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Henderson v. Colvin

United States District Court, N.D. Illinois, Eastern Division

August 14, 2014

FLORENCE HENDERSON, for her minor child, K.H, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendants.

MEMORANDUM OPINION AND ORDER

MICHAEL T. MASON, Magistrate Judge.

Florence Henderson ("Henderson"), on behalf of her son, K.H., brings this motion for summary judgment seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied K.H.'s claim for Supplemental Security Income ("SSI") under Section 1614(a)(3)(C) of the Social Security Act (the "SSA"), 42 U.S.C. § 1382c(a)(3)(C)(i). The Commissioner filed a cross-motion for summary judgment, requesting that this Court uphold the decision of the Administrative Law Judge ("ALJ"). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons set forth below, Claimant's motion for summary judgment is denied and the Commissioner's cross-motion for summary judgment is granted.

I. BACKGROUND

A. Procedural History

On April 30, 2010, Henderson filed an application for SSI, on behalf of her son K.H., a child under the age of 18, alleging an onset of disability of April 30, 2010 due to speech language delay and asthma. (R. 20). The Social Security Administration initially denied his claim on September 30, 2010, and upon reconsideration on February 15, 2011. (R. 20, 60, 68). Henderson then filed a timely request for a hearing on March 5, 2011. (R. 20, 73-74). On March 2, 2012, Henderson and K.H., without legal representation, appeared before the Administrative Law Judge ("ALJ"), Jose Anglada. (R. 20, 37). On April 3, 2012, ALJ Anglada issued a written decision denying Henderson's request for SSI. (R. 20-31). On April 19, 2012, Henderson filed a Request for Review, and on May 18, 2013, the Appeals Council denied this request, which made the ALJ's decision the final decision of the Commissioner. (R. 1-4, 15); Zurawski v. Hatler, 245 F.3d 881, 883 (7th Cir. 2001). Henderson subsequently filed this action in the District Court seeking review of that decision.

B. Medical Evidence and School Records

The ALJ based his decision to deny SSI on his review of both the medical evidence and school records made available, as well as the testimony presented at the March 2, 2012 hearing. The records show that K.H. first received an occupational therapy evaluation on June 10, 2008, after his mother had expressed concerns regarding K.H.'s speech development to his pediatrician. (R. 205-208). K.H. was 2 years and 2 months old at the time of the first evaluation. (R. 205). Evaluator Suresh Karra noted that K.H. was born prematurely at 36 weeks gestation via C-section. Id. Karra indicated in her evaluation that K.H. had a 23% delay in grasping and a 20% delay in visual motor integration. (R. 206). Furthermore, she found that K.H. had a 15% delay in "self-help skills" such as dressing, sleeping and grooming, as well as a 24% cognitive delay, a 24% social-emotional delay, and an 8% gross motor delay. (R. 206-07). Karra stated that although K.H. showed no significant delays in any evaluated area of fine motor or self-help skills, he may be eligible for Early Intervention Services in the State of Illinois due to his 31% delay (18 month age equivalency) in speech development. (R. 207-08). Thus, Karra recommended intervention in language, speech and communication development. (R. 208). That same day, K.H. and Henderson were referred for further speech evaluations by Santosh Mundada. (R. 217-220). Mundada noted that K.H. had a 23% delay (20 month age equivalency) in expressive language and a 46% delay (14 month age equivalency) in receptive language. (R. 219). Mundada also suggested that K.H. may be eligible for Early Intervention Services due to his 30% or greater delay in speech development. (R. 219-20).

An Early Intervention Service Plan was initiated for K.H. on June 14, 2008, listing the primary diagnosis as a "mixed developmental disorder." (R. 224-25). The evaluation listed K.H.'s initial assessment scores from Evaluator Karra, and then gave him a "Somewhat" rating (5 out of 7, with a score of 7 equaling "Completely") for his "positive socio-emotional skills, " "acquiring and using knowledge skills" and "taking appropriate action to meet needs." (R. 227-29). The plan then called for two different types of therapy: Speech Language Therapy and Developmental Therapy. (R. 231-32, 255-57). The Speech Language Therapy consisted of 180 minute Speech Therapy Assessments twice per authorization, 60 minutes of Speech Therapy IFSP (Individual Family Service Plan) Development once per month, and 60 minutes of Individual Speech Therapy Services once per week. (R. 257). The Developmental Therapy consisted of 180 minute Developmental Therapy Assessments twice per authorization, 60 minutes of IFSP Developmental Therapy once per month, and 60 minutes of Individual Developmental Therapy Services once per week. (R. 255)/

K.H. continued to receive speech evaluations from Santosh Mundada. (R. 213-216.) On November 11, 2008, Mundada noted that Henderson reported improvements in K.H.'s communication skills from the earlier June 10 testing, but noted K.H. continued to struggle with completing sentences. (R. 213). The test revealed that K.H. had a 26% delay (23 month age equivalency) in expressive language and a 35% delay (20 month age equivalency) in receptive language, which made him eligible for continued therapy. (R. 215-16).

