1995. R.11. The Social Security Administration ("SSA") denied his application on May 1, 2008.

R.58. Claimant then filed a request for reconsideration, which the SSA denied on July 9, 2008. R.67. On September 24, 2008, Claimant requested a hearing before the ALJ. R.11.

On October 23, 2009, ALJ Karen Sayon presided over a hearing at which Claimant appeared with his mother and attorney. R.32. Claimant and his mother testified at the hearing. On November 23, 2009, the ALJ issued her decision finding that Claimant was not disabled under the Social Security Act. R.25.

Claimant filed a request for review of the ALJ's decision. R.6. On October 8, 2010, the Appeals Council denied that request rendering the ALJ's decision as the final decision of the Commissioner. R.1. On April 28, 2011, Claimant filed this action for review pursuant to 42 U.S.C. §405(g).

B. Hearing Testimony -- October 23, 2009

1. Claimant C.E.

At the time of the hearing, Claimant was 14 years old and attended grade school in Joliet, Illinois. R.35-36. According to his testimony, he was suspended at the time of the hearing for fighting with another student. R.36-37. Claimant testified that he has been suspended from school before for fighting with other students. R.41. Claimant also testified that he has gotten into fights with his teachers at the various schools that he has attended.R.45.

Claimant testified that he did not have any friends and did not play with other children. R.41. He testified that he has six siblings with whom he does not get along. R.41. Claimant testified that he likes to stay in the house and watch television. R.41. He testified that his mother asks him to do his chores but he does not do them. R.44. Claimant testified that he does not have any hobbies and does not like to play on the computer anymore. R.44.

Claimant testified that he has started fires before but that he does not remember when he began setting fires. R.45. Claimant also testified that he has gotten in trouble with the police for breaking and entering. R.43.

Claimant testified that he currently was taking medication and that he had been taking some type of medication for many years. R.39. He also testified that had been seeing a therapist for a number of years. R.40.

2. Jennifer Gibson -- Claimant's Mother

Ms. Gibson testified that she has six other children who are younger than Claimant. R.47. She testified that Claimant routinely fights with and hits his younger siblings. R.48. She testified that Claimant began taking medications when he was in preschool and that he has been taking medication again for the past year.

R.49. After preschool, Ms. Gibson testified that she had lost custody of Claimant and his siblings for about four years but that she regained custody about five years ago. R.49.

Ms. Gibson testified that Claimant had attended a behavioral school but he has returned to the public school. R.47. She testified that Claimant, at the time of the hearing, was having problems at school, including fighting with other students and his teachers, which have resulted in suspensions. R.47. Ms. Gibson testified that Claimant does not have any friends at school and just stays at home, a situation that has persisted for a number of years. R.48.

Ms. Gibson testified that Claimant's behavior had been better but that she believes that it has regressed. R. 52. More recently, Ms. Gibson testified that she was unable to bring Claimant to his doctor's appointments for about two months since she was pregnant with her sixth child, so there was a period of time that he was not taking any medications. R.49-50. Ms. Gibson testified that for about a year and half, Claimant has been seeing a therapist every month. R.50. Ms. Gibson testified that when Claimant was not on medication his behavior was much worse.

R.50. She testified that Claimant has been diagnosed with bipolar, attention deficit hyperactivity disorder ("ADHD"), and depression and that he recently has been hearing voices. R.52-53.

Ms. Gibson testified that Claimant has a fascination with fires and that he has set multiple things on fire. R. 51. She testified that when Claimant was younger he lit a rug on fire and a piece of paper that he put under a neighbor's door. R. 51. She also testified that Claimant had burned a piece of cardboard at home and that he also sprayed his arm with hairspray and lit his arm on fire. R.51.

C. Medical Evidence

1. Dr. William Hilger -- April 10, 2008

Dr. Hilger, a psychologist, examined Claimant on April 10, 2008 when he was 12 years old. R.195. Dr. Hilger was able to review the Childhood Functional Report provided by Ms. Gibson but he did not read any formal medical or school reports since there were no reports on file. R.195. Claimant reported to Dr. Hilger that he had been attending school regularly and doing "ok" in school. R.195. Claimant admitted to Dr. Hilger that he gets into trouble at school because of fighting and cursing at the teachers. R.195. Claimant told Dr. Hilger that he likes to go outside and do activities, work on the computer. R.196. Claimant reported that he had friends and that he fought with his mother and siblings. R.196.

Claimant told Dr. Hilger that he saw a Dr. Trum who prescribed Prozac at 10mg, one tablet in the morning, and Adderall XR at 10mg, one tablet per day since February 13, 2008 which he had been taking regularly. R.195. Claimant did not report any other serious medical issues or psychiatric treatment. R.195.

In his analysis, Dr. Hilger found that Claimant exhibited intellectual abilities and overall intelligence to at least the low average range between the 14th and 19th percentiles with low level of perceptual motor skills. R.197. He found that Claimant had mild ADHD of the more inattentive type fairly controlled with medication. R.198. Dr. Hilger also opined that Claimant had low average intellectual functioning and that he had a current Global Assessment of Functioning ("GAF") score of 70-75.*fn1 R.198. Dr. Hilger concluded that Claimant appeared to have low average mental potential if he continued taking his ADHD medication to improve his attention to perform age appropriate activities involving understanding and memory, sustained concentration and persistence, social interaction, and adaptation. R.198.

2. Will County Psychological Assessment -- April 19, 2008

Joshua P. Bearman-Kogan conducted a psychological assessment for treatment recommendations on March 27 and 28, 2008 and prepared a report dated on April 19, 2008. R.296. Dr. Rita Gray was the supervising psychologist. R.296.

During the assessment, Claimant reported being suspended four or five times during the year. R.298. Claimant told Mr. Bearman-Kogan that he had lit fires in his home several times in the past, once burning down the home while other people were in it during mid-morning hours. R.298. Claimant reported that in the past week, he had set fire to garbage in the yard. R.298. Claimant's mother, however, reported that Claimant never had burned down the house but that when he was four, he did start a fire in their apartment and when he was five, he started a fire in another apartment. R.298.

Mr. Bearman-Kogan administered a number of personality and intellectual tests to Claimant. Claimant scored high on the Beck Depression Inventory II indicating a severe level of depressive symptoms within the past two weeks.

R.300. He also scored high on the Adolescent Anger Rating Scale, indicating that his overall anger falls into the very high range which, according to Mr. BearmanKogan, merits further ...


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