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M.W., By His Next Friend, Dionne Terry v. Michael J. Astrue

April 30, 2012

M.W., BY HIS NEXT FRIEND, DIONNE TERRY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff, M.W. ("MW"), by his next of friend, Dionne Terry, brought this action for summary judgment and to reverse and remand the final decision of the Commissioner of the Social Security Administration, Michael J. Astrue ("the Commissioner"), who denied his claim for Social Security Income ("SSI"). The Commissioner requests this Court affirm the Administrative Law Judge's ("ALJ") decision and allow the Appeals Council's decision to become the final matter on MW's SSI benefits. For the reasons discussed herein, MW's motion for summary judgment is granted [dkt.25].

II. Procedural History

On May 14, 1999, Ms. Terry, MW's mother, filed an application for SSI benefit payments on behalf of her minor son, MW.*fn1 She claimed that since March 1, 1996,*fn2 MW had been disabled due to chronic asthma and "Gastrolitis" [sic].*fn3 In a determination dated December 8, 1999, MW became eligible for SSI benefit payments as of May 1, 1999.*fn4 During a Report of Continuing Disability Interview on July 29, 2003, Ms. Terry indicated that MW developed Attention Deficit Hyperactive Disorder ("ADHD"), allergies, and various learning disabilities; additionally, she amended her initial filing to include MW's behavioral outbursts.*fn5 On December 18, 2003, it was determined that MW, eight years old at the time, was no longer eligible for SSI benefit payments as of December 12, 2003.*fn6 Ms. Terry filed a Request for Reconsideration on February 27, 2004,*fn7 which was denied by notice dated October 19, 2004.*fn8

On October 28, 2004, Ms. Terry filed a request for a hearing before an ALJ.*fn9 A Notice of Hearing was sent to MW on June 26, 2006, for a hearing on August 4, 2006.*fn10 After failing to report to the initial hearing,*fn11 an additional Notice of Hearing was provided to MW on November 30, 2006, for a hearing set for December 8, 2006.*fn12 At that initial hearing, Ms. Terry was informed by ALJ Percival Harmon about MW's right to have legal representation and the hearing was postponed to allow Ms. Terry an opportunity to seek representation on MW's behalf.*fn13 MW's SSI benefit hearing was held on June 18, 2007, where he was represented by Amy Marinacci from the Legal Assistance Foundation.*fn14 Following the hearing, the ALJ issued an unfavorable opinion on June 29, 2007, finding that MW was not disabled under the Social Security Act.*fn15

On August 30, 2007, MW filed a request for review of the ALJ's determination with the Social Security Administration's Appeals Council.*fn16 A Notice of Appeals Council Action was received by MW on October 5, 2010 which informed him that his appeal was denied, making the ALJ's June 29, 2007 decision the final administrative determination of the Commissioner.*fn17 MW now seeks judicial review from this Court.

III. Statement of Facts

MW was eleven years old and in the fifth grade at the time ALJ Harmon issued his opinion. He lived with Ms. Terry, his mother, and eight siblings. The record consists of school and medical records that demonstrate his learning and behavioral impairments and the administrative hearing transcript. The Court will discuss each of these categories of evidence in turn.

A. School Records

The Court notes that the school records were not completed for SSI purposes but help to provide insight into many of MW's issues. In November 2003, when MW was in second grade, it was determined that he should receive an Individualized Education Plan ("IEP"), allowing him to obtain extra treatment for his learning and behavioral issues.*fn18 The initial IEP provided that MW should acquire 400 minutes per week of in-class special education services: 175 minutes per week for "Language/English/Reading," 175 minutes per week for "Mathematics," and 50 minutes per week in the "Social/Emotional" area.*fn19 This initial IEP determined that it was not necessary to remove MW from his regular classroom to receive additional help.*fn20 Additionally, the IEP indicated that MW had slight difficulty with visual-motor coordination which resulted in a recommendation of a reduced workload and extended time for homework and in testing situations.*fn21 Under the category "Functional Analysis & Behavior Intervention Plan," the initial IEP noted behavioral issues towards peers in the classroom and an inability to control his temper in both the classroom and in the lunchroom.*fn22 In particular, MW would become upset when his possessions were taken away.*fn23 Finally, the IEP indicated that Ms. Terry believed the reason for MW's learning problems was that "he was exposed or treated for lead poisoning" prior to entering school.*fn24