Further testing through Mundada was completed on February 25, 2009, with Henderson reporting that K.H. had been making progress in his communication skills. (R. 201, 209). The testing showed continued improvements from the initial June 10 test, with K.H. at a 31% delay (24 month age equivalency) in expressive language and a 26% delay (26 month age equivalency) in receptive language, which made him eligible for continued therapy. (R. 203, 211). Mundada noted that, under receptive language skills, K.H. made good eye contact, responded to his name, followed simple instructions, and could identify objects and pictures, but that K.H. was "inconsistent" with common adjectives/adverbs and needed cues to follow long sentences. (R. 202, 210). Under expressive language skills, K.H. used words and short phrases to express needs, named noun pictures and a few action word pictures, but was not able to tell his name on command and needed simple cues to maintain conversation and answer simple questions. Id. When K.H. turned three years old on March 30, 2009, he no longer qualified for Early Intervention Services and transitioned to services in the Chicago Public School System. (R. 242-43).

K.H. had a "Health Maintenance Exam" at the University of Chicago Medical Center on May 5, 2009. (R. 329-331). At that time, Dr. Meghan Mullin noted that K.H. had a history of a "speech and developmental delay, " as well as a reactive-airway disease. (R. 329). Dr. Mullin assisted with paperwork so that K.H. could continue to receive therapy services once he began preschool in the fall, and also wrote him a new prescription for albuterol for his asthma. (R. 330-331).

On June 5, 2009, K.H. and Henderson attended an Individual Educational Program ("I.E.P.") meeting with their I.E.P. team. (R.260-271). The I.E.P. labeled K.H.'s "disability" as a "speech/language impairment." (R. 260). K.H.'s "Specialized Instructions" within his I.E.P. provided for services and benchmarks to be met in "Independent Functioning" and "Speech/Language." (R. 266-68). The plan called for a total of 45 minutes of direct services in class per week, 30 minutes as it related to "Independent Functioning" and 15 minutes as it related to "Speech/Language." (R. 270).

On June 2, 2010, K.H.'s Head Start pre-kindergarten teacher at Jackie Robinson Elementary School, Rosalyn Mauston, completed a teacher questionnaire in order to assist with K.H.'s application for SSI. (R. 131-138). In her evaluation, Mauston marked "No problems observed in this domain; functioning appears age appropriate" for "Acquiring and Using Information, " "Attending and Completing Tasks, " "Interacting and Relating with Others, " and "Caring for Himself." (R. 132-34, 136). Mauston indicated that she could understand "no more than half" of the speech from K.H. when the topic of conversation was known, unknown or even after repetition. (R. 135).

After K.H. completed his first year of preschool, his I.E.P. team met again on June 15, 2010. (R. 273-290). The I.E.P. continued to label K.H.'s "disability" as a "speech/language impairment." (R. 273). The I.E.P. prepared in the wake of that meeting noted that K.H. continued to need academic assistance with letter and number recognition, and that he displayed a decrease in his fine motor skills. (R. 277). Under the "Specialized Instructions" for "Independent Functioning, " the I.E.P. noted that K.H. can identify some letters and colors, can imitate vertical and horizontal lines, a circle, and can snip with scissors but not cut on a straight line. (R. 282). Under the "Specialized Instructions" for "Speech/Language, " the I.E.P. reflected that K.H. had been working on number (1-5) and letter recognition, but could not recite the alphabet. (R. 283). Furthermore, it noted that while he could name pictured objects and speak using simple phrases, he still required cues for sequencing simple events, identifying actions and functions of objects, answering questions following simple stories, and recognizing colors. (R. 277, 283). K.H.'s I.E.P. maintained the 45 minutes of direct services in class per week for both "Independent Functioning" and "Speech/Language, " and added 8 minutes for "Health/Medical" to monitor K.H.'s asthma. (R. 287).

