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Michelle Roberts, On Behalf of M.R. v. Michael J. Astrue

May 16, 2013

MICHELLE ROBERTS, ON BEHALF OF M.R. PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Arlander Keys

MEMORANDUM OPINION AND ORDER

Plaintiff Michelle Roberts (plaintiff or "Ms. Roberts") has filed a motion for summary judgment seeking judicial review of the final decision of the Commissioner for Social Security ("Commissioner"). Ms. Roberts seeks Supplemental Security Income ("SSI") under Title XVI of the Social Security Act on behalf of her minor child ("M.R."). The parties consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c), and have filed cross-motions for summary judgment. For the reasons set forth below, Ms. Roberts' motion for summary judgment is denied, and the Commissioner's motion for summary judgment is granted. The Social Security Administration's November 17, 2009, decision is affirmed.

I. PROCEDURAL HISTORY

On September 26, 2006, M.R.'s mother, Ms. Roberts, applied for SSI disability benefits on behalf of her minor child, alleging disability since her birth, on January 2, 1997, due to bipolar disorder, psychosis and attention deficit/hyperactivity disorder (ADHD). (R. 178-83). The claim was denied on February 7, 2007, and upon reconsideration on May 17, 2007. (R. 109; R. 115). Thereafter, Ms. Roberts filed a written request for hearing by an Administrative Law Judge (ALJ). (R. 121-22). An initial hearing was held on April 27, 2009, in Oak Brook, Illinois, before ALJ Steven H. Templin. (R. 68, 131). The ALJ continued the case for submission of updated records. A supplemental hearing was held October 2, 2009. (R. 19, 154). M.R., Ms. Roberts, and Medical Expert (ME) Kathleen O'Brien testified at the hearing. M.R. was represented by an attorney at both hearings. (R. 19).

On November 17, 2009, the ALJ denied Ms. Robert's claim for benefits and found the minor child not disabled under the Social Security Act. (R. 93-104). Ms. Roberts appealed, and on March 17, 2011, the Appeals Council denied her request for review, causing the ALJ's decision to constitute the final decision of the Commissioner. (R. 6). The final decision of the Commissioner is reviewable by the District Court under 42 U.S.C. § 405(g).

II. M.R.'s HISTORY

A. Medical Evidence

M.R. was born on January 2, 1997. On April 19, 2006, Dr. Mohammed Ahmed conducted a psychiatric evaluation on M.R. Ms. Roberts reported disorganization and disruptive behaviors. M.R. was said to be failing all subjects in the second grade and, at the age of 9, was diagnosed with ADHD and oppositional defiant disorder. (R. 259-60). On September 14, 2006, M.R. was admitted to Streamwood Hospital, following bouts of extreme aggression towards her siblings. (R. 282). At an initial psychiatric evaluation on September 16, 2006, M.R. made very poor eye contact and had "very poor focus and concentration ... Her thoughts were very disjointed and at times [she] answered questions in inappropriate ways". (R. 280). M.R. was admitted to Streamwood Behavioral Health Center for demonstrating "very aggressive behavior," and for evaluation and diagnosis of her emotional functioning for the purpose of treatment. (R. 264; R. 269.)

On September 21, 2006, M.R. underwent another psychological evaluation to assess her current level of cognitive functioning and personality dynamics. (R. 263). This evaluation was conducted by Clinical Psychologist, Michael Di Domenico. (R. 263-70). M.R. had been reportedly isolating herself and hearing multiple voices. She was observed to have underlying anxiety. (R. 264).

M.R. obtained a full scale I.Q. score of 89, placing her in the low average range of intelligence. (R. 265). She was noted to have difficulty with mathematical concepts and a "learning disability for arithmetic." (R. 267). M.R. presented as depressed and there appeared to be "a significant amount of turmoil and unrest in her life." (R. 269). Psychological testing strongly suggested that she lacked insight into her behaviors and that she was easily stressed with limited coping skills. (Id.). M.R. was "easily distracted and hyperactive." (Id.). She was diagnosed with bipolar disorder with psychotic features, ADHD, and a mathematics disorder, and assigned a Global Assessment of Functioning ("GAF") of 40. (R. 270). The GAF is a subjective scale that measures a person's social, occupational, and psychological functioning. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. Am. Psychiatric Ass'n 1994). The scale ranges from zero to one hundred, and a lower score indicates more difficulty with social, occupational, or psychological functioning. Id. A GAF of 50 indicates either: "serious symptoms" or "any serious impairment in social, occupational, or school functioning." Id. M.R. was started on the following medications: Risperdal and Concerta. (R. 316). M.R. was discharged on October 13, 2006. (R. 303).

On January 15, 2007, Joseph M. Nemeth, M.D. performed a psychiatric evaluation of M.R. for SSA. (R. 315-16). M.R. and her mother reported visual and auditory hallucinations, impulsivity, irritability, and difficulty concentrating (R. 316). Dr. Nemeth diagnosed a psychotic disorder. (R. 317).