That same year, MW's report card showed that he received a mixture of grades ranging from an A in art and Bs in music, health, physical education, and drama, to Ds in reading, writing, and mathematics.*fn25 Mrs. Navarro, MW's second grade teacher, reported that MW struggled academically all year, resulting in him working below grade level.*fn26 She stated that he lacked focus in the classroom, failed to complete assignments, and that he needed to work on his behavioral issues.*fn27 Notably, Mrs. Navarro reported that MW was difficult to calm down, used inappropriate language, would fight with his peers, and failed to cooperate with her, and was disrespectful to her.*fn28

Despite these behavioral issues, Mrs. Navarro noted that MW did well in class when he chose to focus on his work and when he did, he worked very hard and completed his assignments.*fn29 Finally, she also reported that MW had 30 absences during the course of the school year.*fn30

During the 2004-2005 school year, when MW was in third grade, his IEP was modified to meet his developing needs. The new IEP provided that MW would be removed from his regular classroom for 350 minutes per week for special education services in a separate classroom, away from his peers, allowing him to work on his social and emotional needs.*fn31 A modified criterion was implemented in reading and mathematics because "MW is working below grade level and requires additional assistance in order to succeed in [those subjects]."*fn32 The school implemented a new grading scale to help MW achieve his IEP goals.*fn33 The modified grades were: A = 100-85; B = 84-70; C = 69-60; D = 59-50.*fn34 Additionally, the modified IEP pertain solely to MW's academic struggles. Under "Learning Characteristics," the IEP stated that MW had the following behavioral issues: following directions; processed information slowly; had difficulty understanding concepts; had difficulty following multiple verbal requests; was frequently distracted by extraneous noises; spelled poorly; had trouble putting ideas on paper; and was slow to switch from one task to another.*fn35 There was further recommendation that MW should be placed in after-school programs and summer school to help him reach grade level in his classes, especially in reading and mathematics.*fn36 There is no documentation that MW followed through on the school's recommendation.

MW's 2004-2005 report card indicated that he continued to struggle despite the initial IEP implementation. MW did improve in some areas, earning Bs in listening and speaking standards.*fn37

However, he also received a C in library science and Ds in reading, writing, mathematics, science, and social sciences.*fn38 Ms. Simpson, MW's third grade teacher, noted that MW tried his best in class, but that the basic reading skills at the third grade level were too difficult for him.*fn39 However, she stated that MW continued to try hard to improve his grades*fn40 and that "MW has strength in working in cooperative and small group settings. He has good leadership skills."*fn41 Finally, Ms. Simpson indicated that his grades would improve if MW regularly attended class.*fn42

During the 2005-2006 school year, there was no documentation that indicated there was any modification to MW's IEP. MW's fourth grade report card with the modified IEP grading scale showed that he received a mixture of grades, including an A in art, but Cs or Ds in every other class, including reading, writing, mathematics, science, and social sciences.*fn43 In regards to his behavioral issues, Ms. Garrison, MW's fourth grade teacher, noted that MW needed improvements in: exercising self-control; making appropriate decisions independently; accepting teacher guidance; following class routines, rules, and regulations; and respecting school property or the property of his peers.*fn44 Yet, despite these behavioral problems, in his first reporting period, Ms. Garrison lauded MW as a group leader and as a hard worker, when he chose to be.*fn45

The 2006-2007 school year IEP was modified again to help better meet MW's learning and behavioral needs.*fn46 MW's special education services were increased to 500 minutes per week, 300 minutes for language arts and 200 minutes for mathematics.*fn47 The modifications additionally required that MW meet a social worker for 30 minutes per week to help address his social and emotional needs.*fn48 The IEP also showed that MW had the following learning issues: distracted easily and lost focus and concentration; had difficulty putting ideas on paper; needed extended time on tasks for classroom and homework assignments by one-third; needed to be tested on one concept at a time; had difficulty following multiple verbal requests; was slow switching from one task to another; and needed to be provided motivation and verbal rewards on a daily basis.*fn49 However, under the category "General Considerations in the Development of the IEP," it was noted that MW had great leadership ability and strong peer interactions.*fn50

MW's 2006-2007 school year report card shows that he received a mixture of grades ranging from Bs in art, music, library, listening standards, speaking standards, and physical education, a C in reading, and Ds in writing, mathematics, science, and social sciences.*fn51 It was noted that MW tried in class and that he liked to learn.*fn52 Finally, the report card stated that MW was a good listener.*fn53

