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Terra Booker v. Michael J. Astrue

May 4, 2012

TERRA BOOKER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM AND ORDER

The plaintiff, Valerie Booker, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her minor daughter, Terra Booker's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1383(c)(3). Ms. Booker asks the court to reverse and remand the Commissioner's decision or remand for consideration of additional evidence, while the Commissioner seeks an order affirming the decision.

I.

PROCEDURAL HISTORY

Ms. Booker applied for SSI on behalf of her daughter, Terra, on January 7, 2005. (Administrative Record ("R.") 168-70, 181). The application was denied initially and upon reconsideration. (R. 66-85). Ms. Girondi continued pursuit of the claim by filing a timely request for hearing on February 10, 2006. (R. 86-87).

An administrative law judge ("ALJ") convened a hearing on May 4, 2007, at which Ms. Booker and her daughter, represented by counsel, appeared and testified. (R. 895-937). On May 31, 2007, the ALJ issued a decision denying the application for SSI, because Terra did not have an impairment or combination of impairments that met, equaled or functionally met the Listings. (R. 53-65). Ms. Booker sought a review of the decision from the Appeals Council and submitted some additional evidence, which the Appeals Council found did not provide a basis for changing the ALJ's decision. It denied the request for review and the ALJ's decision became the final decision of the Commissioner on January 29, 2009. (R. 5-8). See 20 C.F.R. §§ 404.955; 404.981. The plaintiff has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II.

EVIDENCE

A.

Evidence before the ALJ Terra was born on January 19, 1990, and was seventeen years old at the time of the ALJ's decision. (R. 56). She has a history of psychological struggles, and has undergone a great number of evaluations resulting in nearly twenty different diagnoses.

(R. 56). Among these are a learning disability, an obsessive-compulsive disorder, a bipolar disorder, and attention-deficit disorder. (R. 56, 291, 327, 347, 419, 459, 471, 586, 796).

At school, Terra was placed in an Individualized Education Program in 2004. It was noted that her behavior impeded her learning or the learning of her classmates. (R. 225). She needed special instruction and accommodation in language arts and mathematics. (R. 225). That meant individual instruction, explanation, and encouragement. (R. 226). Because of her emotional state, she required breaks. (R. 226). She would be graded under modified criteria in view of her problems. (R. 232).

In April of 2005, Terra's math teacher, Colleen O'Hare, noted an exceptional degree of absenteeism, including absences for counseling session and homebound instruction. (R. 213). She had slight problems in comprehending math problems, expressing ideas in written form, and learning new material. (R 214). She required individual attention and explanation -- the math class was an "intensive instruction class" -- and encouragement and feedback during tasks. (R. 215). Terra had obvious problems with focusing and finishing tasks and with completing assignments. (R. 215). She was easily distracted and had to be prompted to return to tasks. (R. 215). She needed individual explanation before starting an assignment. (R. 215). She also had obvious problems with seeking attention appropriately and expressing anger. (R. 216). Terra also had difficulty being patient and using coping skills to deal with the school environment.

(R. 218). She refused to take her medications and was anxious about school being stressful. (R. 218).

In January of 2007, Terra's English teacher, who had known her for three years and saw her five day a week, reported on how Terra's impairments affected her in class. Ms. Fritsch felt Terra was markedly limited in her ability to acquire and use information, able only to see things superficially and unable to provide a depth of analysis expected at her age. (R. 849). She was extremely limited in her ability to attend and complete tasks, as she required constant support and reassurance during the process. (R. 849). Terra was moderately limited in her interaction with others, because she had so little confidence she would limit her interactions and exposures to new situations. (R. 849). Her anxiety and depression had a powerful impact on her expenditure of energy. (R. 847). She experienced a great deal of stress over deadlines and needed constant support. (R. 846). Her anxiety caused her to miss days of school or leave early when her stress level became too much for her. (R. 846). She sometimes fell asleep in class. (R. 845). She was afraid to let go of her book bag, clutching it to her during class. (R. 845). Her attention span was short and she was easily distracted. (R. 845).

Terra underwent a consultative evaluation with Dr. Allan Nelson that the disability agency arranged on June 28, 2005. During the interview, she was depressed and irritable, had a low tolerance for frustration, difficulties concentrating, and argued with her mother. (R. 383). Dr. Nelson reported that Terra was either depressed or hypomanic. (R. 385). When depressed, she experienced low self-esteem, crying spells, low frustration tolerance, difficulty concentrating, forgetfulness, and insomnia. (R. 385). When hypomanic, she experienced feelings of euphoria, excessive energy, agitation, flight of ideas, difficulty concentrating, and extreme talkativeness. (R. 385). Despite these difficulties, she did have a number of friends. (R. 385). Dr. Nelson diagnosed her with bipolar disorder and termed her prognosis guarded to fair. (R. 385).

In September and October of 2006, Terra has three evaluation sessions with a psychiatrist, Dr. William Cronenwett, and a child psychiatrist, Dr. Kathleen McKenna. The doctors noted her diagnoses of ADHD, obsessive compulsive disorder, and a non-verbal learning disability. (R. 414, 417). They also noted her long list of symptoms: irritability, dysphoria, uncontrollable worry, obsessive thinking, compulsive behavior, oppositionality, stealing lying, cruelty. (R. 410). There may have been an eating disorder as well. (R. 410). She endured sadness most of the day on a typical day, along with insomnia, poor concentration, feelings or worthlessness and hopelessness. (R. 411). Her mood had been fairly low for a number of years, but there had been a little bit of recent improvement with lamitrigene. (R. 411). This led to some side effects so the plan was to replace it with Abilify and Zoloft. (R. 413). Terra had phobias of spiders, bugs, and contamination. (R. 411). She refused to go on a family vacation for fear that the hotels would be dirty. (R. 411). She had cleaning rituals. (R. 411). She sends 200 text message each day. She holds food in the side of her mouth throughout a meal. (R. 411). She has anxiety about eating away from home. (R. 411). She was frequently openly defiant, but that had improved recently.

Her behavior at school was disruptive, and her mother was often called in. Terra expressed no guilt over this. (R. 411). She picked on people because she liked having power over them. (R. 412). She experienced hyperactivity and inattention at home and at school. ( R. 412). Dr. Cronenwett's and Dr. McKenna's impression was chronic depression, obsessive compulsive disorder, phobia, oppositional defiant disorder, ADHD, and learning disability. They assigned Terra a Global Assessment of Functioning score of 60. (R. 419). They feared that a family history of bipolar disorder might lead her to developing this disorder in the future. (R. 419). The doctors recommended psychotherapy and medications. (R. 419).

In April and May of 2004, Terra had a series of psychological evaluations with two psychologists, Elizabeth Franks and Lisa Sorenson. At the time, Terra was refusing to take her medication because she didn't like how it made her feel. (R. 314). There was a history of treatment for an eating disorder. (R. 314). During testing, Terra was sometimes uncooperative, shutting down and refusing to continue. (R. ...


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