Jerrold Heinrich, Ph.D., a non-examining reviewer, completed a childhood disability evaluation form for SSA on January 30, 2007. (R. 320). He found less than marked impairments in attending and completing tasks, interacting and relating with others, and caring for herself. (R. 321-22).

M.R. was diagnosed as myopic in a vision examination report dated February 20, 2007. (R. 313). On April 25, 2007, M.R. was seen by Dr. Sivakumar for medication management. (R. 360). Dr. Sivakumar noted reports of rage and increased anger. (Id.). Dr. Sivakumar ordered the decrease of Risperdal, and M.R. was started on Depakote. (Id.).

On May 5, 2007, Julio Pardo, M.D., and Margaret Wharton, Psy.D., completed a childhood disability evaluation form for SSA. (R. 331-36). They found less than marked limitations in attending and completing tasks, interacting and relating with others, and in health and physical well being. (R. 333-34).

On May 16, 2007, M.R.'s mother reported to Dr. Sivakumar that M.R.'s behavior had gotten worse on Depakote. (R. 361). Depakote was discontinued and M.R.'s dose of Risperdal was increased. (Id.). On June 13, 2007, Dr. Sivakumar wrote that Ms. Roberts had been unable to comply with increased dose of Risperdal and that M.R.'s behavior was unchanged. (R. 362). When she returned on July 18, 2007, Ms. Roberts noted improvement in M.R.'s condition with the increased dose of Risperdal. (R. 364).

On August 15, 2007, Ms. Roberts reported that M.R. had been compliant with her medication and was taking Risperdal three times a day. (R. 363). Ms. Roberts described problems with focus and aggressive behavior. (Id.). Dr. Sivakumar diagnosed ADHD, intermittent explosive disorder, and bipolar disorder and increased her dose of Risperdal.(Id.).

M.R. did not show for her appointment on September 19, 2007.

(R. 365). On October 17, 2007, Dr. Sivakumar wrote that M.R. was not doing well in school. (R. 366). On November 21, 2007, Ms. Roberts told Dr. Sivakumar that M.R. was getting out of control at school. (R. 367). M.R. had told her mother that she was hearing voices again. (Id.). M.R. was noted to be in a trance and unable to speak. (Id.). Dr. Sivakumar changed the dosages of M.R.'s medications. (Id.).

On December 26, 2007, Ms. Roberts reported that M.R. was doing well, but that she was concerned that M.R. was not functioning at a fourth grade level. (R. 370). Dr. Sivakumar instructed that M.R's therapist be contacted about the school issues. (Id.). M.R. did not show for her scheduled appointments with Dr. Sivakumar in January and March. (R. 371-72). On April 16, 2008, Ms. Roberts told Dr. Sivakumar that M.R. was doing well in terms of her mood and at school. (R.373).

On June 11, 2008, Dr. Sivakumar noted that M.R. was becoming increasingly aggressive towards noon and into the evening. (R. 375). Dr. Sivakumar increased her Risperdal dose. (Id.). On July 23, 2008, Ms. Roberts claimed that increase of Risperdal had helped calm M.R. down. (R. 377). Dr. Sivakumar's notes from September 10, 2008, describe Ms. Roberts' frustration with M.R.'s school's failure to initiate an IEP due to multiple absences (R. 379). Dr. Sivakumar decreased M.R.'s afternoon Risperdal dose on December 3, 2008. (R. 380). On February 4, 2009, M.R. was noted to be doing well overall, but worse in school. (R. 381).

B. Therapy Treatment

M.R. took part in regular therapy sessions through the Gateway Foundation from January 18, 2007, through the date of her hearing. (R. 398- 483). These sessions took place at her school.

(R. 428). Progress notes from the Gateway foundation, dated February 15, 2007, state that M.R. was doing well overall, but had recently attacked her two-year-old sister. (R. 410). On November 11, 2007, Ms. Roberts called the Gateway Foundation to report increasingly aggressive behavior, dropping grades and psychotic features. (R. 423). On November 20, 2007, Melissa A. Hogan, M.P.H., wrote that Ms. Robert's concern for the mental health of M.R. appeared genuine and that she expressed frustration with the school for not creating an IEP. (R. 424). On December 14, 2007, Ms. Hogan wrote that M.R. appeared not to understand simple questions and was unable to make eye contact.

(R. 428).

On June 27, 2008, M.R.'s therapist Kurrum M. Butt met her at her home and noted that M.R. seemed to get confused when asking for more than one piece of information, but otherwise exhibited good cognitive functioning. (R. 442). On September 24, 2008, Ms. Roberts described her frustration with M.R.'s school over the IEP. (R. 457). Mr. Butt noted that M.R. seemed "very frustrated when talking about her problems with math; it appeared that she [was] really motivated to learn but [was] genuinely facing difficulty. (R. 458).

On October 8, 2008, Mr. Butt wrote that "most of [M.R.'s] stresses emanate from her difficulties with mathematics." (R. 467). He noted that M.R. got frustrated even when she talked about math (Id.). Ms. Roberts expressed her frustration with the lack of ...


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