B. Medical Records

MW has also received medical treatment and assessments outside of the school setting. In a May 2004 Social Security Administration Childhood Disability Evaluation Form, when MW was in second grade, a state agency physician, E.C. Bone, M.D. ("Dr. Bone"), reviewed MW's SSI record evidence.*fn54 Following the six-domain Medical Listing of Impairments for Minors, implemented by the Commissioner, Dr. Bone found that there was no evidence in MW's file to support any limitations in the domain of attending and completing tasks and noted that MW had begun his IEP under the acquiring and using information domain.*fn55 However, he noted that MW had a marked limitation in the domain of interacting and relating with others, specifically that he was impulsive, very aggressive towards his peers and siblings, easily angered, threw temper tantrums, was very hyper, and that he was difficult to control.*fn56

On October 18, 2006, the Abraham Lincoln Center ("Lincoln Center") conducted a mental health assessment of MW.*fn57 The assessment noted that MW's thought content, mood, and speech were within normal limits.*fn58 In addition to these assessments, the Lincoln Center also found that MW appeared isolated and that his recent memory evaluation showed moderate limitations.*fn59 It was determined that MW had the following medical issues: asthma, ADHD, Oppositional Defiant Disorder ("ODD"), and learning impairments.*fn60 MW was described as very calm and quiet and that he thought before he provided the evaluator an answer.*fn61 The report also noted that five other of Ms. Terry's children, along with MW, had suffered from lead poisoning.*fn62

On December 6, 2006, MW received an assessment from Maximizing Learning in Schools Consulting, Inc. ("MLS").*fn63 The MLS Mental Status Examination noted that MW was a shy and quiet boy, speaking minimally.*fn64 The evaluator, Mashana L. Smith, M.D. ("Dr. Smith"), a licensed clinical psychologist, stated that MW did not engage in any spontaneous conversation and that he barely spoke above a whisper.*fn65 During the examination, MW's mood was deemed "unremarkable in intensity and showed little variation."*fn66 While the evaluator considered his thought content as normal, MW was unable to identify anything about himself that he liked and noted that he appeared to have limited insight and judgment.*fn67 At the end of the evaluation, MLS recommended that MW receive academic tutoring to help his reading skills and that he receive "Adovcay [sic] to help secure education services needed to accommodate [his] disabilities."*fn68

A May 18, 2007 Behavior Rating Inventory of Executive Function ("BRIEF") report was conducted to provide a better understanding of MW's self-control and problem-solving skills by measuring different aspects of MW's executive functioning.*fn69 The BRIEF report rating of MW's executive function, exhibited in his everyday behaviors, revealed no concerns and noted that his ability to control his thoughts, behaviors, and emotions were at an appropriate level for his age.*fn70

Specifically, MW was described as being appropriately able to initiate an activity and problem solve, to plan and organize his approach to solving a problem, and to monitor his own behavior as appropriate for his age.*fn71 In addition, the BRIEF report noted that MW was able to hold an appropriate amount of information in his "active memory" for mental manipulation.*fn72 As a result, he was deemed able to remain attentive and focused for appropriate lengths of time when required of him.*fn73 MW was described as being reasonably well-organized and generally able to maintain the orderliness of things in his environment, and he was typically able to find his belongings or his materials when he needed them.*fn74 The BRIEF report concluded that MW was described as being able to resist impulses and to consider the potential consequences of his actions before acting.*fn75
In a May 22, 2007 letter, Jean Kenron ("Ms. Kenron"), MSW, LSW, a social worker from the Lincoln Center, conducted another evaluation of MW.*fn76 She noted that MW continued to struggle with symptoms of his learning impairments and that he had difficulty in regulating and expressing his emotions appropriately.*fn77 Because of these deficiencies, MW required individualized treatment to help him focus on various tasks when given to him.*fn78 Of importance, it was noted that MW did not have autism despite the fact that he is severely delayed in his ability to recognize and express words properly.*fn79 Although MW was eager to learn and participate in class, Ms. Kenron deemed that MW needed extra attention to help him focus on and participate in reading and writing.*fn80 She concluded that MW's ADHD and ODD not only affected his academic abilities, but that it caused him to struggle expressing himself properly, which caused behavioral issues.*fn81
Between 2004-2007, MW was regularly prescribed medication for his asthma, ADHD, ODD, and various learning disabilities.*fn82 Those medications were Concerta, Strattera, and Adderall.*fn83

C. Hearing Testimony

There were two hearings regarding MW's SSI benefits. The first hearing was held on December 8, 2006.*fn84 This hearing was reset for two reasons. First, Ms. Terry did not know that MW could be represented by an attorney. ALJ Harmon, therefore, explained to her how to seek representation.*fn85 Second, the rescheduling allowed the ALJ time to review the record, which was provided to him that day.*fn86 Although little ...


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