On July 17, 2010, K.H. was evaluated by the SSA-selected speech and language pathologist DiAnne Bielinski for the Bureau of Disability Determination Services. (R. 334-36). Bielinski noted at the beginning of her evaluation that no prior reports were submitted to her and that she spent 30 minutes with K.H. (R. 334). K.H. was 4 years, 3 months at the time of the evaluation. Id. Bielinski found that K.H.'s speech intelligibility was 90% in conversational speech to an unfamiliar listener when the topic was unknown. Id. In his Language Evaluation, K.H. received an age equivalent score of 3 years, 2 months on the Listening Comprehension Section, and an age equivalent score of 3 years, 5 months on the Oral Expression section, both low average scores. (R. 335). Overall, K.H. received an age equivalent score of 3 years, 2 months on the Language Evaluation. Id. Additionally, Bielinski found that K.H.'s voice, fluency and hearing all appeared normal. Id. Thus, Bielinski did not recommend that K.H. receive speech and language therapy. Id.

On September 18, 2010, state agency reviewing physician Francis Vincent, M.D., along with the assistance of state agency speech-language pathologist Michelle Curran, S.L.P., completed the initial "Childhood Disability Evaluation Form" related to K.H.'s application for SSI due to a "speech and language delay" and "asthma" limitations. (R. 337-342). Dr. Vincent checked that K.H.'s "impairment or combination of impairments is severe, but does not meet, medically equal, or functionally equal the listings." (R. 337). In his evaluation of the six domains, Dr. Vincent noted that K.H. has no limitation in four of the domains: "Acquiring and Using Information;" "Attending and Completing Task;" "Moving and Manipulating Objects;" and "Caring for Yourself." (R. 339-340). Dr. Vincent found that K.H. has a "less than marked" limitation in "Interacting and Relating with Others, " noting that K.H. omitted the "s" sound, but had speech intelligibility of 90% in conversational speech, age appropriate voice and fluency skills, as well as age appropriate pragmatic skills. (R. 339). Finally, Dr. Vincent found K.H. to have a "marked" limitation in "Health and Physical Well-Being, " noting that K.H. had a history of asthma that was controlled with medication. (R. 340). Dr. Vincent concluded that while the allegations of limitations are credible in light of the medical evidence, the "extent of the limitations described by the claimant in terms of symptoms, exceeds that supported by the objective medical findings." (R. 342).

On October 27, 2010, Henderson took K.H. to see Dr. Mary Ellen Acree at the University of Chicago Medical Center. (R. 351-53). Dr. Acree reviewed K.H.'s I.E.P. which indicated that K.H. has struggled with numbers and colors. (R. 351). She also noted that Henderson stated that she and K.H. work together at home on colors and letters, but that the two of them quickly become frustrated and are not making progress. Id. At the end of her summary report, Dr. Acree noted a "possible development delay." (R. 353). She indicated that K.H.'s speech was "very appropriate on exam, " but that she was more concerned about his inability to identify numbers, colors and letters. Id. Thus, she referred Henderson and K.H. to the Development Pediatrics Practice at the Medical Center. Id.

On November 30, 2010, Henderson and K.H. again met with Dr. Acree at the Medical Center for a follow up. (R. 348-350). Dr. Acree noted that Henderson had not scheduled an appointment with the Development Pediatrics Practice. (R. 350). Dr. Acree noted that she was reassured, however, because K.H. was receiving treatment through his I.E.P. Id. Finally, Dr. Acree indicated that K.H. "definitely has a delay, given that he is unable to speak in full sentences at this point." Id.

On February 11, 2011, state agency reviewing physician Cosme Cagas, M.D., along with the assistance of state agency speech-language pathologist Carol Varney, S.L.P., completed a "reconsideration" of the "Childhood Disability Evaluation Form" related to K.H.'s application for SSI. (R. 377-382). Like Dr. Vincent, Dr. Cagas checked that K.H.'s "impairment or combination of impairments is severe, but does not meet, medically equal, or functionally equal the listings." (R. 377). However, in her evaluation of the six domains, Dr. Cagas noted that K.H. had no limitation in three of the domains: "Attending and Completing Task;" "Moving and Manipulating Objects;" and "Caring for Yourself." (R. 379-380). Dr. Cagas found that K.H. had a "less than marked" limitation in the other three domains: "Acquiring and Using Information;" "Interacting and Relating with ...


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